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910 F.2d 1084, *; 1990 U.S. App. LEXIS 12933, **
UNITED STATES OF AMERICA v. ANTHONY PUNGITORE, JR., Appellant
in No. 89-1371 v. JOSEPH GRANDE, Appellant in No. 89-1372 v. FRANCIS IANNARELLA,
JR., Appellant in No. 89-1393 v. PHILLIP NARDUCCI, Appellant in No. 89-1395 v.
SALVATORE SCAFIDI, Appellant in No. 89-1396 v. NICHOLAS VIRGILIO, Appellant in
No. 89-1397 v. CHARLES IANNECE, Appellant in No. 89-1400 v. SALVATORE WAYNE
GRANDE, Appellant in No. 89-1401 v. JOSEPH PUNGITORE, Appellant in No. 89-1402
v. FRANK NARDUCCI, JR., Appellant in No. 89-1403 v. RALPH STAINO, JR., Appellant
in No. 89-1404 v. SALVATORE J. MERLINO, Appellant in No. 89-1409 v. NICODEMO
SCARFO, Appellant in No. 89-1446 v. JOSEPH CIANCAGLINI, Appellant in No. 89-1448
Nos. 89-1371, 89-1372, 89-1393, 89-1395, 89-1396, 89-1397,
89-1400, 89-1401, 89-1402, 89-1403, 89-1404, 89-1409, 89-1446, 89-1448
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
910 F.2d 1084; 1990 U.S. App. LEXIS 12933; 31 Fed. R. Evid.
Serv. (Callaghan) 115 April 25, 1990, Argued and Submitted under Third Circuit Rule 12(6) August 1, 1990, Decided SUBSEQUENT HISTORY: [**1] PRIOR HISTORY: On Appeal from the United States District Court for the Eastern District of Pennsylvania; E.D. Pa. Criminal Nos. 88-00003-01, 88-00003-03, 88-00003-04, 88-00003-05, 88-00003-07, 88-00003-08, 88-00003-09, 88-00003-11, 88-00003-12, 88-00003-15, 88-00003-16, 88-00003-17, 88-00003-18, 88-00003-19. CORE TERMS: rico, conspiracy, prosecutor, murder, predicate, indictment, extortion, racketeering, shakedown, sentence, double jeopardy, coconspirator, successive, defense counsel, double jeopardy clause, reasonable doubt, guilt, credibility, pattern of racketeering activity, sentencing, consecutive sentences, plain error, methamphetamine, convicted, boss, cumulative, reversal, predicate offense, organized crime, law enforcement COUNSEL: Michael J. Kelly, Assistant Defender, Defender Association of Philadelphia, Federal Court Division, Philadelphia, Pennsylvania, Attorney for Anthony Pungitore, Jr. Willis W. Berry, Jr., Philadelphia, Pennsylvania, Attorney for Joseph Grande. Robert E. Madden, Philadelphia, Pennsylvania, Attorney for Francis Iannarella, Jr. Stanford Shmukler, (Argued), Philadelphia, Pennsylvania, Attorney for Frank Narducci, Jr. and Phillip Narducci. Christopher G. Furlong, Springfield, Pennsylvania, Attorney for Salvatore Scafidi. Stephen P. Patrizio, (Argued), Dranoff & Patrizio, Philadelphia, Pennsylvania, Attorneys for Nicholas Virgilio. Louis T. Savino, Jr., Philadelphia, Pennsylvania, Attorney for Charles Iannece. Hope C. Lefeber, Philadelphia, Pennsylvania, Attorney for Salvatore Wayne Grande. Peter Goldberger, (Argued), Philadelphia, Pennsylvania, Attorney for Joseph [**2] Pungitore. M. W. Pinsky, Westmont, New Jersey, Attorney for Ralph Staino, Jr. Edwin J. Jacobs, Jr., Jacobs & Bruso, Pennsylvania, Atlantic City, New Jersey, Attorney for Salvatore J. Merlino. Robert F. Simone, Philadelphia, Pennsylvania, Milton E. Grusmark, (Argued), Miami, Florida, Attorneys for Nicodemo Scarfo. Robert E. Welsh, Jr., (Argued), Philadelphia, Pennsylvania, Attorney for Joseph Ciancaglini. Michael M. Baylson, United States Attorney, Frank J. Marine, (Argued), Lead Appellate Attorney, U.S. Department of Justice, Washington, District of Columbia, Joel M. Friedman, David E. Fritchey, Arnold H. Gordon, Louis R. Pichini, Albert J. Wicks, Assistant United States Attorneys, U.S. Department of Justice, Philadelphia Strike Force, Philadelphia, Pennsylvania, Attorneys for the United States. JUDGES: Becker, Greenberg, and Garth, Circuit Judges. OPINIONBY: GREENBERG OPINION: [*1096] OPINION OF THE COURT GREENBERG, Circuit Judge. [*1097] I. INTRODUCTION These consolidated appeals are the latest saga in the government's dismantling of the Philadelphia branch of La Cosa Nostra. Following a ten week trial which concluded on November 19, 1988, in the Eastern District [**3] of Pennsylvania, appellants, all members of the Nicodemo Scarfo crime family, were found guilty of conspiring to participate and participating in the affairs of an enterprise through a pattern of racketeering activity and, in some cases, through the collection of unlawful debts, in violation of RICO, 18 U.S.C. §§ 1962(d) and (c). n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The appellants indicted for a RICO offense predicated upon the collection of unlawful debt were Scarfo, Salvatore Merlino, Charles Iannece, Salvatore Scafidi, Joseph Pungitore, and Francis Iannarella, Jr. Jt. App. at 180. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In addition, Joseph Pungitore was convicted of participating in a conspiracy to distribute methamphetamine and Nicodemo Scarfo, Salvatore Merlino, and Joseph Ciancaglini were convicted of possession of methamphetamine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). n2 Scarfo, Merlino and Joseph Pungitore also were convicted of engaging in illegal sports bookmaking, in violation of 18 U.S.C. § 1955. [**4] Finally, Francis Iannarella, Jr. and Salvatore Scafidi were convicted of conducting an illegal lottery business, in violation of 18 U.S.C. § 1955(b). Appellants filed post trial motions which were denied by the district court. United States v. Scarfo, 711 F. Supp. 1315 (E.D. Pa. 1989). These appeals followed. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Scarfo and Merlino were convicted of the possession offenses charged in Counts 10 and 11 of the superseding indictment. Ciancaglini was convicted under Count 10 only. Pungitore's conviction stemmed from an unrelated methamphetamine distribution conspiracy charged in Count 5. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - II. THE FACTS We are bound, after a jury has delivered a guilty verdict, to interpret the evidence in a light most favorable to the government. With that in mind, we offer the following background facts. The enterprise involved in this case was part of a nationwide criminal organization commonly known as the Mafia or "La Cosa Nostra." n3 La Cosa Nostra (LCN) is headquartered in New [**5] York and headed by a commission of eleven "bosses," who in turn direct the illegal activities of regional organized crime "families." The national scope of the Mafia is demonstrated by the fact that of its eleven bosses five are from New York City and six are from other cities throughout the country. The Mafia seems [*1098] to operate a government parallel to that in Washington, although as will be seen changes in its power structure are far more abrupt. Tr. 30/26/88 at 378. The 60 member Scarfo crime family involved here covers Mafia operations in Eastern Pennsylvania and much of New Jersey. Id. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 "La Cosa Nostra" is an Italian phrase which literally translates as "our thing" or "this thing of ours." Tr. 30/30/88 at 72. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - A crime family is a highly structured criminal enterprise with a well defined chain-of-command. At the apex of the family's hierarchy is the "boss," who carries sole authority to approve murders and induct new members into the family. Tr. 10/26/88 at 378. A "consigliere" and "underboss" [**6] comprise the next tier in the family's organizational hierarchy. Id. at 378. The consigliere functions as an advisor to the boss and assists in the settlement of disputes among members, while the underboss oversees the family's illegal endeavors when the boss is unavailable and conveys orders to members. Under the consigliere and underboss are the "capos" or "captains," who control "crews" or "regimes" of "soldiers," otherwise known as "made men." The soldiers, in turn, sponsor various "associates," who are best described as criminal colleagues of the family who, for various reasons, have not been formally initiated into its ranks. The criteria for becoming a member of the Scarfo family are somewhat daunting. To qualify, an aspiring associate must be a male of Italian descent who has participated in a murder pursuant to the boss's order. Tr. 10/10/88 at 80, 90. A primary incentive for joining the family is that the soldier then commands considerable respect from non-Mafia criminals, as his illegal endeavors are backed by "the strength of the Mafia," that is, its well-founded reputation for achieving its objectives through violent means. Tr. at 10/26/88 at 201. Indeed, its members [**7] recognize it as "a second government." Id. The soldier also becomes privy to the family's "political" and "union" connections. Id. at 200-01. As Thomas DelGiorno put it, becoming a ranking member of the family means the "difference of being in the major leagues and minor leagues as far as gangsters are concerned." Tr. 10/10/88 at 79. Of course, the Mafia does not look lightly upon the obligations of its members, for loyalty to it comes before "everything, your wife, your kids, your mother, everything." Tr. 10/28/88 at 201. The position of Frank and Phillip Narducci as appellants in this case demonstrates this as their father was murdered on Scarfo's orders. It is difficult to chart the history of the Philadelphia Mafia, given its frequent personnel changes caused by the violent deaths of several of its members. It is clear, however, that Angelo Bruno served as boss from approximately 1960 until his murder in 1980, when he was succeeded by Phillip Testa. n4 Appellant Nicodemo Scarfo functioned as consigliere under Testa and became boss after Testa was murdered by being blown up in his house in early 1983. Scarfo initially appointed Frank Monte as his consigliere and appellant [**8] Salvatore Merlino as his underboss. However, in February, 1986, Scarfo demoted Merlino to capo and replaced him with Philip Leonetti, who previously had been a capo. n5 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 After Bruno was killed, his consigliere Antonio Caponigro, known as Tony Bananas, also was killed. Tr. 30/30/88 at 83. n5 Leonetti was a defendant in this case and was convicted but has withdrawn his appeal. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In 1983, the capo ranks included appellant Joseph Ciancaglini, Frank Narducci, Sr., and Leonetti, as well as Santo Idone, Joseph Scafidi and Freddie Iezzi. Around January, 1982, Lawrence Merlino, Salvatore Merlino's brother, was promoted to capo, and appellants Francis Iannarella and Joseph Pungitore, along with coconspirators Eugene Milano, Thomas DelGiorno and Pasquale Spirito, became soldiers. n6 Existing members of the soldier ranks included appellants Salvatore Wayne Grande and Frank Narducci, Jr. Appellant Nicholas Virgilio became a soldier a few months later. In the fall of 1984, appellants [*1099] Charles Iannece [**9] and Joseph Grande, n7 along with government witness Nicholas Caramandi, became made members and appellant Iannarella and DelGiorno were promoted to acting capos. Appellant Phillip Narducci and Nicholas Milano became made members in February, 1986, and Iannarella and DelGiorno became full capos. Finally, in June 1986, appellants Salvatore Scafidi, Ralph Staino, Jr. and Anthony Pungitore, Jr. became made members. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 DelGiorno testified pursuant to a plea agreement with the government. Spirito was murdered on April 26, 1983. Spirito's murder was one of thirty-nine predicate acts of racketeering supporting appellants' RICO convictions. n7 Joseph Grande is Salvatore Wayne Grande's brother. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Over the course of the conspiracy, which was alleged in the indictment to run from April, 1976 through October, 1987, Jt. App. at 128, the Scarfo family's criminal activities included nine murders, four attempted murders, drug trafficking, the conduct of illegal gambling businesses, the extortionate collection of "street [**10] taxes" from non-LCN drug dealers and operators of illegal gambling businesses, the collection of unlawful gambling debts, and the collection of various usurious loans. We shall not describe in detail the factual circumstances of all of these crimes because, with few exceptions, appellants understandably have not challenged the sufficiency of the evidence to support their convictions. However, it is appropriate for us to overview them briefly so as to convey a sense of the extraordinary breadth of the evidence the jury had before it of appellants' criminal activity in Pennsylvania and southern New Jersey. A. MURDERS AND ATTEMPTED MURDERS The jury's answers to special interrogatories on the RICO charges indicated that each of the appellants had participated in a murder, attempted murder, or conspiracy to murder. Jt. App. at 1230-62. While the motives for the murders and attempted murders varied, each appears to have been carefully planned and carried out pursuant to Scarfo's instructions. Vincent Falcone, a cement contractor who socialized with various members of the enterprise, including Scarfo, Philip Leonetti, and Lawrence Merlino, tr. 10/25/88 at 48-49, was murdered on December 16, 1979, because [**11] he made disparaging comments concerning Scarfo and Philip Leonetti. n8 Joseph Salerno, Jr. testified that in late 1979, Scarfo asked him in a restaurant in Philadelphia if he had any guns and he answered that he owned a.32 caliber revolver and a rifle. n9 Tr. 10/25/88 at 43-44. A few weeks later, at Scarfo's request, Salerno brought the guns to the office of Scarf, Inc. on Georgia Avenue in Atlantic City where Scarfo, Leonetti, and Lawrence Merlino took possession of them. Id. at 47-48. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 Joseph Salerno, Jr. testified that Falcone was killed because he told Salvatore Merlino that Philip Leonetti should not be in the concrete business and that Scarfo was "crazy." Tr. 10/25/88 at 74-75. n9 When in his office, Scarfo referred to guns as "chandeliers" because of his concern that there might be listening devices there. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Salerno further testified that on the night of the murder, he was home in Brigantine, New Jersey, when he received a call to go over to the office of Scarf, Inc. which he did. When he [**12] arrived there he indicated that he wanted to go home to be with his children and to decorate the Christmas tree but instead was induced to drive with Falcone, Leonetti, and Merlino to an apartment in Margate, New Jersey, where Scarfo was waiting. Id. at 55-57. Scarfo, who was watching television, told Falcone to fix some drinks. Id. at 57. Within minutes after Falcone reappeared with the drinks, Leonetti, using Salerno's gun, shot Falcone once in the head. According to Salerno, Scarfo then stated "'I think, I'll give him another one.'" Leonetti responded, "'No . . . I'll give it to him'" and fired an additional shot into Falcone's chest. Id. at 58. Pursuant to Scarfo's instructions, Leonetti and Merlino then left the premises to dispose of the gun and pick up Falcone's car, id. at 58, and Salerno tied up Falcone's body and wrapped it in a blanket. As Salerno performed his assigned task, Scarfo stated "'I love this . . . I love it.'" Id. at 62. When Merlino returned with Falcone's car, Salerno helped [*1100] him put Falcone's body into the trunk. Id. at 65, 69. The coconspirators then abandoned the car in another location in Margate, cleaned the apartment [**13] and disposed of their clothing in a sewer. They then had dinner at Scarfo's apartment. Tr. 10/25/88 at 69-70, 71-72, 74, 76. Falcone's murder was charged against Scarfo and codefendant Leonetti as racketeering act 3. In December 1979, Salerno began to cooperate with state and federal authorities investigating the Falcone murder and other crimes committed by members of the enterprise. Tr. 10/25/88 at 83. With good reason he was concerned about his safety and that of his family and thus sought and obtained protection from the Atlantic County Prosecutor. In the summer of 1982, he testified against Scarfo in a proceeding before the New Jersey Division of Gaming Enforcement and in a proceeding concerning a union described as "Local 54 Bartender's Union." Tr. 10/25/88 at 92. After this testimony Scarfo, Salvatore Merlino, and Phillip Narducci attempted to murder Salerno's father, Joseph Salerno, Sr. Tr. 10/11/88 at 20-23; 10/25/88 at 92. At that time, Salerno, Jr. was inaccessible because he and his family had entered the federal witness protection program. Tr. 10/25/88 at 88. Phillip Narducci told DelGiorno that he appeared at Joseph Salerno, Sr.'s office in Wildwood Crest, New Jersey, [**14] and shot him when he opened the door. Id. at 22. On these facts, Scarfo, Merlino and Narducci were found guilty of racketeering acts 7 (a) and (b), which charged them with conspiracy to murder and attempted murder. Judge Edwin Helfant's murder also is indicative of the way in which this enterprise operated. On February 15, 1978, Virgilio, wearing a ski mask to avoid identification, shot and killed Judge Helfant, a former municipal court judge in Atlantic County, New Jersey, in the Flamingo Bar and Restaurant in Atlantic City. Scarfo later told DelGiorno and others, described by DelGiorno as "Philip, Chuckie, Larry, Faffy, [and] the Blade," that he had instructed Virgilio to kill Judge Helfant because Helfant had accepted $ 12,000 to fix a case involving Virgilio but not done so. Tr. 10/10/88 at 132-33. Scarfo drove the get-away car at the time of the murder and later arranged a false alibi for Virgilio. Id. at 133-35. Scarfo and Virgilio were found guilty of the Helfant murder as charged in racketeering act I of the RICO counts. The evidence also shows that the appellants killed in response to a member's showing of disloyalty to the organization, n10 to a drug dealer's [**15] refusal to pay the street tax to the enterprise, n11 and to eliminate a [*1101] faction of the enterprise's membership which threatened Scarfo's leadership. n12 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 Frank Narducci, Sr., father of appellants Phillip and Frank Narducci Jr., was murdered on January 7, 1982 by Scarfo, Ciancaglini, and Joseph Pungitore, in retaliation for his alleged participation in the murder of Phillip Testa, the former boss of the Philadelphia family. Tr. 10/10/88 at 119. Acting pursuant to Scarfo's instructions, Ciancaglini telephoned the shooters, Pungitore and Salvatore Testa, when Narducci, Sr. left a federal courtroom, where he was involved in a proceeding. Tr. 10/4/88 at 62-63. Pungitore and Testa then shot Narducci when he returned to his home. Tr. 10/10/88 at 118-19. Pasquale Spirito also was murdered for showing disloyalty to the enterprise. According to DelGiorno's testimony, Spirito was killed because he severely criticized the leadership of Scarfo, Salvatore Merlino and others. Caramandi and appellant Iannece, at a wedding reception in late April, 1983, received orders from Merlino to kill Spirito. As it happened, Iannarella who was at that reception, was planning a future wedding and was advised by Merlino, referring to Spirito, who also was at the reception, "don't send him no invitation, save the money, he won't need it." Tr. at 10/10/88 at 162. On September 14, 1984, less than three years after the Narducci murder, Salvatore Testa fell from Scarfo's graces and was murdered because he was not following orders and was "getting too big." Tr. 10/11/88 at 53. [**16] n11 DelGiorno testified that on October 6, 1981, acting pursuant to Scarfo's instructions, he, Ciancaglini, and Iannarella killed John Calabrese, a drug dealer, outside a Philadelphia bar because Calabrese refused to pay a percentage of his profits from his drug business over to Scarfo. Tr. 10/10/88 at 107-08, 110. Scarfo also had expressed concern that Calabrese could turn some "motorcycle guys" he controlled against the enterprise. Id. at 110. A similar motive was proven for the attempted murder of Steven Vento, Jr. Appellants Scarfo, Iannarella, Iannece, Staino, Scafidi, and Anthony Pungitore each were found guilty of conspiring and attempting to murder Steven Vento on May 27, 1986, while Vento was in his car on a South Philadelphia street. Tr. 10/6/88 at 17-19. The matter of Vento's murder was first raised at a communion party for Salvatore Grande's daughter but was not resolved at that time. Tr. 10/13/88 at 5. Eventually the decision to murder Vento was made after Vento resisted an attempt by Iannece and Caramandi to shake him down for drug money. Tr. 10/13/88 at 4-6. n12 Several of the murders and attempted murders were committed to eliminate the Riccobene faction of the crime family. In early 1982, Scarfo resolved to kill Harry Riccobene, a longstanding member, because he had questioned Scarfo's ability to head the organization. According to DelGiorno, Riccobene was insubordinate and becoming too independent of Scarfo, and had made it clear that "he didn't feel that Nicki was capable of being a boss. He felt that Nicki was too greedy, too selfish, and too vicious to be the boss." Tr. 10/10/88 at 142. Members of the organization made two attempts on Harry Riccobene's life, one on June 8, 1982, and the other on August 21, 1982. A number of Harry Riccobene's family members and associates also were targeted for murder. Tr. 10/10/88 at 165. Several appellants participated in the attempted murder of Frank Martines on October 14, 1983, id. at 165, 167-69, and the murder of Salvatore Tamburrino on November 3, 1983. Id. at 171-74. The vendetta against the Riccobene faction appears to have ended with the murder of Harry's brother, Robert Riccobene, on December 6, 1983. Tr. 10/11/88 at 19-20. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**17] B. ILLEGAL GAMBLING OPERATIONS Appellants conducted four illegal gambling operations, three numbers businesses and a sports betting business. Thomas DelGiorno ran the most profitable numbers business. He testified that his business operated continuously from 1976 until 1986, when he began to cooperate with law enforcement officials, tr. 10/11/88 at 83-85. DelGiorno employed between ten and thirty individuals as salaried numbers writers. Id. at 86, 88. The writers turned their work into one of up to five "numbers offices" which were located, for the most part, in private homes. Id. at 86-87. Over the business's ten-year history, average revenues ranged from $ 10,000 to $ 100,000 per week. Id. at 89-90. This business was able to compete with the state lotteries because the players could get credit, would be paid right away if they hit, and would not have to pay taxes on their winnings. Id. at 89. Appellant Iannarella began work for DelGiorno as a numbers office employee receiving bets in the late 1970's, and served as manager of the business from the early 1980's until mid-1985, when he was replaced by Scafidi. Id. at 91-94. As managers, Iannarella and Scafidi [**18] were responsible for supervising all of the offices and employees, collecting gambling debts and bets from the numbers writers, and paying the employees. Id. In 1982, appellant Salvatore Merlino and DelGiorno became partners in another numbers business in the Philadelphia area. The Merlino-DelGiorno business was managed by Scafidi and received approximately $ 3000 to $ 5000 in bets each week, until it closed operations in February, 1986. Id. at 96-98. A third numbers business was operated by appellant Joseph Pungitore in partnership with Michael Madgin from December, 1985 until early 1987. Pungitore financed the business and supervised collections from the numbers writers. Pungitore's business regularly employed more than five workers and brought in approximately $ 14,000 in bets each week. The illegal sports betting business was conducted by appellants Scarfo, Salvatore Merlino and Joseph Pungitore and codefendant Leonetti in Philadelphia from 1983 until late 1986. In 1983, Pungitore, DelGiorno and Salvatore Testa each invested $ 25,000 as partners in the business. After Salvatore Testa was murdered on September 14, 1984, Scarfo and Salvatore Merlino assumed his one-third [**19] interest in the business and split one third of the business's profits. When Philip Leonetti replaced Merlino as underboss in February, 1986, he took over Merlino's ownership interest. Joseph Pungitore managed the business's daily operations and, after DelGiorno became a cooperating government witness, controlled [*1102] the business's $ 300,000 bank roll. Tr. 10/12/88 at 24. The sports betting operation appears to have been a highly successful endeavor, which provided year-round profits from football, baseball and basketball bets. Tr. 10/12/88 at 16-20. It involved 30 to 40 bookies turning their work into five offices, received more than $ 2000 in bets on every day of its operation, and on a typical Sunday received $ 175,000 to $ 200,000 in bets. Id. Tr. 10/21/88 at 25-35. C. THE SHAKEDOWN OPERATION In early 1982, Scarfo approved a scheme to extort money from drug dealers and bookmakers. Tr. 10/12/88 at 36-37, 47-48. Ciancaglini told DelGiorno that he and Pat Spirito, with Scarfo's permission, had formed a crew, made up of Charles Iannece, Nicholas Caramandi, and Ralph Staino, to extort or "shake down" bookmakers, and suggested that DelGiorno form a similar crew. Tr. [**20] 10/12/88 at 47-48. Ciancaglini was in charge of the crew and Spirito, a made member, was responsible for directly supervising its activities. The crew received half of the proceeds from the shakedowns, and the remainder was equally divided among Scarfo, Ciancaglini, Salvatore Merlino, Philip Leonetti, Lawrence Merlino and Frank Monte. Id. at 49. After Frank Monte was killed in 1982, Salvatore Testa received his share of the shakedown proceeds, until he too was killed on September 14, 1984. Id. at 66. Victims of the shakedowns were told that they would be killed if they failed to pay the "street tax." Id. at 37. Eventually, additional crews were formed and the coconspirators extended their shakedown operations to include drug dealers. Although bookmakers paid regular sums every week, receipts from drug dealers, called "extras," were more sporadic, because "drug dealers don't work every week." Id. at 70-71. In an average month, the shakedown proceeds ranged from $ 24,000 to $ 40,000. It is not clear from the record whether this sum included the "extras" from drug dealers. Id. at 71-72, 77. The coconspirators were careful not to shake down individuals associated [**21] with LCN. To that end, Scarfo, Leonetti, Salvatore Merlino, and DelGiorno provided the crews with names of individuals to target. n13 From the beginning of the scheme until about February, 1986, Caramandi delivered a weekly tally sheet recording the shakedown collections and the leadership's fifty percent share to various designated coconspirators to give to Scarfo. Tr. 10/12/88 at 69-70; 10/21/88 at 21-26; 10/28/88 at 13-15. Thereafter, the tally sheets were delivered by assorted coconspirators, including DelGiorno, Iannarella, Scafidi, and Joseph Grande, to either Scarfo or Leonetti. Tr. 10/12/88 at 69-70. In general, the shakedown operation appears to have been a highly structured and profitable endeavor. As the district court observed, "Literally hundreds of shakedown victims paid a street tax that provided a steady and lucrative stream of revenue for the mob." United States v. Scarfo, 711 F. Supp. at 1339. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 DelGiorno testified as follows:
Tr. 10/12/88 at 72. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**22] III. DISCUSSION A. CONSTITUTIONALITY OF THE RICO STATUTE Scarfo and Staino contend that the RICO statute is unconstitutionally vague because the pattern of racketeering requirement is not defined with sufficient clarity to place defendants on notice as to [*1103] what conduct falls within its parameters. n14 Appellants rely heavily on Justice Scalia's concurrence in H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989), which hinted that the RICO statute might be vulnerable to a vagueness attack because the pattern of racketeering requirement is not susceptible of precise definition. Id. at 2909. Regardless of whether in other circumstances the uncertain reach of the RICO statute might raise problems of constitutional dimension, we find that the statute is perfectly clear as applied to appellants' conduct and therefore reject their vagueness challenge. n15 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 The appellants have invoked Fed. R. App. P. 28(i) to incorporate in part each others' arguments so when we indicate that a particular appellant has made an argument we do not imply that the others have not done so. [**23] n15 The government believes that appellants' constitutional attack is controlled by Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S. Ct. 916, 924-25, 103 L. Ed. 2d 34 (1989), in which the Supreme Court held that the Indiana RICO statute was not unconstitutionally vague as applied to obscenity predicate offenses. The Court pointed out that because the "RICO statute totally encompasses the obscenity law, if the latter is not unconstitutionally vague, the former cannot be either." Id. at 925. The government asserts that in view of Fort Wayne Books, a court confronted with a vagueness challenge to the federal RICO statute should look to whether the charged predicate acts are unconstitutionally vague. If they are not, then the vagueness challenge must fail. According to the government, appellants' vagueness argument can be easily rejected because no reasonable argument could be made that the predicate acts charged in this case -- murder, gambling, and extortion -- are unconstitutionally vague. While we do not disagree with the government's interpretation of Fort Wayne Books, we believe that the appellants' primary contention is that the relationship plus continuity test for a pattern of racketeering under RICO is unconstitutionally vague. This question does not hinge on the constitutionality of the charged predicate offenses. Thus, H.J. Inc. is more pertinent than Fort Wayne Books to our discussion. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**24] In H.J., Inc., a class of telephone customers sued Northwestern Bell under RICO's civil liability provisions, 18 U.S.C. §§ 1964(a) and (c), alleging that the defendant company had engaged in a scheme to bribe members of a state public utility commission to obtain favorable rate rulings. The Court of Appeals for the Eighth Circuit affirmed the district court's dismissal of the complaint under Fed. R. Civ. P. 12(b)(6) on the ground that the plaintiffs' allegation of a single unlawful scheme did not satisfy RICO's pattern requirement, which it held requires proof of multiple schemes. 829 F.2d 648, 650 (8th Cir. 1987), aff'g. 648 F. Supp. 419 (D. Minn. 1986). The Supreme Court reversed, holding that a RICO pattern may be predicated upon a single criminal scheme as long as sufficient indicia of continuity are present. 109 S. Ct. at 2902. The Court explained that RICO's legislative history indicates that a pattern of racketeering must be based upon related predicates which "amount to or pose a threat of continued criminal activity." H.J., Inc., 109 S. Ct. at 2900 (citing Sedima., S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985)). [**25] However, while the Court conceded the difficulties inherent in formulating a precise standard for the continuity requirement, it rejected the defendant's contention that the requirement can be satisfied only through proof of multiple criminal schemes. Id. at 2901. According to the Court, evidence of multiple schemes is highly probative of the continuous nature of the defendant's criminal conduct but is not a necessary element of a RICO pattern. Under H.J., Inc., a pattern also may be established through proof that predicate acts forming a single criminal scheme were "a regular way of conducting defendant's ongoing legitimate business," such that absent intervention, they were likely to extend into the future, or through proof that a series of related predicates in fact extended over a "substantial period of time." Id. at 2902. As the Court suggested, in view of the variety of ways that continuity may be established, defining a RICO pattern necessarily is a highly fact specific task. Justice Scalia, in his concurrence, felt that the Court's "murky discussion" failed to provide sufficient guidance as to the outer boundaries of a RICO pattern. Id. at [*1104] 2908 [**26] (Scalia, J., concurring). In particular, as pertinent to this appeal, he wrote:
Id. at 2909. Predictably, appellants seize upon this language in arguing that the RICO pattern requirement is so vague as to offend due process. A statute is unconstitutionally vague when it "either forbids or requires the doing of an act in terms so vague that men of ordinary intelligence must necessarily guess as to its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322 (1926). See also Rode v. Dellarciprete, 845 F.2d 1195, 1199 (3d Cir. 1988); Aiello v. City of Wilmington, 623 F.2d 845, 850 (3d Cir. 1980). However, outside the First Amendment context, a party has standing to raise a vagueness challenge only insofar as the statute is vague as applied to [**27] his or her specific conduct. New York v. Ferber, 458 U.S. 747, 767-69, 102 S. Ct. 3348, 3360-61, 73 L. Ed. 2d 1113 (1982); Rode, 845 F.2d at 1200. n16 As stated in Ferber, this standing requirement "reflects two cardinal principles of our constitutional order: the personal nature of constitutional rights, . . . and prudential limitations on constitutional adjudication." 458 U.S. at 767, 102 S. Ct. at 3360. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 Facial challenges to statutes which implicate First Amendment interests have been permitted because, in such cases, the very existence of an overly broad or vague statute could have a chilling effect on protected expression. Ferber, 458 U.S. at 769-70, 102 S. Ct. at 3361. However, even in the First Amendment context, facial invalidation of a federal statute is "'strong medicine'" which should be employed "'only as a last resort.'" Id. (citation omitted). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In light of Ferber, our inquiry must focus on whether persons of ordinary [**28] intelligence would know that the repeated commission of murder, extortion, illegal gambling, and usury offenses in furtherance of an organized crime enterprise constitute a pattern of racketeering under RICO. If so, then we need not further consider whether the pattern requirement is unconstitutionally vague as applied to the hypothetical conduct of third parties not before us, as appellants lack standing to assert the rights of those third parties. As applied to the appellants' criminal activities, the "relationship plus continuity" test for a pattern is readily satisfied. The criminal conduct involved here was not isolated but extended over a substantial time, and the predicate acts cannot fairly be characterized as unrelated as they were committed pursuant to the orders of key members of the enterprise in furtherance of its affairs. Indeed, the independent existence of the enterprise connotes continuity and relatedness because the evidence showed overwhelmingly that the criminal agenda of the enterprise extended beyond the commission of any individual predicate acts: one joined LCN not to commit any one set of crimes but in fact to commit any crime that the boss wanted done. [**29] See United States v. Indelicato, 865 F.2d 1370, 1384 (2d Cir.) (en banc), cert. denied, 493 U.S. 811, 110 S. Ct. 56, 107 L. Ed. 2d 24 (1989) ("If the racketeering acts were performed at the behest of an organized crime group, that fact would tend to belie any notion that the racketeering acts were sporadic or isolated."). In sum, appellants' argument that they lacked notice that their conduct constituted a "pattern" under RICO is utterly devoid of merit, as they have engaged in a classic pattern of racketeering under RICO. The result reached here is consistent with United States v. Angiulo, 897 F.2d 1169 (1st Cir. 1990), which held that, however vague the statute may be as applied to legitimate businesses, its application to the criminal activities of organized crime families is so clear as to be beyond peradventure. Id. at 1180 ("A person of ordinary intelligence could not help but realize that illegal activities of an organized crime family fall within the ambit of RICO's pattern [*1105] of racketeering activity."). See also Freeman, Jr. and McSlarrow, RICO and the Due Process "Void for Vagueness" [**30] Test, 45 Bus. Law. 1003, 1009 (1990) (suggesting that the vagueness problem identified in H.J. Inc. may be more pronounced in civil RICO cases than in criminal prosecutions because private plaintiffs are not politically accountable for their exercise of prosecutorial discretion). We think it is clear that the potential due process problems noted by Justice Scalia in H.J., Inc. are not present in organized crime cases. Unlike in H.J., Inc., which involved allegations of corruption within the ranks of a legitimate business, the application of RICO to the activities of the Scarfo crime family could not have come as a surprise to the members of the family. In fact, we have doubts that a successful vagueness challenge to RICO ever could be raised by defendants in an organized crime case. Certainly appellants' attempt to do so has been singularly unpersuasive. B. SUCCESSIVE PROSECUTIONS 1. Dual Sovereignty: Successive Prosecutions for the Falcone and Testa Murders Prior to the trial in this case, Scarfo was tried and acquitted in a New Jersey state court for the murder of Vincent Falcone. Likewise, Scarfo, Scafidi, Salvatore Merlino, Joseph Pungitore, [**31] Francis Iannarella Jr., Salvatore Wayne Grande, Charles Iannece and Joseph Grande were jointly tried and acquitted in Pennsylvania in the Court of Common Pleas for the murder of Salvatore Testa. The Falcone murder was charged as racketeering act 3 and the Testa murder was charged as racketeering act 12 in the RICO indictment. Appellant Iannarella brought an unsuccessful pretrial motion, joined in by several other appellants, to have both racketeering acts struck from the indictment on double jeopardy grounds. Jt. App. at 528. On appeal, Scafidi and Scarfo revisit this issue, arguing that, in view of their acquittals in state court, double jeopardy principles precluded the government from charging the Falcone and Testa murders as predicate offenses. Brief for Scafidi at 9-14; Brief for Scarfo at 17-22. This argument is contrary to a long line of Supreme Court cases which have held that a federal prosecution arising out of the same facts which had been the basis of a state prosecution is not barred by the double jeopardy clause. 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, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959); [**32] United States v. Lanza, 260 U.S. 377, 43 S. Ct. 141, 67 L. Ed. 314 (1922). See also Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959) (due process clause does not prohibit a state from prosecuting a defendant for the same act for which he was acquitted in federal court). The "dual sovereignty" doctrine rests on the premise that, where both sovereigns legitimately claim a strong interest in penalizing the same behavior, they have concurrent jurisdiction to vindicate those interests and neither need yield to the other. n17 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 The Court explained in Lanza:
260 U.S. at 382, 43 S. Ct. at 142. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**33] The dual sovereignty doctrine has been interpreted by this court and others to mean that an acquittal in state court does not preclude the government from charging the offense subject to the acquittal as a predicate act in a subsequent RICO prosecution. United States v. Licavoli, 725 F.2d 1040, 1047 (6th Cir.), cert. denied, 467 U.S. 1252, 104 S. Ct. 3535, 82 L. Ed. 2d 840 (1984); United States v. Russotti, 717 F.2d 27 (2d Cir. 1983), cert. denied, 465 U.S. 1022, 104 S. Ct. 1273, 79 L. Ed. 2d 678 (1984); United States v. Frumento, 563 F.2d 1083 [*1106] (3d Cir. 1977), cert. denied, 434 U.S. 1072, 98 S. Ct. 1256, 55 L. Ed. 2d 775 (1978). In Frumento, which involved successive prosecutions for bribery and racketeering, we observed that the federal interest in prosecuting a RICO offense is significantly different than the state interest in prosecuting the predicate offenses:
Frumento, 563 F.2d at 1088. In view of the lack of congruity between the federal and state interests in the defendants' activities, we held that the double jeopardy clause was no bar to the RICO prosecution, as the case fell squarely within the dual sovereignty doctrine. Id. n18 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n18 In Frumento, we recognized that the defendants' argument might better be construed as a collateral estoppel claim, as their "contentions depended upon their acquittal rather than their conviction in state court." Id. at 1088 n. 11. Likewise, the appellants here implicitly have raised a collateral estoppel argument without expressly urging us to apply the doctrine. However, even if appellants had been less equivocal about this point, we would hold that collateral estoppel does not apply to successive prosecutions by different sovereigns. United States v. Brown, 604 F.2d 557, 559 (8th Cir. 1979); Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir. 1977), cert. denied, 434 U.S. 1033, 98 S. Ct. 765, 54 L. Ed. 2d 780 (1978); United States v. Fernandez, 497 F.2d 730, 747 n. 10 (9th Cir. 1974) (Hufstedler, J., concurring) (although the collateral estoppel doctrine "broadened the impact of the double jeopardy clause, it only affected relitigation of an issue between 'the same parties.'") (quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469 (1970)), cert. denied, 420 U.S. 990, 95 S. Ct. 1423, 43 L. Ed. 2d 670 (1975). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**35] Frumento, of course, is controlling precedent in this Circuit and, absent in banc review, we are constrained to follow it. n19 See Internal Operating Procedures, Chapter 9.1 (1990). Appellants, however, insist that this case warrants an exception to the Frumento rule because here, the degree of federal and state cooperation in the two prosecutions was so extensive as to cast doubt on the premise that they in fact were brought by separate sovereigns acting independently. Relying on Russotti, 717 F.2d at 31, and 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), they argue that the dual sovereignty doctrine is not unqualified but is subject to an exception where the federal authorities are so intimately involved in the state prosecution that it would be fundamentally unfair to allow them to bring a separate prosecution. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 In United States v. Grimes, 641 F.2d 96, 100-04 (3d Cir. 1981), we questioned the wisdom of the dual sovereignty doctrine because it has been "rigidly applied" and we thought that the continued viability of its jurisprudential basis was somewhat unclear. However, we nevertheless applied the doctrine, as we recognized that the proper forum for its reconsideration is the Supreme Court, which has given no indication that it intends to abandon its precedents. Id. at 104. Thus, Grimes in no way limited our holding in Frumento. Joseph Pungitore has argued that the Court's recent decision in Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), suggests that it may be prepared to reexamine and reject the dual sovereignty doctrine. Thus, he urges us to anticipate this change in the law and consider the double jeopardy implications of the successive murder-racketeering prosecutions, notwithstanding the involvement of different prosecuting sovereigns. We do not detect any such message in Grady and in any event, we must adhere to existing law until the Supreme Court sees fit to change it. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**36] Even if we were to follow Russotti and Aleman in this regard, we would have no basis for applying the exception in this case. n20 Apparently, there was a considerable [*1107] amount of federal-state cooperation in the scheduling of the D'Alfonso murder and federal racketeering trials, but appellants have not pointed to anything in the record to substantiate their claim that federal authorities had any involvement in the Falcone and Testa murder trials. Accordingly, we conclude that appellants' previous acquittals for the Falcone and Testa murders do not provide us with reason to disturb their RICO convictions on double jeopardy grounds. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n20 We are not to be understood as suggesting that there should be a qualification on the dual sovereignty doctrine when the federal prosecutors are intimately involved in the state proceeding. In practice a bright line test based on the identity of the prosecuting sovereigns may be required, as a more flexible test considering the degree of federal-state cooperation may not be workable. Furthermore, regardless of the degree of cooperation between the prosecutors, the fact remains that the separate prosecutions vindicate the authority of different governments. Here, however, there is no factual predicate for applying an exception to the dual sovereignty doctrine on the basis of federal-state cooperation. Thus, we have no reason to make a definitive determination of whether there is any qualification on the doctrine. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**37] 2. Successive Federal Prosecutions of the Rouse Extortion Scarfo has been the defendant in numerous federal prosecutions. Before the indictment issued in this case, we affirmed his conviction under 18 U.S.C. §§ 2 and 1951 for conspiring to extort and extorting $ 1 million from a real estate developer, Rouse & Associates, in exchange for the cooperation of Councilman Leland Beloff in securing the passage of a zoning ordinance needed for Rouse's completion of a redevelopment project on the Philadelphia waterfront. United States v. Scarfo, 850 F.2d 1015 (3d Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 263, 102 L. Ed. 2d 251 (1988). However, in a separate trial, he was acquitted of charges that he conducted a continuous criminal enterprise (CCE), in violation of 21 U.S.C. § 848. United States v. Scarfo, E.D. Pa., No. 87-258. He asserts that this RICO prosecution infringed his rights under the double jeopardy clause because the Rouse extortion offense forming the basis for his earlier conviction was charged as a predicate offense in the instant indictment. n21 He also suggests that his due process [**38] rights were violated by the successive prosecutions of the Rouse extortion and the CCE and RICO offenses in federal court, and the Testa and Falcone murders in state court because the government had knowledge of all of the offenses at the time of the first indictment and could have charged all of them at that time. According to Scarfo, the government purposefully brought successive prosecutions in order to embarrass and harass him and exhaust his economic resources to defend himself. Scarfo's Reply Brief at 10. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n21 The government states that the successive CCE and RICO prosecutions have no double jeopardy implications because none of the predicates supporting the CCE indictment were included as predicate acts in this RICO prosecution. Although Scarfo has not challenged this assertion, we have independently examined the CCE indictment and are satisfied that the successive CCE and RICO prosecutions did not violate the double jeopardy clause. We note that the government's representation was not entirely accurate, as the attempted murder of Steven Vento, charged here against Scarfo as racketeering act 14, was listed in the CCE indictment as an overt act supporting a conspiracy charge under 18 U.S.C. § 846, which in turn was incorporated by reference in a separate count alleging the CCE offense. Assuming that evidence concerning Vento's attempted murder in fact was introduced at the CCE trial, we do not think that this slight overlap between the proof offered to established the RICO and CCE and section 846 conspiracy offenses subjected Scarfo to double jeopardy. In the CCE case, it is clear from the indictment that any such evidence would have been offered to demonstrate the manner in which various groups allegedly engaged in drug trafficking interacted with each other whereas in this case, it was offered to prove how the affairs of the RICO enterprise were conducted. As explained in Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 2093, 109 L. Ed. 2d 548 (1990), the double jeopardy clause does not preclude the government from relying on the same evidence to prove successively charged offenses. It only operates as a bar to proof of the same conduct and then, only in certain circumstances. Id. See infra typescript at 38-41. Finally, we observe that appellants Salvatore Merlino, Francis Iannarella, Charles Iannece and Ralph Staino also were indicted in the CCE case. However, they do not raise specific arguments on this point but instead, have adopted Scarfo's arguments. Assuming that these appellants were separately prosecuted for the offenses charged in the CCE indictment, based on our comparison of the indictments, we conclude that the double jeopardy claim is no more compelling as applied to their cases. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**39] This argument with respect to double jeopardy on the facts cannot possibly be accepted. The Rouse extortion was only one of the 32 predicate acts which the jury found that Scarfo had committed. Thus, even if we deleted the Rouse act, we would affirm the convictions. See United States [*1108] v. Riccobene, 709 F.2d 214, 228 (3d Cir.), cert. denied, 464 U.S. 849, 104 S. Ct. 157, 78 L. Ed. 2d 145 (1983). In any event, Scarfo's arguments on this point are controlled by binding precedent in this Circuit. In United States v. Grayson, 795 F.2d 278 (3d Cir. 1986), cert. denied, 479 U.S. 1054, 107 S. Ct. 927, 93 L. Ed. 2d 978 (1987), we held that prosecution for a RICO offense after an earlier conviction in federal court for a predicate offense is permissible under the double jeopardy clause. We began our analysis in Grayson with the observation that RICO's language and legislative history clearly evince Congress's intent to allow separate prosecutions and cumulative punishment of predicate offenses and RICO offenses. Id. at 283. n22 In view of that observation, we went on to consider whether [**40] such separate prosecutions are constitutional under the double jeopardy clause. We decided that a RICO offense "is not, in a literal sense, the 'same' offense as one of the predicate offenses," as a RICO violation requires proof of a "pattern of racketeering" and is intended to deter continuous criminal conduct. Id. In contrast, the predicate offenses are intended to deter discrete criminal acts, in Grayson, individual narcotics violations. Accordingly, we held that the double jeopardy clause does not bar a subsequent RICO prosecution which is based, in part, on predicate offenses for which the defendant already has been prosecuted. Accord United States v. Schell, 775 F.2d 559, 568 (4th Cir. 1985), cert. denied, 475 U.S. 1098, 106 S. Ct. 1498, 89 L. Ed. 2d 898 (1986); n23 United States v. Licavoli, 725 F.2d at 1049-50. In view of Grayson, the inclusion of the Rouse extortion as a predicate offense in the RICO charges was consistent with the double jeopardy clause, notwithstanding Scarfo's previous conviction for that extortion. n24 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n22 In Grayson, the defendant had two prior convictions for federal offenses, one for conspiracy to manufacture methamphetamine and the other for conspiracy to manufacture phencyclidine, both of which were listed as predicate acts in separate counts charging RICO and CCE offenses. 795 F.2d at 282. [**41] n23 In Schell, which involved successive prosecutions for a narcotics conspiracy and a RICO conspiracy, the court reasoned that the defendant had not been subjected to double jeopardy because the two conspiracies had different objectives and different elements. Whereas to prove the RICO conspiracy, the government had to show "the existence of an enterprise and an overt act," to prove the predicate conspiracy, "all that needed to be proved was an agreement between [the defendant] and another to commit a narcotics offense." 775 F.2d at 568. n24 Grayson also controls Joseph Pungitore's claim that his consecutive sentences under Counts I and 5 for RICO conspiracy and for conspiring to distribute methamphetamine subjected him to double jeopardy. See Brief for J. Pungitore at 44. Pungitore correctly asserts that cumulative sentences may be treated differently under the double jeopardy clause than successive prosecutions. Ohio v. Johnson, 467 U.S. 493, 500, 104 S. Ct. 2536, 2541, 81 L. Ed. 2d 425 (1984). However, in addition to upholding the constitutionality of successive prosecutions for RICO offenses and underlying predicate offenses, Grayson decided that a RICO sentence may run consecutively to an existing sentence for a charged predicate offense. Grayson, 795 F.2d at 286 ("Congress intended to permit the imposition of cumulative sentences for both RICO offenses and the underlying predicate offenses"). Pungitore argues that Grayson does not apply because that case involved consecutive sentences for a substantive RICO offense and a predicate conspiracy whereas here, he has challenged his consecutive sentences for a RICO conspiracy offense and a separately charged predicate conspiracy. We see no principled way to distinguish this case from Grayson. The legislative intent to permit cumulative punishment for RICO and for underlying predicate acts was not confined to offenses under section 1962 (c). Indeed, other courts have approved consecutive sentences for RICO conspiracies and predicate conspiracies for reasons similar to those asserted in Grayson. United States v. Kragness, 830 F.2d 842, 863-64 (8th Cir. 1987); United States v. Mitchell, 777 F.2d 248, 264 (5th Cir. 1985), cert. denied, 476 U.S. 1184, 106 S. Ct. 2921, 91 L. Ed. 2d 549 (1986). In a similar vein, various appellants argue vigorously that the settled principle of Wharton's Rule is violated when the predicate offense to a RICO conspiracy charge is itself a conspiracy, rendering it inappropriate for the sentences to be cumulated. This argument also is foreclosed by Grayson because the predicate offense there was a conspiracy. We acknowledge that Grayson did not discuss the Wharton's Rule issue, but its failure to do so does not diminish its precedential effect in this Circuit. See Iannelli v. United States, 420 U.S. 770, 782, 95 S. Ct. 1284, 1292, 43 L. Ed. 2d 616 (1975) (Wharton's Rule limited by statutory intent.) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**42] [*1109] Scarfo has urged us to reconsider the double jeopardy implications of successive prosecutions for predicate offenses and RICO offenses in light of the Supreme Court's recent decision in Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), which, in his view, implicitly overruled Grayson. n25 We believe that Scarfo reads Grady too broadly, as the reasoning in that decision logically extends only to offenses arising from a single discrete event. We do not think that the Supreme Court meant to imply that the double jeopardy clause forecloses successive prosecutions in cases of compound-complex felonies such as RICO, which involve several criminal acts occurring at different times in different places. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n25 Grady v. Corbin was decided May 29, 1990, after oral argument in this case. We invited the parties to submit to us supplemental memoranda indicating what impact, if any, Grady might have on the issues raised in this appeal. Our discussion herein is informed by the memoranda we received in response to our invitation. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**43] In Grady, the government sought to prosecute the defendant on homicide and assault charges stemming from a fatal automobile collision, after he had pleaded guilty to two misdemeanor traffic offenses arising from the same incident, driving while intoxicated and failing to keep to the right of the median. At the time the guilty pleas were received, the court was not informed that the collision had resulted in a fatality. 110 S. Ct. at 2088. A few weeks later, the court imposed minimum sentences for the offenses pursuant to the recommendation of an assistant district attorney who was unaware that another member of the District Attorney's Office was gathering evidence for the homicide prosecution. Id. at 2089. After the defendant was indicted on the homicide and assault charges, the prosecution filed a bill of particulars which identified three reckless or negligent acts upon which it would rely in proving its case: 1) operating a motor vehicle while intoxicated; 2) failing to keep to the right of the median; and 3) driving at a speed too fast for the weather and road conditions. Id. The Supreme Court held that the double jeopardy clause barred the homicide [**44] and assault prosecution to the extent that the state, to establish essential elements of the offenses charged in the prosecution, would endeavor to prove conduct for which the defendant already had been prosecuted. Id. at 2093. n26 The Court acknowledged that under the test of Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932), the misdemeanor traffic offenses were not the "same offense" as homicide or assault, as each required proof of facts which the others did not. 110 S. Ct. at 2092-93. However, it decided that, in cases of multiple prosecutions, the double jeopardy clause requires more than a technical comparison of the statutory elements of the successively charged offenses. Id. Thus, under Grady, even if the offense charged in the second [*1110] prosecution survives the Blockburger test, the prosecution will be barred if the state intends to prove beyond a reasonable doubt the same conduct forming the basis of the earlier conviction. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n26 Justice Scalia, in dissent, predicted that the "practical effect" of the holding in Grady would amount "to a requirement that where the charges arise from a 'single criminal occurrence, episode, or transaction,' they 'must be tried in a single proceeding.'" 110 S. Ct. at 2102 (Scalia, J., dissenting) (quoting Brown v. Ohio, 432 U.S. 161, 170, 97 S. Ct. 2221, 2228, 53 L. Ed. 2d 187 (Brennan, J., concurring)). However, the majority viewed its holding as much narrower. Justice Brennan, writing for the majority, expressly stated that Grady should not be construed as adopting the "same transaction" test for double jeopardy claims he had urged the Court to embrace in Brown v. Ohio and other cases. 110 S. Ct. at 2094 & n. 15. In fact, Justice Brennan opined that even on the facts of Grady, the state would be free to institute a homicide prosecution as long as it confined its proof of the defendant's reckless or negligent conduct to his driving at a speed too fast for weather conditions, the third theory of prosecution identified in the government's bill of particulars. Id. We find it significant that the Grady majority so carefully confined its holding so as not to preclude the government from basing later prosecutions on the 'same criminal transaction' upon which the defendant's earlier conviction rests. While this, in itself, does not definitively rule out the possible application of Grady in the present circumstances, it does mean that by its own terms, Grady would not absolutely bar the government from instituting a RICO prosecution even if it relied solely on a series of criminal transactions which had been the focus of previous trials involving the defendant. This, to us, suggests that Grady did not transform double jeopardy jurisprudence to the extent that Scarfo thinks it did. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**45] We realize that the language employed by the Supreme Court in its formulation of the "same conduct" test could be interpreted as extending double jeopardy protection to all situations where the government intends again to prove conduct constituting an offense subject to an earlier conviction. But we would not be justified in reading Grady so expansively. The Court in Grady relied substantially on Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980) n27 and Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), n28 the holdings of which implicitly were confined to situations involving discrete criminal events. Indeed, in Brown, the Court indicated that its holding, that a prior conviction for a lesser included offense bars a subsequent prosecution for the greater offense, was required by the insular natures of the offenses charged in the two prosecutions, joyriding and auto theft: "The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units." Id. at 169, 97 S. Ct. at 2227 [**46] (emphasis added). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n27 The situation in Illinois v. Vitale was practically identical to that in Grady, as the state instituted a prosecution for involuntary manslaughter following the defendant's conviction of a traffic offense involving the same automobile collision. Unlike in Grady, the state did not concede that in the manslaughter prosecution, it intended to rely on "all of the ingredients necessarily included in the traffic offense." Id. at 419, 100 S. Ct. at 2266-67. Accordingly, the Court found no double jeopardy problem. Grady began where Vitale left off, as the concession missing in Vitale was found to be sufficient to sustain the defendant's double jeopardy claim in Grady. n28 Brown v. Ohio concerned successive prosecutions for joyriding and auto theft arising from a single incident in which the defendant operated an automobile without the owner's permission. The Court held that the double jeopardy clause prohibits prosecution for a greater offense after the defendant has been convicted of a lesser included offense. Id. at 168, 97 S. Ct. at 2227. As under the applicable state law, joyriding was a lesser included offense of auto theft, the Court decided that the auto theft prosecution would subject the defendant to double jeopardy. See also Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977) (conviction of a greater offense bars subsequent trial for a lesser included offense). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**47] The double jeopardy analysis in Brown and Grady, its most recent progeny, cannot easily be transposed to the RICO context because by definition, a "pattern of racketeering" under RICO is made up of "a series of temporal or spatial units." Instead, we consider the double jeopardy problem posed by the successive prosecutions here to be more closely analogous to that in Garrett v. United States, 471 U.S. 773, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985), which rejected a double jeopardy claim based on the government's use of a drug offense for which a conviction had been obtained as a predicate offense in a later prosecution for engaging in a continuous criminal enterprise (CCE), in violation of 18 U.S.C. § 848. The Court in Garrett assumed without deciding that under the Blockburger test, a predicate narcotics offense is a lesser included offense of a CCE offense, id. at 790, 105 S. Ct. at 2417, but nevertheless rejected the defendant's attempt to invoke the rule in Brown v. Ohio as bar to the CCE prosecution. The Court stated:
Id. at 787, 105 S. Ct. at 2416 (emphasis added). After reviewing the defendant's drug trafficking activities, which spanned 5 1/2 years and several states, the Court concluded that the "significant differences" between the facts before it and those in Brown
Id. at 789, 105 S. Ct. at 2416. The Court also considered that the defendant's CCE offense continued past the time he was indicted for the predicate offense, and was unwilling to "force the Government's hand" by compelling it either to withhold prosecution for the predicate offense until it was prepared to seek an indictment for the CCE offense, or to limit the scope of the CCE prosecution by bringing it at the time of the indictment for the predicate offense. Id. at 790, 105 S. Ct. at 2417. We conclude that Grady, which finds its roots in "single transaction" cases such as Brown, is no more applicable in the instant circumstances than Brown was in Garrett. n29 It is true that to the extent of the Rouse extortion, the government proved the "same conduct" needed to sustain the guilty verdict in the Rouse extortion trial. However, as was the case with the CCE offense in Garrett, Scarfo's RICO offense was far more extensive than the Rouse extortion. Moreover, Scarfo's racketeering activities continued after his indictment on January 5, 1987, for the Rouse extortion. The evidence [**50] showed that the RICO conspiracy extended to October, 1987 and that at least one of the predicate offenses supporting Scarfo's RICO convictions, his participation in the illegal sports bookmaking business, continued through April, 1987. As the Supreme Court observed in Garrett, "one who insists that the music stop and the piper be paid at a particular point must at least have stopped dancing himself before he may seek such an accounting." 471 U.S. at 790, 105 S. Ct. at 2417. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n29 We dismiss out of hand the possibility that Grady overruled Garrett. If the Supreme Court on such grossly dissimilar facts intended to abandon Garrett, we think it would have said so. Instead, both the majority and the dissent in Grady cited Garrett without ever hinting that Garrett no longer was good law. 110 S. Ct. at 2091, 2102. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Thus, we reject Scarfo's double jeopardy argument on the basis of Grayson, in which we decided that successive prosecutions of RICO and its underlying [**51] predicates are constitutionally permissible, and Garrett, which distinguished single course of conduct crimes, like those in Brown and Grady, from compound-complex crimes, like those at issue here. However significant Grady v. Corbin may prove to be in cases of simple felonies, we are confident that it has nothing whatsoever to do with the compound-complex crimes at issue here. Scarfo's argument that his successive prosecutions violated due process also lacks merit. n30 We acknowledge that successive prosecutions may work hardship on the defendant. Also, from the standpoint of judicial economy, it is preferable for the government to consolidate all charges in a single indictment. However, we are not prepared to say that it was a violation of Scarfo's due process rights for the government to charge the offenses in the manner it did. We could not possibly hold that the inclusion of the Falcone and Testa murders as predicate racketeering acts was overreaching on the part of the government, as the earlier murder prosecutions occurred in state court, beyond the control of the United States Attorneys involved in this case. As for the successive federal prosecutions, Scarfo's [**52] argument, which might best be characterized as an allegation of prosecutorial [*1112] vindictiveness, presupposes that the government had available to it all of the evidence adduced in this case at the time of the Rouse and CCE trials and that it would have been practical to try the offenses together. Although at least two of the government witnesses in this case, DelGiorno and Caramandi also testified at the Rouse trial, Scarfo, 850 F.2d at 1017, we have no way of knowing whether other evidence used to convict Scarfo and his coconspirators was known to the government at the time of the earlier trials. Furthermore, as the government pointed out at oral argument, the CCE trial itself was a large trial which involved 27 defendants. Tr. of Oral Argument at 149. Had the government attempted to prosecute the RICO and CCE offenses together, the cases may have been completely unmanageable. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n30 We observe that Scarfo's 'due process' argument also might pertain to Iannece's appeal, as Iannece was found by the jury to have committed the predicate act of the Rouse extortion. But while he was indicted for the extortion, it appears that he was not separately tried for it and, in any event, he does not make a specific argument on this point similar to Scarfo's. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**53] As other courts have pointed out, "prosecutors have traditionally enjoyed discretion in deciding which of multiple charges against a defendant are to be prosecuted or whether they are all to be prosecuted at the same time." United States v. Cardall, 885 F.2d 656, 666 (10th Cir. 1989). See also United States v. Becker, 892 F.2d 265, 269 (3d Cir. 1989) (successive prosecutions of two separate drug conspiracies did not constitute harassment); United States v. Partyka, 561 F.2d 118, 124 (8th Cir. 1977), cert. denied, 434 U.S. 1037, 98 S. Ct. 773, 54 L. Ed. 2d 785 (1978). This is not to say that multiple prosecutions may never result in a denial of due process. See Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) (vindictive prosecution brought in retaliation to defendant's invocation of procedural rights violates due process). However, to raise successfully a due process claim, the defendant must affirmatively establish vindictiveness, as the fact of multiple prosecutions, standing alone, does not prove an abuse of prosecutorial discretion. Considering that Scarfo has pointed [**54] to no evidence of prosecutorial abuse but relies solely on the fact of multiple prosecutions and that, barring double jeopardy problems, a single trial is not a "'constitutional imperative,'" Cardall, 885 F.2d at 666 (citation omitted), we reject Scarfo's final challenge to his successive prosecutions. 3. Successive RICO Prosecutions of Joseph Ciancaglini Ciancaglini filed a pretrial motion to dismiss the RICO charges against him on double jeopardy grounds, citing his earlier conviction for a RICO conspiracy involving the same enterprise. United States v. Riccobene, 709 F.2d 214 (3d Cir.), cert. denied, 464 U.S. 849, 104 S. Ct. 157, 78 L. Ed. 2d 145 (1983). We rejected his double jeopardy claim in an earlier appeal, reasoning that the successive RICO charges did not involve the same offense for double jeopardy purposes because they alleged different patterns of racketeering activity occurring over different time periods. United States v. Ciancaglini, 858 F.2d 923, 930 (3d Cir. 1988). Ciancaglini now urges us to reconsider our decision in light of the record developed at trial. Specifically, he contends [**55] that the government relied on identical evidence in both trials and that it expressly conceded the existence of a single RICO conspiracy, thus shifting its ground from pretrial, where it alleged that it intended to prove the same enterprise but successive conspiracies. Brief for Ciancaglini at 14. In support of these contentions, he points to two intercepted conversations, one dated April 20, 1976, and the other, November 4, 1977, which were introduced at both trials and which the government claimed were necessary to prove the existence of the enterprise. n31 Brief for Ciancaglini at 15-16. In the course of his response to Ciancaglini's objection on relevancy grounds to the admission of the tapes, the prosecutor stated: & |