The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:
Defendant Dominick Dionisio, an associate of the Colombo organized crime family of La Cosa Nostra since around 1990, presently is charged with racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d) (hereinafter the "2004 indictment"). Defendant moves to dismiss the 2004 indictment on double jeopardy grounds and a breach of plea agreement theory. The court held oral argument on defendant's motion on September 1, 2005 and asked the parties for further briefing on the issues. For the reasons that follow, defendant's motion is denied.
Defendant's motion to dismiss is based on the disposition of a previous indictment, in 2001, in the Eastern District of New York (01-CR-56) for substantive racketeering and racketeering conspiracy charges covering the time period from 1993 to 2001 and involving the Colombo family (hereinafter the "2001 indictment"). Pursuant to a written plea agreement, defendant pled guilty on January 16, 2002 to one count of substantive racketeering (RICO, 18 U.S.C. § 1962(c)), which included the following as predicate, or "racketeering," acts: loansharking conspiracy, two acts of money laundering conspiracy, conspiracy to distribute marijuana, conspiracy to distribute MDMA, and securities fraud.*fn1 The racketeering conspiracy count alleged in the 2001 indictment included these same racketeering acts. Other than the substantive racketeering count, all other counts in the 2001 indictment, including the racketeering conspiracy count, were dismissed "with prejudice" (Def.'s Ex. B ¶ 5(b)).
Defendant contends that the 2004 indictment seeks to punish him for the same conduct he was punished for in the 2001 indictment. Specifically, defendant claims the 2004 indictment repeats conduct contained in Racketeering Act Three of the 2001 indictment, "Conspiracy to Distribute Marijuana," which states:
In or about and between January 1999 and May 1999, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant DOMINICK DIONISIO, together with Enrico Monteperto and others, knowingly and intentionally conspired to distribute a substance containing marijuana, a Schedule I controlled substance, in violation of Title 21, United States Code, Section 846. (Def.'s Ex. A ¶ 21.) The Presentence Investigation Report (PSR) for the 2001 indictment, dated May 3, 2002, described Racketeering Act Three as follows:
In 1999, [Joseph] Petillo attempted to recruit [Anthony] Molinaro to pick up a 500 pound (227 kilograms) shipment of marijuana in Baltimore, Maryland, for his (Petillo's) friend. When Molinaro declined the offer, Petillo recruited Monteperto instead. On the day of the arranged pick-up, Dionisio and Monteperto robbed the shipment of marijuana from the suppliers in Baltimore and did not deliver it to Petillo's friend. The Government advised that it is unknown whether the defendants were armed during this robbery. Additionally, it is unknown whether Dionisio and Monteperto distributed the approximately 227 kilograms of marijuana which they stole. (Def.'s Ex. C ¶ 40.) An affidavit supplied at the court's request following oral argument, from Gary J. Pontecorvo, an FBI special agent who was the case agent for the 2001 and 2004 prosecutions of defendant, describes this conduct somewhat differently:
According to [William] Cutolo, Jr., in the Spring of 1999, Dionisio advised him that he (Dionisio) and "Ricky" (Colombo associate Enrico Monteperto) stole 1,000 pounds of marijuana from the intended recipients by posing as police officers. Dionisio advised that they drove a car for a long period of time on the East Coast and jumped out of the car and shouted to the recipients of the marijuana load to stick them up. This robbery, according to Cutolo, Jr., caused conflict within the crew of Cutolo, Sr. because crew member and Colombo associate Joseph Petillo was associated with individuals who were to receive the marijuana shipment that Dionisio had stolen. Dionisio further advised Cutolo, Jr. that he had sold the load of marijuana. (Pontecorvo Aff. ¶ 4.)
The plea agreement defendant signed in 2002 contained the following language: no further criminal charges will be brought against the defendant for the specific crimes charged against the defendant in the above-captioned superseding indictment, it being understood that this agreement does not bar the use of such conduct as a predicate act or as the basis for a sentencing enhancement in a subsequent prosecution including, but not limited to, a prosecution pursuant to 18 U.S.C. §§ 1961 et seq. (Def.'s Ex. B ¶ 5(a).) The Honorable Reena Raggi, then U.S. District Judge, sentenced defendant on June 4, 2002 to 78 months of imprisonment. This sentence was to run concurrently with a sentence imposed by U.S. District Judge Nina Gershon on September 7, 2000, after defendant pled guilty on April 27, 2000 to another count of substantive racketeering.*fn2
The racketeering conspiracy charge in the 2004 indictment, covering November 1991 to May 1999, alleges four racketeering acts: (1) a 1991 double attempted murder, (2) a 1991 robbery of a Yeshiva, (3) a conspiracy to rob marijuana from Hispanic narcotics traffickers in or about and between August 1998 and May 1999, and (4) a conspiracy to rob marijuana "from a white male residing in the vicinity of Battery Park City in Lower Manhattan" in or about and between August 1998 and May 1999. (Def.'s Ex. E ¶¶ 11--19.) The court requested from the government the additional affidavit signed by Special Agent Pontecorvo to obtain more detail regarding Racketeering Acts Three and Four, both labeled "Robbery Conspiracy," in the 2004 indictment. The following additional facts were provided regarding Racketeering Act Three:
[Paul] Rizzuto [Colombo family associate] advised the CW [cooperating witness; a Colombo associate] that he and others were following some Mexicans and need[ed] to borrow the CW's car. They agreed to meet at a location in Staten Island. Thereafter, the CW met Rizzuto, Monteperto and Dionisio at the Staten Island location. At that time, Rizzuto explained that they were going to steal marijuana from the Mexicans. . . . The CW later learned that Petillo put in a complaint to Cutolo, Sr. regarding the robbery of this marijuana load. The CW has advised that the load was 1100 to 1200 pounds. (Pontecorvo Aff. ¶ 5.) Racketeering Act Four is further described as follows:
Prior to the CW's provision, in late 2004, of information regarding this robbery, [Pontecorvo] did not have any knowledge from any other source or evidence that it had occurred. According to the CW, in summer 1998 or Spring 1999, the CW was involved in an illegal sports betting operation with the Colombo family. Through the business, the CW met [a] white male, who was a gambler with the operation. . .
[T]he CW learned that he and the white male both knew an individual known as "Lou T." The white male further advised that he had done marijuana deals with Lou T. The CW later learned from Lou T. that this was true. When the CW told Dionisio about the substance of the conversation with the white male, Dionisio planned a robbery of the white male. Dionisio directed the CW to tell Lou T. to order 200 pounds of marijuana from the white male. The CW has advised that Dionisio wanted to set up the white male by making him believe it was an ordinary marijuana transaction. On the day the marijuana was to be picked up, Dionisio, Rizzuto and the CW traveled in the CW's car from Staten Island to the white male's apartment building in Lower Manhattan, near the Battery Tunnel exit. When the white male was spotted with two duffel bags, Dionisio and Rizzuto approached the white male and took the bags. The bags, which contained marijuana, were placed in the trunk of the CW's car and the white male was forced into the back seat of the CW's car as Rizzuto held him at gunpoint. The CW later held the gun and kept the white male in the CW's car while Dionisio and Rizzuto went into the white male's building. All four men thereafter drove to Staten Island where they were met by Monteperto. The CW took the bags of marijuana to an apartment in Staten Island. Dionisio, Rizzuto, Monteperto and the white male departed the meeting location in Monteperto's truck. (Pontecorvo Aff. ¶ 6.)
The Double Jeopardy Clause, providing that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb," U.S. CONST. amend V, prohibits "successive punishments and . . . prosecutions for the same criminal offense." United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed. 2d 556 (1993). In determining whether the Double Jeopardy Clause prohibits a particular prosecution, it is useful for the court to "to define a point in criminal proceedings at which the constitutional purposes and policies are ...