Appendix — Brooklier v. United States

APPENDIX A.

Order.

United States Court of Appeals, for the Ninth Circuit.

United States of America, Plaintiff-Appellee, vs. Dom-

inic Phillip Brooklier and Samuel Orlando Sciortino,

Defendants-Appellants. No. 80-1455.

Filed: Sept. 8, 1980.

Before: FLETCHER, ALARCON, and CANBY, Circuit

Judges.

The district court’s denial of the defendants’ motion to

dismiss is affirmed insofar as it rejects their double jeopardy

defense. Under the test established in United States v. Block-

burger, 284 U.S. 299 (1932), the defendants could have

been charged in separate counts of a single indictment with

both conspiracy to violate RICO and with substantive

violations of RICO. Jannelli v. United States, 420 U.S. 770

(1975); United States v. Rone, 598 F.2d 564 (9th Cir. 1979),

cert. denied, sub nom. Little v. United States, 100 S. Ct.

1345 (1980). The Blockburger test applied to post-

conviction prosecutions. //linois v. Vitale, 100 S. Ct. 2260

(1980); Brown v. Ohio, 432 U.S. 161 (1977); United States

v. Solano, 605 F.2d 1141 (9th Cir.), cert. denied, 444 U.S.

1020 (1980); United States v. Snell, 592 F.2d 1083 (9th

Cir.), cert. denied, 442 U.S. 944 (1979).

We express no opinion about the district court's denial

of the defendant’s motion to dismiss insofar as it rejects

their contention that their plea bargain was breached. That

issued is not raised in this interlocutory appeal.

An opinion may follow.

cue Re

Chapter 96—Racketeer Influenced and

Corrupt Organizations.

§ 1961. Definitions

As used in this chapter—

(1) ‘‘racketeering activity’’ means (A) any act or

threat involving murder, kidnaping, gambling, arson,

robbery, bribery, extortion, or dealing in narcotic or

other dangerous drugs, which is chargeable under State

law and punishable by imprisonment for more than one

year; (B) any act which is indictable under any of the

following provisions of title 18, United States Code:

Section 201 (relating to bribery), section 224 (relating

to sports bribery), suctions 471, 472, and 473, relating

to counterfeiting), section 659 (relating to theft from

interstate shipment) if the act indictable under section

659 is felonious, section 664 (relating to embezzlement

from pension and welfare funds), sections 891-894

(relating to extortionate credit transactions), section

1084 (relating to the transmission of gambling infor-

mation), section 1341 (relating to mail fraud), section

1343 (relating to wire fraud), section 1503 (relating to

obstruction of justice), section 1510 (relating to ob-

struction of criminal investigations), section 1511 (re-

lating to the obstruction of State or local law enforce-

ment), section 1951 (relating to interference with

commerce, robbery, or extortion), section 1952 (re-

lating to racketeering), section 1953 (relating to inter-

state transportation of wagering paraphernalia), section

1954 (relating to unlawful welfare fund payments),

section 1955 (relating to the prohibition of illegal gam-

bling businesses), sections 2314 and 2315 (relating to

interstate transportation of stolen property), sections

2341-2346 (relating to trafficking in contraband ciga-

rettes), sections 2421-24 (relating to white slave

traffic), (C) any act which is indictable under title 29,

United States Code, section 186 (dealing with restric-

aia

tions on payments and loans to labor organizations) or

section 501(c) (relating to embezzlement from union

funds), or (D) any offense involving fraud connected

with a case under title | 1; fraud in the sale of securities,

or the felonious manufacture, importation, receiving,

concealment, buying, selling, or otherwise dealing in

narcotic or other dangerous drugs, punishable under

any law of the United States;

(2) ‘*State’’ means any State of the United States,

the District of Columbia, the Commonwealth of Puerto

Rico, any territory or possession of the United States,

any political subdivision, ur any department, agency,

or instrumentality thereof;

(3) ‘‘person’’ includes any individual or entity ca-

pable of holding a legal or beneficial interest in prop-

erty;

(4) ‘‘enterprise’’ includes any individual, partner-

ship, corporation, association, or other legal entity,

and any union or group of individuals associated in

fact although not a legal entity;

(5) ‘‘pattern of racketeering activity’’ at least two

acts of racketeering activity, one of which occurred

after the effective date of this chapter and the last of

which occurred within ten years (excluding any period

of imprisonment) after the commission of a prior act

of racketeering activity;

(6) ‘‘unlawful debt’’ means a debt ‘A) incurred or

contracted in gambling activity which was in violation

of the law of the United States, a State or political

subdivision thereof, or which is unenforceable under

State or Federal law in whole or in part as to principal

or interest because of the laws relating to usury, and

(B) which was incurred in connection with the business

of gambling in violation of the law of the United States,

a State or political subdivision thereof, or the business

of lending money or a thing of value at a rate usurious

PaaS Sah

under State or Federal law, where the usurious rate is

at least twice the enforceable rate;

(7) ‘‘racketeering investigator’’ means any attor-

ney or investigator so designated by the Attorney Gen-

eral and charged with the duty of enforcing or carrying

into effect this chapter;

(8) ‘‘racketecring investigat’on’’ means any in-

quiry conducted by any racketeering investigator for

the purpose of ascertaining whether any person has

been involved in any violation of this chapter or of any

final order, judgment, or decree of any court of the

United States, duly entered in any case or proceeding

arising under this chapter;

(9) ‘‘documentary material’’ includes any book,

paper, document, record, recording, or other material;

and

(10) ‘*Attorney General’’ includes the Attorney

General of the United States, the Deputy Attorney

General of the United States, any Assistant Attorney

General of the United States, or any employee of the

Department of Justice or any employee of any depart-

ment or agency of the United States so designated by

the Attorney General to carry out the powers conferred

on the Attorney General by this chapter. Any depart-

ment or agency so designated may use in investigations

author’zed by this chapter either the investigative pro-

visions of this chapter or the investigative power of

such department or agency otherwise conferred by law.

Added Pub.L. 91-452, Title IX, § 901(a), Oct. 15, 1970,

84 Stat. 941, and amended Pub.L. 95-575, § 3(c), Nov. 2,

1978, 92 Stat. 2465; Pub.L. 95-598, Title Ill, § 314(g),

Nov. 6, 1978, 92 Stat. 2677.

§ 1962. Prohibited activities

(a) It shall be unlawful for any person who has received

any income derived, directly or indirectly, from a pattern

of racketeering activity or through collection of an unlawful

ma AE

debt in which such person has participated as a principal

within the meaning of section 2, title 18, United States

Code, to use or invest, directly or indirectly, any part of

such income, or the proceeds of such income, in acquisition

of any interest in, or the establishment or operation of, any

enterprise which is engaged in, or the activities of which

affect, interstate or foreign commerce. A purchase of se-

curities on the open market for purposes of investment, and

without the intention of controlling or participating in the

control of the issuer, or of assisting another to do so, shall

not be unlawful under this subsection if the securities of the

issuer held by the purchaser, the members of his immediate

family, and his or their accomplices in any pattern of rack-

eteering activity or the collection of an unlawful debt after

such purchase do not amount in the aggregate to one percent

of the outstanding securities of any one class, and do not

confer, either in law or in fact, the power to elect one or

more directors of the issuer.

(b) It shall be unlawful for any person through a pattern

of racketeering activity or through collection of an unlawful

debt to acquire or maintain, directly or indirectly, any in-

terest in or control of any enterprise which is engaged in,

or the activities of which affect, interstate or foreign

commerce.

(c) It shall be unlawful for any person employed by or

associated with any enterprise engaged in, or the activities

of which affect, interstate or foreign commerce, to conduct

or participate, directly or indirectly, in the conduct of such

enterprise’s affairs through a pattern of racketeering activity

or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to

violate any of the provisions of subsections (a), (b), or (c)

of this section.

Added Pub.L. 91-452, Title IX, § 901(a), Oct. 15, 1970,

84 Stat. 942.

alti

§ 1963. Crimiial penalties

(a) Whoever violates any provision of section 1962 of

this chapter shall be fined not more that $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 property or con-

tractual 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.

(b) In any action brought by the United States under

this section, the district courts of the United States shall

have jurisdiction to enter such restraining order or prohi-

bitions, or to take such other actions, including, but not

limited to, the acceptance of satisfactory performance

bonds, in connection with any property or other interest

subject to forfeiture under this section, as it shall deem

proper.

(c) Upon conviction of a person under this section, the

court shall authorize the Attorney General to seize all prop-

erty or other interest declared forfeited under this section

upon such terms and conditions as the court shall deem

proper. If a property right or other interest is not exercisable

or transferable for value by the United States, it shall expire,

nd shall not revert to the convicted person. All provisions

of law relating to the disposition of property, or the proceeds

from the sale thereof, or the remission or mitigation of

forfeitures for violation of the customs laws, and the com-

promise of claims and the award of compensation to in-

formers in respect of such forfeitures shall apply to forfei-

tures incurred, or alleged to have been incurred, under the

provisions of this section, insofar as applicable and not

inconsistent with the provisions hereof. Such duties as are

mM, AA

imposed upon the collector of customs or any other person

with respect to the disposition of property under the customs

laws shall be performed under this chapter by the Attorney

General. The United States shall dispose of all such property

as soon as commercially feasible, making due provision for

the rights of innocent persons,

Added Pub.L. 91-452, Title IX, § 901(a), Oct. 15, 1970,

84 Stat. 943,

Order.

United States of America, Plaintiff-Appellee, v. Dominic

Phillip Brooklier and Samuel Orlando Sciortino,

Defendants-Appellants. No, 80-1455.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 18, 1980.

Decided Sept. 8, 1980.

Opinion Filed Jan, 23, 1981,

Certiorari Denied March 9, 1981.

See 101 S.Ct. 1514.

Defendants moved to have charge dismissed under double

jeopardy clause. The United States District Court for the

Central District of California, Terry J. Hatter, Jr., J., entered

judgment denying the motion. On defendants’ interlocutory

appeal, the Court of Appeals, Fletcher, Circuit Judge, held

that Government could charge defendant with violations of

Racketeer Influenced and Corrupt Organization Act, in-

cluding conspiracy to extort from particular victim, and,

after conviction, charge defendants with RICO violations

including actual extortion from such victim where Govern-

ment initially could have charged defendants with both con-

spiracy and underlying offense of extortion.

Affirmed.

Donald B. Marks, Anthony P. Brooklier, Marks Brook-

lier, Beverly Hills, Cal., for defendants-appellants.

James Henderson, U. S. Dept. of Justice, Los Angeles,

Cal., for plaintiff-appellee.

Appellee from the United States District Court for the

Central District of California,

Before FLETCHER, ALARCON, and CANBY, Circuit

Judges.

FLETCHER, Circuit Judge:

—9—

In 1974 Dominic Brooklier and Samuel Sciortino were

indicted for several counts of violating the Racketeer Influ-

enced and Corrupt Organization Act (RICO), 18 U.S.C,

§§ 1961-1968 (1976). Count I charged them with conspiring

to conduct an extortion ring in violation of 18 U.S.C.

§ 1962(d) (1976).' One specific charge was that the defen-

dants had conspired to extort money from Sam Farkas, a

bookie. Several overt acts, including those resulting in the

actual extortion from Farkas, were cited as being in fur-

therance of the conspiracy. On April 19, 1975, pursuant to

a plea bargain, the defendants pled guilty to Count I and

the other charges were dismissed.

Four years later the defendants were again indicted for

violating RICO. Count II of the new indictment charged

them with violations of 18 U.S.C. § 1962(c) (1976).’ Most

of the charges related to threats, extortion, and murder oc-

curring after the 1975 conviction, One charge, however,

revived the Sam Farkas incident. The government alleged

that:

In or about the Spring of 1973, in Los Angeles, Cal-

ifornia, the defendants extorted and caused the extor-

tion of United States currency from Sam Farkas

Both the 1974 and 1979 charges related to a single incident

of extortion from Farkas.

'18 U.S.C. § 1962(d) (1976) makes it unlawful to conspire to violate

the substantive provisions of RICO,

"18 U.S.C. § 1962(c) (1976) provides:

It shall be unlawful for any person employed by or associated

with any enterprise engaged in . . . interstate or foreign com-

merce, to conduct or participate, directly or indirectly, in the

conduct of such enterprise's affairs through a pattern of racke-

teerin oti » ems

18 U.S.C. § 1961(1)(A) (1976) defines ‘racketeering activity’’ as in-

cluding extortion, 18 U.S.C. § 1961(5) (1976) defines a ‘*pattern’’ of

racketeering activity as at least two acts thereof,

pee eon

The defendants moved to have Count II dismissed under

the double jeopardy clause insofar as it related to the Farkas

extortion because they had already been convicted of con-

spiring to extort. The district judge denied the motion. The

defendants brought this interlocutory appeal under Abney

v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d

651 (1977).°

The double jeopardy clause of the fifth amendment states

that ‘‘No person .. . shall . . . be subject for the same

offence to be twice put in jeopardy ... .’’ It establishes

three distinct protections: (1) against a second prosecution

for the same offense after acquittal; (2) against a second

prosecution for the same offense after conviction; (3) against

multiple punishments for the same offense. North Carolina

v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23

L.Ed.2d 656 (1969). This appeal implicates the second pro-

tection. The only question presented is whether the gov-

ernment may charge a defendant with RICO violations in-

cluding conspiracy to extort from Sam Farkas, and, after

conviction, charge him with RICO violations including

actual extortion from Sam Farkas.

The government insists that the Blockburger test is dis-

positive. In Blockburger v. United States, 284 U.S. 299,

52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court

considered whether several offenses charged in a single

prosecution were sufficiently different to permit the impo-

sition of multiple sentences without violating the double

jeopardy clause. It established’a test emphasizing a com-

parison of the elements of the offenses:

*The defendants also contend that the government violated its agree-

ment to dismiss all charges related to the Farkas incident in return for

a guilty plea to one charge. This argument is not raised by this inter-

locutory appeal.

pay | Aw

The applicable rule is that where the same act or trans-

action constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether

there are two offenses or only one, is whether each

provision requires proof of a fact which the other does

not.

284 U.S. at 304, 52 S.Ct. at 182. The government’s con-

tention in the instant case rests on two propositions. The

first is that Blockburger would have permitted the govern-

ment to charge the defendants in a single prosecution with

both violating RICO by conspiring to extort from Farkas

and with violating RICO by actually extorting from Farkas.

The second is that the Blockburger test applies without

modification to all post-conviction prosecutions. The first

proposition is irrefutable, the second problematic.

In /annelli v. United States, 420 U.S. 770, 95 S.Ct. 1284,

43 L.Ed.2d 616 (1975), the Supreme Court held that under

Blockburger a defendant could be charged in a single in-

dictment with conspiracy and with the underlying substan-

tive offense. Our court applied Jannelli to a RICO prose-

cution in United States v. Rone, 598 F.2d 564 (9th Cir.

1979), cert. denied sub nom. Little v. United States, 445

U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). There-

fore, it is clear that the government initially could have

charged defendants Brooklier and Sciortino with both con-

spiracy and the underlying substantive offense. See United

States v. Wylie, 625 F.2d 1371 at 1381-82 (9th Cir. 1980).

The more difficult question is whether the Blockburger

**same elements’”’ test applies without modification to post-

conviction prosecutions, i. e., government attempts to bring

charges that could have been joined with earlier charges but

were not.

In analyzing the breadth of Blockburger’s application, it

is important to be mindful of the three distinct protections

pale, |,

embraced by the double jeopardy clause. Since Blockburger

itself involved several charges brought in a single prose-

cution, it directly implicated only the protection against

multiple punishments. The inquiry in such cases is limited

to ascertaining the extent of the punishment authorized by

Congress. See United States v. Wylie, 625 F.2d at 1381

(9th Cir. 1980).

A post-conviction indictment, in contrast, implicates not

only the protection against multiple punishments but also

the protection against a second prosecution after conviction.

This protection arises from classic double jeopardy concerns

that a defendant not be forced to ‘‘run the gauntlet’ twice.

Even if the government could have initially prosecuted a

defendant for multiple offenses, further analysis is necessary

if it charges him with only one and holds the others in

reserve. Policies of assuring finality, sparing defendants the

financiai and psychological burdens of repeated trials, pre-

serving judicial resources, and preventing prosecutorial

misuse of the indictment process all come into play. See

generally J. Sigler, Double Jeopardy 156 (1969); The

Supreme Court, 1976 Term, 91 Harv.L.Rev. 70, 108

(1977).

Many commentators, drawing on these policies, suggest

that the Blockburger test should be applied only to single

prosecutions and not to successive ones. Regarding the lat-

ter, they advocate requiring joinder of all charges arising

from the same transaction. Charges arising from a single

transaction would have to brought in a single prosecution;

SET Saal

those omitted would be waived.‘ See e. g., J. Sigler, Double

Jeopardy 222-28 (1969); Note, The Double Jeopardy

Clause as a Bar to Reintroducing Evidence, 89 Yale L.J.

962, 967-69, 976-81 (1980); The Supreme Court, 1976

Term, 91 Harv.L.Rev. 70, 106-114 (1977). This approach,

labelled the ‘‘same transaction’’ test, has been adopted by

the drafters of the ABA Criminal Justice Standards, ABA

Standards Relating to Joinder and Severance § 1.3(c) (Ap-

proved Draft 1968), and the Model Penal Code, American

Law Institute, Model Penal Code § 1.08-2(c) (Proposed

Official Draft 1962). Its most eloquent spokesman is Justice

Brennan. In Abbate v. United States, 359 U.S. 187, 79

S.Ct. 666, 3 L.Ed.2d 729 (1959), for example, he stated

that:

to allow successive prosecutions of the several of-

fenses, rather than merely the imposition of consecu-

tive sentences after one trial of those offenses, would

enable the Government to ‘‘wear the accused out by

a multitude of cases with accumulated trials.’’ Repet-

itive harassment in such a manner goes to the heart of

the Fifth Amendment protection.

359 U.S. at 200, 79 S.Ct. at 673 (concurring opinion) (ci-

tation omitted). See also Ashe v, Swenson, 397 U.S. 436,

448-60, 90 S.Ct. 1189, 1196-1202, 25 L.Ed.2d 469 (1970)

*Proponents of the same transaction test admit that there would be

problems, albeit manageable ones, with defining a single transaction.

See, e. g., Ashe v. Swenson, 397 U.S. 436, 454 n.8, 90 S.Ct. 1189,

1199 n.8, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring). They also

commonly advocate building certain safeguards into the test. For ex-

ample, it has been suggested that successive prosecutions for offenses

arising from a single transaction should not constitute double jeopardy

if the separate trials are caused by the defendant's tactical moves, or

if the second trial is due to the discovery of new evidence. See, e. g.,

Note, The Double Jeopardy Clause as a Bar to Reintroducing Evidence,

89 Yale L.J. 962, 977 (1980).

aidtihn.

(Brennan, J. concurring).° Cf. Note, The Double Jeopardy

Clause as a Bar to Reintroducing Evidence, 89 Yale L.J.

962, 967-69, 976-81 (1980) (advocating a variant of the

double jeopardy test whereby facts alleged in one prose-

cution could not be alleged in a later one).

The Supreme Court has never expressly rejecteed the

same transaction test. It has, however, declined to strictly

apply the Blockburger test to post-acquittal prosecutions,

thereby indicating that Blockburger is not dispositive of all

successive prosecutions. Ashe v. Swenson, 397 U.S. 436,

90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).°

Several circuit courts have nevertheless concluded that

the Blockburger test governs all double jeopardy claims save

those precisely within the ambit of Ashe v. Swenson. Among

them is our own circuit. See, e. g., United States v. Solano,

605 F.2d 1141 (9th Cir. 1979), cert. denied sub nom. Eng-

land v. United States, 444 U.S. 1020, 100 S.Ct. 677, 62

L.Ed.2d 652 (1980); United States v. Snell, 592 F.2d 1083

(9th Cir.), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61

L.Ed.2d 315 (1979); Brown v. Alabama, 619 F.2d 376 (Sth

Cir. 1980); United States v. Clark, 613 F.2d 391 (2d Cir.

1979); United States v. Brown, 604 F.2d 557 (8th Cir.

1979). These conclusions are based on an interpretation of

Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d

187 (1977), in which the defendant was convicted of *‘joy-

riding’ and then prosecuted for auto theft. State law defined

joyriding’’ as a lesser included offense of auto theft. The

‘Justice Brennan has espoused the same transaction test in a series

of concurrences and dissents, which he list in his dissent to the denial

of certiorari in Thompson v. Oklahoma, 429 U.S. 1053, 1054, 97 S.Ct.

7680, 50 L.Ed.2d 770 (1977).

*In Ashe v. Swenson, Ashe allegedly robbed six poker players in a

single incident. He was first prosecuted for robbing four of the gamblers.

After acquittal he was prosecuted for robbing the other two. The Court

held that principles of collateral estoppel barred the second trial.

—

Court held that the double jeopardy clause barred indictment

for a greater offense after conviction for a lesser included

offense, expressly applying the analysis set forth in Block-

burger. The Court, though, did not declare the Blockburger

test dispositive of all post-conviction prosecutions. In fact,

the Brown holding is a very narrow one that follows directly

from Blockburger. At no time could Brown have been

charged with both joyriding and auto theft. The former is

a lesser included offense of the latter; to charge him with

both, even in a single prosecution, would violate the Block-

burger test. If Blockburger barred simultaneous prosecu-

tion, a fortiori it barred successive prosecutions. 432 U.S.

at 166, 97 S.Ct. at 2225.

Because Brown does not expand on Blockburger, it sheds

no light on the standard which should be applied to suc-

cessive prosecutions. Although Blockburger is a useful start-

ing point, such cases involve dangers which seem to require

interposition of additional protections. See Jordan v. Vir-

ginia, No. 78-6540 (4th Cir. June 2, 1980). We do not

believe that Brown should be interpreted as necessarily re-

quiring strict application of the Blockburger test to all post-

conviction prosecutions. We also recognize many advan-

tages of the same transaction test espoused by Justice Bren-

nan and might well be moved to adopt it if we had free

rein.’

’The two Ninth Circuit cases interpreting Brown as applying Block-

burger to all post-conviction prosecutions may have read Brown more

broadly than was necessary. In United States v. Solano, 605 F.2d 1141

(9th Cir. 1979), cert. denied sub nom. England v. United States, 444

U.S. 1020, 100 S.Ct. 677, 62 L.Ed.2d 652 (1980), Solano had been

prosecuted in 1968 for manufacturing drugs and conspiring to do so,

and had been convicted. He was prosecuted in 1979 for RICO conspiracy

charges that included, as overt acts, transactions subsumed by the prior

conviction. The court rejected Solano’s double ry swe. contention,

applying the Blockburger test under the authority of Brown and finding

no double jeopardy because the offenses comprised different elements.

In United States v. Snell, 592 F.2d 1083 (9th Cir.), cert. denied, 442

U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979), Snell was prosecuted

for attempted extortion and conspiracy to commit bank robbery, and

(footnote continued on following page)

pan”:

We believe such a course is precluded, however, not only

by the decisions of this circuit in United States v. Solano

and United States v. Snell, but also by the Supreme Court’s

recent decision in //linois v. Vitale, - 47 U.S. 410, 100 S.Ct.

2260, 65 L.Ed.2d 228 (1980). In Vitale, the defendant

struck and killed two small children while driving an au-

tomobile. He was immediately cited for failing to slow to

avoid pedestrians, and he pled guilty. Soon thereafter he

was charged with voluntary manslaughter. He interposed

a double jeopardy defense, and the Court remanded for a

state court determination of the legal relationship between

the two crimes. In so doing, the Court interpreted Brown

as importing the Blockburger test to all post-conviction pros-

ecutions, describing it as ‘‘the principal test for determining

whether two offenses are the same for the purposes of bar-

ring successive prosecutions.’’ 100 S.Ct. at 2265. The dis-

position in Vitale also seems to reject the same transaction

test. Under that test there would be no need to remand,

since the two offenses for which Vitale was successively

prosecuted clearly arose from the same transaction.

was convicted. When the conspiracy conviction was reversed on appeal

the government began a new prosecution for attempted bank solaiey.

Snell contended that the new prosecution contravened the double jeop-

ardy clause, asking the court to adopt Justice Brennan’s same transaction

test. The court declined the invitation, applied the Blockburger test, and

held that double jeopardy did not lie. The court rejected Justice Bren-

nan’s same transaction h because it ‘*has not been adopted by

the Supreme Court or this court; in [Walker v. Loggins, 608 F.2d 731

(9th Cir. 1979)] we reaffirmed our adherence to the traditional Block-

burger standard.’’ 592 F.2d at 1085. The fact that the Supreme Court

had not adopted the Brennan approach is not controlling, however, since

the Court had never considered a case squarely posing the issue. Walker

v. Loggins does not appear to be on point; it is a basic Blockburger

case involving a single ution for several offenses. See also United

States v. Snell, 627 F.2d 186 (9th Cir. 1980) (rejecting Snell's attempt

to reassert his double jeopardy claim).

mS", e'.

The Vitale Court did not discuss the difficult questions

raised by post-conviction prosecutions and we doubt that

it intended to resolve them sub silentio. Nevertheless, we

read Vitale as a tacit endorsement of the view that the Block-

burger test, and nothing more, governs all post-conviction

prosecutions. We must, of course, follow the Supreme

Court’s dictates however they are expressed. If the law of

successive prosecutions is to be modified or clarified in this

or some other more appropriate case, it will have to be by

the Supreme Court and not by this panel.

The Blockburger test would permit simultaneous prose-

cution of the two charges at issue here. It was therefore

permissible for the government to prosecute them succes-

sively. The judgment of the district court is affirmed."

*The defendants rely heavily on /n re Nielsen, 131 U.S. 176, 95

S.Ct. 672, 33 L.Ed. 118 (1889). In that case Nielsen, a Mormon, was

wey eres for bigamous cohabitation, convicted, and then prosecuted

or committing adultery the day after the cohabitation period ended.

The court reversed the second conviction on double jeopardy grounds.

Defendants Brooklier and Sciortino assert that Nielsen establishes a

generic exception to the Blockburger test, one that encompasses their

case. They base this assertion on a footnote to the Brown opinion in

ory oy court discussed Nielsen. 432 U.S. at 166 n.6, 97 S.Ct. at

6 n.6.

The defendants read far too much into Nielsen. It is an aberrational

case from which it is impossible to discern a general rule, and the

Court's footnote in Brown ry acknowledges that Nielsen might not

fit the precise parameters of Blockburger. In the text of the Brown

opinion, moreover, the Court implied that Nielsen is generally consistent

with the Blockburger formulation, citing it for the ition that when

the same elements test bars a single prosecution for several offences it

also bars their successive ution. 432 U.S. at 166, 97 S.Ct. at

2225. See also Illinois v. Vitale, 100 S.Ct. 2260, 2267 (1980); United

States v. Snell, 592 F.2d 1083, 1085 n.2 (9th Cir.), cert. denied, 442

U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979). As we have noted

supra, “?. 622, the defendants in the instant case could have been

prosecuted in a single trial for the two offenses at issue here. Conse-

+ wenger even if Nielsen establishes a generic exception to Blockburger,

exception does not apply here.

ct an

APPENDIX B.

Opinion of the Court of Appeals.

In the United States Court of Appeals for the Ninth Cir-

cuit.

United States of America, Plaintiff-Appellee, v. Dominic

Phillip Brooklier, Samuel Orlando Sciortino, Louis Tom

Dragna, Michael Rizzitello, and Jack Locicero, Defendants-

Appellants.

D.C. No. CR 79-126(A). C.A. Nos. 81-1045, 81-1046,

81-1047, 81-1048, 81-1049 (Consolidated).

Filed: September 3, 1982.

Appeal from the United States District Court for the Cen-

tral District of California. Terry J. Hatter, Jr., District

Judge, Presiding.

Argued and Submitted: January 5, 1982.

Decided:

Before: KENNEDY and SCHROEDER, Circuit Judges,

and SOLOMO}!,* Senior District Judge.

PER CURIAM:

Appellants are members of La Cosa Nostra, a secret na-

tional organization engaged in a wide range of racketeering

activities, including murder, extortion, gambling, and loan-

sharking. They appeal their convictions for violating the

Racketeer Influenced and Corrupt Organizations (RICO)

statute, 18 U.S.C. §1962 and the Hobbs Act, 18 U.S.C.

§§1951(a) and 2.

At a seven-week trial, the government showed that be-

ginning in 1972, members of the Los Angeles ‘‘family’’

extorted money from pornographers and bookmakers.

*Hon. Gus J. Solomon, Senior United States District Judge for the

District of Oregon, sitting by designation.

pe wee

Among their targets were Sam Farkas, Theodore Gaswirth,

and Reuben Sturman. They also obtained money from

Forex, an FBl-operated pornography business.

Much of the evidence consisted of testimony by extortion

victims, including tie FBI agents who ran the Forex op-

eration. Aladena ‘‘Jimmy the Weasel’’ Fratianno, an FBI

informant, described the internal organization and opera-

tions of La Cosa Nostra as an ongoing enterprise engaged

in racketeering. Fratianno gave details on meetings, orders,

and actions of the entire organization, including plans to

murder Frank Bompensiero, an informant. He linked the

individual acts of extortion to the leaders of La Cosa Nostra.

The indictment charged Brooklier, Sciortino, Dragna,

Locicero, and Rizzitello (appellants) with racketeering in

violation of RICO,' extortion,’ obstruction of jus-

'18 U.S.C. $1962(c) & (d) provide:

(c) It 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 conduct or participate,

a or indirectly, in the conduct of such enterprise's affairs

a a pattern of racketeering activity or collection of unlawful

t.

(d) It shall be unlawful for any person to conspire to violate

any of the provisions of subsections (a), (b), or (c) of this section.

**Enterprise’’ and ao of racketeering activity’’ are defined in

18 U.S.C. §1961(4), (5):

(4) ‘‘enterprise’’ includes any individual, partnership, cor-

poration, association, or other legal entity, and any union or group

of individuals associated in fact although not a legal entity;

(5) ‘‘pattern of racketeering activity’’ requires at least two

acts of racketeering activity, one of which occurred after the

effective date of this chapter and the last of which occurred within

ten years (excluding any period of imprisonment) after the com-

mission of a prior act of racketeering activity;

718 U.S.C, §1951 provides, in part:

(a) Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in com-

merce, by robbery or extortion or attempts or conspires so to do,

or commits or threatens ome violence to any person or

erty in furtherance of a plan or purpose to do anything in violation

of this section shall be fined not more than $10,000 or imprisoned

not more than twenty years, or both.

(b) ’ As used in this section—

(2) The term ‘‘extortion’’ means the obtaining of

from another, with his consent, induced by wrongful use of

Me» be ieee, ee i Le |, ee eee ee

—_20—

tice,’ and aiding and abetting.‘

Count | charged all five appellants with conspiracy to

commit RICO; the jury convicted all except Sciortino on

this count. Count 2 charged all the appellants with a sub-

stantive violation of RICO; the jury convicted all of them.

Count 3 charged that all appellants extorted money from

Theodore Gaswirth and from his pornography businews; all

of the appellants were acquitted on this count. Count 4

charged appellants Rizzitello and Locicero with extorting

money from Forex; the jury convicted both of them. Count

5 charged Brooklier, Sciortino, and Dragna with obstruction

of justice through the murder of Frank Bompensiero, an

informant; the jury acquitted all of them on this count.

Most of the issues raised on appeal challenge the rack-

eteering acts on which the RICO convictions are based. The

actual or threatened force, violence, or fear, or under color of

official right.

(3) The term ‘‘commerce’’ means commerce within the

District of Columbia, or any Territory or Possession of the

United States; all commerce between any point in a State,

Territory, Possession, or the District of Columbia and any point

outside thereof; all commerce between points within the same

State through any place outside such State; and all other com-

merce over which the United States has jurisdiction.

*18 U.S.C. §1510 provides, in part:

**Whoever injures any person in his person or property on

account of the giving by such person or by any other person of

any such information to any criminal investigator—

Shall be fined not more than $5,000, or imprisoned not more

than five years, or both.

“18 U.S.C. §2 provides:

(a) Whoever commits an offense against the United States or

aids, abets, counsels, commands, induces or procures its com-

mission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if di-

rectly performed by him or another would be an offense against

the United States, is punishable as a principal.

wad, Y Ye

convictions on Count | are based on the racketeering ac-

tivities charged in Counts 3, 4, and 5, and the extortion

from Reuben Sturman and the Sovereign News Company

in Cleveland, Ohio. The convictions on Count 2 are based

on the same activities as Count | and the extortion of money

from San Farkas in Los Angeles, California. The RICO

counts allege that each of the defendants has engaged in,

or conspired to engage in, at least two acts of ‘‘racketeer-

ing,’’ as that term is defined by 18 U.S.C. §1961(1).

I.

DOUBLE JEOPARDY

In 1974, Dominic Brooklier and Samuel Sciortino were

indicted for RICO violations. The indictment included a

charge that in 1973, they conspired to conduct an extortion

ring. One specific charge alleged that they conspired to

extort money from Sam Farkas, and several specific acts

by which they extorted money from Farkas were cited. In

April, 1975, based on a plea agreement, Brooklier and

Sciortino pleaded guilty to this conspiracy count; the other

counts were dismissed.

In 1978, Brooklier and Sciortino were again indicted.

Count 2 of the new indictment charged a RICO violation,

but unlike the 1974 indictment, they were charged with a

violation of a different subsection.’ Although most of the

charges in the 1980 indictment refer to acts which occurred

after the 1975 conviction, one of the acts was the same act

set forth in the 1974 indictment to which those appellants

‘The 1974 indictment charged these appellants under 18 U.S.C.

§$1962(d), which makes it unlawful to engage in a conspiracy to conduct

an extortion ring. The 1980 indictment charges the appellants with

violation of 18 US.C. §1962(c), which makes it unlawful to participate

in an enterprise affecting interstate commerce through a pattern of rack-

eteering activity.

PR, | ee

pleaded guilty. It charged they ‘‘extorted and caused the

extortion of United States currency from Sam Farkas.”’

Brooklier and Sciortino moved to dismiss the Farkas in-

cident in Count 2 on the ground of double jeopardy. The

district Court denied the motion and appellants filed an

interlocutory appeal. This court affirmed the district court

and held under Blockburger v. United States, 284 U.S. 299

(1932), there was no double jeopardy. United States v.

Brooklier, 637 F.2d 620 (9th Cir. 1980).

Although we have discretion to modify this interlocutory

decision, see United States v. Snell, 627 F.2d 186, 188 (9th

Cir. 1980), we decline to do it. Blockburger permits the

government to charge the defendants with two or more of-

fenses arising from the same transaction when the offenses

have distinct elements. Under Blockburger, if appellants

had not been indicted and convicted in 1974, the government

in the 1980 indictment could have charged Brooklier and

Sciortino with both conspiracy to violate RICO and with

a substantive RICO offense both partly based on the Farkas

extortion. Therefore, their prior convictions on a RICO con-

spiracy charge, which contained the Farkas extortion, do

not bar conviction for a substantive RICO violation based

partly on the same Farkas extortion. United States v. Solano,

605 F.2d 1141, 1143 (9th Cir. 1979), cert. denied, sub

nom. England v. United States, 444 U.S. 1020 (1980).

The double jeopardy challenge is rejected.

Il.

THE 1975 PLEA AGREEMENT

Brooklier and Sciortino contend the 1975 plea agreement

prevents the government from including the Farkas extortion

in any subsequent indictment. The government, on the other

hand, contends the plea agreement was limited to the abate-

ment of pending and planned federal or state investigations

aoe, , ae

and charges. The district court agreed with the government’s

interpretation of the plea agreement.

The findings of a district court on the meaning of a plea

agreement are reviewable under the ‘clearly erroneous’’

standard. United States v. Krasn, 614 F.2d 1229, 1233 (9th

Cir. 1980). We have examined the record and are of the

opinion the district court’s interpretation of the plea agree-

ment is reasonable and is not clearly erroneous.

There is no merit to appellants’ contention that the 1980

indictment should be dismissed because it was obtained in

violation of the government’s policy against multiple pros-

ecutions for the same transactions. Petite v. United States,

361 U.S. 529 (1960). The Petite doctrine relates to the

Justice Department’s internal position that successive in-

dictments will not ordinarily be based on the same conduct

in order to avoid unnecessary multiple prosecutions. Except

in extraordinary circumstances, it is a policy not reviewable

by the courts. United States v. Snell, 592 F.2d 1083, 1087-

88 (9th Cir.), cert. denied, 442 U.S. 944 (1979); United

States v. Welch, 572 F.2d 1359, 1360 (9th Cir.), cert.

denied, 439 U.S. 842 (1978).

Ii.

VINDICTIVE PROSECUTION

The 1978 indictment, which did not mention the Farkas

extortion, was dismissed on motion of the appellants be-

cause of voting irregularities in the grand jury. In the sub-

sequent indictment, the Farkas extortion was added in Count

2.

Brooklier and Sciortino contend the addition of the Farkas

extortion in the subsequent indictments violates the vin-

dictiveness doctrine. The doctrine of presumed vindictive-

ness applies when the Government increases the severity

of the charges against the defendant under circumstances

=n

that pose a ‘‘realistic or reasonable likelihood of prosecu-

torial conduct that would not have occurred but for hostility

or a punitive animus towards the defendant because he has

exercised his specific legal rights.’’ United States v. Gal-

legos-Curiel, No. 81-1258, slip op. at 3230, 3234-35 (9th

Cir. July 21, 1982). Here, the 1978 indictment was replaced

by an indictment containing fewer charges and lighter pen-

alties. The vindictiveness doctrine does not apply. United

States v. Rosales-Lopez, 617 F.2d 1349, 1357 (9th Cir.

1980).

Even if the addition of the Farkas extortion somehow

subjected Brooklier and Sciortino to a greater risk of pun-

ishment, vindictiveness could not be presumed. No reason-

able likelihood of vindictiveness arises when the prosecutor

increases the charges prior to trial, because he ‘‘may uncover

additional information that suggests a basis for further pros-

ecution or he simply may come to realize that information

possessed by the State has a broader significance.’’ United

States v. Goodwin, 102 §. Ct. 2485 (1982). The prosecutor’s

initial charging decision should not freeze future conduct

and the Government may reevaluate the socictal interest in

prosecution prior to trial, id, at 12-13; Gallegos-Curiel, slip

op. at 3235-37, especially when, as here, ‘‘the prosecutor

is required by court order to obtain a new indictment’’ and

thus ‘‘will necessarily have to review the evidence and

reconsider what charges to present to the grand jury.”’

United States v. Banks, slip Op. at 3443, 3447 (9th Cir.

July 29, 1982) (emphasis in original). The district court

correctly dismissed the appellants’ vindictive prosecution

claim.

IV.

DEFENDANTS’ RIGHT TO TESTIFY

Brooklier and Sciortino contend the Farkas extortion

charge precluded them from testifying in their own defense

because their 1975 guilty pleas would have required them

sR

to admit their participation in the Farkas extortion based on

the 1975 guilty plea.

This contention is incorrect. They accepted sentencing

under North Carolina v. Alford, 400 U.S. 25, 37 (1970),

and did not admit their guilt. They only consented to the

imposition of the penalty for that count. They could have

testified to their reasons for entering into the 1975 plea

agreement.

Appellants’ decision not to risk cross-examination was

purely tactical. Among other reasons, they wanted to avoid

impeachment by evidence of prior convictions. ‘‘The con-

stitution does not forbid every government-imposed choice

in the criminal process that has the effect of discouraging

constitutional rights.’’ Jenkins v. Anderson, 447 U.S. 231,

236 (1980).

The Farkas extortion charges was properly included in

the 1980 indictment.

V.

AMBIGUITY OF THE INDICTMENT

Appellants contend that Count | of the indictment, which

charges defendants with a RICO conspiracy, contains am-

biguous and legally impossible pleadings. They assert that

the racketeering activities set forth in Count | include con-

spiracy charges, and that a ‘‘conspiracy to conspire’’ to

commit acts of extortion is an illogical and ambiguous

allegation.

The essence of a RICO conspiracy is not an agreement

to commit racketeering acts, but an agreement to conduct

or participate in the affairs of an enterprise through a pattern

of racketeering. 18 U.S.C. $1962(c); United States v.

Zemek, 634 F.2d 1159, 1170 N.15 (9th Cir. 1980). A

‘*pattern of racketeering activity’’ is expressly defined as

—=26——

at least two acts of racketeering activity. 18 U.S.C.

$1961(5).

Conspiracies or attempts can serve as the underlying rack-

eteering activities because 18 U.S.C. $1961(1)(B) defines

“racketeering activity’’ as including those offenses indict-

able under 18 U.S.C. $1951. Section 1951, in turn, makes

punishable attempts or conspiracies to obstruct, delay, or

affect commerce by robbery, extortion or physical violence.

Thus, the statutory language of sections 1962, 1961 and

1952 allows for the indictment as written. A series of con-

spiracies and failed attempts constitutes a ‘‘pattern of rack-

eteering activity’’ within the meaning of 18 U.S.C. §1961(5),

even if no racketeering offense is completed. The district

court in its instructions adequately explained these distinc-

tions. In addition, appellants have failed to show that this

so-called ambiguity has prejudiced them.

VI.

FAILURE TO DISMISS THE FOREX EXTORTION CHARGE

Count 4 charges the appellants with an attempt and con-

spiracy to extort money from Forex, the undercover business

operated by FBI agents. The Forex activities are among the

racketeering acts supporting the RICO violations in Counts

1 and 2.

Two of the Forex extortion payments were made in Cal-

ifornia and the third in Nevada. Appellants contend that the

California payments provide no basis for federal jurisdiction

under the Hobbs Act, 18 U.S.C. $1951. They assert a lack

of nexus with interstate commerce, because the FBI business

was a fiction, and had no actual or potential effect on in-

terstate commerce. They also contend that the Nevada pay-

ment did not meet jurisdictional requirements because the

federal agents demanded payment in Nevada for the sole

purpose of manufacturing jurisdiction.

Pa ae

Judge Pregerson, then a district judge, rejected these con-

tentions on the ground that factual impossibility is no de-

fense to an inchoate offense. United States v. Brooklier,

459 F.Supp. 476 (C.D. Cal. 1978). His analysis has now

been adopted by this court, United States v. Bagnariol, 665

F.2d 877, 895-96 (9th Cir. 1981), as well as the Third

Circuit in United States v. Jannotti, 673 F.2d 578, 592-94

(3d Cir. 1982) (en banc), pet. for cert. filed, 50 U.S.L.W.

3961 (June 8, 1982), which held that an actual potential

effect on interstate commerce was not a jurisdictional pre-

requisite for a conviction of conspiracy to violate the Hobbs

Act.

Appellants also contend that the federal agents ‘‘manu-

factured jurisdiction’’ by requiring payment in Nevada.

They rely on United States v. Archer, 486 F.2d 670, 682

(2d Cir. 1973), in which agents placed telephone calls from

another state in order to transform a local bribery into a

federal crime. Here, both the appellants and federal agents

engaged in activities of an interstate character. Jurisdiction

had already been established by the nature of the activities

themselves.

We hold there was sufficient nexus with interstate com-

merce to satisfy federal jurisdictional requirements.

VIL.

DIVISIBILITY OF FOREX EXTORTION PLAN

Defendants contend that the Forex extortion, consisting

of three separate payments, is really a single offense which

the FBI extended over a period of time in order to satisfy

the ‘‘pattern of racketeering’’ requirement under the RICO

Statute.

In United States v. Tolub, 309 F.2d 286, 289 (2nd Cir.

1962), the court held that each acceptance of payment by

the defendant during the period of an extortion scheme con-

ii

stituted a separate act of extortion. See also, United States

v. Addonizio, 451 F.2d 49, 59-60 (3rd Cir.), cert. denied,

405 U.S. 936 (1972). Here, each payment resulted from

appellants’ initial threats in an ongoing extortion scheme

and each payment was a separate act of racketeering within

the meaning of 18 U.S.C. §1961(1).

Vill.

ADMISSION OF DRAGNA’S ORAL STATEMENTS

From 1969 until 1976, Dragna had a number of conver-

sations with FBI Agent John Nance in which Nance at-

tempted to develop Dragna as an informant. In 1976, Dragna

was subpoenaed to appear before a federal grand jury.

Dragna cailed Nance for help. Nance told Dragna that if he

cooperated, their conversations might be kept confidential.

The time for appearance was continued, but Dragna was not

promised immunity. Dragna’s statements during his con-

versations with Nance were admitted at trial.

To protect the voluntariness of a waiver of Fifth Amend-

ment rights, the government must keep its promise of im-

munity. Shotwell Manufacturing Co. v. United States, 371

U.S. 341, 347 (1963). However, the mere threat of a grand

jury subpoena for failure to cooperate does not constitute

an offer of immunity. Statements made in confidence are

not immune absent an unconditional promise of confiden-

tiality. See Matter of Wellins, 627 F.2d 969, 972 (9th Cir.

1980). The district court found that there was no binding

agreement, and that the statements were admissible against

Dragna. We agree.

Dragna’s contention that he was deprived of his Fourth

Amendment rights because the Grand Jury subpoena was

a ‘‘ruse designed to cultivate him as an informant’’ has no

merit. No evidence was offered to support this contention.

Dunaway v. New York, 442 U.S. 200 (1979), the case

—

Dragna cites in support of that contention, considered

whether a confession is admissible when police took the

defendant into custody, and detained and interrogated him

when there was no probable cause to arrest. Here, there was

no detention or custodial interrogation.

Dragna also asserts that the statements were involuntary

because he was influenced by threats of a Grand Jury in-

vestigation and promises of confidentiality. The record

shows that there was no coercion or threats, and that Dragna

was warned to be careful of what he said. The methods

used were constitutionally permissible.

IX.

BRUTON OBJECTIONS

Dragna, in his statement to Nance, admitted he was

*‘acting’’ boss of the Los Angeles La Cosa Nostra family,

and he named all the other appellants as members of the

family. The names of the other appellants were deleted from

his statement and the jury was instructed that Dragna’s state-

ment could only be considered against him.

Dragna did not testify. Nevertheless, through other wit-

nesses, the jury learned Brooklier and Sciortino were in

prison at the time. Brooklier and Sciortino contend that

Dragna’s statement that he was the acting boss compels the

inference that he was acting in place of Brooklier and Scior-

tino, and that a severance was necessary under Bruton v.

United States, 391 U.S. 123 (1968).

The district court properly denied the motion to sever.

Even if the edited statement hinted that Brooklier and Scior-

tino were members of the Los Angeles family, this inference

was not sufficiently incriminating to require severance, be-

cause both sides stipulated and told the jury that mere mem-

bership in La Cosa Nostra was not unlawful. Courts need

not grant a Bruton severance unless the statements of the

par, ee

non-testifying defendant clearly inculpate his codefendants.

E.g., United States v. Knuckles, 581 F.2d 305, 313 (2d

Cir. 1978). As in United States v. Wingate, 520 F.2d 309,

314 (2d Cir. 1975), cert. denied, 423 U.S. 1074 (1976),

it is ‘‘[o]nly when combined with considerable other evi-

dence, which amply established [Brooklier and Sciortino’s]

guilt, [that] the statements tend to implicate [them].”’

‘ X.

ADMISSION OF FRATIANNO’S PLEA AGREEMENT

During the trial, defense counsel referred to government

witness James Fratianno as a perjurer, paid informant, and

murderer who escaped the death penalty by cooperating with

the FBI, and whose book sales would be enhanced by a

conviction. In rebuttal, the government introduced Fra-

tianno’s plea agreement, which required Fratianno to testify

truthfully. Appellants contend that under United States v.

Roberts, 618 F.2d 530 (9th Cir. 1980), this evidence per-

mitted the government to improperly vouch for Fratianno’s

credibility.

Although, as the court in Roberts pointed out, plea agree-

ments are admissible on the issue of bias, they are not to

be used as a basis for supporting the truthfulness of the

witness’ testimony. In Roberts, the United States Attorney

argued to the jury that a government witness testified truth-

fully because he was afraid of violating his plea agreement,

and that the government, to ensure he would testify truth-

fully, placed a detective in court when the witness testified.

We reversed tne conviction primarily because the statement

that the detective was monitoring the witness improperly

referred to facts outside the record. Here, no such argument

was made. In fact, whenever the plea agreement was men-

tioned during the trial, the court cautioned the jury that the

agreement requiring the witness to testify truthfully did not

aw} | a

mean that the testimony was in fact truthful. The court also

told the jury that the government could not vouch for the

truth of the testimony and that the jurors were the sole

and exclusive judges of the credibility of all witnesses.

These instructions adequately dispelled any suggestion of

vouching.

XI.

STURMAN EXTORTION:

UNCORROBORATED ACCOMPLICE TESTIMONY

Appellants contend Fratianno’s testimony was insuffi-

cient as a matter of law for the jury to find that the appellants

attempted to extort money from Reuben Sturman, because

Fratianno was an accomplice and his testimony was uncor-

roborated. Fratianno testified at length on many subjects

and he was thoroughly cross-examined. His testimony in

other areas was corroborated in many details. There was

adequate evidence to satisfy the rule of United States v.

Sigal, 572 F.2d 1320, 1324 (9th Cir. 1978), that the un-

corroborated testimony of an accomplice is sufficient to

support a conviction so long as it is not incredible or

unsubstantial on its face.

We hold Fratianno’s testimony meets this standard and

is adequate to support the RICO convictions based on the

Sturman extortion charge.

XI.

ADMISSIBILITY OF CO-CONSPIRATOR STATEMENTS

Fratianno testified he told Tony Delsanter and Leo Moceri

that Brooklier and Sciortino wanted them to extort money

from Reuben Sturman, a dealer in pornography. Fratianno

also testified that Delsanter later reported that he and Moceri

had done the job. Delsanter introduced Fratianno to Glenn

Pauley, the man who had ‘‘grabbed’’ Sturman. This testi-

mony was the only link connecting Brooklier and Sciortino

a.

to the Sturman extortion attempt. Neither Delsanter nor

Moceri testified.

Brooklier and Sciortino contend that the statements made

by Delsanter and Moceri were inadmissible hearsay because

the co-conspirator exception to the hearsay rule, Fed.R.Evid.

801(d)(2)(E), requires the declarant’s involvement in the

conspiracy to be corroborated by independent evidence.

United States v. Snow, 521 F.2d 730, 733 (9th Cir. 1975).

Once the conspiracy was shown to exist, only slight

evidence was required to support a finding that Delsanter

and Moceri were part of the conspiracy. United States v.

Calaway, 524 F.2d 609, 612 (9th Cir. 1975).

Here, there was ample evidence that a conspiracy did

exist and that Dragna, Brooklier, Sciortino, Frantianno and

others were members of it. Fratianno testified that Brooklier

and Sciortino, with the approval of Dragna, the top man,

directed Fratianno to go to Cleveland, meet with Delsanter

and Moceri, and get them to arrange to shake down Sturman.

Fratianno testified that he went to Cleveland and met with

Delsanter and Moceri and brought them the message. There-

after, they told Fratianno that they had done the job through

Glenn Pauley, to whom they introuced Fratianno. Sturman

later identified Glenn Pauley as the man who attempted to

extort money from him.

In determining whether Delsanter and Moceri were part

of the conspiracy, we treat testimony on their statements

as independent evidence of their participation. We consider

their statements not for their truth, but as verbal acts to

show involvement. Calaway, 524 F.2d at 613. The court

in Calaway, after setting forth the test for admissibility of

hearsay statements of co-conspirators, stated:

In considering this question, we treat testimony by

witnesses about statements made by [the alleged con-

ee en

spirators] as part of the independent evidence of their

participation in the conspiracy. Such statements by

them are not received to establish the truth of what

they said but to show their own verbal acts.

Delsanter’s statement indicates that he and Moceri were

aware of the scope and purpose of the extortion conspiracy,

and that they agreed with those goals. This evidence is

sufficient to link Delsanter and Moceri to the conspiracy.

The district court correctly admitted the statements of

Delsanter and Moceri under the co-conspirator exception

to the hearsay rule.

XIII.

COUNTS | & 2: SUFFICIENCY OF

EVIDENCE TO CONVICT DRAGNA

Dragna argues that there was insufficient evidence to

connect him to the Sturman and Forex extortions. He points

out that the jury acquitted him on the Gaswirth extortion

and on the obstruction of justice charges. He argues that

this leaves no underlying racketeering acts for his RICO

convictions,

Inconsistent verdicts do not require reversal unless there

is insufficient evidence to sustain the guilty verdict. United

States v. McCall, 592 F.2d 1066, 1068 (9th Cir. 1979);

Dunn v. United States, 284 U.S. 390, 393 (1932).

The evidence was sufficient to convict Dragna on both

the RICO conspiracy and RICO substantive counts. The

evidence showed that Fratianno acted as Dragna’s agent in

making arrangements for the Forex extortions. Dragna re-

tained ultimate control over the Los Angeles La Cosa Nostra

and he instructed Frank Bompensiero to make money for

the family. He planned and agreed to Bompensiero’s murder

and he approved of the plans to shake down Sturman and

par,” Pale

Gaswirth. Dragna was to benefit from all of these opera-

tions.

Considered in the light most favorable to the verdict, the

evidence and the inferences drawn from the evidence were

sufficient to sustain Dragna’s convictions on both counts.

Glasser v. United States, 315 U.S. 60, 80 (1942).

XIV.

SUFFICIENCY OF EVIDENCE TO

CONVICT BROOKLIER AND SCIORTINO

Brooklier and Sciortino contend that their convictions

under Count 2, a substantive RICO count, must be reversed

because there was insufficient evidence of their involvement

in the Forex extortions. The United States Attorney, in his

closing argument, conceded that Brooklier and Sciortino

were not involved in those extortions.

In United States v. Brown, 583 F.2d 659 (3d Cir. 1978),

the court held a RICO conviction which is based on the

same act upon which a non-RICO substantive count is based,

must be reversed if the conviction on that substantive count

is reversed. The court reasoned that this result is necessary

because it would be impossible to determine whether the

jury relied on an impermissible underlying offense to reach

its verdict on the RICO count.

However, in this case, even if the evidence of the Forex

extortion was insufficient, the error in allowing the charges

to go to the jury along with the other four charges of ex-

tortion was harmless beyond a reasonable doubt. It is harm-

less because the United States Attorney told the jury that

Brooklier and Sciortino were not involved in the Forex

extortions and that the Forex extortions should not be con-

sidered in determining the guilt or innocence of Brooklier

and Sciortino.

nH

Brooklier also contends that his acquittals on other counts

compel the conclusion that the jury relied solely on the

Sturman extortion in convicting him on the RICO conspiracy

count. Although at least two acts of racketeering are nec-

essary to convict a defendant of a substantive RICO offense,

it is unnecessary in a conspiracy to commit RICO to show

that a particular defendant personally committed any act of

racketeering.° We, therefore, hold that the conviction of

Brooklier on the conspiracy count (Count 1) must be af-

firmed regardless of whether he personally committed any

act of racketeering, even though we find that the evidence

amply supports a finding that Brooklier did, in fact, commit

at least two acts of racketeering.

Appellants also contend that the district court erred in

denying their Rule 14 pretrial severance motion because

Brooklier, Sciortino and Dragna were not charged under

Count 4, the Forex extortion count. This contention has no

merit. The Forex extortion evidence was relevant because

Brooklier and Sciortino remained members of La Cosa Nos-

tra during the time the Forex extortions were committed by

co-conspirators. It was also relevant because the Forex ex-

tortion activity became the motive for killing Bompensiero,

an act for which Brooklier and Sciortino were indicted in

Count 5.

We therefor reject the contention of Brooklier and Scior-

tino that their convictions must be reversed for lack of suf-

ficient admissible evidence to convict. We also hold that

the district court did not abuse its discretion in denying the

severance motion.

*For an excellent discussion of this issue, see the statement of Chief

a Owen in United States v. Hawkins, 516 F. Supp. 1204, 1208

(M.D. Ga. 1981).

a ae

XV.

ELECTRONIC SURVEILLANCE: REQUIREMENT

OF A SUPPRESSION HEARING

Before trial, Brooklier moved to suppress a tape recording

of his conversation with Fratianno on an extortion plan.

Brooklier contends that the court order authorizing the elec-

tronic surveillance was issued on the basis of an affidavit

which failed to set forth a ‘*full and complete statement as

to whether or not other investigative procedures have been

tried and failed or why they reasonably appear to be unlikely

to succeed,’’as required by 18 U.S.C. §2518(1)(c).

Brooklier asserts that Fratianno was a paid government

informant who could have infiltrated the individuals under

investigation, and that electronic surveillance was therefore

unnecessary. He further asserts that the government’s ap-

plication for the surveillance failed to include the fact that

Fratianno was a paid informant.

The district court, without holding a hearing, denied

Brooklier’s motions to suppress. The tape was played to the

jury.

The government contends that there was no need to set

forth the information about Fratianno because when the

conversation with Brooklier was taped, Fratianno was still

under investigation. He did not become fully cooperative

until later.

The fact that the government doubted whether Fratianno

was fully cooperative did not relieve it of the obligation to

set forth those facts. It was for the court to determine its

materiality.

In Franks v. Delaware, 438 U.S. 154, 155-6 (1978), the

Supreme Court held:

[W]here the defendant makes a substantial prelim-

inary showing that a false statement knowingly and

we, OM

intentionally, or with reckless disregard for the truth,

was included by the affiant in the warrant affidavit,

and if the allegedly false statement is necessary to the

finding of probably cause, the Fourth Amendment re-

quires that a hearing be held at the defendant’s request.

The court also held that if the hearing showed the false

Statement to be material, the evidence must be suppressed.

In Franks, a search warrant was issued based on an af-

fidavit containing deliberate misstatements. Here, although

the problem is one of omission rather than misstatement,

the initial burden for purposes of obtaining a hearing remains

on the defendant. The defendant must show that the omis-

sion was deliberate or made in bad faith. Brooklier has

demonstrated no more than negligence on the Government’s

part. Mere negligence in preparing the affidavit for a wiretap

order is not sufficient to suppress the evidence obtained. /d.

at 170.

Although the government should have included infor-

mation required by the wiretap statute, 18 U.S.C. §2518(1)(c),

we hold the district court, in failing to hold a hearing and

in admitting the tape in evidence, did not commit error

because there was ro evidence of deliberate omission in the

government’s affidavit.

XVI.

JURY INSTRUCTIONS

Appellants contend that the jury was improperly in-

structed on the elements of a conspiracy to commit RICO.

They assert that the jury was instructed to convict if they

found multiple conspiracies to commit two or more acts of

racketeering even though no overall conspiracy existed.

The instructions which the court gave on this issue were

jointly drafted by counsel for both the government and the

appellants. Later, in response to a question from the jury,

a

appellants objected to a clarifying instruction proposed by

the government. They asked that no additional instructions

be given because the previous instruction, based on a Black-

mar & Devitt instruction, was clearer than the tendered one,

and had ‘‘proved to be true and useful over the years.’’

Later, the court, in response to another inquiry from the

jury, told them:

Each individual has to have knowledge of two or

more racketeering acts and been a part of and com-

mitted those, and as part of those it could be conspir-

acies to commit those racketeering acts.

Although the instructions on this issue were not models of

clarity, any ambiguity was harmless to appellants and ac-

tually favored them.

The purpose of the RICO statute is to allow a single

prosecution of persons who engage in a series of criminal

acts for an enterprise, even if different defendants perform

different tasks or participate in separate acts of racketeering.

The same persons need not commit or endorse the same

acts of racketeering. It is sufficient if a defendant who par-

ticipates in an enterprise through a pattern of racketeering

knows that the enterprise operates by a pattern of racket-

eering. The pattern may be established by showing two or

more acts that constitute offenses, conspiracies, or attempts

of the requisite type, as long as the defendant committed

two of the acts and both of them were connected by a

common scheme, plan or motive.

In addition, it is a crime to conspire to commit the sub-

stantive RICO offense. 18 U.S.C.A. §1962(d) (Supp.

1982). This overall conspiracy requires the assent of each

defendant who is charged, although it is not necessary that

each conspirator knows all of the details of the plan or

conspiracy. United States v. Elliott, 571 F.2d 880, 900-05

(Sth Cir.), cert. denied, 439 U.S. 993 (1978).

rer RR

Conspiracy to carry on an enterprise through racketeering,

section 1962(d), is a separate crime from the participation

in an enterprise through racketeering acts such as conspiracy

or attempts, section 1962(c). The distinction between a con-

spiracy to violate the RICO statute, and a conspiracy or

attempt committed as part of a pattern of racketeering ac-

tivity, depends on the time the conspiracy is formed and its

objective. If the agreement or combination is undertaken

to establish or participate in an enterprise and to do it through

a pattern of racketeering, there is a conspiracy to commit

the underlying RICO offense. If the enterprise is in existence

and it is aided by attempts or conspiracies of the kind pros-

cribed by the statute, such attempts or conspiracies may be

part of the pattern of racketeering.

The instructions given here required each defendant to

agree to participate in two specific racketeering acts, even

on Count 1. The term ‘‘enterprise’’ was defined and the

jury told that they must find each defendant was employed

by or associated with a racketeering enterprise, and that the

racketeering offenses were connected by acommon scheme,

plan, or motive so as to constitute a pattern ‘‘and not merely

a series of disconnected acts.’’ They were also told they

must find ‘‘through the commission of two or more con-

nected offenses the defendant conducted or participated in

the conduct of the enterprise.’’ These instructions were ad-

equate to inform the jury of the elements of a RICO con-

spiracy, and required them to find an overall conspiracy to

conduct an enterprise through a pattern of racketeering ac-

tivity before they could find appellants guilty.

To the extent the trial court’s instructions can be inter-

preted to require that each defendant actually participate in

two or more acts of racketeering in order to be guilty of

conspiracy to violate RICO under section 1962(d), the in-

ee

structions posed an unnecessary burden on the Government

that in no way prejudiced the appellants.

There is no merit in appellants’ contention.

XVII.

JURY SELECTION

Before trial, appellants sought to excuse for cause four

jurors who on voir dire stated they believed there existed

an organization known as La Cosa Nostra whuse members

are engaged in organized crime. Appellants later exhausted

all of their peremptory challenges, many of which were

exercised against jurors who had no opinions about La Cosa

Nostra. We reject the government’s contention that this fact

prevents appellants from challenging the district court’s rul-

ing. The defendants need not show actual prejudice. Swain

v. Alabama, 380 U.S. 202, 219 (1965). Any error which

impairs the exercise of peremptory challenges is reversible

error. United States v. Turner, 558 F.2d 535, 538 (9th Cir.

1977).

Jurors need not be totally ignorant of the facts and issues

involved. Irvin v. Dowd, 366 U.S. 717, 722 (1966). The

court in /rvin noted:

In these days of swift, widespread and diverse meth-

ods of communication, an important case can be ex-

pected to arouse the interest of the public in the vicinity,

and scarcely any of those best qualified to serve as

jurors will not have formed some impression as to the

merits of the case. This is particularly true in criminal

cases. To hold that the mere existence of any precon-

ceived notion as to the guilt or innocence of an accused,

without more, is sufficient to rebut the presumption of

a prospective juror’s impartiality would be to establish

an impossible standard. It is sufficient if the juror can

lay aside his impression or opinion and render a verdict

pews” Pay

based on the evidence presented in court. [citations

omitted]

Here, each of the jurors stated that he did not have an

opinion on the guilt or innocence of the defendants, that he

would keep an open mind, and that he would listen to the

evidence on both sides and follow the court’s instructions.

They also said that they would then decide whether La Cosa

Nostra exists, whether it operates in Los Angeles, and

whether the defendants were members of it. On the basis

of the evidence and the instructions, they would then decide

whether each defendant was guilty of an offense charged

in the indictment.

The trial court has broad discretion in its rulings on chal-

lenges for cause, and can only be reversed for an abuse of

discretion. Dennis v. United States, 339 U.S. 162, 168

(1949). In Dennis, the Supreme Court affirmed the convic-

tion of an admitted communist by a jury composed of gov-

ernment employees during a period of widespread anticom-

munist hysteria. Here, both sides stipulated to the jury that

membership in La Cosa Nostra is not a crime. The jury was

told that the government had the burden of proving that each

appellant was knowingly associated with an enterprise en-

gaged in a pattern of racketeering activity. No juror ex-

pressed an opinion before trial on whether any appellant

was a member of La Cosa Nostra, or was guilty of any

illegal act.

The district court did not abuse its discretion in refusing

to dismiss the four jurors for cause.

AFFIRMED.

pw,

APPENDIX C.

Order.

United States Court of Appeals for the Ninth Circuit.

United States of America, Plaintiff-Appellee, vs. Dom-

inic Phillip Brooklier, Samuel Orlando Sciortino, Louis

Tom Dragna, Michael Rizzitello, and Jack Locicero,

Defendants-Appellants.

Nos. 81-1045, 81-1046, 81-1047, 81-1048, 81-1049.

Filed: November |, 1982.

Before: KENNEDY and SCHROEDER, Circuit Judges,

and SOLOMON, * District Judge.

The panel as constituted in the above case has voted to

deny the petitions for rehearing. Judges Kennedy and

Schroeder have voted to reject the suggestions for a re-

hearing en banc, and Judge Solomon has recommerded

rejection of the suggestions for rehearing en banc.

The full court has been advised of the suggestions for en

banc hearing, and no judge of the court has requested a vote

on the suggestions for rehearing en banc. Fed. R. App. P.

35(b).

The petitions for rehearing are denied, and the suggestions

for a rehearing en banc are rejected.

*Honorable Gus J. Solomon, Senior United States District Judge for

the District of Oregon, sitting by designation.