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January 26, 1983

UNITED STATES of America, Plaintiff,
Samuel J. RUSSOTTI, et al., Rene Piccarreto, Richard J. Marino, Thomas E. Marotta, Joseph R. Rossi, a/k/a "The Hop", Anthony M. Colombo, Donald J. Paone, Joseph J. Trieste, Joseph J. LaDolce, a/k/a Joseph J. LoDolce, John M. Trivigno, a/k/a "Flap", Defendants

The opinion of the court was delivered by: TELESCA


 TELESCA, District Judge.

 Presented for determination are a series of motions, joined in by all defendants, seeking to dismiss the indictment or, in the alternative, to limit the proof that the government may present at trial. The essence of all motions is rooted in the concepts of double jeopardy and collateral estoppel.


 The defendants Russotti, Piccarreto, Marotta and Marino were convicted in 1976, in Monroe County Court of conspiracy in the first degree and murder in the second degree in connection with the killing of Vincent J. Massaro. Subsequently, in 1978, that judgment of conviction was vacated and the indictment was dismissed based on the fact that their convictions were obtained through the use of perjured testimony. All defendants now contend that the present inclusion of the Massaro homicide as an underlying crime making up part of the racketeering pattern is barred by virtue of the prior state court proceedings.

 At the outset, I note that defendants Rossi, Colombo, Paone, Trieste, LaDolce and Trivigno were never charged in any forum with this crime, hence their motions to dismiss on double jeopardy grounds are denied.

 The general question of whether successive federal and state prosecutions are constitutionally permissible has been raised many times. As the Supreme Court of the United States has stated, "while United States v. Lanza, 260 U.S. 377 [43 S. Ct. 141, 67 L. Ed. 314], was the first case in which we squarely held valid a federal prosecution arising out of the same facts which had been the basis of a state conviction, the validity of such a prosecution by the Federal Government has not been questioned by this Court since the opinion of Fox v. Ohio, 5 How. 410 [46 U.S. 410, 12 L. Ed. 213], more than one hundred years ago." Bartkus v. Illinois, 359 U.S. 121, 129, 79 S. Ct. 676, 681, 3 L. Ed. 2d 684 (1959). In Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959), the Supreme Court directly addressed the question of "whether a federal prosecution of defendants already prosecuted for the same acts by a State, subjects those defendants 'for the same offense to be twice put in jeopardy of life or limb' in violation of the Fifth Amendment." Id. at 190, 79 S. Ct. at 668. The Court held that a prosecution by the federal government following on the heels of a state prosecution, was permissible based on the concept of dual sovereignty.

We have here two sovereignties, deriving power from different sources, capable of dealing with the same territory . . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other. It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.

 Id. at 194, 79 S. Ct. at 670, quoting United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 142, 67 L. Ed. 314 (1922) (emphasis added). Thus, it is clear that the government may include the Massaro homicide as an underlying crime in its R.I.C.O.* indictment based on the principle of dual sovereignty.

 The defense contends, however, that the dual sovereignty theory does not apply here. They argue that the previous state Massaro prosecution was merely a cover for the federal authorities; that the federal authorities were so substantially involved in the state prosecution that they should not be allowed to relitigate the same issues here. Defendants also argue forcefully that since the two principal witnesses in the State court Massaro murder trial were under the Federal Witness Protection Program, that fact elevates the Massaro trial to the equivalent of a Federal prosecution.

 I hold otherwise. While the cases note that "the dual sovereignty doctrine is subject to the qualification * * * that a state prosecution cannot be used merely as a cover and a tool of federal authorities," 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), I have found no case where a court has prevented the federal government from proceeding with a prosecution notwithstanding their involvement in the preceding state court action. See e.g., Bartkus v. Illinois, 359 U.S. 121, 123-24, 79 S. Ct. 676, 678-79, 3 L. Ed. 2d 684 (1959); United States v. Liddy, 177 U.S. App. D.C. 1, 542 F.2d 76, 79 (D.C.Cir.1976). In United States v. Liddy, the D.C. Court of Appeals set forth the circumstances under which a federal prosecution, following a state prosecution, may be violative of the Double Jeopardy Clause of the Fifth Amendment. " Bartkus, as we view it, stands for the proposition that federal authorities are proscribed from manipulating state processes to accomplish that which they cannot constitutionally do themselves." Id. at 79. In the instant case, the perjured testimony that was given in state court was an attempt to corroborate an informant's testimony, a step that would have been unnecessary in federal court. Moreover, it is clear that the Monroe County prosecution was not "begun at the direction," (see United States v. Liddy at pages 79-80), of the federal government but was rather initiated by the local authorities.

 The defense makes a great deal out of the "co-mingling of manpower and prosecutorial efforts by the state and federal authorities in these prosecutions." But that factor was present -- to some extent -- in both Bartkus and in Aleman, and in both cases the respective courts praised the "cooperation between state and federal authorities [as] a welcome innovation." United States v. Aleman, at 309; Bartkus v. Illinois, 359 U.S. at 123, 79 S. Ct. at 678. I am in full agreement with those courts. The cooperation between state and federal police agencies and prosecutorial organizations is both laudatory and desired.

 Historically, the merger of resources and investigative efforts by state and federal governments, was not always the case. The records of these proceedings show that in the original Massaro prosecution the state and federal governments were acting independently of one another. Ultimately the federal authorities withdrew from the case and the state continued alone. Clearly, based on the history of this case, the dual sovereignty theory should be applied ...

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