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UNITED STATES v. NULTY

June 15, 1994

UNITED STATES OF AMERICA
v.
THOMAS McGOWAN and WILLIAM NULTY, Defendants.



The opinion of the court was delivered by: RAYMOND J. DEARIE

 DEARIE, District Judge.

 Defendant Thomas McGowan moves to dismiss Count One of the indictment on double jeopardy grounds. In addition, McGowan moves to dismiss Counts Two and Three of the indictment on the alternate grounds of double jeopardy or collateral estoppel.

 The Court concludes that the Double Jeopardy Clause of the Fifth Amendment bars prosecution of the labor payoff conspiracy charged in Count One, but does not bar prosecution of the substantive offenses charged in Counts Two and Three. Further, those substantive offenses are not barred by collateral estoppel. Accordingly, McGowan's Motion to Dismiss is granted as to Count One and denied as to Counts Two and Three. *fn1"

 I. FACTUAL BACKGROUND

 A. The Windows Case

 In United States v. Mangano,2 popularly referred to as the "Windows " case, Thomas McGowan and fourteen other defendants were charged with monopolizing and corruptly controlling the window replacement industry in the New York City area through racketeering, extortion, mail fraud, and payoffs to union officials. The centerpiece of the Windows prosecution was a massive RICO conspiracy in which it was alleged that, for over a decade, members and associates of four organized crime families joined with corrupt union officials and window manufacturers and installers in a bid-rigging scheme that controlled the lucrative window replacement market in New York City. Numerous racketeering acts were charged, including a multitude of labor payoffs, acts of extortion, and instances of mail fraud. The primary - - but by no means exclusive - - focus of the Windows trial was alleged bid-rigging on New York City Housing Authority ("NYCHA") windows. In the multi-count Windows case, McGowan, an official of Local 580 of the Architectural and Ornamental Workers Union ("Local 580"), was charged in Count One (Racketeering Conspiracy), Count Two (Racketeering), Count Three (Extortion Conspiracy), Count Four (Labor Payoff Conspiracy), Count Five (Mail Fraud Conspiracy), Counts 6-8 (Labor Payoffs), Counts 12-34 (Labor Payoffs), Count 65 (Labor Payoff), Count 67 (Labor Payoff), and Counts 68-69 (Mail Fraud). Windows Indictment.

 At issue in this case is the scope of the labor payoff conspiracy charged in Count Four of the Windows indictment. Specifically, in that count McGowan was charged, along with fourteen named defendants and others, with participation in a broad decade-long conspiracy to receive illegal labor payoffs in connection with the window replacement industry in the New York metropolitan area. On October 18, 1991, after a six month jury trial over which this Court presided, defendants Benedetto Aloi, Dennis Delucia, and Venero Mangano were convicted on charges of conspiracy to commit extortion (Count 3) and extortion (Count 59). The jury acquitted on all remaining charges - - including all charges of racketeering, labor payoffs and the related conspiracies.

 B. The McGowan Indictment

 In Count One of the indictment in this case, McGowan, along with co-defendant William Nulty and others unnamed, is charged with a labor payoff conspiracy under the Taft-Hartley Act, 29 U.S.C. Section 186(b)(1) & (d)(2), in connection with the installation of windows for "Spring Creek," a privately built housing development in Brooklyn, New York. In his Motion to Dismiss, McGowan contends that the conduct charged in Count One of the McGowan indictment falls squarely within that charged in Count Four of the Windows indictment. Thus, he argues that his prior acquittal in the Windows payoff conspiracy precludes his prosecution for his alleged involvement in the "Spring Creek" conspiracy.

 In Counts Two and Three of the McGowan indictment, McGowan and co-defendant Nulty are charged with substantive violations of the Taft-Hartley Act. In his Motion to Dismiss, McGowan argues that double jeopardy principles and the doctrine of collateral estoppel bar the prosecution of these substantive violations.

 II. DISCUSSION

 A. Count One

 The Double Jeopardy Clause of the Fifth Amendment states: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V, cl. 2. The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal." Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977), (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072, (1969)). Determining what constitutes prosecution for the "same offense," however, can be a challenging and exacting task, particularly in the context of successive conspiracy prosecutions.

 In recent years, this task has been further complicated because double jeopardy jurisprudence has been in a state of flux, particularly in cases where conspiracy charges are involved. In 1990, the United States Supreme Court announced the rule that "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." Grady v. Corbin, 495 U.S. 508, 521, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990). This "same conduct" test was relatively short-lived: it was limited by United States v. Felix, 118 L. Ed. 2d 25, 112 S. Ct. 1377 (1992), and explicitly overruled by United States v. Dixon, 125 L. Ed. 2d 556, 113 S. Ct. 2849 (1993). In the interim, however, the Second Circuit struggled to apply the dictates of Grady to double jeopardy cases involving successive conspiracy prosecutions. See e.g. United States v. Calderone, 917 F.2d 717 (2d Cir. 1990) ("Calderone I"), vacated and remanded, 112 S. Ct. 1657 (1992) (remanding case for further consideration in light of Felix); United States v. Gambino, 920 F.2d 1108 (2d Cir. 1990) ("Gambino I"), vacated and remanded, 112 S. Ct. 1657 (1992) (remanding case for further consideration in light of Felix).

 Despite this somewhat turbulent history, the Second Circuit has now clarified that the Supreme Court has "returned double jeopardy jurisprudence to its pre-Grady dimensions." United States v. Liller, 999 F.2d 61, 63 (1993). Prior to Grady, the starting point for any determination of whether successive conspiracy prosecutions charged the same offense was the multi-factor analysis set forth in United States v. Korfant, 771 F.2d 660 (2d Cir. 1985). Korfant is still good law. United States v. Calderone, 982 F.2d 42, 45 (2d Cir. 1992) ("Calderone II"); United States v. Gambino, 968 F.2d 227, 232 (2d Cir. 1992) ("Gambino II"). Accordingly, the following "Korfant " factors must be considered in determining whether two conspiracies are the same offense for double jeopardy purposes:

 
(1) the criminal offenses charged in successive indictments; (2) the overlap of participants; (3) the overlap of time; (4) similarity of operation; (5) the existence of common overt acts; (6) the geographic scope of the alleged conspiracies or location where overt acts occurred; (7) common objectives; and (8) the degree of interdependence between alleged distinct conspiracies.

 Korfant, 771 F.2d at 662 (citations omitted). Application of these factors is no easy task: "neither Korfant nor the decisions that have endeavored to apply it have explicitly clarified the analytic framework in which the identified factors are to be assessed." Calderone II, 982 F.2d at 45. Nevertheless, the parties agree that in successive conspiracy cases the Korfant factors should be used by the Court to assess whether, under the "totality of the ...


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