United States v. Persico, S 84 Cr. 809 (JFK).

• Citation: 620 F. Supp. 836
• Decision Date: 23 July 1985
• Docket Number: No. S 84 Cr. 809 (JFK).,S 84 Cr. 809 (JFK).
• Parties: UNITED STATES of America v. Carmine PERSICO, a/k/a "The Snake," a/k/a "Junior," Gennaro Langella, a/k/a "Gerry Lang," Thomas Dibella, a/k/a "The Old Man," Alphonse Persico, a/k/a "Little Allie Boy," Dominic Montemarano, a/k/a "Donny Shacks," John J. Deross, a/k/a "Jackie," Frank Melli, a/k/a "Beansie," Anthony Scarpati, a/k/a "Scappy," Andrew Russo, a/k/a "Andy Mush," Dominic Cataldo, a/k/a "Little Dom," Frank Falanga, a/k/a "Frankie The Beast," Hugh McIntosh, a/k/a "Apples," Vito Pitta and Ralph Scopo, Defendants.
• Court: U.S. District Court — Southern District of New York

620 F. Supp. 836

UNITED STATES of America v. Carmine PERSICO, a/k/a "The Snake," a/k/a "Junior," Gennaro Langella, a/k/a "Gerry Lang," Thomas Dibella, a/k/a "The Old Man," Alphonse Persico, a/k/a "Little Allie Boy," Dominic Montemarano, a/k/a "Donny Shacks," John J. Deross, a/k/a "Jackie," Frank Melli, a/k/a "Beansie," Anthony Scarpati, a/k/a "Scappy," Andrew Russo, a/k/a "Andy Mush," Dominic Cataldo, a/k/a "Little Dom," Frank Falanga, a/k/a "Frankie The Beast," Hugh McIntosh, a/k/a "Apples," Vito Pitta and Ralph Scopo, Defendants.

No. S 84 Cr. 809 (JFK).

United States District Court, S.D. New York.

July 23, 1985.

Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., New York City, for the U.S.; Bruce A. Baird, Aaron R. Marcu, Frank H. Sherman, Asst. U.S. Attys., New York City, of counsel.

Frank A. Lopez, Brooklyn, N.Y., for defendant Carmine Persico.

Santangelo & Cohen, for defendant Andrew Russo; George L. Santangelo, New York City, of counsel.

Michael F. Coiro, Jr., Bellmore, N.Y., for defendant Dominic Cataldo.

Genovesi & Kellman, for defendant Hugh McIntosh; Susan G. Kellman, Brooklyn, N.Y., of counsel.

OPINION and ORDER

KEENAN, District Judge:

Defendants Carmine Persico, Andrew Russo, Dominic Cataldo and Hugh McIntosh move this Court for an order dismissing the charges against them, brought pursuant to the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 ("RICO"), on the ground that the use of a prior conviction as a predicate act for a subsequent RICO prosecution violates (i) the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution; (ii) the plea agreements underlying their prior convictions;¹ and (iii) Rule 11(c)(1) of the Federal Rules of Criminal Procedure, which requires a court, upon acceptance of a guilty plea, to inform the defendant of the consequences of his plea.

For the reasons stated below, defendants' motion is denied.

BACKGROUND

The four movants, together with their 10 co-defendants, are alleged to be members of the Colombo Family of La Cosa Nostra ("Colombo Family"). The Colombo Family is alleged to be a criminal enterprise that systematically engaged in a wide-range of criminal activities including payoffs, embezzlement and extortion in connection with its control and domination of local labor unions; theft and sale of stolen goods; loansharking; illegal distribution of narcotics; operation of an illegal gambling business; bribery of public officials; and, intimidation by threats, beatings and murder. Counts one and two of the 51-count indictment, which constitute the heart of the government's case, charge all fourteen defendants with substantive violations of, and conspiracy to violate, RICO, 18 U.S.C. § 1962(c) and (d).

To establish a RICO violation, the government must show "a pattern of racketeering activity," id. § 1962(c), defined as "at least two acts of racketeering" within a ten-year period, id. § 1961(5), undertaken as part of a criminal enterprise, id. § 1962(c). To that end, the government has enumerated 56 racketeering acts as the predicate offenses for its RICO charges.

Racketeering acts 36-43 involve the bribery of a Special Agent of the Internal Revenue Service ("IRS"), in violation of 18 U.S.C. § 201(b)(3). All four movants have pleaded guilty to some part of this offense in the United States District Court for the Eastern District of New York. This affair has come to be known as the "Annicharico" bribery scheme, named after the IRS Special Agent at the hub of the conspiracy.

Defendants Carmine Persico, Russo and McIntosh bribed Annicharico to use his official position to prevent the commencement of the federal criminal prosecutions of Charles Panarella and defendant Russo for violations of federal income tax laws. (Racketeering Acts 36-37). Defendant Carmine Persico also bribed Annicharico to issue a writ of habeas corpus ad testificandum directing that Persico, then incarcerated in Atlanta, Georgia, be transferred to the federal prison in New York City. (Racketeering Act 38). Defendants Carmine Persico and McIntosh bribed Annicharico to arrange for Persico to remain incarcerated in New York City, rather than being returned to Atlanta. (Racketeering Act 39). Defendants Carmine Persico, Russo and McIntosh bribed Annicharico to influence the disposition of Persico's application to vacate his sentence. (Racketeering Act 40). Defendant Russo bribed Annicharico to prevent the commencement of a state criminal prosecution against Marc Rosenberg for perjury in a grand jury proceeding and to eliminate any back income tax liability for Stephen Lo Mangino and Adak Carting, Inc. (Racketeering Acts 41 and 43). Finally, defendants Russo and Cataldo bribed Annicharico to prevent the commencement of a federal criminal prosecution against Cataldo for alleged violations of the federal income tax laws. (Racketeering Act 42).

On August 11, 1981, Carmine Persico pleaded guilty to conspiracy to bribe a public official, 18 U.S.C. § 371, under the first count of an Eastern District of New York indictment (81 Cr. 42). Those charges are virtually restated by racketeering acts 36-39. On April 26, 1982, Andrew Russo pleaded guilty to conspiracy to bribe a public official, id. § 371, and obstruction of justice, id. § 1505, under counts one and four of an Eastern District indictment (80 Cr. 596). Those charges are substantially restated by racketeering acts 36-37 and 40-43. On or about March 5, 1981, Dominic Cataldo pleaded guilty to conspiring to bribe a public official and obstruction of justice, id. § 371, under count three of an Eastern District of New York indictment (81 Cr. 24). Those charges are virtually identical to racketeering act 42. On November 1, 1982, Hugh McIntosh, after four days of his trial, pleaded guilty to bribery of a public official, id. § 201(b), under count three of an Eastern District indictment (80 Cr. 596). Those charges are substantially identical to racketeering acts 36-37 and 39-40. Several charges against each of the above-named defendants were dismissed on the government's motion subsequent to their pleas of guilty.

The Court notes that, with the exception of defendant McIntosh, the pending indictment charges each of the movants with at least one racketeering act independent of the bribery of Special Agent Annicharico. Defendant Carmine Persico, the reputed boss of the Colombo Family, is also charged with (i) conspiracy to extort payoffs from construction companies, id. § 1951 (Racketeering Act 1); and (ii) bribery of an official at the Federal Correctional Institution in Ashland, Kentucky to induce the official to grant unwarranted privileges to inmate Persico, id. §§ 201(b)(1) and (3), 201(f) (Racketeering Act 44). Defendant Russo, a reputed "Capo" of the Colombo Family, is charged with participation in a wide-ranging loansharking conspiracy spanning from 1968 to the date of indictment; id. §§ 891, 892, 894 (Racketeering Act 47), and separate counts of conspiracy to make extortionate extensions of credit, id. §§ 891 and 894 (count 37), and conspiracy to use extortionate means for the collection of extensions of credit, id. §§ 891 and 894 (count 43). Defendant Cataldo, a reputed associate of the Colombo Family, is charged with (i) bribery of a prison official to obtain for himself an unwarranted institutional classification and a reduction of his term of incarceration, id. § 201(b)(2) (Racketeering Act 46); and (ii) wide-ranging narcotics violations, 21 U.S. §§ 812, 841(a)(1), 841(b)(1)(A), and 846 (Racketeering Act 56).

As regards defendants Carmine Persico and Cataldo, who are charged with a sufficient number of racketeering acts, independent of the Annicharico scheme, to sustain a RICO charge, the validity of using prior convictions as predicate offenses for a subsequent RICO charge affects only the weight of evidence against them. Defendant Russo is charged with only one racketeering act, other than those he pleaded guilty to in 1982; thus, the validity of the RICO charges against him depend on whether the Annicharico bribery conviction may constitute the one additional predicate offense necessary to support a RICO charge. Defendant McIntosh is charged only with racketeering acts arising from the Annicharico bribery offenses to which he has already pleaded guilty or were dismissed pursuant to his plea agreement. As a result, the validity of the RICO charges against him depend on whether the bribery conviction and dismissed charges arising from the same scheme may constitute the necessary predicate offenses necessary to support a RICO charge.

DISCUSSION

A. Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment declares: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb...." U.S. Const., Amend. 5. The Double Jeopardy Clause consists of three separate constitutional protections: (1) second prosecution for the same offense after acquittal, (2) second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The second and third protections are most relevant to this case.

These two constitutional proscriptions serve primarily to preserve the finality of judgments in criminal prosecutions and to protect the defendant from prosecutorial overreaching. Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 2540-41, 81 L.Ed.2d 425 (1984); United States v. DiFrancesco, 449 U.S. 117, 128, 136, 101 S.Ct. 426, 432, 437, 66 L.Ed.2d 328 (1980). In Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957), the Supreme Court explained:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense,

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