United States v. Finazzo

• Decision Date: 27 August 1981
• Docket Number: Crim. A. No. 75-80597-2.
• Citation: 520 F. Supp. 1085
• Parties: UNITED STATES of America, Plaintiff, v. Salvatore FINAZZO and Dominic Licavoli, Defendants.
• Court: U.S. District Court — Western District of Michigan

520 F. Supp. 1085

UNITED STATES of America, Plaintiff, v. Salvatore FINAZZO and Dominic Licavoli, Defendants.

Crim. A. No. 75-80597-2.

United States District Court, E. D. Michigan, S. D.

August 27, 1981.

Leonard Gilman, U. S. Atty. by John L. Newcomer, Walter I. Kozar, Sp. Attys., U. S. Dept. of Justice, Detroit, Mich., for plaintiff.

Richard M. Lustig, Southfield, Mich., for defendant Licavoli.

Ivan E. Barris, David Dumochel, Detroit, Mich., for defendant Finazzo.

OPINION

GILMORE, District Judge.

This matter is before the Court upon a motion by defendant Licavoli to correct allegedly illegal sentences imposed upon him. The claim is that the sentences violate the double jeopardy clause of the Fifth Amendment to the Constitution.¹ The Court concludes they do not.

Defendant was convicted of inducing, procuring and causing the giving of an unlawful gratuity to a public official, in violation of 18 U.S.C. § 201(f) and 18 U.S.C. § 2 (Count 1); aiding and abetting the asking, demanding, exacting, soliciting, seeking, accepting, receiving, or agreeing to receive, an unlawful gratuity, in violation of 18 U.S.C. § 201(g) and 18 U.S.C. § 2, (Count 2); and conspiracy to violate 18 U.S.C. §§ 201(f), 201(g), 1952 (Travel Act — Count 4) and 2, all in violation of 18 U.S.C. § 371. Defendant Licavoli was acquitted of the offense charged in Count 4, the Travel Act count (18 U.S.C. § 1952), and convicted of the other counts. He was sentenced to two years imprisonment on Count 1; two years imprisonment on Count 2, and three years imprisonment on Count 5, the conspiracy count. The sentences of imprisonment are to run concurrently. In addition, Licavoli was fined $10,000 on each count, for a total of $30,000.

Defendant's contention is that the sentences were imposed in violation of the Fifth Amendment double jeopardy clause. Relying principally upon United States v. Austin, 529 F.2d 559 (CA6 1976), and Pandelli v. United States, 635 F.2d 533 (CA6 1980), defendant claims that because the "same evidence" was used to convict him of both the substantive counts and the conspiracy count, and the facts alleged in the indictment required a concert of action for each of the counts, his punishment for three offenses violates the double jeopardy prohibition of the Constitution.

The Constitutional prohibition against double jeopardy encompasses three guarantees: 1) protection against a second prosecution for the same offense after acquittal; 2) protection against a second prosecution for the same offense after conviction, and 3) protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In the instant case, the Court is concerned only with the third of these three guarantees.

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), Justice Powell, writing for the majority, articulated the principal test for determining whether two offenses are the same for the purpose of barring successive prosecutions. Quoting from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which in turn relied on Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911), the Court held:

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not...." Brown, 432 U.S. at 166, 97 S.Ct. at 2225.

Thus the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than the actual evidence to be presented at trial. As stated in a significant footnote in Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 1293 n.17, 43 L.Ed.2d 616 (1975):

"The test articulated in Blockburger v. United States, 284 U.S. 299 52 S.Ct. 180, 76 L.Ed. 306 (1932), serves a generally similar function of identifying congressional intent to impose separate sanctions for multiple offenses arising in the course of a single act or transaction. In determining whether separate punishment might be imposed, Blockburger requires that courts examine the offenses to ascertain `whether each provision requires proof of a fact which the other does not'. Id. at 304 52 S.Ct. at 182. As Blockburger and other decisions applying its principle reveal ... the Court's application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." (Emphasis added).

Recent United States Supreme Court cases reiterate that Court's understanding that the Blockburger test focuses on the statutory elements of the offense rather than on the actual evidence presented at trial or the facts alleged in the particular indictment. See Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), and Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). The critical question, therefore, is whether each count requires proof of a fact that the other does not. Application of the test emphasizes the statutory elements of the substantive offense involved, rather than the particular manner in which the offense was committed in the indictment, or the particular evidence offered to prove it in a specific trial — that is, whether it is possible to sustain a conviction under the offense charged, on grounds that differ from those necessary to sustain a conviction on the conspiracy count. See United States v. Previte, 648 F.2d 73 (CA1 1981).

Generally, of course, separate punishment can be imposed for conspiracy to do an act, and for the subsequent accomplishment of that act, without violating the double jeopardy clause. Allegation of an independent crime as an overt act of a conspiracy does not necessarily immunize the defendant from indictment. Iannelli, supra; United States v. Mayes, 512 F.2d 637 (CA6 1975), cert. den. 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975); United States v. Bradley, 421 F.2d 924 (CA6 1970); United States v. Shelton, 573 F.2d 917 (CA6 1978) cert. den. 439 U.S. 827, 99 S.Ct. 99, 58 L.Ed.2d 120 (1978).

In Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949), the Supreme Court affirmed one defendant's convictions for conspiracy as well as aiding and abetting. The court rejected the contention that there was insufficient evidence to support the conviction for aiding and abetting, stating:

"The fact that some of the evidence may have served double duty by also supporting the charge of conspiracy is of course immaterial." Id. at 619, 69 S.Ct. at 770.

In Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1953), in the course of affirming one petitioner's conviction for conspiracy as well as aiding and abetting, the court stated:

"Aiding, abetting, and counseling are not terms which presuppose the existence of an agreement. Those terms have a broader application, making the defendant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy .... Thus, the charge of conspiracy requires proof not essential to the convictions on the substantive offenses — proof of an agreement to commit an offense against the United States..." Id. at 11-12, 74 S.Ct. at 364.

In the Pereira case, the same evidence was used to support both the conspiracy conviction and the substantive offense. See also United States v. Shelton, supra; United States v. Bright, 630 F.2d 804 (CA5 1980); United States v. Cowart, 595 F.2d 1023 (CA5 1979); United States v. Fife, 573 F.2d 369 (CA6 1976); United States v. Rodriguez 612 F.2d 906 (CA5 1980).

In United States v. Sutton, 642 F.2d 1001 (CA6 1980), the Sixth Circuit recently explained that:

"Scholarly debate has not ceased concerning whether or not Congress should make conspiracy to commit unlawful acts a crime separate from the substantive offense. The law pertaining to this issue has, however, been settled at least since 1945, when the Supreme Court decided Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). In that case ... the late Justice William O. Douglas spelled out in detail the law pertaining to the proofs necessary to establish a criminal conspiracy and the relationship between conspiracy and substantive crimes....

`It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.... A conviction for the conspiracy may be had though the substantive offense was completed.... And the plea of double jeopardy is no defense to a conviction for both offenses.... It is only an identity of offenses which is fatal. ...'

"Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, supra, 298 F. 911 p. 913, (5th Cir.) `If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it.' The agreement to do an unlawful act is even then distinct from the doing of the act.

. . . . .

"Much more recently, the Supreme Court has cited the Pinkerton case with approval in United States v. Iannelli, supra. There, Justice Powell said for the Court:

`Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes. Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.... Unlike some crimes that arise in a single transaction, ... the conspiracy to commit an offense and the subsequent commission of that crime normally do not merge into a

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