USA v. Erwin Rabhan

Filing

PUBLISHED OPINION FILED. [09-60683 Reversed & Remanded ] Judge: WED , Judge: JLW , Judge: JLD Mandate pull date is 01/06/2011 [09-60683]

USA v. Erwin Rabhan ase: 09-60683 C

Document: 00511323351 Page: 1 Date Filed: 12/16/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 16, 2010 N o . 09-60683 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t if f -A p p e lle e v. E R W I N DAVID RABHAN D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court for the Northern District of Mississippi

Before DAVIS, WIENER, and DENNIS, Circuit Judges. W . EUGENE DAVIS, Circuit Judge: D e fe n d a n t -A p p e lla n t Erwin David Rabhan is charged in the Northern D is t r ic t of Mississippi under 18 U.S.C. § 371 for conspiracy to violate 18 U.S.C. § 1014 by making material false statements for the purpose of influencing a fe d e r a lly insured bank and a United States agency in connection with a loan to p r o c u r e a catfish farm in Mississippi. Rabhan previously pled guilty in the S o u th e r n District of Georgia to a single count bill of information charging a § 371 c o n s p ir a c y to violate § 1014 and 18 U.S.C. § 1344 in connection with making fa ls e statements to obtain a loan from a different federally insured bank to build a catfish processing plant in Georgia. Rabhan moved to dismiss the conspiracy c o u n t in this case on double jeopardy grounds, arguing that the conspiracy count

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No. 09-60683 h e pled guilty to in Georgia and the conspiracy count he is charged with in M is s is s ip p i are not separate conspiracies but rather are a single overall c o n s p ir a c y . The district court denied Rabhan's motion, and he lodged this appeal from t h a t order. Because the government failed to rebut Rabhan's prima facie

s h o w in g that the conspiracies charged in Georgia and Mississippi are a single c o n s p ir a c y , we reverse the district court's ruling and conclude that prosecution o f the conspiracy count in the Mississippi indictment is barred by double je o p a r d y . I . BACKGROUND A . The Georgia Loan I n 2002, Rabhan was indicted in the Southern District of Georgia for c o n s p ir a c y to defraud the United States and Enterprise National Bank ( E n t e r p r is e ), a federally insured bank located in Florida.1 The object of the a lle g e d conspiracy was to violate 18 U.S.C. § 1344 (defrauding a financial in s t it u t io n ) and § 1014 (making false statements to influence a federally insured in s t it u t io n ). The relevant counts in the indictment focused on representations R a b h a n made on behalf of Catfish International, Inc. (CII) in his application to E n t e r p r i s e for a Business and Industry (B&I) loan2 expected to be guaranteed b y the U.S. Department of Agriculture (USDA). The indictment alleged a

He was originally indicted on March 27, 2002, and a superseding indictment was handed down on November 8, 2002. All references to the Georgia indictment are to the superseding indictment. The indictment contained 27 counts, but only counts 23-27 are relevant to his double jeopardy claim. Under the USDA's Business and Industry Guaranteed Loan Program, the USDA guarantees up to 90 percent of a loan obtained from a bank. To obtain the guaranty, a borrower must provide a "minimum of 20 percent tangible balance sheet equity."
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No. 09-60683 c o n s p ir a c y from April 1998 to September 2000 based on the following relevant fa c ts . R a b h a n , a resident of Georgia, was the sole owner of Ehrlich Farms, Inc. (E F ). CII, a wholly owned subsidiary of EF, was created to build and operate a c a t fis h processing plant in Georgia that Rabhan planned to build using funds fr o m the loan he and his corporation ultimately obtained from Enterprise. In A p r il 1998, Rabhan submitted to Enterprise an application on behalf of CII for a B&I loan to fund the construction and operation of the processing plant. Relying on the representations in Rabhan's application, Enterprise applied t o the USDA in May and June 1998 to approve and guarantee a portion of the lo a n . Rabhan's application falsely represented his personal and business

in c o m e , the membership of CII's board, that Rabhan and CII would contribute $ 2 .1 million for plant equipment, and that a company had expressed interest in b u y in g all of the plant's products. In July 1998, the USDA issued conditional a p p r o v a l for the loan. During the process of negotiating with Enterprise

r e g a r d in g the loan, Rabhan continued to make false representations. In July 1 9 9 9 , he and Lee Jones (the plant's general contractor) prepared false affidavits c la im in g that Rabhan had prepaid Jones $2.95 million for plant equipment. R a b h a n also submitted false financial statements for three of his companies (EF, C I I , and Nutrition Dynamics International, Inc.) and false tax returns for EF. A fte r signing the Enterprise loan agreement in July 1999, Rabhan continued to d e a l with the bank in order to get portions of the loan disbursed. In his

a p p lic a t io n s for those disbursements, he made numerous fraudulent statements r e g a r d in g costs and the nature and extent of the construction completed. All

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No. 09-60683 fr a u d u le n t representations were made in Georgia and received by Enterprise in F lo r id a . T h e Georgia indictment was dismissed when Rabhan pled guilty to a s i n g l e count bill of information alleging that he, with others "known and u n k n o w n ," committed a § 371 conspiracy to violate § 1014 and § 1344 from July 1 9 9 9 to April 2001. In the overt acts section, the bill of information mirrored the la n g u a g e of § 1014 in alleging that Rabhan made false statements to Enterprise t o obtain the processing plant loan.3 The district court accepted Rabhan's plea a n d sentenced him to serve five years in prison. B. The Mississippi Loan T h e Mississippi indictment filed in the underlying case charges Rabhan w it h conspiring in violation of § 371 to obtain a USDA-guaranteed B&I loan from the Gulf Coast Bank (a Louisiana bank) by making material false s t a t e m e n t s and willfully overvaluing collateral in order to influence the USDA a n d Gulf Coast, an FDIC-insured institution. Rabhan applied for the loan on b e h a lf of Ehrlich Fish Farms, Inc. (EFFI), another wholly owned subsidiary of E F owned by Rabhan. The indictment names Wilbur Peer, Jimmy Winemiller, W illia m Michael Winemiller, and Charles "Brett" Merrill as coconspirators. S e p a r a t e ly indicted coconspirators Paul Barrett and Gregory McMillon have pled g u ilt y to participating in the conspiracy. The indictment alleges a conspiracy fr o m January 1999 to March 2001 based on the following relevant facts. R a b h a n became interested in purchasing a Mississippi catfish farm owned b y Jimmy Winemiller in January 1999, and they began to discuss the sale in the

The other overt acts in the bill of information referred to a different conspiracy involving Rabhan's business ventures in Africa.

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No. 09-60683 s p r in g . McMillon and the Winemillers sought to help Rabhan secure a B&I loan s o he could purchase the farm. They enlisted the aid of Wilbur Peer, a friend of J im m y Winemiller and the Acting Administrator of the USDA Rural Business C o o p e r a t iv e Services, whose duties included determining whether loans g u a r a n t e e d by his agency should be approved. To obtain the loan to purchase t h e Mississippi catfish farm, Rabhan falsely claimed that one of his corporations, E F F I, owned 920 acres in Georgia that would serve as collateral for the loan. To p r e v e n t the USDA from discovering that this representation was false, Rabhan a n d his attorney, Merrill, forged a sales contract purporting to sell the property a n d sent the USDA a letter assigning the sales proceeds as security for the M is s is s ip p i loan. M ic h a e l Winemiller provided false information to two appraisers to inflate t h e value of the farm; McMillon and the Winemillers bribed Paul Barrett for a f a l s e inventory of the farm's fish ponds; and Rabhan had Michael Winemiller a n d Greg McMillon bribe Kent Toler for a fraudulent seining 4 report. Jimmy W in e m ille r bribed USDA official Wilbur Peer to approve the loan, and Rabhan fo r g e d a catfish inventory under the name of appraiser Paul Barrett. These e v e n t s took place in Georgia, Mississippi, Arkansas, and Louisiana, but R a b h a n 's alleged actions all occurred in Georgia. The false appraisals and in v e n t o r ie s were performed in Mississippi. C . District Court Proceedings R a b h a n filed a motion to dismiss the Mississippi indictment on the basis o f double jeopardy. The district court acknowledged the additional evidence R a b h a n filed in support of his motion but, without discussing that evidence,

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Seining is used as a method of estimating the number and weight of fish in a pond.

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No. 09-60683 c o n c lu d e d that because the Georgia superceding indictment did not focus on the lo a n to the Gulf Coast Bank, the Mississippi indictment alleged a separate c o n s p ir a c y . The court agreed with Rabhan that the time periods in the Georgia a n d Mississippi schemes overlapped and that Rabhan was charged with the s a m e statutory offense in both cases. However, the court determined that the " d iffe r e n t co-conspirators, different geographical regions, and different overt a cts" involved in the Mississippi case established that the Mississippi indictment a lle g e d a separate conspiracy that was not barred by double jeopardy. In a later o r d e r , the district court certified that Rabhan's double jeopardy claim was n o n fr iv o lo u s , allowing Rabhan to appeal the denial of his motion to dismiss. I I . Standard of Review T h e denial of a nonfrivolous motion to dismiss on double jeopardy grounds is immediately appealable under the collateral order doctrine. Abney v. United S ta te s , 431 U.S. 651, 662 (1977); United States v. Dunbar, 611 F.2d 985, 988-89 (5 t h Cir. 1980). We review such an order de novo. United States v. ArreolaR a m o s , 60 F.3d 188, 191 (5th Cir. 1995). I I I . DISCUSSION A . Double Jeopardy R a b h a n argues that the Mississippi indictment subjects him to double je o p a r d y in violation of the Fifth Amendment. The Double Jeopardy Clause p r o v id e s that no person shall "be subject for the same offence to be twice put in je o p a r d y of life or limb." U.S. CONST. amend. V. The prohibition against double je o p a r d y provides three categories of protection: "It protects against a second p r o s e c u t io n for the same offense after acquittal. It protects against a second p r o s e c u t io n for the same offense after conviction. And it protects against

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No. 09-60683 m u lt ip le punishments for the same offense." North Carolina v. Pearce, 395 U.S. 7 1 1 , 717 (1969) (footnotes omitted), overruled on other grounds by Alabama v. S m ith , 490 U.S. 794 (1989). In this case, Rabhan seeks protection under the s e c o n d category. T o support a claim of double jeopardy protecting himself against a second p r o s e c u t io n for the same offense after conviction, Rabhan must show that the o ffe n s e charged in this case is the same as the offense charged in the Georgia c a s e . The central inquiry in a double jeopardy claim involving conspiracies is w h e t h e r one agreement and one conspiracy exists or more than one agreement a n d more than one conspiracy exist. As the Supreme Court stated in Braverman v . United States: When a single agreement to commit one or more substantive crimes is evidenced by an overt act as the statute requires, the precise n a t u r e and extent of the conspiracy must be determined by r e fe r e n c e to the agreement which embraces and defines its objects. W h e t h e r the object of a single agreement is to commit one or many c r im e s , it is in either case that agreement which constitutes the c o n s p ir a c y which the statute punishes. The one agreement cannot b e taken to be several agreements and hence several conspiracies b e c a u s e it envisages the violation of several statutes rather than on e. 3 1 7 U.S. 49, 53 (1942); see United States v. Levy, 803 F.2d. 1390, 1393-94 (5th C ir . 1986). T h e defendant carries the initial burden of establishing "a prima facie n o n fr iv o lo u s double jeopardy claim" that the two conspiracies charged are in fact a single conspiracy and therefore charge a single offense. United States v. S tr ic k lin , 591 F.2d 1112, 1117-18 (5th Cir. 1979). After a defendant establishes a prima facie nonfrivolous case that a single conspiracy exists, the burden of 7

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No. 09-60683 p e r s u a s io n shifts, and the government must show by a preponderance of the e v id e n c e that the defendant has been charged in separate conspiracies. Id. at 1 1 1 8 -1 9 . This shift is appropriate because the government controls the

p a r tic u la r it y of an indictment; therefore, it should bear the burden of e s t a b lis h in g that two different crimes are being charged if the indictments are v a g u e enough to allow a defendant to establish a prima facie case that only a s in g le conspiracy exists. Id. Furthermore, it would be impractical to place the b u r d e n of persuasion on the defendant, who lacks access to the government's t h e o r y of its case or the proof relied on to establish its case. Id. at 1118. The c la n d e s t in e nature of conspiracy makes it difficult for a reviewing court to d is c e r n the scope of an alleged conspiratorial agreement. This problem is made m o r e difficult when, as here, the defendant pled guilty to the earlier offense p r e s e n t e d in a vague bill of information and no trial record is available from the fir s t offense. T h e defendant can satisfy his prima facie case by introduction of the in d ic t m e n t from his previous case, or by offering other record material and e v id e n c e normally available at the pretrial stage. Id.5 To meet its burden to r e b u t the prima facie case, the government "may present however much or little e v id e n c e . . . as it deems advisable, subject, of course, to dismissal of the in d ic t m e n t if not enough evidence to rebut the defendant's prima facie showing

This court has used information from different sources to inform its analysis of double jeopardy claims. See, e.g., United States v. Vasquez-Rodriguez, 978 F.2d 867, 870 (5th Cir. 1992) (using indictment and evidence at trial); United States v. Kalish, 690 F.2d 1144, 1147, 1149-50 (5th Cir. 1982) (using trial record, signed pre-trial statements, and grand jury testimony); United States v. Futch, 637 F.2d 386, 390 (5th Cir. 1981) (using live testimony). In United States v. Atkins, we stated that none of our cases suggested a limitation to sources a court could turn to for facts in the double jeopardy analysis. 834 F.2d 426, 433 (5th Cir. 1987), overruled on other grounds by Taylor v. Whitney, 933 F.2d 325 (5th Cir. 1991).

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No. 09-60683 is introduced." Id. at 1119. Rabhan submitted the indictments, the Georgia bill o f information, Georgia grand jury testimony, documents, and other evidence t h a t the government produced during discovery in both cases in an effort to m a k e his prima facie case. The government produced no evidence to rebut R a b h a n 's submissions. The documents described above are the source material fo r the facts in the discussion that follows. B . Conspiracy I n United States v. Marable, we established five factors that we consider in determining whether a defendant is being prosecuted for participation in one c o n s p ir a c y or multiple conspiracies: (1 ) [T]ime, (2) persons acting as co-conspirators, (3) the statutory o ffe n s e s charged in the indictments, (4) the overt acts charged by the g o v e r n m e n t or any other description of the offense charged which in d ic a t e s the nature and scope of the activity which the government s o u g h t to punish in each case, and (5) places where the events a lle g e d as part of the conspiracy took place. 578 F.2d 151, 154 (5th Cir. 1978). All of the Marable factors must be considered t o g e t h e r because no single factor is determinative. United States v. Delgado, 256 F .3 d 264, 272 (5th Cir. 2001). 1 . Time: An overlap in time periods between two alleged conspiracies favors a fin d in g of a single conspiracy, especially when that overlap is substantial. United S ta te s v. Winship, 724 F.2d 1116, 1126 (5th Cir. 1984). The time periods alleged in the indictments have a 21-month overlap (Georgia: April 1998 to September 2 0 0 0 ; Mississippi: January 1999 to March 2001). The overlap in time periods is s u b s t a n t ia l and favors a finding of a single conspiracy. 2 . Persons acting as co-conspirators: 9

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No. 09-60683 A n overlap in personnel participating in the conspiracy, particularly in key p e r s o n n e l, indicates a single conspiracy. Levy, 803 F.2d at 1395. Rabhan is the o n ly individual named in the Georgia indictment. However, through submission o f additional evidence discussed below, Rabhan established that other persons p a r tic ip a t in g in the conspiracy in the instant case may also have participated w it h him in obtaining the Georgia loan. T h e Mississippi indictment alleges that Wilbur Peer, a USDA official who a p p r o v e d the USDA guaranty of the Mississippi loan, accepted a bribe in c o n n e c t io n with that approval. According to the Georgia indictment, Rabhan s ig n e d the Georgia loan agreement with Enterprise on July 19,1999. Discovery d o c u m e n t s show that Peer traveled to Georgia in August 1999 to meet with some o f the indicted Mississippi coconspirators and that he went again in September t o visit Rabhan. While in Georgia, he held public meetings to garner local s u p p o r t for catfish farming to help supply Rabhan's Georgia plant. The

d o c u m e n t s indicate that, during the August visit, Rabhan offered to use Peer's t r u c k in g company to ship catfish from the Mississippi farm to the Georgia plant. R a b h a n and Peer also discussed Rabhan's "future plans involving B&I loans." P e e r 's association with Rabhan with respect to the processing plant around the t im e the Georgia loan was approved suggests that he was involved in both loans. R a b h a n also provided evidence that Gregory McMillon, who has pled guilty in the Mississippi conspiracy, was involved in the Georgia loan. According to M c M illo n 's interview with government agents, in July 1998 Michael Winemiller t o ld McMillon that Rabhan was interested in buying the catfish farm and hired M c M illo n to act as the broker for the deal. Sometime after June 1999 (when the G e o r g ia plant loan was made) Rabhan hired McMillon to assist on the plant

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No. 09-60683 c o n s t r u c t io n and deal with the Enterprise Bank. Lee Jones (the Georgia plant c o n t r a c to r ) testified before the Georgia grand jury that McMillon assisted Rabhan in obtaining progress payments on the Georgia loan. From July 1999 to

S e p t e m b e r 2000, the Georgia indictment charged Rabhan with submitting d is b u r s e m e n t application forms containing fraudulent statements about the a m o u n t needed to pay contractors, constructions costs, and the type and extent o f construction completed. As part of the effort to gain approval for these

d isb u rsem en t applications, Jones testified that Rabhan drafted letters concerning t h e subcontractor's work on the plant, McMillon re-typed and signed the letters, a n d they then sent copies to Jones and Enterprise. According to the USDA and Gulf Coast underwriting files for the M is s is s ip p i loan, McMillon was the general manager of Rabhan's parent company a n d oversaw both the catfish farm and processing plant operations. When he was in t e r v ie w e d by government agents in connection with the Georgia case, McMillon c la im e d he worked "a great deal" on the processing plant and was able to e s t im a t e the percentage of loan funds that were kicked back to Rabhan from the G e o r g ia loan. This information provides circumstantial evidence that McMillon w a s involved as a conspirator with regard to the Georgia as well as the M is s is s ip p i loan. A lt h o u g h Gregory Hirsch, Rabhan's CPA, was granted immunity in both c a s e s , his grand jury testimony in Georgia indicates that his CPA firm compiled t h e allegedly false financial statements for Rabhan's parent company involved in b o th loans. Other evidence indicates that those statements were submitted to o b ta in both the Georgia and Mississippi loans. In Gulf Coast's review of the

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No. 09-60683 M is s is s ip p i farm loan application, it noted that Hirsch was acting as the Chief F in a n c ia l Officer/Controller of the applicant company. R a b h a n 's evidence that McMillon actually presented some of the false in fo r m a t io n to Enterprise Bank and the implication that Peer was involved in the U S D A guaranty of that loan raise a reasonable inference that they participated in the Georgia conspiracy. The evidence that Hirsch compiled the financial s t a t e m e n t s used in obtaining both loans also raises a reasonable inference that h e was involved in the conspiracy in both Mississippi and Georgia. Contrary to t h e government's argument, the evidence reflects that they were more than mere b u s in e s s associates of Rabhan. See United States v. Henry, 661 F.2d 894, 897 (5 t h Cir. 1981). Although the government alleged in the Georgia indictment and b ill of information that "others known and unknown" conspired with Rabhan, the g o v e r n m e n t offered no evidence to show the identity of the "known" conspirators t o rebut Rabhan's proof. In sum, Rabhan, who was clearly a central figure in both indictments, has p r e s e n t e d evidence sufficient to raise the inference that McMillon, Peer, and H ir s c h were connected to both loans and both cases. As the overlap of central c h a r a c t e r s between cases is even more important than the number of overlapping c h a r a c t e r s , Rabhan has satisfactorily carried this factor even though some of the M is s is s ip p i personnel were not involved in both loans. See Levy, 803 F.2d at 1395. 3 . Statutory offenses charged: In both prosecutions, Rabhan was charged with a § 371 conspiracy to d e fr a u d an FDIC-insured bank and a United States government agency through v io la t io n of 18 U.S.C. § 1014, by making false statements to influence the actions

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No. 09-60683 o f a federally insured institution. The Georgia indictment and bill of information a ls o included an underlying § 1344 bank fraud offense. The government argues t h a t this additional charge reflects separate conspiratorial agreements to engage in different statutory offenses. Although the Georgia bill of information mirrored o n ly § 1014 in the overt acts section, the conduct alleged to violate § 1014 would a ls o establish a § 1344 violation. Additional charges in one case may still lead to a finding that there is only one conspiracy, particularly when "the statutes that d o not overlap are related." Levy, 803 F.2d at 1392. Rabhan therefore prevails o n this factor because the overlap in statutory offenses is almost identical and the s t a t u t e s that do not overlap are related. 4. Overt Acts/Nature and Scope of the Agreement: Although there are no overlapping overt acts in the indictments, "the p r e c is e bounds of a single conspiracy seldom will be clear from the indictment a lo n e ." Marable, 578 F.2d at 153. This prong of the test considers the overt acts a n d other descriptions of the conduct charged, which may be helpful in gaining in s ig h t "into the nature and scope of the allegedly separate conspiracies the g o v e r n m e n t seeks to punish." Id. at 155. Rabhan submitted numerous

d o c u m e n t s to the district court that he obtained from the government during d is c o v e r y in the Georgia and Mississippi cases, as well as testimony presented to t h e Georgia Grand Jury, that are helpful in this respect. It is telling to observe first that the government obtained and produced w it n e s s statements and grand jury testimony in the Georgia case about the M is s is s ip p i loan and the fraudulent actions Rabhan and others took to obtain it. S e e United States v. Nichols, 741 F.2d 767, 772 (5th Cir. 1984) (evidence of what

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No. 09-60683 t h e government claimed was a second conspiracy was introduced at the first trial, in d ic a tin g a single conspiracy). T h e documents indicate that the Georgia loan and the Mississippi loan are r e la te d . The USDA State Office Executive Loan Committee Report for the

M is s is s ip p i loan considered the potential revenue the catfish farm could expect t o generate and concluded that the Gulf Coast Bank's analysis was acceptable b e c a u s e the Georgia processing plant committed to purchase 100 percent of the fa r m 's fish. Both reports identified other possible purchasers, but the Gulf Coast B a n k recognized the company's overall strategy to form a comprehensive in t e g r a t e d catfish growing and processing operation. The report further stated t h a t Rabhan and McMillon had identified the Mississippi farm as a supplier for t h e Georgia plant as part of this overall strategy. In Levy, the defendants were involved in a series of fraudulently obtained lo a n s in which they obtained new loans to cover the previous loans. 803 F.2d at 1 3 9 3 . As with Rabhan, the indictments named separate overt acts, but the court c o n c lu d e d that the transactions in the indictments were related and therefore " t e n d [e d ] to prove a single agreement rather than multiple agreements." See id. a t 1396. As in Levy, the above described evidence shows that Rabhan's loans w e r e related, raising the "inference that only one agreement existed." Id. The g o v e r n m e n t argues that the loan files do not say that completion of the p r o c e s s in g plant was a requirement for the Mississippi loan. However, the g o v e r n m e n t again fails to draw our attention to or produce any evidence showing t h a t these loans were not part of an integrated project or strategy. Because the c o n s p ir a t o r ia l agreement to make fraudulent representations to obtain the G e o r g ia loan from Enterprise Bank was interrelated with the loan obtained

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No. 09-60683 t h r o u g h fraud in the instant case, this prong favors a finding of a single c o n s p ir a c y . 5 . Places where the events of the alleged conspiracy occurred: W h e n two alleged conspiracies overlap geographically, it is appropriate to c o n s id e r where they are based as an indicator of whether the geographic overlap is significant. See Henry, 661 F.2d at 897. All events related to the Georgia loan o c c u r r e d in Georgia and Florida, with Georgia as the "base" of operations. The e v e n t s related to the Mississippi loan occurred in Mississippi, Georgia, Arkansas, a n d Louisiana. The "base" of operations was in Georgia and Mississippi, where t h e central co-conspirators created plans and made false representations. T h e r e fo r e , the geographic overlap between the bases of operation of the two s c h e m e s is significant and favors a finding of a single conspiracy. C . Analysis R a b h a n established a prima facie case in which all the Marable factors w e ig h in favor (some more strongly than others) of finding a single conspiracy. T h e time and statutory offense factors clearly overlap and favor a finding of a s in g le conspiracy. Rabhan has presented enough evidence to show that the loans s h a r e d at least one operational base in Georgia. He has shown that several p e r s o n s may be common to both loan schemes. Rabhan has also presented in fo r m a t io n showing the loans were linked, which suggests that the government w a s prosecuting a single conspiracy involving multiple loans in the Georgia case. In the face of a strong prima facie case, the government elected to produce n o evidence tending to show that more than one conspiracy existed. The

g o v e r n m e n t has therefore failed to carry its burden of persuasion to establish by

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No. 09-60683 a preponderance of the evidence that two separate conspiratorial agreements e x is te d . IV. CONCLUSION F o r the reasons stated above, we REVERSE the district court's order d e n y in g the motion to dismiss and REMAND for entry of an order granting the m o t io n and dismissing the conspiracy count against Rabhan. R E V E R S E D and REMANDED.

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