The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.
ROBERT P. PATTERSON, JR., U.S.D.J.
Defendant Eugene Romero moves to dismiss Counts One and Four of the indictment on the grounds of double jeopardy in violation of his rights under the Fifth Amendment of the United States Constitution. He also argues that the Government is estopped from prosecution of Counts One and Four by virtue of plea agreements made during August 18-20, 1987. Pursuant to those plea agreements, Mr. Romero pleaded guilty before Judge Barrington D. Parker in the United States District Court for the District of Columbia to Count Eight of an indictment filed in the District of Columbia which charged him with possession with intent to distribute over 100 grams of heroin and to Count Two of an indictment filed in the Southern District of New York which charged him in Counts One, Two, and Four with, respectively, participation in a racketeering enterprise, a racketeering conspiracy, and a conspiracy to violate the narcotics laws, violations of 18 U.S.C. §§ 2, 1961, 1962(c), (d) and 21 U.S.C. § 846.
Defendants Randall Cannon and Stephanie Romero each seek a severance from their Co-defendants, asserting that they are alleged to have played only minor roles in the conspiracy charged and will be prejudiced if they are tried together with Eugene Romero and the other Defendants, against whom the Government intends to adduce evidence of acts not participated in by Randall Cannon and Stephanie Romero, including evidence of homicides allegedly carried out to eliminate actual and potential threats to the existence and success of the conspiracy.
Argument was held on January 21, 1992 on Eugene Romero's motion to dismiss and on January 31, 1992 on Randall Cannon's motion to sever. Thereafter counsel for Stephanie Romero waived oral argument on her motion to sever. For the reasons set forth below, Defendant Eugene Romero's motion to dismiss Count Four is denied. His motion to dismiss Count One is also denied, in view of the second superseding indictment filed by the Government on February 26, 1992,
which eliminated all suggestions that Eugene Romero is charged in Count One as a Defendant for acts occurring prior to August 20, 1987. The motions for severance of Defendants Randall Cannon and Stephanie Romero are denied.
1. The 1987 Southern District of New York and District of Columbia Indictments
Count One of the 1987 Southern District of New York indictment charged that Mr. Romero was a participant in an enterprise led by James Jackson called the "Jackson organization," which distributed narcotics, principally heroin, in Manhattan (specifically at 117th Street and 8th Avenue in Harlem), the Bronx (specifically in the Patterson Projects), Bridgeport, Connecticut (specifically in the Father Panik Village housing projects), Washington, D.C., and Boston. The Jackson organization was alleged to have engaged in racketeering activity from January 1, 1980 to the date of the filing of the 1987 indictment. According to that indictment, the heroin was distributed under the brand names "Red Apple," "Purple Rain," and "New York JJ" and sold in "quarters" for approximately fifty dollars or less per quarter. The indictment also alleged that the Jackson organization distributed cocaine obtained principally from unindicted co-conspirator Gregory Berry and committed murder and other acts of violence to eliminate actual and potential competition and obstacles to the enterprise.
Besides Mr. Jackson and Mr. Romero, the 1987 indictment charged Leonard Rollack, Timothy Smith, and Matthew Walton, named as unindicted co-conspirators in Count One of the present indictment, as defendant participants in the Jackson organization. Unindicted co-conspirators named in the 1987 indictment were Anthony Osborne, Anthony MacKenzie, Jerome Harris, Joseph Rodney Stokes, Joseph Sherman, Ted H. Key, Marco Wyche, Alfred Dicks, Warren Cooper, Sherman Flowers, Margie Gates, Anthony Johnson, Russell Fleming, Cherie Brown, Joseph Bethea, and homicide victims James Simmons and Jerry Davis, none of whom are named in the present indictment. Among the racketeering acts charged in Count One of the 1987 indictment were the murders of Marion Robinson, Norman Bannister, and James Simmons, the kidnapping and attempted murder of Jerry Davis, and the attempted murder of Gary Rhines. Defendant Eugene Romero was one of the defendants charged with the murder of Norman Bannister in Act of Racketeering Two.
Count Two of the 1987 indictment charged Mr. Romero with racketeering conspiracy with the same persons and by virtue of the same racketeering acts charged in Count One of that indictment. In Count Four off the 1987 indictment, Mr. Romero and the Count One defendants were charged with conspiracy to violate the narcotics laws from January 1, 1980 to the filing of the indictment in violation of 21 U.S.C. § 846. Although the 1987 and 1991 indictments include overlapping time periods and some of the same co-conspirators, none of the racketeering acts alleged in the 1987 RICO indictment are included as overt acts in Count One of the July 11, 1991 indictment or the superseding indictment.
The 1987 District of Columbia indictment charged Mr. Romero in Count Eight with possession with intent to distribute in excess of 100 grams of heroin on April 21, 1987 in violation of 21 U.S.C. § 841(a), (b)(1)(B)(i), which possession by Mr. Romero together with possession of a gun is included as Overt Act (q) of the indictment pending here. Mr. Romero was charged in Count One of the 1987 District of Columbia indictment with conspiracy to violate the narcotics laws from April 20-21, 1987 to the date of filing the indictment in violation of 21 U.S.C. § 846.
2. The 1987 Plea Agreement
In a proceeding that commenced on August 18, 1987 and concluded on August 20, 1987, Mr. Romero pleaded guilty before Judge Parker in the District of Columbia to Count Two, the racketeering conspiracy, of the 1987 Southern District of New York indictment. At that time, the Government's proffer of proof to be adduced at trial was that, although the racketeering conspiracy continued to 1987, Eugene Romero's involvement consisted of his participation with other co-racketeers in the distribution of heroin between 1980 and 1981 on 116th Street and Eighth Avenue and within the Hotels Rivella and Shelton in Manhattan, which heroin Mr. Romero obtained from a variety store in the vicinity of 159th Street and Amsterdam Avenue owned by Steven Ash. Gov. Aff. in Opp. Exh. B at 20-22.
Mr. Romero allocuted before Judge Parker to distributing heroin from these locations four times during a period of sixty to ninety days in 1981. He admitted he had received the heroin from Steven Ash, an alleged co-racketeer. Mr. Romero claimed he distributed heroin alone and denied any illicit activity with James Jackson or anyone else other than Steven Ash. Id. at 24, 28-31. Based on this allocution, Mr. Romero entered a guilty plea to Count Two of the 1987 Southern District of New York indictment. He also pleaded guilty to Count Eight of the 1987 District of Columbia indictment and acknowledged the possession of heroin charged in that count. The Government agreed that the remaining counts in both indictments would be dismissed at time of sentencing.
On October 6, 1987, the Government by letter to Judge Parker disclosed that, subsequent to Mr. Romero's plea of guilty to Count Two of the Southern District of New York indictment, it learned that Mr. Romero had been involved in more extensive narcotics trafficking than charged and in over one-half dozen homicides committed to eliminate witnesses and narcotics competitors. Based on this new information, the Government moved to vacate the plea agreement. On October 29, 1987, Judge Parker held an evidentiary hearing to address whether the plea agreement should be set aside. During the hearing, Judge Parker heard testimony by Detective Gilbert Hight and Mr. Romero's then attorney David Breitbart. The Government asked that the plea agreement be vacated due to the new evidence received on August 24, 1987 and thereafter. Mr. Breitbart claimed that the Government had already possessed such information at the time of the plea agreement. Detective Hight did testify that on August 13, 1987 he "knew that Mr. Romero was the leader of this particular enterprise for a period of time . . . from the middle of 1980 through the beginning of 1985, a total of about three years" and that "Mr. Romero was the source of supply for this particular organization." Gov. Aff. in Opp. Exh. D at 56-57. But Detective Hight also testified that he and Assistant U.S. Attorney Galeno first learned of Mr. Romero's involvement in additional narcotics trafficking and homicides on or after August 24, 1987. Id. at 58-59.
On December 22, 1987, Judge Parker denied the Government's motion to vacate the plea agreement and sentenced Mr. Romero to fifteen years in prison on the District of Columbia indictment and fifteen years on the Southern District of New York indictment, each term to be served concurrently. Judge Parker expressed the view that the new evidence against Mr. Romero could be prosecuted separately. The remaining charges ...