US v. Alvarez

• Decision Date: 24 May 1996
• Docket Number: No. 96 CR 87-3.,96 CR 87-3.
• Citation: 928 F. Supp. 734
• Parties: UNITED STATES of America, Plaintiff, v. Michael ALVAREZ, Defendant.
• Court: U.S. District Court — Northern District of Illinois

928 F. Supp. 734

UNITED STATES of America, Plaintiff, v. Michael ALVAREZ, Defendant.

No. 96 CR 87-3.

United States District Court, N.D. Illinois Eastern Division.

May 24, 1996.

George Patrick Lynch, Downers Grove, IL, for defendant.

Canella Elizabeth Henrichs, United States Attorney's Office, Chicago, IL, for plaintiff.

OPINION AND ORDER

NORGLE, District Judge:

Before the court is the motion of Defendant Michael Alvarez ("Alvarez") to dismiss the indictment. For the reasons which follow the motion is denied.

FACTS

On March 4, 1996, a federal grand jury returned a three count superseding indictment charging Alvarez and fourteen others with conspiracy and conducting an illegal sports bookmaking business from the mid 1980s to at least April, 1991 (Counts One and Two). Count One charges defendant Alvarez with conspiracy, as one of two "layoff" bookmakers used to more evenly balance the amount of money wagered on each side of a sporting event. These layoffs would reduce the financial risk to the illegal gambling business. Count One further charges Alvarez with an overt act at paragraph "aa.," namely a conversation on March 28, 1991, between Alvarez and codefendant James Yario about the "line," referring to sports line information for that day.

On February 4, 1994, a state grand jury returned indictments, charging Alvarez with conspiracy and syndicate gambling between December, 1990 and May, 1992. According to the indictment, Alvarez "agreed with John Constabile to the commission of that offense in that John Constabile introduced (undercover Naperville Police Officer) William Nichols to Michael Alvarez so that William Nichols" could and did place a series of wagers with Alvarez. On May 8, 1995, Alvarez was convicted of syndicated gambling (Indictment # 94 CF 281-1, Eighteenth Judicial Circuit, County of DuPage) and was sentenced to four years in the custody of the Illinois Department of Corrections. The evidence in the state case consisted primarily of the testimony of Officer Nichols concerning the meetings and wagers between Officer Nichols and Alvarez.

Alvarez argues that the instant federal prosecution unconstitutionally subjects him to double jeopardy, and that the prosecution is only proceeding because the government was not satisfied with his ultimate state sentence. The government intends to offer into evidence in the present case all of the evidence used by the State to convict Alvarez in Indictment # 94 CF 281-1. In addition, the government intends to use evidence not available during the state prosecution, including evidence relating to Alvarez's gambling operation and how it was operated during 1988, evidence of layoffs made by Yario to Alvarez between early 1990 to approximately April 1991, phone records, pen register data, and testimony of witnesses. Alvarez was one of those persons intercepted in the court-authorized interception of the telephones associated with Yario, although Alvarez's identification was subsequent to the termination of the interceptions. Furthermore, no intercepted conversation from this investigation was provided to the State for use in their prosecution of Alvarez.

The government intends to introduce during trial, admissible under Federal Rules of Evidence 404(b), Alvarez's continued operation of his own bookmaking operation and his turnover of that business to one of his criminal associates while he was serving a period of incarceration. The government may also use the testimony of certain codefendants who have pleaded guilty to certain counts in the federal indictment.

By letter dated January 29, 1996, the Department of Justice, Washington, D.C. notified the local U.S. Attorney that waiver of the Petite Policy was appropriate and approved in the Alvarez's case. Submitted in camera, as Government Exhibit C. The court has reviewed the exhibit.

The government agrees that the Alvarez's criminal conduct came under the scrutiny of several investigative agencies, both state and federal, and that there may have been some overlap in investigations. Alvarez's alleged criminal conduct spanned years and several counties within the State of Illinois. Federal authorities may have cooperated with state authorities or vice versa.

Alvarez contends that the state prosecution of him was part of the federal government's "Operation Hard-Find." The government responds that the federal investigation referred to by Alvarez's "Hard-Find" did not pertain to this case and that "hard-find" was not the correct code name for this investigation. Operation Hard-Find was an FBI-IRS undercover money-laundering investigation of Celozzi-Ettleson Chevrolet. United States v. Celozzi, 95 CR 104. The prosecutors assigned to the Celozzi case were Assistant United States Attorneys John Podliska and Judith Dobkin.

Defendant does not dispute that the dual sovereignty doctrine entitles separate sovereigns to prosecute a person for the same conduct if such conduct violates the law of each. United States v. Zarnes, 33 F.3d 1454, 1470-71 (7th Cir.1994). The Supreme Court "has plainly and repeatedly stated that two identical offenses are not the `same offense' within the meaning of the Double Jeopardy Clause if they are prosecuted by different sovereigns." United States v. Robinson, 42 F.3d 433, 434 (7th Cir.1994) (quoting Heath v. Alabama, 474 U.S. 82, 92, 106 S.Ct. 433, 439, 88 L.Ed.2d 387 (1985)). See United States v. McKinley, 23 F.3d 181, 184-85 (7th Cir.1994). The government states that mere cooperation between State and Federal officials does not trigger an exception to the dual sovereignty doctrine, and this is where the true issue lies in this case. Alvarez does concede that the dual sovereignty doctrine precludes his claim unless a recognized exception applies. And the burden is upon the Alvarez to establish that exception. Mere accusations and general allegations of the type presented fall short of carrying that burden. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).

In his motion, Alvarez asks: What possible compelling interest could the federal government have to double prosecute a defendant who has been convicted in state court based upon the fruits of the federal investigation and given four years in the penitentiary? According to Alvarez, the only "interest of justice" the government has in the case at bar is to preclude Alvarez from seeking assistance in getting a fair sentence by petitioning his duly elected representatives, as well as the Department of Corrections. Defendant adds that the government may not permissibly have a policy that is arbitrarily and capriciously administered, and that the very idea that the Petite Policy can be utilized as a whip to further the interest of the executive branch of government does not comport with "the interest of justice."

However, the government obtained waiver of the Petite Policy as to the Alvarez. Alvarez attempts to attack that waiver, stating that the government has "sidetracked" the Petite Policy. However, the government has abided by its policy and has in this case obtained a waiver.

Most recently, in United States v. Gary, 74 F.3d 304, 313 (1st Cir.1996), the court stated:

We have repeatedly held that the Petite policy does not confer substantive rights on criminal defendants. See United States v. McCoy, 977 F.2d 706 at 712 (1st Cir.1992); United States v. Booth, 673 F.2d 27, 30 (1st Cir.1982)....

In United States v. Schwartz, 787 F.2d 257, 266-67 (7th Cir.1986), the Seventh Circuit quite clearly stated its position:

The Supreme Court long ago established that the United States may bring a criminal prosecution even after a person had been tried for and acquitted of the same conduct in state court.... Separate sovereigns may make their own decisions — be they complementary or conflicting — about who should stand trial, and for which charges.... The question whether to proceed with prosecution is for the Executive Branch and the grand jury alone.

Alvarez's motion argues that the attempt by the government to put his "feet to the fire" a second time, and to punish him further for the same conduct, violates his rights not only to former jeopardy and due process of law, but also violates any concept of protection against cruel and unusual punishments. Further, Alvarez contends that the government could have pursued the indictment against him while he was in its custody from 1991 through August 1995. Alvarez further avers that to "idly sit by and allow the state courts to maul the defendant and then jump in for seconds" violates any concept of fair sentencing. Defendant does not, however, state any prejudice from the delay.

Alvarez contends that the Bartkus exception to the dual sovereignty doctrine applies in this case because the federal government controlled the state prosecution and indictment. Alvarez's reliance upon the so-called Bartkus exceptions is misplaced. The exception sought to be invoked by Alvarez stems from a passage in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).

The court agrees with the government that the so-called Bartkus exception has gradually been eroded in the Seventh Circuit, as well as other circuits, — to the point of extinction. United States v. Brocksmith, 991 F.2d 1363 (7th Cir.1993); United States v. Paiz, 905 F.2d 1014 (7th Cir.1990). In both cases, the defendant requested a hearing on the Bartkus issue and the request for a hearing was denied by the district court. In each case the Seventh Circuit held that the district court was within its discretion in denying the defendant's request for a hearing.

In the most recent decision dealing with this issue, Brocksmith, the Seventh Circuit questioned whether Bartkus meant to create such an exception. In Brocksmith, pursuant to the dual sovereignty doctrine, there was a federal prosecution of an insurance agent for mail fraud. The prosecution was not was not barred by double jeopardy even though the insurance...