Conspiracy involved gasoline supplied only by NYFT, whereas all the gasoline in the Tarricone Conspiracy was supplied by ATI. The Macchia Conspiracy involved the use of false invoices stating that NYFT sold gasoline to approximately 18 licensed companies, whereas the Tarricone Conspiracy involved false invoices from ATI to Conlo alone. While Conlo was one of the 18 licensed companies used in the NYFT scheme, the Macchia Indictment does not allege any book transfers involving Conlo after March 1984. As noted above, the Tarricone defendants did not use Conlo to effectuate the Conlo/Beck daisy chain (by using the Conlo license to acquire tax-free gasoline from ATI) until after the Conlo license was acquired by Pabone and Quock in December 1985, at which point Conlo was no longer used in the Macchia Conspiracy to avoid NYFT's excise tax. Conlo was then used in the Tarricone Conspiracy to hide ATI's excise tax liability for some 21 barges of gasoline distributed by ATI. Beck was never used in any capacity in the NYFT scheme. In short, both conspiracies had a full complement of players, and the actual and contrived transactions to effect each of the schemes do not indicate that one conspiracy was part of the other or that one conspiracy could not operate without the other.
A comparison of the overt acts charged in the Macchia Indictment to those in the Tarricone Indictment indicates no common overt acts. The overt acts charged in the Tarricone Conspiracy dealt with the supply of gasoline from a different source than in the Macchia Conspiracy, with the evasion of the tax liability of a different company than in the Macchia Conspiracy, and concealed by different "burn" companies (Conlo and Beck as then owned by Pabone and Quock) than used in the Macchia Conspiracy. The overt acts charged in the Tarricone Indictment do not appear to be the result of the government's "carving out" a narrower conspiracy from a larger, ongoing one (i.e., the Macchia Conspiracy), as they relate solely to the perpetration of the Conlo/Beck daisy chain scheme to evade ATI's tax liability. They are not part of a scheme to evade NYFT's tax liability.
Merely because two separate conspiracies concerning the evasion of tax on gasoline occurred in the same general geographic area, i.e., the New York/New Jersey Metropolitan area, does not make them the same conspiracies for double jeopardy purposes. This geographic area certainly is large enough to support two separate, and for nearly one year simultaneous, conspiracies involving bootleg gasoline, as it apparently did here. See, e.g., United States v. Mallah, 503 F.2d 971, 983 (2d Cir. 1974), cert. denied, 420 U.S. 995, 43 L. Ed. 2d 671, 95 S. Ct. 1425 (1975) ("New York City is large enough to harbor two simultaneous narcotics conspiracies . . . . "). In fact, the Tarricone Conspiracy involved barge loads of gasoline bought by ATI in New Jersey and transported to terminals in New Jersey, Brooklyn, Westchester and Long Island, but not to the Macchia's M & Q terminal in Brooklyn. The gasoline transactions in the Macchia Conspiracy allegedly occurred primarily in the M & Q terminal in Brooklyn, New York, and all of the gasoline was supplied by NYFT.
As for the objectives of the two conspiracies, each was different: the Tarricone Conspiracy sought to evade the excise tax liabilities for ATI, whereas the Macchia Conspiracy sought to evade the excise tax liabilities for NYFT. Accordingly, this Court disagrees with defendants' contention that the objectives were the same because there was "one unified goal," i.e., "to cheat on excise taxes and to make as much money for the participants," Tr. Oral Arg. 53.
In sum, under the totality of the circumstances, notwithstanding that there is some overlap in time, place and participants of the two conspiracies, and both indictments charged conspiracy to evade federal gasoline excise taxes, these similarities are far outweighed by the differences in operations, overt acts and objectives of the two conspiracies, and the relative independence of the two conspiracies. The similarities do not alter this Court's determination that the two conspiracies appear to be distinct as a matter of law and fact.
For the reasons above, Count One of the Superseding Indictment is not barred under the double jeopardy clause. Accordingly, the motions by defendants Balagula and Barberio to dismiss Count One of the Superseding Indictment on the grounds of double jeopardy are denied.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
March 9, 1994