U.S. v. Ciancaglini

• Decision Date: 13 October 1988
• Docket Number: No. 88-1438,88-1438
• Citation: 858 F.2d 923
• Parties: , 57 USLW 2318 UNITED STATES of America, Appellee, v. Joseph CIANCAGLINI, a/k/a Chickie, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 923

858 F.2d 923

108 A.L.R.Fed. 581, 57 USLW 2318

UNITED STATES of America, Appellee, v. Joseph CIANCAGLINI, a/k/a Chickie, Appellant.

No. 88-1438.

United States Court of Appeals, Third Circuit.

Argued July 26, 1988.

Decided Oct. 13, 1988.

Nicholas J. Nastasi (argued), Nicholas J. Nastasi, P.C., Philadelphia, Pa., for appellant.

David E. Fritchey, Arnold H. Gordon, Albert J. Wicks, Louis R. Pichini, Philadelphia Strike Force, Philadelphia, Pa., Andrew Levchuk (argued), U.S. Dept. of Justice, Crim. Div., Appellate Staff, Washington, D.C., for appellee.

Before GIBBONS, Chief Judge, and SEITZ and HUTCHINSON, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

We are presented in this case with the issue of whether the Double Jeopardy Clause bars the prosecution of appellant Joseph Ciancaglini for RICO substantive and conspiracy charges under 18 U.S.C.A. Secs. 1962(c), (d) (West 1984). He was earlier convicted of RICO statutory charges involving the same enterprise. One of the predicate acts underlying the present charges partially overlapped the first indictment in time. Because we find that the indictment in this appeal alleges a different pattern of racketeering activity, we will affirm the district court's denial of Ciancaglini's pretrial motion.

I.

The first indictment (Testa indictment) was filed on February 19, 1981 in the Eastern District of Pennsylvania. ¹ Count I charged a RICO conspiracy violation under 18 U.S.C.A. Sec. 1962(d). It identified Ciancaglini and 9 other defendants, 13 named coconspirators and others known and unknown as members of an enterprise which engaged in, and the activities of which affected, interstate commerce. The purpose of the enterprise "was to control, manage, finance, supervise, participate in and set policy concerning the making of money through illegal means." Appendix (App.) at 118A. Ciancaglini was "part of the core group" of the enterprise and oversaw many of the enterprise's gambling operations. Riccobene, 709 F.2d at 217.

The Testa indictment alleged that the conspiracy began in June of 1972 and continued until June 30, 1978. This indictment alleged that the enterprise engaged in a pattern of racketeering activity of illegal gambling, mail fraud, wire fraud, and collections or extensions of credit by extortion. The defendants were also separately charged with the collection of unlawful debts. No one defendant was charged with committing all eight predicate offenses. Three of the predicate offenses involved the staging of a robbery at a car dealership to defraud its insurer. The others involved several illegal loan and gambling operations. Count I of the Testa indictment also alleged 41 overt acts committed in furtherance of the RICO conspiracy. ² These activities were conducted primarily in the Philadelphia and southern New Jersey areas.

Counts II and III charged Ciancaglini and several other defendants with illegal gambling under 18 U.S.C.A. Sec. 1955. The jury convicted all defendants under Count I, acquitted Ciancaglini under Count II and convicted Ciancaglini and three others under Count III.

The present indictment (Scarfo indictment) was filed on January 11, 1988 in the Eastern District of Pennsylvania. Count I and II charge RICO substantive and conspiracy violations, 18 U.S.C.A. Sec. 1962(c), (d). They identify Ciancaglini and eighteen other defendants, 15 named conspirators and others known and unknown as members of an enterprise known as "La Cosa Nostra, the LCN, the Mafia, the mob, 'this thing of ours,' the Bruno family and the Scarfo family." App. at 31A. Ciancaglini is the only defendant named in both indictments. Four named coconspirators were defendants in the Testa indictment. Two named coconspirators in the Testa indictment are now defendants in the Scarfo indictment.

The Scarfo indictment alleges that the enterprise was run by bosses identified, in order of succession, as Angelo Bruno, Phillip Testa, and codefendant Nicodemo Scarfo. In this indictment Ciancaglini is identified as a "capos," "cap" or "captain" in the enterprise, a leader of a crew of "soldiers," rather than simply a member of the enterprise. The purpose of the enterprise was to "control, manage, finance, supervise, participate in and set policy concerning the making of money through illegal means." App. at 32A.

The indictment alleges a conspiracy which continued from April of 1976 until October of 1987. It charges that the enterprise conducted its affairs through a pattern of racketeering activity which included murder, attempted murder, conspiracy to commit murder, extortion, collection of credit by extortion, conspiracy to distribute and distribution of controlled substances, illegal lotteries and numbers and illegal sports bookmaking. The indictment also charges the defendants with the collection of unlawful debts. These activities were carried out primarily in the Philadelphia and southern New Jersey areas.

The remaining substantive counts charge various defendants with illegal lotteries, distribution of methamphetamine and extortion. Ciancaglini is named under the extortion charges, Counts VI through IX, and one of the distribution of methamphetamine charges, Count X.

II.

Ciancaglini filed a pretrial motion to dismiss Counts I and II under the Double Jeopardy Clause because of his prior conviction under the Testa indictment. On May 16, 1988 the district court denied Ciancaglini's motion. Applying the five-factor test set out in United States v. Dean, 647 F.2d 779 (8th Cir.), modified en banc on other grounds, 667 F.2d 729 (1981), cert. denied, 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982) (see infra ), the court found that the two indictments alleged separate RICO violations. Ciancaglini filed a notice of appeal from this order on May 27, 1988. Appellate jurisdiction over this interlocutory appeal was present because a pretrial order denying a motion to dismiss an indictment based on double jeopardy grounds is a collateral order appealable under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977); United States v. Liotard, 817 F.2d 1074, 1080 (3d Cir.1987); United States v. Inmon, 568 F.2d 326, 329 (3d Cir.1977). ³ Since double jeopardy raises a legal issue of constitutional dimensions, our scope of review is plenary. United States v. Aguilar, 849 F.2d 92, 95 (3d Cir.1988).

III.

The Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Double jeopardy attaches when it is "shown that the two offenses charged are in law and in fact the same offense." United States v. Felton, 753 F.2d 276, 278 (3d Cir.1985) (citing United States v. Ewell, 383 U.S. 116, 124, 86 S.Ct. 773, 778, 15 L.Ed.2d 627 (1966)). Once the defendant has presented a non-frivolous claim of double jeopardy, the government bears the burden of showing that there were two separate crimes. Felton, 753 F.2d at 278; United States v. Inmon, 568 F.2d 326, 331-32 (3d Cir.1977).

This Court has not yet decided the issue of whether a second RICO substantive or conspiracy prosecution under 18 U.S.C.A. Secs. 1962(c), (d) (West 1984), involving the same enterprise as an earlier one, violates the Double Jeopardy Clause. However, we recently determined in United States v. Liotard, 817 F.2d 1074, 1078 (3d Cir.1987) that a "totality of the circumstances test" is to be used in evaluating the merits of a conspiracy defendant's double jeopardy claim. In Liotard we noted that the "same evidence" test, which considers whether the same evidence would support convictions upon both indictments, has been used in this Court to determine whether " 'two offenses charged are in law and fact the same offense.' " Id. at 1077 (quoting United States v. Young, 503 F.2d 1072, 1075 (3d Cir.1974)). We reasoned that the same evidence test can be easily met in conspiracy cases, if undue emphasis is placed upon the overt acts alleged, rather than the agreement itself. Liotard, 817 F.2d at 1078. Accordingly, we stated, " '[i]t is the agreement which constitutes the crime [of conspiracy], not the overt acts.' " Id., (quoting Young, 503 F.2d at 1076 (citations omitted)). In adopting the totality of the circumstances test for successive conspiracy prosecutions, we noted that although we had not until then explicitly adopted a totality test, we had followed a similar approach in two prior appeals involving double jeopardy claims by conspiracy defendants. Id.; see Felton, 753 F.2d at 278-81; Inmon, 568 F.2d at 328-29. We stated:

Under the totality of circumstances approach followed in Inmon and Felton, a conspiracy defendant will make out a non-frivolous showing of double jeopardy if he can show that (a) the "locus criminis" of the two alleged conspiracies is the same, (b) there is a significant degree of temporal overlap between the two conspiracies charged, (c) there is an overlap of personnel between the two conspiracies (including unindicted as well as indicted coconspirators), and (d) the overt acts charged and the role played by the defendant according to the two indictments are similar.

Id. (citations omitted). Because the two indictments differed only in that one alleged a conspiracy involving acts of an interstate nature and the other alleged a conspiracy involving acts of an intrastate nature, we declined to consider "the statutory offenses charged in the indictments" as one of the factors in the totality of the circumstances test. We reasoned that consideration of the statutory offenses "might lead to irrational results in the cases like the one before us, where different statutes are violated by similar acts." Id. at 1078 n. 7.

In United States v. Dean, 647 F.2d 779 (8th Cir.1981), modified en banc on other grounds, 667 F.2d 729, cert. denied, 456 U.S. 1006, 102 S.Ct. 2296, ...