503 F.3d 78 (2nd Cir. 2007), 06-0908, United States v. Dionisio

Docket Nº:06-0908-cr.
Citation:503 F.3d 78
Party Name:UNITED STATES of America, Appellee, v. Dominick DIONISIO, a.k.a. Black Dom, Defendant-Appellant.
Case Date:September 17, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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503 F.3d 78 (2nd Cir. 2007)

UNITED STATES of America, Appellee,


Dominick DIONISIO, a.k.a. Black Dom, Defendant-Appellant.

No. 06-0908-cr.

United States Court of Appeals, Second Circuit.

September 17, 2007

Argued: November 15, 2006.

Appeal from denial of Defendant-Appellant's motion to dismiss on double jeopardy grounds.

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Thomas J. Seigel, Assistant United States Attorney, for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York (David C. James, Assistant United States Attorney, on the brief), for Appellee.

Diarmuid White, White & White, Port Washington, N.Y. (Brendan White & James Froccaro, on the brief), for Defendant-Appellant.

Before: CALABRESI, WESLEY, Circuit Judges, OBERDORFER, District Judge.[*]

CALABRESI, Circuit Judge.

Defendant Dominick Dionisio appeals the district court's denial of his motion to dismiss a racketeering conspiracy charge that he claims is prohibited by the Double Jeopardy Clause. Dionisio contends that the protections of the Double Jeopardy Clause were triggered when, pursuant to a plea agreement, the court previously dismissed with prejudice another racketeering conspiracy charge against him that was allegedly based on the same offense conduct. Guaranteeing that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb," U.S. Const. amend. V, the Double Jeopardy Clause protects criminal defendants against "a second prosecution for the same offense after acquittal," "a second prosecution for the same offense after conviction," and "multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

The instant appeal implicates the first of these protections. In doing so, it raises a question that is open in this circuit. Under what circumstances, if ever, does a court's dismissal with prejudice of a charge (pursuant to a plea agreement with the government and prior to a trial by a fact-finder), constitute "jeopardy" for purposes of the Fifth Amendment? We affirm the lower court's determination that, based on the record in the case at bar, the pretrial dismissal of Dionisio's 2001 conspiracy indictment with prejudice did not amount to jeopardy. We do not today decide that jeopardy may never attach as a result of a pretrial dismissal with prejudice. Rather, we hold only (1) that in order for a pretrial dismissal to trigger the protections of the Double Jeopardy Clause, there must be an adjudication of elements of the offense charged, in a way that reflected a genuine risk of conviction, and (2) that no such adjudication occurred in the instant case.

I. Background

The relevant facts are not in dispute. In 2001, in the Eastern District of New York, Dionisio was charged under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c), with counts of substantive racketeering, racketeering conspiracy, and other offenses [hereinafter "2001 indictment"]. These involved the Colombo organized

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crime family of La Cosa Nostra. The charged conduct allegedly took place from 1993 to 2001. The counts of substantive racketeering and racketeering conspiracy asserted several of the same predicate acts, including a conspiracy to distribute marijuana between January 1999 and May 1999.1 Pursuant to a plea agreement, Dionisio pled guilty to one count of substantive racketeering, and the court sentenced him to 78 months' imprisonment to run concurrently with a prior sentence. Also pursuant to the plea agreement, the government moved to dismiss with prejudice the other counts against Dionisio. Among these was the racketeering conspiracy charge. Dionisio's plea agreement provided that:

(a) no further criminal charges will be brought against the defendant for the specific crimes charged against the defendant in the above-captioned superseding indictment, it being understood that this agreement does not bar the use of such conduct as a predicate act or as the basis for a sentencing enhancement in a subsequent prosecution including, but not limited to, a prosecution pursuant to 18 U.S.C. §§ 1961 et seq. ;

(b) At the time of sentence, [the government] will move to dismiss the remaining counts of the referenced superseding indictment and the underlying indictments with prejudice.

(emphasis added). The agreement further stated that "[s]hould it be judged by the Office that the defendant has violated any provision of this agreement, the defendant will not be released from his plea of guilty but this Office will be released from its obligations under this agreement." Id.

In 2004, Dionisio was once again indicted in the Eastern District of New York on the charge of racketeering conspiracy, this time in violation of 18 U.S.C. § 1962(d) [hereinafter "2004 indictment"]. His charged conduct, also in connection with the Colombo crime family, assertedly took place from November 1991 to May 1999. This conspiracy, as identified by the district court, was based on four claimed predicate acts: "(1) a 1991 double attempted murder, (2) a 1991 robbery of a Yeshiva, (3) a conspiracy to rob marijuana from Hispanic narcotics traffickers in or about and between August 1998 and May 1999, and (4) a conspiracy to rob marijuana 'from a white male residing in the vicinity of Battery Park City in Lower Manhattan' in or about and between August 1998 and May 1999." United States v. Dionisio, 415 F.Supp.2d 191, 194 (E.D.N.Y. 2006) (quoting Def.'s Ex. E. ¶ ¶ 11-19).

On June 3, 2005, defendant moved to dismiss the indictment both as a violation of the Double Jeopardy Clause and as a breach by the government of the 2001 plea agreement. Dionisio contended that the 2004 marijuana conspiracy indictment to rob marijuana traffickers was based on the same conduct as that which formed the predicate of Dionisio's 2001 marijuana conspiracy indictment. Because the earlier conspiracy indictment had been dismissed "with prejudice," defendant argued that he could not be exposed to jeopardy again on a conspiracy charge grounded in the same offense conduct. Dionisio also argued that the 2004 indictment violated the government's plea agreement pledge that "no further criminal charges will be brought against the defendant for the specific crimes charged" in the 2001 indictment.

On February 15, 2006, the district court (Judge Irizarry) denied Dionisio's motion to dismiss. The court rebuffed the double

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jeopardy challenge; it held that "jeopardy did not attach when the racketeering conspiracy charge was dismissed with prejudice from the 2001 indictment pursuant to defendant's plea agreement." 415 F.Supp.2d at 199; see generally id. at 195-200.Rejecting defendant's contention that the government had breached the plea agreement, the court noted that the agreement dismissed the 2001 counts only "for the specific crimes charged" and, even if the crimes charged in the 2001 and 2004 indictments were the same, the plea agreement expressly stated that it "does not bar the use of . . . conduct [like that alleged in the 2001 indictment] as a predicate act" in future racketeering prosecutions. Id. at 194. The court did not consider whether the two indictments were based on the same offense conduct.

On appeal, at this time, Dionisio may only challenge the double jeopardy ground of the court's denial of his motion to dismiss. And it is that which he seeks to have reversed.2 He contends that jeopardy attached when the court dismissed, with prejudice, his 2001 indictment for racketeering conspiracy, and further that the dismissal "with prejudice" bears the preclusive force of res judicata because, in effect, it operates as an adjudication on the merits and therefore bars subsequent prosecutions. In response, the government argues that jeopardy did not attach in 2001. It contends that the court gave only ministerial approval to the parties' 2001 plea agreement, and that the resulting dismissal of the racketeering conspiracy charge can neither be the grounds for collateral estoppel nor for the attachment of jeopardy.

II. Discussion

We review Dionisio's double jeopardy challenge de novo. United States v. Estrada, 320 F.3d 173, 180 (2d Cir. 2003). It goes without saying that "an accused must suffer jeopardy before he can suffer double jeopardy." Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); United States v. Von Barta, 635 F.2d 999, 1004 (2d Cir. 1980), cert. denied, 450 U.S. 998, 101 S.Ct. 1703, 68 L.Ed.2d 199 (1981) (quoting Serfass, 420 U.S. at 393, 95 S.Ct. 1055); see also United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); see generally Ex parte Lange, 85 U.S. (18 Wall.) 163, 168-69, 21 L.Ed. 872 (1873) (establishing that the Double Jeopardy Clause bars a second prosecution only if jeopardy attached in the original proceeding). At the heart of this appeal is whether the 2001 dismissal with prejudice of the charge against Dionisio placed him in sufficient jeopardy to trigger the protections of the Clause.3

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As the district court correctly noted, "no Second Circuit or Supreme Court authority directly address[es] whether jeopardy attaches when a charge is dismissed with prejudice pursuant to a plea agreement," 415 F.Supp.2d at 196. The court nevertheless held that pretrial dismissal with prejudice cannot trigger the attachment of jeopardy. While we believe that the court's categorical ruling was based on a misreading of both Supreme Court and our precedents, as well as an over-reading of the decisions of other circuits, we conclude that on the facts of this case its rejection of appellant's double jeopardy claim was appropriate.


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