U.S.A v. Basciano

• Decision Date: 23 March 2010
• Docket Number: Docket No. 09-0281-cr.
• Citation: 599 F.3d 184
• Parties: UNITED STATES of America, Appellee, v. Vincent BASCIANO, also known as Vinny Gorgeous, also known as Vinny from the Bronx, Defendant-Appellant. George Goltzer (Jane Simkin Smith, Millbrook, NY, and Richard Jasper, New York, NY, on the brief), New York, NY, for Defendant-Appellant. Taryn A. Merkl, Assistant United States Attorney (David C. James, John D. Buretta, Nicole Argentieri, Cristina Posa, Assistant United States Attorneys, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
• Court: U.S. Court of Appeals — Second Circuit

599 F.3d 184

UNITED STATES of America, Appellee, v. Vincent BASCIANO, also known as Vinny Gorgeous, also known as Vinny from the Bronx, Defendant-Appellant. George Goltzer (Jane Simkin Smith, Millbrook, NY, and Richard Jasper, New York, NY, on the brief), New York, NY, for Defendant-Appellant. Taryn A. Merkl, Assistant United States Attorney (David C. James, John D. Buretta, Nicole Argentieri, Cristina Posa, Assistant United States Attorneys, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Docket No. 09-0281-cr.

United States Court of Appeals Second Circuit.

Argued: Oct. 27, 2009.

Decided: March 23, 2010.

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Before: WALKER, McLAUGHLIN and RAGGI, Circuit Judges.

REENA RAGGI, Circuit Judge:

Defendant Vincent Basciano is presently serving a sentence of life imprisonment as a result of conviction after jury trials in 2006 and 2007 in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge) on charges of conspiratorial and substantive racketeering relating to his participation in the Bonanno organized crime family ("Bo nanno crime family" or "Family").¹ See Judgment, United States v. Basciano, Nos 03-cr-929(S-5) & (S-8) (E.D.N.Y. Apr. 9 2008). Basciano now awaits a third trial in the Eastern District before Judge Garaufis on a different indictment charging him with one count of substantive racketeering again in connection with the Bonanno crime family, see 18 U.S.C. § 1962(c); two counts of conspiracy to murder in aid of racketeering, see id. § 1959(a)(5); one count of murder in aid of racketeering—a capital offense—see id. § 1959(a)(1); and a related firearms charge, see id. § 924(c)(l)(A)(iii). See Indictment, United States v. Basciano, No. 05-cr-060(S-9) 2008 WL 2242407 (E.D.N.Y. Apr. 17, 2008).

Basciano appeals the district court's denial of his motion to dismiss on double jeopardy grounds those counts of the pending 05-cr-060(S-9) indictment charging him with substantive racketeering (Count One) and conspiracies to murder in aid of racketeering (Counts Three and Nine), as well as the denial of his motion to reconsider this ruling.² Basciano asserts that the pending substantive racketeering crime is the same as the one for which he already stands convicted under 03-cr929(S-8) because the enterprise and pattern of racketeering at issue in the two prosecutions are the same. He further contends that the pending 05-cr-060(S-9) murder-in-aid-of-racketeering conspiracies are legally subsumed within the 03-cr929(S-5) racketeering conspiracy of which he stands convicted.

The government concedes that the successive substantive racketeering charges against Basciano involve the same enterprise—the Bonanno crime family—but insists that the offenses are distinguished by different patterns of racketeering. Specifically, it asserts that the pattern at issue in Basciano's earlier substantive racketeering prosecution reflected the day-to-day activities of the Bonanno crime family over the quarter century from 1979 to 2004. The government submits that the pattern at issue in the pending substantive racketeering prosecution, by contrast, is more limited in time and scope, reflecting Basciano's leadership and defense of the Family in the wake of various 2004 arrests, including Basciano's own on November 19, 2004.

As for the pending murder-in-aid-ofracketeering conspiracies, the government submits that these crimes require proof of elements different from those required for the racketeering conspiracy crime of conviction, thus passing the double jeopardy test established by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and reiterated in United States v. Dixon, 509 U.S. 688, 696, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).

We agree with the government's second argument, but not with its first. In support of its pattern argument, the government submits that only the five predicate acts ascribed to Basciano—and not six further predicates charged to co-defendants—are properly considered in identifying the pattern at issue in his pending substantive racketeering prosecution. Following this approach, the district court highlighted two of the five predicates attributed to Basciano in identifying a pat tern of racketeering informed by a different homicidal motive than that at issue in the substantive crime of conviction. We are not persuaded by either the urged approach or the conclusion as to motive. The trial record on the substantive crime of conviction demonstrates an expansive homicidal motive encompassing one, if not both, of the predicates emphasized by the district court. In any event, where, as in this case, a grand jury has charged a single pattern of racketeering consisting of various predicate acts ascribed to a number of co-defendants, a court properly considers all charged predicates in identifying the pattern through which the defendants are alleged to have conducted the affairs of an enterprise. To identify pattern in such a case only by reference to the predicates charged against an individual defendant, as the government urges, would lead to the untenable conclusion, rejected even by the government at oral argument, that a single § 1962(c) charge against multiple defendants might be construed to plead multiple patterns of racketeering—in short, multiple substantive racketeering crimes.

Upon review of the totality of predicates pleaded in the pending substantive racketeering count, we conclude that the pattern alleged therein is, in fact, part of the same broad pattern proved in the substantive racketeering crime of conviction. Indeed, the government offered proof of most of the predicate acts charged against Basciano in the pending substantive racketeering count to "complete the story" of the substantive racketeering crime of conviction. Under these circumstances, we conclude that double jeopardy bars Basciano's successive prosecution for substantive racketeering as pleaded in the pending indictment.³

Accordingly, we affirm the district court's denial of Basciano's double jeopardy challenge to Counts Three and Nine of the pending indictment, but we reverse its denial of the double jeopardy challenge to Count One and remand the case with directions to dismiss that count.

I. Background

Our analysis of Basciano's double jeopardy challenge necessarily requires a preliminary review of both his past racketeering crimes of conviction and the pending charges. This review is complicated by the many superseding versions of the two indictments at issue, some of which were pending at the same time.

A. Indictment 03-cr-929: The Conspiratorial and Substantive Racketeering Crimes of Conviction

The case in which Basciano stands convicted, denominated on the docket of the Eastern District as 03-cr-929, was first filed in 2003. Basciano was not a named defendant in the initial indictment. Rather, on November 19, 2004, he was arrested on a second superseding version of this indictment filed the previous day, which charged him and six codefendants with various crimes stemming from defendants' participation in the Bonanno crime family. The racketeering conspiracy charge on which Basciano stands convicted is that pleaded in the fifth superseding version of this indictment, ("03-cr-929(S-5)"), while the substantive racketeering charge of conviction is that pleaded in the indictment's eighth superseding version, ("03cr-929(S-8)").

1. Basciano's Racketeering Conspiracy Conviction

The racketeering conspiracy charge of conviction is alleged as the first count of 03-cr-929(S-5), in which only Basciano and Patrick DeFilippo were named as defendants. Count One charged that from January 1979 through January 2005 the named defendants conspired together and with unnamed others "to conduct and participate" in the affairs of the Bonanno crime family "through a pattern of racketeering activity." 03-cr-929(S-5) ¶14.

The indictment described the Bonanno crime family as an organized criminal enterprise operating in the United States and Canada whose activities affected interstate and foreign commerce. See id. ¶1. The Family allegedly operated according to a familiar structure: "crews" of "made" members (also known as "soldiers, " "good fellows, " or "buttons") and associates were led by "captains, " who in turn reported to a "boss, " "underboss, " and "consigliere." Id. ¶¶ 2-5. At "various times" relevant to the charged conspiracy, Basciano allegedly served the Family at every level, i.e., as an associate, as a soldier, as a captain, and eventually, as acting boss. Id. ¶8. DeFilippo allegedly served the Family as an associate, as a soldier, and as a captain See id.

Count One charged that Basciano and DeFilippo agreed to conduct the Family's affairs through a pattern of racketeering activity involving the commission of at least two of the following thirteen predicate acts:

• Act One: Between January 1979 and January 2003, Basciano and others conducted an illegal gambling business involving policy.

• Act Two: Between January 1979 and January 2005, Basciano and DeFilippo conducted a gambling business involving joker-poker machines.

• Act Three: Between October and November 14, 1985, Basciano and DeFilippo conspired to cause and attempted to cause the death of John Doe # 1, subsequently identified as David Nunez.

• Act Four: Between January 1990 and January 2003, DeFilippo and others conducted an illegal gambling business involving bookmaking.

• Act Five: Between January 1990 and December 1994, Basciano and others made an extortionate extension of credit to John Doe # 2, subsequently identified as Generoso Barbieri.

• Act Six: Between January 1990 and December 1994, Basciano and others made an extortionate extension of credit to John Doe # 3, subsequently identified as John Palazzolo.

• Act Seven:...