U.S. v. Sinito, 82-3712

• Citation: 723 F.2d 1250
• Decision Date: 08 February 1984
• Docket Number: No. 82-3712,82-3712
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas James SINITO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1250

723 F.2d 1250

UNITED STATES of America, Plaintiff-Appellee, v. Thomas James SINITO, Defendant-Appellant.

No. 82-3712.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 4, 1983.

Decided Dec. 23, 1983.

Rehearing and Rehearing En Banc

Denied Feb. 8, 1984.

Bernard A. Berkman, Berkman, Gordon, Murray & Palda, J. Michael Murray (argued), Cleveland, Ohio, for defendant-appellant.

Mervyn Hamburg (argued), Washington, D.C., for plaintiff-appellee.

Before KEITH, KENNEDY and WELLFORD, Circuit Judges.

KEITH, Circuit Judge.

Pursuant to Abney v. United States, ¹ 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), defendant Thomas Sinito appeals a pretrial order of the district court which denied his motion to dismiss counts one and two of a seventy-count indictment. ² Counts one and two of the indictment charged defendant and five others with violation of the Racketeer Influenced and Corrupt Organizations Statute (RICO), 18 U.S.C. Sec. 1962(c) and (d) ³ and operation of a continuing criminal enterprise, 21 U.S.C. Sec. 848. ⁴ The indictment charged that defendant was a member of organized crime who, along with others, used threats of violence and committed acts of murder in order to protect the organization's illegal drug and gambling activities.

This case raises the difficult question of whether the separate conspiracies charged in different grand jury indictments are, in reality, one for the purposes of the fifth amendment prohibition against double jeopardy.

I. FACTS

1981 Indictment (Sinito I)

On April 10, 1981, defendant Sinito and his cousin, Charles Sinito, were charged in an eighteen count indictment (Sinito I) with a RICO conspiracy, 18 U.S.C. Sec. 1962(d), the completed substantive RICO offense, 18 U.S.C. Sec. 1962(c), conspiracy to make extortionate extensions of credit, 18 U.S.C. Sec. 892, the collection of extensions of credit by extortionate means, 18 U.S.C. Sec. 894 and, as to defendant alone, income tax evasion, 26 U.S.C. Sec. 7201, and filing of a false tax return, 26 U.S.C. Sec. 7206. The predicate acts underlying the charges involved violations of the federal loansharking laws. Sinito conducted a loansharking operation out of the Appliance Mart, an appliance store owned by Charles Sinito. The indictment identified twelve victims of the loansharking racket and stated that the activity occurred between March 1, 1974 and January 30, 1979.

The trial of Sinito commenced on July 16, 1981. The jury found defendant guilty on August 3, 1981 of the RICO conspiracy and several of the substantive counts. Defendant Sinito received a sentence of eighteen years and a twenty-thousand dollar fine. ⁵

1982 Indictment (Sinito II)

The following year, on October 27, 1982, Sinito, along with four other individuals, were named as defendants in a new seventy-count indictment (Sinito II). Count one charged Sinito, Joseph Gallo, Frederick Graewe, Hartmut Graewe and Kevin McTaggart with a RICO conspiracy in violation of 18 U.S.C. Sec. 1962(c). The indictment alleged these men belonged to an enterprise known as the "Cleveland Organized Crime Family," the "Outfit", the "Organization" or the "Mafia", and that this organization was used in a conspiracy to facilitate illegal drug and gambling activities. The predicate acts involved were murder, gambling and obstruction of justice. Count two charged the aforementioned defendants and Angelo Lonardo ⁶ with engaging in a continuing criminal enterprise involving the distribution and possession of illegal narcotics, from which they derived substantial income in violation of 21 U.S.C. Sec. 848. The remainder of the seventy counts in the indictment charged defendants with interstate travel in aid of racketeering, 18 U.S.C. Sec. 1952, possession with intent to distribute and distribution of controlled substances, 21 U.S.C. Sec. 841, and use of a telephone to facilitate the distribution of controlled substances, 21 U.S.C. Sec. 843(b). Only counts one and two in the second indictment are the subjects of this appeal.

On September 23, 1982, Sinito filed a motion in the United States District Court in Ohio to dismiss the indictment. In his motion he raised two issues. First, he contends that count one of the indictment was barred by the double jeopardy clause because he was tried and convicted a year earlier of a RICO offense. Sinito argues that in reality there is but one conspiracy and that prosecution under the second indictment violates his fifth amendment guarantee against double jeopardy. Second, he claims that count one of the second indictment is a lesser included offense of count two, and therefore count two also violates the double jeopardy clause.

An evidentiary hearing was held on October 19, 1982 to determine the merits of Sinito's claims. Three special investigating officers testified at that hearing. Case Agent Herbert Cohrs had worked on the investigation which culminated in the loansharking indictment the year before. He also participated in the investigation of the present RICO conspiracy. It was his opinion that while the witnesses in the two cases differed, there was an overlap of the parties involved in the two indictments. ⁷

Cohrs testified that he had read reports from other investigating officers which indicated the existence of one massive criminal conspiracy in Cleveland, and in the past year he had learned that Sinito was a member.

Next to testify was Special Agent Dean Winslow, who was the investigating case agent in the present indictment. Winslow stated he had been aware of Sinito's involvement in loansharking since he was first assigned to the Cleveland office in 1978. He further testified that while he was unaware that Sinito's drug activities were financed through loansharking, a source had told him that this was true. Winslow also stated that, from his own investigation, he concluded there was one single conspiracy to control the various illegal rackets in Cleveland, and these rackets included drugs, gambling, and loansharking. It was his belief that Lonardo and James Licavoli were at the top of this organization and defendant Sinito was at the second level.

FBI agent George Grotz, who supervised the Organized Crime Squad in Cleveland, was the last witness to testify. He stated that he had worked on an indictment in 1978 which involved defendant and Lonardo. ⁸ 8] Subsequently, Sinito was dismissed as a defendant in the indictment. Agent Grotz stated that through investigations he had concluded there was one massive conspiracy in Cleveland, controlled by the Mafia and organized to run gambling, drug trafficking and loansharking. Moreover, he believed that defendant Sinito, along with Lonardo and Joseph Gallo, were members of the conspiracy.

At the conclusion of the agents' testimony, defense counsel argued the government had artificially divided a single alleged conspiracy to control the drug, gambling and loansharking racket in the Cleveland area into two alleged conspiracies; one smaller conspiracy to control loansharking and another far larger conspiracy to control the other rackets. Defendant contends that since there was only one conspiracy involving loansharking, gambling and drugs, to again prosecute Sinito for the conspiracy upon which he had already been prosecuted, convicted, and sentenced would violate the double jeopardy clause.

The government's position was that the evidence produced at the forthcoming trial would not duplicate the evidence used to previously convict appellant. Moreover, the prior conviction for RICO related solely to loansharking and did not immunize defendant from criminal liability for all other misdeeds.

In a memorandum opinion, the district court denied defendant's motion to dismiss. The court relied upon the totality of circumstances test enunciated in United States v. Jabara, 644 F.2d 574 (6th Cir.1981) to conclude the conspiracy alleged in the prior loansharking indictment differed from the conspiracy alleged in the present indictment. Thus, defendant had not been twice placed in jeopardy. Also, in reliance on United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982), the court found the RICO count was not a lesser included offense of the continuing criminal enterprise count, and therefore this claim lacked merit. For the reasons set forth below, we affirm the decision of the district court.

II. DOUBLE JEOPARDY AND MULTIPLE PROSECUTIONS UNDER RICO

The fifth amendment in part provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Thus, the double jeopardy clause provides a guarantee that "the State with all its resources and power [shall] not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continued state of anxiety and insecurity ...." United States v. Tercero, 580 F.2d 312, 314 (8th Cir.1978) (quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957)).

The double jeopardy clause has traditionally provided a bulwark against both multiple punishments as well as multiple prosecutions for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

The test to determine whether two offenses are the same was first enunciated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). In Blockburger, the Supreme Court said:

[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether these are two offenses or only one is whether each provision requires proof of fact which the other does not. A single act may be an offense against two statutes; and if...