Appeal from an order of the United States District Court for the Southern District of New York, Richard Owen, Judge, denying defendant's motion to dismiss charges on double jeopardy grounds. Held, successive conspiracy prosecutions not barred where there are significant differences in time, location, participants, and overt acts.
Lumbard, Oakes, and Kearse, Circuit Judges.
Mark Reiter appeals an order of the United States District Court for the Southern District of New York, Richard Owen, Judge, denying Reiter's motion to dismiss a predicate act contained in a substantive racketeering charge and referred to in a conspiracy charge on the ground that prosecution was barred by the Double Jeopardy clause of the United States Constitution. Reiter alleges that the same conspiracy was charged in a 1983 indictment in the Southern District of New York, which Judge Mary Johnson Lowe ultimately dismissed, and in a 1986 indictment which is the subject of an ongoing prosecution in the Eastern District of New York before Joseph M. McLaughlin, Judge. We disagree and accordingly affirm the order.*fn1
A. Reiter I. Over the past six years, Mark Reiter has been charged with criminal conduct in three separate indictments. The first, "Reiter I," charged him with one count of conspiracy to distribute heroin from January 1980 through April 28, 1983, in the Southern District of New York and elsewhere, in violation of 21 U.S.C. § 846 (1982). United States v. Grant, 82 Cr. 727 (S.D.N.Y. filed Apr. 28, 1983). The indictment named Thelma Grant, Salvatore Corallo, and Elizabeth Grant as Reiter's coconspirators. Thelma Grant was named in all nine counts and charged with, among other things, conspiring with others to violate the federal narcotics laws and with engaging in a continuing criminal enterprise. Grant, a close friend of Leroy "Nicky" Barnes, was suspected of operating Barnes's massive heroin distribution business following his conviction on December 2, 1977. The Government contended that in the summer of 1980, Barnes arranged through Herbert Sperling, with whom he was incarcerated in Marion, Illinois, for Reiter and Corallo to supply heroin to Grant.
Grant pleaded guilty to all the counts in the indictment but denied in court that Reiter and Corallo were involved in the conspiracy. She testified that she had two sources for the drugs sold to the undercover agent. The prosecution contended, however, that Reiter supplied heroin for several sales to an undercover agent who, posing as a former customer of Barnes, asked to purchase heroin from Grant in March 1982. The evidence showed that Reiter met with Grant at a Manhattan restaurant on March 12, 1982, and that the next day Corallo delivered heroin to Grant for resale to the agent. On April 29, 1982, Grant told the undercover agent that her source was "a Jew" and "an Italian." After the Government presented its evidence against Reiter, the district court entered a judgment of acquittal as to Reiter pursuant to Fed. R. Crim. P. 29.
B. Reiter II. In 1982 the FBI conducted a large-scale investigation of the activities of Angelo Ruggiero and his associates. In an application for a wiretap of Ruggiero's home, FBI Special Agent Donald McCormick submitted an affidavit in which he stated:
CS-1 [confidential informant] stated that RUGGIERO and JOHN GOTTI, approximately a year ago pretended to expel Mark Reiter from their crime crew, because Reiter was continuing to handle and distribute narcotics in violation of a Gambino Family edict prohibiting the conduct of narcotics trafficking. Nonetheless, CS-1 stated that Reiter continues to deal in heroin and cocaine and is being funded by RUGGIERO [and others].
CS-2 states that he has overheard a cryptic discussion between EUGENE GOTTI and another concerning the fact that Mark Reiter is still working for RUGGIERO. CS-2 advised that he heard members of the GOTTI-RUGGIERO crew state that Mark Reiter strictly handles narcotics for that crew.
The investigation resulted in a multicount indictment, "Reiter II," which charged Reiter and ten codefendants (Angelo Ruggiero, Gene Gotti, John Carneglia, Joseph Guagliano, Oscar Ansourian, Gerlando Sciascia, Edward Lino, William Robert Cestaro, Salvatore Greco, and Joseph LoPresti) and an unindicted coconspirator (Salvatore Ruggiero) with conspiring in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (1982) in the Eastern District of New York and elsewhere from February to June 1982. The indictment also charged Reiter's codefendants with other narcotics offenses, racketeering, and obstruction of justice in violation of 18 U.S.C. §§ 1510, 1952, 1962(c) (1982 & Supp. IV 1986), and 21 U.S.C. §§ 841(a)(1), 843(b), 846 (1982).
In a post-indictment application to secure handwriting exemplars, the Assistant United States Attorney wrote:
The Government's theory at trial will be that the delivery of the heroin from ANGELO RUGGIERO to MARK REITER was effectuated by SALVATORE GRECO through a "pickup man" and close associate of MARK REITER, SALVATORE CORALLO who had previously delivered 1/8 ...