U.S. v. Esposito

• Citation: 912 F.2d 60
• Decision Date: 25 June 1990
• Docket Number: No. 89-5971,89-5971
• Parties: UNITED STATES of America v. Walter ESPOSITO, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 60

912 F.2d 60

59 USLW 2109

UNITED STATES of America v. Walter ESPOSITO, Appellant.

No. 89-5971.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

June 25, 1990.

Decided July 31, 1990.

Rehearing and Rehearing In Banc Denied Aug. 29, 1990.

David A. Ruhnke, Ruhnke & Barrett, West Orange, N.J., for appellant.

Samuel A. Alito, Jr., U.S. Atty., Edna Ball Axelrod, Chief, Appeals Div., Donna A. Krappa, Asst. U.S. Atty., Newark, N.J., for appellee.

Before SLOVITER and MANSMANN, Circuit Judges, and FULLAM, District Judge. ^*

OPINION OF THE COURT

SLOVITER, Circuit Judge.

On this direct appeal from the district court's denial of defendant's motion to dismiss the indictment on double jeopardy grounds 726 F.Supp. 991, we must decide whether acquittal on a RICO charge bars subsequent prosecution on the predicate acts. This presents the mirror image of the question that we decided in United States v. Grayson, 795 F.2d 278 (3d Cir.1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1899, 95 L.Ed.2d 505 (1987), where we held that the Double Jeopardy Clause does not bar use of prior convictions of the predicate offenses to support a later RICO charge.

I.

In August 1988, the defendant Walter Esposito, along with nineteen others, was acquitted by a jury in United States v. Accetturo, Cr. No. 85-292, D.N.J. Esposito had been named in four counts of a twelve-count indictment. Count One charged him with a conspiracy, spanning from at least February 1976 until July 31, 1985, to violate the Racketeering Influenced and Corrupt Organization Act (RICO), in violation of 18 U.S.C. Sec. 1962(d). Count Two charged him with participation in a racketeering enterprise, in violation of 18 U.S.C. Sec. 1962(c). ¹ In this Count, Esposito was specifically charged with four predicate acts: participating in a drug distribution conspiracy from 1977 to July 1985; cocaine distribution in November 1984; cocaine distribution in December 1984; and cocaine distribution in January 1985. Count Three charged him with conspiracy to distribute and possess with intent to distribute cocaine and marijuana in violation of 21 U.S.C. Sec. 846, and Count Four charged him with distribution of cocaine in November 1984 in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

After the acquittal in the Accetturo case, a federal grand jury returned an indictment against Esposito in three counts alleging drug distribution in violation of 21 U.S.C. Sec. 841(a)(1) on three separate dates: (1) on or about December 5, 1984; (2) on or about December 20, 1984; and (3) on or about January 9, 1985. The government concedes that these counts were based on the transactions that supported predicate acts charged in Count Two of the earlier Accetturo indictment. Brief for Appellee at 6.

Esposito filed a motion to dismiss this second indictment, claiming that the proceeding violated principles of double jeopardy and collateral estoppel, and that it also constituted a vindictive prosecution that deprived him of due process. The district court denied Esposito's motion, and Esposito filed this appeal limited to his contention that the second indictment violates the Double Jeopardy Clause of the Fifth Amendment.

This court has jurisdiction over this appeal under 28 U.S.C. Sec. 1291. Pretrial orders denying motions to dismiss the indictments on double jeopardy grounds "fall within the so-called 'collateral order' exception to the final-judgment rule first announced in Cohen v. Beneficial Industrial Loan Corp. [337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) ], ... and are thus 'final decisions' within the meaning of Sec. 1291." Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977). See also United States v. Liotard, 817 F.2d 1074, 1077 n. 4 (3d Cir.1987). Our standard of review is plenary. United States v. Grayson, 795 F.2d at 281.

II.

Esposito argues on appeal that the district court erred as a matter of law in rejecting his claim that this prosecution is barred by the Double Jeopardy Clause because of his acquittal on Counts One, Two, and Three of the earlier indictment. ² There appear to be two prongs to his double jeopardy argument. He argues first that this is an impermissible successive prosecution. In that connection, he argues that although a conviction may be used later as a predicate act in a substantive RICO claim without violating the Double Jeopardy Clause, as we held in Grayson, the reverse is not true; once a defendant has been acquitted on a RICO charge the government cannot later prosecute him on the underlying predicate acts. He also argues that this prosecution is barred under the legal principle that precludes a later prosecution on a lesser included offense when there has been an acquittal or conviction on a greater offense, and cites, inter alia, Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam).

The double jeopardy issues raised in connection with prosecution for a compound predicate offense, such as racketeering under RICO or engaging in a continuing criminal enterprise (CCE) in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. Sec. 848, do not fit precisely within the analytic lines used in other double jeopardy cases. Nonetheless, there is no exception from the Double Jeopardy Clause for complex statutory crimes. See Jeffers v. United States, 432 U.S. 137, 151, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977) (plurality opinion).

Indeed, we recognize at the outset that Esposito's prosecution on the substantive narcotics offenses which were listed as predicate acts in the earlier RICO indictment against him could implicate some of the concerns underlying the Double Jeopardy Clause, such as, for example, the need to protect a defendant from prosecutorial overreaching, see Ohio v. Johnson, 467 U.S. 493, 498-99, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984); Garrett v. United States, 471 U.S. 773, 795-96, 105 S.Ct. 2407, 2419-20, 85 L.Ed.2d 764 (1985) (O'Connor, J., concurring), or providing the state an opportunity to rehearse its presentation of proof, see Grady v. Corbin, --- U.S. ----, 110 S.Ct. 2084, 2091-92, 109 L.Ed.2d 548 (1990).

Moreover, this is not a case where all the events necessary to the second prosecution had not taken place at the time of the first prosecution, see Garrett, 471 U.S. at 798, 105 S.Ct. at 2421 (O'Connor, J., concurring) (double jeopardy does not bar subsequent prosecution for CCE offense "[w]here the defendant continues unlawful conduct after the time the Government prosecutes him for a predicate offense"); see also Diaz v. United States, 223 U.S. 442, 449, 32 S.Ct. 250, 251, 56 L.Ed. 500 (1912) (earlier conviction of assault and battery does not bar prosecution for homicide when victim died after the first prosecution), nor a case where the facts underlying the second prosecution were unknown or unavailable at the time of the first, see Jeffers, 432 U.S. at 152, 97 S.Ct. at 2216 (double jeopardy may not apply when the facts necessary to prosecution for a greater crime "were not discovered despite the exercise of due diligence before the first trial"). This is also not a case, such as Jeffers, where the responsibility for separate prosecutions can be laid at the feet of the defendant. Id. at 154, 97 S.Ct. at 2218 (defendant who objected to joint prosecution for conspiracy and CCE charges could not complain about consecutive trials).

Despite our unease about the turn of events presented by this case, we cannot translate it into a double jeopardy violation unless the two offenses for which Esposito has been charged are "the same offense," id. at 150, 97 S.Ct. at 2216, because the constitutional proscription is in those terms. ³ The Supreme Court has recently reiterated the now familiar statement that under the Double Jeopardy Clause of the Fifth Amendment, defendants are protected from later prosecutions for the same offense after being convicted, from later prosecutions for the same offense after being acquitted, and from multiple punishments for the same offense. See Grady v. Corbin, 110 S.Ct. at 2090 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)).

In this case, we do not face the issue of multiple punishments for the same offense because Esposito was acquitted in the first prosecution. Our inquiry therefore is limited to whether Esposito's second prosecution offends the protection afforded by the Double Jeopardy Clause from later prosecution for the same offense after being acquitted.

When faced with a similar issue in a somewhat comparable situation, the Supreme Court directed the courts to undertake a two-step analysis. See Garrett, 471 U.S. at 778, 105 S.Ct. at 2411. First, we must consider whether Congress intended that each violation be a separate offense. A negative answer would be dispositive of the double jeopardy inquiry and the constitutional issue could be avoided. Id. On the other hand, if it is clear that Congress intended to permit separate prosecutions, we must proceed with the second inquiry, whether the offense in the second prosecution is considered to be the "same offense" as the offense in the first prosecution within the meaning of the Double Jeopardy Clause. Id. at 786, 105 S.Ct. at 2415.

This court has previously considered whether Congress intended to allow successive prosecutions under RICO. See United States v. Grayson, 795 F.2d 278 (3d Cir.1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1899, 95 L.Ed.2d 505 (1987). In determining that Congress intended to allow an earlier conviction to serve as a predicate act in a later RICO prosecution, we noted that "RICO's statutory language indicates that Congress sought to supplement, rather than supplant, existing crimes and penalties." Id. at 282. Other courts have reached the same conclusion. See, e.g., United States v. Licavoli, 725 F.2d 1040, 1049-50 (6th...