Opposition Brief — Arnoldt v. United States

No. 91-1

Le,

—

25

as a

Ju the Supreme Court of the Cnited States

OCTOBER TERM, 1991

GARLAND ARNOLDT, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIKCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERTS. MUELLER, II]

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 205.30

(202) 514-2217

i

ai —

in& CLERK

QUESTIONS PRESENTE

1. Whether the district court’s designation of a United

States magistrate to preside over the return of the jury’s

verdict violated the Federal Magistrates Act, 28 U.S.C.

631 et seqg., and Article III of the Constitution.

2. Whether petitioner’s prosecution for racketeering of-

fenses violated the Double Jeopardy Clause because some

of the predicate acts of racketeering involved criminal con-

duct for which petitioner had previously been convicted.

TABLE OF CONTENTS

Page

Opinion belOW ...............sesssesesesesessssseseceesesesensnssesenssnsssceseceeeesesenseees 1

a - cdaaniincuniqeneetnincnenionsemaaniddnascseoteneuenncesinens 1

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AT QUmMen..........c.cscscccccssressosssssesssrsrsssnensasssersssnsssscececereseensnsossesscscacnenes 6

III 14 1 2). sicaupetucsinusdbntyanestnehesbonersbanenhnesnesenesnnennsneesones 14

TABLE OF AUTHORITIES

Cases:

Brown ¥. Ohio, 432 U.S. 161 (IGT 1) ....0..00ccecsecrreccvosscesecsoesessssocess 12

Garrett v. United States, 471 U.S. 773 (1985) «0... eee 5, 9, 10, 12, 13

Government of the Virgin Islands v. Paniagua, 922 F.2d

IN, WUE ociscccnsdsssocsanvernsescnsixussnncnssnsovnenessnssssepaussosessencees 8

Grady v. Corbin, 495 U.S. 508 (1990) ..... ec eeeteeeeeeeeteeseeeteteees 5, 6, 12, 13

H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229

DEED ccbudacededivavhcusssccessuseinakebesensasnndassbannrsoseeveensisnevessconssensevotoquastas 11

Peretz v. United States, 1115S. Ct. 2661 (L991) «0... ee eeeteees 5,7, 8,9

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

cert. denied, 459 U.S. 1206 (1983)... eeeeseeteeteeteeeeeeteeenes 12

United States v. Day, 789 F.2d 1217 (6th Cir. 1986)............. 7

United States v. Gambino, 920 F.2d 1108 (2d Cir.), cert.

denied, 112 S. Ct. 54 (1991), petition for cert. pending,

Nn ssacteasberesesanbenienronicoee 11, 13

United States v. Gonzalez, 921 F.2d 1530 (1th Cir.), cert.

denied, 112 S. Ct. 178 (1991) ..............ccccsrcerenecssceeesssesessnssenenes 11,13

United States v. Grayson, 795 F.2d 278 (3d Cir. 1986), cert.

ee, SI US: BOGE CIGBT) vsesscnssssscecnsovesvesssensecsraseseneonessessenene 10

United States v. Licavoli, 725 F.2d 1040 (6th Cir.), cert.

denied, 467 U.S. 1252 (1984) ...................cssccccessesereeessscsrreesseness 12

United States v. O'Connor, No. 90-3105

GI TEY NE UE RUMI... nscnoseinsnatnsenahecnenesoosesnntensnenensbssbiesene 11,138

United States v. Pungitore, 910 F.2d 1108 (3d Cir. 1990),

cert. denied, 111 S. Ct. 2009 (1991)... eect eteeeneneeenens 11-12, 13

(111)

IV

Cases—Continued Page

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

I, Ue Ai He I ailhalecietinciaciceeninnrictitdecntnivnstianeninisten ll

United States v. Saunders, 641 F.2d 659 (9th Cir. 1980),

CURE, GUNN, GT CEE: BE CIGD oaesn cn rec ecvsnnensinncevsesensensvsnncenyn 9

Constitution, statutes and rule:

U.S. Const. :

OTs IU siesta datecielihaiilenstahiccindicobaenddiniaae 5, 6,8

Amend. V (Double Jeopardy Clause) ..............cccceccceeeeeees 5, 9, 12

Federal Magistrates Act, 28 U.S.C. 631 et seq. ......c.ccccceeceeees 5, 6

a a as I csitctonssins cists vphnienienaprs co tiatovnsansbcinitsiabbamsanetenis 6

Re ee: I casicieaisahscshniicdierencdnegenesnsisorehtnieienesinanlceeioiseaniias 5,7

Se As ID siiecincsssniteisssnsharininiunieeiasanianuititibianiaeshnaictndsnts 4

| SER eee eee 3

a III secs cicrcsdanstisaaciiohsadncanssnedncssaedonmansesadenianonie 2,4

RI ER ee NU CM NR ERT IO nO IT 10

ee Ne Is ateinisisticigice cnirsdueepitcenaileaipadetbbacstatasulinrsinioaoniabcses 2,4, 11

Be Ne I Satis doasinciccaatcnensdededanieiieaseiieiaecaosecininibeaagnaseniiaabionts 2,4

a PUTT st is alcash cccansipoasatdliesieildesuntiamtabegestoctociecinmanniase 2,3,4

Se a ny sisal erhziasesbusieplacsdaeondionthsehamcbaiccntecinibehecinnses vessdebsbioviebin 2,3

Be ea TEN shi uiictssidcnslacadecterineisscaeadeeneeunmadcnebiedabnasemsssstiatindcoeiian 6

Organized Crime Control Act of 1970, Pub. L. No. 91-452,

Re a WN idea shinbictaadaennsindadtaeacmanndelesAacasdenapecaomataeaiicnesticeeenoons 10

aN Wi MINI: 0 AUN Gon cacsssnissipiansSaicaiccabecsoncdiveuaicssomsabhgceoncieisanonanceuiiecaen 7

Miscellaneous:

H.R. Rep. No. 1609, 94th Cong., 2d Sess. (1976) .0..0000cceeeeee 7

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1991

No. 91-1125

GARLAND ARNOLDT, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

10 THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-16a)

is reported at 947 F.2d 1120.

~ JURISDICTION

The judgment of the court of appeals was entered on

October 11, 1991. The petition for a writ of certiorari

was filed on January 9, 1992. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

After two jury trials on a severed indictment in the

United States District Court for the Southern District

of West Virginia, petitioner was convicted on one count

of conspiring to distribute cocaine, in violation of 21

U.S.C. 846; three counts of cocaine distribution, in vio-

lation of 21 U.S.C. 841(a)(1); one count of possession of

ammunition by a previously convicted felon, in violation

of 18 U.S.C. 922(g)(1); and one count of possession of a

firearm by a previously convicted felon, in violation of

18 U.S.C. 922(g)(1). He was sentenced to 98 months’

imprisonment, to be followed by five years of super-

vised release, and fined $5,000.

After a third trial on a separate indictment in the

Southern District of West Virginia, petitioner was

convicted on one count of participating in the affairs of

an enterprise through a pattern of racketeering activ-

ity, in violation of 18 U.S.C. 1962(¢); one count of con-

spiring to commit that offense, in violation of 18 U.S.C.

1962(d); four counts of drug distribution, in violation of

21 U.S.C. 841(a)(1); and eight counts of interstate travel

in aid of racketeering, in violation of 18 U.S.C.

1952(a)(3). He was sentenced to 292 months’ imprison-

ment, to be followed by five years of supervised release.

On a consolidated appeal, the court of appeals

affirmed all the convictions, but vacated the sentences

and remanded for resentencing. Pet. App. la-16a.

1. The evidence showed that in 1981 and 1982,

petitioner distributed quaaludes, LSD, and marijuana

that he had obtained from Kenneth MeMillion, a mem-

ber of the Pagan Motorcycle Club. Petitioner became a

member of the Pagans in September 1985, after he had

been arrested for a transaction involving 100 pounds of

_————————————— ee

3

marijuana and had refused to cooperate with the au-

thorities in the ensuing investigation. Gov’t C.A. Br. 7.

During petitioner’s membership in the Pagans,

MeMillion distributed LSD to petitioner for resale in

quantities of 500 to 1,000 “hits,” or doses. Petitioner

also participated in a variety of transactions involving

marijuana, cocaine, and PCP. Petitioner made trips to

Florida and Detroit to obtain cocaine that was brought

back to West Virginia and sold. Gov’t C.A. Br. 8.

On three occasions in April and May 1988, petitioner

sold cocaine to government informant Glen “Banty”

Clay. In June 1988, petitioner traveled to Ohio to obtain

cocaine, which eventually was brought to West Vir-

ginia. That same month, petitioner became president of

the newly formed Kentucky chapter of the Pagans.

Gov't C.A. Br. 8-9.

On June 22, 1988, petitioner met Clay for the purpose

of obtaining payment for their previous cocaine trans-

action. Following the payment, petitioner was arrested.

A search of the van petitioner was driving at the time

of his arrest uncovered two firearms and drug para-

phernalia. Gov’t C.A. Br. 9.

2. On August 2, 1988, petitioner was named in an

eight-count indictment in the Southern District of West

Virginia. After he successfully moved to sever the

charges, he faced two trials on that indictment. In the

first trial, held on November 7-9, 1988, petitioner was

tried for conspiring to distribute cocaine, in violation of

21 U.S.C. 846 (Count 1); distributing cocaine in March

1988 (Count 2), on April 18, 1988 (Count 3), on May 4,

1988 (Count 4), and on May 16, 1988 (Count 5), all in

violation of 21 U.S.C. 841(a)(1); and carrying and using

a firearm in relation to the commission of a drug traf-

ficking offense on June 22, 1988 ( ‘ount 8), in violation of

18 U.S.C. 924(c)()).

4

Following closing argument and the charge to the

jury at petitioner’s first trial, the district court an-

nounced that it intended to delegate to a magistrate the

responsibility for presiding over the return of the jury’s

verdict. Petitioner did not object to that delegation. The

jury then found petitioner guilty on Counts 1, 3, 4, and

5, and not guilty on Counts 2 and 8. The magistrate

received the verdict, polled the jury, and remanded

petitioner to custody. Pet. App. 3a.

Subsequently, petitioner was tried on December 6-7,

1988, for possession of ammunition by a convicted felon

on June 22, 1988 (Count 6) and possession of firearms

by a convicted felon on June 22, 1988 (Count 7). He was

convicted on both counts and sentenced on Counts 1, 3,

4, 5, 6, and 7 to a total of 98 months’ imprisonment, to be

followed by five years’ supervised release, and a $5,000

fine.

3. Petitioner was indicted again in the Southern

District of West Virginia on January 10, 1989. He was

named in 14 counts of an 85-count indictment. Count 1

charged him with participating in the affairs of an en-

terprise through a pattern of racketeering activity, in

violation of 18 U.S.C. 1962(e). Count 2 charged him with

conspiring to commit that offense, in violation of 18

U.S.C. 1962(d). Counts 5, 6, 8, 9, 11, 12, 67, and 69

charged him with interstate travel in aid of racketeer-

ing in April 1986, in June 1986, and on June 12, 19838, in

violation of 18 U.S.C. 1952(a)(3). Counts 7, 10, 13, and 71

charged him with possession of cocaine with intent to

distribute it in April 1986, in June 1986, and on June 13,

1988, in violation of 21 U.S.C. 841(a)(1). He was con-

victed on all counts and sentenced to a total of 292

5

months’ imprisonment, to be followed by five years of

supervised release. His sentence was set to run concur-

rently with the sentence imposed on his earlier convic-

tions.

4. On appeal, petitioner contended that the district

court’s designation of a magistrate to preside over the

return of the jury’s verdict at his first trial violated the

Federal Magistrates Act, 28 U.S.C. 631 et seq., and Ar-

ticle III of the Constitution. The court of appeals

observed that, although the Federal Magistrates Act

does not explicitly authorize a magistrate to preside

over the return of a jury verdict, it contains a residual

provision, 28 U.S.C. 636(b)(3), authorizing the designa-

tion of a magistrate to perform “such additional duties

as are not inconsistent with the Constitution and the

laws of the United States.” Pet. App. 5a-6a. Relying on

Peretz v. United States, 111 S. Ct. 2661 (1991), the court

then held that petitioner waived his constitutional claim

by failing to object to the delegation. Pet. App. 6a-7a.

The court also rejected petitioner’s statutory claim,

noting that the legislative history of the Act indicates

that the “additional duties” clause permits a magistrate

to accept return of a jury verdict where the trial judge

is unavailable. /d. at 7a.

Relying on Grady v. Corbin, 495 U.S. 508 (1990), peti-

tioner also contended that the Double Jeopardy Clause

barred his RICO prosecution because the RICO counts

in his second indictment included as predicate acts the

three cocaine distribution offenses and the conspiracy

to distribute cocaine for which he had been convicted at

his first trial. The court of appeals observed that in

Garrett v. United States, 471 U.S. 773 (1985), the

6

Supreme Court had rejected a similar claim in the con-

text of a prosecution for engaging in a continuing

criminal enterprise under 21 U.S.C. 848. Pet. App. lla.

The court then concluded that “the principles enunci-

ated in Grady govern the paradigmatic ‘single course of

conduct’ case, but that prosecutions under statutes such

as RICO and CUE—statutes targeted at ‘multilayered’

instances of criminal conduct invariably occurring at

different places and times—call for a calculus reflecting

the concerns expressed in Garrett.” Id. at 13a. Noting

that the most recent predicate acts alleged in the RICO

indictment were not discovered until after the return of

the initial indictment, the court added that the govern-

ment should not be required to choose between

“proceed[ing] against a defendant for violations that

might later serve as predicate acts and foreclos[ing] a

RICO prosecution in the future [and] allowling] predi-

cate acts to go unpunished in anticipation that at some

future time the RICO elements would coalesce.” /d. at

14a.

ARGUMENT

1. Petitioner renews his contention (Pet. 3-20) that

the district court’s designation of a United States mag-

istrate to preside over the return of the jury’s verdict

violated the Federal Magistrates Act, 28 U.S.C. 631 et

seq., and Article III of the Constitution. The court of

appeals correctly rejected that claim.

a. As petitioner contends, in enumerating some of

the duties that may be performed by a magistrate, the

Federal Magistrates Act does not mention acceptance

of a jury verdict in a felony case. 28 U.S.C. 636(b). The

Act does provide, however, that “[a] magistrate may be

7

assigned such additional duties as are not inconsistent

with the Constitution and laws of the United States.”

28U.8.C. 636(b)(3). The legislative history of the Act ex-

plicitly states that the “additional duties” clause “would

permit * * * a magistrate to * * * accept returns of jury

verdicts where the trial judge is unavailable.” H.R.

Rep. No. 1609, 94th Cong., 2d Sess. 12 (1976). In light of

that clear congressional command, the district court did

not err in permitting the magistrate to receive the

verdict. The only other court of appeals to address tne

issue has reached the same conclusion. United States v.

Day, 789 F.2d 1217, 1224 (6th Cir. 1986).

Petitioner argues (Pet. 8-9) that allowing a magis-

trate to accept a jury verdict is inconsistent with Fed.

R. Crim. P. 25, which provides that, although a trial

judge may be replaced with another judge for reason of

absence after the return of the verdict, he may be

replaced during trial only for reason of death, sickness,

or other disability. However, Rule 25 does not address

the reasons for which a trial judge may designate a

magistrate. Unlike a replacement judge, who obtains

complete authority over a case once he is appointed and

whose conduct of the case is unreviewable by the origi-

nal judge, a magistrate serves under the trial judge’s

“total control and jurisdiction,” and his actions are sub-

ject to the trial judge’s review. Peretz v. United States,

111 S. Ct. 2661, 2670 (1991). Accordingly, Rule 25

addresses a situation—the total replacement of the trial

judge—that is remote from the designation of a magis-

trate to perform a specified duty under the trial judge’s

supervision.!

' In Day, the Sixth Circuit rejected the same Rule 25 argument

advanced by petitioner here. See 789 F.2d at 1224.

8

Petitioner’s reliance on Government of the Virgin

Islands v. Paniagua, 922 F.2d 178 (3d Cir. 1990), is

misplaced. In that case, the magistrate performed such

functions as responding to a jury note, giving a

supplemental jury instruction, and declaring a

mistrial—substantive trial duties that differ substan-

ially from the essentially administrative function of re-

ceiving a verdict. In expressing “serious reservations”

about a magistrate’s authority to declare a mistrial, the

court stated that it did “not understand how [that]

procedure * * * can be reconciled with Fed. R. Crim. P.

25.” 922 F.2d at 183. The court’s decision, however, did

not turn on any argument based on Rule 25, since the

court went on to affirm the defendant’s conviction

based on the defendant’s acquiescence in the mag-

istrate’s action. Jd. at 188. Likewise here, petitioner ac-

quiesced in the magistrate’s acceptance of the verdict

by failing to make an objection. That fact provides an

independent basis for rejecting petitioner’s statutory

claim. See Peretz, 111 S. Ct. at 2671 (holding that su-

pervision of voir dire is an additional duty that may be

delegated to a magistrate under the Act “when the de-

fendant raises no objection”).

b. Petitioner’s failure to object also defeats his con-

stitutional claim. In Peretz, the Court held that, in light

of the fact that the most basic rights of criminal

defendants are subject to waiver, a defendant may

waive his right to have an Article III judge preside

during jury selection. The right to have an Article II]

judge receive the verdict—a far more ministerial task

than jury selection—is equally subject to waiver.

Petitioner attempts (Pet. 10) to distinguish Peretz on

the ground that voir dire occurs early enough in the

proceedings to make abortion of the trial practical if the

9

magistrate’s performance is deficient, while “{t]hat is

hardly the case at the verdict Stage, when it may

realistically be expected that the [trial] judge would

‘ause the entire trial to be redone only in the face of the

most egregious error by the magistrate.” But in this

case, petitioner did not ask the trial judge to review any

action by the magistrate. See Peretz, 111 S. Ct. at 2665.

Furthermore, if the magistrate had erred in a manner

that affected the defendant’s substantial rights, it

would have been the judge’s duty to correct that error

by holding a new trial. “To suppose that the trial judge

would be dissuaded from carrying out that duty by the

public expense of a new trial is to ignore the constitu-

tionally preserved independence of Article II] judges.”

(United States v. Saunders, 641 F.2d 659, 664 (9th Cir.

1980), cert. denied, 452 U.S. 918 (1981).

2. Petitioner also contends (Pet. 20-23) that the

RICO counts were barred by the Double Jeopardy

Clause because they alleged as predicate acts conduct

for which petitioner had previously been convicted.

a. In Garrett v. United States, 471 U.S. 773 (1985),

this Court held that the Double Jeopardy Clause did

not bar the use of a drug importation offense for which

the defendant had previously been prosecuted as a

predicate offense in a CCE prosecution. After deter-

mining that Congress intended to allow separate prose-

cutions for CCE and its predicate offenses, 471 U.S. at

779-786, the Court went on to express “serious doubts”

that the predicate drug violations were lesser included

offenses within CCE, id. at 790, cautioning against the

“ready transposition of the ‘lesser included offense’

principles of double jeopardy from the classically simple

situation [of a single course of conduct] to the multilay-

ered conduct, both as to time and to place, involved in

10

this case.” Jd. at 789. Rather, the Court stated that

“[qjuite obviously the CCE offense is not, in any com-

mon-sense or literal meaning of the term, the ‘same’

offense as one of the predicate offenses.” Jd. at 786.

Nevertheless, assuming arguendo that CCE and its

predicate offenses are the same offense, the Court

concluded that the successive prosecutions did not

violate the Double Jeopardy Clause because the CCE

offense continued after the date of the indictment for

the predicate offense. Jd. at 791-793.

b. Applying the analysis of Garrett, petitioner’s suc-

cessive prosecutions did not violate the Double Jeop-

ardy Clause. Just as Congress intended to permit suc-

cessive prosecutions for CCE and its predicate drug of-

fenses, so it intended to permit successive prosecutions

for RICO and its predicate acts of racketeering. Under

RICO, the last alleged predicate act of racketeering

must occur within 10 years after the commission of the

prior predicate act “excluding any period of imprison-

ment.” 18 U.S.C. 1961(5). That language suggests that

Congress envisioned the situation in which a defendant

is convicted and sentenced for a racketeering act and

later charged with a RICO violation based in part on

the prior conviction. See United States v. Grayson, 795

F.2d 278, 282 (3d Cir. 1986), cert. denied, 479 U.S. 1054

(1987). Further, in enacting RICO, Congress declared

in its Statement of Findings and Purpose that it in-

tended to establish “new penal prohibitions” and

“enhanced sanctions.” Organized Crime Control Act of

1970, Pub. L. No. 91-452, 84 Stat. 922. Barring the use

in RICO prosecutions of predicate offenses for which

the defendant previously has been convicted “would

1]

nullify the intent and effect of the RICO prohibitions.”

United States v. Rone, 598 F.2d 564, 571 (9th Cir. 1979),

cert. denied, 445 U.S. 946 (1980).

In addition, like the CCE offense considered in Gar-

rett, a RICO violation is not the “same offense” for

double jeopardy purposes as any of its predicate acts.

Like a CCE charge, a RICO charge requires proof of

multiple criminal acts occurring over an extended

period of time and an ongoing criminal association often

involving a large group of individuals. RICO expresses

these requirements by means of its prohibition against

conducting an “enterprise” through “a pattern of racke-

teering activity”; the pattern in question requires proof

of at least two related predicate acts that amount to, or

pose a threat of, continuing criminal conduct. 18

U.S.C.1962(¢c); see H.J. Ine. v. Northwestern Bell

Telephone Co., 492 U.S. 229 (1989). Because of the

complex nature and scale of activity targeted by RICO,

the criminal threat posed by a RICO violation is not

equivalent in any meaningful sense to the discrete

underlying predicate crimes.

In light of Garrett, the courts of appeals have uni-

formly held that the Double Jeopardy Clause does not

bar the use of an offense for which the defendant has

already been prosecuted as a predicate act of racketeer-

ing in a RICO case. E.g., United States v. O'Connor,

No. 90-3105 (7th Cir. Jan. 28, 1992); United States v.

Gonzalez, 921 F.2d 1530, 1535-1539 (11th Cir.), cert.

denied, 112 S. Ct. 178 (1991); United States v. Gambino,

920 F.2d 1108, 1112-1113 (2d Cir.), cert. denied, 112 S.

Ct. 54 (1991), and petition for cert. pending, No. 91-31;

United States v. Pungitore, 910 F.2d 1084, 1108-1111

12

(3d Cir. 1990), cert. denied, 111 S. Ct. 2009 (1991);

United States v. Licavoli, 725 F.2d 1040, 1049-1050 (6th

Cir.), cert. denied, 467 U.S. 1252 (1984); United States v.

Brooklier, 637 F.2d 620, 621-624 (9th Cir. 1980), cert.

denied, 459 U.S. 1206 (1983).

c. Quite apart from the difference for double jeop-

ardy purposes between RICO and its predicate crimes,

petitioner’s successive prosecutions were permissible

under Garrett because, according to the indictment, the

RICO offenses continued to January 1989—past the

date of petitioner’s earlier indictment on August 2,

1988. Although the RICO counts do not specify any act

personally committed by petitioner after the return of

the earlier indictment, they do allege such acts by

petitioner’s co-conspirators. Count 1 44 27(e), 36(c),

37(b). Under Garrett, the government was not required

to prosecute in August 1988 RICO offenses that contin-

ued after that date. 471 U.S. at 791-793. Furthermore,

the most recent predicate act alleged against petitioner

was not discovered until after the date of the first

indictment. Pet. App. 14a. See Brown v. Ohio, 482 U.S.

161, 169 n. 7 (1977) (Double Jeopardy Clause does not

bar successive prosecution “where the State is unable

to proceed on the more serious charge at the outset

because the additional facts necessary to sustain that

charge have not occurred or have not been discovered

despite the exercise of due diligence”).

d. In support of his double jeopardy claim, petitioner

invokes Grady v. Corbin, 495 U.S. 508, 510 (1990), in

which the Court held that “the Double Jeopardy Clause

bars a subsequent prosecution if, to establish an essen-

tial element of an offense charged in that prosecution,

13

the government will prove conduct that constitutes an

offense for which the defendant has already been

prosecuted.” Grady, however, does not help petitioner.

First, Grady does not apply to RICO prosecutions. In

Grady, the successive prosecutions involved simple

offenses—misdemeanor traffic violations and homi-

cide—that occurred simultaneously during a single

course of conduct spanning a brief period of time. A

RICO charge, by contrast, entails proof of multiple of-

fenses committed in furtherance of an ongoing enter-

prise and occurring over an extended time span. As the

court stated in Garrett, 471 U.S. at 788, such an offense

does not “lend itself to the simple analogy of a single

course of conduct.” As the courts of appeals have held,

Garrett (and not Grady) controls the permissibility of

successive prosecutions for RICO and its predicate of-

fenses. E.g., O'Connor, slip op. 4-9; Gonzalez, 921 F.2d

at 1535-15389; Gambino, 920 F.2d at 1112-1113; Pungi-

tore, 910 F.2d at 1111.

In addition, Grady explicitly reaffirmed the rule

allowing successive prosecutions where, as here, the

offense charged in the later case had not been

completed—or the government had not discovered the

facts necessary to prove it—at the time of the indict-

ment in the earlier case. 495 U.S. at 516 n.7. In light of

the allegations in this case of predicate acts that took

place after the date of the first indictment, as well as

the fact that the government did not know of some of

the predicate acts committed by petitioner until after

that date, there was clearly no constitutional bar to

bringing a successive prosecution under the RICO

statute in this case.

14

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W.STARR

Solicitor General

ROBERTS. MUELLER, III

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

MARCH 1992

> GOVERNMENT PRINTING OFFICE 1992-312 324/45376