U.S. v. Decologero
| Decision Date | 12 April 2004 |
| Docket Number | No. 03-1442.,No. 03-1443.,03-1443.,03-1442. |
| Citation | 364 F.3d 12 |
| Parties | UNITED STATES of America, Appellee/Cross-Appellant, v. Paul DeCOLOGERO, a/k/a Big Paul, a/k/a Paulie, Defendant-Appellant/Cross-Appellee. John P. DeCologero, Jr., a/k/a Little John, a/k/a John-John, Paul J. DeCologero, a/k/a Young Paul, Derek Capozzi, Joseph F. Pavone, Daniel G. Tsoukalas, Defendants/Cross-Appellees, and In re United States of America, Petitioner. |
| Court | U.S. Court of Appeals — First Circuit |
Timothy Q. Feeley, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, Christopher F. Bator and Ernest S. DiNisco, Assistant United States Attorneys, were on brief and petition for a writ of mandamus for the United States.
Joan M. Griffin, by appointment of the court, with whom Cooke, Clancy & Gruenthal, LLP and Paul F. Markham were on brief for John P. DeCologero, Jr. and Joseph F. Pavone.
Roger Witkin, by appointment of the court, on brief for Paul J. DeCologero, a/k/a Young Paul.
Terrance J. McCarthy, by appointment of the court, on brief for Derek Capozzi.
Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and STAHL, Senior Circuit Judge.
Before us are a pair of interlocutory appeals in a criminal case. Both grow out of a 23-count federal indictment filed on October 17, 2001, charging Paul A. DeCologero and six associates with criminal racketeering in violation of the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1962(c) (2000),1 conspiracy to violate RICO, id. § 1962(d) and an array of related crimes. We refer to Paul A. DeCologero as "DeCologero" even though several co-defendants have the same last name.
The government alleged that DeCologero headed a criminal enterprise ("the DeCologero crew") that used brutal tactics to gain control of a portion of Boston's drug trade and murdered a nineteen-year-old woman (Aislin Silva) when the members thought she might betray them. In addition to the RICO counts, the indictment specified a number of federal crimes charged in separate counts involving drugs, guns, robberies, and — in the case of the slain woman — murder for the purpose of witness tampering.
RICO violations require not only participation in a criminal enterprise but also participation in a "pattern of racketeering activity," which in turn requires proof of at least two of a list of specified federal or state crimes (e.g., murder, extortion, robbery, drug trafficking). 18 U.S.C. §§ 1961(1), (5) (2000). In jargon, such acts are called "predicate acts" or "racketeering acts" ("RAs"), and, in this indictment, a number of the acts charged as federal crimes in separate counts of the indictment were restated as RAs in support of the RICO counts. A table listing the RAs is attached to this decision.
Nominally the indictment identified fourteen separate RAs, but several had subparts, each constituting a sufficient predicate act under RICO; for example, the attempted and ultimately successful murder of the woman was expressed in RA 1 as five separate crimes (e.g., subpart 1 was conspiracy to murder under state law, subpart 2 was attempt to murder under state law). The indictment thus effectively contained thirty-eight predicate acts only partly overlapping with the substantive counts because some counts were not RAs and some RAs (e.g., state crimes) were not counts. Different defendants were implicated in different RAs; only Paul A. DeCologero was implicated in all.
Four years before the present indictment was filed, DeCologero had been acquitted of RICO violations in United States v. Carrozza, Crim. No. 97-40009-NMG, 1987 WL 769894 (D.Mass.1999). Following the present indictment, DeCologero moved to dismiss the new RICO charges against him (and one drug conspiracy count) on double jeopardy grounds. The district court rejected this claim, finding that the RICO violations alleged in Carrozza were different than those charged in the current case. DeCologero now appeals from this ruling under 28 U.S.C. § 1291 (2000), the denial of a double jeopardy defense being immediately appealable. Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).
At one of the pre-trial hearings, the district court had expressed concern that the scope of the case — the number of counts, RAs and criminal offenses — made "charging a jury and having them understand virtually impossible." Then, in an oral ruling at a further conference, the district court without further explanation sua sponte divided the case (as described immediately below) into two separate trials. On motion by the government for reconsideration, the court entered a written order adhering to the separation, saying:
[I]t is necessary to divide this case into separate trials, pursuant to this Court's inherent "authority and responsibility for managing ... trials before it so as to protect the interests of the parties and the public in just determination of a criminal proceeding with `simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.' "United States v. Shea, 750 F.Supp. 46, 49 (D.Mass.1990) (quoting Fed.R.Crim.P. 2).
The district court's ruling divided the charges in the indictment into two separate trials, ordering that three substantive counts involving robberies and unlawful possession of firearms be postponed until a second trial at some unspecified date.2 Further, the court ordered that four of the fourteen racketeering acts that the government included as predicate acts for the RICO charges be postponed until this second trial. See attached chart. This left ten RAs and seventeen substantive counts for the first trial (the government had voluntarily dismissed three firearms counts).
The government then filed a cross-appeal from the court's decision to postpone four of the RAs until a later trial, arguing that this order effectively dismissed and foreclosed the four postponed RAs since double jeopardy doctrine would prevent the government from bringing RICO charges based on these RAs in a later trial. Alternatively, the government said that the order exceeded the district court's case management authority. The district court stayed trial pending the resolution of the appeals.
Before us now are three difficult questions: the merits of DeCologero's double jeopardy claim (which is clearly appealable now under Abney, 431 U.S. at 662, 97 S.Ct. 2034); whether we have jurisdiction over the government's cross-appeal contesting the case management order (the defendants dispute jurisdiction); and, if so, whether the district court exceeded its authority in its division of the case insofar as it limited the RAs available to the government in the first trial. We address the questions in that order.
Double Jeopardy. DeCologero argues that, having been acquitted of the RICO charges in Carrozza, he is shielded by the Constitution's prohibition of double jeopardy from the RICO charges (although not necessarily from the non-RICO counts) in the present case. This is so if, but only if, the RICO charges in the two cases are "the same." U.S. Const. Amend. V; see, e.g., United States v. Marino, 277 F.3d 11, 39 (1st Cir.2002). Based on a comparison of the two indictments as drafted and the proffer of evidence by the government, we conclude that the new RICO charges are not barred.
The Carrozza indictment charged nine defendants with conducting the affairs of "the Patriarca Family of La Cosa Nostra" through a pattern of racketeering. La Cosa Nostra is the notorious crime syndicate also known as the mafia. The "Patriarca Family," a New England branch of this organization, was headed by Raymond J. Patriarca until 1990, at which point Francis P. Salemme was the heir-apparent. The Carrozza defendants were charged with attempting "to usurp control of the Patriarca Family" from Salemme after Patriarca's death. See Marino, 277 F.3d at 19-21 ().
The Carrozza indictment covered the period from 1989 to 1994, although evidence of events occurring through 1998 was presented at trial. DeCologero was charged in eight substantive counts, including RICO and RICO conspiracy, conspiracy to commit murder and attempted murder, various firearms charges, and a cocaine distribution conspiracy. The RICO counts listed him as a participant in only three of the fourteen RAs: conspiracy to murder fourteen individuals, attempted murder, and conspiracy to possess cocaine with intent to distribute. He was acquitted of all charges in 1999.
The present indictment charges the defendants with participating in a nominally different enterprise — the "DeCologero Crew" — said by the government to be "a separate entity from the Patriarca La Cosa Nostra (`LCN') Family, yet ... structured in a similar manner to a crew or regime of La Cosa Nostra" and "aligned with" the Carrozza faction of the Patriarca Family. According to the charge, the DeCologero Crew's aim was "controlling, supervising, and financing illegal activities," including generating money through robbery and drug sales "for the personal use of members ... and to build up a war chest of firearms, weapons, and ammunition which was to be used, in part, to support the" Carrozza faction.
If the double jeopardy problem turned solely on whether the two cases involved the same enterprise, we would be faced with a hard question. The RICO statute loosely defines an "enterprise" to include not only any legal entity (e.g., a corporation) but also "any union or group of individuals associated in fact." 18 U.S.C. § 1961(4). Although the DeCologero indictment alleges that the Carrozza faction and DeCologero crew were separate enterprises, the proffered...
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