Opinion
05-cr-060 (NGG).
October 14, 2008
MEMORANDUM ORDER
Defendant Vincent Basciano faces charges of substantive racketeering in violation of 18 U.S.C. § 1962(c) (Count One), conspiracy to commit murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5) (Counts Three and Nine), murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) (Count Four), a federal capital offense, and a related firearms violation of 18 U.S.C. § 924(c) (Count Five). (See Docket #464, Superseding Indictment 05-060 S-9) (the "2005 Indictment").) All charges relate to Basciano's alleged participation in the activities of the Bonanno crime family. See id. at 6. Basciano argues that Counts One, Three, and Nine of the 2005 Indictment constitute a second prosecution for offenses already tried by the Government in prior prosecutions, commenced in 2003. (See Docket #445, Superseding Indictment 03-929 S-5 (the "2003 S-5 Indictment"); Docket #840, Superseding Indictment 03-929 S-8 (the "2003 S-8 Indictment").) Basciano moves the court to dismiss Counts One, Three, and Nine of the 2005 Indictment on grounds of double jeopardy.
For the reasons set forth below, the court concludes that double jeopardy does not raise a bar to these charges and Basciano's motion is DENIED.
I. BACKGROUND
A. The 2003 Indictments
The 2003 S-5 Indictment charged Basciano and co-defendant Patrick DeFilippo with racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), for their roles in a multitude of Bonanno family crimes spanning from January 1979 until 2004. The Government identified the following predicate acts involving Basciano: an illegal gambling operation from January 1979 to January 2003; an illegal gambling "joker poker" operation from January 1979 to January 2005; the 1985 attempted murder of David Nunez; extortionate extension of credit to Generoso Barbieri and John Palazzolo from January 1990 to December 1994; the 2001 murder and conspiracy to murder Frank Santoro; solicitation to murder Dominick Martino, from December 2001 to March 2002; and extortionate collection of credit conspiracy from January 2004 to November 2004. (See 2003 S-5 Indictment at 5-14; see also Opp. at 1-2). On May 9, 2006, a jury found Basciano guilty and the predicate acts of the gambling operation, the "joker poker" operation, and the attempted murder of Nunez proven. (Opp. at 2.)
Following the verdict, the superseding 2003 S-8 Indictment was returned and charged Basciano with substantive racketeering in violation of 18 U.S.C. § 1962(c). The Government again cited the 2001 murder and conspiracy to murder Frank Santoro and solicitation to murder Dominick Martino, from June 2001 to July 2002. (See 2003 S-8 Indictment at 6-7.) Additional predicate acts alleged against Basciano included solicitation to murder Salvatore Vitale, from October 2002 to December 2002; conspiracy to distribute marijuana from January 2000 to December 2002; an illegal gambling lottery operation from January 2004 to December 2004; and illegal sports betting from January 2000 to November 2004. (See id. at 7-12; see also Opp. at 2-3.) Pursuant to the 2003 S-8 Indictment, a jury convicted Basciano on the single count of substantive racketeering and found all predicate acts proven. (Opp. at 3.)
B. The 2005 Indictment
The 2005 Indictment charged Basciano and several co-defendants with a new count of substantive racketeering in violation of 18 U.S.C. § 1962(c) (the Racketeer Influenced and Corrupt Organizations Act ("RICO")). Additional charges against Basciano included conspiracy to commit murder and murder in aid of racketeering of Randolph Pizzolo, a related firearms violation, and conspiracy to commit murder in aid of racketeering of Patrick DeFilippo. Count One, the substantive RICO count, rests on a pattern of racketeering activity on behalf of the Bonanno family from 1997-2005. (See 2005 Indictment at 9.) The predicate acts involving Basciano span only 2003 through 2005, and include: the murder and conspiracy to murder Randolph Pizzolo from November 1, 2004 through November 30, 2004; solicitation to murder a federal law enforcement official, Assistant United States Attorney Greg Andres ("AUSA Andres"), on or about November 23, 2004; solicitation to murder and conspiracy to murder Patrick DeFilippo from August 2003 to November 19, 2004; conspiracy to murder Joseph Bonelli from September 2004 to November 2004; and attempted larceny by extortion on June 23, 2005. (See id. at 9-17.) Six more racketeering acts — involving the murder and conspiracy to murder of Frank Santoro, three incidences of extortionate collection of credit conspiracies, a marijuana distribution conspiracy, and a robbery conspiracy — were also charged against Basciano's co-defendants, who have since resolved the charges through guilty pleas. (See id. at 11-16, Racketeering Acts Two, Six-Ten.) None of the predicate acts alleged as to Basciano in the 2005 Indictment overlap with those set forth in the 2003 S-5 or 2003 S-8 Indictments.
Included among the additional charges in the 2005 Indictment are the conspiracies to murder Pizzolo and DeFilippo in aid of racketeering activity in violation of the Violent Crimes in Aid of Racketeering (VICAR) statute, 18 U.S.C. § 1959(a)(5) as Counts Three and Nine (the "VICAR charges"). (2005 Indictment at 18, 23.)
Basciano presents two double jeopardy arguments. First, he contends that Count One holds him in double jeopardy because it seeks a second substantive RICO prosecution of the same pattern of racketeering activity charged in the 2003 S-8 Indictment. Second, he claims that the VICAR charges violate double jeopardy principles because they are "part of, and not in any real sense different from" the RICO conspiracy charge of the 2003 S-5 Indictment. (Mot. at 19.)
II. DISCUSSION
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. It protects criminal defendants in three situations: "where there is a second prosecution for the same offense after acquittal of that offense; where there is a second prosecution for the same offense after conviction of the offense; and where there are multiple punishments for the same offense." United States v. Estrada, 320 F.3d 173, 180 (2d Cir. 2003). "In all three situations, the double jeopardy analysis turns on whether the charged offenses are the same in fact and in law." United States v. Tomero, 473 F. Supp. 2d 609, 613 (S.D.N.Y. 2007), citing Estrada, 320 F.3d at 180. To address each of Basciano's challenges, the court evaluates whether he faces successive charges for the "same offence" in violation of the Double Jeopardy clause.
A. Count One: RICO
Second Circuit precedent dictates that for successive RICO charges to give rise to a claim of double jeopardy, "both the enterprise and the pattern of activity alleged in the [prior] indictment must be the same as those alleged in the [present] indictment. If either is different, there is no infirmity under the double jeopardy clause." United States v. Russotti, 717 F.2d 27, 33 (2d Cir. 1983), cert. denied, 465 U.S. 1022 (1984). The Government concedes that the enterprise alleged in the 2005 Indictment and the 2003 S-8 Indictment is one and the same: participation in the criminal affairs of the Bonanno crime family. (See, e.g., Opp. at 6.) As a result, the question facing this court is whether Count One alleges a pattern of racketeering activity distinct from that alleged in the 2003 S-8 Indictment.
Russotti adopted a five-factor test to assess whether successive racketeering counts charge distinct patterns of racketeering activity, comparing: "(1) the time of the various activities charged as parts of separate patterns; (2) the identity of the persons involved in the activities under each charge; (3) the statutory offenses charged as racketeering activities in each charge; (4) the nature and scope of the activity the government seeks to punish under each charge; and (3) the place where the corrupt activity took place under each charge." Id. at 33 (citing United States v. Dean, 647 F.2d 779 (8th Cir. 1981)). The Russotti court highlighted the fourth factor, the "nature and scope of the activity," to be the "most significant factor." Id. at 34. Collectively, the factors provide a holistic approach adopting the idea that "RICO includes a separate unit of prosecution for each distinct pattern of racketeering activity." Dean, 647 F.2d at 787-88. Upon application of the Russotti test, "[a] double jeopardy violation occurs only if the subsequent charge is based on conduct that was part of the same pattern of racketeering activity that supported the prior RICO conviction." Tomero, 473 F. Supp. 2d at 615. The court examines each factor in turn.
1. Time
The focus of the 2005 indictment is Basciano's post-arrest participation in the affairs of the Bonanno family. The timeline of the activities imputed to Basciano covers only August 2003 to June 2005 and concentrates on and around his November 19, 2004 arrest. Notably, the 2005 Indictment cites only one predicate act by Basciano beginning before November 2004, the solicitation to murder and conspiracy to murder Patrick DeFilippo. (Racketeering Act Four, 2005 Indictment at 12.) The 2003 S-8 Indictment extends beyond November 2004 only in one instance, the allegation of a vast illegal gambling "joker poker" operation continuing from January 1979 to January 2005. As a result, the indictments overlap in time only by virtue of two acts, and even there, the overlap is only by two years. The remainder of the activities described in the 2005 Indictment as to Basciano initiated in the fall of 2004 or thereafter, exhibiting a consolidated timeline distinguishable from the 2003 S-8 Indictment. While there is some overlap in time, the indictments are far from intertwined. See United States v. DeCologero, 530 F.3d 36, 71-72 (1st Cir. 2008) (finding overlap "insubstantial" where the concentration of events occurred in different time ranges, though some "minor" events potentially caused four-year overlap); see also Russotti, 717 F.2d at 33 (overlap of two and a half years in enterprise).
Basciano's claim that there is "an 8.5 year overlap" across these indictments relies on the view that acts charged to Basciano's co-defendants — which date back to 1997 — should be counted in the Russotti analysis. Even crediting this view, an 8.5 year overlap set against the epic 26-year enterprise of the 2003 S-8 Indictment would not change the analysis. See United States v. Langella, 804 F.2d 185, 190 (2d Cir. 1986) (finding that indictments only "partially overlap" where second indictment presented narrowed six-year window, though time frame was wholly subsumed by the first indictment).
These acts — alleged against third parties — cannot provide the two predicates necessary to convict Basciano of the substantive RICO charge. See United States v. Gotti, 451 F.3d 133, 136 (2d Cir. 2006) ("In order to convict Gotti of participation in the conduct of the affairs of a racketeering enterprise in violation of 18 U.S.C. § 1962(c), the government was obliged to prove beyond a reasonable doubt that Gotti participated in that enterprise's affairs "through a pattern of racketeering activity'. . . . defined as `at least two acts of racketeering activity.'") (emphasis added); United States v. Brennan, 629 F.Supp. 283, 295 (E.D.N.Y. 1986) ("To establish a pattern of racketeering activity the government proved beyond a reasonable doubt that the defendant committed at least one of the offenses charged under at least two of the predicate acts alleged.") (emphasis added). They do nothing to establish the RICO charge against Basciano and the co-defendants accused of these acts have pled out of the case. The court declines to imbue such acts, alleged only against co-defendants, with the power to alter its double jeopardy analysis. The Second Circuit has not directly addressed the propriety of including or excluding them from consideration in the Russotti test.
2. Identity of the Persons Charged
The identity of the persons involved in each indictment bears some resemblance. The 2005 Indictment charged Basciano as the acting boss of the Bonanno family (following the January 20, 2004 arrest of Anthony Urso), Michael Mancuso, the acting boss succeeding Basciano, and three Bonanno soliders and associates: Anthony Aiello, Anthony Donato, and Anthony Indelicato. By contrast, the 2003 S-8 Indictment targeted Basciano alone. Without citation, Basciano argues that evidence presented in Basciano's trial on the 2003 S-8 Indictment actually implicated Indelicato, Aiello, and Donato each in one or two of the predicate acts charged. (Mot. at 15.) The court agrees with the Sixth Circuit's approach that "the inquiry here extends beyond mere consideration of those actually indicted in each prosecution" to reach "whether the same persons were involved in the activities charged under each indictment, unindicted persons included." United States v. Wheeler, 535 F.3d 446, 451 (6th Cir. 2008). It is difficult to weigh this factor because neither party has explained the involvement of Indelicato, Aiello, and Donato in the 2003 S-8 charges in context. It is unclear whether Basciano claims these men were three of many involved in those acts, or the three central players. Nonetheless the court recognizes that as in the first factor, there is some overlap in the identity of the persons involved.
3. Statutory Offenses
The statutory offenses charged as racketeering activities in each indictment share only superficial similarities. Basciano argues that the 2005 Indictment threatens Basciano with double jeopardy because both it and the 2003 S-8 Indictment charge as predicate acts "murder, murder conspiracy, and murder solicitation in violation of New York Penal Law sections 125.25(1), 105.15, 100.10 and 20.00 . . . and both indictments charge conspiracy to distribute marijuana in violation of 21 U.S.C. § 846." Basciano further claims that the object of these charges is identical in one case: the Santoro homicide.
Basciano claims, without citing any authority, that theRussotti test "looks beyond the specific predicates charged in the indictment," inviting the court to analyze not only the operative indictments, but their prior iterations. Mot. at 13;see id. at 15-16. The court declines Basciano's invitation to delve into this morass without a basis to do so. See, e.g.,United States v. Joyner, 201 F.3d 61, 79 (2d Cir. 2000) (jeopardy attaches to an indictment for purposes of the Double Jeopardy Clause only when the jury is empaneled and sworn).
Basciano's attempt to conflate the charged activities across the indictments because they include repeated violations of the same laws oversimplifies Russotti's inquiry. In Russotti, the court found "no overlap of racketeering activities" where the indictments presented two acts of arson occurring five years apart in time and under the auspices of differing criminal objectives. Id. at 33. Here, the murder of Randolph Pizzolo charged in the 2005 Indictment occurred three years after the murder of Frank Santoro charged in the 2003 S-8 Indictment. The conspiracies to murder Pizzolo, Patrick DeFilippo, and Joseph Bonelli similarly occurred two to three years after the conspiracy to murder Santoro. The solicitations to murder DeFilippo from August 2003 into 2004 and AUSA Andres in November 2004 link closer in time to 2003 S-8 Indictment charges of solicitation to murder Dominick Martino, from June 2001 to July 2002, and Salvatore Vitale, from October 2002 to December 2002. However, the January 2004 promotion of Basciano to the position of acting boss and his November 2004 arrest create important dividing lines that change the context of these activities.
At the same time, the Government's flat contention that "[t]here is no overlap at all between the criminal acts that are the predicates in either count" is inadequate as well. Opp. at 6;see Wheeler, 535 F.3d at 453 ("[S]howing that the same predicate crimes were committed under different factual circumstances only tends to prove that the pattern of activity was more widespread than the initial indictment originally conveyed. It does not tend to prove a separate pattern of conduct.").
There are also indications that the purposes of these acts differed. The 2005 Indictment suggests that the objective of the Pizzolo murder was to set an example for others in the enterprise and reassert Basciano's authority from prison. (2005 Indictment at 8, ¶ 23 ("I thought this kid would have been a good wake-up call for everybody")). Similarly, the conspiracy and solicitation to murder AUSA Andres was allegedly proposed at a November 23, 2004 meeting at the prison between Basciano and official Bonanno boss Joseph Massino. (Id. at 7, ¶ 17.) The alleged plot against AUSA Andres sought to attack "a federal law enforcement official involved in investigating and prosecuting members and associates of the Bonanno family, including Basciano." Id. The Government's theory is that Basciano engineered these acts as part of his "maintenance and ongoing operation of the Bonanno family" during his incarceration. (Id. at 6, ¶ 16.) The acts against Pizzolo and Andres were committed not only in furtherance of the broader Bonanno enterprise, but in support of the more specific objective of exerting and preserving Bonanno authority once its leadership fell vulnerable to law enforcement. This theme is absent from the murder, conspiracy to murder, and solicitation to murder allegations in the 2003 S-8 Indictment. Based upon the allegations of the 2005 Indictment, it is apparent that there is some overlap of the statutory offenses on their face, but the predicate acts are divergent in time and purpose.See DeCologero, 530 F.3d at 72 (clarifying that "the overlap of some types of crimes between two indictments does not necessarily mean the indictments charge the same pattern of racketeering activity"); see also United States v. Ruggiero, 754 F.2d 927, 933-34 (11th Cir. 1985) (patterns of racketeering activity differed under double jeopardy analysis even though both indictments charged crimes under the same gambling, drug, and robbery statutes).
As to the marijuana distribution conspiracy and the Santoro homicide, the 2005 Indictment does not ascribe these acts to Basciano, but rather only to his co-defendants. The Second Circuit has not clarified whether such acts should be credited in a Russotti analysis at all, where, as here, the terms of the indictment do not attempt to use them to attach criminal liability to Basciano, the co-defendants in question have pled out, and the allegations regarding these acts are essentially defunct in the present indictment. See supra n. 1; United States v. Ciancaglini, 858 F.2d 923, 929-30 (3rd Cir. 1988) (in a similar analysis, finding "no overlap in the overt acts [the double jeopardy movant] is alleged to have participated in" and specifying that as a result, his "dual involvement is minimal");see also Langella, 804 F.2d at 190 (highlighting the fact that an allegedly overlapping statutory offense "did not even name" the double jeopardy movants).
While there is again some identity across the statutory offenses charged, both the present and the prior indictments present several offenses unique to each. The charges of solicitation to murder a federal official and attempted larceny by extortion are both unique to the 2005 Indictment. The gambling and sports betting operations remain unique to the 2003 S-8 Indictment. These additional acts enhance the divergent tenors of the two indictments. See United States v. Urso, 369 F. Supp. 2d 254, 262 (E.D.N.Y. 2005) ("Moreover, while the two racketeering acts are common to both indictments, the two indictments charge additional racketeering acts as well, and thus charge different patterns of racketeering activity.").
As reviewed above, the allegations of murder, conspiracy to murder, and solicitation to murder are charged against Basciano in both indictments. I find there is a substantial overlap of the racketeering activities charged across the 2003 S-8 and 2005 Indictments, but the identity of the offenses is insufficient to conflate them into a single pattern of racketeering activity.
4. Nature and Scope of the Activity
On this "most significant factor," Basciano argues that no distinction in nature and scope can be drawn between the indictments because the predicates in each indictment fail to "relate to a discrete, identifiable, distinct criminal endeavor" beyond the broad umbrella of the Bonanno criminal enterprise.Russotti, 717 F.2d at 34; Mot. at 16. First, there is no such requirement that predicates in a RICO charge capture a specific and isolatable theme. Second, the RICO charge in the 2005 Indictment does exhibit a "nature and scope" of Basciano's activities that is distinguishable from the 2003 S-8 Indictment.
Each indictment, viewed as a whole, weaves a separate pattern of criminal activity. The 2003 S-8 Indictment focused on Basciano's criminal activity from 2000 until 2004, largely preceding his alleged elevation to the position of acting boss in January 2004 and his arrest in November 2004. The predicate acts charged demonstrated Basciano's expansive involvement in the livelihood of the Bonanno organization, from funding the organization with street level gambling and drug rings to enforcing the regime through murder. By contrast, the 2005 Indictment concentrates mainly on Basciano's alleged involvement in the Bonanno organization in the wake of his rise to the top as acting boss, his subsequent arrest, and his ongoing incarceration. See Ciancaglini, 858 F.2d at 930 (noting that the defendant played different roles in the two indictments, having risen to "a higher level of leadership," and rejecting double jeopardy challenge). The predicate acts presented in the 2005 Indictment generally assert a separate second phase, Basciano's orchestration of Bonanno criminal affairs and his defense of the Bonanno family as it fell under siege in the successive arrests of Urso, Basciano, and Mancuso. On this most important factor, the court concludes the indictments target distinct patterns of criminal activity.
5. Place
Respecting the fifth and final factor, the place for Basciano's criminal activities remained constant across the indictments: the New York City metropolitan area.
In sum, the analysis under the Russotti factors articulates different patterns of racketeering activity in the 2003 and 2005 Indictments. Compare Russotti, 717 F.2d at 34 (deeming "no convergence" in the nature and scope of the indictments dispositive though other similarities appeared); to Wheeler, 535 F.3d at 445 (finding double jeopardy violation where the patterns were "strikingly similar nature and scope" in addition to substantial overlap in time period, participants, and statutory offenses charged); see also Tomero 473 F.Supp.2d at 615-16 (difference in nature and scope overrode similarities in time, place, and statutory offenses to defeat double jeopardy challenge). I find that while the defendant presents a colorable claim, the pattern of racketeering activity set forth in the 2005 Indictment against Basciano is sufficiently distinct to permit a subsequent RICO charge. Accordingly, double jeopardy does not bar Count One of the pending indictment.
Basciano also speculates that the Government has "spliced and diced" his long history of criminal activity into separate indictments to gain some sort of tactical advantage, complaining that "all of the predicates eventually included in the [2003 S-8 Indictment] could just as easily have been included in the `05 case." (Mot. at 1, 18.) But "[t]he Double Jeopardy Clause neither forbids successive prosecutions for different offenses nor requires the government to join all possible charges arising from a course of conduct in a single indictment." United States v. Sessa, 125 F.3d 68, 73 (2d Cir. 1997); see also United States v. Dixon, 509 U.S. 688, 704 (1993) (rejecting argument that the government is required to "`bring its prosecutions . . . together.' It is entirely free to bring them separately, and can win convictions in both.") (internal citation omitted). The court sees no reason to indulge Basciano's free-wheeling theories of sinister prosecutorial motives in the absence of any evidence to support them.
B. Counts Three and Nine: VICAR Charges
Basciano also seeks the dismissal of the VICAR charges in Counts Three and Nine, conspiracies to commit murder in aid of racketeering, arguing that these alleged conspiracies are subsumed by the 2003 S-5 RICO conspiracy charge and should be barred by double jeopardy.
The parties disagree over the appropriate legal test to evaluate Basciano's challenge. The Government points to the "same elements" test, articulated in Blockburger v. United States, 284 U.S 299 (1932), inquiring "whether each offense contains an element not contained in the other; if not, they are the `same offence' and double jeopardy bars additional punishment and successive prosecution." United States v. Dixon, 509 U.S. 688, 696 (1993). Basciano advocates the more detailed, fact-intensive approach of United States v. Korfant, 771 F.2d 660 (2d Cir. 1985), which lays out a totality of the circumstances test to evaluate whether two conspiracies are the same in fact.
In United States v. Dixon, the Supreme Court unequivocally declared that Blockburger was the reigning test in double jeopardy analysis to determine whether charges constituted the "same offence," overruling the use of a more fact-intensive approach described in Grady v. Corbin. Dixon, 509 U.S. at 704, 710-711. Post-Dixon, the Second Circuit nonetheless suggested that when one of the statutes in a double jeopardy challenge "covers a broad range of conduct," a court may be required to look beyond the elements of the crimes to "examine the allegations of the indictment rather than only the terms of the statutes." United States v. Liller, 999 F.2d 61, 63 (2d Cir. 1993).
To date, the Second Circuit has never deployed such a test or clarified precisely what form it would take. In fact, it has retreated from the notion explored in Liller altogether. InUnited States v. Sessa, 125 F.3d 68 (2d Cir. 1997), the Second Circuit rebuffed the idea, calling the Liller suggestion "speculat[ion]" and "dictum," and proclaimed that it drew on precedent that was "significantly undermined after Dixon." Sessa, 125 F.3d at 72-73 (emphasis added); see United States v. Awan, 459 F. Supp. 2d 167, 191 n. 40 (E.D.N.Y. 2006) (finding that "[c]ourts of this circuit have expressed considerable doubt about this rule in the wake of the re-emergence of the Blockburger test in 1993 and have also noted that it has only been applied to multiplicitous, and not successive, prosecutions."). The Circuit went further in United States v. Chacko, 169 F.3d 140 (2d Cir. 1999), refusing to look beyond Blockburger "to examine the specifics of the indictment and the nature of the counts charged when the underlying statute is broad" because it concluded "the implications of Dixon are preclusive." Id. at 147 (overrulingUnited States v. Seda, 978 F.2d 779 (2d Cir. 1992)).
Under the circumstances presented in this case, I decline to descend into the ether of fading Second Circuit dicta. The Government correctly points out that all the cases cited by Basciano in support of a totality-of-the-circumstances Korfant analysis arise under different circumstances from those in play here. These cases all arise where there is a successive conspiracy prosecution under an identical statute to the prior prosecution, conditions which would already fail the Blockburger test. Here, the specific statutory offenses at issue are different, as is their broader context: the 2003 S-5 Indictment charged RICO conspiracy under 18 U.S.C. § 1962(d) — part of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961- 1968 (RICO) — while the present indictment charges conspiracy to murder in aid of racketeering under 18 U.S.C. § 1959(a)(5), the Violent Crimes in Aid of Racketeering statute (VICAR). Though the offenses are undoubtedly related, they are plainly not the "same offence" for Fifth Amendment purposes. "When a defendant is charged with violations of two distinct statutory provisions and the charges stem from the same act or transaction, a court applies the test announced in Blockburger v. United States." United States v. Tomero, 473 F. Supp. 2d 609, 613 (S.D.N.Y. 2007) (emphasis in original); see Blockburger, 284 U.S at 304 ("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." (emphasis added)).
As a result, I proceed with the Blockburger analysis. As stated above, the relevant question is "whether each offense contains an element not contained in the other." Dixon, 509 U.S. at 696. The 2003 RICO conspiracy count contains one element that need not be demonstrated in a VICAR violation: proof of a conspiracy to conduct an enterprise through a "pattern of racketeering activity." See 18 U.S.C. § 1962(d); see also United States v. Thomas, 757 F.2d 1359, 1371 (2d Cir. 1985). In turn, a VICAR violation demands proof of at least two elements not required in a RICO conspiracy charge: (1) proof of a specific conspiracy "to commit murder," and (2) proof that the conspiracy was undertaken "for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity" (or in the alternative, as consideration for anything of pecuniary value). 18 U.S.C. § 1959(a)(5). Each statutory offense requires proof of a unique element. Because theBlockburger test shows that the offenses are not the "same offence" for purposes of the Fifth Amendment, double jeopardy is not violated.
The First Circuit faced almost precisely this comparison of statutory offenses in United States v. Marino, 277 F.3d 11 (1st Cir. 2002), and reached the same result. The defendant argued that double jeopardy prohibited a VICAR charge (as here, conspiracy to murder in aid of racketeering) because it was a lesser included offense of a substantive RICO violation. Id. at 39. In Marino, the conspiracy to murder was cited as a predicate act as well as a separate charge in the indictment. Id. The court found, in accord with multiple other circuits, that the combination of these charges did not hold the defendant in double jeopardy. Id. (citations omitted). The fact that Basciano attempts to equate a RICO conspiracy with the same VICAR violation is unavailing. (See Reply at 11.) The charges pass theBlockburger test and double jeopardy cannot be invoked.
III. CONCLUSION
Despite some commonalities, Basciano's challenges fail to establish that Counts One, Three, and Nine of pending indictment constitute the "same offence" for double jeopardy purposes as prior charges tried under the 2003 Indictments. Defendant's motion to dismiss is denied in its entirety.
SO ORDERED.