United States v. DeCologero

United States Court of Appeals
For the First Circuit
No. 03-1442, 03-1443
UNITED STATES OF AMERICA,
Appellee/Cross-Appellant,
v.
PAUL DeCOLOGERO, a/k/a Big Paul, a/k/a Paulie,
Defendant-Appellant/Cross-Appellee.
__________
JOHN P. DeCOLOGERO, JR., a/k/a Little John, a/k/a John-John,
PAUL J. DeCOLOGERO, a/k/a Young Paul,
DEREK CAPOZZI,
JOSEPH F. PAVONE,
DANIEL G. TSOUKALAS,
Defendants/Cross-Appellees,
and
IN RE: UNITED STATES OF AMERICA, Petitioner.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.
Janice Bassil, by appointment of the court, with whom Andrew
D'Angelo and Carney & Bassil, P.C. were on brief for Paul
DeCologero, a/k/a Big Paul, Paulie.
Timothy Q. Feeley, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, Christopher F. Bator
and Ernest S. DiNisco, Assistant United States Attorneys, were on
brief and petition for a writ of mandamus for the United States.
Joan M. Griffin, by appointment of the court, with whom Cooke,
Clancy & Gruenthal, LLP and Paul F. Markham were on brief for John
P. DeCologero, Jr. and Joseph F. Pavone.
Roger Witkin, by appointment of the court, on brief for Paul
J. DeCologero, a/k/a Young Paul.
Terrance J. McCarthy, by appointment of the court, on brief
for Derek Capozzi.
April 12, 2004
BOUDIN, Chief Judge. Before us are a pair of
interlocutory appeals in a criminal case. Both grow out of a 23-
count federal indictment filed on October 17, 2001, charging Paul
A. DeCologero and six associates with criminal racketeering in
violation of the Racketeer Influenced and Corrupt Organization Act
("RICO"), 18 U.S.C. § 1962(c) (2000),1 conspiracy to violate RICO,
id. § 1962(d) and an array of related crimes. We refer to Paul A.
DeCologero as "DeCologero" even though several co-defendants have
the same last name.
The government alleged that DeCologero headed a criminal
enterprise ("the DeCologero crew") that used brutal tactics to gain
control of a portion of Boston's drug trade and murdered a
nineteen-year-old woman (Aislin Silva) when the members thought she
might betray them. In addition to the RICO counts, the indictment
specified a number of federal crimes charged in separate counts
involving drugs, guns, robberies, and--in the case of the slain
woman--murder for the purpose of witness tampering.
1
18 U.S.C. § 1962(c) provides:
It shall be unlawful for any person employed
by or associated with any enterprise engaged
in, or the activities of which affect,
interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the
conduct of such enterprise's affairs through
a pattern of racketeering activity or
collection of unlawful debt.
-3-
RICO violations require not only participation in a
criminal enterprise but also participation in a "pattern of
racketeering activity," which in turn requires proof of at least
two of a list of specified federal or state crimes (e.g., murder,
extortion, robbery, drug trafficking). 18 U.S.C. §§ 1961(1), (5)
(2000). In jargon, such acts are called "predicate acts" or
"racketeering acts" ("RAs"), and, in this indictment, a number of
the acts charged as federal crimes in separate counts of the
indictment were restated as RAs in support of the RICO counts. A
table listing the RAs is attached to this decision.
Nominally the indictment identified fourteen separate
RAs, but several had subparts, each constituting a sufficient
predicate act under RICO; for example, the attempted and ultimately
successful murder of the woman was expressed in RA 1 as five
separate crimes (e.g., subpart 1 was conspiracy to murder under
state law, subpart 2 was attempt to murder under state law). The
indictment thus effectively contained thirty-eight predicate acts
only partly overlapping with the substantive counts because some
counts were not RAs and some RAs (e.g., state crimes) were not
counts. Different defendants were implicated in different RAs;
only Paul A. DeCologero was implicated in all.
Four years before the present indictment was filed,
DeCologero had been acquitted of RICO violations in United States
v. Carrozza, Crim. No. 97-40009-NMG (D. Mass. 1999). Following the
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present indictment, DeCologero moved to dismiss the new RICO
charges against him (and one drug conspiracy count) on double
jeopardy grounds. The district court rejected this claim, finding
that the RICO violations alleged in Carrozza were different than
those charged in the current case. DeCologero now appeals from
this ruling under 28 U.S.C. § 1291 (2000), the denial of a double
jeopardy defense being immediately appealable. Abney v. United
States, 431 U.S. 651, 662 (1977).
At one of the pre-trial hearings, the district court had
expressed concern that the scope of the case--the number of counts,
RAs and criminal offenses--made "charging a jury and having them
understand virtually impossible." Then, in an oral ruling at a
further conference, the district court without further explanation
sua sponte divided the case (as described immediately below) into
two separate trials. On motion by the government for
reconsideration, the court entered a written order adhering to the
separation, saying:
[I]t is necessary to divide this case into
separate trials, pursuant to this Court's
inherent "authority and responsibility for
managing . . . trials before it so as to
protect the interests of the parties and the
public in just determination of a criminal
proceeding with 'simplicity in procedure,
fairness in administration and the elimination
of unjustifiable expense and delay.'" United
States v. Shea, 750 F. Supp. 46, 49 (D. Mass.
1990) (quoting Fed. R. Crim. P. 2).
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The district court's ruling divided the charges in the
indictment into two separate trials, ordering that three
substantive counts involving robberies and unlawful possession of
firearms be postponed until a second trial at some unspecified
date.2 Further, the court ordered that four of the fourteen
racketeering acts that the government included as predicate acts
for the RICO charges be postponed until this second trial. See
attached chart. This left ten RAs and seventeen substantive counts
for the first trial (the government had voluntarily dismissed three
firearms counts).
The government then filed a cross-appeal from the court's
decision to postpone four of the RAs until a later trial, arguing
that this order effectively dismissed and foreclosed the four
postponed RAs since double jeopardy doctrine would prevent the
government from bringing RICO charges based on these RAs in a later
trial. Alternatively, the government said that the order exceeded
the district court's case management authority. The district court
stayed trial pending the resolution of the appeals.
Before us now are three difficult questions: the merits
of DeCologero’s double jeopardy claim (which is clearly appealable
now under Abney, 431 U.S. at 662); whether we have jurisdiction
2
The court did not invoke Fed. R. Crim. P. 14 and "sever" the
deferred counts into a separate case with a separate docket number;
instead, it merely postponed their trial until a second phase of
the same case.
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over the government's cross-appeal contesting the case management
order (the defendants dispute jurisdiction); and, if so, whether
the district court exceeded its authority in its division of the
case insofar as it limited the RAs available to the government in
the first trial. We address the questions in that order.
Double Jeopardy. DeCologero argues that, having been
acquitted of the RICO charges in Carrozza, he is shielded by the
Constitution's prohibition of double jeopardy from the RICO charges
(although not necessarily from the non-RICO counts) in the present
case. This is so if, but only if, the RICO charges in the two
cases are "the same." U.S. Const. amd. V; see, e.g., United States
v. Marino, 277 F.3d 11, 39 (1st Cir. 2002). Based on a comparison
of the two indictments as drafted and the proffer of evidence by
the government, we conclude that the new RICO charges are not
barred.
The Carrozza indictment charged nine defendants with
conducting the affairs of "the Patriarca Family of La Cosa Nostra"
through a pattern of racketeering. La Cosa Nostra is the notorious
crime syndicate also known as the mafia. The "Patriarca Family,"
a New England branch of this organization, was headed by Raymond J.
Patriarca until 1990, at which point Francis P. Salemme was the
heir-apparent. The Carrozza defendants were charged with
attempting "to usurp control of the Patriarca Family" from Salemme
-7-
after Patriarca's death. See Marino, 277 F.3d at 19-21 (detailing
evidence in Carrozza case).
The Carrozza indictment covered the period from 1989 to
1994, although evidence of events occurring through 1998 was
presented at trial. DeCologero was charged in eight substantive
counts, including RICO and RICO conspiracy, conspiracy to commit
murder and attempted murder, various firearms charges, and a
cocaine distribution conspiracy. The RICO counts listed him as a
participant in only three of the fourteen RAs: conspiracy to murder
fourteen individuals, attempted murder, and conspiracy to possess
cocaine with intent to distribute. He was acquitted of all charges
in 1999.
The present indictment charges the defendants with
participating in a nominally different enterprise--the "DeCologero
Crew"--said by the government to be "a separate entity from the
Patriarca La Cosa Nostra ('LCN') Family, yet . . . structured in a
similar manner to a crew or regime of La Cosa Nostra" and "aligned
with" the Carrozza faction of the Patriarca Family. According to
the charge, the DeCologero Crew's aim was "controlling,
supervising, and financing illegal activities," including
generating money through robbery and drug sales "for the personal
use of members . . . and to build up a war chest of firearms,
weapons, and ammunition which was to be used, in part, to support
the" Carrozza faction.
-8-
If the double jeopardy problem turned solely on whether
the two cases involved the same enterprise, we would be faced with
a hard question. The RICO statute loosely defines an "enterprise"
to include not only any legal entity (e.g., a corporation) but also
"any union or group of individuals associated in fact." 18 U.S.C.
§ 1961(4). Although the DeCologero indictment alleges that the
Carrozza faction and DeCologero crew were separate enterprises, the
proffered evidence could support the view that both were part of a
vertically organized endeavor, with DeCologero somewhere in the
middle of the organizational pyramid.
Past cases have stressed that conspiracies cannot be
artificially broken up for the purpose of bringing separate cases,
see Braverman v. United States, 317 U.S. 49, 53 (1942), and there
is no reason why the rule should be any different for RICO
enterprises. But whether there was one enterprise or two need not
be resolved. Every circuit to have examined the issue has agreed
that double jeopardy only bars successive RICO charges involving
both the same enterprise and the same pattern of racketeering
activity.3 In our view the current RICO charges do involve a
different pattern than the old.
3
See United States v. Ciancaglini, 858 F.2d 923, 928-29 (3d
Cir. 1988); United States v. Langella, 804 F.2d 185, 188-89 (2d
Cir. 1986); United States v. Ruggiero, 754 F.2d 927, 931 (11th
Cir.), cert. denied, 471 U.S. 1127 (1985); United States v.
Russotti, 717 F.2d 27, 33 (2d Cir. 1983), cert. denied, 465 U.S.
1022 (1984); United States v. Dean, 647 F.2d 779, 787-88 (8th Cir.
1981).
-9-
In deciding whether two patterns are "the same" for
double jeopardy purposes, other circuits all employ some variation
of a "totality of the circumstances" analysis, using factors akin--
although not necessarily identical--to those used in evaluating the
identity of conspiracies. See United States v. Gomez-Pabon, 911
F.2d 847, 860 (1st Cir. 1990) (conspiracy), cert. denied, 498 U.S.
1074 (1991); United States v. Dean, 647 F.2d 779, 788 (8th Cir.
1981) (RICO). These factors include the time, the place, the
people, and the nature and scope of the activities involved in each
indictment.
Here, little overlap exists in the type of crimes
centrally charged as racketeering acts in the two cases. The
Carrozza indictment RAs focused on the systematic murder of rival
mafia members--a pattern of murders and attempted murders of
members of the Salemme faction (including attempted murder of
Francis Salemme) to seize control of the Patriarca crime family.
The specific RAs alleged include conspiracy to murder fourteen
people, attempted murder of six, and successful murder of two, as
well as a cocaine conspiracy and several gambling-related charges.
In the present indictment, the only murder alleged was committed
simply as part of a failed cover-up attempt incident to the crew’s
main activities.4
4
According to the indictment and the government's summary of
evidence, Silva permitted crew members to store weapons at her
apartment; the police raided the apartment on a tip; and, afraid
-10-
The murder aside, the RAs alleged in the current case
centered on robbery and drug trafficking, primarily the former. By
contrast, not a single Carrozza RA involved robbery. Thus, while
the pattern in Carrozza could be viewed primarily as murders
connected by an aim to secure power, the pattern in the present
case appears to be a more conventional collection of robberies and
drug trafficking offenses, the single murder being merely a means
of protecting the conspiracy from the police.
The other factors--similarity of persons, time, and
place--are less clear-cut but do not preclude the conclusion that
the two patterns are different. The Carrozza indictment identified
eight defendants; Paul is the only member of the DeCologero crew
who was charged in Carrozza, there as a subordinate member of the
Carrozza faction rather than as a leader of his own crew. Still,
the Carrozza indictment named one "FNU [first name unknown]
DeCologero" among the thirty unindicted co-conspirators, so at
least one (and perhaps more) of the other defendants in the current
case may have been involved.
As for time and place, the locations involved in the two
indictments are basically the same--the greater Boston area--but
the time periods overlap only slightly. The Carrozza indictment
alleged RICO violations that ran from 1989 though 1994, although at
Silva might testify, crew members acting under orders from
DeCologero killed Silva.
-11-
trial the government offered proof that the conspiracy to obtain
power continued through January 1998. The present indictment
alleges that the DeCologero crew operated from 1995 through the
beginning of 1997. Again, this is consistent with the view that
there may have been one enterprise but does not disturb the
conclusion that there were two patterns.
In summary, all of the incidents constituting substantive
non-RICO crimes and all of the RAs in the present indictment are
different from those charged in the Carrozza case. Whether the
enterprise in the two cases is "the same" may be open to debate,
but "the pattern" is different, which defeats the double jeopardy
claim. Whether any of the background evidence offered in the first
trial is relevant and admissible in the second is a matter for the
district judge.
DeCologero argues alternatively that collateral estoppel
prohibits the present RICO charges against him or at the very least
precludes the government from making any reference to the "war" for
control of the Patriarca family. See Ashe v. Swenson, 397 U.S.
436, 443-44 (1970). Our authority on DeCologero’s appeal is based
on his double jeopardy claim and we decline to consider other
issues even if we could. See Swint v. Chambers County Comm'n, 514
U.S. 35, 50-51 (1995). The district court can consider in due
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course what effect, if any, collateral estoppel doctrine may have.5
Appeal of the scheduling order. The government's cross-
appeal is directed to the scheduling order issued sua sponte by the
trial court, citing the court's "inherent authority and
responsibility for managing trials." The court ordered that three
substantive counts and four racketeering acts be postponed until a
second trial at some unspecified later date; the rest of the case
would be tried at the first trial. The government’s motion for
reconsideration was denied.
On its interlocutory appeal, the government does not
formally contest the postponement of substantive counts to a second
trial, but only the exclusion of four RAs. The government says
that if this court orders the four RAs to be reinstated for the
first trial, the district court may well decide to reinstate the
postponed counts directed to the same acts; obviously, it would do
little to reduce complexity at the trial if the counts are
postponed but the RAs remain to be proven by the same evidence.
An order severing or deferring counts is generally not
immediately appealable. See United States v. Bloom, 149 F.3d 649,
657 (7th Cir. 1998). By contrast, the court’s treatment of the RAs
presents a puzzle on both scores--appealability and the merits--and
5
If the Carrozza verdict was a general one, DeCologero may
well have considerable difficulty showing what factual findings
underlay his earlier acquittal. United States v. Morris, 99 F.3d
476, 481 (1st Cir. 1996); United States v. Aguilar-Aranceta, 957
F.2d 18, 25 (1st Cir. 1992); Russotti, 717 F.2d at 35.
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we start naturally with the former. To understand just what the
district court did and how it matters requires additional
background--pertinent both to the jurisdictional question and to
the merits.
As explained earlier, the original indictment listed
fourteen RAs but, with subparts, amounted effectively to thirty-
eight different acts.6 DeCologero was charged in all fourteen of
the RAs; of the other defendants, one was named in nine, one in
seven, and the remaining two defendants were named in four each.
See attached chart. The RAs not only involved thirty-eight
separate criminal acts but were violations of over a dozen
different federal and state statutes (e.g., murder, robbery) each
of which would require instructions to the jury as to the elements
of the crime.
Before making her sua sponte ruling, the district judge
expressed fear that the level of complexity of the case "makes
charging a jury and having them understand virtually impossible,"
and noted that she had a "fervent desire to try a piece of the case
first." In her later ruling, she selected two specific RAs--
numbers 6 and 8 on the attached chart--to be "postponed" until some
unspecified later date (presumably the same time as the trial of
6
The district court stressed that there were thirty-eight, but
government's grouping of the predicate acts into fourteen sets may
more accurately reflect the level of factual complexity because the
RAs in each group all relate to the same criminal episode (e.g., a
particular robbery), albeit fragmented into different crimes.
-14-
the severed substantive counts). Both excluded RAs involved
robberies in violation of the same state and federal statutes as
the robberies charged in RAs 4 and 5, which were not postponed.
The court also ordered the government to select two more
RAs to be postponed, listing four from which to choose--three of
these RAs involved robberies and one involved conspiracy to collect
credit by extortionate means. The criterion for exclusion of both
counts and RAs appeared to be how closely related they were to the
murder of Ms. Silva; the district judge repeatedly asked the
government to explain how the counts and RAs related to Silva, and
(for instance) stated that two specific counts would be included in
the first trial "on the representation that those are guns in
Silva's apartment. If they are not, then those counts do not go
forward."
The statute governing appeals by the United States in
criminal cases, 18 U.S.C.A. § 3731 (2003), allows interlocutory
appeals in specified situations, two of which are invoked by the
government in this case. The first paragraph of the statute allows
(in pertinent part) an appeal from a district court’s dismissal of
an indictment "as to any one or more counts, or any part thereof"--
the "any part" language having been added in 2002 in part to
resolve a circuit split about the appealability of dismissed RAs.
See Pub. L. No. 107-273, div. B, tit. III, § 3004, 116 Stat. 1758(2002); H.R. Rep. No. 107-685, § 3004 (2002).
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The second paragraph of the statute permits inter alia an
appeal from a district court order "suppressing or excluding
evidence," if made before trial (specifically, "not after the
defendant has been put in jeopardy"). 18 U.S.C. § 3731. The most
familiar target of such appeals are pre-trial orders suppressing
evidence as unlawfully seized; but the provision equally allows
appeal from in limine orders excluding evidence on any ground
(e.g., because prejudice outweighs probative value under Fed. R.
Evid. 403). United States v. King, 827 F.2d 864, 866-67 (1st Cir.
1987).
At first blush, the statute's first paragraph appears to
cover the district court's order excluding RAs as dismissal of
"part" of a count. Of course, the district court here did not
purport to "dismiss" the RAs but--as with the three substantive
counts--only to "postpone" them to a second trial. On the
principle that substance rather than form should prevail, this
labeling would not bar appeal under the first paragraph if the
postponement were effectively a dismissal. See United States v.
Zabawa, 39 F.3d 279, 283 (10th Cir. 1994); United States v.
Nakashian, 820 F.2d 549, 550 (2d Cir. 1987).
In our own case, the deferred substantive counts were not
formally dismissed but explicitly reserved for a second trial, and
could in fact be tried later. The opportunity to employ the
counterpart acts as RAs in a second RICO prosecution is more
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doubtful. Under the RICO statute, predicate acts are offered to
satisfy the "pattern of racketeering" element of the crime. On the
government’s premise that all of the predicate acts charged
comprised the same pattern, a second RICO prosecution based on the
postponed acts would arguably itself be barred by double jeopardy
principles, the "acts" being different but the "pattern" being the
same. If so, deferral was effectively dismissal.
The defendants have sought to defeat this basis for
appeal by agreeing in writing, shortly before oral argument in this
court, to waive double jeopardy protection as to the severed RAs so
far as necessary to negate the government's double jeopardy
argument. Whether this (post-appeal) waiver should be accepted and
whether if accepted it fully answers the government’s claim that
the postponed RAs have effectively been dismissed are interesting
questions; but we by-pass them (the waiver is surely a rare
situation) because the second paragraph of section 3731 is adequate
to support the appeal.
Indeed, while both paragraphs might apply to the same
order, the second paragraph is a more apt basis here because the
real concern of the parties has little to do with any possible--and
highly theoretical--second trial for the postponed RAs. Rather,
both sides are mainly interested in the postponement’s effect on
the first trial--the government because it wants the four RAs to be
available to the jury and the defense because it wants them not to
-17-
be available. Consonantly, the second paragraph's own concern is
with the exclusion of evidence in the instant trial (without regard
to whether there will ever be another trial).
But have the postponed RAs been "excluded" from evidence
in the first trial? The district court’s order and statements are
oblique; the RAs were relegated to a second case without a clear
statement of the effect on the first, but we think that the
district court has in substance told the government that it may
rely only upon ten RAs in order to prove the necessary RICO pattern
and not the fourteen listed in the indictment.
Defendants say that the excluded RAs might still be
admissible for other purposes (such as proving the existence of the
enterprise) or perhaps even on a limited basis as to particular
defendants, but of course "exclusion" within the meaning of section
3731 need not be a complete exclusion. Cf. United States v.
Ceccolini, 435 U.S. 268, 271-2, 275 (1978) (jurisdiction to review
suppression of evidence under § 3731 even though the evidence would
still be admissible for impeachment and other purposes).
Such an exclusion of charged RAs to prove the pattern is
in our view an exclusion of evidence within the meaning of the
second paragraph of section 3731. See United States v. Mobley, 193
F.3d 492, 495 (7th Cir. 1999) (finding jurisdiction under section
3731's second paragraph to review an exclusion of overt acts
offered to prove a conspiracy). It does not mean that the pattern
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could not be proved through other RAs--there are at least two un-
excluded RAs charged against every defendant--but it does mean that
the government would be deprived of factual episodes that it would
otherwise offer to establish the pattern. The RAs are evidence of
the pattern, and section 3731 permits an appeal of an order
suppressing evidence even if there remains other evidence of the
crime.
What little case law exists in this circuit supports our
conclusion. See King, 827 F.2d at 866 (jurisdiction to review a
district court order excluding evidence of a specific racketeering
act); see also United States v. Levasseur, 846 F.2d 786, 787 n.2
(1st Cir. 1988) (suggesting possibility). And, whether or not the
district court’s order was a formal exclusion, "pretrial orders
that have the practical effect of excluding material evidence at
trial are appealable under section 3731, regardless of
nomenclature." United States v. Brooks, 145 F.3d 446, 454 (1st
Cir. 1998).
The merits of the exclusion. The most important issue
before us is the district court’s claim of authority to sculpt the
government’s case by limiting the charged RAs that can be proved in
this case. The government portrays this as a naked encroachment on
the Executive Branch’s constitutional authority to conduct
prosecutions; the defense, as a simple house-keeping matter no
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different than limiting the number of witnesses or the order of
presentation. We think both claims are overstated.
Had the district court purported to exclude the evidence
because (for example) it thought the acts not worthy of
prosecution, it might well be ultra vires, cf. United States v.
Armstrong, 517 U.S. 456, 464 (1996), but the court's concern here
was with trial management and jury comprehension. Supreme Court
cases contain broad statements supporting orders to these ends.
See, e.g., Geders v. United States, 425 U.S. 80, 86-87 (1976).
Routinely, courts sever counts that the government bundled, limit
repetitive witnesses that the government sought to offer, and
exclude pieces of its evidence as unduly prejudicial or like
reasons.
Similarly, this case differs from those in which, finding
that counts had been needlessly multiplied, district courts
deferred trial on some of the counts merely to save time. In those
situations, admittedly on aggravated facts, two circuits have said
firmly that trial courts have no authority to carve down the
government’s case for the court’s own convenience because the judge
regarded it as overcharged. See Zabawa, 39 F.3d at 284-85; United
States v. Giannattasio, 979 F.2d 98, 100-01 (7th Cir. 1992)
(Posner, J.). In our own circuit, dicta in United States v.
Leichter, 160 F.3d 33, 36-37 (1st Cir. 1998), assumes that the
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trial court has authority to postpone excessive counts but does not
deal with the exclusion of evidence.
In our view, telling the government that in order to
simplify the trial it cannot prove RICO acts for which it has
secured an indictment (and which are otherwise proper under the
statute and rules of evidence) is more than mere house-keeping.
True, limits on the time allowed to each side, or the number of
witnesses, can have the effect of restricting each side’s proof;
and such orders have been upheld, usually relying upon a district
court's inherent authority.7 But in such cases each side still
retains control of what it will prove in the time available.
Even courts generous in allowing other trammels have been
cautious about intruding on counsel's ability to shape the case;
one court said that "while courts certainly should have flexibility
in reassessing imposed time limits, they ordinarily should allow a
party to fill its allotment with whatever evidence that party deems
appropriate." Duquesne Light Co. v. Westinghouse Elec. Corp., 66
F.3d 604, 610 (3rd Cir. 1995); see also United States v.
Hildebrand, 928 F. Supp.
7E.g., Geders, 425 U.S. at 86-87; Duquesne Light Co. v.
Westinghouse Elec. Corp., 66 F.3d 604, 609-10 (3d Cir. 1995); MCI
Communications Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1171
(7th Cir.), cert. denied, 464 U.S. 891 (1983). Sometimes courts
rely upon Fed. R. Evid. 403 rather than inherent authority,
although inherent authority appears a slightly better fit where the
issue is the contours of the trial rather than the inherent quality
of a piece of evidence.
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841, 848 (N.D. Iowa 1996). This concern may be especially sharp
in a criminal case.
Our own case illustrates the potential impact of such
exclusions. As to DeCologero the government had a fair number of
predicate acts to offer even after the district court order, but as
to other defendants it had only three, four, or five remaining
after the exclusion. While two is the absolute minimum for a
conviction, not just any two predicate acts will do: the
relationship between the acts must form a "pattern" based on
elusive criteria.8 If the district court's order was given effect,
the jury might find that the government had proven the remaining
acts and yet the case still fail for want of the necessary
relationship that an excluded act would have supplied.
In this respect, the present order's treatment of RAs
goes well beyond those that, like the orders in Zabawa and
Giannattasio, postpone or sever counts; although denying the
government the forensic benefit of multiplying counts in a single
trial, those orders still preserved the government's right to
proceed on the stricken charges in a second proceeding. By
8
H.J. Inc. v. N.W. Bell Tel. Co., 492 U.S. 229, 238 (1989)
("[T]here is something to a RICO pattern beyond simply the number
of predicate acts involved . . . . [T]he mere fact that there are
a number of predicates is no guarantee that they fall into any
arrangement or order. It is not the number of predicates but the
relationship that they bear to each other or to some external
organizing principle that renders them 'ordered' or 'arranged.'");
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 497 n.14 (1985).
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contrast, the outright exclusion of individual RAs substantially
weakens the charges that remain in the first trial. By limiting
the blocks of evidence that the government may use, this exclusion
can deprive the public permanently of rightful convictions. This
loss of evidence is not necessarily offset by the dubious
possibility of a second trial, also on truncated evidence.
Seeking a solution for a problem with little direct
circuit precedent, we are led to this answer: in a RICO case, the
exclusion of an RA or other criminal episode in order to make the
trial comprehensible for a jury may not be wholly beyond the
district court’s inherent authority (we need not decide the issue
definitively); but it would have to be a last resort where no more
conventional method existed to assure a fair trial and where the
exclusion rested on detailed and compelling findings. The test, in
short, would be one not of convenience but of last-ditch necessity.
Was there in this case an adequately detailed and
supportable finding of last-resort necessity for the order
excluding RAs? The district judge said that it was "virtually
impossible" to instruct the jury, and that "to run a reasonable
trial the jurors can understand that is fair to both sides requires
a break up of these wide ranging charges." But these conclusions
are not supported with any detailed explanation and whether the
judge meant that the RAs had to be excluded because there was no
other way to provide a fair trial is unclear.
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On this record we are unwilling to impute to the judge
such a finding of last-resort necessity and, absent some further
underpinning, would be unable to uphold it. The present indictment
before the order took effect covered six defendants, twenty-three
counts, and thirty-eight predicate acts (some overlapping with
counts). This is admittedly quite a wingspan, even though most of
the crimes were familiar rather than esoteric and the focus is upon
a single alleged criminal gang operating in one geographic area
over a limited time period.
Yet indictments of comparable or greater complexity are
regularly tried. See, e.g., United States v. Boylan, 898 F.2d 230,
236 (1st Cir. 1990) (seven-defendant, fifty-seven-count indictment
ruled not so large that a jury was incapable of understanding);
United States v. Shea, 211 F.3d 658 (1st Cir. 2000). The
government here estimated that the trial would take about two
months--a figure far less than the duration of other gangland
cases. E.g., United States v. Casamento, 887 F.2d 1141, 1149-50
(2d Cir. 1989) (rejecting arguments that a 17-month trial was too
complex for the jury to comprehend).
There are potentially limits to the complexity that a
jury can handle: in United States v. Andrews, 754 F. Supp. 1161,
1180 (N.D. Ill. 1990), the district court was faced with a
staggering RICO case--a 305-page, 175-count, 38-defendant
indictment--and the court broke up the case as part of its formal
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Rule 14 severance of trials of particular defendants. But our own
case is a fraction of this size and, when the Andrews court had
divided the mammoth indictment into separate trials, those units
were (on a crude assessment) each about the same size as the entire
DeCologero indictment.
While Andrews may have been facially unmanageable (the
Seventh Circuit never reviewed this question), this case is not,
and so in our view it was insufficient for the district court
merely to recite the number of counts, RAs, and different criminal
statutes involved and then announce a conclusion. As already
noted, the district court stressed that there were thirty-eight
predicate acts, but this overstates the number of criminal episodes
involved, see note 6, above; in this case the criminal statutes
other than RICO are not esoteric; and the district court's
exclusion of RAs did not significantly reduce the number on which
jury instructions would be required--at most, it reduced the number
by one.9
Further, there is no showing that the district court had
exhausted more conventional means to cope with the case. Rule 14
gives the district judge wide authority to sever defendants,
counts, or both, upon a showing of prejudice. Cf. United States v.
9
If the government elected to postpone RA 14 (collection of
credit by extortionate means), the court would not have to instruct
the jury on 18 U.S.C. § 894(a). Otherwise, the elimination of four
RAs would not affect the number of statutes involved.
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Bartelho, 129 F.3d 663, 678 (1st Cir. 1997). In principle, the
district court could require that DeCologero be tried alone and
solely upon the two RICO counts and the RAs applicable to him,
severing all other defendants and counts for a future trial or
trials. Similarly, limits on witnesses and the time allowed to
each side are permissible measures. Duquesne Light Co., 66 F.3d at
609-10; Sec'y of Labor v. DeSisto, 929 F.2d 789, 796 (1st Cir.
1991).
In this case the district judge did not make findings, or
negate alternatives, that would justify the extreme remedy of
excluding otherwise properly charged RAs from the initial trial.
In so ruling, we intend no criticism whatever of the experienced
and distinguished trial judge who was trying to bring more order
into a complex trial. The limits of trial management authority are
inherently uncertain, and existing circuit case law here and
elsewhere is virtually a stranger to the precise problem in this
case.
For the reasons stated, the order rejecting the double
jeopardy defense is affirmed, the trial management order is vacated
insofar as it excluded from the indictment or evidence the four
individual RAs in question in order to simplify proceedings, and
the matter remanded for further proceedings. Our judgment is
without prejudice to severance of counts or parties under Rule 14,
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other trial simplification measures, or other issues pertaining to
the four RAs that may arise in the course of this case.
It is so ordered.
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ATTACHMENT
This chart shows the racketeering acts, numbered in accordance with the indictment.
The "Disposition" column lists the effect of the district court's scheduling order upon the RAs. The
government was ordered to choose two of the four RAs marked with "Elect" to try at the first trial;
the two RAs not selected were to be postponed to a hypothetical second trial, along with the two RAs
marked as "Out."
The defendants are identified by their initials, and an "x" in the column under their
name means that they were charged in at least one subpart of that RA. The initials P.A.D. stand for
Paul A. DeCologero, whom this opinion refers to simply as "DeCologero." The initials J.P.D. stand
for John P. DeCologero, Jr.; his father, John P. DeCologero, Sr., also charged in the indictment, pled
guilty.
RA # P. J. P. D. J. Description of RA Disposition
A. P. J. A. F.
D. D. D. C. P.
1(a-e) x x x Murder, attempted murder, conspiracy to IN
murder, and witness tampering (Aislin Silva)
MGL ch. 265, § 1
MGL ch. 274, §§ 2, 6, 7
18 USC § 1512(a)(1)(c) and (2)
2 x x x x Witness tampering (Aislin Silva) IN
18 USC § 1512(b)(3) and (2)
3 x x x x x Hobbs Act robbery conspiracy (9 victims) IN*
18 USC § 19514(a-d) x x x Hobbs Act robbery & related charges IN
(Godreau)
18 USC §§ 1951, 1952
21 USC § 841(a)(1)
18 USC § 2MGL ch. 265, §§ 17, 26
MGL ch. 274, § 2
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5(a-f) x x Hobbs Act robbery & related charges (Stevens) IN
18 USC §§ 1951, 1952
21 USC § 841(a)(1)
18 USC § 2MGL ch. 265, §§ 17, 26
MGL ch. 274, § 2
6(a-d) x x x Hobbs Act robbery & related charges OUT
(Sapochetti)
18 USC §§ 1951, 1952
MGL ch. 265, § 26
MGL ch. 274, § 2
7 x x Hobbs Act robbery & related charges (North) Elect
18 USC §§ 1951, 1952
8(a-e) x x Hobbs Act robbery & related charges (Soccorso OUT
& Ramus)
18 USC §§ 1951, 1952
21 USC § 841(a)(1)
18 USC § 2MGL ch. 265, §§ 17, 26
9(a-e) x x x Hobbs Act robbery & related charges Elect
(Pesaturo)
18 USC §§ 1951, 1952
21 USC § 841(a)(1)
18 USC § 2MGL ch. 265, § 26
MGL ch. 274, § 2
10(a-b) x x Hobbs Act robbery & related charges (Pollard) Elect
18 USC §§ 1951, 1952
MGL ch. 265, § 26
11 x x Marijuana distribution conspiracy IN
21 USC § 841(a)(1), 846
12 x x Cocaine distribution conspiracy IN
21 USC § 841(a)(1), 846
13 x x Possession with intent to distribute cocaine IN
21 USC § 841(a)(1)
18 USC § 214 x x x Collection of credit by extortionate means Elect
18 USC § 894(a) and 2
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