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U.S. v. GAMBINO

August 22, 1990

UNITED STATES OF AMERICA
v.
GIUSEPPE GAMBINO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Leisure, District Judge:

ORDER & OPINION

Defendant Emanuele Adamita ("Adamita") has been indicted for conspiracy to import narcotics into the United States in violation of 21 U.S.C. § 963, for conspiracy to distribute or to possess with intent to distribute narcotics in violation of 21 U.S.C. § 846, and for participation in a racketeering conspiracy in violation of the RICO statute, 18 U.S.C. § 1962(d). Adamita has filed a motion to dismiss the indictment against him pursuant to the double jeopardy clause of the fifth amendment to the U.S. Constitution. More specifically, Adamita argues that the recent decision of the U.S. Supreme Court in Grady v. Corbin, ___ U.S. ___, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), mandates dismissal of the charges against him contained in the pending indictment.

BACKGROUND

On January 25, 1990, the Court denied Adamita's motion to dismiss the indictment against him pursuant to the double jeopardy clause. See United States v. Gambino, 729 F. Supp. 954, 968-69 (S.D.N.Y. 1990). On May 29, 1990, the U.S. Supreme Court issued its opinion in Grady v. Corbin, supra, 110 S.Ct. 2084, which appears to expand the protection afforded criminal defendants by the double jeopardy clause. On July 9, 1990, Adamita renewed his motion to dismiss the indictment pursuant to the double jeopardy clause. The prior order and opinion of the Court recited the full background of the case, including the charges contained in the indictment, and Adamita's prior involvement in criminal activity. Only those facts relevant to the pending motion will be recounted herein.

On November 25, 1988, Adamita pled guilty to one count of conspiracy and three counts of substantive distributions of narcotics before Judge Sprizzo in United States v. Adamita, 701 F. Supp. 85. (S.D. N.Y. 1988). Judge Sprizzo stated at the time of the pleas that Adamita would be allowed to withdraw his guilty pleas to three of the counts — the conspiracy count and two of the distribution counts — if the U.S. Supreme Court upheld the constitutionality of the Federal Sentencing Guidelines (the "Guidelines") which Judge Sprizzo had previously found unconstitutional. Adamita would not be allowed to withdraw his guilty plea to the final substantive count — a distribution of heroin by Adamita taking place on August 11, 1987 (the "August 11, 1987 distribution") — as it was a pre-Guidelines offense. After the Supreme Court upheld the Guidelines in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), Adamita withdrew his guilty pleas to the three Guidelines charges. Thus, the only criminal charge against Adamita which may have preclusive effects under the double jeopardy clause is the August 11, 1987 distribution to which he pled guilty before Judge Sprizzo.*fn1

The pending indictment charges Adamita with conspiracy to import narcotics into the United States, conspiracy to distribute or to possess with intent to distribute narcotics, and participation in a RICO enterprise. See United States v. Gambino, supra, 729 F. Supp. at 956-57. The August 11, 1987 distribution is incorporated as overt act 64 in both conspiracy counts, and as a part of predicate act 18 in the RICO count. As counsel for Adamita had not identified the August 11, 1987 distribution as being part of the pending indictment in his previous motion to dismiss pursuant to the double jeopardy clause, the Court will now consider any and all preclusive effects of this offense. See United States v. Gambino, supra, 729 F. Supp. at 968.

DISCUSSION

A. The Conspiracy Counts

Neither Grady v. Corbin, nor any other case, holds that an individual who has pled guilty to a substantive offense cannot later be tried for conspiracy to commit the substantive offense. Such a holding would be at odds with the nature of the crime of conspiracy. It is clear that "the essence of conspiracy is the agreement and not the commission of the substantive offense that is its objective. . . ." United States v. Labat, 905 F.2d 18, 21 (2d Cir. 1990) (citing United States v. Abel, 258 F.2d 485, 489 (2d Cir. 1958), aff'd on other grounds, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960)); see also Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975) ("Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes."). Under pre-Grady analysis, the August 11, 1987 distribution would have no double jeopardy effects on Adamita's current indictment for participation in two narcotics conspiracies. See United States v. Nersesian, 824 F.2d 1294, 1319-20 (2d Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987); United States v. Slocum, 695 F.2d 650, 656 (2d Cir. 1982), cert. denied, 460 U.S. 1015, 103 S.Ct. 1260, 75 L.Ed.2d 487 (1983).

In Grady v. Corbin, supra, 110 S.Ct. 2084, the Supreme Court held that the double jeopardy clause barred a prosecution for homicide after the defendant had previously pled guilty to two traffic offenses stemming from a single incident of drunk and reckless driving. In reaching its holding, the Court rejected the contention that the test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) — which provides that cumulative penalties, and thus successive prosecutions, should not be barred if each offense charged requires proof of an element which the other does not — constituted the full extent of double jeopardy protection. Grady, supra, 110 S.Ct. at 2090-92. Rather, the Court held that "a subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in [Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980)], the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. 110 S.Ct. at 2093. The Court rested its holding on dicta contained in its prior decisions in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and Illinois v. Vitale, supra, 447 U.S. 410, 100 S.Ct. 2260.*fn2 Thus, the defendant's guilty pleas to traffic tickets for driving while intoxicated and failing to keep to the right of the painted median barred his subsequent prosecution for homicide, as the government had admitted, in a bill of particulars, that it would rely on the same conduct in its homicide case to which the defendant had previously pled guilty. See Grady, supra, 110 S.Ct. at 2094.

The "same conduct" test of Grady v. Corbin does not support Adamita's renewed arguments to dismiss the conspiracy charges against him under the double jeopardy clause. In fact, the holding of Grady v. Corbin does not appreciably change the law in the context of a narcotics conspiracy prosecution of an individual previously convicted of a substantive narcotics offense. As stated above, the conspiracy charges now pending against Adamita involve illegal agreements amongst Adamita and his co-conspirators to traffic in narcotics. The charges do not involve, or rely on, Adamita's August 11, 1987 distribution of heroin, or any other conduct constituting a substantive narcotics offense. Adamita's motion to dismiss the conspiracy charges currently pending against him under the double jeopardy clause is denied.

B. The RICO Count

In Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), the Supreme Court held that the defendant's prosecution for engaging in a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848, was not barred on double jeopardy grounds by his prior conviction for importation of marihuana, even though the government charged the substantive marihuana offense as a predicate act of the CCE. The CCE statute requires that the government prove that the defendant committed at least one narcotics-related felony which was "a part of a continuing series of violations. . . ." 21 U.S.C. § 848(b)(1), (2). The Court declined to transpose "the `lesser included offense' principles of double jeopardy from the ...


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