US v. Levasseur

• Decision Date: 18 March 1988
• Docket Number: No. 86-180-Y.,86-180-Y.
• Citation: 699 F. Supp. 965
• Parties: UNITED STATES of America, v. Raymond Luc LEVASSEUR, Patricia Gros Levasseur, Thomas William Manning, Carol Ann Manning, Jaan Karl Laaman, Barbara J. Curzi-Laaman, and Richard Charles Williams.
• Court: U.S. District Court — District of Massachusetts

699 F. Supp. 965

UNITED STATES of America, v. Raymond Luc LEVASSEUR, Patricia Gros Levasseur, Thomas William Manning, Carol Ann Manning, Jaan Karl Laaman, Barbara J. Curzi-Laaman, and Richard Charles Williams.

No. 86-180-Y.

United States District Court, D. Massachusetts.

March 14, 1988.

Supplemental Opinion March 18, 1988.

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Michael K. Loucks and David L. Douglass, Asst. U.S. Attys., Boston, Mass., for the U.S.

Raymond Luc Levasseur, pro se.

Gombiner & Avenia by Peter Avenia, New York City, for defendant Raymond Luc Levasseur.

William Newman, Northampton, Mass., for defendant Patricia Gros Levasseur.

Fenn & King by Kenneth King, Jamaica Plain, Boston, Mass., for defendant Thomas William Manning.

Elizabeth M. Fink, Brooklyn, N.Y., for defendant Carol Ann Manning.

Daniel Meyers, New York City, and Schlang & Burrows by Steven Schlang, Northampton, Mass., for defendant Jaan Karl Laaman.

Linda Thompson, Springfield, Mass., for defendant Barbara J. Curzi-Laaman.

Robert Boyle, Brooklyn, N.Y., and Lewis S. Gurwitz, Winthrop, Mass., for defendant Richard Charles Williams.

MEMORANDUM AND ORDER ON CERTAIN PRE-TRIAL MOTIONS

YOUNG, District Judge.

On May 29, 1986, a United States grand jury in the District of Massachusetts indicted these defendants on three counts: violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c), conspiracy to commit such violations, 18 U.S.C. § 1962(d), and seditious conspiracy, 18 U.S.C. § 2384. Pursuant to Fed.R.Crim.P. 14, this Court severed charges against Christopher King ("King") from those against the other seven defendants on June 24, 1987, and his trial commenced on September 8, 1987. On the 32nd day of trial, King pleaded guilty to seditious conspiracy and the government dropped the other two charges against him.¹ In the meantime, the Court has addressed the nearly one hundred pre-trial motions filed by the remaining defendants. This memorandum and order considers certain of the more significant motions.

I. THE SO-CALLED "OPEN COUNTS" ISSUE

While their original motions were notably opaque in raising the issue, oral argument during the pre-trial hearings and subsequent briefing confirm that each of the remaining seven defendants seeks to preclude the government from introducing, in support of the RICO and the two conspiracy counts here, evidence of certain predicate acts constituting other crimes as to which these defendants have been previously charged and tried in the Eastern District of New York. The predicate acts which these motions address are those which mis-tried in the Eastern District of New York on the ground of juror deadlock.²

A. Prior Proceedings

The seven defendants who remain to be tried in the instant case were previously tried in the Eastern District of New York on an indictment (No. 85 CR 143 ILG) charging them with conspiracy to bomb buildings used in interstate commerce and buildings used by government agencies, with the actual bombing of ten buildings, and with the attempted bombing of an eleventh in violation of 18 U.S.C. §§ 2, 371, 844(f) and (i). United States v. Levasseur, 635 F.Supp. 251, 251 (E.D.N.Y. 1986). Trial began on October 21, 1985. On November 21, 1985, a mistrial was declared as to Patricia Gros Levasseur ("Gros") and her case was severed.³ Id. at 252. In March, 1986, the jury convicted each of the remaining six defendants (the "six defendants") of conspiracy to bomb and of from two to six of the substantive bombing counts. Carol Manning was acquitted of one count. The jury being unable to reach a verdict as to the remaining counts, a mistrial was declared as to them as follows: Levasseur — six counts; Richard Williams — six counts; Thomas Manning — five counts; Jaan Laaman —five counts; Carol Manning—eight counts; and Barbara Curzi-Laaman — eight counts. Id. These are the so-called "open counts."

At the time of their sentencing in late April and early May, 1986, the six defendants moved to dismiss these remaining open counts, which motion was denied. The six defendants then requested that a date for the retrial of the open counts be set, arguing that 18 U.S.C. § 3161(e) required that the trial commence "within seventy days from the date the action occasioning the retrial becomes final." In response, the government moved for an order pursuant to 18 U.S.C. § 3161(h)(1) or § 3161(h)(8)(A) that would exclude from Speedy Trial Act calculations the time up to the determination of the six defendants' appeals from the judgment of conviction, stating unequivocally that "the government represents to the Court that it will not retry the open counts if the convictions of the defendants are affirmed on appeal." Memorandum in Support of Government's Motion for Excludable Delay in 85 CR 143 (ILG) at 2, which memorandum is attached as Exhibit 1 to the Defendants'⁴ Memorandum of Law in Support of Motion to Dismiss on Judicial/Collateral Estoppel, and Speedy Trial Grounds in this case (hereinafter "Exhibit 1").

But even as the government — in order to avoid the strictures of the Speedy Trial Act — was representing to the court in Brooklyn that "it will not retry the open counts," it was apparently well on its way to doing precisely that in Massachusetts, albeit under a different statutory banner. Days after the representation made by the government in Brooklyn, a United States grand jury in Massachusetts returned the present indictment. Among the predicate acts set out to sustain the alleged RICO violation in this indictment are each and every one of the open counts from the trial in the Eastern District of New York.⁵ It would strain credulity to suppose that, at the time the government made its representation in Brooklyn, it was not actively presenting evidence of the self-same conduct to the grand jury in Massachusetts with an eye toward indicting the defendants here.

The District Court in Brooklyn determined that exclusion of this time from Speedy Trial calculations would serve the interests of the six defendants, the government, the courts, and society. In particular, the six defendants would benefit from being spared retrial on the open counts should their convictions be upheld, and the attendant anguish and possible additional punishment that would accompany such a retrial. United States v. Levasseur, 635 F.Supp. at 253. In addition, should the conviction be upheld, "no needless complex and protracted second trial"—one that might well result in reversal if the Second Circuit upheld the appeal of the six defendants from the result in the first trial— would be required. Id. at 254. On April 30, 1987, the Second Circuit affirmed the six defendants' convictions. United States v. Levasseur, 816 F.2d 37 (2d Cir.1987). On May 29, 1987, the government, having prevailed in the Second Circuit, moved that the District Court dismiss the open counts. Shortly thereafter, the District Court in Brooklyn dismissed these counts.

B. Collateral Estoppel

It is well settled that the doctrine of collateral estoppel is applicable to the criminal context. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Benson v. Superior Court, 663 F.2d 355 (1st Cir.1981). However, for the doctrine to have effect, the issue sought to be collaterally estopped must previously have been actually litigated to conclusion and a determination made thereon by a fact-finder. United States v. Romero, 836 F.2d 39 (1st Cir.1987). As the Fifth Circuit has held, "the dismissal of the indictment, with or without prejudice, does not amount to the determination of any of the intrinsic underlying facts.... The simple fact is that the dismissal of the previous indictment under these circumstances does not insulate the facts from further exploration and use." United States v. Rivero, 532 F.2d 450, 457 (5th Cir.1976); see also United States v. Stearns, 707 F.2d 391, 394 (9th Cir.1983) (holding that the dismissal of defendants' theft charge after the vacation of defendants' theft conviction had no collateral estoppel effect on the issue of whether a theft was committed in defendants' felony murder trial), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 181, 79 L.Ed.2d 182 (1984). Similarly, in United States v. Stricklin, 591 F.2d 1112 (5th Cir.1979), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979), where the defendant's conspiracy indictment had been previously dismissed with prejudice on Speedy Trial grounds, the Fifth Circuit held that the government was not barred from using the underlying facts in that indictment to charge the defendant with a different offense. In the words of the court,

A motion to dismiss before trial for lack of speedy prosecution has "nothing to do with guilt or innocence or the truth of the allegations in the indictment but is, rather, a plea in the nature of confession and avoidance, that is, here the defendant does not deny that he has committed the acts alleged and that the acts were a crime but instead pleads that he cannot be prosecuted because of some extraneous factor, such as ... the denial of a speedy trial."

Id. at 1120 (quoting United States v. Marion, 404 U.S. 307, 312, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971) (holding that defendants, whose indictment was dismissed on Speedy Trial grounds by the lower court, were not thereby placed in jeopardy).

In this case, although the open counts were litigated, the jury was unable to reach a verdict on them⁶ and thus with respect to these counts the litigation was once again in a pretrial period after the mistrial was declared. See United States v. Sanford, 429 U.S. 14, 16, 97 S.Ct. 20, 21, 50 L.Ed.2d 17 (1976) (per curiam). When the District Court in Brooklyn dismissed these counts in 1987, the effect of that action was merely to prevent the relitigation of those specific charges.⁷ However, the underlying facts of these charges are not insulated from further litigation on double...