Consolidated appeal from an Order of the United States District Court, Southern District of New York, Vincent L. Broderick, Judge, granting the government's motion to allow retrial of the defendants on a charge of violating 18 U.S.C. § 241. Reversed as to appellant Ustica, and Count Four of the Indictment as to appellant Ustica is dismissed. Affirmed as to appellants testa and Senter, and remanded for trial of Testa and Senter on Count Four of the Indictment.
Lumbard and Cardamone, Circuit Judges, and Leisure, District Judge*fn*
This is a consolidated appeal, by three criminal defendants, from an order, by the United States District Court for the Southern District of New York, granting the government's motion to allow retrial of the defendants on a charge of violating 18 U.S.C. § 241.*fn1
The three defendants--Ronald Ustica, Joseph Testa, and Anthony Senter--were originally tried on a multi-count indictment charging several federal crimes. The jury found Ustica guilty of violating § 241; the jury also convicted Ustica of violations of 18 U.S.C. § 2314 and 18 U.S.C. § 371.*fn2 Testa and Senter were acquitted of violating both § 2314 and § 371, but the jury could reach no verdict as to whether Testa and Senter had violated § 241. Thus, as to Testa and Senter, the district court declared a mistrial on Count Four of the indictment, which charged the defendants with violations of § 241.
Ustica appealed from his conviction. On January 21, 1987, this Court held that the evidence presented at trial was, as a matter of law, insufficient to support defendant Ustica's conviction on the § 241 count. United States v. Gaggi, 811 F.2d 47, 58 (2d Cir.), cert. denied, 482 U.S. 929, 107 S. Ct. 3214, 96 L. Ed. 2d 701 (1987). Ustica's other convictions, for violations of § 2314 and § 371, were affirmed. Id. at 63.
Because Ustica's conviction on the § 241 count was set aside on the ground of insufficient evidence, we hold that a new trial on that count would subject him to double jeopardy in violation of the fifth amendment of the Constitution. See Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978). However, because Testa's and Senter's first exposure to jeopardy on the § 241 count did not terminate when the original trial court declared a mistrial, we hold that Testa and Senter have no valid double jeopardy claim to prevent retrial on that count of the indictment. See Richardson v. United States, 468 U.S. 317, 82 L. Ed. 2d 242, 104 S. Ct. 3081 (1984).
After hearing argument on February 11, 1988, this Court filed an Order on February 16, 1988, reversing the district court's order with respect to Ustica, and affirming the order with respect to Testa and Senter, noting that this opinion would follow.
On October 4, 1984, the government filed a 78-count indictment naming twenty-four defendants, including the appellants, and alleging eleven different conspiracies.*fn4 Among the various alleged acts covered by the indictment were twenty-seven murders, illegal narcotics transactions, extortionate credit transactions, the interstate transportation of stolen automobiles, and bribery of a juror. All twenty-four defendants were charged with participation in a racketeering enterprise in violation of 18 U.S.C. § 1962. The case was assigned to United States District Judge Kevin Thomas Duffy.
On September 9, 1985, Judge Duffy severed, for separate trial, twenty-three counts of the indictment, which charged ten of the defendants, including appellants, with crimes related to a stolen car business.*fn5 That trial, which is of concern to this appeal, began on September 30, 1985, and lasted until March 5, 1986.*fn6 Five of the defendants, including Ustica, were convicted of conspiring to transport stolen property in violation of 18 U.S.C. § 371; Testa and Senter were acquitted of that charge. Three of the defendants, including Ustica, were convicted of various counts charging interstate or foreign transportation of stolen property, in violation of 18 U.S.C. § 2314; Testa and Senter were acquitted of the counts in which they were named. On the § 241 count that is the subject of this appeal, Ustica and one other defendant were convicted of a conspiracy to deny the civil rights of two murder victims; the jury was unable to reach a verdict on this count as to Testa and Senter.*fn7
Relevant to this appeal are certain trial proceedings relating to the § 241 count. It was the government's case that the defendants conspired to murder Ronald Falcaro and Kalid Fahd Darwish Daoud, two men involved in the export of cars to Kuwait. Ustica wanted Falcaro and Daoud killed after he saw them copying vehicle identification numbers of the defendants' stolen cars. As previously stated, the jury was unable to reach a verdict, as to Testa and Senter, on this count. The government endeavored to show that Ustica and his cohorts feared that Falcaro and Daoud were gathering information which would expose defendants' stolen car scheme to law enforcement authorities; that on October 12, 1979, one of the defendants, Henry Borelli, and an unindicted coconspirator, Roy DeMeo, shot and killed Falcaro and Daoud; that Testa and Senter participated in the dismemberment of the victims' bodies with boning knives and saws; and that the victims' body parts were wrapped in garbage bags and hauled away by Senter in a private sanitation truck.
On Thursday, January 30, 1986-- prior to the close of the government's case, but after the government had presented its evidence on the § 241 violation--the defendants moved, pursuant to Fed. R. Crim. P. 29, for judgments of acquittal on the § 241 count. Although the government had not completed its direct case, the defense's Rule 29 motion relating to § 241 was argued, by agreement of counsel and the trial court, as if the prosecution had rested. The defendants claimed that the government had failed to prove the American citizenship of the victims, which the defendants argued was an essential element of a violation of § 241. Section 241 makes it a crime to conspire "to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States," 18 U.S.C. § 241 (emphasis added). Judge Duffy denied defendants' Rule 29 motion, ruling that § 241 protects not just the civil rights of American citizens, but of "all those people who would be protected by the constitutional requirements of due process" -- including non-resident aliens. At that time, however, Judge Duffy also indicated that he intended "to give the jury a special question in connection with [the issue of citizenship.]"
Prior to defendants' Rule 29 motion, the government had testimony, by victim Falcaro's wife, which made reference to Falcaro's residence status at the time of the murders. Specifically, Falcaro's wife testified that at the time of his death, her husband resided in Nassau County, was licensed by New York State as an automobile dealer, and paid both state and federal taxes. However, when defendants made their Rule 29 motion, prior to the actual close of the ...