U.S. v. O'Connor

• Decision Date: 28 January 1992
• Docket Number: No. 90-3105,90-3105
• Citation: 953 F.2d 338
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James A. O'CONNOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 338

953 F.2d 338

UNITED STATES of America, Plaintiff-Appellee, v. James A. O'CONNOR, Defendant-Appellant.

No. 90-3105.

United States Court of Appeals Seventh Circuit.

Argued June 13, 1991.

Decided Jan. 28, 1992.

Mel S. Johnson (argued), Matthew V. Richmond, Asst. U.S. Attys., Milwaukee, Wis., for plaintiff-appellee.

Leonard D. Kachinsky, Neenah, Wis. (argued), for defendant-appellant.

Before CUMMINGS and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

RIPPLE, Circuit Judge.

James O'Connor was convicted of racketeering in violation of 18 U.S.C. § 1962(c) (RICO). Among the predicate acts alleged in support of the RICO charge were crimes for which Mr. O'Connor had already been prosecuted in federal court. Mr. O'Connor moved to strike those predicate acts, based on the Double Jeopardy Clause. The district court denied the motion. Mr. O'Connor now claims that the denial of his motion to strike the predicate acts constituted reversible error. For the following reasons, we affirm the judgment of the district court.

I BACKGROUND

On March 6, 1990, Mr. O'Connor was charged in a four-count indictment. Count one charged him with conducting the affairs of his business enterprise through a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c). Counts two through four charged him with conspiracy to commit arson, arson, and obstruction of justice. This appeal centers on count one. Under count one, the government alleged that a series of eight racketeering acts constituted the pattern of racketeering activity required by RICO. Three of the racketeering acts are relevant to this appeal. Racketeering act one alleged receipt of stolen goods from interstate commerce. Mr. O'Connor had been convicted in 1975 in federal court in Louisiana of conspiring to commit this offense. Racketeering act three alleged instances of wire fraud. Mr. O'Connor had been convicted in federal court in Wisconsin of these offenses in 1988. Racketeering act five alleged wire fraud as well as interstate travel to carry out a fraudulent scheme. Mr. O'Connor also had been convicted of these crimes in his 1988 trial in federal court in Wisconsin. Prior to trial, the government stated its intention to rely on Mr. O'Connor's prior convictions to prove these racketeering acts. Mr. O'Connor moved to strike racketeering acts one, three, and five. He maintained that the government's use of crimes for which he had been previously prosecuted and convicted in federal court would violate the Double Jeopardy Clause of the Fifth Amendment. The district court denied Mr. O'Connor's motion. Subsequently a jury convicted Mr. O'Connor on all four counts of the indictment. Mr. O'Connor filed a timely notice of appeal.

II ANALYSIS

To support a RICO conviction, the government must prove that the defendant has engaged in a "pattern of racketeering activity." 18 U.S.C. § 1962(c). To establish a pattern of racketeering activity, the government must prove at least two acts of racketeering activity. See 18 U.S.C. § 1961(5). Moreover, the "prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 2900, 106 L.Ed.2d 195 (1988) (emphasis in original); United States v. Muskovsky, 863 F.2d 1319, 1329 (7th Cir.1988), cert. denied, 489 U.S. 1067, 109 S.Ct. 1345, 103 L.Ed.2d 813 (1989).

In Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), the Supreme Court held that prosecution for a continuing criminal enterprise (CCE) offense after an earlier prosecution for one of the predicate offenses is constitutional under the Double Jeopardy Clause of the Fifth Amendment. ¹ In so holding, the Court noted that the " 'lesser included offense' principles of double jeopardy" were not susceptible of ready transposition from "the classically simple situation" of a single, discrete crime ² to the "multilayered conduct," which was involved in Garrett. ³ Garrett, 471 U.S. at 789, 105 S.Ct. at 2416.

A.

Mr. O'Connor argues that the Supreme Court's recent decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), overruled Garrett and mandates reversal of his RICO conviction. The defendant in Grady caused the death of one person and the serious injury of another when his vehicle crossed the center line and struck oncoming vehicles. He was issued traffic tickets for the misdemeanor of driving while intoxicated and for failing to keep to the right of the median and pleaded guilty to both charges. In a later proceeding, the defendant was prosecuted for reckless manslaughter, criminally negligent homicide, and third-degree reckless assault. The prosecution filed a bill of particulars that identified the three reckless or negligent acts on which it would rely to prove the homicide and assault charges: operating a motor vehicle while intoxicated, failing to keep to the right of the median, and driving at an excessive rate of speed for the weather and road conditions. Grady, 110 S.Ct. at 2089. Under these facts, the Supreme Court ruled that the Double Jeopardy Clause barred the later prosecution.

Mr. O'Connor argues that Grady compels us to find that the government's prosecution of him under RICO violated the Double Jeopardy Clause. He points to the holding in Grady: "[T]he Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the Government will have to prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. 110 S.Ct. at 2087. Mr. O'Connor maintains that by including predicate acts for which he had already been convicted, the government sought to establish an essential element of the RICO charge by "prov[ing] conduct that constitute[d] an offense for which he had already been prosecuted." ⁴

We are not the first circuit to confront the question of whether Garrett's vitality remains undisturbed by Grady. Not surprisingly, a number of RICO and CCE appeals followed on the heels of Grady. Thus, we are aided in our analysis by recent decisions in several circuits: United States v. Evans, 951 F.2d 729 (6th Cir.1991); United States v. Arnoldt, 947 F.2d 1120 (4th Cir.1991); United States v. LeQuire, 943 F.2d 1554 (11th Cir.1991); United States v. Gonzalez, 921 F.2d 1530 (11th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 178, 116 L.Ed.2d 140 (1991); United States v. Gambino, 920 F.2d 1108 (2d Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 54, 116 L.Ed.2d 31 (1991); United States v. Scarpa, 913 F.2d 993 (2d Cir.1990); United States v. Esposito, 912 F.2d 60 (3d Cir.1990), cert. dismissed, --- U.S. ----, 111 S.Ct. 806, 112 L.Ed.2d 1032 (1991); United States v. Pungitore, 910 F.2d 1084 (3d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991); United States v. Russo, 906 F.2d 77 (2d Cir.1990). ⁵ With the exception of Russo, ⁶ these cases all have reached the conclusion that Garrett remains controlling precedent in RICO and CCE cases.

The present case and, indeed, RICO cases in general are readily distinguishable from Grady. The later indictment in Grady charged the defendant with reckless manslaughter, criminally negligent homicide, and third-degree reckless assault, all arising from a single, discrete act of drunken driving. By contrast, the indictment in the present case charged Mr. O'Connor with a fourteen-year pattern of racketeering activity. The statutes at issue in Grady focused on a specific, particular act, while the RICO statute is addressed to complex, long-term conduct. In addressing this difference, our colleagues in the Third Circuit observed that the reasoning in [Grady ] logically extends only to offenses arising from a single discrete event. We do not think that the Supreme Court meant to imply that the double jeopardy clause forecloses successive prosecutions in cases of compound-complex felonies such as RICO, which involve several criminal acts occurring at different times in different places.

United States v. Pungitore, 910 F.2d 1084, 1109 (3d Cir.1990). The Third Circuit also observed that the cases relied upon in Grady--Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)--also involved discrete criminal events. Thus, the court concluded:

We realize that the language employed by the Supreme Court in its formulation of the "same conduct" test could be interpreted as extending double jeopardy protection to all situations where the government intends again to prove conduct constituting an offense subject to an earlier conviction. But we would not be justified in reading Grady so expansively.

Id. at 1110.

We agree with the Third Circuit's assessment of the Grady decision and its conclusion that it does not overrule Garrett. In Garrett, the defendant had been previously convicted of drug trafficking in federal court in Washington. Subsequently, the defendant was indicted in federal court in Florida for engaging in a continuing criminal enterprise, in violation of the Continuing Criminal Enterprise statute, 21 U.S.C. § 848. The prosecutor relied on the drug trafficking conviction in Washington as one of the predicate offenses required by the CCE statute. The Supreme Court assumed arguendo that the drug trafficking offense would be a lesser included offense of the CCE, but still rejected the defendant's argument that the rule in Brown v. Ohio barred the use of the prior crime as a predicate act:

We think there is a good deal of difference between the classic relation of the "lesser included offense" to the greater offense presented in Brown, on the one hand, and the relationship between the [predicate] marihuana offense and the CCE charge involved in this...