U.S. v. Thomas

• Decision Date: 30 May 1985
• Docket Number: Nos. 84-2285,84-2287,84-2286,s. 84-2285
• Citation: 759 F.2d 659
• Parties: UNITED STATES of America, Appellee, v. Carl Wesley THOMAS, Appellant, UNITED STATES of America, Appellee, v. Carl Angelo DeLUNA, Appellant, UNITED STATES of America, Appellee, v. Anthony CHIAVOLA, Sr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 659

759 F.2d 659

UNITED STATES of America, Appellee, v. Carl Wesley THOMAS, Appellant, UNITED STATES of America, Appellee, v. Carl Angelo DeLUNA, Appellant, UNITED STATES of America, Appellee, v. Anthony CHIAVOLA, Sr., Appellant.

Nos. 84-2285, 84-2286, 84-2287.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 16, 1985.

Decided April 11, 1985.

Rehearing and Rehearing En Banc Denied May 30, 1985.

David W. Russell, Kansas City, Mo., Oscar B. Goodman, Las Vegas, Nev. and Ronald E. Partee, Kansas City, Mo., Ephraim Margolin, San Francisco, Cal., for appellants.

Edward D. Holmes, Kansas City, Mo., for appellee.

Before BRIGHT, ARNOLD, and BOWMAN, Circuit Judges.

ARNOLD, Circuit Judge.

This is an interlocutory appeal from the order of the District Court ¹ denying defendants' motion to dismiss an indictment returned against them. Appellants argue that the indictment is barred by the Double Jeopardy Clause of the Fifth Amendment. We hold that the charges alleged in the indictment are not the "same offence" as charges on which defendants had previously been tried, and therefore affirm the judgment.

I.

From May 25, 1978, through 1980, the Federal Bureau of Investigation conducted a series of electronic surveillances to investigate hidden interests by organized crime groups in one or more Las Vegas casinos. ² The initial investigation soon focused on two objects, apparent hidden interests in the Tropicana Hotel and Country Club (Tropicana) casino and in the Argent Corporation (Argent), which owned four casinos, the Stardust, Fremont, Marina, and Hacienda.

On September 30, 1983, a federal grand jury in the Western District of Missouri handed up the Argent indictment, and appellants and twelve other people were indicted. The Argent indictment charges appellants and the others with conspiracy, under 18 U.S.C. Sec. 371 (1982), to travel interstate for the promotion of unlawful activity, in violation of 18 U.S.C. Sec. 1952 (1982). Various other substantive counts were also charged. The conspiracy is alleged to have existed approximately between January 1974 and September 1983, and involved primarily the Fremont and Stardust casinos. The gist of the alleged conspiracy by the Kansas City, Chicago, Milwaukee, and Cleveland organized crime groups and others was to obtain and maintain a hidden interest in casinos owned by Allen Glick, and to skim money from them.

Prior to the Argent indictment, appellants and eight others had been indicted on November 5, 1981, by the same federal grand jury. The earlier indictment related to the Tropicana and charged appellants and the others with conspiracy, under 18 U.S.C. Sec. 371 (1982), to travel interstate for the promotion of unlawful activity, a violation of 18 U.S.C. Sec. 1952 (1982), and to transport interstate stolen money, a violation of 18 U.S.C. Sec. 2314 (1982). Various other substantive counts were also charged. The conspiracy existed approximately between January 1975 and April 1979. The gist of this conspiracy by the Kansas City organized crime group and others was to obtain and maintain a hidden interest in the Tropicana casino, and to skim money from the casino. The appellants and all but one of the other defendants were convicted on the conspiracy charge and one or more substantive counts. ³

Prior to trial in the present case appellants moved to dismiss the entire indictment on the grounds of double jeopardy. They claim the Argent indictment is based on the same conspiracy tried in the Tropicana trial. The District Court held appellants' claim was nonfrivolous and had a four day double-jeopardy hearing. At the hearing the burden of proof was placed on the government to show, by a preponderance of the evidence, that the conspiracies alleged in the two indictments were in fact separate. After reviewing evidence adduced at the hearing and the Tropicana trial, and the proffer of evidence the government expects to prove in the Argent trial, the District Court held the two conspiracies were separate and distinct and denied appellants' motion. Appellants then appealed to this Court. We affirm.

II.

The Double Jeopardy Clause of the Fifth Amendment prohibits the subdivision of a single criminal conspiracy into multiple violations of one conspiracy statute. Braverman v. United States, 317 U.S. 49, 52-53, 63 S.Ct. 99, 101-102, 87 L.Ed. 23 (1942). The traditional test used to determine whether indictments charge the same offense is the Blockburger "same evidence" test. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under this test the "offenses are deemed identical for purposes of the double jeopardy clause where the evidence required to support conviction on one of the prosecutions is sufficient to support conviction on the other prosecution." United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 86, 83 L.Ed.2d 33 (1984). However, the "same evidence" test is of questionable value in conspiracy double-jeopardy issues. If the "same evidence" test is the sole standard used to determine whether multiple conspiracies exist, then prosecutors could drawn up two indictments and by skillfully choosing different sets of overt acts make one conspiracy appear to be two.

Application of the Blockburger test to the two indictments before us would lead to the conclusion that two separate conspiracies exist. Since both indictments charge different overt acts, acts regarding the Tropicana operation in one and the Argent operation in the other, the evidence required to prove these acts is different. Many courts, including this Court, have determined that a "totality of the circumstances" test ⁴ provides a more accurate analysis in determining whether multiple conspiracies exist. See United States v. Tercero, 580 F.2d 312, 315 (8th Cir.1978). The following factors are normally considered in determining whether one or two conspiracies are involved: (1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged in the indictments; (4) the overt acts charged by the government or any other description of the offenses charged which indicate the nature and the scope of the activity which the government sought to punish in each case; and (5) places where the events alleged as part of the conspiracy took place. Id. at 314; Sinito, 723 F.2d at 1256. These factors are guidelines only. The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement, each with a separate object.

We will therefore look beyond the indictments and consider all the evidence we have before us. This includes evidence adduced at the previous trial, evidence expected to be presented at the second trial, and information developed at the evidentiary hearing conducted on the double-jeopardy issue. We accept the government's proffer of what it intends to prove at the Argent trial as true for the purpose of this appeal, because appellants have raised no real question about whether the government will in fact be able to produce such evidence. (Whether it will be credible, whether, that is, it will show that appellants and other defendants did what they are accused of, will of course be for the jury at the Argent trial.)

When appellants showed a nonfrivolous claim of double jeopardy, the burden shifted to the government to show, by the preponderance of the evidence, that two separate conspiracies are charged. Tercero, 580 F.2d at 315 n. 12; United States v. Bendis, 681 F.2d 561, 566 (9th Cir.1981), cert. denied, 459 U.S. 973, 103 S.Ct. 306, 74 L.Ed.2d 286 (1982). In Tercero, 580 F.2d at 314, we found it unnecessary to decide whether the standard of appellate review in such cases is governed by the clearly-erroneous rule or is do novo. We now hold that findings of fact made by the District Court (e.g., the credibility of witnesses or disputed questions of historical fact arising at the evidentiary hearing on double jeopardy) are not to be set aside unless clearly erroneous. The ultimate question, which involves comparing the Tropicana indictment and the proof offered at the first trial with the Argent indictment and the proof to be offered at the second trial, is an issue of law on which we must make up our own minds independently. ⁵

III.

A.

The evidence produced at the Tropicana trial and at the double-jeopardy hearing tends to establish the following facts in regard to the Tropicana conspiracy. Appellants and seven others, Carl James Civella, Nick Civella, Charles David Moretina, Carl Caruso, Billy Clinton Caldwell, Donald Joe Shepard, and Joseph Vincent Agosto conspired to obtain and maintain a hidden interest in the gaming operations of the Tropicana in violation of Nevada law, and to steal money skimmed from the casino.

Before the trial began, Caruso, Shepard, Caldwell, and Agosto pleaded guilty. Agosto became a lead witness for the government. Nick Civella died before trial began. Another defendant, Peter Joseph Tamburello, was found innocent. The remaining five defendants were found guilty of the conspiracy and one or more substantive counts. While evidence at the Tropicana trial clearly established that Joseph Aiuppa and John Cerone of Chicago received money from the Tropicana, they were not named in the indictment. The government argues that there was insufficient evidence to prosecute them successfully, and they were, therefore, not indicted.

In 1975 Agosto, the owner of a floorshow at the Tropicana, sought the assistance of N. Civella, C. Civella, and DeLuna to help him consolidate his interest in the Tropicana casino and to protect him from outside interference. It was agreed that Agosto should infiltrate the Tropicana, with Kansas City's support and assistance, for the purpose of stealing from the Tropicana. DeLuna and the Civellas told Agosto they would ensure that a loan application by Deil Gustafson on behalf of the Doumani brothers would...