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United States v. Dionisio

January 8, 2010

UNITED STATES,
v.
DOMINICK DIONISIO, ALSO KNOWN AS "BLACK DOM," DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

MEMORANDUM & ORDER

Defendant Dominick "Black Dom" Dionisio was indicted on one count of 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 for a second time to dismiss the 2004 indictment on double jeopardy grounds and on a breach of plea agreement ("Santobello*fn1 ") theory. The court held oral argument on defendant's motion on November 24, 2009, and allowed further briefing on the issues. For the reasons that follow, defendant's motion is denied in its entirety.

FACTS

The facts underlying this matter were discussed at length in the court's September 15, 2006 Memorandum & Order, United States v. Dionisio, 415 F. Supp. 2d 191 (2006), which denied defendant's original motion for dismissal of the indictment on double jeopardy and Santobello grounds. The court's decision was affirmed by the Second Circuit, finding no double jeopardy violation and without reaching the Santobello issue in United States v. Dionisio, 503 F.3d 78 (2d Cir. 2007). As such, the parties' familiarity with the factual and procedural history of this case is presumed. The facts are repeated here only to the extent they are relevant to defendant's renewed motion to dismiss.

This motion arises from the 2004 indictment of defendant Dionisio on a single charge of RICO conspiracy. The predicate acts underlying the 2004 indictment include: a 1991 attempted double murder; a 1991 robbery of a Yeshiva employee; a 1998-1999 conspiracy to rob Mexican marijuana traffickers; and a 1998-1999 conspiracy to rob a marijuana dealer in lower Manhattan.

This court previously denied defendant's motion to dismiss the indictment on the grounds of double jeopardy and Santobello in its February 2006 Memorandum & Order. See Dionisio, 415 F. Supp. 2d 191. On appeal, the Second Circuit affirmed this court's double jeopardy decision, holding, on a question of first impression in this Circuit, that "no jeopardy attached as a result of Dionisio's plea agreement and the subsequent dismissal of some counts with prejudice" because there was no adjudication of the elements of those charges, and declined to review the court's ruling regarding defendant's Santobello claims. Dionisio, 503 F.3d 78. Defendant then petitioned the Second Circuit for either a panel rehearing or a rehearing en banc, asserting that his factual allocution to a substantive RICO charge in a separate 2001 indictment resulted in the resolution of some or all of the elements in the RICO conspiracy charge (also charged in the 2001 indictment) that was dismissed with prejudice at sentencing pursuant to the plea agreement. See Brief of Defendant-Appellant at 2, United States v. Dionisio, 2007 WL 6496991 (2d Cir. Oct. 11, 2007). On March 24, 2008, the Second Circuit denied defendant's petitions. On October 6, 2008, the United States Supreme Court denied defendant's petition for a writ of certiorari. United States v. Dionisio, 129 S.Ct. 158 (2008).

On May 11, 2009, defendant filed a renewed letter motion to dismiss the 2004 indictment before this court, again basing his claims on double jeopardy and Santobello violations.

Defendant's renewed double jeopardy motion is based on "additional facts never provided before." (Def.'s Mot. at 1.) These purportedly new facts come from the transcript of defendant's January 15, 2002 guilty plea proceeding before then U.S. District Court Judge Reena Raggi. As such, defendant raises the same argument regarding the double jeopardy issue in this renewed motion that he raised in his 2007 petition for a rehearing before the Second Circuit. Regarding the Santobello issue, defendant again claims that he entered into the 2001 plea agreement with the express understanding that the RICO conspiracy charged in the 2001 indictment would be dismissed with prejudice, and that the 2001 RICO conspiracy was not limited to the specific predicate acts he was charged with in the 2001 indictment. (Def.'s Mot. at 8.) Accordingly, defendant asserts that the 2001 plea was supposed to foreclose any future prosecution under the RICO statute based upon the same conduct underlying the 2001 indictment. (Id.) Defendant contends further that he had specific discussions with the Assistant U.S. Attorneys ("AUSAs") who prosecuted the 2001 indictment in which they represented that Mr. Dionisio could only be prosecuted again under the same RICO statutes for the same criminal conduct if his conduct somehow furthered the affairs of a different enterprise. (Id. at 10.)

For the following reasons, defendant's renewed motion to dismiss the 2004 indictment is denied in its entirety.

DISCUSSION

I. Double Jeopardy

a. Mandate Rule

The so-called "mandate rule" provides that "where issues have been... decided on appeal, the district court is obliged, on remand, to follow the decision of the appellate court." Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006) (quoting United States v. Minicone, 994 F.2d 86, 89 (2d Cir. 1993)). "In other words, the trial court is barred from reconsidering or modifying any of its prior decisions that have been ruled on by the court of appeals." Id. "When an appellate court has once decided an issue, the trial court, at a later stage in the litigation, is under a duty to follow the appellate court's ruling on that issue." United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977). This doctrine "forecloses relitigation of issues expressly or impliedly decided by the appellate court." Burrell, 467 F.3d at 165 (quoting United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001)).

On appeal, the Second Circuit unambiguously held that the requirements for the attachment of jeopardy established by the Supreme Court precedent had not been met. Dionisio, 503 F.3d at 89. For that reason, the court concluded that Dionisio's 2004 indictment was not barred by the Double Jeopardy Clause. Id. If there was any doubt that the court failed to consider the "additional facts" cited by defendant in the instant motion, that doubt was resolved by the court's denial of defendant's petition for either a panel rehearing or a rehearing en banc. As mentioned above, in his petition to the Second Circuit for a rehearing, defendant made the same arguments that he makes now-that the panel overlooked defendant's factual allocution to the substantive RICO charge in the 2001 indictment, which resulted in the resolution of some or all of the elements in the RICO conspiracy charge dismissed with ...


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