Angiulo v. Com.

• Decision Date: 04 November 1987
• Citation: 401 Mass. 71,514 N.E.2d 669
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Gennaro ANGIULO v. COMMONWEALTH (and three companion cases). 1

Page 669

514 N.E.2d 669

401 Mass. 71

Gennaro ANGIULO v. COMMONWEALTH (and three companion cases). ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 11, 1987.

Decided Nov. 4, 1987.

Anthony M. Cardinale (Robert L. Sheketoff, Boston, with him), for Gennaro Angiulo.

Matthew A. Kamholtz, Boston, for Samuel Granito.

David Grossbaum, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

ABRAMS, Justice.

At the request of the Commonwealth, we issued an expedited order on October 5, 1987, ordering the dismissal of the indictments for conspiracy to commit murder, and further ordering that the trial on the indictments for being accessories before the fact to murder proceed as scheduled. This opinion explicates the reasons underlying our order. ²

In the United States District Court for the District of Massachusetts, the defendants, ³ Gennaro Angiulo and Samuel Granito, were convicted of violating the Racketeer Influenced and Corrupt Organizations Act (RICO). See 18 U.S.C. § 1962 (c) and (d) (1982). ⁴ In Count I, the indictment charged the defendants with conspiring to engage in racketeering activities, among them, conspiring to murder and being accessories before the fact to the murder of Angelo Patrizzi. In Count II, the defendants were charged with substantive violations of the RICO statute and, as one of several racketeering acts, the government alleged that the defendants conspired to murder and were accessories before the fact to the murder of Angelo Patrizzi. The jury convicted the defendants. The judge sentenced Angiulo to a forty-five year term of imprisonment and to pay $120,000 in fines. The judge sentenced Granito to a twenty year term of imprisonment and to pay $35,000 in fines. ⁵ After the Federal convictions and sentencing, a grand jury sitting in Essex County indicted the defendants on charges of conspiring to murder, and of being accessories before the fact to the murder of Angelo Patrizzi. Both defendants moved for dismissal of the charges against them contending that the prior Federal RICO prosecution barred the Commonwealth's prosecution on double jeopardy grounds. See Commonwealth v. Cepulonis, 374 Mass. 487, 373 N.E.2d 1136 (1978). After hearing, the Superior Court judge denied the motions to dismiss. The defendants filed complaints with the Supreme Judicial Court, pursuant to G.L. c. 211, § 3, seeking review of the denial of their motions to dismiss. Commonwealth v. Chatfield-Taylor, 399 Mass. 1, 3, 502 N.E.2d 512 (1987). After hearing, a single justice reserved and reported the cases to the full court.

The sole issue on appeal ⁶ is whether the Commonwealth may prosecute these defendants for conspiracy to murder and for being accessories before the fact to the murder of Angelo Patrizzi. The Commonwealth stipulated that it intends to introduce the same evidence at the defendants' trial in the Superior Court as was introduced at the Federal trial on the RICO charges. On this basis, the defendants asserted that the Commonwealth's prosecution is barred by the common law doctrine of double jeopardy as enunciated in the Supreme Judicial Court's decision in Commonwealth v. Cepulonis, 374 Mass. 487, 373 N.E.2d 1136 (1978), and that the denial of their motions to dismiss was error and should be reversed.

I. Federal Proceedings.

We turn to Counts I and II of the Federal indictments against the defendants because those counts are the only Federal charges relevant to these proceedings. At Federal trial, the District Court judge instructed the jury that in order to find the defendants guilty on Count I of the indictment (the RICO conspiracy count), the jury must find beyond a reasonable doubt that the defendants conspired to conduct and participate in the affairs of a racketeering enterprise which was engaged in a pattern of racketeering activities affecting interstate commerce; that the defendants agreed to participate in the activities of the enterprise; that the defendants manifested their agreement by consenting to commit two or more racketeering offenses; and, finally, that at least one conspirator had committed an overt act in furtherance of the conspiracy. With regard to Count II, the District Court judge instructed the jury that the government must prove that the defendants were associated with a racketeering enterprise; that they knowingly committed at least two racketeering acts within ten years of one another and that one such offense occurred within five years of the indictment; that the defendants participated in the conduct of the enterprise's affairs; and that the enterprise engaged in activities that affected interstate commerce. As part of his instructions on the elements of the racketeering offenses for Counts I and II, the District Court judge defined the elements of murder, conspiracy to murder, and being an accessory before the fact to murder under Massachusetts law, and instructed the jury that the government must prove each and every element of these offenses beyond a reasonable doubt in order to convict the defendants of the RICO conspiracy charge in Count I and the substantive racketeering charges in Count II of the indictments.

II. The Accessory Charge.

In Commonwealth v. Cepulonis, 374 Mass. 487, 373 N.E.2d 1136 (1978), we held that if the elements of a crime for which a defendant faces prosecution are the same as the elements of a crime for which he or she has already faced prosecution, the second prosecution may be barred on double jeopardy grounds. We noted that "this test or rule may require some modulation when applied to a case in which the prior prosecution occurred in a Federal court." Id. at 494-495, 373 N.E.2d 1136. We said that "the fact that a Federal crime is punishable much more lightly than the parallel State crime may justify a subsequent prosecution by the State." Id. at 495, 373 N.E.2d 1136. Because the indictments charging accessory before the fact to murder are punished much more severely in the Commonwealth than federally, we conclude that these charges fall within the exception expressly set forth in Cepulonis.

A comparison of the penalties accompanying a conviction on a RICO charge and the penalties for conviction on the accessory charges shows a wide difference in the severity of the penalties for the respective Federal and State crimes with which the defendants have been charged. The RICO statute provides that any individual who violates its prohibitions shall be fined not more than $25,000, or shall be imprisoned for not more than twenty years, or both, and shall forfeit any interest in or proceeds from any racketeering enterprise. 18 U.S.C. § 1963 (Supp. II 1984). In prosecuting the defendants, the United States Attorney also sought a twenty-five year enhanced penalty pursuant to 18 U.S.C. § 3575 (1982), on the ground that the defendants are dangerous special offenders. Thus, in addition to fines and forfeitures, the defendants faced a maximum of forty-five years' imprisonment. By contrast, G.L. c. 274, § 2, provides that an accessory before the fact to a crime shall be punished in the manner provided for the punishment of the principal felon, and G. L. c. 265, § 2, provides that any individual found guilty of murder in the first degree shall be sentenced to a mandatory term of life imprisonment without the possibility of parole.

Our conclusion that the Federal crime in question is punished "much more lightly" than the State crime is based on three factors. First, because the RICO statute allows for punishment by fine without imprisonment, it is clear that the minimum statutory penalty for the Federal crime is far less severe than the minimum State penalty of life imprisonment without parole. Second, as a maximum penalty, a RICO violation carries a sentence of twenty years' imprisonment (with or without fines and forfeitures), or, in the case of a dangerous offender, forty-five years' imprisonment (with or without fines and forfeitures). The State statute's maximum penalty is, again, life imprisonment without parole. Third, under Federal law, an individual convicted of a RICO violation and given the maximum sentence of twenty years' imprisonment may be eligible for parole after serving one-third of that sentence. 18 U.S.C. § 4205 (a) (1982). If sentenced to a term of more than thirty years (as in the case of the defendant given an enhanced penalty), an individual convicted of a RICO violation may be eligible for parole after serving ten years of the original sentence. No possibility of parole exists for the convicted accessory before the fact to murder in the first degree. ⁷ G.L. c. 265, § 2. See Commonwealth v. Forde, 392 Mass. 453, 459, 466 N.E.2d 510 (1984).

The defendants assert that in Cepulonis we upheld the dismissal of the State charges of armed robbery and confining against that defendant following a Federal trial for bank robbery, in spite of the fact that the Commonwealth's penalties were more severe than the Federal penalties. The defendants point out that the Commonwealth's armed robbery and confining charges carried a maximum sentence of life imprisonment, G. L. c. 265, §§ 17 & 21, whereas the Federal bank robbery statute had a maximum penalty of twenty years and twenty-five years, 18 U.S.C. § 2113 (a) and (d) (1982). From that fact the defendants conclude that the life sentence for murder in the first degree should not be dispositive. We do not agree. The defendants' argument ignores the discretionary nature of the maximum life sentences permitted under the State statutes under consideration in Cepulonis and also ignores the fact that parole is available under both the Federal and State statutes, and that under the State statute probation is available. 18 U.S.C. § 4205 (a) (1982). Aldoupolis v. Commonwealth, 386 Mass. 260, 267, 435 N.E.2d 330, cert. denied sub nom. Savoy v. Massachusetts, 459 U.S. 864, 103 S.Ct. 142, 74 L.Ed.2d 120 (1982). Clearly, the Federal...