U.S. v. Levasseur

• Decision Date: 09 May 1988
• Docket Number: 88-1284,Nos. 88-1198,s. 88-1198
• Citation: 846 F.2d 786
• Parties: UNITED STATES, Appellant, v. Raymond Luc LEVASSEUR, a/k/a John, Jack, Jake and George, et al., Defendants, Appellees. UNITED STATES, Appellant, v. Raymond Luc LEVASSEUR, etc., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 786

846 F.2d 786

UNITED STATES, Appellant, v. Raymond Luc LEVASSEUR, a/k/a John, Jack, Jake and George, et

al., Defendants, Appellees.

UNITED STATES, Appellant, v. Raymond Luc LEVASSEUR, etc., et al., Defendants, Appellees.

Nos. 88-1198, 88-1284.

United States Court of Appeals, First Circuit Submitted April 22, 1988.

Decided May 9, 1988.

Michael K. Loucks, Asst. U.S. Atty., Boston, Mass., William D. Braun, U.S. Dept. of Justice, Washington, D.C., David L. Douglass, Asst. U.S. Atty., and Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., on brief, for appellant.

Peter J. Avenia and Gombiner & Avenia, New York City, on brief for defendant, appellee, Raymond Luc Levasseur.

Linda J. Thompson, and Thompson, Thompson & Jacobson, Springfield, Mass., on brief, for defendant, appellee, Barbara Curzi-Laaman.

Elizabeth M. Fink, Brooklyn, N.Y., on brief for defendant, appellee, Carol Manning.

Kenneth J. King, and Fenn & King, Jamaica Plain, on brief for defendant, appellee, Thomas Manning.

Robert J. Boyle, Brooklyn, N.Y., on brief for defendant, appellee, Richard Williams.

Daniel L. Meyers, New York City, Steven C. Schlang, and Schlang & Burrows, Northampton, on brief, for defendant, appellee, Jaan Laaman.

Before CAMPBELL, Chief Judge, BOWNES and SELYA, Circuit Judges.

SELYA, Circuit Judge.

The district court struck certain predicate acts from the Racketeer Influenced and Corrupt Organization (RICO) count, 18 U.S.C. Sec. 1962(c), of an indictment against the defendants. ¹ The government has appealed. The defendants challenge appellate jurisdiction, contending that the district court order is not now appealable pursuant to 18 U.S.C. Sec. 3731 (quoted infra in pertinent part). Beyond that, they urge that the district court's order was appropriate. We conclude that the appeal is properly before us and that the lower court erred in applying judicial estoppel against the government. We, therefore, reverse.

I. APPELLATE JURISDICTION

The government cannot appeal in a criminal case without express statutory authorization. See, e.g., United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 1352, 51 L.Ed.2d 642 (1977). Section 3731 of Title 18 supplies that authorization in certain instances. It provides in pertinent part: ²

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

* * *

The provisions of this section shall be liberally construed to effectuate its purposes.

(Emphasis added.)

In the present case, the district court did not strike any count in its entirety as to any of the defendants. Rather, the district court struck a number of predicate acts from the RICO count, the number of predicate acts struck varying as to each defendant. ³ The particular acts struck were alleged violations of New York state arson laws.

Though technically that which was struck in each case was not an entire count, the term "count" has been liberally construed to the end that the government can appeal if the expurgated material provided a "discrete basis for the imposition of criminal liability." United States v. Sanabria, 548 F.2d 1, 5 (1st Cir.1976), rev'd on other grounds, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); see also United States v. Martin, 733 F.2d 1309, 1310 (8th Cir.1984) (en banc), cert denied, 471 U.S. 1003, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985); United States v. Margiotta, 662 F.2d 131, 139-41 (2d Cir.1981) (Margiotta II ); cf. United States v. Marubeni America Corp., 611 F.2d 763, 765 (9th Cir.1980) (appellate jurisdiction exists to review dismissal of portion of RICO count demanding forfeiture of income from RICO enterprise); United States v. Alberti, 568 F.2d 617, 621 (2d Cir.1977) (appellate jurisdiction exists to review dismissal of "substantial part of the indictment"). The rationale for the liberal construction is based on the legislative history of Sec. 3731, which indicates a steadfast congressional intent to remove all statutory barriers to government appeals not otherwise barred by double jeopardy concerns. United States v. Sanabria, 548 F.2d at 5 (citing United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975)). ⁴ This congressional intent favoring the allowance of government appeals is furthered when appealability is not made to turn on "mere pleading technicalities, such as whether the Government happened to plead the allegations affected by the challenged ruling in a separate count or together with other allegations," but rather on whether the district court's action had "the practical effect of eliminating an independent basis upon which a conviction could be secured." Margiotta II, 662 F.2d at 138-39.

The defendants, relying on United States v. Tom, 787 F.2d 65 (2d Cir.1986), argue that the predicate acts stricken from the instant indictment do not form a discrete base of criminal liability. The Tom case involved an indictment which, inter alia, included both a RICO count and a RICO conspiracy count. Id. at 67. The case involved twenty-five defendants and eighty-five alleged predicate acts of racketeering activity. Id. The district court struck three predicate acts, one each as to each of three defendants. Id. at 68. Striking of these predicate acts dismissed only a fraction of the RICO and RICO conspiracy counts. Id. at 69. The government sought to appeal immediately from the district court order, but the court of appeals concluded that appellate jurisdiction was lacking. Id. at 70-71. Since a pattern of racketeering activity requires at least two acts of racketeering activity, an allegation of only a single predicate act per defendant could not constitute a valid count. The court declined to construe the term "even more broadly to mean a fragmentary allegation that could not even arguably have been charged as a separate count." Id. at 71.

The present case is distinguishable from Tom in that the district court in this case struck at least five predicate acts as to each defendant. Nonetheless, though the "pattern" asseveration of the Tom defendants will not work, appellees here assert that the stricken predicate acts do not form a discrete basis of criminal liability for several other and further reasons.

First, they contend that the government could not have framed the indictment with a separate count, which seeks to prosecute violations of state laws. We interpret this unelaborated statement to suggest that the federal government would have no jurisdiction to prosecute state law violations criminally, as such. Second, defendants argue that the government has consistently maintained that they joined together in a single, unitary criminal enterprise, so that the conduct underlying the stricken predicate acts cannot be perceived as the basis of one or more separate and additional RICO counts. Third, they contend that, even assuming the theoretical possibility of two separate RICO counts, there is no logical basis for the resultant division; although the district court struck certain predicate acts alleged to have constituted violations of New York arson laws, other predicate acts allegedly violative of the same laws remained (together with predicate acts which alleged supposed transgressions of the arson laws of Massachusetts and the robbery laws of various states). The defendants suggest that it would be irrational to prosecute on the basis of one RICO count containing the stricken acts and a second RICO count containing the remaining ones.

We are not persuaded by the defendants' arguments. The government obviously is not seeking to supplant New York's authority to prosecute its criminal laws. The government is charging the existence of a RICO enterprise conducting a pattern of racketeering activity; by definition, this means, as it pertains here, acts involving arson chargeable under state law. See 18 U.S.C. Sec. 1961(1). Even if stricken from the indictment, those allegations which were stricken comprise a recital of the alleged predicate acts of a RICO enterprise and should not be viewed as charges which they never purported to be.

With respect to the defendants' remaining arguments, we reject them as proceeding from an incorrect focus. The defendants' analysis suggests that the determination of whether the stricken matter forms a discrete basis of criminal liability depends, initially, upon that which was not stricken. Following from that (dubious) premise, defendants would require that the two parts be viewed together. When done so, the stricken and non-stricken material must be capable of division, legally and logically, into two parts--elsewise, no adequate "discrete basis" exists. The defendants point to the following Supreme Court language as support.

"Congress could hardly have meant appealability to depend on the initial decision of a prosecutor to charge in one count what could also have been charged in two, a decision frequently fortuitous for purposes of the interests served by Sec. 3731." Sanabria v. United States, 437 U.S. at 69 n. 23, 98 S.Ct. at 2181 n. 23. (Emphasis added.)

The defendants read this language as requiring that, in order to come within Sec. 3731, the stricken material, on the one hand, and that which remains, on the second hand, must necessarily be able to stand as two distinct counts in the same indictment, both of which can be prosecuted simultaneously. They argue that because the stricken and the non-stricken segments before us could not legally have been charged in separate counts (because the government is only alleging but one RICO enterprise) nor logically have been so charged (because there is no rational basis for the resulting division), the deleted...