United States District Court, N.D. Georgia, Atlanta Division
NON-FINAL REPORT AND RECOMMENDATION
CATHERINE M. SALINAS, UNITED STATES MAGISTRATE JUDGE
case is before the Court on the Motion to Dismiss Based on
Double Jeopardy filed by Defendant Allen Pendergrass. [Docs.
27, 36]. Defendant argues that the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution
requires dismissal of the charges against him. Defendant
argues that his Constitutional rights have been violated
because he has been federally indicted twice-first in 2014 in
the Southern District of Ohio for bank fraud and identity
theft, and again in June 2017 in the instant case for mail
fraud, money laundering, and aggravated identity theft. In
the two-page perfected motion, Defendant cites no case law
and fails to set forth any details of the two cases to
support his argument that the charges should be dismissed on
double jeopardy grounds. [Doc. 36]. Defendant does not
address the dates of the alleged crimes, the persons alleged
to have been involved in the criminal conduct, the places
where the crimes are alleged to have occurred, or even the
factual predicate for the various offenses. Rather, Defendant
simply states (with no legal support) that the crimes alleged
in the instant case “are not so different” from
the crimes alleged in the previous case. Defendant contends
that the crimes should have all been charged in the same
indictment, and the charges against him in this case should
be dismissed. He requests an evidentiary hearing and moves
this Court to dismiss all the charges against him. Defendant
has not shown entitlement to any of his requested relief.
January 30, 2014, a federal grand jury in the Southern
District of Ohio returned an indictment against Defendant in
a case styled United States v. Allen J. Pendergrass,
No. 2:14-cr-21 (S.D. Ohio) (“the Ohio Case”).
[Doc. 36-1]. In the Ohio Case, Defendant was charged with
fifty-one counts of bank fraud based on allegations that he
deposited stolen United States Treasury checks into a bank
account in Columbus, Ohio during a six month period between
February and August 2012. [Id.]. He was also charged
with one count of aggravated identity theft based on his use
on September 5, 2012 of the name and social security number
of another person to obtain money from that same Columbus,
Ohio bank. [Id.]. Defendant was the sole person charged
in the Ohio Case. [Id.].
27, 2017, a federal grand jury in the Northern District of
Georgia returned the ten-count indictment in this case
against Defendant and his alleged co-conspirator, Terrell
McQueen (“the Indictment”). [Doc. 1, Indictment].
Counts One through Five of the Indictment allege a mail fraud
scheme whereby Defendant and Mr. McQueen made fraudulent
claims to various governmental agencies for unclaimed funds,
deposited fraudulently-obtained money into bank accounts, and
then withdrew funds for personal benefit without returning
the proceeds to the rightful owners. [Id. ¶ 6].
The Indictment in this case alleges that Defendant and Mr.
McQueen, with the intent to defraud, caused five checks from
the City of Atlanta Finance Department to be delivered by
mail during a two-month period between April and May 2013.
[Id. ¶ 7]. The Indictment also alleges
additional charges related to the scheme, including a money
laundering conspiracy (Count Six) and four counts of
aggravated identity theft based on the use of the name and
signature of four different people (Counts Seven through
Ten). [Id. ¶¶ 8-17].
Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution protects individuals from successive
prosecution for the same offenses. United States v.
Maza, 983 F.2d 1004, 1010-11 (11th Cir. 1993). When an
individual commits the same crime twice, however, there is no
protection from prosecution. Id. (noting that the
Double Jeopardy Clause is not violated when a defendant is
“twice put in jeopardy” for committing the same
offense twice). Id. “Whether a defendant has
committed the same offense twice is a factual question,
” and cannot be determined solely by review of the
statutory elements of the offenses charged. Id.
“Rather, there must also be some determination that the
underlying facts that gave rise to the first prosecution are,
or are not the sole basis for the second.” Id.
Eleventh Circuit instructs that to determine whether charged
offenses are separate crimes, courts should examine several
factors, including the time and place where the offenses
allegedly occurred; the persons alleged to be involved in the
crimes; the statutory offenses charged in each indictment;
and the description of the conduct that indicates the nature
and scope of the activity the Government sought to punish in
each case. See Maza, 983 F.2d at 1013; United
States v. Nino, 967 F.2d 1508, 1511 (11th Cir. 1992).
respect to the relative burdens of proof, the Eleventh
Circuit has set forth the standard:
When a defendant moves to dismiss an indictment on double
jeopardy grounds, he bears the initial burden of establishing
a nonfrivolous prima facie claim. Only after the defendant
crosses this threshold does the burden of persuasion shift to
the government to prove that no constitutional violation
exists. Although a defendant typically can make out a prima
facie case by resort to the pleadings from the respective
prosecutions, supplemental factfinding may be necessary. To
warrant an evidentiary hearing, however, the defendant must
at least allege facts that, if proved, would make out a prima
facie case. Absent a proffer of evidence demonstrating a
nonfrivolous double jeopardy claim there is no obligation to
hold an evidentiary hearing.
United States v. Baptista-Rodriguez, 17 F.3d 1354,
1360 (11th Cir. 1994) (internal citations and quotation marks
Time and Place
there is some overlap in the dates of the alleged schemes in
the two cases,  the fifty-one alleged incidents of bank
fraud in the Ohio Case occurred between February and August
2012, and the aggravated identity theft occurred in September
2012. [Doc. 36-1 ¶ 11, Count 52]. In the instant case,
the mail fraud stemming from the City of Atlanta Finance
Department checks is alleged to have occurred several months
later, in April and May of 2013, and the crimes alleged in
the money laundering and identity theft counts are alleged to
have occurred the following year, in April 2014. [Indictment
respect to the place where the crimes are alleged to have
occurred, both the Ohio and Georgia indictments allege
criminal conduct that occurred in their respective districts.
The indictment in the Ohio Case reflects that the United
States Treasury checks were stolen from the mail in Georgia,
but were deposited into a bank account in Columbus, Ohio.
[Doc. 36-1 ¶¶ 5, 11]. The Indictment in the instant
case alleges that Defendant fraudulently caused five checks
to be mailed from the City of Atlanta Finance Department and
does not specify where the checks were deposited. Based on my