# Petition — Calandra v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1608%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1252 ## Text Bikes Saprome Coats US] FILED MAY 2 1984 No. ALEXANDER L. STEVAS | CLERK | 83-1801 | | Supreme Court of the United States October Term, 1983 ANTHONY LIBERA” RE, Petitioner, vs. THE UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals For the Sixth Circuit Evmer A. Grutiant, Counsel of Record Mark R. DeVan 410 Leader Building Cleveland, Ohio 44114 (216) 241-0520 Counsel for Petitioner LS ———_———_————— rd ee nn .:.:°:0@«wW THE GATES LEGAL PUBLISHING GQ CLEVELAND, OHIO—TEL. (216) 621-5647 QUESTIONS PRESENTED 1. WHETHER RACKETEERING ACTIVITY AS DEFINED IN 18 UNITED STATES CODE §1961 (1) AND (5) CAN BE ESTABLISHED WHEN THE GOVERN- MENT RELIES UPON TWO OR MORE VIOLATIONS OF STATE STATUTORY LAW AND SAID STATE STATU- TORY SCHEME PROHIBITS PROSECUTION AND PUNISHMENT FOR BOTH CRIMES CHARGED. 2. WHETHER THE TRIAL COURT AND THE COURT OF APPEALS MISAPPLIED THE FIFTH AMENDMENT PROHIBITION AGAINST DOUBLE JEOP- ARDY TO A RICO PROSECUTION WHERE CONVIC- TIONS OF PREDICATE ACTS WERE PREVIOUSLY OBTAINED AT A SEPARATE TRIAL ON SEPARATE COUNTS CHARGING THE SAME PREDICATE ACTS AS SUBSTANTIVE CRIMES. 3. WHETHER USE OF EVIDENCE BY STATE AU- THORITIES IN A STATE PROSECUTION, GATHERED AND PRESENTED PRIMARILY BY FEDERAL LAW ENFORCEMENT AUTHORITIES, ESTABLISHED JEOP- ARDY AND BARRED FURTHER FEDERAL PROSECU- TION FOR THE SAME ALLEGFD CRIMINAL ACTIV- ITIES. LIST OF ALL PARTIES TO THE PROCEEDINGS Other Petitioners: James T. Licavoli United States Supreme Court Case No. 83- John P. Calandra United States Supreme Court Case No. 83-1573 Pasquale Cisternino United States Supreme Court Case No. 83- Ronald Carabbia United States Supreme Court Case No. 83- TABLE OF CONTENTS Questions Presented List of All Parties to the Proceedings Table of Authorities ... Statutory Provisions Involved .....2..............-.c-ccoc-seeeseseeees 2 Judicial History of the Case ...... 3 TEI eR ee 4 Reasons for Granting Petitioner a Writ of Certiorari 8 Argument gy I. The trial court erred in allowing the Jury to consider two violations of state law to es- tablish a RICO violation when the state statu- tory scheme specifically prohibits prosecution and punishment for both crimes charged ........ 9 II. The trial court erred in denying the Peti- tioner’s Motion to Dismiss the indictment on grounds of double jeopardy where the predi- cate acts had been previously tried as separate counts and the prior state prosecutions were, in reality, the result of an investigation by federal law enforcement authorities ............. oo Conclusion , 21 Appendix: Opinion of the Court of Appeals for the Sixth Cir- cuit (January 9, 1984) Al Indictment in the United States District Court (May 3, 1979) A27 Iv Memorandum and Order of the United States Dis- trict Court (March 5, 1982) ....................cecscscceseceees A38 Order of the United States Court of Appeals for the Sixth Circuit Denying Petition for Rehearing eee ee ee A64 18 United States Code 201(b) (3) cce.cccccccsccsssssesessssseeee A65 18 United States Code 371 ...ccc.cccccccccsseecssssseeeeeeeeem A65 18 United States Code 1961 2... ccccccccccccescssssssseseeeee A66 18 United States Code 1962 (d) o...c.ccccccccssccssssseen A69 TABLE OF AUTHORITIES Cases Abbate v. United States, 359 U.S. 187 (1959) 0... 16 Bartkus v. Illinois, 359 U.S. 121 (1959) —.... 16,17 Blockburger v. United States, 284 U.S. 299 (1932) ........ 15 Brown v. Ohio, 432 U.S. 161 (1977) ....... , 14 Doty v. State, 94 Ohio St. 258 (1916) 9 Ex Parte Lange, 18 Wall. 163, 21 L. Ed. 872 (1873) ... 14 Jeffers v. United States, 432 U.S. 137 (1977) ............... 14 Pinkerton v. United States, 328 U.S. 640 (1946) 000000... «=69 State v. Liberatore, 4 Ohio St. 3d 13 (1983) ................. 7 United States v. Bell, 163 U.S. 662 (1896) —.... 14 United States v. Benz, 282 U.S. 304 (1931) -.................. 14 United States v. Brooklier, 632 F.2d 620 (9th Cir. 1981) .. 14 United States v. Dinitz, 424 U.S. 600 (1976) —...... 14 United States v. Ford, 603 F.2d 1043 (2nd Cir. 1979) ... 14 United States v. Forsythe, 560 F.2d 1127 (3rd _- Cir. 1977) 12 Vv United States v. Frumento, 563 F.2d 1083 (3rd Cir. SEED cesrennevininerviaccsvenartsdngitdnutititins 12 United States v. Kamins, 479 F. Supp. 1374 4 (D.C.WD. NG UD | cicessegedictincsisicblinatinsidiascesstienidianeiegadiantinihes 14 United States v. Marable, 578 F.2d 151 (5th Cir. TIETIIED 2s Liccctinsctntnntadinishiistnpiinnnaastaiiciaiiedetinaianaiaianitiaanitibe 15 United States v. Martino, 648 F.2d 367 (5th Cir. 1981) 12 United States v. Meinster, 475 F. Supp. 1093 (S.D. BO IU -stcinsistaerepinnaenichaiitieirininheigiaacinnaiiaindaagimmnneaiaaiiiiiat 15 United States v. Palmero, 410 F.2d 468 (7th Cir. IIIT 2 scsi inane intlgeadeieanaeeeimaeiiiablaieiialidl 14-15 United States v. Phillips, 664 F.2d 971 (5th Cir. 1971)... 11 United States v. Ruigomez, 576 F.2d 1149 (5th Cir. ITED - ve A61 C. Defendant Calandra next argues that “the indictment does not comply with the substantive requirements of the Ohio statute (2923.01) that it seeks to incorporate” in that the government failed to allege specific overt acts taken in furtherance of the conspiracies to murder Nardi and Greene. The argument is not well taken as it pertains to the Greene conspiracy. The government has alleged overt acts related thereto in sections 2-7. However, even if no overt acts had been alleged as to Greene and even though none have been alleged as to Nardi, the court does not find the indictment defective. There is nothing in section 1962(c) or (d) which requires the indictment to charge all of the elements of a state predicate crime. This criminal prosecution is for the viola- tion of a federal criminal statute. The defendants have not been charged with commission of the state crimes; they cannot be convicted of the state crimes. The state crimes referred to are definitional only. United States v. Frumento, 563 F.2d 1083 (3rd Cir. 1977), cert. denied sub nom. Millhouse v. United States, 434 U.S. 1072 (1978). As such, the government will be required to prove those acts according to the elements required by state law. [28] Hence, the government will have to prove at trial that overt acts were taken in furtherance of the alleged con- spiracy agreements. This does not mean, however, that the government is required to set forth in the federal indictment pertaining to the federal charge the elements of the state law predicate acts.’ 10. It is relevant here to note that courts t great flexi- bility in the proof of overt acts. “Evidence overt acts which (Continued on following page) D. Because Ohio had no general conspiracy law in 1970 when RICO was enacted, defendant argues, the language “chargeable under state law” could not include section 2923.01. The court disagrees. Section 1961(A) does not say “presently chargeable under state law.” The critical question is whether the acts alleged were proscribed by state law at the time they were committed. There can be no disagreement that the conspiracy statute was in existence at the time the conspiracies listed as predicate acts allegedly occurred. E. Defendant’s argument that the indictment is unconsti- tutionally vague is thus summed up: “In short, how can the government expect this citizen to defend against [29] the charge that he conspired to associate with a RICO conspiracy through the commission of two conspiracies?” Defendant’s concern “is compounded by the protected na- ture of the activity which is apparently the subject of the offense - i.e. associational rights.” To the extent defendant is asserting that the RICO statute is unconstitutional because it punishes associational status, defendant’s argument must fail. RICO’s “proscrip- tions are directed against conduct, not status.” United States v. Elliott, supra. Furthermore, “[rjequiring one A63 to those who might otherwise be convicted through guilt by association.” United States v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981). To the extent that defendant is arguing a conspiracy cannot be an act under section 1961, the court has held contrary in part V.A., supra. The government must prove that defendants conspired to conduct or participate in the affairs of an enterprise, which they willingly joined, through the commission of at least two acts of racketeer- ing activity. As to a particular defendant and as to the RICO conspiracy charged, the government must prove that said defendant committed at least two predicate acts. As to the conspiracies charged as predicate acts, the govern- ment must prove that said defendant agreed to murder Nardi and/or GC:eene and that some member of the con- spiracy carried out one or more overt acts in furtherance of that agreement. [30] Viewed in such a way, the court concludes that the statute is not unconstitutionally vague. For the above stated reasons, defendants’ motions to dismiss or to exclude evidence are granted on the ground of collateral estoppel and overruled on all other grounds. IT IS SO ORDERED. /s/ Wrut1am K. Tuomas U.S. District Senior Judge A64 ORDER OF THE UNITED STATES COURT OF AP- PEALS FOR THE SIXTH CIRCUIT DENYING PETITION FOR REHEARING (Filed March 5, 1984) 82-3509/3606 /3498 UNITED STATES COURT OF APPEALS For THe Srxtu Circuit UNITED STATES OF AMERICA, Plaintiff-Appellee, Vv. ANTHONY LIBERATORE, JAMES T. LICAVOLI, Defendant-Appellant. ORDER Before: Merritr and Kennepy, Circuit Judges; and Pratt, District Judge.* The Court not having favored rehearing en banc in this case, the petition for rehearing is referred to our panel for disposition. Upon consideration, IT IS ORDERED that the petition for rehearing be and hereby is DENIED. /s/ Joun P. Henman Clerk *Honorable Philip Pratt, United States District Court for the Eastern District of Michigan, sitting by designation. A65 STATUTORY PROVISION INVOLVED 18 U.S.C. Section 201(b) (3) Bribery of public officials and witnesses (b) Whoever, directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give any- thing of value to any other person or entity, with intent— (3) to induce such puulic official or such person who has been selected to be a public official to do or omit to do any act in violation of his lawful duty—. Shall be fined not more than $20,000 or three times the monetary equivalent of the thing of value, which- ever is greater, or imprisoned for not more than fif- teen years, or both, and may be disqualified from hold- ing any office of honor, trust, or profit under the United States. 18 U.S.C. Section 371 Conspiracy to Commit Offense or to Defraud United States If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maxi- mum punishment provided for such misdemeanor. A66 18 U.S.C. § 1961 CRIMES AND CRIMINAL PROCEDURE § 1961. Definitions As used in this chapter— (1) “Racketeering activity” means (A) any act or threat involving 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 or 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), sec- tions 891-894 (relating to extortionate credit transac- tions), 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 obstruction of State or local law enforcement), section 1951 (relating to in- terference with commerce, robbery, or extortion), sec- tion 1952 (relating to racketeering), section 1953 (re- lating to interstate transportation of wagering para- phernalia), section 1954 (relating to unlawful wel- fare 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 traf- ficking in contraband cigarettes), sections 2421-24 (re- 467 lating 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 fraud connected with a case under title 11, fraud in the sale of securities, or the felonious manu- facture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic or other dan- gerous 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, part- nership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity; (5) “pattern of racketeering activity” 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 (exclud- ing any period of imprisonment) after the commission of a prior act of racketeering activity; (6) “unlawful debt” means a debt (A) incurred or contracted in gambling activity which was in vio- lation of the law of the United States, a State or polit- ical subdivision thereof, or which is unenforceable A68 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 enforce- able rate; (7) “racketeering investigator” means any at- winey or investigator so designated by the Attgrney General and charged with the duty of enforcing or carrying into effect this chapter [18 USCS §§ 1961 et seq.]; (8) “racketeering investigation” means any in- quiry conducted by any racketeering investigator for the purpose of ascertaining whether any person has been involved in any violation of this chapter [18 USCS §§ 1961 et seq.] or of any final order, judgment, or decree of any court of the United States, duly en- tered in any case or proceeding arising under this chapter [18 USCS §§ 1961 et seq.]; _ (9) “documentary material” includes any book, paper, document, record, recording, or other material; and (10) “Attorney General” includes the Attorney General of the United States, the Deputy Attorney General of the United States, any Assistant Attorney General of the United States, or any employee of the Department of Justice or any employee of any depart- ment or agency of the United States so designated by the Attorney General to carry out the powers con- ferred on the Attorney General by this chapter [18 USCS §§ 1961 et seq.]. Any department or agency so A69 designated may use in investigations authorized by this chapter [18 USCS §§ 1961 et seq.] either the in- vestigative provisions of this chapter [18 USCS §§ 1961 et seq.] or the investigative power of such department or agency otherwise conferred by law. 18 U.S.C. § 1962 RACKETEER ORGANIZATIONS § 1962. Prohibited activities (a) It shall be unlawful for any person who has re- ceived 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 [18 USCS § 2], 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 estab- lishment or operation of, any enterprise which is engages in, or the activities of which affect, interstate or foreign commerce. 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 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 or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the out- standing securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer. (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an A70 unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is en- gaged 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 ac- tivities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the con- duct of such enterprise’s affairs through a pattern of rack- eteering 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1608%3A1. Public record. Not legal advice.