to infer that there was an agreement, either explicit or implicit, between Costa and Fusco to burglarize the bank. See, e.g., Mariani, 725 F.2d at 865-66 ("Conspiracy can be proven circumstantially; direct evidence is not crucial. . . . Seemingly innocent acts taken individually may indicate complicity when viewed collectively and with reference to the circumstances in general.") (citations omitted). On this basis, this court cannot set aside the verdict of the jury.
Finally, as to count seven, Zappola argues that, because he was previously acquitted of charges that he participated in the burglary of the ALSB (he was convicted on charges of conspiracy to commit that burglary), the government was barred under the Double Jeopardy clause of the federal Constitution from offering against him evidence of his participation in that crime. His argument is grounded in Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990). There, the Supreme Court specifically held that:
The Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.
Id. at 2087. Although, Zappola is not named in count seven of the superseding indictment, and although evidence about his involvement in the ALSB burglary was not offered against him for purposes of establishing his guilt on a Section 2113(a) count in this trial, the evidence of his role in the burglary was offered to show the existence of the RICO enterprise of which Zappola was alleged to be a member. In other words, Zappola argues that certain conduct by him (that is, his conduct in the ALSB burglary) that constituted an offense for which he had already been prosecuted (as a substantive Section 2113(a) violation) was proven at this subsequent trial for the purpose of showing an essential element (the RICO enterprise) of the offense charged in counts one and two of the superseding indictment. Thus, he reasons, the sweeping language of Grady should have precluded the use of that evidence against him on the RICO counts.
However, Grady has been read by the courts of appeals less expansively than its own broad language might suggest. At least three circuits have held that Grady applies only to "single event" crimes; as such, they have determined that Grady is inapposite to double jeopardy analysis in RICO prosecutions. Those circuits have continued to apply Garrett v. United States, 471 U.S. 773, 85 L. Ed. 2d 764, 105 S. Ct. 2407 (1985), to double jeopardy claims in RICO cases; thus, they have held that double jeopardy does not bar a RICO prosecution that alleges as a predicate act a crime for which the defendant was previously prosecuted. See United States v. Arnoldt, 947 F.2d 1120, 1126 (4th Cir. 1991) ("We believe the principles enunciated in Grady govern the paradigmatic 'single course of conduct' case, but that prosecutions under statutes such as RICO . . . -- statutes targeted at 'multilayered' instances of criminal conduct invariably occurring at different places and times -- call for a calculus reflecting the concerns expressed in Garrett."); United States v. LeQuire, 943 F.2d 1554, 1559 (11th Cir. 1991) ("The rationale of Garrett is more appropriate than Grady in RICO situations . . . . Grady. . . is more applicable in single offense situations . . . ."); United States v. Pungitore, 910 F.2d 1084, 1110 (3d Cir. 1990), cert. denied, U.S. , 111 S. Ct. 2009-11 (1991) ("The double jeopardy analysis in . . . Grady. . . cannot easily be transposed to the RICO context . . . . Instead, we consider the double jeopardy problem posed by the successive prosecutions [in a RICO case] to be more closely analogous to that in [Garrett ] . . . ") .
However, this practice -- by which the courts of appeals have analyzed double jeopardy claims for "single event" cases under Grady and double jeopardy claims for RICO cases under Garrett -- has not been expressly adopted by the Second Circuit. Indeed, in the dicta of one case that did not involve a RICO count, the court stated that Grady applied, by its own terms, to "all double jeopardy claims arising in the context of successive prosecutions. " United States v. Calderone, 917 F.2d 717, 721 (2d Cir. 1990). It is not clear, however, what force this passage from Calderone has in the context of a RICO prosecution: Not only did Calderone involve crimes other than RICO, but the panel in that case did not even mention Garrett -- the case that the other circuits have determined to be better suited to double jeopardy claims in RICO cases and a case that the Supreme Court specifically cited (without questioning or overruling) in Grady. Hence, unlike the decisions from other courts of appeals that have evaluated Grady in an attempt to coordinate it with Garrett, Calderone leaves entirely unclear what continued application Garrett is to have in double jeopardy analysis. Compare: United States v. Scarpa, 913 F.2d 993, 1013-14 n. 8 (2d Cir. 1990) (recognizing continued vitality of Garrett after Grady).
Furthermore, Second Circuit cases subsequent to Calderone have cast some doubt on the significance of its construction of Grady -- particularly as it relates to Garrett. See, e.g., United States v. Giovanelli, 945 F.2d 479, 492 (2d Cir. 1991) (recognizing that "single event" crimes and "multilayered conduct" crimes merit separate double jeopardy analyses); United States v. Coonan, 938 F.2d 1553, 1563 (2d Cir. 1990) (citing pre-Grady cases from Second Circuit); United States v. Gambino, 920 F.2d 1108, 1113 (2d Cir. 1990), cert. denied, U.S. , 112 S. Ct. 54 (1991) (recognizing continued vitality of Garrett after Grady and citing Pungitore). Along those same lines, no other double jeopardy case in this circuit has referred to the split decision of Calderone for the proposition that Grady controls all double jeopardy claims. Thus, despite the broad language of Calderone -- language even broader than that of Grady itself -- the Second Circuit has explicitly confirmed that Garrett survives Grady, and the court has implicitly recognized that Garrett may be a better tool than Grady for double jeopardy analysis in RICO cases.
This court is satisfied that, under a Garrett analysis, the introduction at this RICO trial of evidence concerning Zappola's role in the ALSB burglary in order to demonstrate the "enterprise" element of the RICO counts did not violate double jeopardy. The circuit courts have consistently read Garrett for the proposition that double jeopardy does not bar successive prosecutions for an act that constitutes both an independent substantive offense and a predicate act offense under RICO. See, e.g., Arnoldt, 947 F.2d at 1126-27. Indeed, those courts have applied Garrett in this manner even when -- as in this case -- the racketeering activity in question did not continue beyond the date of the first prosecution. See id. at 1126 n. 7. If the successive prosecutions of particular events both as substantive offenses and as predicate acts under RICO do not offend double jeopardy, a fortiori the introduction of testimony about an already prosecuted substantive offense as mere evidence of the enterprise element of RICO likewise does not ran afoul of that constitutional bar. See, e.g., Dowling v. United States, 493 U.S. 342, 107 L. Ed. 2d 708, 110 S. Ct. 668 (1990) (introduction of testimony about previously prosecuted burglary as evidence of identity of burglar in bank robbery prosecution was not barred by double jeopardy).
Furthermore, even if Grady does control the analysis of this case, the introduction of this evidence against Zappola still withstands double jeopardy scrutiny. First, it is important to note that, on at least one possible construction of Grady, the conduct involved in a violation of Section 2113(a) and the conduct involved in a violation of RICO are not necessarily congruent. In the first case, the relevant "conduct" of Zappola was his endeavor to commit a felony affecting the ALSB; in the second case, the relevant "conduct" of Zappola was his participation in an enterprise that engaged in a pattern of racketeering activity. See, e.g., United States v. Gonzalez, 921 F.2d 1530, 1538 (11th Cir.), cert. denied, U.S. , 112 S. Ct. 96 and 178 (1991) (distinguishing conduct involved in importation and distribution of contraband from conduct involved in RICO conspiracy for purposes of Grady v. Corbin). Indeed, Grady specifically rejected both a "same evidence" and a "same transaction" test -- either of which would more closely circumscribe the standards for determining the relevant "conduct." See Grady, 110 S. Ct. at 2093 and at 2094 n. 15. Thus, it is not altogether clear that Grady operates to foreclose the introduction of this evidence for the purpose of demonstrating Zappola's participation in the RICO enterprise.
Secondly, it appears also that the circumstances of this case -- the offering of this evidence against Zappola to support the "enterprise" element of RICO -- may well fall outside the intended scope of Grady. A carefully reasoned concurring opinion by Judge Newman in Calderone attempts to delineate more clearly the "element" component of the Grady test. Judge Newman points out that, as Justice Scalia had remarked in dissent in Grady: "All evidence pertaining to guilt seeks 'to establish an essential element of [the] offense,' and should be excluded if it does not have that tendency." Grady, 110 S. Ct. at 2103. Thus, Judge Newman observes, a broad reading of the "element" component of Grady would threaten any meaningful boundary to the Grady test. Rather:
I think we are obliged to apply Grady in a way that gives the "element" component significance. That means barring the second prosecution only when the conduct previously prosecuted is to be used to "establish" the element of the second crime, which I think must mean "constitute the entirety of" the element. If Grady is read more broadly, that is, if the second prosecution is barred whenever the previously prosecuted conduct is to be used only as evidence of an element of the second offense, then we would almost be applying a "same evidence" test. Instead, I think it more likely that the Supreme Court expected Grady to apply only when the conduct prosecuted at the first trial is or may constitute the entirety of an element of the offense at the second trial.
Calderone, 917 F.2d at 724. Not only does this reading render the "element" segment of Grady more meaningful, it also, as Judge Newman argues, reconciles Grady with Dowling -- a task thought to be problematic by the Grady dissenters.
This court is persuaded by Judge Newman that the words "to establish an element" in Grady signify "constitute the entirety of an element." Thus, if indeed Grady applies to the double jeopardy analysis in a RICO case such as this one, the analysis must be as follows: Although Zappola's conduct in the ALSB burglary was introduced at this trial "as evidence of" his participation in the charged enterprise and although "enterprise" is an element of a RICO offense, Zappola's conduct was not introduced "to establish" the enterprise element because that conduct did not -- and could not -- "constitute the entirety of [the enterprise] element." Indeed, at trial the government introduced substantial additional evidence of the existence of the charged enterprise and of Zappola's participation in that enterprise; as such, the matters concerning his role in the bank burglary were not by any means dispositive of the enterprise element of the RICO counts. Hence, either under Garrett or under Grady, the double jeopardy claim of the defendant Zappola proves to be meritless.
6. Count Thirteen: 18 U.S.C. § 1512
Count thirteen of the superseding indictment charged that the defendants Bloome and Fusco, in violation of 18 U.S.C. § 1512, attempted to kill Dominick Costa with the intent to prevent him from communicating to a federal law enforcement officer information about the commission of federal crimes. The defendants tersely contend that: "The evidence . . . on this count . . . was insufficient to sustain the jury's verdict. The evidence was insufficient, contradictory and incredible as a matter of law." Memorandum of Defendants at 9.
Although one might have hoped for a fuller account of the defendants' position, the conclusory statements advanced in lieu of an argument are adequate to reveal the lack of merit on this point. At trial, the government adduced on count thirteen the testimony of Dominick Costa as well as the testimony of Dorothy Lazar (a corroborating eyewitness). This court attended carefully to the testimony of those witnesses and did not find it at all to be "insufficient, contradictory [or] incredible as a matter of law." The defendants' motion to set aside the verdict on count thirteen is therefore denied.
For the reasons indicated above, the motion of the defendants to set aside the guilty verdicts on all counts and to enter a judgment of acquittal is denied in all respects.
Dated: Brooklyn, New York
February 7, 1992
I. Leo Glasser, U.S. D. J.
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