U.S. v. Brooklier

• Decision Date: 03 September 1982
• Docket Number: Nos. 81-1045,s. 81-1045
• Citation: 685 F.2d 1208
• Parties: 11 Fed. R. Evid. Serv. 703 UNITED STATES of America, Plaintiff-Appellee, v. Dominic Phillip BROOKLIER, Samuel Orlando Sciortino, Louis Tom Dragna, Michael Rizzitello, and Jack Locicero, Defendants-Appellants. to 81-1049.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1208

685 F.2d 1208

11 Fed. R. Evid. Serv. 703

UNITED STATES of America, Plaintiff-Appellee, v. Dominic Phillip BROOKLIER, Samuel Orlando Sciortino, Louis Tom Dragna, Michael Rizzitello, and Jack Locicero Defendants-Appellants.

Nos. 81-1045 to 81-1049.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 5, 1982.

Decided Sept. 3, 1982.

Anthony P. Brooklier, Marks & Brooklier, Beverly Hills, Cal., for brooklier.

Donald B. Marks, Marks & Brooklier, Beverly Hills, Cal., for Sciortino.

Donald Re, Weitzman, Fidler & Re, Los Angeles, Cal., for Dragna.

Howard W. Gillingham, Los Angeles, Cal., for Rizzitello.

Terry Amdur, Pasadena, Cal., for Locicer.

James D. Henderson, Sp. Atty., Los Angeles, argued, for plaintiff-appellee; Andrea Sheridan Ordin, U. S. Atty., Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY and SCHROEDER, Circuit Judges, and SOLOMON, ^* Senior District Judge.

PER CURIAM:

Appellants are members of La Cosa Nostra, a secret national organization engaged in a wide range of racketeering activities, including murder, extortion, gambling, and loansharking. They appeal their convictions for violating the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. § 1962 and the Hobbs Act, 18 U.S.C. §§ 1951(a) and 2.

At a seven-week trial, the government showed that beginning in 1972, members of the Los Angeles "family" extorted money from pornographers and bookmakers. Among their targets were Sam Farkas, Theodore Gaswirth, and Reuben Sturman. They also obtained money from Forex, an FBI-operated pornography business.

Much of the evidence consisted of testimony by extortion victims, including the FBI agents who ran the Forex operation. Aladena "Jimmy the Weasel" Fratianno, an FBI informant, described the internal organization and operations of La Cosa Nostra as an ongoing enterprise engaged in racketeering. Fratianno gave details on meetings, orders, and actions of the entire organization, including plans to murder Frank Bompensiero, an informant. He linked the individual acts of extortion to the leaders of La Cosa Nostra.

The indictment charged Brooklier, Sciortino, Dragna, Locicero, and Rizzitello (appellants) with racketeering in violation of RICO, ¹ extortion, ² obstruction of justice, ³ and aiding and abetting. ⁴

Count 1 charged all five appellants with conspiracy to commit RICO; the jury convicted all except Sciortino on this count. Count 2 charged all the appellants with a substantive violation of RICO; the jury convicted all of them. Count 3 charged that all appellants extorted money from Theodore Gaswirth and from his pornography business; all of the appellants were acquitted on this count. Count 4 charged appellants Rizzitello and Locicero with extorting money from Forex; the jury convicted both of them. Count 5 charged Brooklier, Sciortino, and Dragna with obstruction of justice through the murder of Frank Bompensiero, an informant; the jury acquitted all of them on this count.

Most of the issues raised on appeal challenge the racketeering acts on which the RICO convictions are based. The convictions on Count 1 are based on the racketeering activities charged in Counts 3, 4, and 5, and the extortion from Reuben Sturman and the Sovereign News Company in Cleveland, Ohio. The convictions on Count 2 are based on the same activities as Count 1 and the extortion of money from San Farkas in Los Angeles, California. The RICO counts allege that each of the defendants has engaged in, or conspired to engage in, at least two acts of "racketeering," as that term is defined by 18 U.S.C. § 1961(1).

I. DOUBLE JEOPARDY

In 1974, Dominic Brooklier and Samuel Sciortino were indicted for RICO violations. The indictment included a charge that in 1973, they conspired to conduct an extortion ring. One specific charge alleged that they conspired to extort money from Sam Farkas, and several specific acts by which they extorted money from Farkas were cited. In April, 1975, based on a plea agreement, Brooklier and Sciortino pleaded guilty to this conspiracy count; the other counts were dismissed.

In 1978, Brooklier and Sciortino were again indicted. Count 2 of the new indictment charged a RICO violation, but unlike the 1974 indictment, they were charged with a violation of a different subsection. ⁵ Although most of the charges in the 1980 indictment refer to acts which occurred after the 1975 conviction, one of the acts was the same act set forth in the 1974 indictment to which those appellants pleaded guilty. It charged they "extorted and caused the extortion of United States currency from Sam Farkas."

Brooklier and Sciortino moved to dismiss the Farkas incident in Count 2 on the ground of double jeopardy. The district court denied the motion and appellants filed an interlocutory appeal. This court affirmed the district court and held under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), there was no double jeopardy. United States v. Brooklier, 637 F.2d 620 (9th Cir. 1980).

Although we have discretion to modify this interlocutory decision, see United States v. Snell, 627 F.2d 186, 188 (9th Cir. 1980), we decline to do it. Blockburger permits the government to charge the defendants with two or more offenses arising from the same transaction when the offenses have distinct elements. Under Blockburger, if appellants had not been indicted and convicted in 1974, the government in the 1980 indictment could have charged Brooklier and Sciortino with both conspiracy to violate RICO and with a substantive RICO offense both partly based on the Farkas extortion. Therefore, their prior convictions on a RICO conspiracy charge, which contained the Farkas extortion, do not bar conviction for a substantive RICO violation based partly on the same Farkas extortion. United States v. Solano, 605 F.2d 1141, 1143 (9th Cir. 1979), cert. denied, sub nom. England v. United States, 444 U.S. 1020, 100 S.Ct. 677, 62 L.Ed.2d 652 (1980).

The double jeopardy challenge is rejected.

II. THE 1975 PLEA AGREEMENT

Brooklier and Sciortino contend the 1975 plea agreement prevents the government from including the Farkas extortion in any subsequent indictment. The government, on the other hand, contends the plea agreement was limited to the abatement of pending and planned federal or state investigations and charges. The district court agreed with the government's interpretation of the plea agreement.

The findings of a district court on the meaning of a plea agreement are reviewable under the "clearly erroneous" standard. United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir. 1980). We have examined the record and are of the opinion the district court's interpretation of the plea agreement is reasonable and is not clearly erroneous.

There is no merit to appellants' contention that the 1980 indictment should be dismissed because it was obtained in violation of the government's policy against multiple prosecutions for the same transactions. Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960). The Petite doctrine relates to the Justice Department's internal position that successive indictments will not ordinarily be based on the same conduct in order to avoid unnecessary multiple prosecutions. Except in extraordinary circumstances, it is a policy not reviewable by the courts. United States v. Snell, 592 F.2d 1083, 1087-88 (9th Cir.), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979); United States v. Welch, 572 F.2d 1359, 1360 (9th Cir.), cert. denied, 439 U.S. 842, 99 S.Ct. 133, 58 L.Ed.2d 140 (1978).

III. VINDICTIVE PROSECUTION

The 1978 indictment, which did not mention the Farkas extortion, was dismissed on motion of the appellants because of voting irregularities in the grand jury. In the subsequent indictment, the Farkas extortion was added in Count 2.

Brooklier and Sciortino contend the addition of the Farkas extortion in the subsequent indictments violates the vindictiveness doctrine. The doctrine of presumed vindictiveness applies when the Government increases the severity of the charges against the defendant under circumstances that pose a "realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus towards the defendant because he has exercised his specific legal rights." United States v. Gallegos-Curiel, 681 F.2d 1164 at 1168-69 (9th Cir. 1982). Here, the 1978 indictment was replaced by an indictment containing fewer charges and lighter penalties. The vindictiveness doctrine does not apply. United States v. Rosales-Lopez, 617 F.2d 1349, 1357 (9th Cir. 1980).

Even if the addition of the Farkas extortion somehow subjected Brooklier and Sciortino to a greater risk of punishment, vindictiveness could not be presumed. No reasonable likelihood of vindictiveness arises when the prosecutor increases the charges prior to trial, because he "may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance." United States v. Goodwin, --- U.S. ----, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). The prosecutor's initial charging decision should not freeze future conduct and the Government may reevaluate the societal interest in prosecution prior to trial, id., 102 S.Ct. at 2493; Gallegos-Curiel, at 1169-71, especially when, as here, "the prosecutor is required by court order to obtain a new indictment" and thus "will necessarily have to review the evidence and reconsider what charges to present to the grand jury." United States v. Banks, 682 F.2d 841 at 845 (9th Cir. 1982) (emphasis in original). The district court correctly dismissed the appellants' vindictive prosecution claim.

IV. DEFENDANTS' RIGHT TO TESTIFY

Brooklier and Sciortino contend the Farkas extortion charge precluded...