U.S. v. Langella, s. 1672

• Decision Date: 08 September 1986
• Docket Number: Nos. 1672,1673,D,s. 1672
• Citation: 804 F.2d 185
• Parties: UNITED STATES of America, Appellee, v. Gennaro LANGELLA and Carmine Persico, a/k/a "Junior," Defendants-Appellants. ockets 86-1294, 86-1295.
• Court: U.S. Court of Appeals — Second Circuit

Page 185

804 F.2d 185

UNITED STATES of America, Appellee, v. Gennaro LANGELLA and Carmine Persico, a/k/a "Junior,"

Defendants-Appellants.

Nos. 1672, 1673, Dockets 86-1294, 86-1295.

United States Court of Appeals, Second Circuit.

Argued Aug. 15, 1986.

Decided Sept. 8, 1986.

Michael Chertoff, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., John F. Savarese and Kenneth Roth, Asst. U.S. Attys., New York City, of counsel) for appellee.

Michael Young, New York City (David Breitbart, New York City, of counsel) for defendant-appellant Langella.

Stanley M. Meyer, Brooklyn, N.Y. (Frank A. Lopez, Brooklyn, N.Y., of counsel) for defendant-appellant Persico.

Before PRATT and MINER, Circuit Judges, RE, Chief Judge, U.S. Court of International Trade.

MINER, Circuit Judge:

The instant indictment was filed in the United States District Court for the Southern District of New York (Owen, J.) and charges appellants Gennaro Langella and Carmine Persico, together with seven others, with conspiring to participate and participating in the affairs of an enterprise known as "the Commission of La Cosa Nostra," in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sec. 1962(c), (d) (1982). United States v. Salerno, et al., No. SSS 85 Cr. 139 ("Salerno "). The indictment charges appellants, in essence, with extortion in relation to concrete-pouring jobs valued at more than $2 million.

Upon conviction in the United States District Court for the Southern District of New York on June 13, 1986, after a jury trial before the Honorable John F. Keenan, in United States v. Persico, et al., No. S 84 Cr. 809 ("Persico "), appellants moved before Judge Owen to dismiss the Salerno indictment on double jeopardy grounds. According to appellants, the double jeopardy clause of the fifth amendment bars their prosecution here, because the Persico convictions stemmed from the same illegal scheme in regard to concrete-pouring jobs in New York City. Following oral argument on June 20th and 23rd, Judge Owen denied the motion and Langella and Persico filed their notices of appeal on June 26th.

After hearing argument by counsel on August 15, 1986, we rejected appellants' contentions and affirmed the district court's denial of their motion in a summary order, indicating that this formal opinion would follow.

I. BACKGROUND

The Persico indictment was filed in 1984, charging Persico, Langella and twelve other individuals with conspiring to participate and participating in the affairs of an enterprise known as the "Colombo Organized Crime Family of La Cosa Nostra" ("Colombo Family") through a pattern of racketeering acts, in violation of 18 U.S.C. Sec. 1962(c), (d). The alleged pattern included a Hobbs Act conspiracy to extort money from certain construction companies, 18 U.S.C. Sec. 1951; extortion of ten named construction companies, 18 U.S.C. Secs. 1951-1952; labor bribery, 29 U.S.C. Sec. 186 and 18 U.S.C. Sec. 2 or New York Penal Law Sec. 180.15; embezzlement, 29 U.S.C. Sec. 186 and 18 U.S.C. Sec. 2; official bribery, 18 U.S.C. Sec. 201; loansharking, 18 U.S.C. Secs. 891 and 892 or 891 and 894; and gambling, 18 U.S.C. Sec. 1955. In addition, the indictment charged Persico and Langella with substantive counts of extortionate conspiracy and extortion, 18 U.S.C. Sec. 1951; labor bribery, 29 U.S.C. Sec. 186; official bribery, 18 U.S.C. Sec. 201; loansharking, 18 U.S.C. Secs. 891 and 892 or 891 and 894; and gambling, 18 U.S.C. Sec. 1955.

After the indictment was filed, the government furnished a bill of particulars further specifying the objectives and victims of the extortionate scheme. The bill of particulars explicitly stated that the conspiracy charged in the indictment was "confined to extorting payoffs in connection with construction jobs in which the portion of the contract price relating to the pouring of concrete did not exceed $2 million." Bill of Particulars, United States v. Persico, No. S 84 Cr. 809, p 4. The bill of particulars also alleged that the money extorted by the conspirators "was used or intended to be used by and for the benefit of themselves and other members and associates of the Colombo Family." Id. p 5. Moreover, the bill of particulars specified that the extortion payments were not divided among "other New York Families of La Cosa Nostra or among the 'Commission' of La Cosa Nostra." Id. p 6.

Thereafter, on June 25, 1985, the government filed the Salerno indictment, charging Persico, Langella and seven other defendants with RICO conspiracy and asserting their membership in "the Commission of La Cosa Nostra" ("Commission" or "Club"). Salerno, No. SSS 85 Cr. 139. The indictment alleged that the Commission was a council of leaders of various organized crime families, "an enterprise distinct from the individual Families," Salerno Indictment, p 6, established with the special purposes of, inter alia, resolving disputes among families and carrying out "joint ventures" involving more than one family. Id. p 8. The alleged racketeering included extortionate conspiracy and substantive extortions, 18 U.S.C. Sec. 1951; labor bribery, 29 U.S.C. Sec. 186 and 18 U.S.C. Sec. 2; loansharking conspiracy, 18 U.S.C. Secs. 891 and 892; and murder. The Salerno RICO indictment also addressed a different set of racketeers from those named in the Persico indictment. Of the fourteen conspirators named in the Persico indictment, only three--Persico, Langella and Ralph Scopo--are charged in the Salerno indictment.

Before the Persico trial began, Persico moved to sever the counts concerning extortion in the construction industry and to have those counts joined with the charges in the Salerno case. Judge Keenan denied the motion, finding that the Persico indictment alleged that a separate criminal enterprise--the Colombo Family--conducted an extortionate scheme wholly distinct from that charged in Salerno. United States v. Persico, 621 F.Supp. 842, 855-56 (S.D.N.Y.1985).

Thereafter, the Persico case was brought to trial before Judge Keenan. The evidence adduced at trial showed that between 1981 and 1984, the Colombo Family demanded payoffs of either one or two percent of the contract price from certain contractors performing concrete-pouring jobs of less than $2 million. The government also offered proof that the scope of the Colombo Family's extortionate scheme was limited by the existence of another complementary extortionate scheme that was carried out as a joint venture by the Colombo Family and three other organized crime families in New York City. This joint scheme extorted money from contractors for concrete-pouring jobs in Manhattan in excess of $2 million. The two percent payoff received from these contractors was to be distributed among the four organized crime families that constituted the Club.

The distinction between the two schemes was well illustrated by testimony concerning Technical Concrete Construction Company ("Technical"). Initially, because Technical was involved in concrete jobs valued at less than $2 million, its principals were compelled to make payoffs to the Colombo Family. Eventually, Technical also obtained permission from the four families that jointly controlled the Club scheme to perform jobs valued at more than $2 million. On these jobs, Technical was required to make separate payoffs to each of the four families. Similarly, another concrete contractor, who was a victim of the Colombo Family's extortionate scheme for concrete-pouring jobs under $2 million, was told he would have to seek permission from the three other organized crime families before bidding for jobs of over $2 million.

At the conclusion of the Persico trial, on June 13, 1986, the jury returned verdicts convicting Persico and Langella of all racketeering acts and substantive counts arising out of the Colombo Family's extortionate scheme. Langella and Persico then moved to dismiss the Salerno indictment on the ground that the double jeopardy clause barred their further prosecution in light of their convictions in Persico. Judge Owen denied their motion, finding that the Salerno indictment alleged a distinct racketeering enterprise--the Club or Commission--and different racketeering acts--extortion in concrete-pouring jobs involving more than $2 million, while Persico had involved only the Colombo Family and concrete-pouring jobs of less than $2 million. For the reasons stated by Judge Owen and set forth below, we affirm the denial of appellants' motion.

II. DISCUSSION

This appeal implicates the strand of fifth amendment jurisprudence concerned with determining whether one criminal offense is the same as a second criminal offense. Langella and Persico contend that the prosecution has artificially delineated between those concrete-pouring jobs involving more than $2 million and those involving less than $2 million for the purpose of charging them with participating in the affairs of two separate RICO enterprises.

Although both indictments charge these two defendants with membership in a criminal enterprise that extorted payments from construction companies involved in concrete-pouring jobs in New York, the two indictments purport to charge two separate enterprises. We are cognizant that "[i]t is Congress, and not the prosecution, which establishes and defines offenses," Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 2181, 57 L.Ed.2d 43 (1978), and that "[f]ew, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses." Id. As Sanabria advises, "once Congress has defined a statutory offense by its prescription of the 'allowable unit of prosecution,' ... that prescription determines the scope of protection afforded by a prior conviction or acquittal." Id. at 69-70, 98 S.Ct. at 2181-2182 (citations omitted).

On the question of what Congress prescribed under RICO as the "allowable unit of prosecution," the Supreme Court's opinion in ...