Petition — United States v. DiFrancesco

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Supreme Courf, U. &.

FILED \

OCT 5. 1979

zw BUHL RODE K IR. , CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

UNITED STATES OF AMERICA, PETITIONER

Vv.

EUGENE DIFRANCESCO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ALAN I. HOROWITZ

Assistant to the Solicitor General

VicToR D. STONE

Attorney

Department of Justice

Washington, D.C. 20530

Page

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Constitutional and statutory provisions in-

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Reasons for granting the petition -..................... 8

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CITATIONS

Cases:

Alabama Public Service Comm’n v. South-

ern Ry. B41. UE. BE a ae 8

Bozza v. United States, 330 U.S. 160 ........ 14

Bradley, In re, 318 U.S. 50 ...................... 12

Brown v. Ohio, 482 U.S. 161 .................:.... 12

Burks v. United States, 487 U.S. 1 .......... 12,18

Colten v. Kentucky, 407 U.S. 104 W000... 13

Crist v. Bretz, 487 U.S. BB a... cnc 14

Fong Foo v. United States, 369 U.S. 141.... 15

Green v. United States, 355 U.S. 184........ 11,17

Kepner v. United States, 195 U.S. 100 .... 8,14

Lange, Ex parte, 85 U.S. (18 Wall.) 163.. 12

Ludwig v. Massachusetts, 427 U.S. 618...... 13

Murphy v. Massachusetts, 177 U.S. 155... 14

North Carolina v. Pearce, 395 U.S. 711.... 11, 15

Cases—-Continued Page

meu ‘v. Covert, 364 US, 1 ..1.....0....... 14

Sanabria v. United States, 437 U.S. 54.... 11

Swisher v. Brady, 438 U.S. 204................... 12,18

United States v. Benz, 282 U.S. 304 ........... 14

United States v. Grayson, 488 U.S. 41...... 10-11

United States v. Scott, 487 U.S. 82 ........... 11,18

United States v. Wilson, 420 U.S. 332...... 11, 16

Williams v. New York, 387 U.S. 241 ........ 10

Constitution and statutes:

United States Constitution, Fifth Amend-

ment (Double Jeopardy Clause) .......... ee

12, 13, 14, 15, 16, 17, 18

Dangerous Special Offender Sentencing

Statutes, 18 U.S.C. 3575-3578, enacted

as Title X of the Organized Crime Con-

trol Act of 1970, Pub. L. No. 91-452,

M Ot 00> cs ee 9

18 U.S.C. 3575 .......2, 7, 11, 18, 14, 15, 16, 17

16 USE Wiis 6

18 U.S.C. 3575(b) «st 2,6

18 U.S.C. 3575 (€) (3) ..sc-sscoeecceecoeee- 6

6 USS OG no ee 6

UB: CON cs 2,3, 5, 7, 8 9,

11, 12, 13, 14,17, 18

18 U'S.C. 8677 8

wR , 5 a ETD 5

TR UBC. BAC) ncaa 5

USC. iti 5

18 U.S.C. 1962 (¢) ..--es-cesecceseccececesesnesesoeeee 5

18 U.S.C. 1962) ..-c.--ccessccccescoesecoseesseesoneee 5

A ORK OM” (:) ¢:) 9

III

Miscellaneous:

Measures Relating to Organized Crime:

Hearings Before the Subcomm. on Crim-

inal Laws and Procedures of the S.

Comm. on the Judiciary, 91st Cong., 1st

LS | RR ESESAI EIA ee OY BOP

National Commission on Reform of Fed-

eral Criminal Laws, Final Report

PRI sasdasscabcasboheobasitianiena\ieiste-cenoneatebehaaisadacates

President’s Commission on Law Enforce-

ment and Administration of Justice,

The Challenge of Crime in a Free So-

I ED Bins aicersiaintawecinhctoiiepseinnecniens

S. 30, 91st Cong., Ist Sess. (1969) -.........

S. 1722, 96th Cong., 1st Sess. § 3725 (b)

I aa alata aac uisreinadedated dinleenadibaimanraslcs

S. Rep. No. 91-617, 91st Cong., 1st Sess.

OP wie) sohon tine dansllcueisiccaicasedlacigevecscoaacaulecies

Page

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

EUGENE DIFRANCESCO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Second Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A,

infra, la-45a) is not yet reported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, 46a-47a) was entered on August 6, 1979. On

(1)

August 28, 1979, Mr. Justice Marshall extended the

time for filing a petition for a writ of certiorari

to and including October 5, 1979 (App. C, mfra,

48a). The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1). .

QUESTION PRESENTED

Whether the provision of 18 U.S.C. 3576 that per-

mits the United States to seek appellate review of a

sentence imposed by a district court under 18 U.S.C.

3575 violates the Double Jeopardy Clause.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fifth Amendment to the United States

Constitution provides in pertinent part:

* * * nor shall any person be subject for the

same offense to be twice put in — of life

or ian? *"™.

2. 18 U.S.C. 3575(b) provides in pertinent part:

Upon any plea of guilty or nolo contendere

or verdict or finding of guilty of the de

fendant of such felony, a hearing shall be

held before sentence is imposed, by the court

sitting without a jury. * * * If it appears

by a preponderance of the information, in-

cluding information submitted during the

trial of such felony and the sentencing hear-

ing and so much of the presentence report

as the court relies upon, that the defendant

is a dangerous special offender, the court

shall sentence the defendant to imprison-

ment for an appropriate term not to exceed

twenty-five years and not disproportionate

in severity to the maximum term otherwise

authorized by law for such felony. Other-

wise it shall sentence the defendant in ac-

cordance with the law prescribing penalties

for such felony. The court shall place in

the record its findings, including an identifi-

cation of the information relied upon in

making such findings, and its reasons for

the sentence imposed.

3. 18 U.S.C. 3576 provides:

With respect to the imposition, correction, or

reduction of a sentence after proceedings under

section 3575 of this chapter, a review of the

sentence on the record of the sentencing court

may be taken by the defendant or the United

States to a court of appeals. Any review of the

sentence taken by the United States shall be

taken at least five days before expiration of the

time for taking a review of the sentence or ap-

peal of the conviction by the defendant and shall

be diligently prosecuted. The sentencing court

may, with or without motion and notice, extend

the time for taking a review of the sentence for

a period not to exceed thirty days from the ex-

piration of the time otherwise prescribed by law.

The court shall not extend the time for taking a

review of the sentence by the United States after

the time has expired. A court extending the time

for taking a review of the sentence by the United

States shall extend the time for taking a review

of the sentence or appeal of the conviction by the

defendant for the same period. The taking of a re-

view of the sentence by the United States shall be

deemed the taking of a review of the sentence and

an appeal of the conviction by the defendant. Re-

view of the sentence shall include review of

whether the procedure employed was lawful, the

findings made were clearly erroneous, or the

sentencing court’s discretion was abused. The

court of appeals on review of the sentence may,

after considering the record, including the entire

presentence report, information submitted dur-

ing the trial of such felony and the sentencing

hearing, and the findings and reasons of the

sentencing court, affirm the sentence, impose or

direct the imposition of any sentence which the

sentencing court could originally have imposed,

or remand for further sentencing proceedings

and imposition of sentence, except that a sen-

tence may be made more severe only on review

of the sentence taken by the United States and

after hearing. Failure of the United States to

take a review of the imposition of the sentence

shall, upon review taken by the United States

of the correction or reduction of the sentence,

foreclose imposition of a sentence more severe

than that previously imposed. Any withdrawal

or dismissal of review of the sentence taken by

the United States shall foreclose imposition of a

sentence more severe than that reviewed but

shall not otherwise foreclose the review of the

sentence or the appeal of the conviction. The

court of appeals shall state in writing the rea-

sons for its disposition of the review of the sen-

tence. Any review of the sentence taken by the

United States may be dismissed on a showing of

abuse of the right of the United States to take

such review.

STATEMENT

Following a jury trial in the United States District

Court for the Western District of New York, re-

spondent was convicted of conducting the affairs of

an enterprise through a pattern of racketeer’ne

activities and of conspiring to commit that offense,

in violation of 18 U.S.C. 1962(c) and (d). Follow-

ing a second jury trial in the same district, respond-

ent was convicted of damaging federal property, in

violation, of 18 U.S.C. 1361, unlawfully storing ex-

plosive materials, in violation of 18 U.S.C. 842(j),

and conspiring to commit these offenses, in violation

of 18 U.S.C. 371. He was first sentenced to a total

of nine years’ imprisonment on the convictions aris-

ing from the second trial and was then sentenced to

two ten-year terms of imprisonment on the racketeer-

ing counts, to be served concurrently with each other

and with the sentence imposed after the second trial.’

Respondent appealed from both convictions, and the

government appealed under 18 U.S.C. 3576 from the

sentence at the racketeering trial. The court of ap-

1The court sentenced respondent to concurrent terms of

eight years’ imprisonment on the bombing charge and five

years’ imprisonment on the conspiracy charge, to be followed

by a one-year term of imprisonment on the charge of unlaw-

ful storage of dynamite (C.A. Resp. App. 9). (“C.A. Resp.

App.” refers to the appendix filed by the respondent in the

court of appeals.)

peals affirmed the convictions and dismissed the gov-

ernment’s appeal (App. A, infra, la-45a).

Prior to respondent’s first trial, the government

filed a notice with the district court, pursuant to

18 U.S.C. 3575(a), alleging that respondent was a

“dangerous special offender,” as defined in 18 U.S.C.

3575(e) (3) and (f). The notice indicated the gov-

ernment’s intention to seek imposition of an enhanced

sentence under 18 U.S.C. 3575(b) in the event re-

spondent was convicted (App. A, infra, 20a). On

October 31, 1977, respondent was found guilty on the

racketeering charges. The proof at trial showed that

he had operated an “arson for hire” ring, the activi-

ties of which included multiple acts of arson and the

use of the mails to defraud insurance companies of

approximately $480,000 (id. at 3a).

Between the time of respondent’s trial on the

racketeering charges and the commencement of the

special sentencing hearing required by 18 U.S.C.

3575(b), respondent was tried and convicted in the

second proceeding against him. In that case, the evi-

dence showed that he had bombed the Federal Build-

ing in Rochester, New York, with dynamite that he

had unlawfully stored (App. A, infra, 2a, 16a n.9).

Subsequently, on March 17, 1978, the special sen-

tencing hearing was held, and on April 21, 1978, the

district court ruled that respondent was a dangerous

special offender.” Nevertheless, on April 28, 1978,

2 Among its findings of fact, the court found that respond-

ent’s “criminal history, based upon proven facts, reveals a

pattern of habitual and knowing criminal conduct of the most

the court sentenced respondent to concurrent terms

of 10 years’ imprisonment on the racketeering

charges, to be served concurrently with the nine-year

sentence that had already been imposed on March

17, 1978, in connection with his second trial (App.

A, infra, 21a).

Under the authority granted by 18 U.S.C. 3576,

the government appealed from the dangerous special

offender sentence, claiming that the district court

abused its discretion in imposing a sentence that

would lead, in effect, to additional imprisonment for

only one year despite the court’s findings after the

dangerous special offender hearing (App. A, infra,

21a-22a; see note 2, supra). The court of appeals

dismissed this appeal on the ground that 18 U.S.C.

3576 violates the Double Jeopardy Clause. The court

held that the constitutionality of the statute was a

threshold jurisdictional issue that had to be faced

before the merits of the government’s appeal could

be reached (App. A, infra, 23a).* Finding that it

violent and dangerous nature against the lives and property

of the citizens of this community. It further shows the [re-

spondent’s] complete and utter disregard for the public safety.

The [respondent], by virtue of his own criminal record, has

shown himself to be a hardened habitual criminal from whom

the public must be protected for as long a period as possible.

Only in that way can the public be protected from further

violent and dangerous criminal conduct by the [respondent]”

(C.A, Pet. App. A. 59). (“C.A. Pet. App.” refers to the

appendix filed by petitioner in the court of appeals.)

8’ The concurring opinion of Judge Haight suggests that the

government’s appeal should have been dismissed because 18

U.S.C. 3575 and 3576 were inapplicable to respondent (App.

A, infra, 44a-45a). The majority of the court disagreed,

was “obliged to construe strictly the procedure that

Congress has authorized” (App. A, infra, 28a), the

court noted that the sentence imposed by the district

court was final rather than “tentative.” * Relying pri-

marily on Kepner v. United States, 195 U.S. 100

(1904) (App. A, infra, 29a-30a) and a number of

statements in dicta by this Court and the courts of

appeals (id. at 33a-36a), the court concluded that

“the double jeopardy clause bars an increase in the

sentence imposed by the district court” (id. at 36a)

and accordingly that the government could not chal-

lenge a final sentence on appeal.

REASONS FOR GRANTING THE PETITION

1. In dismissing the government’s appeal, the

court of appeals has deciared unconstitutional on its

finding that Section 3575 could properly have been applied to

respondent (App. A, infra, 23a-24a n.13). In any event, that

issue is not presented here. The court of appeals held that it

lacked jurisdiction to entertain the government’s appeal be-

cause of the unconstitutionality of Section 3576. Until juris-

diction is established, a court cannot consider the merits of

the issues presented to it for resolution. See Alabama Public

Service Comm’n Vv. Southern Ry., 341 U.S. 341, 347 (1951).

*The legislative history indicates that Congress clearly

intended that the sentence would not be final until the appeal

had been exhausted. The original bill introduced in the Sen-

ate explicitly provided that the district court sentence was

*not*final.” S.30, 91st Cong., 1st Sess., § 8577 (1969). Meas-

ures Relating to Organized Crime: Hearings Before the Sub-

comm. on Criminal Laws and Procedures of the S. Comm.

on the Judiciary, 91st Cong., lst Sess. 28-29 (1969). It was

felt, however, that such a label was superfluous and it was

omitted from the statute. S. Rep. No. 91-617, 91st Cong.,

Ist Sess. 98 (1969).

face an Act of Congress that was carefully drafted

with constitutional considerations in mind. See S. Rep.

No. 91-617, 91st Cong., 1st Sess. 93-98 (1969). The

appellate review of sentence provision in 18 U.S.C.

3576 is part of the Dangerous Special Offender Sen-

tencing Statutes, 18 U.S.C. 3575-3578, which were

enacted as Title X of the Organized Crime Controi

Act of 1970, Pub. L. No. 91-452, 84 Stat. 948. Sec-

tion 3576 was, in part, a response to the recommen-

dation of the President’s Commission on Law En-

forcement and Administration of Justice that

“Tt]here must be some kind of supervision over

those trial judges who * * * tend to mete out light

sentences in cases involving organized crime man-

agement personnel.” Report of the President’s Com-

mission on Law Enforcement and the Administration

of Justice: The Challenge of Crime in a Free Society

203 (1967). The court of appeals’ decision has nulli-

fied a carefully considered legislative effort at such

supervision.

Moreover, the court’s decision has implications that

reach far beyond the specific context of Section 3576.

First, the ruling almost certainly invalidates the

quite similar statute permitting the government to

seek appellate review of sentences of special drug

offenders, 21 U.S.C. 849(h). Perhaps more impor-

tant, it also would appear to cast substantial doubt

on the validity of a key section of the revised criminal

code that is now pending in Congress. This section

permits appellate review, at the government’s behest,

of sentences that are not within specified guidelines.°

The purpose of the provision is to reduce unwar-

ranted disparities in sentencing and to promote equal

treatment of similarly situated offenders. See the

National Commission on Reform of Federal Criminal

Laws, Final Report 317 (1971). If disparities in sen-

tencing cannot be eliminated by other means, legis-

latures may be induced to limit the sentencing flexi-

bility of trial judges, contrary to the “prevalent mod-

ern philosophy of penology that the punishment should

fit the offender and not merely the crime.” Williams

v. New York, 337 uy? 241, 247 (1949). See United

States v. Grayson, 438 U.S. 41, 45-49 (1978). The

5S. 1722, 96th Cong., lst Sess. § 3725(b) (1979) provides:

(b) APPEAL BY THE GOVERNMENT.—The gov-

ernment may, with the approval of the Attorney General

or his designee, file a notice of appeal in the district court

for review of an otherwise final sentence imposed for a

felony or a Class A misdemeanor if the sentence includes

a lesser fine or term of imprisonment or term of super-

vised release than the minimum established in the guide-

lines, or includes a less limiting condition of probation or

supervised release under section 2103(b) (6) or (b) (11)

than the minimum established in the guidelines, that are

issued by the Sentencing Commission pursuant to 28

U.S.C. 994(a) (1), and that are found by the sentencing

court to be applicable to the case, unless—

(1) the sentence is equal to or greater than the sen-

tence recommended or not opposed by the attorney for

the government pursuant to a plea agreement under

Rule 11(e) (1) (B) of the Federal Rules of Criminal Pro-

cedures; or

(2) the sentence is that provided in an accepted plea

agreement pursuant to Rule 11(e) (1) (C) of the Federal

Rules of Criminal Procedure.

Double Jeopardy Clause need not be read to discour-

age these sentencing reforms.

2. The statutory scheme of 18 U.S.C. 3575 and

3576 does not offend any of the policies and protec-

tions that have historically been embodied in the

Double Jecpardy Clause. The Court has noted that

the Fifth Amendment guarantee against double jeop-

ardy consists of three separate protections—against

(1) a second prosecution for the same offense after

acquittal, (2) a second prosecution for the same of-

fense after conviction, and (3) multiple punishments

for the same offense. United States v. Wilson, 420

U.S. 332, 343 (1975), quoting North Carolina v.

Pearce, 395 U.S. 711, 717 (1969). None of these

protections is threatened by the government appeal

of a sentence.

It is well-established that “the primary purpose of

the Double Jeopardy Clause was to prevent successive

trials, and not Government appeals per se.” Sanabria

v. United States, 487 U.S. 54, 63 (1978). See also

United States v. Wilson, supra. This is because en-

during ‘the hazards of trial and possible conviction

more than once for an alleged offense” subjects a

defendant to “embarrassment, expense and ordeal”

and increases the risk that an innocent person will be

found guilty. Green v. United States, 355 U.S. 184, 187

(1957). More generally, as the court of appeals noted

(App. A, infra, 31a-32a), the purpose of the prohibi-

tion is to prevent “[g]overnment oppression” of crim-

inal defendants. United States v. Scott, 487 U.S. 82,

99 (1978). It “serves principally as a restraint on

courts and prosecutors” once the legislature has en-

acted a scheme of punishment. Brown v. Ohio, 432

U.S. 161, 165 (1977). 18 U.S.C. 3576, a legislative

attempt to supervise sentencing, subjects a defendant

to no further proceedings other than an appellate

hearing ° and cannot be characterized as “government

oppression.”

Nor is the bar against multiple punishment im-

plicated in this case. If on review under Section 3576

a defendant is sentenced by the court of appeals to a

term of imprisonment greater than that originally

imposed by the district court, he is receiving a single

punishment for his offense pursuant to a legislatively

prescribed procedure. The prohibition against multi-

ple punishment can be defined only by reference to

the punishment authorized by the legislature. Thus,

in Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873),

the Court held that the Double Jeopardy Clause was

violated because, after the defendant had already

paid a fine, he was sentenced to imprisonment for a

crime whose statutory penalty was a fine or imprison-

ment. See also Jn re Bradley, 318 U.S. 50, 52 (1943).

The Double Jeopardy Clause assures only “that the

court does not exceed its legislative authorization by

imposing multiple punishments for the same offense.”’

Brown v. Ohio, supra, 432 U.S. at 165.

Indeed, this Court has recently ruled that a legisla-

tively authorized two-stage trial and sentencing

6 The hearing is “on the record of the sentencing court”

and thus does not permit the prosecution a “second crack”

at supplying evidence. See Swisher v. Brady, 438 U.S. 204,

215-216 (1978); Burks v. United States, 437 U.S. 1, 11

(1978).

scheme analogous to Section 3576 does not violate the

Double Jeopardy Clause. In Swisher v. Brady, 4388

U.S. 204 (1978), the Court upheld a Maryland pro-

cedure under which a master may hear juvenile

cases. The master submits findings, a recommended

sentence and a proposed order to the judge, who may

adopt them without further proceedings. Either the

juvenile or the state may file exceptions to the master’s

findings, however, in which case the judge holds a hear-

ing on the record on the exceptions and may reach a

finding on guilt or impose a sentence different than

that recommended by the master. The Court rejected

the contention that this potential for conviction or

sentence increase following a government appeal vio-

lates the Double Jeopardy Clause.’ Rather, the Court

held that the legislature has established a system “‘in

which an accused juvenile is subjected to a single

proceeding which begins with a master’s hearing and

culminates with an adjudication by a judge.” 438

U.S. at 215. Similarly, the dangerous special offender

statutes set up a system whereby the sentence im-

posed by the district court is not final until the

appellate procedures provided in Section 3576 are

either exhausted or not invoked within the restrictive

time limits provided.®

7 See also Ludwig v. Massachusetts, 427 U.S. 618 (1976),

and Colten v. Kentucky, 407 U.S. 104 (1972) (imposition of a

higher sentence at the second trial in a two-tier court system

does not violate the Double Jeopardy Clause).

8 Because, under 18 U.S.C. 3575 and 3576, the defendant is

on notice from the outset that his sentence is subject to

appellate review at the insistence of the government, the re-

3. In concluding that 18 U.S.C. 3576 is unconsti-

tutional, the court of appeals relied primarily on

Kepner v. United States, 195 U.S. 100 (1904).° In

Kepner, the Court held that the Double Jeopardy

Clause prohibited the government from appealing a

judgment of acquittal. The court of appeals reasoned

that a convicted defendant whose sentence is appealed

by the government is no less placed in double jeop-

ardy than one whose acquittal is appealed, because in

either case the government “seeks a more favorable

result in another tribunal” (App. A, infra, 30a). This

simple equation of the finality of a sentence with that

of an acquittal is at odds with the decisions of this

Court.

In Bozza v. United States, 330 U.S. 160 (1947),

for example, the district court imposed a sentence

below the mandatory minimum required by statute.

view procedure causes none of the emotional distress often

associated with a second trial following a mistrial granted

over the defendant’s objection. See, e.g., Crist v. Bretz, 437

U.S. 28, 38 (1978).

® The court of appeals also cited several statements by this

Court in support of its position, although it acknowledged

that they were dicta (App. A, infra, 33a-35a). In United

States v. Benz, 282 U.S. 304 (1931), the Court held that a

district court had the power to reduce a defendant’s sentence.

The Court’s comments concerning an increase in sentence

explicitly relied on Hx parte Lange, supra, and referred to

the imposition of a second punishment for the same offense.

282 U.S. at 307-308. In Murphy v. Massachusetts, 177 U.S.

155 (1900), the court upheld the imposition of a longer sen-

tence where the first sentence was vacated. The court of ap-

peals also cited to a footnote in the plurality opinion in Reid

v. Covert, 354 U.S. 1, 37 n.68 (1957), a case where the Double

Jeopardy Clause was not in issue.

Thereafter, the court recalled the defendant, ex-

plained its mistake, and imposed a more severe sen-

tence as required by the mandatory statutory pro-

vision. This Court held that this increase in sentence

“did not twice put [defendant] in jeopardy for the

same offense,” because it had no authority to impose

the first sentence. 330 U.S. at 167. By contrast, in

Fong Foo v. United States, 369 U.S. 141 (1962), the

Court held that the Double Jeopardy Clause barred

appellate review of the district court’s acquittal of the

defendants in the middle of the prosecution’s case—

an action that the district court similarly lacked au-

thority to take. In addition, the Court has held that

when a defendant is retried after having his convic-

tion set aside, he may be sentenced to a longer term

of imprisonment than he receives at his first trial.

North Carolina v. Pearce, supra, 395 U.S. at 721.

However, if at his first trial a defendant is charged

with first degree murder but is convicted only of sec-

ond degree murder, he cannot be charged again with

first degree murder at a retrial following a reversal

of his conviction on appeal. Green v. United States,

supra. Thus, in two different contexts, the Court has

indicated that there is a material difference for double

jeopardy purposes between the fact-finding and sen-

tencing processes and that, for the purpose of the

finality required by the Double Jeopardy Clause, a

retrial following acquittal is regarded differently

from the imposition of a higher sentence at a second

proceeding.

By the same token, there is no merit to the court

of appeals’ suggestion (App. A, infra, 38a n.25) that

the government may not appeal a sentence because

a defendant is entitled to protect the integrity of a

final judgment in the trial court unless he takes some

action to challenge it. In United States v. Wilson,

420 U.S. 332 (1975), the district court dismissed the

indictment after the defendant had been found guilty

by a jury. Although the defendant’s trial had been

completed, the Court held that he had no vested right

to the resolution in his favor because a reversal on

appeal would not have required a second trial, and

hence the government was permitted to appeal the dis-

missal. Id. at 344.

In fact, as noted above, this Court has squarely

held that the imposition of a greater sentence at a

second proceeding, in the context of a retrial follow-

ing the reversal of a conviction, does not violate the

Double Jeopardy Clause. North Carolina v. Pearce,

supra. The only difference between that case and the

situation involved here is whether the second pro-

ceeding comes about because the defendant appeals

his conviction or because the government appeals the

sentence. There is no reason why this difference

should affect the applicability of the Double Jeopardy

Clause.

The court of appeals’ attempts to distinguish

Pearce are unconvincing. The court suggested initi-

aliy that Pearce rests partly on the theory that society

cannot permit a defendant to be granted immunity

simply because a reversible error occurred at his first

trial (App. A, infra, 36a-38a). As the court itself

conceded (id. at 37a), however, this reason cannot

explain the result in Pearce because restriction of the

sentence imposed on retrial to that imposed at the

first trial would not confer any immunity on the de-

fendant. The court therefore concluded that the

critical factor in Pearce was that the second pro-

ceeding was a consequence of the defendant’s “‘volun-

tary choice” (id. at 37a-38a).

The court of appeals’ conclusion that the Double

Jeopardy Clause protects a defendant against the

later imposition of a greater sentence than that im-

posed at trial, but that that protection is lost if the

defendant makes a “voluntary choice” and appeals

his conviction, is untenable. A defendant’s challenge

to the validity of his indictment or the fairness of

his trial certainly does not signal a willingness to

place the length of his sentence in issue. Moreover,

the reasoning of the court below has been expressly

repudiated by this Court. In Green v. United States,

supra, the Court rejected the notion that the de-

fendant’s appeal of his conviction waived his consti-

tutional protection against retrial on a count on

which the jury had refused to find him guilty. The

Court stated that “[w]hen a man has been convicted

* * * it is wholly fictional to say that he ‘chooses’ to

forego his constitutional defense of former jeopardy

* * * in order to secure a reversal of an erroneous

conviction * * *. In short, he has no meaningful

choice.” 355 U.S. at 191-192. As in Green, the de-

fendant in Pearce had no meaningful choice other

than to appeal his conviction.” Thus, Pearce cannot

be explained by invoking the defendant’s decision to

appeal; rather, that case simply holds that the Double

Jeopardy Clause does not preclude an increase of

sentence at a second proceeding that is contemplated

by the legislature. Cf. Burks v. United States, 437

U.S. 1, 17-18 (1978).™

In sum, an Act of Congress that attempts to estab-

lish some supervision over sentencing in a manner

that is neither oppressive nor vindictive has been

invalidated based upon an erroneous interpretation of

the Double Jeopardy Clause. This decision, which

may have serious adverse effects on ongoing sentenc-

ing reform efforts, merits this Court’s review.

10 United States v. Scott, supra, where the defendant made

a strategic decision to terminate the trial before its com-

pletion, deals with a completely different situation than

Pearce. In Scott, the defendant could have chosen to make

his motion after the completion of the trial, thus avoiding

the necessity for a retrial. 487 U.S. at 98-101.

11Qf course, as Pearce explains (395 U.S. at 723-725),

other constitutional provisions, such as the Due Process

Clause, may protect a defendant against arbitrary or irra-

tional sentence increases. In addition, 18 U.S.C. 3576 itself

provides that a government appeal of sentence “may be

dismissed on a showing of abuse of the right of the United

States to take such review.”

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ALAN I, HoRowITz

Assistant to the Solicitor General

VICTOR D. STONE

Attorney

OCTOBER 1979

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 231, 908, 1094—August Term, 1978

(Argued April 20, 1979 Decided August 6, 1979)

Docket Nos. 78-1250, 78-1369, 78-1371

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

—)) <=

EUGENE DI FRANCESCO, DEFENDANT-APPELLANT

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

—?)) —

EUGENE DI FRANCESCO, DEFENDANT-APPELLANT

Before:

SMITH and MESKILL, Circuit Judges, and

HAIGHT,* District Judge

* Honorable Charles S. Haight, Jr., United States District

Judge for the Southern District of New York, sitting by

designation.

SMITH, Circuit Judge:

These are appeals by a defendant from judgments

of conviction entered after two separate jury trials

in the United States District Court for the Western

District of New York, and by the government from

a sentence imposed under the “dangerous special of-

fender” provisions of 18 U.S.C. § 3575. In the first

trial, Harold P. Burke, Judge, presiding, the appel-

lant, Eugene DiFrancesco, was convicted of conspir-

ing to participate in and conduct the affairs of an

enterprise through a pattern of racketeering activity,

which included multiple acts of arson and use of the

mails to defraud insurance companies, in violation of

18 U.S.C. § 1962(c) and (d). In the second trial,

George C. Pratt, Judge, presiding by designation,

DiF rancesco was convicted on three counts which al-

leged that he willfully caused damage in excess of

$100 to federal property, 18 U.S.C. § 1361, unlaw-

fully stored explosive materials, 18 U.S.C. § 842(j),

and conspired to commit these acts, 18 U.S.C. § 371.

We affirm the convictions and dismiss the govern-

ment’s appeal.

On July 24, 1975, DiFrancesco, together with seven

co-defendants, was indicted on charges arising out of

a series of bombings that occurred in the Rochester

area on Columbus Day in 1970. A second indictment,

filed on April 7, 1976, named DiFrancesco and seven

others, two of whom were also defendants in the

bombing indictment, as defendants in two counts of

racketeering involving an “arson-for-hire” ring oper-

ating in the Rochester area. Since this second indict-

ment was the first to come to trial, we shall begin by

discussing DiFrancesco’s appeal from the resulting

conviction on the racketeering charges.

RACKETEERING

DiFrancesco and five of the seven co-defendants in

the racketeering indictment were tried jointly, in

September and October of 1977. Of the two remain-

ing defendants, Joseph LaNovara pleaded guilty be-

fore trial and testified as a witness for the govern-

ment, while Frank Valenti, the alleged leader of the

conspiracy, was severed upon the government’s mo-

tion because he was ill.

The government presented evidence by which it

sought to prove that an arson-for-hire team, which

operated as part of a larger organization engaged in

illicit activities in the Rochester area, had been re-

sponsible for at least eight fires that occurred there

between 1970 and 1978. The arson ring allegedly

agreed with the property owners to destroy their

buildings in return for a share of the insurance pro-

ceeds. The government charged that insurance com-

panies had been defrauded of about $480,000 as a

result of the eight fires. The jury acquitted four of

the six defendants, but convicted DiFrancesco and

Vincent Rallo on both counts. DiFrancesco’s appeal

alleges several errors in the district court.

The most substantial issue raised by DiFrancesco

is whether certain statements made by government

witnesses to the FBI should have been turned over to

the defendants under the rule of Brady v. Maryland,

373 U.S. 83 (1963). Shortly before this trial began,

it was disclosed that allegations of wrongdoing had

been lodged against some members of the Monroe

County Sheriff’s Office. These allegations arose in

connection with the Sheriff’s Office’s investigation of

a number of crimes in which the defendants in this

case allegedly had been involved, including a murder

for which DiFrancesco had been convicted in state

court. The FBI, as part of a federal civil rights in-

vestigation of the Sheriff’s Office’s activities, con-

ducted a number of interviews and compiled inter-

view reports.’ The subject matter of some of these

interviews included alleged instances of perjury by

witnesses in state court proceedings. Some of these

witnesses were expected to be called by the United

States to testify in the case against DiFrancesco and

his co-defendants.

When this matter arose, Judge Burke granted a

continuance for one week during which the govern-

ment represented that it would seek to learn more

about the allegations and would then “turn over all

materials that is [sic] favorable to the defense that

result from the investigation.” The government re-

viewed approximately thirty to thirty-five FBI re-

ports and determined that only one was Brady

material. The government then submitted the reports

1 This investigation resulted in the filing of an indictment in

the Western District on April 12, 1979 against five members

of the Monroe County Sheriff’s Office. United States v. Ken-

nerson, Cr. 79-65.

to the trial judge to allow him to decide whether he

thought any of the remaining material fell within

Brady. The judge picked out about fifteen other re-

ports which he ruled were Brady material, but the

government refused to turn over these additional re-

ports to the defendants. It argued that exposure of

the reports could endanger the ongoing civil rights

investigation. Thus, the government stated that it

was “willing to stand or fall on that decision [that

the reports were not Brady material] made by itself.”

The court denied a motion that it order the govern-

ment to turn over the reports. Instead, those reports

which the court believed were Brady material were

sealed as Court Exhibit A, and those which the court

and government agreed were not within Brady were

sealed as Court Exhibit B. At some later time, the

government gave defense counsel the reports of inter-

views of LaNovara and of Angelo Monachino, an un-

indicted co-conspirator, who was to testify for the

government. Both of these reports were part of

Court Exhibit A, as was a third report which the

government eventually turned over as Jencks Act

material.

Our examination of the court exhibits convinces us

that the reports included no Brady material. None of

the reports exculpated DiF rancesco, nor did any dem-

onstrate that the government’s case included perjured

testimony. Furthermore, nothing in the reports that

the government refused to turn over constitued “ma-

terial evidence that would impeach a Government

witness whose ‘reliability . . . may well [have been]

’

determinative of guilt or innocence.’” Ostrer v.

United States, 577 F.2d 782, 785 (2d Cir. 1978),

cert. denied, 99 S.Ct. 1018, 47 U.S.L.W. 3482 (Janu-

ary 15, 1979), quoting Giglio v. United States, 405

U.S. 150, 154 (1972), quoting Napue v. Illinois, 360

U.S. 264, 269 (1959). One report (Part A of Court

Exhibit A) contains two comments attributed to

Monachino. Neither of these comments, however,

could have been used to impeach Monachino in any

way that might have affected the outcome of the

trial, which is the standard by which we measure the

materiality of undisclosed information for which the

defendant makes a specific request. United States v.

Agurs, 427 U.S. 97, 104-06 (1976). Ostrer, supra,

577 F.2d at 786. In short, the FBI reports would

have added nothing to the vigorous attacks which Di-

Francesco and his co-defendants made upon the cred-

ibility of a number of the government’s witnesses

through use of the substantial public information re-

lating to the investigation.

DiFrancesco also raised several arguments involv-

ing evidentiary questions and portions of the court’s

instructions to the jury. The first concerns the in-

troduction into evidence of a state court indictment

that charged DiFrancesco and others with an act of

arson, a fire at Select Tire Company, that also con-

stituted part of a specific act of racketeering alleged

in the federal indictment. The government offered

the indictment and had a portion of it read to the

jury as part of its rebuttal case, for the stated pur-

pose of making the jury aware of the final disposi-

tion of the state court case against one of the per-

sons named in the state indictment.

It is difficult to perceive how the indictment was

relevant for the purpose stated by the government.

In fact, its relevance and materiality to any issue in

the case was, at best, minimal. Counsel for the var-

ious defendants, including DiFrancesco, opened up

the subject of the state court proceedings in their

cross-examination of government witnesses. Introduc-

tion of the indictment, however, was not, as the gov-

ernment now contends, necessary to clarify the

“meaning” of the outcome of the state trial.? But ad-

mission of the indictment, even if erroneous, did not

prejudice DiFrancesco. The jury already knew, from

the defendants’ cross-examination of government wit-

nesses, that the state grand jury had received testi-

mony implicating DiFrancesco in the Select Tire

fire, that some persons had been tried in state court

in connection withthat fire, that testimony alleging

DiFrancesco’s participation had been offered at the

state court trial, and that DiFrancesco had been

named as a co-conspirator in yet another federal in-

dictment alleging mail fraud arising from a separate

act of arson. Under these circumstances, admission

of the indictment, even if erroneous, was harmless.

2 Only two of the defendants named in the state court indict-

ment had been tried. The jury acquitted Joseph Nalore, one of

DiFrancesco’s co-defendants in this case, but was unable to

agree on a verdict as to Lawrence Uchie. Uchie then entered

an “Alford plea” of guilty, see North Carolina v. Alford, 400

U.S. 25 (1970), to the state charges, while at the same time

maintaining his innocence.

DiF rancesco also disputes the admissibility of cer-

tain testimony by LaNovara and Monachino, who

described the initiation ritual* followed by the or-

ganization of which the arson-for-hire ring was a

part. Admission of this testimony was not erroneous.

The evidence was probative of the existence of an

“enterprise,” the affairs of which were conducted

through a pattern of racketeering activity, which was

a matter on which the court correctly charged that

the government had the burden of proof. The evi-

dence was sufficiently probative to outweigh any pos-

sible prejudice.

DiFrancesco next contends that the testimony that

LaNovara and Monachino were participants in the

Federal Witness Protection Program, as authorized

by the Organized Crime Control Act of 1970, P.L.

No. 91-452, Title V, 84 Stat. 933, should not have

been allowed. Since a defendant often will seek to

impeach a participating witness by showing that he

has received significant benefits while in the program,

the government may desire to bring out the witness’

participation during direct examination in order to

avoid an inference that the government was attempt-

ing to hide the witness’ possible bias. Although dis-

closure of such participation “must be handled deli-

cately,” United States v. Partin, 552 F.2d 621, 644-

45 (5th Cir.), cert. denied, 484 U.S. 903 (1977), so

3 The ritual, which included the recitation of an oath of

loyalty to the organization, consisted of pricking one’s trigger

finger, absorbing the blood in a tissue and holding the tissue

in one’s hand while it burned.

as to minimize the possibility that the jury will infer

that the defendant was the source of danger to the

witness, such testimony is permissible so long as the

prosecutor does not attempt to exploit it. No exploi-

tation occurred here, and the defendants cross-exam-

ined the witnesses at length to develop the full extent

of the benefits received by them. Thus there was no

error in allowing the testimony. Nor was the court’s

instruction to the jury on this subject erroneous or

insufficient.* The instruction did not suggest, as Di-

Francesco argues, that the Attorney General was

vouching for the credibility of the witnesses. Instead,

it simply explained the purpose of the program and

dispelled any implication that the benefits received

* The court instructed the jury:

You have heard numerous references during the course

of this trial to the Federal Witness Protection Program.

Federal law provides that the Attorney General of the

United States is authorized to provide for the security

of government witnesses, potential government witnesses

and potential witnesses in legal proceedings against any

person alleged to have participated in any organized

crime activity.

Federal law also provides that the Attorney General of

the United States is authorized to provide for the health,

safety and welfare of witnesses and persons intended to

be called as government witnesses and the families of

witnesses and persons intended to be called as govern-

ment witnesses in legal proceedings instituted against any

person alleged to have participated in an organized crime

activity whenever in his judgment testimony from, or a

willingness to testify by such a witness would place his

life or person or the life or person of a member of his

family or household in jeopardy.

10a

by LaNovara and Monachino were bestowed improp-

erly. No additional instruction was necessary. Id.

Lastly, DiFrancesco argues that the court removed

an element of the crime from the jury’s consideration

by instructing that, if the jury believed the evidence

that about $480,000 in claims was paid by insurance

companies in New York and other states as a result

of the arsons and mail fraud, then the enterprise did

affect interstate commerce as required by 18 U.S.C.

§ 1962(c). This instruction was proper. The court

left to the jury the question of fact, whether the

claims had been paid as a result of arson engaged in

by the defendants. The trial judge correctly deter-

mined, however, that if the defendants’ alleged ac-

tions were proven, the effect of those actions on inter-

state commerce was a question of law. Cf. United

States v. Ricciardi, 357 F.2d 91, 94 (2d Cir.), cert.

denied, 384 U.S. 942 (1966) (whether activities con-

stitute an “industry affecting commerce” under 29

U.S.C. § 186 is a question of law); United States v.

Varlack, 225 F.2d 665, 670-72 (2d Cir. 1955) (judge

instructed that, if jury believed testimony of govern-

ment witnesses, defendant’s acts affected commerce

as defined in Hobbs Act, 18 U.S.C. § 1951).

THE COLUMBUS DAY BOMBINGS

DiF rancesco’s attack on his conviction arising from

the bombing and explosives charges focuses on the

delay between his indictinent and the commencement

of trial. He contends that the indictment should have

been dismissed because this delay violated the Speedy

lla

Trial Act, 18 U.S.C. §§ 3161-74 (“the Act”), the

Western District’s Transitional Plan for Achieving

the Prompt Disposition of Criminal Cases (“the

Plan”), and the sixth amendment’s guarantee of a

speedy trial.

DiFrancesco was indicted on July 24, 1975 and ar-

raigned on September 8, 1975. The relevant provi-

sions of the Act, 18 U.S.C. §§ 3161(g) and 3163(b)

(2), and of the Plan, § 5(a) (1), did not take effect

until July 1, 1976. They require that trial of a de-

fendant arraigned before the effective date shall com-

mence within 180 days of that date. Both the Act

and the Plan (§10(a)) provide, however, for the

exclusion of certain periods of delay set forth in 18

U.S.C. §3161(h) in computing the 180-day period.

DiFrancesco contends that the non-excludable delay

in this case amounted to 309 days. The government,

which conceded in the district court that the 180-day

period had expired, now argues that the non-exclud-

able delay totaled either 283, 273, 177 or 145 days, or

perhaps no time at all. We need not choose, however,

from among these various calculations, because 18

U.S.C. §3163(c) delays the effective date of the

sanctions provided in § 3162 for violations of the Act

until July 1, 1979, United States v. New Buffalo

Amusement Corp., No. 78-1317, slip op. 2745 at 2757-

58 (2d Cir. May 22, 1979); United States v. Carini,

562 F.2d 144, 148 (2d Cir. 1977), and §11(e) of

the Plan provides that failure to comply with its pro-

visions shall not require dismissal. New Buffalo

Amusement Corp., supra, slip op. at 2757 n. 18.

12a

Although the district court retains discretionary

power under Rule 48(b) of the Federal Rules of

Criminal Procedure to dismiss an indictment because

of excessive delay, United States v. Lane, 561 F.2d

1075, 1078 (2d Cir. 1977), DiFrancesco did not in-

voke that discretion and thus cannot complain of the

court’s failure to exercise it. New Buffalo Amuse-

ment Corp., supra, slip op. at 2757 n. 13.

We turn therefore to DiFrancesco’s claim that the

pretrial delay violated his sixth amendment right to

a speedy trial. We shall assume for this purpose that

the delay exceeded that allowed under the Act and

the Plan, since such a violation may be considered in

assessing the merit of a constitutional speedy trial

claim. Jd. at 2758; Carini, supra, 562 F.2d at 148,

151-52. Nonetheless, we agree with the district

judge’s thorough and well-reasoned opinion in which

he concluded that DiFrancesco’s claim lacks merit.

United States v. DiFrancesco, Cr. 75-165 (W.D.N.Y.

April 3, 1978).

The controlling authority is of course Barker v.

Wingo, 407 U.S. 514 (1972), in which the Court

enunciated four factors to be considered in evaluat-

ing a claim of a denial of the right to a speedy trial.

These factors are (1) the length of the delay; (2)

the reason for the delay; (8) the defendant’s asser-

tion of his right; and (4) the existence of prejudice

to the defendant from the delay. Jd. at 530. Other

relevant circumstances also may be considered in con-

ducting a “difficult and sensitive balancing process,”

13a

id. at 533, “in which the conduct of both the prosecu-

tion and the defendant are weighed.” Jd. at 530.

The delay between indictment and trial in this

case was about 30 months. The government concedes

that this is sufficient to “trigger” a further investiga-

tion of the other factors. See id. at 530-31; Carini,

supra, 562 F.2d at 148-49. The reasons for the delay

were numerous, including trials of DiFrancesco on

state charges and the federal racketeering charges,

illness of his attorney and of Judge Burke, to whom

the case originally was assigned, the participation of

DiF rancesco’s attorney in a trial on behalf of another

client (during which time Judge Burke denied the

government’s request to remove the attorney from

this case), and the pendency of motions by the defen-

dants and the government. Although the government

bears the responsibility for some of the delay, in-

cluding that caused by “institutional factors” such as

overcrowding of the district court’s docket, Barker v.

Wingo, supra, 407 U.S. at 531, there is no sugges-

tion in the record of any deliberate attempt [by the

government] to delay the trial in order to hamper

the defense,” id., and it is apparent that DiFrancesco

was responsible for a substantial portion of the delay.

Moreover, the government repeatedly moved to set a

trial date, a fact which distinguishes this case from

United States v. Vispi, 545 F.2d 328, 334 (2d Cir.

1976). DiFrancesco, on the other hand, did not as-

sert his speedy tria! claim until the eve of trial.’

5 Two of DiFrancesco’s co-defendants, but not DiFrancesco

himself, moved for dismissal of the indictment in March 1977,

144

The final factor, prejudice to the defendant, also

fails to support DiFrancesco’s claim. He argues that

the death of a potential witness, Samuel DiGaetano,

caused substantial prejudice which can be attributed

to the delay. DiGaetano, attorney for severed co-

defendant Frank Valenti, allegedly would have tes-

tified, in direct contradiction of a government witness,

that Valenti was in Pittsburgh on the day of and the

day immediately preceding the bombings.*®

We find no error in the district court’s conclusion

that the evidence presented to it failed to support

the contention that DiGaetano would have given such

testimony. Moreover, although DiGaetano’s death ap-

parently was caused by a heart condition from which

he had suffered for a substantial period of time, Di-

Francesco made no effort to preserve by deposition

the testimony that purportedly would have been

given. In addition, as the district court noted, Di-

Francesco’s motion and supporting materials contain-

ed no affidavit from Valenti concerning his where-

abouts on October 11 and 12. Although Valenti was

too ill to undergo trial at the same time as his co-

defendants, there is no indication that his illness pre-

vented him from asserting, by affidavit or any other

alleging a violation of the Speedy Trial Act. These motions of

course do not evidence any assertion by DiFrancesco of his

right to a speedy trial.

6 The government contended at trial that Valenti arranged

and conducted a meeting in Rochester on October 11, 1979, at

which the bombings were planned, and that he also took part

in the bombings.

15a

means, his presence in Pittsburgh on the days in

question.’

Even if we assume then that the Plan and Act

were violated and weigh such violation in our

analysis of DiFrancesco’s claim, the balance tips

strongly against his contention that his right to a

speedy trial was violated.

DiFrancesco next argues that the court should

have severed or declared a mistrial as to Count II of

the indictment because of an error that was not dis-

covered until the conclusion of the presentation of

the government’s case. At that time it was learned

that the language contained in Count II of the copies

of the indictment possessed by counsel for both the

government and the defendants differed from that in

the copy filed with the court. The prosecutor mis-

takenly had distributed copies of an earlier draft of

the indictment, rather than the final, filed version.

The earlier draft, which all counsel had assumed to

be the actual indictment, named Valenti as the per-

son who caused the damage to the old Federal Build-

ing and named the other defendants, including Di-

7 The absence of evidence to support the claim of prejudice

perhaps is explained by Valenti’s subsequent plea of guilty,

entered on February 15, 1979 before Judge Curtin, to one

count of the indictment in this case. Valenti entered his plea

after the attorney for the Department of Justice had recited

a summary of the testimony which the government would

have offered if the case against Valenti had gone to trial. This

included testimony placing Valenti in Rochester on October

11 and 12. Valenti offered no objection or comment in re-

sponse to this summary.

16a

Francesco, as aiders and abettors.* The actual indic-

ment named all the defendants as principals and, in

addition, merely cited 18 U.S.C. § 2, the aiding and

abetting statute.”

8 Count II of the draft of the indictment charged:

THAT, on or about October 11 and 12, 1970, in the

Western District of New York, the Defendant herein,

FRANK J. VALENTI, unlawfully did wilfully cause the

wi'ful injury to and commission of depredations against

the property of the United States of America and the de-

partments and agencies thereof—namely the premises

known as the (old) Federal Building located at Church

and Fitzhugh Streets in the City of Rochester, New York

—the damages to the said premises having exceeded the

sum of $100:

AND, at the time and place aforesaid, RENE J. PIC-

CARRETO, SALVATORE GINGELLO, THOMAS

DIDIO, DOMINIC CELESTINO, EUGENE DI FRAN-

CESCO, ANGELO VACCARA and ANTHONY GIN-

GELLO, the Defendants herein, unlawfully did aid, abet,

counsel, command, induce and procure the commission

of the aforesaid offense, all of which was in violation of

the provisions of Section 1361 and 2 of Title 18 of the

United States Code.

® Count II of the filed indictment charged:

THAT, on or about October 11 and 12, 1970, in the

Western District of New York, the Defendants herein,

FRANK J. VALENTI, RENE J. PICCARRETO, SAL-

VATORE GINGELLO, THOMAS DIDIO, DOMINIC

CELESTINO, EUGENE DI FRANCESCO, ANGELO

VACCARO and ANTHONY GINGELLO unlawfully and

wilfully did injure and cause injury to and the commis-

sion of depredations against the property of the United

States of America and the departments and agencies

thereof—namely, the premises known as the (old) Fed-

eral Building located at Church and Fitzhugh Streets in

the City of Rochester, New York—the damages to the

17a

DiFrancesco complains that as a result of this con-

fusion, for which he bore no fault, he was convicted

unuer a theory at substantial variance from that

which he had a right to believe was the basis of the

case. He argues that the assumed indictment was

more narrowly drawn than the actual, and that

therefore, the substitution of the actual version was

forbidden by Stirone v. United States, 361 U.S. 212

(1960), which holds that a broadening of the charges

may only be accomplished by the grand jury itself.

The decision in Stirone, however, is not relevant to

the circumstances presented here. The Court relied in

Stirone on the violation of “the dezendant’s substan-

tial right to be tried only on charges presented in an

indictment returned by a grand jury.” Jd. at 217.

There is no question that the count on which Di-

Francesco ultimately was tried and convicted actually

was returned by the grand jury, thus protecting his

right to have his jeopardy limited to “offenses charg-

ed by a group of his fellow citizens acting in-

dependently of either prosecuting attorney or judge.”

Id. at 218. DiFrancesco’s real claim is that he was

not afforded notice of the charge on which he was

convicted. As the Supreme Court explained in Berger

v. United States, 295 U.S. 78, 82 (1935), one of the

reasons “that allegations and proof must correspond

is . . . the obvious [requirement] that the accused

shall be definitely informed as to the charges against

said premises having exceeded the sum of $100, all of

which was in violation of the provisions of Sections 1361

and 2 of Title 18 of the United States Code.

18a

him, so that he may be enabled to present his de-

fense and not be taken by surprise by the evidence

offered at the trial... .” The protection of this right

to notice of the charges requires a determination

“whether there has been such a variance as to ‘affect

the substantial rights’ of the accused.” Jd.; United

States v. Knuckles, 581 F.2d F.2d 305, 311 (2d Cir.),

cert. denied, 99 S.Ct. 581, 47 U.S.L.W. 3369 (No-

vember 27, 1978) ; see United States v. Garguilo, 554

F.2d 59, 63 (2d Cir. 1977).

No such prejudicial variance occurred here. Al-

though the assumed indictment was drawn somewhat

more narrowly than was the actual indictment, the

evidence introduced and the theory of culpability ad-

vanced by the government were not affected by the

difference. The government offered no evidence as to

who actually delivered the bomb to the Federal

Building. Its evidence supported the narrower charge

that Valenti “caused” the damage to the building

because he directed the conspiracy. Finally, the

government withdrew the aiding and abetting theory

and proceeded on the “Pinkerton” * theory that each

defendant was responsible for the substantive acts of

his co-conspirators carried out in furtherance of the

conspiracy. This theory would have been permissible

under either version of Count II.

DiFrancesco’s claim of prejudice is unsubstantiated.

He contends that, had he known the actual wording

of the indictment, he would have conducted addi-

tional cross-examination of Monachino and would not

10 Pinkerton Vv. United States, 328 U.S. 640, 646-47 (1946).

19a

have entered into certain stipulations. This conten-

tion is undermined, however, by counsel’s failure to

ask the trial court to recail Monachino for further

cross-examination and his failure to withdraw any of

the stipulations, which had not yet been given to the

jury. Since the difference in the two versions of the

indictment caused no prejudice to any substantial

rights of the accused, the district court did not err

in denying severance or a mistrial.

DiFrancesco’s final argument involves Count VI,

which accused him of unlawfully storing explosives.

He contends that this count should have been dis-

missed because there was no proof presented that the

storage continued after Febraury 12, 1971, the effec-

tive date of 18 U.S.C. § 842(j), which he was charged

with violating. We disagree.

The government offered evidence that, during the

summer of 1970, DiFrancesco brought two boxes that

contained dynamite, guns and various other items to

a house in which Joseph Turri lived. DiFrancesco re-

ceived permission from Turri to store the boxes in

the basement. On the night of October 11, DiFran-

cesco removed a burlap bag from the box and

brought it upstairs to Turri’s apartment, where a

meeting of the conspirators was held. There they

used some of the material in the bag—dynamite,

fuses and blasting caps—to construct the explosive

devices which were used in the bombings. After the

bombs had been made, the remaining material was

put back into the bag. DiFrancesco then left the

room with the bag and returned without it a short

time later. No one actually saw DiFrancesco return

20a

the bag containing the remaining explosives to the

basement. Turri testified that he moved the boxes

from the basement to the attic of his new residence

during the summer of 1971. Turri’s wife testified

that DiFrancesco called her at some time in 1973

and asked her to move the boxes from the attic to

another location, which she did.

Although none of the witnesses actually examined

the contents of the boxes after the effective date of

the statute, the jury properly could have inferred

that some of the explosives remained in the boxes

after that time. The evidence supported a logical in-

ference that, when DiFrancesco left the October 11,

1970 meeting for several minutes and returned with-

out the burlap bag, he had returned the bag contain-

ing the remaining explosive materials to the boxes in

the basement, and that the explosives remained in

the boxes while Turri moved them to his new

residence and until DiFrancesco asked that they be

moved again in 1973.

GOVERNMENT APPEAL OF THE SENTENCE

Prior to the start of DiFrancesco’s trial on the

racketeering counts, the government, in compliance

with 18 U.S.C. § 3575(a), filed a notice with the dis-

trict court alleging that DiFrancesco was a “dan-

gerous special offender,” as defined in 18 U.S.C.

§ 3575(e) (3) and (f). The filing of such a notice in-

dicates the government’s intention to seek, if the de-

fendant is convicted, imposition of an enhanced sen-

tence as authorized by 18 U.S.C. § 3575(b).

2la

On March 17, 1978, after DiFrancesco had been

convicted in both the racketeering and bombing

trials, Judge Burke held a sentencing hearing, re-

quired by § 3575(b), to obtain information which,

with that submitted during trial, would form the

basis for his determination whether DiFrancesco was

a dangerous special offender. On April 21, the court

issued findings of fact and its conclusion that Di-

Francesco was a dangerous special offender. United

States v. DeFrancesco, [sic] Cr. 76-45 (W.D.N.Y.

April 21, 1978). One week later, the court sentenced

DiFrancesco to concurrent ten year terms of impris-

onment on the two racketeering counts, to be served

concurrently with sentences totaling nine years which

had been imposed by Judge Pratt on the bombing

counts.

The government, under the authority granted by

18 U.S.C. § 3576," filed a notice of appeal from the

1118 U.S.C. § 3576 provides:

With respect to the imposition, correction, or reduction

of a sentence after proceedings under section 3575 of this

chapter, a review of the sentence on the record of the

sentencing court may be taken by the defendant or the

United States to a court of appeals. Any review of the

sentence taken by the United States shall be taken at

least five days before expiration of the time for taking

a review of the sentence or appeal of the conviction by

the defendant and shall be diligently prosecuted. The

sentencing court may, with or without motion and notice,

extend the time for taking a review of the sentence for a

period not to exceed thirty days from the expiration of

the time otherwise prescribed by law. The court shall

not extend the time for taking a review of the sentence

by the United States after the time has expired. A court

22a

sentence imposed by Judge Burke. DiFrancesco ar-

gues that the trial judge did not abuse his discretion

in setting the sentence and, moreover, that such por-

tion of § 3576 as authorizes the government to ap-

peal a sentence where the defendant nas not done so

extending the time for taking a review of the sentence

by the United States shall extend the time for taking a

review of the sentence or appeal of the conviction by the

defendant for the same period. The taking of a review

of the sentence by the United States shall be deemed the

taking of a review of the sentence and an appeal of the

conviction by the defendant. Review of the sentence shall

include review of whether the procedure employed was

lawful, the findings made were clearly erroneous, or the

sentencing court’s discretion was abused. The court of

appeals on review of the sentence may, after con-

sidering the record, including the entire presentence re-

port, information submitted during the trial of such

felony and the sentencing hearing, and the findings and

reasons of the sentencing court, affirm the sentence, im-

pose or direct the imposition of any sentence which the

sentencing court could originally have imposed, or re-

mand for further sentencing proceedings and imposition

of sentence, except that a sentence may be made more

severe only on review of the sentence taken by the United

States and after hearing. Failure of the United States to

take a review of the imposition of the sentence shall, upon

review or reduction of the sentence, foreclose imposition

of a sentence more severe than that previously imposed.

Any withdrawal or dismissal of review of the sentence

taken by the United States shall foreclose imposition of

a sentence more severe than that reviewed but shail not

otherwise foreclose the review of the sentence or the

appeal of the conviction. The court of appeals shall state

in writing the reasons for its disposition of the review

of the sentence. Any review of the sentence taken by the

United States may be dismissed on a showing of abuse

of the right of the United States to take such review.

23a

violates the double jeopardy clause of the fifth

amendment.” Since the government’s right to appeal

and thus our jurisdiction to consider the merits of

the sentence are dependent upon the constitutionality

of the statutory provision, see United States v. Wil-

son, 420 U.S. 332, 3389 (1975), we must immediately

confront the constitutional issue.”*

12 Although DiFrancesco asserts that § 3576 also runs afoul

of the due process and equal protection clauses of the fifth

amendment, he frames his argument solely in terms of double

jeopardy. In light of our disposition of the double jeopardy

claim, we need not consider whether other constitutional pro-

visions might also prohibit the government’s appeal.

13 Judge Haight argues in his opinion concurring in the

result that § 3575 was inapplicable to DiFrancesco and that

therefore it is unnecessary to reach the constitutional issue

because (1) § 3575(f) provides that a defendant is “danger-

ous” if a period of confinement longer than that provided for

such felony is required .. .”; (2) § 3575(b) provides for a

maximum term of twenty-five years; and (3) DiFrancesco

already was subject, without use of the dangerous special

offender sentencing provision, to a total sentence of forty

years, consisting of consecutive twenty-year terms for each

of the two counts of which he was convicted.

However, a defendant who has been convicted on more than

one count comes before the district court for sentencing on

each of the counts for which he has been convicted. The deter-

mination whether a defendant is a “special offender” for the

purpose of sentencing on each count depends upon whether

the particular felony in question satisfies the requirements

of § 3575(e). Moreover, the language of § 3575(f) refers to

a need for confinement longer than that provided for the

underlying “felony,” not “felonies.”

Therefore, the application of § 3575 depends on a particu-

larized determination with regard to each of the felonies for

which dangerous special offender sentencing is sought. In-

deed, the district court did consider each of DiFrancesco’s

24a

The concept of a government appeal to obtain an

increase in a valid, enforceable sentence * was un-

known to the American legal system throughout most

of this nation’s two hundred year history. Few states

have given their appellate courts any power to in-

crease a sentence, and in each instance where the

power exists, it may be exercised only if the defend-

ant has initiated the appellate proceeding by seek-

ing review of the sentence.» The United States, prior

to 1970, did not have statutory authority to seek an

two convictions separately and imposed separate, albeit con-

current, sentences for them. Since the maximum sentence of

twenty years for each of DiFrancesco’s two felony convictions

was less than the twenty-five year term available under

§ 3575, the district court properly could find that the statute

was applicable.

We express no opinion as to whether § 3575 authorizes the

imposition of consecutive sentences totaling more than twenty-

five years.

14 Where the original sentence imposed by the trial court is

invalid because of, e.g., failure to impose a mandatory mini-

mum penalty, the sentence may be corrected, even if doing

so increases the punishment, because otherwise “no valid and

enforceable sentence can be imposed at all.” Bozza v. United

States, 330 U.S. 160, 166 (1947). Here, however, the sentence

imposed by Judge Burke was within that legally authorized

and thus is enforceable.

15 As of 1978, Alaska, Colorado, Connecticut, Maine, Mary-

land, Massachusetts, Montana and New Hampshire allowed

appellate courts to increase a sentence, but only if the defend-

ant sought review. Citations to these states’ statutory provi-

sions are collected in Dunsky, The Constitutionality of In-

creasing Sentences on Appellate Review, 69 J. Crim. L. &

Criminology 19, 20 nn.7-8 (1978). This court knows of no

state which subsequently has authorized an increased sentence

upon prosecutorial appeal.

25a

increase in a sentence. In that year, however, Con-

gress enacted 18 U.S.C. § 3576, which provides that,

in a case involving a dangerous special offender, “a

review of the sentence on the record of the sentenc-

ing court may be taken by the defendant or the

United States to a court of appeals.” (Emphasis

added.) The court of appeals is authorized to review

“whether the procedure employed was lawful, the

findings made were clearly erroneous, or the sentenc-

ing court’s discretion was abused,” and then to af-

firm the sentence, impose any sentence that the trial

court could have imposed, or remand for further sen-

tencing proceedings.

The government has not rushed to make use of its

new power to seek review of sentences.’* Whether

this has resulted from doubts about the constitu-

tionality of the procedure, an extraordinary degree

of satisfaction with the sentences imposed under the

dangerous special offender provision, a decision to al-

locate prosecutorial resources to other tasks, or other

factors is of course only a matter of speculation, but

16 Such power also exists under 21 U.S.C. § 849, a similar

provision which deals with “dangerous special drug offenders.”

This provision also was enacted in 1970. Since that time,

legislation has been introduced in Congress, as part of the

proposed comprehensive revision of the federal criminal code,

to extend the government’s power to seek sentence review

beyond the dangerous offender context to encompass all cases

in which the sentence imposed by the district court varies by

some preestablished degree from proposed sentencing guide-

lines. See, e.g., § 3725 of the Criminal Code Reform Act of

1977, S. 1437, 95th Cong., Ist Sess. (1977). Such legislation

has not been enacted.

26a

this case is apparently the government’s first attempt

to obtain review of a sentence on appeal.’” Moreover,

the government’s primary response to DiFrancesco’s

attack on the constitutionality of § 38576 is not that

government-instigated review of a final sentence is

constitutional, but rather that the sentence imposed

by the district court is merely “tentative” and that

thus the defendant is not placed twice in jeopardy.

The language of the statute does not support the

construction urged by the government. Section 3575

(b) requires that, if the district court finds the de-

fendant to be a dangerous special offender, it “shall

sentence the defendant to an appropriate term not

to exceed twenty-five years... .”’ (Emphasis added. )

17The government has directed our attention to several

other appellate decisions dealing with aspects of the dangerous

special offender provisions. In none of these cases, however,

did the government seek review of a sentence imposed under

§ 3575. Rather, the government has appealed a district court’s

refusal to sentence a defendant under the special provisions

because, e.g., the district court ruled that the government had

failed to comply with § 3575’s notice provision, United States

v. Ilacqua, 562 F.2d 399 (6th Cir. 1977), cert. denied, 435 U.S.

917 (1978), or it held the statute to be unconstitutionally

vague. United States v. Stewart, 531 F.2d 326 (6th Cir.), cert.

denied, 426 U.S. 922 (1976). In these cases, the court of

appeals vacated the norenhanced sentences imposed under

the ordinary sentencing provisions and remanded for resen-

tencing under § 3575. Although the defendants thereby were

exposed to the possibility of an increased penalty upon re-

sentencing, this danger resulted from their voluntary deci-

sions to contest the use of § 3575 in the original proceedings.

Thus, these previous cases did not involve the double jeopardy

considerations raised by the government’s attempt to appeal

a sentence actually imposed under § 3575. See text, infra,

at 24.

27a

This command is not tentative; the sentence imposed

is effective immediately.'* This procedure contrasts

with that provided in, e.g., 28 U.S.C. § 636(b) (1),

whereby a trial judge may designate a magistrate

to conduct a hearing in certain matters and to sub-

mit “proposed” findings and recommendations, which

have no force until they have been reviewed by the

judge, who may accept, reject or modify them. Nor

is the procedure here similar to that provision in

18 U.S.C. § 4205(c) (formerly 18 U.S.C. § 4208(b)),

to which it is compared by the government. Section

4205(c) allows a court that desires more information

before imposing sentence to commit the defendant to

the custody of the Attorney General for a period

which will “be deemed to be for the maximum sen-

tence of imprisonment prescribed by law.” After

the court obtains the desired information, it then may

affirm the original commitment or impose a different

sentence which of course cannot exceed the aforemen-

tioned maximum prescribed term. “It is plain that

as far as the sentence is concerned the original order

entered under [§ 4205(c)] is wholly tentative,’ be-

cause “[t]he whole point of using [§ 4205(c)] is, in

its own language, to get ‘more detailed information

as a basis for determining the sentence to be im-

posed. ...’ (Emphasis supplied.)” United States v.

Behrens, 375 U.S. 162, 164-65 (1963). In contrast,

18 DiFrancesco is presently incarcerated in federal prison at

Atlanta, Georgia, serving the sentences imposed by Judge

Pratt and Judge Burke.

28a

the commitment ordered by the district court pur-

suant to § 3575 is neither tentative nor merely a

predicate to a sentence “to be imposed” by the court

of appeals.

That Congress, as the government argues, could

have written this statute in a manner analogous to

§ 4205(c) or in some other form which might not

raise problems of double jeopardy is an inadequate

response to the contention that the statute which

Congress did write is constitutionally infirm. “ ‘[A]p-

peals by the Government in criminal cases are some-

thing unusual, exceptional, not favored,’ at least in

part because they always threaten to offend the poli-

cies behind the double jeopardy prohibition.” Will

v. United States, 389 U.S. 90, 96 (1967) (citations

omitted). Therefore, we are obliged to construe

strictly the procedure that Congress has authorized

and to determine whether it, not some other, hypo-

thetical procedure, offends the double jeopardy

clause.”

19 We note that at least some of the alternative procedures

suggested by the government would raise issues that Congress

did not have to consider in enacting § 3576. For example, a

system whereby the district court tentatively imposed the

maximum permissible sentence with provision for review and

possible reduction by the court of appeals would likely result

in an appeal of the sentence being taken by the defendant

in every dangerous special offender cise. This would increase

the appellate caseload and in effect would reverse the usual

presumption of finality which is accorded district court orders

and judgments. Since we cannot know now Congress would

weigh these additional considerations, we must reject the

government’s suggestion that a failure to read § 3576 in the

29a

The plain command of the fifth amendment is that

no “person [shall] be subject for the same offense to

be twice put in jeopardy of life or limb.” Although

the phrase “life or limb” suggests only the most

serious of penalties, it has long been established that

it encompasses all penalties which may be imposed in

criminal proceedings. Breed v. Jones, 421 U.S. 519,

528 (1975) ; Ex parte Lange, 85 U.S. (18 Wall.) 168,

170-73 (1878). A defendant who has stood trial and

been convicted and sentenced by the district court

has been placed once in jeopardy. Had the position

advocated by Mr. Justice Holmes, dissenting in

Kepner v. United States, 195 U.S. 100, 184 (1904),

prevailed, the double jeopardy clause might present

no barrier to an increased sentence on appeal. Jus-

tice Holmes argued that “logically and rationally a

man cannot be said to be more than once in jeopardy

in the same cause, however often he may be tried.”

But the Supreme Court has never adopted this con-

cept of “continuing jeopardy,” which, although it

might have simplified the matter of government ap-

peals, United States v. Scott, 437 U.S. 82, 90 n. 6

(1978), would have greatly decreased the fifth

amendment’s protection against government oppres-

sion. The legislative history of § 3576 demonstrates

that Congress was cognizant of possible constitutional

objections to the provision, but that it concluded that

light of possible alternatives will result in frustration of the

-Congressional intent.

We of course express no opinion as to the constitutionality

of any alternative methods by which sentencing review might

be accomplished.

80a

Kepner’s rejection of the continuing jeopardy concept

should not apply to government appeal of a sentence

rather than of an acquittal. S. Rep. No. 617, 91st

Cong., Ist Sess. 95 (1969). We cannot perceive,

however, how a defendant who, after being sentenced

to several years’ imprisonment by a district court,

might be subject to imposition of a sentence of death

upon a governmental appeal, would be any less placed

twice in jeopardy of life or limb than was the de-

fendant in Kepner, who, after acquittal in the court

of first instance, was found guilty and sentenced to

imprisonment for slightly less than two years upon

appeal by the government. That § 3576 subjects a

defendant ‘‘merely” to a longer term of imprison-

ment, not to the actual loss of his life, is a difference

of degree, not principle, from the example given, for

the double jeopardy clause applies equally to all crimi-

nal penalties. See supra at 18. Under the statute

the government, dissatisfied with final judgment in

one court, seeks a more favorable result in another

tribunal. Therefore, the conclusion appears inescap-

able that to subject a defendant to the risk of sub-

stitution of a greater sentence, upon an appeal by

the government, is to place him a second time “in

jeopardy of life or limb.”

Since this is the first attempt to use a statute

allowing such an appeal, there are no precedents

directly on point.” But the substantial body of

20The existing and proposed provisions for government

appeal of sentences have generated a substantial amount of

comment in the legal literature. Some commentators have

argued that such provisions violate the guarantee against

sla

double jeopardy case law, although hardly charting a

straight-line path, see, e.g., United States v. Scott,

supra, 437 U.S. 82, overruling United States v. Jenk-

ims, 420 U.S. 858 (1975), supports the conclusion

that we reach.

The guarantee against double jeopardy has been

said to consist of three separate constitutional protec-

tions: (1) against a second prosecution for the same

offense after acquittal; (2) against a second prosecu-

tion for the same offense after conviction; and (3)

against multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717 (1969) .”

The interests underlying these protections are simi-

lar. United States v. Wilson, supra, 420 U.S. at 343.

They promote the goal of preserving the integrity

of final judgments, Scott, supra, 487 U.S. at 92, and

protect the individual against oppression by the gov-

double jeopardy, e.g., Spence. The Federal Criminal Code

Reform Act of 1977 and Prosecutorial Appeal of Sentences:

Justice or Double Jeopeidy?, 37 Maryland L. Rev. 739

(1978); Note, Tics in Jeopardy: Prosecutorial Appeals

of Sentences, 65 Virginia L. Rev. 325 (1977), while others

have contended that the provisions would be constitutional,

e.g., Dunsky, The Constitutionality of Increasing Sentences

on Appellate Review, 69 J. Crim. L. & Criminology 19

(1978), and at least one commentator has surveyed the

competing arguments and concluded that “the answer is

simply unclear.” Low, Special Offender Sentencing, 8 Am.

Crim.L.Q. 70, 91 (1970).

21In addition, it is now clear that a defendant’s “valued

right to have his trial completed by a particular tribunal,”

Wade v. Hunter, 336 U.S. 684, 689 (1949), is also encom-

passed by the double jeopardy clause. Crist v. Bretz, 437

U.S. 28, 36 (1978).

32a

ernment. Jd. at 99. More particularly, the protec-

tion against reprosecution after acquittal safeguards

the individual against the embarrassment, expense

and ordeal of repeated attempts by the government

to use its resources and power to convict him and

reduces the danger that an innocent defendant may

be found guilty. Serfass v. United States, 420 U.S.

377, 387-88 (1975); Green v. United States, 355

U.S. 184, 187-88 (1957). And, at the root of the

second and third of these protections is the idea,

especially relevant here, expressed in Wilson, supra,

420 U.S. at 343:

When a defendant has been once convicted and

punished for a particular crime, principles of

fairness and finality require that he not be sub-

jected to the possibility of further punishment

by being again tried or sentenced for the same

offense.

This concern was perhaps most clearly expressed in

Ex parte Lange, supra, 85 U.S. (18 Wall.) at 183:

For of what avail is the constitutional pro-

tection against more than one trial if there can

be any number of sentences pronounced on the

same verdict? Why is it that, having once been

tried and found guilty, he can never be tried

again for that offence? Manifestly it is not the

danger or jeopardy of being a second time found

guilty. It is the punishment that would legally

follow the second conviction which is the real

danger guarded against by the Constiution. But

if, after judgment has been rendered on the con-

viction, and the sentence of that judgment exe-

33a

cuted on the criminal, he can be again sentenced

on that conviction to another and different pun-

ishment a second time, is the constitutional re-

striction of any value? Is not its intent and its

spirit in such a case as much violated as if a

new trial had been had, and on a second convic-

tion a second punishment inflicted?

The argument seems to us irresistible, and we

do not doubt that the Constitution was designed

as much to prevent the criminal from being

twice punished for the same offence as from be-

ing twice tried for it.

The prohibition against multiple punishment ” has

been so strongly felt, that, although the question of

increasing a valid sentence has never been squarely

presented, numerous courts, including the Supreme

Court, have emphatically stated in dictum that such

a procedure would be impermissible. In United States

v. Benz, 282 U.S. 304 (1931), the Court was con-

22 The principle that the double jeopardy clause bars multi-

ple punishment has not been undermined by the Supreme

Court’s statements that the prohibition of the double jeopardy

clause “is not against being twice punished, but against being

twice put in jeopardy.” United States v. Ball, 163 U.S. 662, 669

(1896), and “is written in terms of potential or risk of trial

and conviction, not punishment.” Breed v. Jones, 421 U.S. 519,

532 (1975) (emphasis in original), quoting Price v. Georgia,

398 U.S. 323, 329 (1970). In each of those cases, the Court

was not limiting the scope of double jeopardy protection, but

instead was rejecting arguments that the clause prohibited

only multiple punishment. The Court held that the double

jeopardy clause prohibits retrial where the defendant has

been the subject of an express, Ball, er implied, Price, acquit-

tal, or of a juvenile proceeding in which he was found guilty

but where no disposition was entered. Breed.

34a

fronted with the question whether a district court

has the power, upon petition by a defendant, to re-

duce the sentence previously imposed on him. The

Court noted the then-prevailing general rule that

judgments, decrees and orders could be amended,

modified or vacated by the court that made them,

during the term at which they were made. It stated

that this rule applied to criminal cases, “‘provided the

punishment be not augmented,” zd. at 307, and held

that because the district court had decreased, not in-

creased, the punishment, it had acted within its

power.” The unanimous Court then stated that the

distinction between decreasing and increasing a sen-

tence was based “upon the ground that to increase

the penalty is to subject the defendant to double

punishment for the same offense in violation of the

Fifth Amendment to the Constitution. ...” Id.

In Murphy v. Massachusetts, 177 U.S. 155 (1900),

the Supreme Court rejected the argument that the

double jeopardy clause was offended when a defen-

dant, whose original sentence had been vacated at

his behest because the statute under which it was

imposed was unlawfully applied, was resentenced

under the appropriate statute to a term longer than

the original one. The Court, however, distinguished

the case before it from one in which “the [trial]

court undertook to impose in invitum a second or

23 Rule 35 of the Federal Rules of Criminal Procedure now

permits a district court to reduce a sentence within 120 days

after the sentence is imposed or the conviction is affirmed

on appeal.

35a

additional sentence for the same offense, or to substi-

tute one sentence for another.” Id. at 160 (emphasis

added). And again in Reid v. Covert, 354 U.S. 1, 37

n. 68 (1957), Mr. Justice Black’s plurality opinion,

discussing the application of the Bill of Rights to

military trials, stated:

In Swaim v. United States, 165 U.S. 5538, this

Court held that the President or commanding of-

ficer had power to return a case to a court-

martial for an increase in sentence. If the double

jeopardy provisions of the Fifth Amendment

were applicable such a practice would be uncon-

stitutional.

In Walsh v. Picard, 446 F.2d 1209 (1st Cir. 1971),

cert. denied, 407 U.S. 921 (1972), the court upheld

the Massachusetts statute which allows a reviewing

court to increase as well as decrease the sentence of

a defendant who seeks sentence review. But the

court explicitly noted that “the Massachusetts proce-

dure does not permit the state to reopen the ques-

tion of sentence on its own initiative. Were it to do

so, it would of course violate the proscription against

double jeopardy.” Jd. at 1211. Several other courts of

appeal, including this one, have stated that a sentence

may not be increased, at least where, as here, the

punishment already has been partly suffered, United

States v. Chiarelia, 214 F.2d 8388, 841 (2d Cir.),

cert. denied, 348 U.S. 902 (1954); Oxman v. United

States, 148 F.2d 750, 753 (8th Cir.), cert. denied,

325 U.S. 887 (1945); Frankel v. United States, 131

F.2d 756, 758 (6th Cir. 1942) ; Rowley v. Welch, 114

36a

F.2d 499, 501 n. 3 (D.C. Cir. 1940), and the defen-

dant has not challenged the sentence. United States

v. Coke, 404 F.2d 836, 845 (2d Cir. 1968) (en banc).

Although such dicta of course are not legally bind-

ing, their number and the high authority of their

sources offer impressive evidence of the strength and

prevalence of the view that the double jeopardy

clause bars an increase in the sentence imposed by

the district court.

The conclusion reached here does not conflict with

the Supreme Court’s decision in North Carolina v.

Pearce, supra, 395 U.S. 711. There the Court held

that the double jeopardy clause did not prohibit im-

position of a greater sentence on retrial than had

been imposed at the original trial of a defendant,

where the defendant succeeded in getting his first

conviction set aside. The Court relied in Pearce on

United States v. Ball, 163 U.S. 662 (1896), which

had established that ‘this constitutional guarantee

imposes no limitations whatever upon the power to

retry a defendant who has succeeded in getting his

first conviction set aside,” Pearce, supra, 395 U.S. at

720 (emphasis in original), and on Stroud v. United

States, 251 U.S. 15 (1919), which held that a corol-

lary of that power to retry was the power to impose

any legally authorized sentence.

Although various rationales have been advanced

and rejected for the rule that a defendant may be

retried after reversal of an original conviction, see

Burks v. United States, 437 U.S. 1, 15 n. 9 (1978),

the Court most recently adopted, in its unanimous

37a

opinion in Burks, id. at 15, the justification offered

in United States v. Tateo, 377 U.S. 463, 466 (1964):

It would be a high price indeed for society to

pay were every accused granted immunity from

punishment because of any defect sufficient to

constitute reversible error in the proceedings

leading to conviction.

This rationale,** however, does not fully explain the

result in Pearce since a defendant would not be

granted immunity from punishment if the sentence

on retrial were limited to that imposed at the first

trial. Rather, Pearce depends too on a second line of

reasoning, that the double jeopardy protection simply

has no relevance where “the orginal conviction has,

at the defendant’s behest, been wholly nullified and

the slate wiped clean.” Pearce, supra, 395 U.S. at

721. This outcome does not result from any “waiver”

of double jeopardy protections, as was suggested in

Trono v. United States, 199 U.S. 521, 533 (1905),

and rejected in Green v. United States, supra, 355

U.S. at 191-92, but instead is compelled by the fact

that “the Double Jeopardy Clause, which guards

against Government oppression, does not relieve a

24 Cf. Arizona V. Washington, 484 U.S. 497, 509 (1978)

(failure to allow retrial after mistrial declared because of

“manifest necessity” would deprive society of its ‘““one complete

opportunity to convict those who have violated its laws’’) ;

Bozza Vv. United States, 330 U.S. 160, 166 (1947) (invalid

sentence may be corrected even if doing so necessitates in-

crease in punishment because otherwise “no valid and enforce-

able sentence can be imposed at all” and a convicted criminal

will go free).

88a

defendant from the consequences of his voluntary

choice.” Scott, supra, 437 U.S. at 99.

Here, however, neither factor that militated

against the application of the double jeopardy clause

to resentencing in Pearce is present. There is not the

slightest danger than DiFrancesco will go unpunished

if the government’s appeal is dismissed. The ten-year

terms imposed on him by Judge Burke are valid and

enforceable, and in fact are already being served.

Moreover, DeFrancesco has made no “voluntary

choice” that has subjected him to jeopardy for a sec-

ond time. He faces the risk of an increased sentence

solely because the government desires a_ second

chance to obtain a sentence satisfactory to it.”

We do not deny the existence of legitimate govern-

mental interests that might be served by allowing

the government to appeal a sentence, e.g., improved

25The government correctly does not contend that Di-

Francesco has exposed himself to an increased sentence by

appealing his conviction. Section 3576 distinguishes between

an appeal of a conviction, which brings before us only the

propriety of the process by which the defendant was con-

victed, and a review of a sentence. The statute allows the

government to seek review of a sentence without regard to

whether the defendant has chosen to appeal.

That it might be constitutionally permissible to impose

consent to sentence review as a condition to exercise of a

defendant’s right to appeal, cf. Walsh v. Picard, 446 F.2d

1209 (1st Cir. 1971) (constitutional to allow increase as well

as decrease in sentence when defendant petitions for sentence

review), a question which we need not decide, is irrelevant

here, where § 3576 imposes no such condition. Considerations

of due process would require that a defendant be informed of

such a consequence of his decision to appeal.

39a

uniformity in sentencing. But such interests must be

pursued in alternative ways that do not conflict with

the fifth amendment’s guarantee against double

jeopardy. ‘“‘[W]here [, as here,] the Double Jeopardy

Clause is applicable, its sweep is absolute. There are

no equities to be balanced, for the Clause has

declared a constitutional policy, based cn grounds

which are not open to judicial examination.” Burks v.

United States, supra, 437 U.S. at 11 n. 6. To subject

Eugene DeFrancesco [sic] for a second time to the

risk of the entire range of penalties that the law pro-

vides for his crimes would violate that constitutional

policy. The appeal by the government therefore must

be dismissed.

The judgments of conviction are affirmed, and the

appeal by the government is dismissed.

HAIGHT, District Judge (concurring in the result on

the government’s appeal).

I concur in Judge Smith’s opinion affirming Di-

Francesco’s convictions, and agree that the govern-

ment’s appeal must be dismissed. However, I would

base that dismissal upon the non-constitutional

ground of the inapplicability of 18 U.S.C. § 3576 in

the circumstances of this case.

In United States v. Batchelder, —— U.S. , 47

U.S.L.W. 4611, 4613 (No. 78-776, decided June 4,

1979), the Supreme Court reiterated the maxim “that

statutes should be construed to avoid constitutional

questions,” going on to state:

40a

“This ‘cardinal principle’ of statutory construc-

tion ... is appropriate only when an alternative

interpretation is ‘fairly possible’ from the lan-

guage of the statute. Swain v. Pressley, 430

U.S. 872, 378 n.11 (1977); see Crowell v. Ben-

son, 285 U.S. 22, 62 (1982); United States v.

Sullivan, 332 U.S. 689, 693 (1948); Shapiro v.

United States, 385 U.S. 1, 31 (1948).”

While neither DiFrancesco nor the government

raised the issue below, this “cardinal principle” of

statutory construction permits a court to consider

sua sponte whether the sentencing procedures in

§§ 3575 and 3576 can be interpreted so as to avoid

the constitutional question. Clearly such an interpre-

tation is “fairly possible’ from the language of the

statute.

Governmental appeal of a sentence under § 3576 is

available only in respect of an individual properly

proceeded against in the district court as a “‘danger-

ous special offender” under § 3575(a). To come with-

in the statute, the offender must be both “special” as

defined by § 3575(e), and “dangerous” as defined by

§ 3575(f). DiFrancesco qualifies as “special” under

§ 3575(e) (3). He is “dangerous” under § 3575(f)

1 Section 3575 provides:

“(e) A defendant is a special offender for purposes of

this section if—

(3) such felony was, or the defendant committed such

felony in furtherance of, a conspiracy with three or more

other persons to engage in a pattern of conduct criminal

under applicable laws of any jurisdiction, and the de-

fendant did, or agreed that he would, initiate, organize,

4la

if, and only if, “a period of confinement longer than

that provided for such felony is required for the pro-

tection of the public from further criminal conduct

by the defendant.” (emphasis added).

Section 3575(b) provides in pertinent part:

“If it appears by a preponderance of the infor-

mation, including information submitted during

the trial of such felony and the sentencing hear-

ing and so much of the presentence report as

the court relies upon, that the defendant is a

dangerous special offender, the court shall sen-

tence the defendant to imprisonment for an ap-

propriate term not to exceed twenty-five years

and not disproportionate in severity to the maxi-

mum term otherwise authorized by law for such

felony. Otherwise it shall sentence the defendant

in accordance with the law prescribing penalties

for such felony.”

I construe the statute to provide the district judge

with an additional capacity to impose a sentence of

up to twenty-five years in cases where the underly-

ing statute, standing alone, would not permit a term

of such duration. Stated conversely, if the period of

confinement provided for the felony by the underlying

statute equals or exceeds twenty-five years, the dan-

plan, finance, direct, manage, or supervise all or part of

such conspiracy or conduct or give or receive a bribe or

use force as all or part of such conduct.”

The district court found that the conspiratorial elements of

the crimes for which DiFrancesco was convicted satisfied the

requirements of the statute. A.51-56.

42a

gerous special offender statute has no office to per-

form.’

If that is the proper interpretation of the danger-

ous special offender statute, it could not apply to Di-

2 The legislative history is not voluminous on the point, but

such indications as there are favor this interpretation. The

Assistant Attorney General, Criminal Division, writing to the

House Judiciary Committee on the wording of § 3575(b), and

particularly on the point of whether the statute should read

“shall” sentence or “may” sentence, said in part:

“We think that the term ‘shall’ as used here is appro-

priate. It conforms with the language generally used in

the sentencing provisions of title 18, which has not pre-

viously been misconstrued as providing for a mandatory

minimum sentence. Furthermore, inasmuch as an offender

in any of the three defined categories is to be considered

‘dangerous’ only when the court finds that a longer prison

term than that may be imposed for the felony of which

he has been convicted is required to protect the public

from further criminal conduct on his part, it would be

incongruous for the court to fail to sentence a ‘dangerous’

offender to any prison term at all. Therefore, a provision

that some such term of imprisonment ‘shall’ be imposed

is appropriate for the purposes of the title. Jf a court

finds that the usual maximum term for the felony, or

any lesser term, is all that should be imposed, by defini-

tion the court could not find the defendant to be a danger-

ous special offender. The proposed change from ‘shall’ to

‘may’ therefore, would serve no purpose.” 2 U.S. Code

Cong. & Admin. News 4065-6 (1970) (emphasis added).

The House Report says of § 3575(f) :

“Subsection (f) provides that a defendant is ‘dangerous’

if confinement longer than that ordinarily provided is

required to protect the public from further crime by

him.” Jd. at 4039.

I construe the phrase “ordinarily provided” to mean the

penalties provided by the underlying felony statute.

43a

Francesco. DiFrancesco was prosecuted under the

racketeering statute, 18 U.S.C. §§ 1961 et seg. He

was convicted of a substantive offense under § 1961

(c),* and conspiracy under §1961(d).* The dis-

trict court had the unquestioned power under the un-

derlying statute, entirely without regard to the dan-

gerous special offender statute, to sentence Dif ran-

cesco to two consecutive 20 year terms, for a total of

40 years,® or 15 years longer than the maximum

term permitted by § 3576. The district court’s dis-

cretionary power to impose consecutive, rather than

3 That section provides:

“Tt shall be unlawful for any person employed by or as-

sociated with any enterprise engaged in, or the activities

of which affect, interstate or foreign commerce, to con-

duct or participate, directly or indirectly, in the conduct

of such enterprise’s affairs through a pattern of racke-

teering activity or collection of unlawful debt.”

* That section provides:

“It shall be unlawful for any person to conspire to vio-

late any of the provisions of subsections (a), (b), or

518 U.S.C. § 1963 provides in pertinent part:

“(a) Whoever violates any provision of section 1962 of

this chapter shall be fined not more than $25,000 or im-

prisoned not more than twenty years, or both, and shall

forfeit to the United States (1) any interest he has

acquired or maintained in violation of section 1962, and

(2) any interest in, security of, claim against, or prop-

erty or contractual right of any kind affording a source

of influence over, any enterprise which he has established,

operated, controlled, conducted, or participated in the

conduct of in violation of section 1962.”

44a

concurrent, sentences upon a defendant convicted on

more than one count has been recognized for so long °

that it may fairly be regarded as inherent in the

“period of confinement . . . provided for such felony”

by the underlying statute. In urging sentencing

judges to impose consecutive sentences where the

circumstances permit, prosecutors can and frequently

do make the same arguments (the defendant is dan-

gerous, the public must be protected) that the dan-

gerous special offender statute contemplates.

Such arguments could have been made in the case

at bar, and a sentence passed in excess of the maxi-

mum permitted by § 3576, entirely on the basis of

the underlying felony statute, and the district court’s

well-established discretionary power to impose sepa-

rate sentences on separate counts and make them run

consecutively. I interpret §§ 8575 and 3576 to be in-

applicable in those circumstances and would dismiss

the government’s appeal on that ground, leaving the

® See United States v. Dougherty, 269 U.S. 360, 363 (1926),

adopting the reasoning of Neely v. United States, 2 F.2d 849,

852-3 (2d Cir. 1924), which in turn relied upon the statement

in Ex Parte DeBara, 179 U.S. 316, 322 (1900) that a court,

by exercising such sentencing options, “may express its views

of the criminality of a defendant... .”

I do not find in the legislative history of the special danger-

ous offender act specific reference to the trial judge’s ability

to impose consecutive sentences in multiple count indictments,

but the Congress must surely have been aware of so estab-

lished a power.

45a

constitutional question for a case in which it cannot

be avoided.’

TIf my interpretation of the statute is wrong, and the

constitutional question is unavoidably presented by this case,

then I am in complete agreement with Judge Smith’s schol-

arly demonstration that the statute violates the double

jeopardy clause of the fifth amendment.

46a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

sixth day of August one thousand nine hundred and

seventy-nine.

Present: Hon. J. JOSEPH SMITH

Circuit Judge

Hon. THOMAS J. MESKILL

Circuit Judge

HON. CHARLES S. HAIGHT

District Judge

78-1250

78-1369

78-1371

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE-APPELLANT

Vv.

EUGENE DIFRANCESCO,

DEFENDANT-APPELLANT-APPELLEE

Appeal from the United States District Court

for the Western District of New York

This cause came on to be heard on the transcript

of record from the United States District Court for

47%

the Western District of New York, and was argued

by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the judg-

ments of said District Court be and they hereby are

affirmed and the appeal by the United States dis-

missed in accordance with the opinion of this court.

A. Daniel Fusaro

Clerk

/s/ Arthur Heller

By: ARTHUR HELLER

Deputy Clerk

48a

APPENDIX C

SUPREME COURT OF THE UNITED STATES

No. A-183

UNITED STATES, PETITIONER

EUGENE DIFRANCESCO

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel

for petitioner,

IT IS ORDERED that the time tor filing a petition

for writ of certiorari in the above-entitled cause be,

and the same is hereby, extended to and including

October 5, 1979.

/s/ Thurgood Marshall

Associate Justice of the

Supreme Court of the

United States

Dated this 28 day of August, 1979

+d OG. S. GOVERNMENT PRINTING OFFICE; 1979 301845 93

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