decided: August 6, 1979.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
EUGENE DI FRANCESCO, DEFENDANT-APPELLANT ; UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT, V. EUGENE DI FRANCESCO, DEFENDANT-APPELLEE.
Appeals by defendant from convictions and sentences in two separate trials in the United States District Court for the Western District of New York for violation of 18 U.S.C. §§ 1962(c) and (d) and 371, Harold P. Burke, Judge, and for violation of 18 U.S.C. §§ 1361, 842(j) and 371, George C. Pratt, Judge, and appeal by the United States from sentence imposed under 18 U.S.C. § 3575. Appeal by United States dismissed. Affirmed on defendant's appeals.
Before Smith and Meskill, Circuit Judges, and Haight,*fn* District Judge.
These are appeals by a defendant from judgments of conviction entered after two separate jury trials in the United States District Court for the Western District of New York, and by the government from a sentence imposed under the "dangerous special offender" provisions of 18 U.S.C. § 3575. In the first trial, Harold P. Burke, Judge, presiding, the appellant, Eugene DiFrancesco, was convicted of conspiring to participate in and conduct the affairs of an enterprise through a pattern of racketeering activity, which included multiple acts of arson and use of the mails to defraud insurance companies, in violation of 18 U.S.C. § 1962(c) and (d). In the second trial, George C. Pratt, Judge, presiding by designation, DiFrancesco was convicted on three counts which alleged that he willfully caused damage in excess of $100 to federal property, 18 U.S.C. § 1361, unlawfully stored explosive materials, 18 U.S.C. § 842(j), and conspired to commit these acts, 18 U.S.C. § 371. We affirm the convictions and dismiss the government's appeal.
On July 24, 1975, DiFrancesco, together with seven co-defendants, was indicted on charges arising out of a series of bombings that occurred in the Rochester area on Columbus Day in 1970. A second indictment, filed on April 7, 1976, named DiFrancesco and seven others, two of whom were also defendants in the bombing indictment, as defendants in two counts of racketeering involving an "arson-for-hire" ring operating in the Rochester area. Since this second indictment was the first to come to trial, we shall begin by discussing DiFrancesco's appeal from the resulting conviction on the racketeering charges.
DiFrancesco and five of the seven co-defendants in the racketeering indictment were tried jointly, in September and October of 1977. Of the two remaining defendants, Joseph LaNovara pleaded guilty before trial and testified as a witness for the government, while Frank Valenti, the alleged leader of the conspiracy, was severed upon the government's motion because he was ill.
The government presented evidence by which it sought to prove that an arson-for-hire team, which operated as part of a larger organization engaged in illicit activities in the Rochester area, had been responsible for at least eight fires that occurred there between 1970 and 1973. The arson ring allegedly agreed with the property owners to destroy their buildings in return for a share of the insurance proceeds. The government charged that insurance companies had been defrauded of about $480,000 as a result of the eight fires. The jury acquitted four of the six defendants, but convicted DiFrancesco and Vincent Rallo on both counts. DiFrancesco's appeal alleges several errors in the district court.
The most substantial issue raised by DiFrancesco is whether certain statements made by government witnesses to the FBI should have been turned over to the defendants under the rule of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Shortly before this trial began, it was disclosed that allegations of wrongdoing had been lodged against some members of the Monroe County Sheriff's Office. These allegations arose in connection with the Sheriff's Office's investigation of a number of crimes in which the defendants in this case allegedly had been involved, including a murder for which DiFrancesco had been convicted in state court. The FBI, as part of a federal civil rights investigation of the Sheriff's Office's activities, conducted a number of interviews and compiled interview reports.*fn1 The subject matter of some of these interviews included alleged instances of perjury by witnesses in state court proceedings. Some of these witnesses were expected to be called by the United States to testify in the case against DiFrancesco and his co-defendants.
When this matter arose, Judge Burke granted a continuance for one week during which the government represented that it would seek to learn more about the allegations and would then "turn over all materials that is (sic) favorable to the defense that result from the investigation." The government reviewed approximately thirty to thirty-five FBI reports and determined that only one was Brady material. The government then submitted the reports to the trial judge to allow him to decide whether he thought any of the remaining material fell within Brady. The judge picked out about fifteen other reports which he ruled were Brady material, but the government refused to turn over these additional reports to the defendants. It argued that exposure of the reports could endanger the ongoing civil rights investigation. Thus, the government stated that it was "willing to stand or fall on that decision (that the reports were not Brady material) made by itself." The court denied a motion that it order the government to turn over the reports. Instead, those reports which the court believed were Brady material were sealed as Court Exhibit A, and those which the court and government agreed were not within Brady were sealed as Court Exhibit B. At some later time, the government gave defense counsel the reports of interviews of LaNovara and of Angelo Monachino, an unindicted co-conspirator, who was to testify for the government. Both of these reports were part of Court Exhibit A, as was a third report which the government eventually turned over as Jencks Act material.
Our examination of the court exhibits convinces us that the reports included no Brady material. None of the reports exculpated DiFrancesco, nor did any demonstrate that the government's case included perjured testimony. Furthermore, nothing in the reports that the government refused to turn over constituted "material evidence that would impeach a Government witness whose "reliability . . . may well (have been) determinative of guilt or innocence.' " Ostrer v. United States, 577 F.2d 782, 785 (2d Cir. 1978), Cert. denied, 439 U.S. 1115, 99 S. Ct. 1018, 59 L. Ed. 2d 73 (1979), Quoting Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), Quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). One report (Part A of Court Exhibit A) contains two comments attributed to Monachino. Neither of these comments, however, could have been used to impeach Monachino in any way that might have affected the outcome of the trial, which is the standard by which we measure the materiality of undisclosed information for which the defendant makes a specific request. United States v. Agurs, 427 U.S. 97, 104-06, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Ostrer, supra, 577 F.2d at 786. In short, the FBI reports would have added nothing to the vigorous attacks which DiFrancesco and his co-defendants made upon the credibility of a number of the government's witnesses through use of the substantial public information relating to the investigation.
DiFrancesco also raised several arguments involving evidentiary questions and portions of the court's instructions to the jury. The first concerns the introduction into evidence of a state court indictment that charged DiFrancesco and others with an act of arson, a fire at Select Tire Company, that also constituted part of a specific act of racketeering alleged in the federal indictment. The government offered the indictment and had a portion of it read to the jury as part of its rebuttal case, for the stated purpose of making the jury aware of the final disposition of the state court case against one of the persons named in the state indictment.
It is difficult to perceive how the indictment was relevant for the purpose stated by the government. In fact, its relevance and materiality to any issue in the case was, at best, minimal. Counsel for the various defendants, including DiFrancesco, opened up the subject of the state court proceedings in their cross-examination of government witnesses. Introduction of the indictment, however, was not, as the government now contends, necessary to clarify the "meaning" of the outcome of the state trial.*fn2 But admission of the indictment, even if erroneous, did not prejudice DiFrancesco. The jury already knew, from the defendants' cross-examination of government witnesses, that the state grand jury had received testimony implicating DiFrancesco in the Select Tire fire, that some persons had been tried in state court in connection with that fire, that testimony alleging DiFrancesco's participation had been offered at the state court trial, and that DiFrancesco had been named as a co-conspirator in yet another federal indictment alleging mail fraud arising from a separate act of arson. Under these circumstances, admission of the indictment, even if erroneous, was harmless.
DiFrancesco also disputes the admissibility of certain testimony by LaNovara and Monachino, who described the initiation ritual*fn3 followed by the organization of which the arson-for-hire ring was a part. Admission of this testimony was not erroneous. The evidence was probative of the existence of an "enterprise," the affairs of which were conducted through a pattern of racketeering activity, which was a matter on which the court correctly charged that the government had the burden of proof. The evidence was sufficiently probative to outweigh any possible prejudice.
DiFrancesco next contends that the testimony that LaNovara and Monachino were participants in the Federal Witness Protection Program, as authorized by the Organized Crime Control Act of 1970, P.L. No. 91-452, Title V, 84 Stat. 933, should not have been allowed. Since a defendant often will seek to impeach a participating witness by showing that he has received significant benefits while in the program, the government may desire to bring out the witness' participation during direct examination in order to avoid an inference that the government was attempting to hide the witness' possible bias. Although disclosure of such participation "must be handled delicately," United States v. Partin, 552 F.2d 621, 644-45 (5th Cir.), Cert. denied, 425 U.S. 903, 96 S. Ct. 1493, 47 L. Ed. 2d 753 (1977), so as to minimize the possibility that the jury will infer that the defendant was the source of danger to the witness, such testimony is permissible so long as the prosecutor does not attempt to exploit it. No exploitation occurred here, and the defendants cross-examined the witnesses at length to develop the full extent of the benefits received by them. Thus there was no error in allowing the testimony. Nor was the court's instruction to the jury on this subject erroneous or insufficient.*fn4 The instruction did not suggest, as DiFrancesco argues, that the Attorney General was vouching for the credibility of the witnesses. Instead, it simply explained the purpose of the program and dispelled any implication that the benefits received by LaNovara and Monachino were bestowed improperly. No additional instruction was necessary. Id.
Lastly, DiFrancesco argues that the court removed an element of the crime from the jury's consideration by instructing that, if the jury believed the evidence that about $480,000 in claims was paid by insurance companies in New York and other states as a result of the arsons and mail fraud, then the enterprise did affect interstate commerce as required by 18 U.S.C. § 1962(c). This instruction was proper. The court left to the jury the question of fact, whether the claims had been paid as a result of arson engaged in by the defendants. The trial judge correctly determined, however, that if the defendants' alleged actions were proven, the effect of those actions on interstate commerce was a question of law. Cf. United States v. Ricciardi, 357 F.2d 91, 94 (2d Cir.), Cert. denied, 384 U.S. 942, 86 S. Ct. 1464, 16 L. Ed. 2d 540 (1966) (whether activities constitute an "industry affecting commerce" under 29 U.S.C. § 186 is a question of law); United States v. Varlack, 225 F.2d 665, 670-72 (2d Cir. 1955) (judge instructed that, if jury believed testimony of government witnesses, defendant's acts affected commerce as defined in Hobbs Act, 18 U.S.C. § 1951).
THE COLUMBUS DAY BOMBINGS
DiFrancesco's attack on his conviction arising from the bombing and explosives charges focuses on the delay between his indictment and the commencement of trial. He contends that the indictment should have been dismissed because this delay violated the Speedy Trial Act, 18 U.S.C. §§ 3161-74 ("the Act"), the Western District's Transitional Plan for Achieving the Prompt Disposition of Criminal Cases ("the Plan"), and the sixth amendment's guarantee of a speedy trial.
DiFrancesco was indicted on July 24, 1975 and arraigned on September 8, 1975. The relevant provisions of the Act, 18 U.S.C. §§ 3161(g) and 3163(b)(2), and of the Plan, § 5(a)(1), did not take effect until July 1, 1976. They require that trial of a defendant arraigned before the effective date shall commence within 180 days of that date. Both the Act and the Plan (§ 10(a)) provide, however, for the exclusion of certain periods of delay set forth in 18 U.S.C. § 3161(h) in computing the 180-day period. DiFrancesco contends that the non-excludable delay in this case amounted to 309 days. The government, which conceded in the district court that the 180-day period had expired, now argues that the non-excludable delay totaled either 283, 273, 177 or 145 days, or perhaps no time at all. We need not choose, however, from among these various calculations, because 18 U.S.C. § 3163(c) delays the effective date of the sanctions provided in § 3162 for violations of the Act until July 1, 1979, United States v. New Buffalo Amusement Corp., 600 F.2d 368 at 376-377 (2d Cir. 1979); United States v. Carini, 562 F.2d 144, 148 (2d Cir. 1977), and § 11(e) of the Plan provides that failure to comply with its provisions shall not require dismissal. New Buffalo Amusement Corp., supra, at 376 n.13.
Although the district court retains discretionary power under Rule 48(b) of the Federal Rules of Criminal Procedure to dismiss an indictment because of excessive delay, United States v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977), DiFrancesco did not invoke that discretion and thus cannot complain of the court's failure to exercise it. New Buffalo Amusement Corp., supra, at 376 n.13.
We turn therefore to DiFrancesco's claim that the pretrial delay violated his sixth amendment right to a speedy trial. We shall assume for this purpose that the delay exceeded that allowed under the Act and the Plan, since such a violation may be considered in assessing the merit of a constitutional speedy trial claim. Id. at 2758; Carini, supra, 562 F.2d at 148, 151-52. Nonetheless, we agree with the district judge's thorough and well-reasoned opinion in which he concluded that DiFrancesco's claim lacks merit. United States v. DiFrancesco, Cr. 75-165 (W.D.N.Y. April 3, 1978).
The controlling authority is of course Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), in which the Court enunciated four factors to be considered in evaluating a claim of a denial of the right to a speedy trial. These factors are (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the existence of prejudice to the defendant from the delay. Id. at 530, 92 S. Ct. 2182. Other relevant circumstances also may be considered in conducting a "difficult and sensitive balancing process," Id. at 533, 92 S. Ct. 2182, "in which the conduct of both the prosecution and the defendant are weighed." Id. at 530, 92 S. Ct. 2182, 2192.
The delay between indictment and trial in this case was about 30 months. The government concedes that this is sufficient to "trigger" a further investigation of the other factors. See id. at 530-31, 92 S. Ct. 2182; Carini, supra, 562 F.2d at 148-49. The reasons for the delay were numerous, including trials of DiFrancesco on state charges and the federal racketeering charges, illness of his attorney and of Judge Burke, to whom the case originally was assigned, the participation of DiFrancesco's attorney in a trial on behalf of another client (during which time Judge Burke denied the government's request to remove the attorney from this case), and the pendency of motions by the defendants and the government. Although the government bears the responsibility for some of the delay, including that caused by "institutional factors" such as overcrowding of the district court's docket, Barker v. Wingo, supra, 407 U.S. at 531, 92 S. Ct. 2182, there is no suggestion in the record of any "deliberate attempt (by the government) to delay the trial in order to hamper the defense," Id., and it is apparent that DiFrancesco was responsible for a substantial portion of the delay. Moreover, the government repeatedly moved to set a trial date, a fact which distinguishes this case from United States v. Vispi, 545 F.2d 328, 334 (2d Cir. 1976). DiFrancesco, on the other hand, did not assert his speedy trial claim until the eve of trial.*fn5
The final factor, prejudice to the defendant, also fails to support DiFrancesco's claim. He argues that the death of a potential witness, Samuel DiGaetano, caused substantial prejudice which can be attributed to the delay. DiGaetano, attorney for severed co-defendant Frank Valenti, allegedly would have testified, in direct contradiction of a government witness, that Valenti was in Pittsburgh on the day of and the day immediately preceding the bombings.*fn6
We find no error in the district court's conclusion that the evidence presented to it failed to support the contention that DiGaetano would have given such testimony. Moreover, although DiGaetano's death apparently was caused by a heart condition from which he had suffered for a substantial period of time, DiFrancesco made no effort to preserve by deposition the testimony that purportedly would have been given. In addition, as the district court noted, DiFrancesco's motion and supporting materials contained no affidavit from Valenti concerning his whereabouts on October 11 and 12. Although Valenti was too ill to undergo trial at the same time as his co-defendants, there is no indication that his illness prevented him from asserting, by affidavit or any other means, his presence in Pittsburgh on the days in question.*fn7
Even if we assume then that the Plan and Act were violated and weigh such violation in our analysis of DiFrancesco's claim, the balance tips strongly against his contention that his right to a speedy trial was violated.
DiFrancesco next argues that the court should have severed or declared a mistrial as to Count II of the indictment because of an error that was not discovered until the conclusion of the presentation of the government's case. At that time it was learned that the language contained in Count II of the copies of the indictment possessed by counsel for both the government and the defendants differed from that in the copy filed with the court. The prosecutor mistakenly had distributed copies of an earlier draft of the indictment, rather than the final, filed version. The earlier draft, which all counsel had assumed to be the actual indictment, named Valenti as the person who caused the damage to the old Federal Building and named the other defendants, including DiFrancesco, as aiders and abettors.*fn8 The actual indictment named all the defendants as principals and, in addition, merely cited 18 U.S.C. § 2, the aiding and abetting statute.*fn9
DiFrancesco complains that as a result of this confusion, for which he bore no fault, he was convicted under a theory at substantial variance from that which he had a right to believe was the basis of the case. He argues that the assumed indictment was more narrowly drawn than the actual, and that therefore, the substitution of the actual version was forbidden by Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960), which holds that a broadening of the charges may only be accomplished by the grand jury itself.
The decision in Stirone, however, is not relevant to the circumstances presented here. The Court relied in Stirone on the violation of "the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury." Id. at 217, 80 S. Ct. at 273. There is no question that the count on which DiFrancesco ultimately was tried and convicted actually was returned by the grand jury, thus protecting his right to have his jeopardy limited to "offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge." Id. at 218, 80 S. Ct. at 273. DiFrancesco's real claim is that he was not afforded notice of the charge on which he was convicted. As the Supreme Court explained in Berger v. United States, 295 U.S. 78, 82, 55 S. Ct. 629, 630, 79 L. Ed. 1314 (1935), one of the reasons "that allegations and proof must correspond is . . . the obvious (requirement) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial . . .." The protection of this right to notice of the charges requires a determination "whether there has been such a variance as to "affect the substantial rights' of the accused." Id.; United States v. Knuckles, 581 F.2d 305, 311 (2d Cir.), Cert. denied, 439 U.S. 986, 99 S. Ct. 581, 58 L. Ed. 2d 659 (1978); See United States v. Garguilo, 554 F.2d 59, 63 (2d Cir. 1977).
No such prejudicial variance occurred here. Although the assumed indictment was drawn somewhat more narrowly than was the actual indictment, the evidence introduced and the theory of culpability advanced by the government were not affected by the difference. The government offered no evidence as to who actually delivered the bomb to the Federal Building. Its evidence supported the narrower charge that Valenti "caused" the damage to the building because he directed the conspiracy. Finally, the government withdrew the aiding and abetting theory and proceeded on the "Pinkerton "*fn10 theory that each defendant was responsible for the substantive acts of his co-conspirators carried out in furtherance of the conspiracy. This theory would have been permissible under either version of Count II.
DiFrancesco's claim of prejudice is unsubstantiated. He contends that, had he known the actual wording of the indictment, he would have conducted additional cross-examination of Monachino and would not have entered into certain stipulations. This contention is undermined, however, by counsel's failure to ask the trial court to recall Monachino for further cross-examination and his failure to withdraw any of the stipulations, which had not yet been given to the jury. Since the difference in the two versions of the indictment caused no prejudice to any substantial rights of the accused, the district court did not err in denying severance or a mistrial.
DiFrancesco's final argument involves Count VI, which accused him of unlawfully storing explosives. He contends that this count should have been dismissed because there was no proof presented that the storage continued after February 12, 1971, the effective date of 18 U.S.C. § 842(j), which he was charged with violating. We disagree.
The government offered evidence that, during the summer of 1970, DiFrancesco brought two boxes that contained dynamite, guns and various other items to a house in which Joseph Turri lived. DiFrancesco received permission from Turri to store the boxes in the basement. On the night of October 11, DiFrancesco removed a burlap bag from the box and brought it upstairs to Turri's apartment, where a meeting of the conspirators was held. There they used some of the material in the bag dynamite, fuses and blasting caps to construct the explosive devices which were used in the bombings. After the bombs had been made, the remaining material was put back into the bag. DiFrancesco then left the room with the bag and returned without it a short time later. No one actually saw DiFrancesco return the bag containing the remaining explosives to the basement. Turri testified that he moved the boxes from the basement to the attic of his new residence during the summer of 1971. Turri's wife testified that DiFrancesco called her at some time in 1973 and asked her to move the boxes from the attic to another location, which she did.
Although none of the witnesses actually examined the contents of the boxes after the effective date of the statute, the jury properly could have inferred that some of the explosives remained in the boxes after that time. The evidence supported a logical inference that, when DiFrancesco left the October 11, 1970 meeting for several minutes and returned without the burlap bag, he had returned the bag containing the remaining explosive materials to the boxes in the basement, and that the explosives remained in the boxes while Turri moved them to his new residence and until DiFrancesco asked that they be moved again in 1973.
GOVERNMENT APPEAL OF THE SENTENCE
Prior to the start of DiFrancesco's trial on the racketeering counts, the government, in compliance with 18 U.S.C. § 3575(a), filed a notice with the district court alleging that DiFrancesco was a "dangerous special offender," as defined in 18 U.S.C. § 3575(e)(3) and (f). The filing of such a notice indicates the government's intention to seek, if the defendant is convicted, imposition of an enhanced sentence as authorized by 18 U.S.C. § 3575(b).
On March 17, 1978, after DiFrancesco had been convicted in both the racketeering and bombing trials, Judge Burke held a sentencing hearing, required by § 3575(b), to obtain information which, with that submitted during trial, would form the basis for his determination whether DiFrancesco was a dangerous special offender. On April 21, the court issued findings of fact and its conclusion that DiFrancesco was a dangerous special offender. United States v. DiFrancesco, Cr. 76-45 (W.D.N.Y. April 21, 1978). One week later, the court sentenced DiFrancesco to concurrent ten-year terms of imprisonment on the two racketeering counts, to be served concurrently with sentences totaling nine years which had been imposed by Judge Pratt on the bombing counts.
The government, under the authority granted by 18 U.S.C. § 3576,*fn11 filed a notice of appeal from the sentence imposed by Judge Burke. DiFrancesco argues that the trial judge did not abuse his discretion in setting the sentence and, moreover, that such portion of § 3576 as authorizes the government to appeal a sentence where the defendant has not done so violates the double jeopardy clause of the fifth amendment.*fn12 Since the government's right to appeal and thus our jurisdiction to consider the merits of the sentence are dependent upon the constitutionality of the statutory provision, See United States v. Wilson, 420 U.S. 332, 339, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975), we must immediately confront the constitutional issue.*fn13
The concept of a government appeal to obtain an increase in a valid, enforceable sentence*fn14 was unknown to the American legal system throughout most of this nation's two hundred year history. Few states have given their appellate courts any power to increase a sentence, and in each instance where the power exists, it may be exercised only if the defendant has initiated the appellate proceeding by seeking review of the sentence.*fn15 The United States, prior to 1970, did not have statutory authority to seek an increase in a sentence. In that year, however, Congress enacted 18 U.S.C. § 3576, which provides that, in a case involving a dangerous special offender, "a review of the sentence on the record of the sentencing court may be taken by the defendant Or the United States to a court of appeals." (Emphasis added.) The court of appeals is authorized to review "whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court's discretion was abused," and then to affirm the sentence, impose any sentence that the trial court could have imposed, or remand for further sentencing proceedings.
The government has not rushed to make use of its new power to seek review of sentences.*fn16 Whether this has resulted from doubts about the constitutionality of the procedure, an extraordinary degree of satisfaction with the sentences imposed under the dangerous special offender provision, a decision to allocate prosecutorial resources to other tasks, or other factors is of course only a matter of speculation, but this case is apparently the government's first attempt to obtain review of a sentence on appeal.*fn17 Moreover, the government's primary response to DiFrancesco's attack on the constitutionality of § 3576 is not that government-instigated review of a final sentence is constitutional, but rather that the sentence imposed by the district court is merely "tentative" and that thus the defendant is not placed twice in jeopardy.
The language of the statute does not support the construction urged by the government. Section 3575(b) requires that, if the district court finds the defendant to be a dangerous special offender, it "Shall sentence the defendant to imprisonment for an appropriate term not to exceed twenty-five years . . .." (Emphasis added.) This command is not tentative; the sentence imposed is effective immediately.*fn18 This procedure contrasts with that provided in, E. g., 28 U.S.C. § 636(b)(1), whereby a trial judge may designate a magistrate to conduct a hearing in certain matters and to submit "proposed" findings and recommendations, which have no force until they have been reviewed by the judge, who may accept, reject or modify them. Nor is the procedure here similar to that provided in 18 U.S.C. § 4205(c) (formerly 18 U.S.C. § 4208(b)), to which it is compared by the government. Section 4205(c) allows a court that desires more information before imposing sentence to commit the defendant to the custody of the Attorney General for a period which will "be deemed to be for the maximum sentence of imprisonment prescribed by law." After the court obtains the desired information, it then may affirm the original commitment or impose a different sentence which of course cannot exceed the aforementioned maximum prescribed term. "It is plain that as far as the sentence is concerned the original order entered under (§ 4205(c)) is wholly tentative," because "(t)he whole point of using (§ 4205(c)) is, in its own language, to get "more detailed information as a basis for determining the sentence To be imposed . . ..' (Emphasis supplied.)" United States v. Behrens, 375 U.S. 162, 164-65, 84 S. Ct. 295, 296, 11 L. Ed. 2d 224 (1963). In contrast, the commitment ordered by the district court pursuant to § 3575 is neither tentative nor merely a predicate to a sentence "to be imposed" by the court of appeals.
That Congress, as the government argues, could have written this statute in a manner analogous to § 4205(c) or in some other form which might not raise problems of double jeopardy is an inadequate response to the contention that the statute which Congress did write is constitutionally infirm. " "Appeals by the Government in criminal cases are something unusual, exceptional, not favored,' at least in part because they always threaten to offend the policies behind the double-jeopardy prohibition." Will v. United States, 389 U.S. 90, 96, 88 S. Ct. 269, 274, 19 L. Ed. 2d 305 (1967) (citations omitted). Therefore, we are obliged to construe strictly the procedure that Congress has authorized and to determine whether it, not some other, hypothetical procedure, offends the double jeopardy clause.*fn19
The plain command of the fifth amendment is that no "person (shall) be subject for the same offense to be twice put in jeopardy of life or limb." Although the phrase "life or limb" suggests only the most serious of penalties, it has long been established that it encompasses all penalties which may be imposed in criminal proceedings. Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975); Ex parte Lange, 85 U.S. (18 Wall.) 163, 170-73, 21 L. Ed. 872 (1873). A defendant who has stood trial and been convicted and sentenced by the district court has been placed once in jeopardy. Had the position advocated by Mr. Justice Holmes, dissenting in Kepner v. United States, 195 U.S. 100, 134, 24 S. Ct. 797, 49 L. Ed. 114 (1904), prevailed, the double jeopardy clause might present no barrier to an increased sentence on appeal. Justice Holmes argued that "logically and rationally a man cannot be said to be more than once in jeopardy in the same cause, however often he may be tried." But the Supreme Court has never adopted this concept of "continuing jeopardy," which, although it might have simplified the matter of government appeals, United States v. Scott, 437 U.S. 82, 90 n. 6, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978), would have greatly decreased the fifth amendment's protection against government oppression. The legislative history of § 3576 demonstrates that Congress was cognizant of possible constitutional objections to the provision, but that it concluded that Kepner's rejection of the continuing jeopardy concept should not apply to government appeal of a sentence rather than of an acquittal. S.Rep. No. 617, 91st Cong., 1st Sess. 95 (1969). We cannot perceive, however, how a defendant who, after being sentenced to several years' imprisonment by a district court, might be subject to imposition of a sentence of death upon a government appeal, would be any less placed twice in jeopardy of life or limb than was the defendant in Kepner, who, after acquittal in the court of first instance, was found guilty and sentenced to imprisonment for slightly less than two years upon appeal by the government. That § 3576 subjects a defendant "merely" to a longer term of imprisonment, not to the actual loss of his life, is a difference of degree, not principle, from the example given, for the double jeopardy clause applies equally to all criminal penalties. See Supra at 780. Under the statute the government, dissatisfied with final judgment in one court, seeks a more favorable result in another tribunal. Therefore, the conclusion appears inescapable that to subject a defendant to the risk of substitution of a greater sentence, upon an appeal by the government, is to place him a second time "in jeopardy of life or limb."
Since this is the first attempt to use a statute allowing such an appeal, there are no precedents directly on point.*fn20 But the substantial body of double jeopardy case law, although hardly charting a straight-line path, See, e. g., United States v. Scott, supra, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 overruling United States v. Jenkins, 420 U.S. 358, 95 S. Ct. 1006, 43 L. Ed. 2d 250 (1975), supports the conclusion that we reach.
The guarantee against double jeopardy has been said to consist of three separate constitutional protections: (1) against a second prosecution for the same offense after acquittal; (2) against a second prosecution for the same offense after conviction; and (3) against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).*fn21 The interests underlying these protections are similar. United States v. Wilson, supra, 420 U.S. at 343, 95 S. Ct. 1013. They promote the goal of preserving the integrity of final judgments, Scott, supra, 437 U.S. at 92, 98 S. Ct. 2187, and protect the individual against oppression by the government. Id. at 99, 98 S. Ct. 2187. More particularly, the protection against reprosecution after acquittal safeguards the individual against the embarrassment, expense and ordeal of repeated attempts by the government to use its resources and power to convict him and reduces the danger that an innocent defendant may be found guilty. Serfass v. United States, 420 U.S. 377, 387-88, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975); Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957). And, at the root of the second and third of these protections is the idea, especially relevant here, expressed in Wilson, supra, 420 U.S. at 343, 95 S. Ct. at 1021-1022:
When a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense.
This concern was perhaps most clearly expressed in Ex parte Lange, supra, 85 U.S. (18 Wall.) at 183, 21 L. Ed. 872:
For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offence? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? Is not its intent and its spirit in such a case as much violated as if a new trial had been had, and on a second conviction a second punishment inflicted?
The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.
The prohibition against multiple punishment*fn22 has been so strongly felt that, although the question of increasing a valid sentence has never been squarely presented, numerous courts, including the Supreme Court, have emphatically stated in dictum that such a procedure would be impermissible. In United States v. Benz, 282 U.S. 304, 51 S. Ct. 113, 75 L. Ed. 354 (1931), the Court was confronted with the question whether a district court has the power, upon petition by a defendant, to reduce the sentence previously imposed on him. The Court noted the then-prevailing general rule that judgments, decrees and orders could be amended, modified or vacated by the court that made them, during the term at which they were made. It stated that this rule applied to criminal cases, "provided the punishment be not augmented," Id. at 307, 51 S. Ct. at 114, and held that because the district court had decreased, not increased, the punishment, it had acted within its power.*fn23 The unanimous Court then stated that the distinction between decreasing and increasing a sentence was based "upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution . . . ." Id.
In Murphy v. Massachusetts, 177 U.S. 155, 20 S. Ct. 639, 44 L. Ed. 711 (1900), the Supreme Court rejected the argument that the double jeopardy clause was offended when a defendant, whose original sentence had been vacated at his behest because the statute under which it was imposed was unlawfully applied, was resentenced under the appropriate statute to a term longer than the original one. The Court, however, distinguished the case before it from one in which "the (trial) court undertook to impose In invitum a second or additional sentence for the same offense, Or to substitute one sentence for another." Id. at 160, 20 S. Ct. at 641 (emphasis added). And again in Reid v. Covert, 354 U.S. 1, 37 n. 68, 77 S. Ct. 1222, 1241 n. 68, 1 L. Ed. 2d 1148 (1957), Mr. Justice Black's plurality opinion, discussing the application of the Bill of Rights to military trials, stated:
In Swaim v. United States, 165 U.S. 553, 17 S. Ct. 448, 41 L. Ed. 823, this Court held that the President or commanding officer had power to return a case to a court-martial for an increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable such a practice would be unconstitutional.
In Walsh v. Picard, 446 F.2d 1209 (1st Cir. 1971), Cert. denied, 407 U.S. 921, 92 S. Ct. 2465, 32 L. Ed. 2d 807 (1972), the court upheld the Massachusetts statute which allows a reviewing court to increase as well as decrease the sentence of a defendant who seeks sentence review. But the court explicitly noted that "the Massachusetts procedure does not permit the state to reopen the question of sentence on its own initiative. Were it to do so, it would of course violate the proscription against double jeopardy." Id. at 1211. Several other courts of appeal, including this one, have stated that a sentence may not be increased, at least where, as here, the punishment already has been partly suffered, United States v. Chiarella, 214 F.2d 838, 841 (2d Cir.), Cert. denied, 348 U.S. 902, 75 S. Ct. 226, 99 L. Ed. 708 (1954); Oxman v. United States, 148 F.2d 750, 753 (8th Cir.), Cert. denied, 325 U.S. 887, 65 S. Ct. 1569, 89 L. Ed. 2001 (1945); Frankel v. United States, 131 F.2d 756, 758 (6th Cir. 1942); Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499, 501 n. 3 (1940), and the defendant has not challenged the sentence. United States v. Coke, 404 F.2d 836, 845 (2d Cir. 1968) (en banc).
Although such dicta of course are not legally binding, their number and the high authority of their sources offer impressive evidence of the strength and prevalence of the view that the double jeopardy clause bars an increase in the sentence imposed by the district court.
The conclusion reached here does not conflict with the Supreme Court's decision in North Carolina v. Pearce, supra, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656. There the Court held that the double jeopardy clause did not prohibit imposition of a greater sentence On retrial than had been imposed at the original trial of a defendant, Where the defendant succeeded in getting his first conviction set aside. The Court relied in Pearce on United States v. Ball, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896), which had established that "this constitutional guarantee imposes no limitations whatever upon the power to Retry a defendant who has succeeded in getting his first conviction set aside," Pearce, supra, 395 U.S. at 720, 89 S. Ct. at 2078 (emphasis in original), and on Stroud v. United States, 251 U.S. 15, 40 S. Ct. 50, 64 L. Ed. 103 (1919), which held that a corollary of that power to retry was the power to impose any legally authorized sentence.
Although various rationales have been advanced and rejected for the rule that a defendant may be retried after reversal of an original conviction, See Burks v. United States, 437 U.S. 1, 15 n. 9, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), the Court most recently adopted, in its unanimous opinion in Burks, id. at 15, 98 S. Ct. at 2149, the justification offered in United States v. Tateo, 377 U.S. 463, 466, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964):
It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.
This rationale,*fn24 however, does not fully explain the result in Pearce since a defendant would not be granted immunity from punishment if the sentence on retrial were limited to that imposed at the first trial. Rather, Pearce depends too on a second line of reasoning, that the double jeopardy protection simply has no relevance where "the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean." Pearce, supra, 395 U.S. at 721, 89 S. Ct. at 2078. This outcome does not result from any "waiver" of double jeopardy protections, as was suggested in Trono v. United States, 199 U.S. 521, 533, 26 S. Ct. 121, 50 L. Ed. 292 (1905), and rejected in Green v. United States, supra, 355 U.S. at 191-92, 78 S. Ct. 221, but instead is compelled by the fact that "the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice." Scott, supra, 437 U.S. at 99, 98 S. Ct. at 2198.
Here, however, neither factor that militated against the application of the double jeopardy clause to resentencing in Pearce is present. There is not the slightest danger that DiFrancesco will go unpunished if the government's appeal is dismissed. The ten-year terms imposed on him by Judge Burke are valid and enforceable, and in fact are already being served. Moreover, DiFrancesco has made no "voluntary choice" that has subjected him to jeopardy for a second time. He faces the risk of an increased sentence solely because the government desires a second chance to obtain a sentence satisfactory to it.*fn25
We do not deny the existence of legitimate governmental interests that might be served by allowing the government to appeal a sentence, E. g., improved uniformity in sentencing. But such interests must be pursued in alternative ways that do not conflict with the fifth amendment's guarantee against double jeopardy. "(W)here (, as here,) the Double Jeopardy Clause is applicable, its sweep is absolute. There are no equities to be balanced, for the Clause has declared a constitutional policy, based on grounds which are not open to judicial examination." Burks v. United States, supra, 437 U.S. at 11 n. 6, 98 S. Ct. at 2147. To subject Eugene DiFrancesco for a second time to the risk of the entire range of penalties that the law provides for his crimes would violate that constitutional policy. The appeal by the government therefore must be dismissed.
The judgments of conviction are affirmed, and the appeal by the government is dismissed.
HAIGHT, District Judge (concurring in the result on the government's appeal).
I concur in Judge Smith's opinion affirming DiFrancesco's convictions, and agree that the government's appeal must be dismissed. However, I would base that dismissal upon the non-constitutional ground of the inapplicability of 18 U.S.C. § 3576 in the circumstances of this case.
In United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 2199, 60 L. Ed. 2d 755 (1979), the Supreme Court reiterated the maxim "that statutes should be construed to avoid constitutional questions," going on to state:
"This "cardinal principle' of statutory construction . . . is appropriate only when an alternative interpretation is "fairly possible' from the language of the statute. Swain v. Pressley, 430 U.S. 372, 378 n. 11, 97 S. Ct. 1224, 1228, 51 L. Ed. 2d 411 (1977); see Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 296, 76 L. Ed. 598 (1932); United States v. Sullivan, 332 U.S. 689, 693, 68 S. Ct. 331, 334, 92 L. Ed. 297 (1948); Shapiro v. United States, 335 U.S. 1, 31, 68 S. Ct. 1375, 1391, 92 L. Ed. 1787 (1948)."
While neither DiFrancesco nor the government raised the issue below, this "cardinal principle" of statutory construction permits a court to consider Sua sponte whether the sentencing procedures in §§ 3575 and 3576 can be interpreted so as to avoid the constitutional question. Clearly such an interpretation is "fairly possible" from the language of the statute.
Governmental appeal of a sentence under § 3576 is available only in respect of an individual properly proceeded against in the district court as a "dangerous special offender" under § 3575(a). To come within the statute, the offender must be both "special" as defined by § 3575(e), and "dangerous" as defined by § 3575(f). DiFrancesco qualifies as "special" under § 3575(e)(3).*fn1 He is "dangerous" under § 3575(f) if, and only if, "a period of confinement Longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant." (emphasis added).
Section 3575(b) provides in pertinent part:
"If it appears by a preponderance of the information, including information submitted during the trial of such felony and the sentencing hearing and so much of the presentence report as the court relies upon, that the defendant is a dangerous special offender, the court shall sentence the defendant to imprisonment for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony. Otherwise it shall sentence the defendant in accordance with the law prescribing penalties for such felony."
I construe the statute to provide the district judge with an additional capacity to impose a sentence of up to twenty-five years in cases where the underlying statute, standing alone, would not permit a term of such duration. Stated conversely, if the period of confinement provided for the felony by the underlying statute equals or exceeds twenty-five years, the dangerous special offender statute has no office to perform.*fn2
If that is the proper interpretation of the dangerous special offender statute, it could not apply to DiFrancesco. DiFrancesco was prosecuted under the racketeering statute, 18 U.S.C. §§ 1961 Et seq. He was convicted of a substantive offense under § 1962(c),*fn3 and conspiracy under § 1962(d).*fn4 The district court had the unquestioned power under the underlying statute, entirely without regard to the dangerous special offender statute, to sentence DiFrancesco to two consecutive 20 year terms, for a total of 40 years,*fn5 or 15 years longer than the maximum term permitted by § 3576. The district court's discretionary power to impose consecutive, rather than concurrent, sentences upon a defendant convicted on more than one count has been recognized for so long*fn6 that it may fairly be regarded as inherent in the "period of confinement . . . provided for such felony" by the underlying statute. In urging sentencing judges to impose consecutive sentences where the circumstances permit, prosecutors can and frequently do make the same arguments (the defendant is dangerous, the public must be protected) that the dangerous special offender statute contemplates.
Such arguments could have been made in the case at bar, and a sentence passed in excess of the maximum permitted by § 3576, entirely on the basis of the underlying felony statute, and the district court's well-established discretionary power to impose separate sentences on separate counts and make them run consecutively. I interpret §§ 3575 and 3576 to be inapplicable in those circumstances and would dismiss the government's appeal on that ground, leaving the constitutional question for a case in which it cannot be avoided.*fn7