U.S. v. Brooklier

• Decision Date: 09 March 1981
• Docket Number: No. 80-1455,80-1455
• Citation: 637 F.2d 620
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dominic Phillip BROOKLIER and Samuel Orlando Sciortino, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 620

637 F.2d 620

UNITED STATES of America, Plaintiff-Appellee, v. Dominic Phillip BROOKLIER and Samuel Orlando Sciortino Defendants-Appellants.

No. 80-1455.

United States Court of Appeals Ninth Circuit.

Submitted Aug. 18, 1980.

Decided Sept. 8, 1980.

Opinion Filed Jan. 23, 1981.

Certiorari Denied March 9, 1981.

See 101 S.Ct. 1514.

Donald B. Marks, Anthony P. Brooklier, Marks Brooklier, Beverly Hills, Cal., for defendants-appellants.

James Henderson, U. S. Dept. of Justice, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER, ALARCON, and CANBY, Circuit Judges.

FLETCHER, Circuit Judge:

In 1974 Dominic Brooklier and Samuel Sciortino were indicted for several counts of violating the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. §§ 1961-1968 (1976). Count I charged them with conspiring to conduct an extortion ring in violation of 18 U.S.C. § 1962(d) (1976). ¹ One specific charge was that the defendants had conspired to extort money from Sam Farkas, a bookie. Several overt acts, including those resulting in the actual extortion from Farkas, were cited as being in furtherance of the conspiracy. On April 19, 1975, pursuant to a plea bargain, the defendants pled guilty to Count I and the other charges were dismissed.

Four years later the defendants were again indicted for violating RICO. Count II of the new indictment charged them with violations of 18 U.S.C. § 1962(c) (1976). ² Most of the charges related to threats, extortion, and murder occurring after the 1975 conviction. One charge, however, revived the Sam Farkas incident. The government alleged that:

In or about the Spring of 1973, in Los Angeles, California, the defendants extorted and caused the extortion of United States currency from Sam Farkas ....

Both the 1974 and 1979 charges related to a single incident of extortion from Farkas.

The defendants moved to have Count II dismissed under the double jeopardy clause insofar as it related to the Farkas extortion because they had already been convicted of conspiring to extort. The district judge denied the motion. The defendants brought this interlocutory appeal under Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). ³

The double jeopardy clause of the fifth amendment states that "No person ... shall ... be subject for the same offence to be twice put in jeopardy ...." It establishes three distinct protections: (1) against a second prosecution for the same offense after acquittal; (2) against a second prosecution for the same offense after conviction; (3) against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). This appeal implicates the second protection. The only question presented is whether the government may charge a defendant with RICO violations including conspiracy to extort from Sam Farkas, and, after conviction, charge him with RICO violations including actual extortion from Sam Farkas.

The government insists that the Blockburger test is dispositive. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court considered whether several offenses charged in a single prosecution were sufficiently different to permit the imposition of multiple sentences without violating the double jeopardy clause. It established a test emphasizing a comparison of the elements of the offenses:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

284 U.S. at 304, 52 S.Ct. at 182. The government's contention in the instant case rests on two propositions. The first is that Blockburger would have permitted the government to charge the defendants in a single prosecution with both violating RICO by conspiring to extort from Farkas and with violating RICO by actually extorting from Farkas. The second is that the Blockburger test applies without modification to all post-conviction prosecutions. The first proposition is irrefutable, the second problematic.

In Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), the Supreme Court held that under Blockburger a defendant could be charged in a single indictment with conspiracy and with the underlying substantive offense. Our court applied Iannelli to a RICO prosecution in United States v. Rone, 598 F.2d 564 (9th Cir. 1979), cert. denied sub nom. Little v. United States, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). Therefore, it is clear that the government initially could have charged defendants Brooklier and Sciortino with both conspiracy and the underlying substantive offense. See United States v. Wylie, 625 F.2d 1371 at 1381-82 (9th Cir. 1980).

The more difficult question is whether the Blockburger "same elements" test applies without modification to post-conviction prosecutions, i. e., government attempts to bring charges that could have been joined with earlier charges but were not.

In analyzing the breadth of Blockburger's application, it is important to be mindful of the three distinct protections embraced by the double jeopardy clause. Since Blockburger itself involved several charges brought in a single prosecution, it directly implicated only the protection against multiple punishments. The inquiry in such cases is limited to ascertaining the extent of the punishment authorized by Congress. See United States v. Wylie, 625 F.2d at 1381 (9th Cir. 1980).

A post-conviction indictment, in contrast, implicates not only the protection against multiple punishments but also the protection against a second prosecution after conviction. This protection arises from classic double jeopardy concerns that a defendant not be forced to "run the gauntlet" twice. Even if the government could have initially prosecuted a defendant for multiple offenses, further analysis is necessary if it charges him with only one and holds the others in reserve. Policies of assuring finality, sparing defendants the financial and psychological burdens of repeated trials, preserving judicial resources, and preventing prosecutorial misuse of the indictment process all come into play. See generally J. Sigler, Double Jeopardy 156 (1969); The Supreme Court, 1976 Term, 91 Harv.L.Rev. 70, 108 (1977).

Many commentators, drawing on these policies, suggest that the Blockburger test should be applied only to single prosecutions and not to successive ones. Regarding the latter, they advocate requiring joinder of all charges arising from the same transaction. Charges arising from a single transaction would have to be brought in a single prosecution; those omitted would be waived. ⁴ See, e. g., J. Sigler, Double Jeopardy 222-28 (1969); Note, The Double Jeopardy Clause as a Bar to Reintroducing Evidence, 89 Yale L.J. 962, 967-69, 976-81 (1980); The Supreme Court, 1976 Term, 91 Harv.L.Rev. 70, 106-114 (1977). This approach, labelled the "same transaction" test, has been adopted by the drafters of the ABA Criminal Justice Standards, ABA Standards Relating to Joinder and Severance § 1.3(c) (Approved Draft 1968), and the Model Penal Code, American Law Institute, Model Penal Code § 1.08-2(c) (Proposed Official Draft 1962). Its most eloquent spokesman is Justice Brennan. In Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), for example, he stated that:

to allow successive prosecutions of the several offenses, rather than merely the imposition of consecutive sentences after one trial of those offenses, would enable the Government to "wear the accused out by a multitude of cases with accumulated trials." Repetitive harassment in such a manner goes to the heart of the Fifth Amendment protection.

359 U.S. at 200, 79 S.Ct. at 673 (concurring opinion) (citation omitted). See also Ashe v. Swenson, 397 U.S. 436, 448-60, 90 S.Ct. 1189, 1196-1202, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring). ⁵ Cf. Note, The Double Jeopardy Clause as a Bar to Reintroducing Evidence, 89 Yale L.J. 962, 967-69, 976-81 (1980) (advocating a variant of the double jeopardy test whereby facts alleged in one prosecution could not be alleged in a later one).

The Supreme Court has never expressly rejected the same transaction test. It has, however, declined to strictly apply the Blockburger test to post-acquittal prosecutions, thereby indicating that Blockburger is not dispositive of all successive prosecutions. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). ⁶

Several circuit courts have nevertheless concluded that the Blockburger test governs all double jeopardy claims save those precisely within the ambit of Ashe v. Swenson. Among them is our own circuit. See, e. g., United States v. Solano, 605 F.2d 1141 (9th Cir. 1979), cert. denied sub nom. England v. United States, 444 U.S. 1020, 100 S.Ct. 677, 62 L.Ed.2d 652 (1980); United States v. Snell, 592 F.2d 1083 (9th Cir.), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979); Brown v. Alabama, 619 F.2d 376 (5th Cir. 1980); United States v. Clark, 613 F.2d 391 (2d Cir. 1979); United States v. Brown, 604 F.2d 557 (8th Cir. 1979). These conclusions are based on an interpretation of Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), in which the defendant was convicted of "joyriding" and then prosecuted for auto theft. State law defined joyriding as a lesser included offense of auto theft. The Court held that the double jeopardy clause barred indictment for a greater offense after conviction for a lesser included offense, expressly applying the analysis set forth in Blockburger. The Court, though, did not declare the Blockburger test dispositive of all post-conviction prosecutions. In fact, the...