U.S. v. Russotti

• Decision Date: 29 August 1983
• Docket Number: Nos. 1367,s. 1367
• Citation: 717 F.2d 27
• Parties: UNITED STATES of America, Appellee, v. Samuel J. RUSSOTTI, Rene Piccarreto, Richard J. Marino, and Thomas E. Marotta, Defendants-Appellants. to 1370, Dockets 83-1054, 83-1055, 83-1056 and 83-1069.
• Court: U.S. Court of Appeals — Second Circuit

Page 27

717 F.2d 27

UNITED STATES of America, Appellee, v. Samuel J. RUSSOTTI, Rene Piccarreto, Richard J. Marino, and Thomas E. Marotta, Defendants-Appellants.

Nos. 1367 to 1370, Dockets 83-1054, 83-1055, 83-1056 and 83-1069.

United States Court of Appeals Second Circuit.

Argued July 11, 1983.

Decided Aug. 29, 1983.

John F. Humann, Buffalo, N.Y. (Richard Miller, Rochester, N.Y., on brief), for defendants-appellants Russotti and Marotta.

Harold J. Boreanaz, Buffalo, N.Y., for defendant-appellant Piccarreto.

Paul J. Cambria, Jr., Buffalo, N.Y. (Mary Good and Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N.Y., on brief), for defendant-appellant Marino.

Kenneth R. Fisher, Sp. Asst. U.S. Atty., Rochester, N.Y. (Salvatore R. Martoche, U.S. Atty., and Robert L. King, Sp. Asst. U.S. Atty., Rochester, N.Y., on brief), for appellee.

Before NEWMAN and WINTER, Circuit Judges, and MALETZ, Senior Judge. ^*

MALETZ, Senior Judge:

Defendants-appellants Samuel J. Russotti, Rene Piccarreto, Richard J. Marino and Thomas E. Marotta appeal from an order of the United States District Court for the Western District of New York, Michael A. Telesca, J., denying their motions to dismiss an indictment filed November 8, 1982. That indictment charges appellants and six others with violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs. 1961-1968 (1970), commonly known as RICO. See United States v. Russotti, 555 F.Supp. 1236 (W.D.N.Y.1983). The grounds for their appeal are essentially threefold. First, appellants Marino and Piccarreto argue that in view of a 1976 RICO prosecution of them the present RICO indictment should be dismissed as violative of the double jeopardy clause. Second, in 1978 a New York State court judgment convicting all four appellants of the 1973 murder of a Vincent J. Massaro was vacated. The inclusion of that homicide as an underlying RICO predicate offense should be barred, appellants contend, because of an alleged joint federal-state effort to procure that conviction. Third, appellants submit alternatively, that since the government knew of the 1973 Massaro homicide prior to the 1976 RICO indictment, the failure to include that offense as a predicate act in that indictment barred the inclusion of the Massaro homicide as a predicate act in the 1982 RICO indictment.

For the reasons appearing below, we find appellants' contentions without merit and, accordingly, affirm the order of the district court.

I Background

In 1976 the government filed a two-count indictment charging defendants Piccarreto, Marino and six others with a RICO substantive violation, as well as RICO conspiracy, 18 U.S.C. Sec. 1962(c) and (d) (1970). ¹ The 1976 indictment alleged that from June 1, 1969 to August 31, 1973, Piccarreto and Marino were members of a criminal enterprise which conspired to commit and did commit multiple acts of arson. They were further charged with having devised a scheme to defraud insurance companies by means of false representations as to the facts and circumstances surrounding the fires. The life of the enterprise allegedly ran from June 1, 1969 to August 31, 1973. The first predicate offense was alleged to have occurred on January 26, 1970, and the last on March 17, 1973. On October 7, 1977, a jury returned a verdict of not guilty as to both Piccarreto and Marino.

Also during 1976 all four appellants were convicted in a New York state court of conspiracy in the first degree and murder in the second degree in connection with the homicide of Vincent J. Massaro. However, in 1978 the judgment of conviction was vacated and the indictment dismissed when it was discovered that their convictions had been obtained through the use of perjured testimony of sheriff's deputies. The United States brought civil rights prosecutions against the responsible sheriff's deputies and state prosecutors and secured convictions. It is undisputed that the federal authorities were aware of appellants' alleged involvement in the Massaro homicide at the time the 1976 RICO indictment was filed.

On November 8, 1982 the present RICO indictment was filed against all four appellants and six others charging them with a substantive violation of RICO, 18 U.S.C. Sec. 1962(c), and a conspiracy to violate RICO, 18 U.S.C. Sec. 1962(d). The indictment charges that defendants conspired to and conducted the affairs of an enterprise through a pattern of racketeering activity which included murder, attempted murder, arson, extortion and obstruction of justice. The pattern of racketeering activity is alleged to have occurred from October of 1973 (acts preparatory to the Massaro homicide) to December 17, 1981 (the date of an alleged extortionate act). The life of the enterprise is purported to have run from February 1, 1971 up to the date of the indictment.

With this background we consider at the outset appellants' contention that the dual sovereignty rule is inapplicable to the extent that the 1982 indictment charges appellants with a pattern of racketeering activity which includes as a predicate offense the murder of Vincent Massaro.

II Dual Sovereignty

Appellants argue that the federal government was so deeply involved in the state murder prosecution as to preclude application of the dual sovereignty rule, at least insofar as the 1982 indictment alleges the Massaro murder as a predicate act of racketeering and an overt act of conspiracy to violate RICO. At a minimum, appellants submit, they are entitled to an evidentiary hearing on this point.

The concept of dual sovereignty is firmly established, and appellants do not take specific issue with it. In addressing the question whether double jeopardy bars a federal prosecution of a defendant already prosecuted for the same act by a state, the Supreme Court answered in the negative in United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922):

We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory.... Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.

It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.

Id. at 382, 43 S.Ct. at 142. Accord United States v. Wheeler, 435 U.S. 313, 320, 98 S.Ct. 1079, 1084, 55 L.Ed.2d 303 (1978); Abbate v. United States, 359 U.S. 187, 194, 79 S.Ct. 666, 670, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 129, 79 S.Ct. 676, 681, 3 L.Ed.2d 684 (1959).

However, the doctrine is not unqualified. "The dual sovereignty doctrine is subject to the qualification ... that a state prosecution cannot be used merely as a cover and a tool of federal authorities." United States v. Aleman, 609 F.2d 298, 309 (7th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). On this score, appellants argue, the dual sovereignty rule fails here. They contend that the state murder prosecution was merely a cover for the federal authorities who were so substantially involved in the state prosecution that they should not be allowed to relitigate the same issues.

The record shows, though, that in the Massaro prosecution the state and federal authorities were acting independently of one another. The federal authorities ultimately withdrew from the case and the state continued alone. It is true that before this there was a cooperative effort between the state and federal authorities which, appellants insist, completely eroded dual sovereignty. To this contention the district court replied:

[T]hat factor was present--to some extent--in both Bartkus and in Aleman, and in both cases the respective courts praised the "cooperation between state and federal authorities [as] a welcome innovation." United States v. Aleman, at 309; Bartkus v. Illinois, 359 U.S. at 123, 79 S.Ct. at 678.... The cooperation between state and federal police agencies and prosecutorial organizations is both laudatory and desired.

555 F.Supp. at 1239. We agree with the district court and conclude that the dual sovereignty rule is fully applicable here.

Appellants present an associated due process argument that they were improperly denied a hearing on the dual sovereignty question. We find this equally unavailing. First, appellants offered little in the way of proof of federal orchestration of the state murder trial other than the barest conclusory allegations. While two witnesses in the state murder trial were admitted to the federal witness protection program, that fact alone does not transform the Massaro trial into a federal prosecution for jeopardy purposes, there being not the slightest indication that the federal authorities manipulated the state process to accomplish that which they could not constitutionally do themselves. See United States v. Ng, 699 F.2d 63, 68 (2d Cir.1983); United States v. Liddy, 542 F.2d 76, 79-80 (D.C.Cir.1976). What is more, the uncontradicted affidavit of Special Assistant United States Attorney Robert L. King describing in detail the limited federal involvement in the Massaro murder trial obviated whatever necessity there may have been for conducting a hearing. In sum, the decision of the district court to deny appellants' motion without a hearing was well within its discretion. See United States v. Cohen, 489 F.2d 945, 951-52 (2d Cir.1973).

Finally, given our conclusion that there is no reason for ignoring the dual sovereignty rule here, appellants' subsidiary claim of prosecutorial vindictiveness must perforce be rejected. United States v. Ng, 699 F.2d at 68 ("A setting that involves the conduct of two independent sovereigns does not lend itself to the concept of vindictive prosecution"). ²

We next address the question of the preclusive effect, if any, of the 1976 RICO prosecution on the 1982 RICO...