charging conspiracy to murder members of the Persico faction, there is no double jeopardy.
Defendant Bevacqua invokes the double jeopardy clause and moves to dismiss Count Two of the indictment, charging him with using and carrying a firearm during and in relation to the crime of violence charged in Count One of the indictment in violation of 18 U.S.C. § 924(c).
He was previously convicted of a violation of 18 U.S.C. § 922(g)(1) making it unlawful for any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year to possess in or affecting commerce any firearm.
In United States v. Dixon, supra, the Supreme Court in analyzing a double jeopardy claim revived the so-called "same elements" test established in Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932). The same elements test inquires whether each offense contains an element not contained in the other. If not, they are the "same offense" and double jeopardy bars additional punishment and successive prosecution.
The offense for which Bevacqua was convicted and the offense for which he is presently indicted both contain an element not contained in the other. An element of the earlier charge of violation of 18 U.S.C. § 922(g)(1) was a prior conviction for a felony. The government need not establish that prior conviction of a felony in order to convict Bevacqua of the present charge alleged in Count Two.
The government must prove here two elements that it was not required to prove in the previous case, namely, that he not only possessed a firearm but (1) "used" or "carried" it and (2) did so in connection with a crime of violence. 18 U.S.C. § 924(c)(1).
Each of the offenses requires proof of an element not required to prove the other offense. There is thus no violation of the double jeopardy clause. See also United States v. Cutolo, 861 F. Supp. 1142, 1151 (E.D.N.Y. 1994).
In a memorandum and order dated August 5, 1994 in United States v. Cutolo, 861 F. Supp. 1142 (E.D.N.Y. 1994), this court rejected the following contentions.
1. Title 18 U.S.C. § 1959 is unconstitutionally vague;
2. The government must plead and prove all defenses and the corroboration of any accomplice testimony;
3. The indictment fails to provide defendants sufficient specifics to put them on notice;
4. Paragraphs ten and eleven of the indictment contain prejudicial surplusage;
5. The government should file a bill of particulars, should be directed to provide all material consistent with Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), should disclose beneficial treatment of incarcerated witnesses, and should provide a witness list.
The court adheres to its rulings in United States v. Cutolo.
The motion to require the government to preserve the originals of handwritten notes of law enforcement interviews with witnesses is unnecessary because the government represents that it preserves such notes. Where notes are of a statement of a witness actually made or affirmatively adopted or approved by the witness, substantially verbatim, they need not be produced provided that they are later incorporated into a typed report that is disclosed to the defense.
1. The court will hold suppression hearings with respect to Cascio's statements to agents and with respect to evidence seized from the persons and cars of Bevacqua and Miraglia.
2. Since the government represents it will not offer in evidence the beeper seized from the home of Polite, there is no need for a hearing on this matter.
3. Polite's motion to dismiss the indictment for failure of proof or to inspect the grand jury minutes is denied. He has not made the requisite strong showing of particularized need. United States v. Sells Engineering, Inc., 463 U.S. 418, 443, 103 S. Ct. 3133, 3148, 77 L. Ed. 2d 743 (1983).
4. Polite's motion to require that transcripts of a recorded conversation concerning a gun not be distributed to the jury is denied as without merit.
5. Bevacqua's motion to strike from the indictment his alleged alias "Paulie Guns" is granted.
The motions by defendants are denied except to the extent indicated. So ordered.
Dated: Brooklyn, New York
January 31, 1995
Eugene H. Nickerson, U.S.D.J.
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