The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Defendants Luis Hernandez ("Hernandez") and Jackson Rafael Lopez Hernandez ("Lopez") are two of eleven defendants charged in the instant four-count indictment with, inter alia, conspiring to defraud the United States in connection with a scheme to file fraudulent tax returns and to collect the associated tax refunds (the "2009 Indictment"). Hernandez and Lopez were previously charged as the sole defendants in an allegedly unrelated two-count indictment filed December 12, 2007 under case number 07 Cr. 1192 (AKH) (the "2007 Indictment"). The 2007 Indictment charges one conspiracy count and one substantive count of unlawful use of fraudulent identification documents. Hernandez and Lopez now move to dismiss the 2009 Indictment as against themon the grounds that it violates the Double Jeopardy Clause of the United States Constitution. For the reasons that follow, (i) Hernandez's motion is DENIED; and (ii) Lopez's motion is GRANTED.
A. The 2007 Indictment and Related Proceedings
The 2007 Indictment alleges that Hernandez and Lopez engaged in a fraudulent scheme "to cash multiple United States Treasury checks, State of New York Department of Taxation and Finance checks, and State of New Jersey Department of Treasury checks, which checks were made payable to persons other than themselves, using false and fictitious identification documents." 2007 Indictment at ¶1. More specifically, the 2007 Indictment is in two counts: Count One alleges conspiracy to violate 18 U.S.C. §1028(a)(3) and (f) which prohibits knowing possession with the intent to use or transfer unlawfully five or more false or fraudulent identification documents ("false IDs"); Count Two charges a substantive count of violation of 18 U.S.C. §1028(a)(2) and (3).*fn1 The conspiracy count alleges a conspiracy between Lopez and Hernandez (but no one else) from at least September 2007 to October 19, 2007. The indictment charges six overt acts that allegedly occurred during that period and that generally pertain to Hernandez and Lopez providing a confidential informant ("CI") with tax refund checks, false IDs, and, on two occasions "photocop[ies] of federal income tax return[s] purportedly filed in the name[s]" of either the payees listed on the checks or the persons depicted in the false IDs. Id. at ¶8. The indictment alleges that Hernandez agreed to provide the CI with the tax refund checks and false IDs with the understanding that he would use the false IDs to cash the checks and return a percentage of the proceeds to Hernandez. Id. at ¶¶2-3.
The criminal complaint sworn to before Magistrate Judge Pitman by FBI Special Agent Seamus Clarke on October 17, 2007 (the "2007 Complaint"), provides a few additional details about the crimes charged. For example, the 2007 Complaint avers that Hernandez told the CI that "he manufactured [the] checks, which [Hernandez] referred to as 'IRS checks,'" and that the faces of two of the checks referenced in the 2007 Indictment "indicated that [they] represented  federal tax refund[s]." 2007 Complaint ¶¶ 4.c., 6.d., 8.b. The 2007 Complaint also confirms that federal agents did not know much about Hernandez and Lopez when the complaint was sworn: their last names are listed as unknown. According to portions of the presentence report for Lopez cited in the Government's brief, there was information relating to the role of a person named "Melvin" in the 2007 conspiracy; Lopez's brother, Melvin Lopez is a named defendant in the 2009 Indictment.
On the basis of the complaint, Lopez was arrested after meeting with the CI on October 19, 2007. On December 18, 2007, a grand jury returned the 2007 Indictment. On November 10, 2008, Lopez pled guilty to both charges in the 2007 Indictment. At his plea Lopez allocutedto taking "IRS checks" given to him by his "boss" to a person to cash them. Tr. of Nov. 10, 2008 Hrg. ("Lopez Hrg. Tr.") at 11. In response to questioning from Judge Hellerstein, Lopez stated that his "boss" obtained the checks through "an income tax office" but he did not know exactly what happened in the office. Id. at 12. (Later in theallocution Lopez stated that his "boss" was named Junior Castillo. Id. at 16.) Lopez stated that he began working at the tax office and "on the first day [his boss] had [him] organizing some papers, and then after that he was teaching [him] to do the taxes . . . the tax programs." Id. 12-14. At the conclusion of the hearing, the Government represented that it would prove that "the defendant's conduct took place in or affecting interstate commerce, in particular the tax returns of the business were filed as a result through interstate commerce." Id. at 19-20. On June 23, 2009 Lopez was sentenced by Judge Hellerstein on the charges in the 2007 Indictment to five years probation with a period of supervised release.
Hernandez was arrested on February 28, 2007. On March 17, 2009, pursuant to a plea agreement, Hernandez pled guilty to Count Two of the 2007 Indictment, the substantive count, in exchange for dismissal of Count One, the conspiracy charge. At Hernandez's plea hearing the Government represented that the intended monetary loss was between five and ten thousand dollars. Tr. of March 17, 2009 Hrg. at 9-10. Hernandez acknowledged that he used false IDs to look for a job and to cash checks from the IRS that "somebody made  in the computer," i.e. forged IRS checks. Id. at 12-13. Hernandez allocuted that he made approximately $20,000 in this way. Id. at 14. At his allocution the Government again represented that "the defendant's possession of false identification documents was in or affecting interstate commerce[; i]n particular, among other things, the identities that were used to both file the fraudulent tax returns and that were on the false identification documents were identities of people whose-the identities had been stolen from people in Puerto Rico." Id. at 15. In response to a question from Judge Hellerstein, Hernandez acknowledged that he had filed false income tax returns. Id. at 16. On September 2, 2009, Hernandez was sentenced to 21 months' imprisonment and 3 years of supervised release and, in accordance with the plea agreement, Count One was dismissed on the Government's motion.
B. The 2009 Indictment and Related Proceedings
On June 22, 2009, a grand jury returned the 2009 Indictment, which charges Hernandez, Lopez and nine other defendants with conspiring from at least 2006 until 2008 to use identification information of Puerto Rican citizens to file fraudulent state and federal tax returns that collectively sought more than $18 million in tax refunds. More specifically, the 2009 Indictment charges each of the eleven named defendants with the following four crimes:
(i) Count One allegesconspiracy to defraud the United States with respect to claims in violation of 18 U.S.C. §286, specifically the filing fraudulent federal tax returns seeking tax refunds;
(ii) Count Two alleges conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343 in connection with use of the mails and interstate wire communications to defraud the tax authorities of the State of New York and other states by filing fraudulent tax returns and collecting tax refund checks;
(iii) Count Three alleges a conspiracy to commit fraud in connection with identification documents in violation of 18 U.S.C. § 1028(f), specifically a conspiracy to violate 18 U.S.C. § 1028(a)(7) which makes it a crime to possess or use without lawful authority a false ID with the intent to commit or in connection with a violation of federal law or a state-law felony; and
(iv) Count Four alleges a substantive count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a), which provides for a consecutive two year sentence in connection with the use of false identification documents in connection with certain enumerated crimes including mail and wire fraud.
The 2009 Indictment describes some of the alleged roles of the co-conspirators in the fraudulent scheme (although it does not specifically charge such roles as overt acts). For example, it alleges that Hernandez "provided Puerto Rican identities to be used in furtherance of the fraudulent scheme and arranged for the rental of apartments to which fraudulently obtained tax refund checks were sent." 2009 Indictment at ¶ 6. Rafael Castillo a/k/a "Junior" is alleged to have "supervised the preparation of false and fraudulent federal and state tax returns," and Lopez and his brother Melvin are alleged to have prepared and filed false tax returns and created false IDs used in the fraudulent scheme. Id. at ¶¶ 7-8. None of the overt acts charged in the 2009 Indictment is attributed to Lopez and only one is attributed to Hernandez: the indictment alleges that on July 16, 2006, Hernandez "rented an apartment in the Bronx in the name of a Puerto Rican identity that was not his." See, e.g., id. at ¶22.a.
The Fifth Amendment provides that never "shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const., amend. V. "[T]he Double Jeopardy Clause protects criminal defendants against [i] a second prosecution for the same offense after acquittal, [ii] a second prosecution for the same offense after conviction, and [iii] multiple punishments for the same offense." United States v. Dionisio, 503 F.3d 78, 79 (2d Cir. 2007) cert. denied, 129 S.Ct. 158 (2008) (citation and internal quotation marks omitted). "'[O]nce a defendant is placed in jeopardy for an offense, and jeopardy terminates with respect to that offense, the defendant may neither be tried nor punished a second time for the same offense.' " United States v. Estrada, 320 F.3d 173, 180 (2d Cir. 2003) (quoting Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003)). "'A double jeopardy claim cannot succeed unless the charged offenses are the same in fact and in law.'" United States v. Olmeda, 461 F.3d 271, 282 (2d Cir. 2006) (quoting Estrada, 320 F.3d at 180). Therefore, to resolve the instant motions, I must first determine whether Hernandez and Lopez were in fact "placed in jeopardy" of conviction on the two counts charged in the 2007 Indictment. I then must determine whether the crimes charged in the 2007 Indictment are the same "in fact and in law" as those charged in the 2009 Indictment.
A. When Does Jeopardy Attach?
"It goes without saying that 'an accused must suffer jeopardy before he can suffer double jeopardy.'" Dionisio, 503 F.3d at 81 (quoting Serfass v. United States, 420 U.S. 377, 393 (1975)). Jeopardy attaches "well before a verdict is reached." Id. In a jury trial, jeopardy attaches after the jury has been empanelled and sworn; in a bench trial it attaches when the court has begun to hear evidence. Id. Where charges are disposed of prior to trial, however, the Court must "look beyond formalistic labels of acquittal or conviction and scrutinize the substantive resolution underlying that disposition." Id. at 83. The question is one of substance rather than of form and the inquiry must focus on "whether there has been a fact-based resolution of elements of the offense charged as a result of a process in which the defendant risked conviction." Id. at 85.
"Double jeopardy clearly 'prohibits a second prosecution for the same offense following a guilty plea.'" Olmeda, 461 F.3d at 279 (quoting Morris v. Reynolds, 264 F.3d 38, 49 (2d Cir. 2001)). Here, Lopez pled guilty to both counts of the 2007 Indictment and Hernandez pled guilty to Count Two of that indictment. Therefore, jeopardy has attached to those charges and a second prosecution for the "same offence[s]" is constitutionally barred. See Morris, 264 F.3d at 49 ("Given that a guilty plea is a conviction and that the Double Jeopardy Clause protects against a second prosecution for the same offense after conviction the Clause prohibits a second prosecution for the same offense following a guilty plea.") (internal citations and quotation marks omitted).
However, under the holding of Dionisio, Hernandez was not placed in jeopardy of conviction for the conspiracy charged in the 2007 Indictment because Count One was dismissed on the Government's motion pursuant to the plea agreement. In Dionisio, the Court of Appeals affirmed the district court's holding, under substantially identical circumstances, that jeopardy did not attach to the pretrial dismissal of a conspiracy charge with prejudice. Id. There, the record disclosed "only an agreement between the parties that following [the defendant's] plea of guilty to one [substantive] count . . . the government would move to dismiss the remaining counts with prejudice." Id. at 89 (emphasis in original). With "nothing in the record to suggest that the dismissal entailed a resolution of any factual elements that went to the merits of the charges . . . [and] certainly no indication that any such resolution (assuming arguendo that one had occurred) involved a process that put [the defendant] at risk of any conviction," the Circuit concluded that jeopardy had not attached to the counts dismissed on the Government's motion. Id. at 89. The factual record of Hernandez's guilty plea is similar in all material respects. First, the Court was not a party to the plea agreement made by and between Hernandez and the Government.*fn2 Second, with one possible exception discussed below,*fn3 there is no indication in the record that the Court's dismissal of Count One entailed a resolution of any factual elements that went to the merits of the charges: Judge Hellerstein merely granted the Government's motion to dismiss Count One pursuant to the plea agreement. Because the proceedings before Judge Hellerstein that led to dismissal of Count One of the 2007 Indictment against Hernandez are factually on all fours with Dionisio, Hernandez was not placed in jeopardy of conviction of the conspiracy charge of the 2007 Indictment.*fn4
B. Double Jeopardy Analysis: Hernandez
1. Application of the Blockburger Analysis
Because Hernandez was not placed in jeopardy of conviction for the conspiracy charged in the 2007 Indictment, the question remaining as to Hernandezis whether the substantive charge to which he pled guilty-violation of 18 U.S.C. §1028(a)(2) and (3) for the unlawful use and unauthorized production of false IDs-is the same in fact and in law as the crimes charged in the 2009 Indictment. The answer is that it is not.
"In assessing whether a defendant is impermissibly charged with essentially the same offense more than once in violation of the Double Jeopardy Clause . . . it is not determinative whether the same conduct underlies the counts." United States v. Chacko, 169 F.3d 140, 146 (2d Cir. 1999) (citing Hudson v. United States, 522 U.S. 93, 108 (1997) (Stevens, J., concurring in the judgment)). Rather, the critical inquiry is "whether the 'offense'-in the legal sense, as defined by Congress-complained of in one count is the same as that charged in another." Id.*fn5
The applicable test is derived from the Supreme Court's 1932 decision in Blockburger v. United States, 284 U.S. 299 (1932). The test "inquires whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment and successive prosecution." United States v. Dixon, 509 U.S. 688, 696-697 (1993); see also Chacko, 169 F.3d at 146; Olmeda, 461 F.3d at 282; Dionisio, 503 F.3d at 82 n. 4; United States v. Ansaldi, 372 F.3d 118, 125 n.3 (2d Cir. 2004). The test "emphasizes the elements of the two crimes" not the conduct that will be proved to sustain a conviction-so long as each offense "'requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . .'" Brown v. Ohio, 432 U.S. 161, 166 (1977) (quoting Iannelli v. United States, 420 U.S. 770, 785 n. 17 (1975)). On the other hand, where the only difference between two ...