The opinion of the court was delivered by: Platt, Chief Judge.
Petitioner moves, pursuant to 28 U.S.C. § 2255, for an order
to vacate or reduce his sentence. Petitioner was sentenced by
this Court to consecutive twenty year terms of imprisonment for
violation of 18 U.S.C. § 1962(c) and (d) of the RICO Act. In
support of his petition, petitioner claims that consecutive
sentences are improper because Count II (conspiracy to violate
RICO — § 1962(d)) was a lesser included offense of Count I
(substantive RICO violations including conspiracy to commit
various state crimes — § 1963(c)). Therefore, petitioner
claims, consecutive sentences constitute a Double Jeopardy
Petitioner originally raised his Double Jeopardy claim in his
Rule 33 motion to dismiss the indictment or in the alternative
Count II thereof. This Court denied that motion. Petitioner
again raised his Double Jeopardy claim on direct appeal to the
Second Circuit. Circuit Judges Timbers, Meskill and Pratt
rejected petitioner's claim without discussion. United States
v. Paone, 782 F.2d 386, 395 (2nd Cir. 1986). Petitioner's
application for a writ of certiorari was subsequently denied by
the Supreme Court. Marino v. United States, 483 U.S. 1019, 107
S.Ct. 3262, 97 L.Ed.2d 761 (1987).
Petitioner again raised his Double Jeopardy claim in a Rule
35(b) motion before this Court. We denied petitioner's motion
and also denied his motion for reconsideration. Petitioner
appealed this Court's denial of his Rule 35(b) motion to the
Second Circuit. In an unpublished decision dated March 7, 1989
Circuit Judges Oakes, Feinberg and Pratt held that the District
Court had not abused its discretion in imposing petitioner's
sentence. In addition, the Court of Appeals "left open to the
District Court the possibility of treating Marino's other claim
— that he should not have received consecutive sentences . . .
— as a Petition for Habeas Corpus under 28 U.S.C. § 2255
(1982)." Per the suggestion of the Circuit Court this Court
appointed counsel to brief petitioner's Double Jeopardy claim
and appointed counsel filed petitioner's habeas corpus petition
on December 15, 1989.
For the reasons stated below petitioner's petition for a writ
of habeas corpus must be and hereby is denied.
Petitioner already raised his claim regarding the
inappropriateness of consecutive sentences on direct appeal.
"It is well settled that a Section 2255 motion to vacate
sentence `cannot . . . be employed to relitigate questions
which were raised and considered on the appeal.'"
Castellana v. United States, 378 F.2d 231, 233 (2nd Cir. 1967).
If, however, there is an intervening change of law that would
have changed the result of petitioner's direct appeal,
petitioner may relitigate the issue in his 28 U.S.C. § 2255
motion. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41
L.Ed.2d 109 (1974). No such intervening change of law has
occurred, however, in the case at bar and petitioner's petition
is, therefore, denied.
Given the fact that petitioner's petition was prompted by the
Second Circuit ruling on his Rule 35(b) motion, we will,
nonetheless, briefly discuss the current law.
In Blockburger v. United States the Supreme Court established
the test used to determine whether a Double Jeopardy violation
may arise or exists.
The applicable rule is that where the same act or
transaction constitutes a violation of two
distinct statutory provisions, the test to be
applied to determine whether there are two
offenses or only one, is whether each provision
requires proof of a fact which the other does not.
284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The
Second Circuit has held that § 1962(c) and § 1963(d) require
different proofs and have therefore upheld consecutive
sentences imposed in such cases. See, e.g., United States v.
Thomas, 757 F.2d 1359, 1370 (2nd Cir. 1985) (citing United
States v. Bagaric, 706 F.2d 42, 63-64 n. 18 (2nd Cir. 1983))
("the plain language and different elements of § 1963(c) and §
1963(d) combined with the absence of a contrary legislative
intention, support the imposition of consecutive sentences for
the violation of both subsections.")
Petitioner suggests that this case is distinguishable from
previous Second Circuit cases because Count I alleges,
inter alia, conspiracy to violate state and federal statutes
and Count II alleges conspiracy to violate RICO. Therefore,
petitioner claims, unlike previous Second Circuit cases, the
two separate charges in this case are directed at the same
evil, i.e. the agreement to engage in criminal activity.
Further, petitioner claims, analysis of the specific
allegations will reveal that the agreements under Counts I and
II are the same agreements. Petitioner is mistaken.
"[A] proper double jeopardy analysis involves a legal
approach rather than the fact specific inquiry urged."
United States v. Muhammad, 824 F.2d 214, 215 (2nd Cir. 1987).
"[T]he Court's application of the test focuses on the statutory
elements of the offense. If each requires proof of a fact that
the other does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to
establish the crimes." Albernaz v. United States, 450 U.S. 333,
338, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981) (quoting
Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct.
1284, 1293 n. 17, 43 L.Ed.2d 616 (1975). "Albernaz requires us
to focus on the provisions of the statutes involved, rather
than on the evidence adduced at trial, to determine whether the
punishment [petitioner] received was proper under Blockburger."
United States v. Langella, 776 F.2d 1078, 1082 (2nd Cir. 1985).
Focus on § 1962(c) and (d) reveals that each requires proof
that the other does not. Subsection (c) requires proof of a
fact, namely a "pattern of racketeering activity"*fn1 which
subsection (d) does not. Moreover, subsection (d) requires
proof of a fact, namely an agreement, which subsection (c) does
not. Simply because there may have been proof of individual
conspiracies at trial to help establish a pattern of
racketeering is irrelevant to our Double Jeopardy analysis
because our focus is on the statutes themselves and not the
at trial.*fn2 ...