U.S. v. Basile, s. 96-2744

• Decision Date: 09 May 1997
• Docket Number: Nos. 96-2744,96-2746,s. 96-2744
• Parties: UNITED STATES of America, Appellee, v. Daniel BASILE, Appellant. UNITED STATES of America, Appellee, v. Richard DeCARO, Appellant. Eighth Circuit
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1304

109 F.3d 1304

UNITED STATES of America, Appellee, v. Daniel BASILE, Appellant.

UNITED STATES of America, Appellee, v. Richard DeCARO, Appellant.

Nos. 96-2744, 96-2746.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 16, 1997.

Decided April 1, 1997.

Rehearing and Suggestion for Rehearing

En Banc Denied May 9, 1997.

Thomas F. Flynn, Federal Public Defender, argued, St. Louis, MO, for Daniel Basile.

N. Scott Rosenblum, argued, St. Louis, MO (Susan Kister, on the brief), for Richard DeCaro.

Thomas E. Dittmeier, St. Louis, MO, for appellee.

Before BOWMAN and MURPHY, Circuit Judges, and KYLE, ¹ District Judge.

BOWMAN, Circuit Judge.

Richard DeCaro and Daniel Basile appeal from the judgments of the District Court ² on jury verdicts finding them guilty on charges of murder-for-hire, conspiracy to commit murder-for-hire, and mail fraud. We affirm.

I.

This case arises from the execution-style murder of Elizabeth DeCaro, wife of Richard DeCaro, on March 6, 1992. She was found shot to death that Friday night in the kitchen of her home in St. Charles, Missouri (a suburb of St. Louis), the gun barrel having been pressed up against the back of her neck and fired twice. Her husband, who recently had been having an extramarital affair with his secretary, had taken the couple's four children (and the family dog, which was not known to travel with the family because it was very excitable around strangers) to the Lake of the Ozarks in south Missouri for the weekend. He had told Elizabeth that he wanted a "daddy's weekend" alone with the children. DeCaro and the children left St. Charles shortly after noon on March 6, while Elizabeth was still at work. Later that afternoon, Elizabeth was murdered and the family's Blazer was stolen from the garage of the home. These incidents followed by about a month the theft of the family van from the DeCaro home in the early morning hours of February 8, 1992; the van was found in southeast Missouri and had been burned. DeCaro reported that various items were missing from the van, including the garage door opener for the DeCaro home.

A few days after the murder, first Basile and then DeCaro were arrested on state charges of murder. In May 1994, Basile was tried as the hit man, was convicted, and was sentenced to death. His direct appeal in the state proceeding has been submitted to the Missouri Supreme Court. In a separate trial in September 1994, DeCaro was acquitted on state murder charges.

In May 1995, a federal grand jury indicted Basile and DeCaro on murder-for-hire and mail fraud charges. Specifically, both men were charged with use of the mail or facilities in interstate commerce with intent to commit murder-for-hire, 18 U.S.C. § 1958 (1988 & Supp. IV 1992); conspiracy to commit murder-for-hire, 18 U.S.C. §§ 1958, 371 (1988 & Supp. IV 1992); and mail fraud, 18 U.S.C. § 1341 (Supp. IV 1992). ³ After a joint jury trial both men were found guilty of all charges against them and each was sentenced to life in prison.

DeCaro and Basile both raise the same three issues on appeal. They claim this federal prosecution, following as it did the state prosecution, is a violation of their rights under the Double Jeopardy Clause of the Constitution. They also argue that the District Court abused its discretion in denying their motions for separate trials. Finally, both challenge the court's denial of their motions for judgment of acquittal, and contend that there was insufficient evidence that interstate facilities were used in furtherance of the murder-for-hire scheme.

II.

DeCaro and Basile argue that they were twice put in jeopardy for the same crime in violation of their constitutional rights, see U.S. Const. amend. V, and that the District Court erred in refusing to dismiss the indictment on those grounds. We review de novo. See United States v. McMasters, 90 F.3d 1394, 1401 (8th Cir.1996), cert. denied, --- U.S. ----, ----, 117 S.Ct. 718, 783, 136 L.Ed.2d 636, 726 (1997).

A.

It has long been the law under the doctrine known as dual sovereignty that federal prosecution following state prosecution "of the same person for the same acts" does not violate the defendant's criminal rights. Abbate v. United States, 359 U.S. 187, 194, 79 S.Ct. 666, 670, 3 L.Ed.2d 729 (1959); see also United States v. Halls, 40 F.3d 275, 277-78 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1721, 131 L.Ed.2d 579 (1995). According to the tenets of dual sovereignty, each sovereign derives its power from a different constitutional source, so both may prosecute and punish the same individual for the same act. See Abbate, 359 U.S. at 193-94, 79 S.Ct. at 669-70. Basile acknowledges that his federal convictions "do not appear to offend the double jeopardy clause of the Fifth Amendment under current Supreme Court law." Brief of Basile at 31. DeCaro, on the other hand, would have this Court decide that, because federal prosecution for the murder of Elizabeth DeCaro followed his acquittal on state charges for the same act, "the purpose [of the federal prosecution] is improper and the prosecution should be quashed." Brief of DeCaro at 43. We disagree.

The Supreme Court has created an exception to the dual sovereignty doctrine, concluding that a state prosecution will be deemed unconstitutional when "the state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution." Bartkus v. Illinois, 359 U.S. 121, 124, 79 S.Ct. 676, 678, 3 L.Ed.2d 684 (1959). Here DeCaro argues the converse: that the federal government was used as a "tool" by state prosecutors after the state prosecution of DeCaro failed, in order to advance a state interest--the conviction of DeCaro for the murder of his wife--where the state could not legally do so itself. See United States v. Talley, 16 F.3d 972, 974 (8th Cir.1994). As a legal proposition, DeCaro's claim requests an extension of Bartkus, but he directs us to no opinion wherein this Court has held that the Bartkus exception applies when it is the federal prosecution that follows the state prosecution. We acknowledge, however, that other panels of this Court have assumed, without squarely deciding, that a Bartkus-type exception applies to a situation such as we have here. See, e.g., United States v. Williams, 104 F.3d 213, 216 (8th Cir.1997); Halls, 40 F.3d at 278.

Because the question was not briefed and argued, and because it is not necessary to our holding today, we do not decide how far Bartkus may be extended. For even if DeCaro's claim properly is regarded as falling within the Bartkus exception to the dual sovereignty doctrine, the claim fails for lack of factual foundation. DeCaro has not directed this Court to anything in the record that supports his claim of collusion between the two sovereigns. Indeed, his claim is based on little more than chronology: he was acquitted on state charges, and then later he was tried on federal charges arising from the same events. But it would take far more than mere chronology of this sort to render the federal government a "tool" of the state, or the federal prosecution "a sham and a cover" for a de facto state prosecution.

DeCaro further asserts that the federal prosecution must have been manipulated by the state because the prosecution was for "an unremarkable case of spousal murder" and "a garden variety contract killing" with "questionable" federal interest. Brief of DeCaro at 44. We disagree. While contract killing, standing alone, may not be a federal crime, it may become such when its perpetration involves the use of the mail or facilities in interstate commerce. The independence and importance of the federal interest in protecting the channels of interstate commerce from the taint of crime is unaffected by DeCaro's previous acquittal in state court; it remains just as important and worthy of vindication after the state trial as it was before. "[T]he federal government had an interest, independent of any state interest, to ensure that an individual who is believed to have violated a federal statute is prosecuted for that violation." Talley, 16 F.3d at 974.

We hold that the dual sovereignty doctrine is fully applicable in this case and that DeCaro's double jeopardy claim therefore lacks merit.

B.

Both DeCaro and Basile argue that the United States Attorney in this case nevertheless violated the constitutional prohibition against double jeopardy by failing to follow an internal United States Department of Justice (DoJ) policy concerning duplicative and successive prosecution by the federal government. Known as the Petite policy for the case wherein the Supreme Court first described it, see Petite v. United States, 361 U.S. 529, 531, 80 S.Ct. 450, 451, 4 L.Ed.2d 490 (1960) (per curiam), it "was formulated by the Justice Department in direct response to" the opinions in Bartkus and Abbate, Rinaldi v. United States, 434 U.S. 22, 28, 98 S.Ct. 81, 84-85, 54 L.Ed.2d 207 (1977) (per curiam). Under the policy, a United States attorney may not prosecute a person in federal court "if the alleged criminality was an ingredient of a previous state prosecution against that person" unless the federal prosecution "is specifically authorized in advance by the [DoJ] itself, upon a finding that the prosecution will serve 'compelling interests of federal law enforcement.' " Thompson v. United States, 444 U.S. 248, 248, 100 S.Ct. 512, 512, 62 L.Ed.2d 457 (1980) (per curiam). DeCaro and Basile argue that the federal government had no "compelling interests" to be served here.

We are not convinced that the federal prosecution in this case failed to meet the "compelling interests" requirement of the Petite policy. We need not and do not decide the question, however, because the Petite policy is "not constitutionally mandated," Rinaldi, 434 U.S. at 29, 98 S.Ct. at 85, and otherwise "confers no substantive rights on the accused," United States v. Moore, 822 F.2d 35, 38 ...