Petition — Piteo v. United States

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83 -.1696

CLERK

3n The a

Supreme Court of the United States

October Term, 1983

VINCENT PITEO,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BARRY IVAN SLOTNICK

Attorney for Petitioner

225 Broadway, Suite 2100

New York, N.Y. 10007

(212) 964-3200

BARRY IVAN SLOTNICK, P.C.

JILL G. OKUN

MARK M. BAKER

Of Counsel

Dok Burley ws 203 Richmond Avenue & Staten Island, New York 10302

Tel: (212) 447-5358 — (516) 222-2470 — (914) 682-0848

QUESTION PRESENTED

Does the affirmative finding of uncharged

criminal conduct at a sentencing hearing which

results in the enhancement of punishment, constitute

former jeopardy thereby precluding a subsequent pro-

secution and cumulative punishment for the identical

criminal conduct?

,

THE PARTIES BELOW

Petitioner by superseding indictment was added

to the original indictment filed in the United States

District Court for the Southern District of New York

naming as defendants Benjamin Ruggiero, Nicholas

Santora, Anthony Rabito, Antonio Tomasulo, John

Cerasani, James Episcopia, Joseph Messina, Dennis

Mulligan, and Dominick ‘Sonny Black’’ Napolitano

for alleged violations under 18 U.S.C. §§1962(c) and

(d), and 21 U.S.C. §§812, 841 and 846.'

' Defendants Ruggiero, Santora, Rabito, Tomasulo and

Cerasini were jointly tried before the Honorable Robert W. Sweet

and a jury. At trial Cerasini was acquitted of all charges. Rug-

giero was convicted of the RICO conspiracy and acquitted of the

RICO substantive charge. Santora was convicted of RICO

charges and the narcotics conspiracy, but acquitted of the nar-

cotics substantive count. Rabito was acquitted on the RICO con-

spiracy but convicted on both narcotics counts. Tomasula was

convicted of the RICO conspiracy. Upon appeal the judgment

against Tomasula on the RICO conspiracy was reversed and

remanded with a direction to dismiss that count of the indict-

ment. The RICO conspiracy conviction of Santora was reversed

and remanded for a new trial. The remaining judgments were af-

firmed.

None of the remaining five defendants were tried. Episcopia’s

trial was severed. An order of nolle prosequi was entered against

Mulligan by the government. Messina and Napolitano did not ap-

pear for trial. Vincent Piteo pled guilty to a two-count informa-

tion charging violations under 18 U.S.C. §§371, 2314 and 2315.

TABLE OF CONTENTS

Page

a ae i

er ee ii

Table of Authorities... ............000000. iii

N's ) xa vax ks ceaeu ews as cane 1

ETE Tee eee TOT rere Ree 2

Constitutional Amendments Involved....... 2

I a cs voces oh éccevaete'ed 2

Statement of the Case..................... 3

Reasons for Granting the Writ.............. 5

So ois od a biG evoke 4s s DEE Ca 12

Appendix ‘‘A”—Decision of the United States

Court of Appeals for the Second Circuit, De

cided January 18, 1984.................. la

Appendix “‘B’”—Relevant Portion of the Opi-

nion of the United States District Court...... 6a

“C”—Order Extending Time to File

Petition for Writ of Certiorari............... lla

iv

TABLE OF AUTHORITIES

Page

Ashe v. Swenson, 397 U.S. 436 (1970)........ 12

Blockburger v. United States, 284 U.S. 799

RR ge ee ee onee aes Bm oe ba 12

Breed v. Jones, 421 U.S. 519 (1975)........ 8, 9, 11

Ex Parte Lange, 18 Wall 163 (1874).......... 5

Green v. United States, 355 U.S. 184 (1957)... 8

Menna v. New York, 423 U.S. 61 (1975). ...... 4

North Carolina v. Pearce, 395 U.S. 711 (1969). . 6

United States v. Ammirato, 670 F.2d 552 (5th

a I sc ye OO Ve a a ee ee oe, 7

United States v. Baylin, 696 F.2d 1030 (3rd Cir.

DNS china candies HbA acs oe eae asst 7

United States v. DiFrancesco, 449 U.S. 117

Nit nats coe Pa a eee bam se Aol on 6

United States v. Fatico, 579 F.2d 707 (2d Cir.

Ris x dae a) dnc rede s wcbudsatts 4,6

United States v. Fatico, 603 F.2d 1053 (2d Cir.

1979) cert. denied, 444 U.S. 1073 (1980)....... 4,6

Vv

United States v. Hansen, 701 F.2d 1078 (2d Cir.

ae re EEC, 5s ee 10

United States v. Haygood, 502 F.2d 166 (7th

Cir. 1974) cert. denied, 419 U.S. 1114 (1975). 10, 11

United States v. Hendrix, 505 F.2d 1233, (2d

Cir. 1974) cert. denied 423 U.S. 897 (1975)... .. 7

United States v. Ray, 683 F.2d 1116 (7th Cir.

Ts ays wee sos 7

United States v. Stevenson, 572 F.2d 1105

ceca be eenusecevaaes 7

United States v. Tracey, 675 F.2d 433 (1st Cir.

a noe eka 6, 7

'Inited States v. Tucker, 404 U.S. 443(1972)... 7

United States v. Van Moos, 660 F.2d 748 (9th

oe we g

United States v. Wise, 603 F.2d 1101 (4th Cir.

a ha a by 4

Williams v. New York, 337 U.S. 241 (1949).... = 7

Williams v. Oklahoma, 358 U.S. 576(1959).... 7

CONSTITUTIONAL AMENDMENTS

STATUTES

18 U.S.C. § 1962 (c)........- 6 eee eee eee ii, 3

18 U.S.C. § 1962 (d).... ... eee ii, 3

21 U.S.C. § 812... .. 6. eee eee eee ees ii, 3

21 U.S.C. § 841 (ail)... - ee reer ii, 3

21 U.S.C. § 841 (bDMIMA)....-. eee ii, 3

21 U.S.C. § 846... . «2. eee eee eee: ii, 3

28 U.S.C. § 1264 (1)......----- ee ee eee: 2

J

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

VINCENT PITEO,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Vincent Piteo (‘‘Piteo’’) petitions for a Writ of Cer

tiorari to review a judgment of the United States

Court of Appeals for the Second Circuit, which affirm-

od a judgment of conviction entered in the United

ee

ORDERS BELOW

A subsequently published per curiam opinion was

issued by the United States Court of Appeals for the

Second Circuit on January 18, 1984. In that opinion

the Court of Appeals affirmed the judgment of the

United States District Court for the Southern District

2

of New York. United States v. Piteo, 726 F.2d 53

(1984). The opinion of the Court of Appeals is set forth

in the Appendix at page 1a.

JURISDICTION

The judgment of the Court of Appeals affirming

the judgment of conviction of the District Court was

dated and entered on January 18, 1984.

Jurisdiction is conferred upon this Court by 28

U.S.C. §1254(1).

CONSTITUTIONAL AMENDMENTS INVOLVED

Amendment V

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 ac-

tual 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 sh «ll 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.

STATUTES INVOLVED

28 U.S.C. $1254

$1254. Courts of appeals; certiorari appeal; cer-

tified questions.

Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition

of any party to any civil or criminal case, before or

after rendition of judgment or decree.

STATEMENT OF THE CASE

Under a twice-superseded, four-count indictment,

petitioner along with nine others was charged with a

conspiracy to engage in a pattern of racketeering ac-

tivity, 18 U.S.C. §1962(d) (count 1) and with a

substantive racketeering offense, 18 U.S.C. § 1962ic)

(count 2). Two remaining counts alleged a second con-

spiracy whose object was distribution of a Schedule II

controlled substance, methaqualone, 21 U.S.C. o

(count 4) and a substantive offense of

intent to distribute methaqualone, 21 U.S.C. $0013.

841(a1) and 841(bX 1A) (count 3).

On July 7, 1982, following the District Court's

guilty to an Information charging two non-RICO con-

spiracies whose objects were interstate transportation

of stolen property valued in excess of $5,000.00 taken

from the apartment of the sister of the Shah of Iran

(count 1) and receipt and disposal of a truckload of

cases of tuna fish from interstate commerce, also

valued in excess of $5,000,000 (count 2). On November

15, 1982, Judge Sweet sentenced petitioner to two

? The relevant portion of the District Court's opinion, denying

petitioner's motion is set forth in the Appendix at page 6a.

¢

was going on all the time is very impressive .. . The

tuna fish caper, basically Wean was complaining

' Petitioner's guilty plea raises no iv -ve of waiver of his double

jeopardy claim in light of Menna v. New York, 423 U.S. 61 (1975).

* United States v. Fatico, 579 F.2d 707 (2d Cir. 1978}; United

States v. Patico, 603 F.2d 1063 (2d Cir. 1979), cert. demied 444

U.S. 10738 (1980).

* (S) 80 Cy. 587 (K._T_D.); Docket Number 82-1108; Supreme

Court No. 83-1404, cert. denied (March 26, 1964).

* The property in that case was different from and unrelated to

the property in this case.

he got stiffed ... Vincent Charles Piteo also got stiff-

ed...1 am convinced that this was not a one-time

thing ...7

On March 25, 1982, a mere three days after Vin-

cent Piteo was sentenced before Judge Duffy, the

Government filed the first superseding indictment* in

the instant case. This indictment charged petitioner

with the identical acts the government had already

fully presented to Judge Duffy through the testimony

of Wean and which were clearly considered by the

Court at sentencing. This new indictment, the ensuing

conviction and an additional consecutive sentence,

clearly comprised the government's second shot at

petitioner for the very same conduct for which he had

already been sentenced by Judge Duffy.

Upon review of petitioner's argument that, in

such circumstances, he was placed twice in jeopardy

for the same offense in contravention of the Fifth

Amendment, the Court of Appeals by per curiam opi-

nion, affirmed petitioner's judgment of coaviction.

REASONS FOR GRANTING THE WRIT

To be punished twice for the same offense is in-

disputably an infringement of the Double Jeopardy

Clause of the Constitution.’ Ex parte Lange, 18 Wall

’ Although Judge Duffy only referred to the tuna fish incident,

during the Fatico hearing. Wean also testified about

<> emanate Shah

* The first indictment which did not name Piteo, was filed on

November 23, 1961.

*“... mor shall any person be subject for the same offense to be

eee a aan. .. “ US.CA. Const. Amend.

163 (1874), North Carolina v. Pearce, 395 U.S. 711

(1969), United States v. DiFrancesco, 449 U.S. 117

(1980). However, based upon the mistaken belief that

evidence of uncharged criminal conduct introduced at

a convicted defendant's sentencing is analagous to the

introduction of evidence of a defendant's prior convic-

tions, as a result of the Second Circuit's decision in

this case, prosecutors will now be permitted to employ

“the use of unadjudicated criminal conduct to

enhance punishment for another crime... [without

the cour.’s] prohibit{ing] the subsequent adjudication

and punishment of that conduct.’’’*

With this view receiving the imprimaiur of

several Circuit Courts of Appeals, the government is

being given free reign, unfettered ty impartial review,

to decide whether any particular defendant has Uewn

punished sufficiently. If the government unilaterally

determines that this particular individua! is deserving

of greater punishment, it will indict anew, based upon

the identical offense which the first sentencing judge

considered, in imposing what that judge deemed to be

the appropriate punishment for that defendant.

There is no constitutional justification for allow-

ing the government to get ‘two bites of the sample ap-

ple.’ Where the government affirmatively seeks to

enhance a sentence, as it did here, through testimony

illicited at a Fatico'' hearing, and is successful, it

Government's brief on appeal at p. 18.

''The sentencing proceeding utilized herein is known in the Se

cond Circuit as a Fatico hearing. United States v. Fatico, £79

F.2d 707 (2d Cir. 1978), United States v. Fatico, 603 F.2d 1063

(2d Cir. 1979), cert. denied, 444 U.S. 1073 (1980). Similar sentenc-

ing hearings are conducted by the other circuits which only serve

to escalate the proportions of this dilemma. See, | /nited States v.

7

should not be permitted to obviate the guarantees of

the Double Jeopardy Clause by prosecuting anew bas-

ed upon the exact crimes considered by the original

sentencing judge. It may choose one or the other—not

both.

Although there have been an abundance of deci-

sions upholding the constitutional validity of enhanc-

ing a defendant’s sentence based upon his prior con-

victions, United States v. Tucker, 404 U.S. 443 (1972),

Williams v. New York, 337 U.S. 241 (1949), Williams

v. Oklahoma, 358 U.S. 576 (1959), United States v.

Hendrix, 505 F.2d 1233 (2d Cir. 1974), cert. denied,

423 U.S. 897 (1975), that determination is not com-

parable to enhancing a defendant’s sentence based

upon uncharged and, hence, as yet unadjudicated

allegations of criminal conduct. Although there is no

dispute that a court may consider unadjudicated

criminal conduct at sentencing, such conduct should

only be utilized once for the purpose of sentence

enhancement.

In the instance of prior convictions, the sentenc-

ing court is merely given the opportunity to enhance a

defendant’s penalty because he has not learned from

his past mistakes, and he has not been rehabilitated.

Providing this type of information at sentence is not

an affront to the principles of double jeopardy because

the defendant is not being twice punished fer the same

offense. The judge is simply being given relevant data

concerning a convicted defendant so that he may exer-

Tracey, 675 F.2d 433 (1st Cir. 1982), United States v. Ammirato,

670 F.2d 552 (5th Cir. 1982), United States v. Ray, 683 F.2d 1116

(7th Cir. 1982), United States v. Baylin, 696 F.2d 1030 (3rd Cir.

1982), United States v. Stevenson, 573 F.2d 1105 (9th Cir. 1978).

8

past convictions are relied upon, the sentencing court

is not giving weight to uncharged and, hence, un-

proven allegations.

Where, however, as here, the Court enhances

punishment due to such uncharged allegations of

separate misconduct, the sentencing judge is not so

much interpreting these untested allegations as il-

lustrative of the defendant’s lack of rehabilitation, as

he is actually adjudicating newly alleged transgres-

sions, and thereby imposing punishment thereupon.

Consequently, a Court’s reliance upon uncharged

criminality to enhance punishment is tantamount to

trying, convicting and sentencing the defendant for

such conduct. A fortiori, to later try and punish defen-

dant anew for that same offense constitutes double

punishment thereby violating the Double Jeopardy

Clause. Green v. United States, 355 U.S. 184 (1957).

Clearly analogous is this court’s holding that

where a defendant has been subjected to a proceeding

which may result in an adjudication that he has com-

mitted criminal acts, thereby placing his liberty and

reputation at risk, he has been put in jeopardy within

the meaning of the Fifth Amendment. Breed v. Jones,

421 U.S. 519, 529, 537-38 (1975). The Fatico pro-

ceeding herein, as well as the similar sentencing pro-

ceedings utilized by the other Circuits, is undeniably

adjudicatory in nature. Indeed, when a court is

presented with evidence of uncharged and unad-

judicated criminal conduct by the government and

thereby enhances the defendant’s sentence, the court

has made a determination that the defendant has com-

mitted criminal acts and has punished him therefore.

‘Thus, in terms of potential consequences, there is lit- -

tle to distinguish [a] .. . hearing such as was held in

9

this case from a traditional criminal prosecution”

Breed v Jones, supra at 530. Hence, following such an

“adjudication of guilt,”’ a subsequent prosecution for

the identical criminal acts constitutes double jeopar-

dy.

This exact issue, the affirmative use of identical

offenses in order to exact two distinct punishments,

has been addressed in recent Circuit Court decisions

and yet the issue remains both unsettling and unsettl-

ed. The Fourth Circuit, in United States v. Wise, 603

F.2d 1101 (1979), affirmed a perjury conviction which

earlier had been the basis for enhanced punishment of

defendant’s drug offense. The court, in holding that

no double jeopardy problems arose, relied on the

mistaken belief that an enhanced penalty based upon

unproven offenses is analogous to enhanced punish-

ment premised upon prior convictions.

The Ninth Circuit in United States v. Van Moos,

660 F.2d 748 (1981), tangentially reached the ques-

tion. There, the court reversed a District Court order

which had held that a defendant could not be punished

upon a perjury charge where an earlier court had con-

sidered that perjury in forming defendant’s earlier

sentence, without offending double jeopardy prin-

however, relied

10

There is an element of unfairness in allowing the pro-

secutor to bring an unadmitted and unproven charge

to the attention of a sentencing judge; presumably the

decision to dismiss or prosecute that charge will normally

depend upon the prosecutor’s appraisal of the first punish-

ment as either adequate or inadequate to vindicate the

government’s interest in disposing of two separate charges.

In a practical sense therefore, the prosecutor has two op-

portunities to use one charge as a basis for imposing what

he regards as an adequate sentence. The constitutional pro-

tection is intended to forestall such unfairness and to give

a defendant the right to one final disposition of any

pending charge. (emphasis supplied)

United States v. Haygood, 502 F.2d 166, 169 (7th Cir.

1974), cert. denied, 419 U.S. 1114 (1976)."

Even the Second Circuit, despite the affirmance in

the instant case, evinces an internal degree of uncer-

tainty with respect to this vexing issue. In United

States ». Hansen, 701 F.2d 1078 (2d Cir. 1983) the

court implied that courts should not enhance a defen-

dant’s punishment for acts upon which he may be

punished later, following an appropriate adjudication

of guilt. In determining the propriety of enhanced

punishment premised upon acts concerning which a

defendant may never be convicted due to the insanity

defense, the court pointed to examples where ‘‘the law

'? Were the court to grant the petition for certiorari, we would

respectfully submit that the ultimate result adverse to that ap-

pellant which was reached in Haygood could not be reached in the

instant case because the facts therein are readily distinguishable.

In Haygood the defendant never objected to the first sentencing

court’s consideration of the other pending charge. In sharp con-

trast, in the instant case, by seeking a Fatico hearing before

Judge Duffy, petitioner plainly objected to and sought to im-

peach the collateral information which the government at-

tempted to prove.

11

permits enhancement of punishment for conduct that

could not be the basis of a valid conviction.’’ Hansen

at 1082-1083 (emphasis supplied). Inconsistently,

therefore, there, unlike in the instant case, the court

seamed to approve enhanced punishment based upon

unproven charges only where the defendant was in-

capable of being prosecuted upon them, but not where

the defendant lacked the requisite mental state to be

legally responsible for his conduct.

The sparcity of case law on this compelling issue

no doubt results from the government’s general policy

not to prosecute anew for offenses which have been

relied upon by a sentencing court in enhancing punish-

ment upon an unrelated offense. In light of the ex-

treme gravity of the issue, however, rtiorari

granted in this case, petitioner would seek vince

the court to require the judiciary to adopt 4 practice

similar to the Wisconsin “read in” procedure which

has been suggested by the Seventh Circuit. See,

United States v. Haygood, supra. This mechanism

allows the accused and the prosecutor to enter into an

agreement whereby the sentencing judge may con-

sider uncharged offenses on the condition that the ac-

cused will not be prosecuted for such conduct.'’

All things considered, therefore, since the concept

of a Fatico hearing, as well as similar types of ad-

judicatory procedures (e.g., Breed v. Jones, supra)

bear all the hallmarks of punishment-enhancement

vehicles, and since their usage is widespread, it is

Notably, this procedure, not to be prosecuted for an uncharg-

ed offense upon which a sentencing judge has relied, is the

prevailing practice in England and is even advocated by the

Model Penal Code § 7.05 (4), Haygood, supra at 170.

12

respectfully submitted that the court is constrained to

determine whether they place defendants in former

jeopardy with respect to further prosecutions based

on the identical evidence, if not the same criminal

ro peng Blockburger v. United States, 283 U.S.

299 (1932); Ashe v. Swenson, 397 U.S. 436 (1970)

(Brennon, J., concurring).

CONCLUSION

IT IS RESPECTFULLY SUBMITTED THAT

VINCENT PITEO’S PETITION FOR A WRIT

OF CERTIORARI SHOULD BE GRANTED

Dated: New York, New York

April 13, 1984

Respectfully submitted,

BARRY IVAN SLOTNICK

Attorneys for Petitioner

225 Broadway, Suite 2100

New York, N.Y. 10007

(212) 964-3200

Barry Ivan Slotnick, P.C.

Jill G. Okun

Mark M. Baker

Of Counsel

la

APPENDIX “A”

DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND

CIRCUIT, DECIDED JANUARY 18, 1984

August Term 1982

Argued: April 26, 1983

Decided January 18, 1984

Docket No. 82-1397

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

-against-

VINCENT PITEO,

Defendant-Appellant.

Before:

NEWMAN and PRATT, Circuit Judges,

and METZNER, District Judge. *

Appeal on double jeopardy grounds from a judg-

ment of conviction entered on a plea of guilty to a two-

count information.

Affirmed.

* District Judge of the Southern District of New

York, sitting by designation.

2a

GERARD E. LYNCH, New York, New York,

Assistant United States Attorney for the

Southern District of New York (John S. Martin,

Jr., United States Attorney for the Southern

District of New York, Barbara Jones, Assistant

United States Attorney, of Counsel), for Plaintiff-

Appellee.

BARRY I. SLOTNICK, New York, New York

(Roger J. Schwarz, New York, New York, of

Counsel), for Defendant-Appellant.

PER CURIAM:

Vincent Piteo appeals from a judgment of convic-

tion entered in the United States District Court for

the Southern District of New York, Robert W. Sweet,

Judge, following his plea of guilty pursuant to a

negotiated plea agreement. Piteo pled guilty to a two-

count information that charged him with conspiracy

to transport stolen goods in violation of 18 U.S.C.

$2314 and conspiracy to receive stolen goods in viola-

tion of 18 U.S.C. §2315. Piteo claims that because the

government had introduced evidence of the same two

crimes at a Fatico hearing, see United States v.

Fatico, 579 F.2d 707 (2d Cir. 1978}; United States v.

Fatico, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444

U.S. 1078 (1980), in an unrelated matter, his prosecu-

tion was barred by the double jeopardy clause of the

fifth amendment. We disagree and affirm the convic-

tion.

On March 22, 1982, Piteo was sentenced in the

Southern District of New York by Judge Keyin Duffy

to three years imprisonment for offenses unrelated to

3a

the present guilty pleas. United States v. Piteo,

Docket No. CR 80 587 (S.D.N.Y.). Before sentencing,

Judge Duffy had conducted a Fatico sentencing hear-

ing which revealed, inter alia, Piteo’s association with

the Bonanno organized crime family, his complicity in

the theft of a truckload of tuna fish, and his attempted

robbery of the apartment of the Shah of Iran’s sister.

Y’hen he imposed sentence, Judge Duffy noted that

his decision would “of course * * * be influenced” by

Piteo’s association with organized crime as shown at

the Fatico hearing, and that the offense for which

Piteo was then convicted “was not a one-time thing.”

Judge Duffy then sentenced Piteo to concurrent

terms of three years’ imprisonment.

Three days later the government filed a

superseding indictment in this case, adding Piteo as

one of ten defendants in a four count indictment

following a six year F.B.I. investigation into the ac-

tivities of the Bonanno organized crime family. The

prosecution of five of Piteo’s codefendants is describ-

ed in some detail in our opinion in United States v.

Ruggiero, Nos. 82-1395, 1396, 1398 and 1399, being

filed simultaneously with this opinion. In that pro-

secution, which was brought under the Racketeer In-

fluenced and Corrupt Organizations Act (RICO), 18

U.S.C. §§ 1962(c) and 1962(d), Piteo was charged with

both substantive and conspiracy RICO crimes which

exposed him to a potential sentence of 40 years in

prison. The predicate acts charged against him were

the theft of the tuna fish and the attempted robbery of

the apartment of the Shah of Iran’s sister, two of the

crimes that were revealed at his earlier Fatico hearing.

Piteo negotiated a plea agreement under which he

waived indictment and pled guilty before Judge Sweet

to the two conspiracy charges, thereby reducing his

4a

maximum exposure to ten years. In return, the

government dismissed the RICO indictment against

him. Judge Sweet sentenced Piteo on each count to

concurrent prison terms of four years, to run con-

secutively to the three year sentence imposed earlier

by Judge Duffy.

Despite his having acknowledged before Judge

Sweet that his plea of guilty abandoned all right to ap-

peal, and despite his counsel’s acknowledgment that

the district court had correctly refused to dismiss the

RICO charges on double jeopardy grounds, Piteo now

contends on appeal that the charges to which he pled

guilty were barred by the double jeopardy clause of

the fifth amendment because he had already received

from Judge Duffy enhanced punishment based on the

same two criminal events. We do not decide whether

Piteo’s negotiated guilty plea waived his double

jeopardy claim, but instead proceed directiy to the

merits of that claim.

Piteo contends that Judge Duffy’s sentence

represented ‘‘punishment”’ for the crimes described in

the Fatico hearing and therefore precludes the govern-

ment from separately prosecuting him for those

crimes. We disagree. The purpose of the Fatico hear-

ing before Judge Duffy was not to try Piteo for addi-

tional crimes for which he could be punished. Rather,

it was to develop information about Piteo that would

enable Judge Duffy to determine a proper punishment

for the crime of which Piteo then stood convicted.

Such evidence is designed to enable the sentencing

judge ‘‘to gain a fuller assessment of the defendant so

that the punishment will ‘fit the offender and not

merely the crime’ for which he was convicted,” by

shedding “‘new light upon the defendant’s ‘life, health,

habits, conduct, and mental and moral propensities.’ ’’

Se

United States v. Hansen, 701 F.2d 1078, 1082 (2d Cir.

1983), quoting North Carolina v. Pearce, 396 U.S. 711,

723 (1969), quoting Williams v. New York, 337 U.S.

241, 245, 247 (1949).

We hold that Piteo’s guilty plea to the informa-

United States v. Grayson, 438 U.S. 41 (1978); United

States v. Wise, 603 F.2d 1101 (4th Cir. 1979); United

States v. Von Moos, 660 F. 2d 748 (9th Cir. 1982).

be

APPENDIX “B”

RELEVANT PORTION OF THE OPINION OF

THE UNITED STATES DISTRICT COURT

OPINION

Docket No. 81CR803 (RWS)

UNITED STATES OF AMERICA,

-against-

DOMINICK NAPOLITANO a/k/a “Sonny Black,”

BENJAMIN RUGGIERO, a/k/a “Lefty,”” JOSEPH

MESSINA, a/k/a “Joey,"” ANTHONY RABITO, a/k/a

“Mr. Fish,”” NICHOLAS SANTORA, a/k/a “Nicky, %

JAMES EPISCOPIA, a/k/a “Jimmy Legs,” AN-

TONIO TOMASULO, a/k/a ‘“Boots,”” JOHN

CERASANTI, a/k/a “Boobie,” DENNIS MULLIGAN,

VINCENT LOPEZ and VINCENT PITEO,

Defendants.

APPEARANCES:

HON. JOHN S. MARTIN, JR.

United States Attorney for the Southern

District of New York

Attorney for United States of America

One St. Andrew's Plaza

New York, New York 10007

7a

ROBERT KOPPLEMAN, ESQ.

Attorney for Defendant Ruggiero

401 Broadway

New York, New York 10013

PAUL REO, ESQ.

Attorney for Defendant Rabito

210 East 61st Street

New York, New York 10021

LEWIS COHEN, ESQ.

Attorney for Defendant Santora

16 Court Street

Brooklyn, New York 11201

MEYER, LIGHT, LONDON & LOPEZ, ESQS.

Brooklyn, New York 11201

By: FRANK A. LOPEZ, ESQ.

Of Counsel

IRWIN KLEIN, ESQ.

Attorney for Defendant tomasulo

400 Madison Avenue

New York, New York 10017

DAVID BREITBART, ESQ.

Attorney for Defendant Cerasani

401 Broadway

New York, New York 10013

Broadway

New York, New York 10013

8a

BARRY SLOTNICK, ESQ.

Attorney for Defendant Piteo

225 Broadway

New York, New York 10007

SWEPT, D.J.

Numerous motions have been filed by the defen-

dants and the government in this criminal action in-

volving eleven defendants, Dominick Napolitano

(“Napolitano”), Benjamin Ruggiero (“Ruggiero”),

Joseph Messina (‘‘Messina’’), Anthony Rabito

(“Rabito’’), Nicholas Santora (‘Santora’), James

Episcopia (‘‘Episcopia’’), Antonio Tomasulo

(“Tomasulo”’), John Cerasani (‘‘Cerasani’’), Dennis

Mulligan (‘Mulligan’), Vincent Lopez (‘‘Lopez’’) and

Vincent Piteo (‘Piteo’’). The four count indictment

charges conspiracy to violate the RICO statute, 18

U.S.C. § 1962(c), substantive violations of the sams

statute, 18 U.S.C. §1962(d), possession and distribu-

tion of quaaludes in violation of 21 U.S.C. §§ 812,

841(aX1) & 841(bX 1A) and 18 U.S.C. § 2, and con-

spiracy in violation of 21 U.S.C. §846. All defendants

have joined in the motions of co-defendants whenever

applicable. Each motion will be dealt with separately.

9a

After Piteo was convicted in 1981 and before he

was sentenced by the Honorable Kevin T. Duffy in

1982, a Fatico hearing was conducted. Wean testified

about Piteo’s involvement in the theft of a truckload

of tuna fish and an attempted robbery of the apart-

ment of the sister of the Shah of Iran—activities

which form the basis of two predicate acts in counts 1

and 2 of the present indictment. Piteo contends that

Judge Duffy considered the testimony concerning

Piteo’s involvement in the theft of tuna fish and the

attempted robbery when he imposed sentence and

that therefore the trial and possible sentence on

counts 1 and 2 of the present indictment relating to

the same acts place him in double jeopardy.

The Fifth Amendment guarantee against double

jeopardy ‘‘protects against a second prosecution for

the same offense after acquittal, ... against a second

prosecution for the same offense after conviction,

... [and] against multiple punishments for the same

offense.’’ North Carolina v. Pearce, 395 U.S. 711, 717

(1969) (footnotes omitted) (emphasis added). Even if

evidence of Piteo’s commission of theft and attempted

robbery influenced Judge Duffy in his decision to im-

pose sentence, the present RICO prosecution of Piteo

is not barred by the double jeopardy clause.

In United States v. Boylan, 820 F.2d 359, 361 (2d

Cir.), cert. denied, 449 U.S. 833 (1939), the Second Cir-

cuit held that prosecution and subsequent consecutive

sentences for both a RICO offense and the underlying

predicate offenses does not violate the double jeopar-

dy clause. ‘“‘The purpose of RICO was to establish

‘new penal prohibitions, and... enhanced sanctions

and new remedies to deal with the unlawful activities

10a

of those engaged in organized crime.’’”’ Jd. (quoting

Organized Crime Control Act of 1970, Statement of

Findings and Purpose, 84 Stat. 922, reprinted in

[1970] U.S. Code Cong. & Ad. News, at 1073). In light

of this purpose, the Second Circuit concluded that

separate convictions and additional sentences were not

precluded for a RICO prosecution and an underlying

offense. Id., see United States v. Rone, 598 F.2d 564,

571 (9th Cir. 1979), cert. denied, 445 U.S. 946 (1980).

Thus even assuming that Piteo was sentenced for

his involvement in the tuna theft and in the attempted

robbery, a conclusion I do not reach, a prosecution

alleging a RICO violation having these criminal ac-

tivities as predicate acts is not barred. Piteo’s mo-

tion is denied.

‘lla

APPENDIX “C”

ORDER EXTENDING TIME TO FILE

PETITION FOR WRIT OF CERTIORARI

SUPREME COURT OF THE UNITED STATES

No. A -706

VINCENT PITEO,

Petitioner,

Vv.

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

Upon Consideration of the application of counsel

for petitioner

IT IS ORDERED that the time for filing a peti-

tion for writ of certiorari in the above-entitled cause

be, and the same is hereby, extended to and including

April 17, 1984.

s/Thurgood Marshall

Associate Justice of the

Supreme Court of the United States

Dated this 7th

day of March, 1984