Petition — Marino v. United States

83-696 | TC eee

FILED

No. she

—_——— eer L. STEVA

CLERK

In The —

Supreme Court of the United States

October Term, 1983

RICHARD J. MARINO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

PETITION FOR CERTIORARI

Lipsitz, Green, Fahringer,

Roll, Schuller & James

Paul John Cambria, Jr., Esq.

Attorneys for Petitioner Marino

One Niagara Square

Buffalo, New York 14202

(716) 849-1333

October, 1983 ’

Daily Record Corporation (9973)

e

Petitioner, RICHARD J. MARINO, seeks a writ of cer-

tiorari to review the judgment of the United States Court of

Appeals for the Second Circuit entered on August 29, 1983.

Questions Presented

1. Does petitioner's acquittal on a 1976 RICO indictment bar

the Government, under the double jeopardy clause of the Fifth

Amendment, from reprosecuting petitioner under a later RICO

indictment for (1) a predicate act of racketeering of which the

Government was aware and could have included in its earlier

indictment and (2) petitioner's association with the same en-

terprise as litigated in the former trial during the years included

in the first indictment?

2. Does the doctrine of collateral estoppel preclude the

Government from relitigating, under the second RICO in-

dictment, factual allegations which were necessarily resolved in

petitioner's favor upon his acquittal under the first RICO

indictment?

List of Parties

The parties to the proceeding in the court whose judgment is

sought to be reviewed are the United States of America and

Samuel J. Russotti, Rene Piccarreto, Richard J. Marino,

Thomas E. Marotta, Joseph R. Rossi, Anthony M. Colombo,

Donald J. Paone, Joseph J. Trieste, Joseph J. LaDolce and

John M. Trivigno, the defendants below.

il

Sentement of Case ... ccccccccccstssneuseaeaeenn

Reasons for Granting the Writ:

I The decision below conflicts in principle with the

decisions of other Courts of Appeals as to the proper

interpretation of 18 U.S.C. §1961 et seq. and decisions

of this Court concerning the protection afforded by the

double jeopardy clause... ... 2.2.0 cece eeevees

II The Court erred in its resolution of petitioner's

collateral estoppel claim ..........55eeeeeeeeee

Appendix:

the Sesendi Civeullt . . occccccscectseunsnee

II Opinion of the District Court of the Western

Disesict of Mew Vek ....cccccssccenssseseness

III Judgment Sought to be Reviewed. ............

IV 18 U.S.C. §§ 1961 and 1962 ............0005-

1]

12

ili

TABLE OF AUTHORITIES

Page

Blockburger v. United States, 284 U.S. 299 (1932)..... 9

Braverman v. United States, 317 U.S. 49 (1942). ...... 7,8

Brown v. Ohio, 431 U.S. 161 (1977)... 2... eee ee eee 10

In Re Nielsen, 131 U.S. 17611889) .............0-- 10

Sanabria v. United States, 437 U.S. 54(1978) ....... 7,10

Short v. United States, 91 F.2d 614 (4th Cir. 1937)..... 9

United States v. Barton, 647 F.2d 224 (Sth Cir), cert.

es Se TE CHORD 4 nos ce cee teeoeevsecs 5

United States v. Elliott, 571 F.2d 880 (5th Cir), cert.

er Pal, CE CEP Ond oc vee cscbsteedvess 5

United States v. Huber, 603 F.2d 387 (2d Cir. 1979),

cert. denied, 445 U.S. 927 (1980) ............000- 10

United States v. Mallah, 503 F.2d 971 (2d Cir. 1974),

cert. denied, 420 U.S. 998 (1975) ....... ce eee eee

United States v. Turkette, 452 U.S. 576 (1981). .......

United States v. Weisman, 624 F.2d 1118 (2d Cir.}, cert.

ee, GO ars EE COED ov cc cccescocsiovecss 5, 6,8

Wingate v. Wainwright, 464 F.2d 209 (Sth Cir. 1972) .. 12

UNITED STATES CONSTITUTION

STATUTES

on

-

In The

Supreme Court of the United States

October Term, 1983

RICHARD J. MARINO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO TH. UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

Opinion Below

The opinion of the Court of Appeals, not yet reported, ap-

pears in the Appendix hereto. The opinion rendered by the

District Court for the Western District of New York is reported

at 555 F.Supp. 1236 (1983).

Jurisdiction

The judgment of the Court of Appeals for the Second Circuit

was entered on August 29, 1983 and this petition for certiorari

was filed within sixty (60) days of that date. The Court's

jurisdiction is invoked under 28 USC § 1254(1).

Constitutional Provisions and Statutes

1. The Fifth Amendment, United States Constitution, which

provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in acwal

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

2. The Statutes under which Petitioner was prosecuted are

18 U.S.C. §§ 1961 and 1962. Their text is set forth in the ap-

pendix.

Statement of the Case

In 1976 petitioner Richard J. Marino, along with seven other

individuals, was charged under 18 U.S.C. § 1962(c) and (d),

with a substantive violation of the Racketeering Influenced and

Corrupt Organizations Aci (RICO) and a RICO Pon

The indictment alleged that petitioner was a member of a

criminal enterprise which engaged in various crimes of arson

and insurance fraud from on or about June 1, 1969 until August

31, 1973 (30).*

Trial on the 1976 indictment was had during September and

October, 1977. As part of the prosecution’s case, the Govern-

ment offered the testimony of co-defendants Angelo Monachino

and Joseph LaNovara who pled guilty before trial and testified

as Government witnesses. Through the testimony of these men

the Government attempted to establish petitioner's association

with an enterprise which had as its purpose the commission of a

variety of illegal acts in the Rochester area including the crimes

of arson and insurance fraud, murder, extortion, loan sharking

and the obstruction of justice (67-78). Petitioner Marino was

acquitted on both counts of the 1976 indictment.

*Numbers in parentheses refer to pages in the record.

Marino, as well as Rene Piccarreto, Samuel J. Russotti and

Thomas E. Marotta was also charged, in 1976, with the

murder of Vincent J. Massaro. The defendants were tried and

convicted in state court. The conviction was vacated, however,

when it was discovered that several police officers gave perjured

trial testimony. There is no dispute that the federal authorities

were aware of petitioner’s alleged connection with the Massaro

homicide; indeed, the federal and state authorities joined forces

in investigating and prosecuting the state case, and currently,

members of the county prosecutor's office are assigned to

prosecute the pending federal indictment.

The RICO indictment under which petitioner is presently

charged was filed in November, 1982. The first count of the

indictment alleges that petitioner was associated with a criminal

enterprise which engaged in a pattern of racketeering activity

through the commission of acts of extortion, arson, murder and

the obstruction of justice. The acts alleged are said to have

occurred from on or about February 1, 1971 until the date of the

filing of the indictment on November 8, 1982. The second count

of the indictment charges that petitioner conspired to violate 18

U.S.C. § 1962(c) by participating in the affairs of the enterprise

through that pattern of racketeering activity descrifed in

Count I of the indictment (13-30).

Petitioner’s motion to dismiss the 1982 indictment as violative

of his rights under the double jeopardy clause was denied by

Order of the United States District Court for the Western

District on January 26, 1983 (402). The Order of that Court was

affirmed by the judgment of the United States Court of Appeals

for the Second Circuit entered on August 29, 1983.

Reasons for Granting the Writ

THE DECISION BELOW CONFLICTS IN PRINCIPLE

WITH THE DECISIONS OF OTHER COURTS OF AP-

PEALS AS TO THE PROPER INTERPRETATION OF 18

U.S.C. §1961 ET SEQ. AND DECISIONS OF THIS COURT

CONCERNING THE PROTECTIONS AFFORDED BY

THE DOUBLE JEOPARDY CLAUSE.

The point at which double jeopardy attaches under a RICO

prosecution has not been squarely addressed by this Court or by

the majority of the Courts of Appeals. Further, the decision of

the Second Circuit herein conflicts in principle with other

Courts of Appeals decisions regarding RICO and the proper

unit of prosecution for double jeopardy analysis, under 18

U.S.C. § 1961 et seq. It is, as well, at odds with this Court’s

decision in Sanabria v. United States, 437 U.S. 54 (1978).

Petitioner had argued that although the Government was not

totally precluded from reprosecuting him under the 1982 RICO

indictment, it was limited in the scope of the prosecution.

Petitioner asserted that because he had been acquitted in 1976

of membership in the same enterprise to be tried under the 1982

indictment, the Government could not relitigate his association

with that enterprise during the years covered under the in-

dictment, 1971-1975, and by use of the same evidence

previously litigated under the first RICO indictment. Petitioner

further averred that the Government could not include as one of

the predicate acts of racketeering under the 1982 indictment, the

1976 murder of Jimmy Massaro. Because the Government

knew of petitioner’s alleged involvement in that homicide when

it filed its 1976 indictment and because that homicide could

have been charged as a predicate act of racketeering in 1976, the

double jeopardy clause forbids its inclusion in the pending

indictment.

The Second Circuit held that the allowable unit of

prosecution under RICO involved consideration of both

elements of the statute: the enterprise element and the pattern of

racketeering element. The Court thus concluded that a valid

claim of double jeopardy would arise only if both the enterprise

and the pattern of activity alleged in the 1976 indictment were

the same as those alleged in the 1982 indictment. Because the

Court found that the 1976 indictment charged an arson for hire

pattern of racketeering by the enterprise, while the 1982 in-

dictment charged an extortion pattern, even though by the same

enterprise, no double jeopardy problem was implicated by the

pending prosecution.

Resolution of the double jeopardy claim through examination

of the claimed pattern of activity is unsatisfactory for several,

interrelated reasons. First, the Courts of Appeals which have

addressed the definition of a pattern of racketeering under

RICO have invariably held that predicate acts of racketeering

need not be interrelated in order to create a pattern since the

enterprise element of the statute provided the underlying link

among the various predicate acts. See United States v. Barton,

647 F.2d 224 (2d Cir.), cert. denied, 454 U.S. 857 (1981);

United States v. Weisman, 624 F.2d 1118 (2d Cir.), cert.

denied, 449 U.S. 871 (1980); United States v. Elliott, 571 F.2d

880 (5th Cir.), cert. denied, 439 U.S. 953 (1978).

Because the Government need allege no more than two

predicate acts to establish a pattern of racketeering and because

those acts need not be related to each other, the Second Circuit’s

holding could obviate the possibility of any double jeopardy

claim ever arising under RICO. The Government need only

draft RICO indictments based upon two predicate acts con-

cerning one enterprise, holding, in case of acquittal as happened

here, other acts in reserve concerning the very same enterprise

during the same time period. While the Second Circuit voiced

its sensitivity to petitioner's concern in this regard, it found that

the problem had not arisen in this case because the indictments

“allege distinct patterns of racketeering activity” (A-

14).*

However, it is in this case, where the Second Circuit

found “‘distinct patterns’ that the danger of the Court's in-

terpretation is underscored. Petitioner does not argue that the

1982 indictment cannot be prosecuted. Rather, he argues that

because the Massaro murder could have been included in the

1976 indictment, double jeopardy forbids its prosecution at this

point since it is an incident of the crime earlier charged. The

Second Circuit disagreed since “the 1982 indictment includes

the Massaro murder as one of several unlawful acts designed to

maintain control over the enterprise's membership in fur-

therance of its extortion scheme — a scheme which had no

relationship to the 1976 arson-for-hire activity” (A-15).

Petitioner respectfully submits that this conclusion belies the

artificial construct created by the Second Circuit. The Massaro

murder occurred on November 23, 1973 (18). The next alleged

act in the purported extortion indictment allegedly occurred

sometime in 1977. Thus, there is no inherent reason why the

Massaro murder is any more related to the extortion pattern

than the arson pattern. Indeed, the converse would be the more

logical position given the gap between the time of the murder

and the time of the acts alleged in the 1982 Indictment, as

opposed to the time of the acts in the 1976 indictment. The only

connection on the face of this record is that the respondent

includes that act in the extortion indictment. Nonetheless, even

if the respondent alleged it to be so, the Government need not

prove, in order to try the case, any connection between the

Massaro murder and the other predicate acts alleged (United

States v. Weisman, supra). There is, then, no protection against

the risk of exponentially increasing indictments: the Govern-

ment may carve up a single enterprise into multiple RICO

*Numbers in parentheses preceded by “A” refer to pages of the Appendix

hereto.

indictments simply by picking and choosing separate acts of

racketeering in support thereof even where, as here, they are

based on the same time period and cadre of witnesses.

The probability of increased prosecutions under a similar

theory was condemned in Sanabria v. United States, 437 U.S.

54 (1978). In Sanabria, the defendant was charged with

violating 18 U.S.C. § 1955 forbidding association with an

illegal gambling business. At the close of trial a judgment of

acquittal was entered on the basis of insufficient proof that the

defendant had been involved in horse betting. The Government

sought to reprosecute defendant on that portion of the in-

dictment related to numbers betting, arguing that the numbers

and horse wagering constituted discrete bases of liability even

though conducted by the same gambling enterprise over the

same time span.

This Court rejected the argument holding that Sanabria could

not be prosecuted for involvement in the same gambling

business by a different means of commission. This Court noted:

“If we were to accept the Government’s theory, each of

these [the specific means of participation in the gambling

business] could be varied one at a time, to charge a

separate count on which a defendant could be

reprosecuted following acquittals on any of the others”

(Sanabria, Id. at 73, fn. 32).

In Sanabria, the Court analogized to Braverman v. United

States, 317 U.S. 49 (1942) and held that just as the essence of the

conspiracy is the agreement to commit an illegal act, the essence

of 18 U.S.C. § 1955 was participation in a gambling business,

not the means of that participation.

Because, as respondents herein concede, the RICO statute is

in pari materi with 18 U.S.C. § 1955, which in turn was

equated in its essence with the crime of conspiracy, analogy to

criminal conspiracy law is apt. The gist of a conspiracy is the

agreement itself which “embraces and defines its objects”

(Braverman v. United States, Id. at 53). Similarly, under

RICO, rather than attempt a virtually meaningless analysis of

the pattern of racketeering activity, a double jeopardy inquiry

should focus on the enterprise which is that element under

RICO providing the unifying link between disparate predicate

acts (United States v. Weisman, supra). Scrutiny of the en- ©

terprise element of the statute is all the more germane in a case

where, as here, the business of the enterprise is alleged to ‘be

entirely illegal. In that case, emphasis on the pattern acts of

racketeering will swallow the concept of the enterprise itself. As

this Court explained in United States v. Turkette, 452 U.S. 576

(1981), the enterprise and pattern acts are different elements of

the crime each of which must be proven separately. This

distinction is obviated, however, when an allegedly illegal

enterprise is defined only through its pattern acts.

Thus, just as a conspiracy is understood by reference to the

agreement whick defines its objects, a RICO violation is best

comprehended by reference to the enterprise which defines the

requisite pattern of racketeering especially where the enterprise

is claimed to be an illegal one. Otherwise, the distinction which

this Court has determined must exist between the pattern acts

and the enterprise would vanish since to embrace the decision

below would permit the entire activity and composition of the

enterprise to consist of nothing more than the commission of the

requisite pattern acts.

While the Second Circuit did not deny the significance of

conspiracy law precedent, it held that petitioner’s analogy failed

because in this case there were two distinct criminal endeavors

equivalent to two distinct conspiracies. Petitioner, however,

contends that both the 1976 and 1982 indictments charge but

one crime, or to use the conspiracy analogy, one sing.e con-

spiracy, having as its object the commission of various predicate

illegal acts, one of which was the Massaro murder, which is

equally related to each set of pattern acts, those of the 1976

indictment and those of the 1982 indictment.

The Second Circuit had previously recognized that in a

conspiracy prosecution the Government can readily avoid the

strictures of the double jeopardy clause by enumerating diverse

overt acts in each indictment, thereby meeting the same

evidence test of Blockburger v. United States, 284 U.S. 299

(1932). Therefore, in United States v. Mallah, 503 F.2d 971 (2d

Cir. 1974), cert. denied, 420 U.S. 995 (1975), the Court con-

cluded that it would determine whether there was one con-

spiracy or two by utilizing similar factors adopted by the Second

Circuit in analyzing this case. Mallah did not deny the reality of

two different conspiracies but stated, quoting Short v. United

States, 91 F.2d 614, 624 (4th Cir. 1937):

*““. . . if the government sees fit to send an indictment in

this general form charging a continuing conspiracy for a

period of time, it must do so with the understanding that

upon conviction or acquittal further prosecution of that

conspiracy during the period charged is barred . . . if in

fact the second indictment involves substantially the

same conspiracy as the first . . .” (Mallah, Id. at 985,

emphasis supplied).

In Mallah, while the Court examined the nature and scope of

each conspiracy alleged, it held that the fact of different overt

acts in each indictment was not instructive as to the scope of the

crime. Similarly, in a RICO case, while it may be appropriate to

consider the time frame, actors, location and other indicia of

two alleged RICO offenses, it is inaccurate to rely upon the

nature of the predicate acts to determine whether there is one

RICO crime or two.

Adoption of the analysis in Mallah to this case does not

impose the prosecutorial straitjacket which the respondent and

the Second Circuit fear. Petitioner is not attempting to foreclose

the Government from trying any violation of the statute which

had not even occurred upon filing of the first indictment and

which might therefore constitute a new crime under the same

statute. The Government should not, however, be allowed to try

10

petitioner piecemeal on acts of racketeering which are incidents

of one crime and which occurred during the same time period of

the commission of that crime. This Court stated in Brown v.

Ohio, 431 U.S. 161 (1977): ‘Where. . . a person has been tried

and convicted for a crime which has various incidents included

in it, he cannot be a second time tried for one of these incidents

without being twice put in jeopardy for the same offense’”’

(Brown, Id. at 168, quoting In Re Nielsen, 131 U.S. at 176, 188

(1889)).

Nor should the Government be allowed to relitigate an

element of the crime of which the petitioner has already been

acquitted: membership in the same enterprise at issue in the

present indictment for the years 1971-1975. That acquittal bars

any further prosecution for association with the same enterprise

during the same time period under the presently pending

indictment (Sanabria, Id. at 171-172).

With the enactment of the RICO legislation, the Government

has been handed a new weapon in its arsenal against organized

crime. Indeed, the very broad reach of RICO poses the

potential for undue prosecutorial zeal. (United States v. Huber,

603 F.2d 387 [2d Cir. 1979], cert. denied, 445 U.S. 927 [1980].)

Given the expanded scope of allowable prosecutions under

RICO, petitioner respectfully submits that the intersection of

the double jeopardy clause and RICO is a matter of significance

to this Court particularly where the business of the enterprise is

said to be illegal. Instruction by the Court is necessary to resolve

the problems herein in an effort to avoid future RICO

prosecutions which are drafted to escape the strictures of the

double jeopardy clause and, at the same time, to instruct both

the Court and criminal defendants of the point at which

jeopardy attaches under RICO. This Court should answer the

question of whether the Government shall be permitted to

repeatedly reprosecute the same enterprise for each two pattern

acts which are related only through the enterprise, regardless of

whether the defendant was previously found not guilty of being

a member of the enterprise during a time period covered by the

subsequent prosecution.

11

THE COURT ERRED IN ITS RESOLUTION OF

PETITIONER’S COLLATERAL ESTOPPEL CLAIM.

Petitioner had argued to the Second Circuit that the doctrine

of collateral estoppel, above and beyond the question of the

allowable unit of prosecution, forecloses the Government from

relitigating petitioner's membership in the enterprise alleged

during the years 1971-1975. Marino contends that since he had

been acquitted of conspiring to and in fact conducting the affairs

of an enterprise through a pattern of racketeering activity, the

jury must necessarily have determined that petitioner was not a

member of the enterprise charged. The Second Circuit rejected

the argument stating:

“As for the acquittal on the RICO conspiracy count,

even assuming that the jury concluded that they were not

members of the enterprise, this does not preclude a

subsequent conspiracy conviction, provided the two

conspiracies are distinct criminal schemes” (A-17).

Petitioner is not, however asserting that collateral estoppel

precludes a subsequent prosecution, whether of a substantive or

conspiracy violation. Rather, because the first trial resolved

several facts in petitioner's favor, those facts cannot be

relitigated even to prove a new offense. Under the 1976 in-

dictment, Government witnesses Monachino and LaNovara

testified that petitioner was present at meetings and initiation

rights of the association which comprised the enterprise (255,

290). The record shows that respondent does not deny that it

intends to offer these same witnesses to prove petitioner's

association with the same enterprise during the years 1971-1975

when Monachino and LaNovara were admitted participants in

the criminal organization. Because the jury necessarily resolved,

through its verdict of acquittal on the conspiracy count, the

issue of petitioner's membership during 1971-1975 in their

favor, the facts which were offered in support of that issue

12

cannot again be litigated, regardless of the reason for which they

are used.

The doctrine of collateral estoppel precludes the Government

from relitigating evidentiary as well as ultimate facts. Wingate

v. Wainwright, 464 F.2d 209 (5th Cir. 1972). Thus, whether or

not the 1982 indictment charges entirely new crimes, petitioner

cannot be made, during the course of that prosecution, to

defend against charges or factual allegations that he overcame

in the earlier trial, as if that trial had never taken place.

(Wingate, Id. at 214).

CONCLUSION

For these reasons, the writ of certiorari should be granted.

Respectfully submitted,

Lipsitz, Green, Fahringer,

Roll, Schuller & James

Paul John Cambria, Jr., Esq.

Attorneys for Petitioner Marino

One Niagara Square

Buffalo, New York 14202

(716) 849-1333

October, 1983

A-l

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ot

Nos. 1367, 1368, 1369, 1370—August Term, 1982

Argued: July 11, 1983 Decided: August 29, 1983

Docket Nos. 83-1054, 83-1055, 83-1056, 83-1069

as

UNITED STATES OF AMERICA,

Appellee,

_V—

SAMUEL J. Russotri, RENE PiccarRETO, RICHARD J.

MARINO, and THOMAS E. MAROTTA,

Defendants-Appellants.

Before:

NEWMAN and WINTER, Circuit Judges,

and MALEtTz, Senior Judge.*

_—

° Of the United States Court of International Trade, sitting by

designation.

6107

A-2

Appeal from an order of the United States District

Court for the Western District of New York, Michael A.

Telesca, J., 555 F. Supp. 1236, denying motions to dismiss

an indictment.

Affirmed.

a

JOHN F. HUMANN, Buffalo, N.Y. (Richard

Miller, Rochester, N.Y., on the brief),

for defendants-appellants Russotti and

Marotta. ‘

HAROLD J. BOREANAZ, Buffalo, N.Y., for de-

fendant-appellant Piccarreto.

PAUL J. CAMBRIA, JR., Buffalo, N.Y. (Mary

Good and Lipsitz, Green, Fahringer,

Roll, Schuller & James, Buffalo, N.Y.,

on the brief), for defendant-appellant

Marino.

KENNETH R. FISHER, Sp. Asst. U.S. Atty.,

Rochester, N.Y. (Salvatore R. Martoche,

U.S. Atty., and Robert L. King, Sp. Asst.

U.S. Atty., Rochester, N.Y., on the brief),

for appellee.

oa

MALETz2, Senior Judge:

Defendants-appellants Samuel J. Russotti, Rene Pic-

carreto, Richard J. Marino and Thomas E. Marotta

appeal from an order of the United States District Court

6108

A-3

for the Western District of New York, Michael A. Telesca,

J., denying their motions to dismiss an indictment filed

November 9, 1982. That indictment charges appellants

and six others with violations of the Racketeer Influenced

and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968

(1970), commonly known as RICO. See United States v.

Russotti, 555 F. Supp. 1236 (W.D.N.Y. 1983). The

grounds for their appeal are essentially threefold. First,

appellants Marino and Piccarreto argue that in view of a

1976 RICO prosecution of them the present RICO indict-

ment should be dismissed as violative of the double

jeopardy clause. Second, in 1978 a New York State court

judgment convicting all four appellants of the 1973 mur-

der of a Vincent J. Massaro was vacated. The inclusion of

that homicide as an underlying RICO predicate offense

should be barred, appellants contend, because of an

alleged joint federal-state effort to procure that convic-

tion. Third, appellants submit alternatively, that since the

government knew of the 1973 Massaro homicide prior to

the 1976 RICO indictment, the failure to include that

offense as a predicate act in that indictment barréd the

inclusion of the Massaro homicide as a predicate act in

the 1982 RICO indictment.

For the reasons appearing below, we find appellants’

contentions without merit and, accordingly, affirm the

order of the district court.

6109

A-4

I

Background

In 1976 the government filed a two-count indictment

charging defendants Piccarreto, Marino and six others

with a RICO substantive violation, as well as RICO

conspiracy, 18 U.S.C. § 1962(c) and (d) (1970).' The 1976

! The relevant portions of RICO provide:

§ 1961. Definitions

As used in this chapter—

(1) “racketeering activity“ means (A) any act or threat involv-

ing murde , kidnaping, gambling, arson, robbery, bribery, extor-

tion, 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. . .

the following provisions of title 18, United States Code: . .

section 1341 (relating to mail fraud), . . . section 1503 (relating

to obstruction of justice), . . . section 1951 (relating to. . .

extortion). . .;

(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, or

any department, agency, or instrumentality ‘nereof;

(3) “person” includes any individual or entity capable of

holding a legal or beneficial interest in property;

(4) “enterprise” includes any individual, partnership, corpo-

ration, association, or other legal entity, or 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 racketcering 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 commis-

sion of a prior act of racketeering activity;

§ 1962. Prohibited activities

(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 en-

6110

A-5

indictment alleged that from June 1, 1969 to August 31,

1973, Piccarreto and Marino were members of a criminal

enterprise which conspired to commit and did commut

multiple acts of arson. They were further charged with

having devised a scheme to defraud insurance companies

by means of false representations as to the facts and

circumstances surrounding the fires. The life of the en-

terprise allegedly ran from June 1, 1969 to August 31,

1973. The first predicate offense was alleged to have

occured on January 26, 1970, and the last on March 17,

1973. On October 7, 1977, a jury returned a verdict of not

guilty as to both Piccarreto and Marino.

Also during 1976 all four appellants were convicted in a

New York state court of conspiracy in the first degree and

murder in the second degree in connection with the

homicide of Vincent J. Massaro. However, in 1978 the

judgment of conviction was vacated and the indictment

dismissed when it was discovered that their convictions

had been obtained through the use of perjured testimony

of sheriff’s deputies. The United States brought civil

rights prosecutions against the responsible sheriff’s depu-

ties and state prosecutors and secured convictions. It is

undisputed that the federal authorities were aware of

appellants’ alleged involvement in the Massaro homicide

at the time the 1976 RICO indictment was filed.

On November 8, 1982 the present RICO indictment

was filed against all four appellants and six others charg-

ing them with a substantive violation of RICO, 18 U.S.C.

§ 1962(c), and a conspiracy to violate RICO, 18 U.S.C.

§ 1962(d). The indictment charges that defendants coh-

terprise’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 subsection] }. . . (c) of this section.

6111

A-6

spired to and conducted the affairs of an enterprise

through a pattern of racketeering activity which included

murder, attempted murder, arson, extortion and obstruc-

tion of justice. The pattern of racketeering activity is

alleged to have occured from October of 1973 (acts

preparatory to the Massaro homicide) to December 17,

1981 (the date of an alleged extortionate act). The life of

the enterprise is purported to have run from February 1,

1971 up to the date of the indictment.

With this background we consider at the outset appel-

lants’ contention that the dual sovereignty rule is inappli-

cable to the extent that the 1982 indictment charges

appellants with a pattern of racketeering activity which

includes as a predicate offense the murder of Vincent

Massaro.

I

Dual Sovereignty

Appellants argue that the federal government was so

deeply involved in the state murder prosecution as to

preclude application of the dual sovereignty rule, at least

insofar as the 1982 indictment alleges the Massaro murder

as a predicate act of racketeering and an overt act of

conspiracy to violate RICO. At a minimum, appellants

submit, they are entitled to an evidentiary hearing on this

point.

The concept of dual sovereignty is firmly established,

and appellants do not take specific issue with it. In

addressing the question whether double jeopardy bars a

federal prosecution of a defendant already prosecuted for

the same act by a state, the Supreme Court answered in

the negative in United States v. Lanza, 260 U.S. 377

(1922):

6112

A-7

We have here two sovereignties, deriving power

from different sources, capable of dealing with the

same subject-matter within the same territory. . . .

Each governmert in determining what shall be an

offense against its peace and dignity is exercising its

own sovereignty, not that of the other.

It follows that an act denounced as a crime by

both national and state sovereignties is an offense

against the peace and dignity of both and may be

punished by each.

Id. at 382. Accord United States v. Wheeler, 435 U.S.

313, 320 (1978); Abbate v. United States, 359 U.S. 187,

194 (1959); Bartkus v. Illinois, 359 U.S. 121, 129 (1959).

However, the doctrine is not unqualified. “The dual

sovereignty doctrine is subject to the qualification . . .

that a state prosecution cannot be used merely as a cover

and a tool of federal authorities.” United States v. Ale-

man, 609 F.2d 298, 309 (7th Cir. 1979), cert. denied, 445

U.S. 946 (1980). On this score, appellants argue, the dual

sovereignty rule fails here. They contend that the state

murder prosecution was merely a cover for the federal

authorities who were so substantially involved in the state

prosecution that they should not be allowed to relitigate

the same issues.

The record shows, though, that in the Massaro prose-

cution the state and federal authorities were acting inde-

pendently of one another. The federal authorities

ultimately withdrew from the case and the state continued

alone. It is true that before this there was a cooperative

effort between the state and federal authorities which,

appellants insist, completely eroded dual sovereignty. To

this contention the district court replied:

6113

A-8

[T}hat factor was present—to some extent—in both

Bartkus and in Aleman, and in both cases the respec-

tive courts praised the “cooperation between state

and federal authorities [as] a welcome innovation.”

United States v. Aleman, at 309; Bartkus v. Illinois,

359 U.S. at 123, 79 S.Ct. at 678. . . . The coopera-

tion between state and federal police agencies and

prosecutorial organizations is both laudatory and

desired.

555 F. Supp. at 1239. We agree with the district court and

conclude that the dual sovereignty rule is fully applicable

here.

Appellants present an associated due process argument

that they were improperly denied a hearing on the dua:

sovereignty question. We find this equally unavailing.

First, appellants offered little in the way of proof of

federal orchestration of the state murder trial other than

the barest conclusory allegations. While two witnesses in

the state murder trial were admitted to the federal witness

protection program, that yfact alone does not transform

the Massaro trial into a federal prosecution for jeopardy

purposes, there being not the slighest indication that the

federai authorities manipulated the state process to ac-

complish that which they could not constitutionally do

themselves. See United States v. Ng, 699 F.2d 63, 68 (2d

Cir. 1983); United States v. Liddy, 542 F.2d 76, 79-80

(D.C. Cir. 1976). What is more, the uncontradicted affi-

davit of Special Assistant United States Attorney Robert

L. King describing in detail the limited federal involve-

ment in the Massaro murder: trial obviated whatever

necessity there may have been for conducting a hearing.

In sum, the decision of the district court to deny appel-

lants’ motion without a hearing was well within its discre-

6114

A-9

tion. See United States v. Cohen, 489 F.2d 945, 951-52 (2d

Cir. 1973).

Finally, given our conclusion that there is no reason for

ignoring the dual sovereignty rule here, appellants’ sub-

sidiary claim of prosecutorial vindictiveness must per-

force be rejected. United States v. Ng, 699 F.2d at 68 (“A

setting that involves the conduct of two independent.

sovereigns does not lend itself to the concept of vindictive

prosecution”).’

We next address the question of the preclusive effect, if

any, of the 1976 RICO prosecution on the 1982 RICO

indictment in issue here.

Ill

Former Jeopardy

Appellants Marino and Piccarreto launch somewhat

divergent attacks against the 1982 indictment based on

the 1976 RICO prosecution, but at bottom all contentions

are grounded on claims of double jeopardy or collateral

estoppel.’ Our review is, of course, narrowly circum-

scribed, given the pretrial status of this appeal. See Abney

v. United States, 431 U.S. 651, 656-62 (1977). The critical

double jeopardy inquiry is whether the 1982 indictment

2 Although it is not entirely clear that this latter claim is properly

before the court on the interlocutory appeal, see United States v.

Hollywood Motor Car Go., _. U.S. —___, 102 S. Ct. 3081 (1982);

Abney v. United States, 431 U.S. 651, 662-63 (1977), we nevertheless

conclude that to the extent that that claim relates to the double

jeopardy question it is reviewable by us at this time. See United States

v. Wright, 622 F.2d 792, 793 (Sth Cir.), cert. denied, 449 U.S. 961

(1980). ;

3 Inasmuch as appellants Russotti and Marotta were not named in the

1976 indictment, they do not claim former jeopardy based on the 1976

RICO prosecution. We consider appellants’ collateral estoppel argu-

ment in Part IV, infra.

6115

A-10

would, in effect, seek to punish Marino and Picarreto for

any of the same offenses for which they were tried and

acquitted in the 1976 RICO prosecution. See United

States v. Solano, 605 F.2d 1141, 1144 (9th Cir. 1979), cert.

denied sub nom. England v. United States, 444 U.S. 1020

(1980). The answer to this inquiry necessarily depends on

what Congress prescribed as the “allowable unit of prose-

cution.” Sanabria v. United States, 437 U.S. 54, 69-70

(1977). “[T]hat prescription determines the scope of pro-

tection afforded by a prior conviction or acquittal.” Jd. at

70.

Not surprisingly, appellants and the government take

diametrically opposing positions on this issue. Appellants

argue that the enterprise is the focal point of RICO, so

that acquittal forecloses reprosecution for participation in

the same enterprise, even though through a different

pattern of racketeering activity. In reaching this conclu-

sion analogize RICO to the crime of conspiracy, with the

RICO enterprise being similar to the agreement to engage

in criminal conduct, and the pattern of racketeering

activity being akin to overt acts. From this, appellants

argue, successive conspiracy prosecutions based solely on

a different set of overt acts is barred and so too should

successive RICO prosecutions where the enterprise is the

same.

The government, for its part, counters that it is mean-

ingless to focus exclusively on the enterprise without

reference to what it does, citing United States v. Bagaric,

706 F.2d 42, 56 (2d Cir. 1983) (“it is logical to characterize

any associative group in terms of what if does, rather

than by abstract analysis of its structure“ [emphasis in

original]); and United States v. Forsythe, 560 F.2d 1127,

1136 (3d Cir. 1977) (“legislative intent was to make RICO

violations dependent upon behavior, not status“). Ac-

6116

A-11

cordingly, the government labels the 1976 enterprise as the

“arson-for-hire” enterprise, and the 1982 enterprise as the

“extortion” enterprise, thereby purportedly distinguishing

the two for double jeopardy purposes. Through this

conduct-oriented characterization, the government ar-

gues, the allowable unit of prosecution is properly es-

tablished. |

In answering the question what is the “allowable unit

of prosecution” under RICO, the Supreme Court’s opin-

ion in United States v. Turkette, 452 U.S. 576 (1981), is of

particular guidance:

In order to secure a conviction under RICO, the

Government ‘must prove both the existence of an

“enterprise” and the connected “pattern of rack-

eteering activity.” The enterprise is an entity, for

present purposes a group of persons associated to-

gether for a common purpose of engaging in a course

of conduct. The pattern of racketeering activity is,

on the other hand, a series of criminal acts as defined

by the statute. . . . The former is proved by evi-

dence of an ongoing organization, formal or infor-

mal, and by evidence that the various associates

function as a continuing unit. The latter is proved by

evidence of the requisite number of acts of rack-

eteering committed by the participants in the en-

terprise. While the proof used to establish these

separate elements may in particular cases coalesce,

proof of one does not necessarily establish the other.

The “enterprise” is not the “pattern of racketeering

activity”; it is an entity separate and apart from the

pattern of activity in which it engages. The existence

of an enterprise at all times remains a separate

element which must be proved by the Government.

6117

A-12

Id. at 583 (footnote omitted). Thus, it is neither the

enterprise standing alone nor the pattern of racketeering

activity by itself which RICO criminalizes. Rather, the

combination of these two elements is the object of pun-

ishment under RICO. See United States v. Mazzei, 700

F.2d 85, 88-90 (2d Cir. 1983); United States v. Phillips,

664 F.2d 971, 1011 (Sth Cir. 1981), cert. denied sub nom.

Meinster v. United States, 102 S. Ct. 2965 (1982); United

States v. Weisman, 624 F.2d 1118, 1122 (2d Cir.) (pattern

of racketeering activity must be done “in the conduct of

the affairs of an ‘enterprise’ ”), cert. denied, 449 U.S.

871 (1980). Therefore, in order for the present indictment

to give rise to a valid claim of double jeopardy, both the

enterprise and the pattern of activity alleged in the 1976

indictment must be the same as those alleged in the 1982

indictment. If either is different, there is no infirmity

under the double jeopardy clause. See generally Note,

RICO and the Liberal Construction Clause, 66 Cornell L.

Rev. 167 (1980).

Instructive in this connection is United States v. Dean,

647 F.2d 779 (8th Cir.), modified on other grounds, 667

F.2d 729 (1981), cert. denied, 102 S. Ct. 2296 (1982),

where the Eighth Circuit adopted a five factor test for

determining whether two RICO counts charge two dis-

tinct patterns of racketeering activity. Those factors are

(1) the time of the various activities charged as parts

of separate patterns; (2) the identity of the persons

involved in the activities under each charge; (3) the

statutory offenses charged as racketeering activities

in each charge; (4) the nature and scope of the

activity the government seeks to punish under each

charge; and (5) the places where the corrupt activity

took place under each charge.

6118

A-13

Id, at 788. Applying these five factors to the present case,

first, there is an overlap of approximately two and one-

half years in the duration of the two enterprises, from

February 1, 1971, the beginning of the “extortion” en-

terprise, and August 31, 19793, the end of the “arson-for-

hire” enterprise. However, there is no time overlap as to

the predicate offenses alleged in the indictments, the last

predicate offense alleged in the 1976 indictment having

occurred on March 17, 1973, and the first predicate

offense alleged in the 1982 indictment—the Massaro

homicide—having occurred in October of 1973.

Second, as to the identity of persons involved in the

alleged activities, of the eighteen persons indicted in 1976

and 1982 only two individuals are named in both indict-

ments, Piccarreto and Marino.

Third, the racketeering activities charged in each indict-

ment have only one point of conjunction, that being the

allegation of arson. However, the act of arson charged in

the 1982 indictment post-dates the last act of arson in the

1976 indictment by some five years. Moreover, the arson

charged in the 1982 indictment is allegedly in furtherance

of an extortion scheme, not the arson-for-hire scheme

which was the focus of the 1976 indictment. In our view,

there is no overlap of racketeering activities under the

third Dean factor.

As to the fourth and most significant factor—the na-

ture and scope of the activity the government seeks to

punish under each indictment—as previously indicated

the 1976 indictment concerned a scheme to defraud insur-

ance companies by deliberately setting fires to insured

buildings. The present indictment, by contrast, is directed

at a scheme to extort monies from Rochester, New York

gambling clubs, to protect the affairs of the enterprise

from “rival and competing individuals” through the use

6119

A-14

of threats, murder and arson, and to avoid detection by

commiting other illegal acts, including murder and ob-

struction of justice. There is plainly no convergence of the

two indictments in this regard.

Fifth, and finally, the place where the illegal activity

took place in both indictments did center around the

Rochester, New York area.

Having considered and applied the five Dean factors,

the unavoidable conclusion is that the two indictments

allege distinct patterns of racketeering activity. Even as-

suming an identity of the enterprises, in view of our

conclusion that there are two distinct patterns of rack-

eteering present here, the prosecution of Piccarreto and

Marino does not offend the double jeopardy clause.

Taken to its logical extreme, appellants’ argument that

the allowable unit of prosecution under RICO is the

enterprise would effectively immunize members of that

enterprise from any future prosecution following an ini-

tial RICO prosecution, regardless of the nature of the

subsequent misconduct.

Withal, we are not insensitive to appellants’ concern

that the government may be free to pursue successive

prosecutions under RICO by merely alleging two predi-

cate acts—sufficient to establish a pattern of racketeering

activity under 18 U.S.C. § 1916(5)—and, by holding in

reserve other predicate acts, bring future RICO prosecu-

tions against participants in the same enterprise.* Indeed,

4 In United States vy Huber, 603 F.2d 387 (2d Cir. 1979), cert. denied,

445 U.S. 927 (1980), court noted that “the potentially broad reach of

RICO poses a danger of abuse where a prosecutor attempts to apply

the statute to situations for which it was not primarily intended.” /d. at

395-96. This court went on to caution strongly against “undue prosecu-

torial zeal in invoking RICO,” id. at 396. See also United States v.

Weisman, 624 F.2d at 1123. See generally Comment, The Need for

Greater Double Jeopardy and Due Process Safeguards in RICO

Criminal and Civil Actions, 70 Calif. L. Rev. 724 (1982).

6120

A-15

appellants contend, an example of just that is presented

here with the government’s inclusion of the Massaro

homicide as a predicate act in the 1982 indictment when

the government in fact knew or should have known of

that homicide at the time it filed its 1976 indictment.

Thus, appellants submit, the Massaro homicide should

have been included in the 1976 RICO indictment or not at

all. However, the 1982 indictment includes the Massaro

murder as one of seyeral unlawful acts designed to main-

tain control over the enterprise’s membership in fur-

therance of its extortion scheme—a scheme which had no

relationship to the 1976 arson-for-hire activity.

In short, we are satisfied that the RICO indictment in

the present case passes muster under the five Dean fac-

tors.

Appellants’ further argument that RICO is analogous

to the crime of conspiracy must fail, for here there exist

two distinct criminal endeavors, one whose purpose was

to obtain monies through arson for hire and insurance

fraud, the other to obtain monies through extortion.

Thus, the same group which during the same period of

time organizes into different enterprises in order to con-

summate distinct patterns of racketeering activity may be

prosecuted for each without trenching upon the constitu-

tional guarantee against double jeopardy. See United

States v. Bagaric, 706 F.2d at 55 (“the nature of the

misconduct often provides the best clue toward defining

the enterprise”); United States v. Weisman, 624 F.2d at

1123. See also United States v. McDonald, 692 F.2d 376

(Sth Cir. 1982), cert. denied, 103 S. Ct. 1531 (1983);

United States v. Mallah, 503 F.2d 971 (2d Cir. 1974), cert.

denied, 420 U.S. 995 (1975). Cf. Braverman v. United

States, 317 U.S. 49 (1942).

6121

A-16

IV

Collateral Estoppel

We consider finally the contention that in light of the

1976 RICO acquittal the government is collaterally es-

topped from relitigating those issues which were resolved

in favor of Marino and Piccarreto

The starting point for determining this collateral estop-

pel issue is Ashe v. Swenson, 397 U.S. 436 (1970). In

Ashe the Supreme Court held that the doctrine of collat-

eral estoppel, as applied to criminal proceedings precludes

the government from relitigating an issue of ultimate fact

involving the same parties that was necessarily determined

in favor of a defendant. /d. at 444. The burden is on

defendants to show that the verdict in the 1976 RICO

prosecution decided the very issue now in litigation.

United States v. Mespoulede, 597 F.2d 329, 333 (2d Cir.

1979); United States v. Cala, 521 F.2d 605, 608 (2d Cir.

1975); United States v. Tramunti, 500 F.2d 1334, 1346 (2d

Cir.), cert. denied, 419 U.S. 1079 (1974). Our task is to

determine “whether a rational jury could have grounded

its verdict upon an issue other than that which the

defendant seeks to foreclose from consideration.” Ashe,

397 U.S. at 444.

Here, Marino and Piccarreto contend that their 1977

acquittal on RICO charges necessarily means that the jury

concluded that they were not members of the enterprise.

However, as the government submits and as a fair reading

of the 1982 indictment indicates, that indictment charges

defendants with membership in an enterprise wholly dif-

ferent from that described in the 1976 indictment.

Further, without engaging in a hypertechnical construc-

tion of the jury’s verdict, United States v. Mespoulede,

6122

A-17

597 F.2d at 333, there exists a “plausible explanation{ ]

for the jury’s failure to convict,” United States v. King,

563 F.2d 559, 561 (2d Cir. 1977), cert. denied, 435 U.S.

918 (1978), even assuming that the enterprise in each

indictment is the same. The acquittal of Marino and

Piccarreto could have been the result of a jury determina-

tion that while they were members of the enterprise, they

did not participate in the arson-for-hire or insurance

fraud schemes. As for their acquittal on the RICO con-

spiracy count, even assuming that the jury concluded that

they were not members of the enterprise, this does not

preclude a subsequent conspiracy conviction, provided

the two conspiracies are distinct criminal schemes. United

States v. Sturman, 679 F.2d 840, 844 & n.9 (11th Cir.

1982), cert. denied, 103 S. Ct. 816 (1983); United States v.

Papa, 533 F.2d 815, 822 (2d Cir.), cert. denied, 429 U.S.

961 (1976). Here, there is “nothing to suggest that the

success of one [conspiracy to commit one particular

scheme] was in any way dependent upon or related to the

other” conspiracy. Papa, 533 F.2d at 822.

In brief, at this stage of the proceedings, we fail to see

any indication of an attempt by the government “to

persuade a second jury of the same fact already litigated”

in defendants’ favor. Mespoulede, 597 F.2d at 335. On

this record, the government is thus not barred from

charging Marino and Piccarreto with either a new RICO

conspiracy or a new substantive RICO offense.

V

For the foregoing reasons, the order of the district

court denying appellants’ motions to dismiss the indict-

ment is affirmed.

9

6123

Page

6109

INSERT

November 9, 1982

November 8, 1982

8I-V

A-19

UNITED STATES of America,

Plaintiff,

Vv.

Samuel J. RUSSOTTI, et al., Rene Picarreto, Richard J.

Marino, Thomas E. Marotta, Joseph R. Rossi, a/k/a ‘“The

Hop’’, Anthony M. Columbo, Donald J. Paone, Joseph J.

Trieste, Joseph J. LaDolce, a/k/a Joseph J. LoDolce, John

M. Trivigno, a/k/a “Flap”, Defendants.

No. CR-82-156T.

United States District Court

W.D. New York.

Jan. 26, 1983.

Defendants brought series of motions, seeking to dismiss

indictment under Racketeer Influenced and Corrupt

Organizations Act or, in the alternative, to limit the proof that

the Government could present at trial. The District Court,

Telesca, J., held that: (1) Government could, for double

jeopardy purposes, constitutionally include homicide which was

subject of defendants’ state court prosecution as underlying

crime in RICO indictment based on principle of dual

sovereignty; (2) even assuming that enterprises alleged in two

RICO indictments which respectively charged “arson for hire’’

and murder, attempted murder, extortion and obstruction of

justice were the same, prosecution of defendants under in-

dictment charging murder and attempted murder following

acquittal on other indictment did not violate double jeopardy

clause; (3) Government was not collaterally estopped from

relitigating issue of defendants’ membership in criminal en-

terprise charged in former indictment by defendants’ acquittal

of charges thereunder; and (4) defendants’ conclusory allegation

of prosecutorial misconduct did not satisfy burden of demon-

strating prosecutorial vindictiveness sufficient to require

dismissal of indictment.

Motions denied.

A-20

1. Criminal Law Key No. 201

Government could, for double jeopardy purposes, con-

stitutionally include homicide which was subject of defendants’

state court prosecution as underlying crime in federal

racketeering indictment based on principle of dual sovereignty,

notwithstanding that two principal witnesses in state

prosecution were under federal witness protection program. 18

U.S.C.A. § 1961 et seq.; U.S.C.A. Const.Amend. 5.

2. Commerce Key No. 82.5

Racketeer Influenced and Corrupt Organizations Act does

not seek to criminalize membership alone in enterprise, nor does

it criminalize racketeering activity standing alone, but, rather,

it is combination of such two separate and distinct elements

which Congress intended to punish by enacting statute. 18

U.S.C.A. § 1961 et seq.

3. Criminal Law Key No. 195(1)

In order for indictment under Racketeer Influenced and

Corrupt Organizations Act to have offended double jeopardy

clause on ground of prior RICO prosecution of defendants,

criminal enterprise and pattern of racketeering alleged in prior

indictment had to be “‘the same”’ as criminal enterprise and

pattern of racketeering in subject indictment. 18 U.S.C.A. §

1961 et seq; U.S.C.A. Const.Amend. 5.

4. Criminal Law Key No. 196

Factors to be utilized in determining whether prior and

subsequent Racketeer Influenced and Corrupt Organizations

Act counts present distinguishable instances of conduct or

participation in affairs of enterprise so as to avoid violation of

double jeopardy clause are time of various activities charged as

part of separate patterns, identity of persons involved in ac-

A-21

tivities, statutory offenses charged as racketeering activities in

each charge, nature and scope of activity which Government

seeks to punish under each charge, and places where corrupt

activity took place under each charge. 18 U.S.CA. § 1961 et

seq.; U.S.C.A. Const.Amend. 5.

5. Criminal Law Key No. 196

Even assuming that enterprises alleged in two Racketeering

Influenced and Corrupt Organizations Act indictments

respectively charging ‘‘arson for hire’’ and murder, attempted

murder, extortion and obstruction of justice were the same,

prosecution of defendants under indictment charging murder

and attempted murder following acquittal on other indictment

did not violate double jeopardy clause where there was no

overlap as to predicate offenses alleged, only two defendants

overlapped, only overlap of offenses was that both indictments

alleged arson as predicate offense, nature and scope of activities

sought to be proven under respective indictments clearly dif-

fered, and location of predicate acts of racketeering were wholly

different. 18 U.S.CA. § 1961 et seq.; U.S.C.A. Const.Amend.

5.

6. Judgment Key No. 751

Issue of whether defendants were members of criminal en-

terprise as charged in prior Racketeer Influenced and Corrupt

Organizations Act indictment was necessarily determined in

their favor as result of acquittal of RICO charges and therefore

collateral estoppel did not preclude Government from

relitigating issue in subsequent RICO prosecution where

defendants’ acquittals could rationally be based upon jury’s

determination that, while they were both members of en-

terprise, they did not participate in particular affairs of en-

terprise charged and thus other plausible explanations existed

for acquittal. 18 U.S.C.A. § 1961 et seq.; U.S.C.A.

Const.Amend. 5.

A-22

7. Indictment and Information Key No. 144.2

Defendants have burden of demonstrating prosecutorial

vindictiveness sufficient to require dismissal of indictment.

8. Indictment and Information Key No. 1442

Defendants’ conclusory allegation of prosecutorial

misconduct did not satisfy burden of demonstrating vin-

dictiveness sufficient to require dismissal of indictment.

Salvatore R. Martoche, U.S. Atty. W.D.N.Y. by Kenneth

R. Fisher and Robert L. King, Sp. Asst. U.S. Attys., Dept. of

Justice Strike Force, Rochester, N.Y., for plaintiff.

John Humann, Buffalo, N.Y., for Piccarreto.

Paul J. Cambria, Jr., Buffalo, N.Y., for Marino.

Richard A. Miller, Rochester, N.Y., for Marotta.

Herbert Greenman, Buffalo, N.Y., for Rossi.

Robert Murphy, Buffalo, N.Y., for Colombo.

John F. Speranza, Rochester, N.Y., for Paone.

Charles Noce, Rochester, N.Y., for Trieste.

Robert Freedman, Buffalo, N.Y., for LaDolce.

John R. Parrinello, Rochester, N.Y., for Trivigno.

DECISION and ORDER

TELESCA, District Judge.

Presented for determination are a series of motions, joined in

by all defendants, seeking to dismiss the indictment or, in the

alternative, to limit the proof that the government may present

at trial. The essence of all motions is rooted in the concepts of

double jeopardy and collateral estoppel.

A-23

PRIOR STATE COURT PROCEEDINGS

The defendants Russotti, Piccarreto, Marotta and Marino

were convicted in 1976, in Monroe Conty Court of conspiracy in

the first degree in connection with the killing of Vincent J.

Massaro. Subsequently, in 1978, that judgment of conviction

was vacated and the indictment was dismissed based on the fact

that their convictions were obtained through the use of perjured

testimony. All defendants now contend that the present in-

clusion of the Massaro homicide as an underlying crime making

up part of the racketeering pattern is barred by virtue of the

prior state court proceedings.

At the outset, I note that defendants Rossi, Colombo, Paone,

Trieste, LaDolce and Trivigno were never charged in any forum

with this crime, hence their motions to dismiss on double

jeopardy grounds are denied.

[1] The general question of whether successive federal and

state prosecutions are constitutionally permissible has been

raised many times. As the Supreme Court of the United States

has stated, “‘[w]hile United States v. Lanza, 260 U.S. 377 [43

S.Ct. 141, 67 L.Ed 314], was the first case in which we squarely

held valid a federal prosecution arising out of the same facts

which has been the basis of a state conviction, the validity of

such a prosecution by the Federal Government has not been

questioned by this Court since the opinion of Fox v. Ohio, 5

How. 410 [46 U.S. 410, 12 L.Ed. 213], more than one hundred

years ago.” Bartkus v. Illinois, 359 U.S. 121, 129, 79 S.Ct. 676,

681, 3 L.ED.2d 684 (1959). In Abbate v. United States, 359

U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), the Supreme

Court directly addressed the question of “whether a federal

prosecution of defendants already prosecuted for the same acts

by a State, subjects those defendants ‘for the same offense to be

twice put in jeopardy of life or limb’ in violation of the Fifth

Amendment.” Id. at 190, 79 S.Ct. at 668. The Court held that a

prosecution by the federal government following on the heels of

a state prosecution, was permissible based on the concept of

dual sovereignty.

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We have here two sovereignties, deriving power from

different sources, capable of dealing with the same

territory . . . Each government in determining what shall

be an offense against its peace and dignity is exercising

its own sovereignty, not that of the other. It follows that

an act denounced as a crime by both national and state

sovereignties is an offense against the peace and dignity

of both and may be punished by each.

Id. at 194, 79 S.Ct. at 670, quoting United States v. Lanza, 260

U.S. 377, 382, 43 S.Ct. 141, 142. 67 L.Ed. 314 (1922) (emphasis

added). Thus, it is ciear that the government may include the

Massaro homicide as an underlying crime in its R.I.C.0.*

indictment based on the principle of dual sovereignty.

The defense contends, however, that the dual sovereignty

theory does not apply here. They argue that the previous state

Massaro prosecution was merely a cover for the federal

authorities; that the federal authorities were so substantially

involved in the state prosecution that they should not be allowed

to relitigate the same issues here. Defendants also argue for-

cefully that since the two principal witnesses in the State court

Massaro murder trial were under the Federal Witness

Protection Program, that fact elevates the Massaro trial to the

equivalent of a Federal prosecution.

I hold otherwise. While the cases note that “‘[t]he dual

sovereignty doctrine is subject to the qualification * * * that a

state prosecution cannot be used merely as a cover and a tool of

federal authorities,’’ United States v. Aleman, 609 F.2d 298,

309 (7th Cir.1979), cert. denied 445 U.S. 946, 100 S.Ct. 1345,

63 L.Ed.2d 780 (1980), I have found no case where a court had

prevented the federal government from proceeding with a

prosecution notwithstanding their involvement in the preceding

state court action. See e.g., Bartkus v. Illinois, 359 U.S. 121,

123-24, 79 S.Ct. 676, 678-79, 3 L.Ed.2d 684 (1959}; United

*R.1.C.0. — Racketeer Influenced and Corrupt Organizations, 18

U.S.C. § 1961 et seq.

A-25

States v. Liddy, 542 F.2d 76, 79 (D.C.Cir.1976). In United

States v. Liddy, the D.C. Court of Appeals set forth the cir-

cumstances under which a federal prosecution, following a state

prosecution, may be violative of the Double Jeopardy Clause of

the Fifth Amendment. ‘Bartkus, as we view it, stands for the

proposition that federal authorities are proscribed from

manipulating state processes to accomplish that which they

cannot constitutionally do themselves.” Id. at 79. In the instant

case, the perjured testimony that was given in state court was an

attempt to corroborate an informant’s testimony, a step that

would have been unnecessary in federal court. Moreover, it is

clear that the Monroe County prosecution was not “begun at

the direction,” {see United States v. Liddy at pages 79-80), of

the federal government but was rather initiated by the local

authorities.

The defense makes a great deal out of the “co-mingling of

manpower and prosecutorial efforts by the state and federal

_ authorities in these prosecutions.’ But that factor was present

— to some extent — in both Bartkus and in Aleman, and in

both cases the respective courts praised the ‘‘cooperation

between state and federal authorities [as] a welcome in-

novation.” United States v. Aleman, at 309; Bartkus v. Illinois,

359 U.S. at 123, 79 S.Ct. at 678. I am in full agreement with

those courts. The cooperation between state and federal police

agencies and prosecutorial organizations is both laudatory and

desired.

Historically, the merger of resources and investigative efforts

by state and federal governments, was not always the case. The

record of these proceedings show that in the original Massaro

prosecution the state and federal governments were acting

independently of one another. Ultimately the federal authorities

withdrew from the case and the state continued alone. Clearly,

based on the history of this case, the dual sovereignty theory

should be applied and accordingly defendants’ motion to

dismiss the indictment based on the prior state Massaro con-

victions is denied.

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THE 1976 R.1.C.0. INDICTMENT

On April 7, 1976, government prosecutors filed a two-count

indictment charging defendant Piccarreto, defendant Marine

and others with a R.I.C.O. substantive crime as well as a

R.1.C.0. conspiracy. (18 U.S.C. § 1962(c), (d)). The 1976

indictment alleged that during that period from June 1, 1969, to

August 31, 1973, Mr. Piccarreto and Mr. \\ arino were

members of a criminal enterprise which conspired to commit

and did commit multiple acts of arson and which devised a

scheme to defraud certain insurance companies by means of

false representations as to the facts and circumstances

surrounding the fires. (For lack of a better descriptive name, the

government refers to the 1976 R.I.C.O. indictment as the

“arson for hire’ indictment.) The “arson for hire’ case was

tried before a jury before the Honorable Harold P. Burke (now

deceased) from September 13, 1977, to October 31, 1977, here

in Rochester. On October 31, 1977, the jury rendered a verdict

of not guilty as to both Mr. Piccarreto and Mr. Marino.

In the instant action, defendants Piccarreto and Marino

argue that their acquittal in October, 1977, on the “arson for

hire” charges bars prosecution of the present indictment. The

defendants contend that their prosecution under the present

indictment would violate the Double Jeopardy clause of the

Fifth Amendment by “‘imposing more than one punishment for

the same offense.”’ Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct.

2221, 2225, 53 L.Ed.2d 187 (1977).

The critical double jeopardy inquiry in the instant case is

therefore whether these two R.I.C.O. indictments would, in

effect, seek to punish the defendants twice for the same of-

fense.’’ The answer to this inquiry necessarily depends on what

Congress envisioned as the “allowable unit of prosecution”

when it enacted R.I.C.O. As the Supreme Court explained in

Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57

L.Ed.2d 43 (1977):

A-27

;

It is congress and not the prosecution which establishes

and defines offenses. Few, if any, limitations are im-

posed on the Double Jeopardy Clause on the legislative

power to define offenses. But once Congress has defined

a statutory offense by its prescription of the “allowable

unit of prosecution,”’ that prescription determines the

scope of protection afforded by a prior conviction or

acquittal. Whether a particular course of conduct in-

volves one or more distinct ‘offenses’ under the statute

depends on this congressional choice.

Id. at 69-70, 98 S.Ct. at 2181-82 (citations omitted) (emphasis

supplied). In the instant case the prosecution and defendants

are in total disagreement as to their views of what constitutes an

“allowable unit of prosecution.” The government argues that

Congress intended each “distinct pattern of racketeering ac-

tivity’’ to be the allowable unit of prosecution. The defendants

contend that the “allowable unit of prosecution’ under

R.I.C.O. is not the acts of racketeering but the enterprise itself.

Under the government view, double jeopardy would not attach

to a single criminal enterprise so long as successive R.1.C.O.

indictments allege different patterns of racketeering activity.

Under the defendants’ view, once the government has obtained

a R.I.C.O. conviction or acquittal as to a particular criminal

enterprise, prosecutors may not indict the same enterprise again

for racketeering acts that occurred during the time period en-

compassed by the first R.I.C.O. indictment, even if the second

indictment alleges totally different racketeering activities. !

IThe position taken by the defendants during oral argument was

significantly narrower than the position espoused in their motion papers. In

the latter, the defendants’ seemed to argue that once the government ob-

tained a R.I.C.O. conviction or acquittal as to a particular criminal en-

terprise, prosecutors may never re-indict the same enterprise again under

R.1.C.O. Under this view, in order for Mr. Marino or Mr. Piccarreto to be

subject to another R.I.C.O. indictment, the government would have to

“establish that a new and completely different enterprise than that

prosecuted in the 1976 indictment existed”, and that Mr. Marino and Mr.

Piccarreto participated in the requisite number of racketeering acts com-

mitted by that “new” enterprise. (See Affidavit of Paul J. Cambria, Jr. 482.

See also Memorandum of Law on Behalf of Mr. Piccarreto at 46;

Memorandum of Law on Behalf of Mr. Russotti at 417.)

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[2] In determining the ‘allowable unit of prosecution” under

the R.I.C.O. statute, I am guided by the Supreme Court’s

recent language in United States v. Turkette, 452 U.S. 576, 101

S.Ct. 2524, 69 L.Ed.2d 246 (1981),

In order to secure a conviction under R.I.C.O. the

Government must prove both the existence of an ‘en-

terprise’ and the connected ‘pattern of racketeering

activity’. The enterprise is an entity, for present pur-

poses, a group of persons associated together for a

common purpose of engaging in a course of conduct. The

pattern of racketeering activity is on the other hand, a

series of criminal acts as defined by the statute. 18 USC

§ 1961(1). The former is proved by evidence of an on-

going organization, formal or informal, and by evidence

that the various associates function as a continuing unit.

The latter is proved by evidence of the requisite number

of acts of racketeering committed by the participants in

the enterprise. While the proof used to establish these

separate elements may in particular cases coalesce, proof

of one does not necessarily establish the other. The

‘enterprise’ is not the ‘pattern of racketeering activity’; it

is an entity separate and apart from the pattern of ac-

tivity in which it engages. The existence of an enterprise

at all times remains a separate element, which must be

proved by the Government” (452 U.S. at 583, 101 S.Ct.

at 2528-29) (emphasis supplied).

2The language of the R.1.C.O. statute itself is of little assistance in deter-

mining the “allowable unit of prosecution.” As the Eighth Circuit noted in

United States v. Dean, 647 F.2d 779 (8th Cir. 1981), modified en banc on

other grounds, 667 F.2d 729 (8th Cir. 1982}, cert. denied, ___ U.S. ___,

102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982): “The statutory words [of

R.1.C.O.] would support at least four [different] interpretations of the

allowable unit of prosecution.” Id. at 786.

A-29

It is apparent therefore that R.I.C.O. does not seek to

criminalize membership alone in an enterprise*: nor does it

criminalize racketeering activity standing alone.* Rather, it is

the combination of these two separate and distinct elements

which Congress intended to punish by enacting R.1.C.O.

[3] Accordingly, in order for the instant indictment to offend

the Double Jeopardy Clause both the criminal enterprise and

the pattern of racketeering alleged in the 1976 R.I.C.O. in-

dictment must be “the same”’ as the criminal enterprise and the

pattern of racketeering in the present indictment. If both are the

same, the present indictment must be dismissed. If either is

different, the indictment does not offend the Double Jeopardy

Clause of the Fifth Amendment.

It is important to determine whether the 1976 R.I.C.O.

indictment and the present indictment charge two distinct

patterns of racketeering activity. In United States v. Dean, 674

F.2d 779 (8th Cir. 1981) the Court of Appeals for the Eighth

Circuit adopted a five factor test in determining whether two

R.I.C.O. counts presented ‘“‘distinguishable instances of

conduct or participation in the affairs of [an] enterprise.” Id. at

786. The five factors utilized were:

1. The time of the various activities charged as part of

separate patterns

2. The identity of the persons involved in the activities

3See United States v. Mandel, 415 F.Supp. 997 (D.Md. 1976), where the

Court states: “Indeed, the legislative history of [R.I.C.O.] . . . shows that

Congress has taken pains to make a conviction dependent upon behavior

and not ‘status’. When faced with various proposals to incorporate a

definition of organized crime, Congress flatly rejected the attempt, aware of

the impossibility of definition.”” Id. at 1018. See also United States v.

Forsythe, 560 F.2d 1127, 1136 (3rd Cir. 1977).

4See United States v. Phillips, 664 F.2d 971, 1011 (5th Cir. 1981), cert.

denied, ___ U.S. ____, 102 S.Ct. 2965, 73 L.Ed.2d 1354.

A-30

3. The statutory offenses charged as racketeering activities

in each charge

4. The nature and scope of the activity the Government

seeks to punish under each charge

The places where the corrupt activity took place under

each charge

vu

[4] Accordingly this test is adopted and will be applied in the

instant case.

1. The time of the various activities charged as part of

separate patterns: The life of the enterprise in the 1976

R.1I.C.O. case, ran from June 1, 1969, up to and including

August 31, 1973. The life of the enterprise alleged in the present

indictment runs from February 1, 1971, up to and including

November 8, 1982. Thus, there does exist an overlap of ap-

proximately two and one-half (2!4) years in the “lifespan” of

the two enterprises. However, there is no overlap as to the

predicate offenses alleged in the indictments. The last predicate

offense in the 1976 indictment was alleged to have occurred on

March 17, 1973. The first predicate offense in the present in-

dictment is alleged to have occurred in October of 1973.

2. The identity of the persons involved in the activities. The

1976 indictment charged eight defendants, two of which were

Richard Marino and Rene Piccarreto. The present indictment

charges ten defendants, the only overlap being Mr. Piccarreto

and Mr. Marino.

3. The statutory offense charged as Racketeering Activities.

There appears to be minimal overlap in terms of the offenses

charged as predicate racketeering crimes in the two indictments.

The 1976 indictment charged arson and mail fraud. The present

indictment charges murder, attempted murder, extortion and

obstruction of justice. The only overlap under this factor is that

both indictments allege arson as a predicate offense. However,

the arson charged in the present indictment occurred five (5)

A-31

years after the acts alleged in the 1976 indictment concluded. In

addition, the arson alleged in the present indictment is not part

of the ‘‘arson for hire” scheme that was the focus of the 1976

indictment and trial.

4. The nature and scope of the activity the government seeks

to punish under each indictment. The nature and scope of the

activities the government seeks to prove under the present in-

dictment is clearly different from the nature and scope of the

activities alleged in the 1976 indictment. The 1976 R.I.C.O.

indictment concerned alleged criminal acts committed for a

single purpose: defrauding insurance companies by deliberately

setting fires to insured buildings. The present indictment seeks

to punish criminal activity wholly different from the ‘‘arson for

hire” scheme alleged in the 1976 indictment. The nature and

scope of the activity charged in the instant indictment concerns

obtaining monies through the extortion of Rochester gambling

clubs; protecting the affairs of the alleged criminal enterprise

from “rival and competing individuals” through the use of

threats, murder and arson; and avoiding law enforcement

investigations of the criminal enterprise by committing illegal

acts, including “threats involving murder and obstruction of

justice.”’ (Indictment NO. 82-156, filed November 9, 1982.)

This Court fails to see any overlap in the nature and scope of the

racketeering activity charged in the two indictments.

5. The place where the corrupt activity took place under each

indictment. Both the 1976 and the present indictment allege

events in and around the Rochester, New York area. However,

as the government points out, “the location of the predicate acts

of racketeering are wholly different, obviously because the

crimes charged are different.” (Government’s Answer to

Defendant's Motion to Dismiss, page 17).

[5] After careful application of the Dean, five factor test to

the questioned indictments, I find that the 1976 R.1.C.O. in-

A-32

dictment and the present indictment reveal “distinct patterns of

racketeering activity... Dean, supra, at 787. Accordingly, even

assuming arguendo that the enterprises alleged in the two in-

dictments are, in fact, the same (a determination I neither need

to make nor do now make), prosecution of the defendants

Marino and Piccarreto under the present indictment does not

violate the Double Jeopardy Clause of the Fifth Amendment.

COLLATERAL ESTOPPEL AND THE

1976 R.L.C.0. ACQUITTAL

As an alternative argument, defendants Marino and Pic-

carreto assert that ‘‘even if the present prosecution is not totally

barred by the Double Jeopardy Clause, at the very least, the

government is prohibited from attempted to re-litigate issues

resolved against them, and in favor of the defendants .. .

during the 1977 trial.”’ ( Affidavit of Paul J. Cambria, Jr. 484.

Both the government and the defendants agree that the

correct principle of law. to be utilized in determining the

collateral estoppel issue is found in the Supreme Court’s

decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25

L.Ed.2d 469 (1970). In Ashe, the Court held that the doctrine of

collateral estoppel, as applied to criminal proceedings,

precluded the government from relitigating an issue of ultimate

fact that was necessarily determined in favor of a defendant by a

valid and final judgment in a prior proceeding involving the

same parties. Ashe, supra, at 444, 90 S.Ct., at 1194. See also

United States v. Tramunti, 500 F.2d 1334, 1346 (2nd Cir. 1974)

cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673

(1974). The Court’s task is to determine “‘whether a rational

jury could have grounded its verdict upon an issue other than

that which the defendant seeks to foreclose from consideration.”

Ashe, supra, at 444, 90 S.Ct., at 1194. In this regard, the

burden is on “the defendant to establish that the issue he seeks

to foreclose from litigation in the present prosecution was

A-33

necessarily decided in his favor by the prior verdict.” United

States v. Cala, 521 F.2d 605, 608 (2nd Cir. 1975). See also

United States v. Boffa, 513 F.Supp. 444 (D.Del. 1980) aff'd in

part and rev'd. in part on other grounds, 668 F.2d 919 (3rd Cir.

1982). ’

[6] The issue of fact which defendants Marino and Piccarreto

believe was necessarily determined in their favor as a result of

their 1977 acquittal of R.1.C.O. charges is that they were not

members of the criminal enterprise charged in the 1976 in-

dictment. Even assuming, for the sake of argument, that the

criminal enterprise alleged in the 1976 R.1.C.O. indictment is

the same criminal enterprise alleged in the present indictment,

defendants’ collateral estoppel arguments must, nonetheless be

rejected. Certainly, there exist other plausible explanations for

the jury’s acquittal of Marino and Piccarreto in 1977 other than

a determination that neither was a member of the criminal

enterprise.

In United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524,

69 L.Ed.2d 246 (1981), the Supreme Court made clear that

there exist two distinct elements necessary for a R.I.C.O.

conviction: (1) the existence of an enterprise and (2) the requisite

number of racketeering acts committed by participants in the

enterprise. Jd. at 583, 101 S.Ct. at 2528. Mr. Marino’s and Mr.

Piccarreto’s acquittal in 1977 could rationally have been based

upon the jury’s determination that, while they were both

members of the enterprise, they did not participate in the

particular affairs of the enterprise charged in the 1976 in-

dictment (which was the arson for hire and insurance company

fraud scheme).

Therefore, the defendants have failed to carry their burden

for demonstrating that their prior 1976 R.I.C.O. acquittal

“necessarily” resolved any issue in the present indictment

against the government. Accordingly, their motion to dismiss

portions of the indictment on collateral estoppel grounds is

denied.

A-34

PROSECUTORIAL VINDICTIVENESS

OR MISCONDUCT

[7. 8] Defendants have also moved to dismiss the present

indictment on the grounds of Prosecutorial vindictiveness or

misconduct. The defendants have the burden of demonstrating

vindictiveness sufficient to require dismissal of the indictment.

See United States v. Goodwin, ___. U.S. ___, 102 S.Ct. 2485,

73 L.Ed.2d 74 (1982); United States v. Gallegos-Curiel, 681

F.2d 1164 (9th Cir. 1982). After careful consideration of the

pleadings, affidavits, exhibits and other legal memorandum

submitted by the parties, I find that the defendants’ conclusory

allegation of prosecutorial misconduct does not satisfy that

burden. Accordingly, their motion to dismiss the indictment of

prosecutorial vindictiveness grounds is denied.

In sum, the defendants’ motion for a dismissal of the in-

dictment or portions thereof on Double Jeopardy, Collateral

Estoppel or prosecutorial vindictiveness grounds is, in all

respects, denied.

ALL OF THE ABOVE IS SO ORDERED.

A-35

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

U.S.A.

US.

SAMUEL J. RUSSOTTI, RENE PICCARRETO,

RICHARD J. MARINO & THOMAS E. MARROTTA

Cr. 82-156

C/A 83-1054

83-1055

83-1056

83-1069

A certified copy of the mandate of the United States Court of

Appeals for the Second Circuit dated August 29, 1983, having

been filed in the office of the Clerk of this court on September

23, 1983, it is hereby

ORDERED, ADJUDGED AND DECREED that said

mandate be, and hereby is, made the judgment of this court.

JOHN T. CURTIN

Chief United States District Judge

Dated: September 23, 1983

Buffalo, New York

A-36

18 U.S.C. §§ 1961 and 1962

§ 1961. Definitions

As used in this chapter—

(1) “Racketeering activity’ means (A) any act or threat in-

volving murder, kidnapping, 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), sections 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 information), section 1341 (relating to mail fraud),

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

obstruction of justice}, section 1510 (relating to obstruction of

criminal investigations), section 1511 (relating to the ob-

struction of State or local law enforcement), section 1951

(relating to interference with commerce, robbery, or extortion),

section 1952 (relating to racketeering), section 1953 (relating to

interstate transportation of wagering paraphernalia), section

1954 (relating to unlawful welfare fund payments), section 1955

(relating to the prohibition of illegal gambling businesses),

sections 2314 and 2315 (relating to interstate transportation of

stolen property), sections 2341-2346 (relating to trafficking in

contraband cigarettes), sections 2421-24 (relating to white slave.

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

States Code, section 186 (dealing with restrictions on payments

and loans to labor organizations) or section 501(c) (relating to

embezzlement from union funds), or (D) any offense involving

[bankruptcy] fraud .. . , fraud in the sale of securities, or the

A-37

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, or

any department, agency, or instrumentality thereof;

(3) “person” includes any individual or entity capable of

holding a legal or beneficial interest in property;

(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;

(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 under State or Federal law,

where the usurious rate is at least twice the enforceable rate;

(7) “racketeering investigator” means any attorney or in-

vestigator so designated by the Attorney General and charged

with the duty of enforcing or carrying into effect this chapter;

A-38

(8) “racketeering investigation” means any inquiry conducted

by any racketeering investigator for the purpose of ascertaining

whether any person has been involved in any violation of this

chapter or 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 department 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 department or agency so

designated may use in investigations authorized by this chapter

either the investigative provisions of this chapter or the in-

vestigative power of such department or agency otherwise

conferred by law.

§ 1962 Probited 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 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 com-

merce. A purchase of securities 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

A-39

securities of the issuer held by the purchaser, the members of his

immediate family, and his or their accomplices in any pattern or

racketeering activity of 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 io 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 interest 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 en-

terprise’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.