United States v. Francesco

Decision Date09 December 1980
Docket NumberNo. 79-567,79-567
Citation101 S.Ct. 426,66 L.Ed.2d 328,449 U.S. 117
PartiesUNITED STATES, Petitioner, v. Eugene DiFRANCESCO
CourtU.S. Supreme Court

The Organized Crime Control Act of 1970, 18 U.S.C. § 3576, grants the United States the right, under specified conditions, to appeal the sentence imposed upon a "dangerous special offender." Respondent was convicted of federal racketeering offenses at a trial in Federal District Court. He was sentenced as a dangerous special offender under 18 U.S.C. § 3575 to two 10-year prison terms, to be served concurrently with each other and with a 9-year sentence previously imposed on convictions at an unrelated federal trial. The United States sought review of the dangerous special offender sentences under § 3576, claiming that the District Court abused its discretion in imposing sentences that amounted to additional imprisonment of respondent for only one year, in the face of the findings the court made after the dangerous special offender hearing. The Court of Appeals dismissed the appeal on double jeopardy grounds.

Held : Section 3576 does not violate the Double Jeopardy Clause of the Fifth Amendment. Pp. 126-143.

(a) Section 3576 does not violate the Double Jeopardy Clause's guarantee against multiple trials. "[W]here a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended." United States v. Martin Linen Supply Co., 430 U.S. 564, 569-570, 97 S.Ct. 1349, 1353-54, 51 L.Ed.2d 642. Accordingly, the Government's taking of a review of respondent's sentence does not in itself offend double jeopardy principles just because its success might deprive respondent of the benefit of a more lenient sentence. Neither the history of sentencing practices, nor the pertinent rulings of this Court, nor even considerations of double jeopardy policy support the proposition that a criminal sentence, once pronounced, is to be accorded constitutional finality similar to that which attaches to a jury's verdict of acquittal. The Double Jeopardy Clause does not provide the defendant with a right to know at any specific moment in time what the exact limit of his punishment will turn out to be. Pp. 132-138.

(b) The increase of a sentence on review under § 3576 does not constitute multiple punishment in violation of the Double Jeopardy Clause. The argument that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, has no force where, as in the dangerous special offender statute, Congress has specifically provided that the sentence is subject to appeal. Under such circumstances, there can be no expectation of finality in the original sentence. Pp. 138-139.

(c) The conclusion that § 3576 violates neither the guarantee against multiple punishment nor the guarantee against multiple trials is consistent with those opinions in which this Court has upheld the constitutionality of two-stage criminal proceedings. Cf. Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705. Pp. 139-141.

2 Cir., 604 F.2d 769, reversed and remanded.

Andrew L. Frey, Washington, D. C., for petitioner.

Edgar C. NeMoyer, Buffalo, N. Y., for respondent.

Justice BLACKMUN delivered the opinion of the Court.

The Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 922, contains, among other things, a definition of "dangerous special offender," 18 U.S.C. §§ 3575(e) and (f); 1 authorizes the imposition of an increased sentence upon a convicted dangerous special offender, § 3575(b); and grants the United States the right, under specified conditions, to take that sentence to the Court of Appeals for review, § 3576.2 The issue presented by this case is whether § 3576 authorizing the United States so to appeal, violates the Double Jeopardy Clause 3 of the Fifth Amendment of the Constitution.4


At a 1977 jury trial in the United States District Court for the Western District of New York, respondent Eugene DiFrancesco was convicted of conducting the affairs of an enterprise through a pattern of racketeering activity, and of conspiring to commit that offense, in violation of 18 U.S.C. §§ 1962(c) and (d).5 At another jury trial in 1978—before a different judge in the same District—based on an indictment returned prior to the racketeering indictment, respondent was convicted of damaging federal property, in violation of 18 U.S.C. § 1361, of unlawfully storing explosive materials, in violation of 18 U.S.C. § 842(j), and of conspiring to commit those offenses, in violation of 18 U.S.C. § 371.6

Respondent was first sentenced, in March 1978, on his convictions at the later trial. He received eight years on the charge for damaging federal property and five years on the conspiracy charge, these sentences to be served concurrently, and one year on the unlawful storage charge, to be served consecutively to the other sentences. This made a total of nine years' imprisonment. In April, respondent was sentenced as a dangerous special offender under § 3575 to two 10-year terms on the racketeering counts upon which he was convicted at the earlier trial; the court specified that these sentences were to be served concurrently with each other and with the sentences imposed in March. The dangerous special offender charge and sentences thus resulted in additional punishment of only about a year.

Respondent appealed the respective judgments of conviction to the Court of Appeals for the Second Circuit, and the United States sought review, under § 3576, of the sentences imposed upon respondent as a dangerous special offender. The Court of Appeals unanimously affirmed the judgments of conviction. By a divided vote, however, that court dismissed the Government's appeal on double jeopardy grounds. 604 F.2d 769 (1979). The two judges in the majority thus did not address the merits of the special offender issue. The third judge, while agreeing that the Government's appeal was to be dismissed, based that conclusion not on constitutional grounds, as did the majority, but on the grounds that §§ 3575 and 3576 were inapplicable to the facts of the case. 604 F.2d, at 787.7 Because of the importance of the constitutional question, we granted the Government's petition for certiorari, which confined itself to that single issue. 444 U.S. 1070, 100 S.Ct. 1010, 62 L.Ed.2d 751 (1980). Respondent has not filed a cross-petition.


At the earlier racketeering trial, the evidence showed that respondent was involved in an arson-for-hire scheme in the Rochester, N. Y., area that was responsible for at least eight fires between 1970 and 1973; that the ring collaborated with property owners to set fire to buildings in return for shares of the insurance proceeds; and that insurers were defrauded of approximately $480,000 as a result of these fires. At the second trial, the evidence showed that respondent partici- pated in the 1970 "Columbus Day bombings," including the bombing of the federal building at Rochester.

Prior to the first trial, the Government, in accordance with § 3575(a), filed with the trial court a notice alleging that respondent was a dangerous special offender. This notice recited the Government's intention to seek enhanced sentences on the racketeering counts in the event respondent was convicted at that trial. After respondent was found guilty, a dangerous special offender hearing, pursuant to § 3575(b), was held. At the hearing, the Government relied upon the testimony adduced at the trial and upon public documents that attested to other convictions of respondent for the Columbus Day bombings, for loansharking, and for murder. App. 27-28, 30. The defense offered no evidence. It conceded the validity of the public records, id., at 31-32, but objected to any consideration of the murder offense because that conviction had been vacated on appeal. Id., at 28-29.

The District Court made findings of fact and ruled that respondent was a dangerous special offender within the meaning of the statute. The findings set forth respondent's criminal record and stated that that record revealed "virtually continuous criminal conduct over the past eight years, interrupted only by relatively brief periods of imprisonment in 1975, 1976 and 1977." Id., at 41. The court found, in addition, that respondent's "criminal history, based upon proven facts, reveals a pattern of habitual and knowing criminal conduct of the most violent and dangerous nature against the lives and property of the citizens of this community. It further shows the defendant's complete and utter disregard for the public safety. The defendant, by virtue of his own criminal record, has shown himself to be a hardened habitual criminal from whom the public must be protected for as long a period as possible. Only in that way can the public be protected from further violent and dangerous criminal conduct by the defendant." Id., at 43.8 The court thereupon sentenced respondent under § 3575(b) to the concurrent 10-year terms hereinabove described. App. 45-46.

The United States then took its appeal under § 3576, claiming that the District Court abused its discretion in imposing sentences that amounted to additional imprisonment of respondent for only one year, in the face of the findings the court made after the dangerous special offender hearing.9 The dismissal of the Government's appeal by the Court of Appeals rested specifically upon its conclusion, which it described as "inescapable," that "to subject a defendant to the risk of substitution of a greater sentence, upon an appeal by the government is to place him a second time 'in jeopardy of life or limb.' " 604 F.2d, at 783.


While this Court, so far as we are able to ascertain, has never invalidated an Act of Congress on double jeopardy grounds, it has had frequent occasion recently to consider and pass upon double jeopardy claims raised in various...

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