U.S. v. Persico, s. 1727

Decision Date15 August 1985
Docket NumberNos. 1727,1730 and 1731,D,s. 1727
Citation774 F.2d 30
PartiesUNITED STATES of America, Appellee, v. Carmine PERSICO, Andrew Russo, and Hugh McIntosh, Defendants-Appellants. ockets 85-1285, 85-1286 and 85-1288. . Heard
CourtU.S. Court of Appeals — Second Circuit

Stanley M. Meyer, New York City (Frank A. Lopez, New York City, on brief), for defendant-appellant Persico.

George L. Santangelo, New York City (Santangelo, Santangelo & Cohen, New York City, on brief), for defendant-appellant Russo.

Susan G. Kellman, Brooklyn, N.Y. (Genovesi and Kellman, Brooklyn, N.Y., on brief), for defendant-appellant McIntosh.

Bruce A. Baird, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Aaron R. Marcu, Frank H. Sherman, Asst. U.S. Attys., New York City, on brief), for appellee.

Before NEWMAN and WINTER, Circuit Judges, and HOLDEN, District Judge. *

JON O. NEWMAN, Circuit Judge.

This is an interlocutory appeal from an order of the District Court for the Southern District of New York (John F. Keenan, Judge) denying a motion to dismiss pending criminal charges on the grounds that prosecution is barred by the Double Jeopardy Clause, prior plea agreements in the Eastern District of New York, and Rule 11 of the Federal Rules of Criminal Procedure. For substantially the reasons set forth in Judge Keenan's comprehensive opinion, 620 F.Supp. 836, we affirm.

The pending Southern District indictment, filed April 4, 1985, charges appellants Carmine Persico, Andrew Russo, and Hugh McIntosh and eleven other defendants with a broad range of offenses all arising out of their alleged membership in the Colombo Family of La Cosa Nostra. 1 The principal charges are substantive and conspiracy "RICO" offenses in violation of 18 U.S.C. Sec. 1962(c) and (d) (1982). The alleged racketeering activity includes extortion, loan sharking, gambling, narcotics distribution, interstate thefts, bribery, and intimidation by threats, beatings, and murders. The racketeering conspiracy is alleged to have been in existence from January 1968 until the date of the indictment.

The motion to dismiss is based on a prosecution in the Eastern District of New York that was concluded by November 1, 1982. In that prosecution, referred to by the parties as the "Annicharico case," the three appellants were charged with offenses relating to the bribery of a Special Agent of the Internal Revenue Service, who pretended to be amenable to corrupt overtures. Indictments in the Annicharico case were returned against the appellants on various dates in 1980 and early 1981. Each of the appellants pled guilty to conspiracy or substantive bribery charges arising out of the Annicharico case on various dates between August 11, 1981, and November 1, 1982.

The conduct of the appellants that formed the basis of the bribery and related charges in the Annicharico case, which resulted in either guilty pleas or dismissals, is alleged in the pending Southern District indictment as instances of racketeering activity to support the "pattern of racketeering" element of subsections 1962(c) and 1962(d). See 18 U.S.C. Sec. 1961(1), (5). Appellant Persico is charged with numerous acts of racketeering activity, in addition to the Annicharico bribes; appellant Russo is charged with only one additional act of racketeering activity. Appellant McIntosh is not charged with any act of racketeering activity other than the Annicharico bribes.

In rejecting appellants' double jeopardy claim, Judge Keenan correctly applied the analysis recently set forth by the Supreme Court in Garrett v. United States, --- U.S. ----, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). The Court there upheld the validity of using a prior criminal conviction to support a continuing criminal enterprise conviction under 21 U.S.C. Sec. 848, at least where the "enterprise" activity continues four months past the date of the conduct underlying the prior conviction. The pertinent inquiry, the Court ruled, is whether Congress intended a subsequent prosecution after a prior conviction and, if so, whether, under the particular circumstances, a double jeopardy violation occurs.

Judge Keenan's opinion fully sets forth the pertinent legislative history and decisional authorities to demonstrate that Congress intended to permit conduct resulting in prior convictions to be used as predicate acts of racketeering activity to establish subsequent RICO convictions. 620 F.Supp. at 839 - 42. See United States v. Phillips, 664 F.2d 971, 1009 & n. 55 (5th Cir.1981), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982); United States v. Brooklier, 637 F.2d 620, 624 (9th Cir.1980), cert. denied, 459 U.S. 1206, 103 S.Ct. 1195, 75 L.Ed.2d 439 (1983); cf. United States v. Walsh, 700 F.2d 846, 856 (2d Cir.) (allowing cumulative punishments for predicate conduct and RICO violation), cert. denied, 464 U.S. 825, 104 S.Ct. 96, 78 L.Ed.2d 102 (1983). The District Judge also correctly determined that the Double Jeopardy Clause was not a bar to trial on the pending RICO charges. The indictment alleges that the substantive conduct and the conspiracy continued, with the participation of all of the appellants, for four years beyond the date of the last indictment in the Annicharico case. See Garrett v. United States, supra. We need not and do not decide whether, as Judge Keenan believed, 620 F.Supp. at 840, subsequent RICO charges can survive double jeopardy objections only if the subsequent indictment alleges conduct that post-dates the plea to the prior charges or if evidence, accumulated subsequent to that plea, establishes either a second predicate offense or participation in a criminal enterprise. See Garrett v. United States, supra, 105 S.Ct. at 2422 (O'Connor, J., concurring) (noting that Court is not deciding whether double jeopardy claim would be valid if evidence in subsequent prosecution did not show a continuing violation "after an earlier conviction for a predicate offense").

Appellants contend that, even if conviction on the pending RICO indictment would not violate double jeopardy protections, they are entitled to a hearing prior to trial to determine whether there is evidence of racketeering conduct that post-dates the conduct underlying the charges in the Annicharico case. They rely on cases holding that once a defendant introduces sufficient evidence that the offense charged in a pending indictment is the same as an offense for which the defendant has previously been in jeopardy, the burden shifts to the prosecutor to rebut the inference that the offenses are the same. See United States v. Abbamonte, 759 F.2d 1065, 1068-69 (2d Cir.1985); United States v. Papa, 533 F.2d 815, 821 (2d Cir.), cert. denied, 429 U.S. 961, 97 S.Ct. 387, 50 L.Ed.2d 329 (1976); United States v. Bommarito, 524 F.2d 140, 146 (2d Cir.1975); United States v. Mallah, 503 F.2d 971, 986 (2d Cir.1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). These cases do not aid the appellants. They are concerned with subsequent indictments alleging offenses that appeared to be the same as offenses concluded in prior...

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