# Petition — Piteo v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1206

## Text

‘
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1559%3A1. Public record. Not legal advice.