Opinion
Criminal Action No. 01-10373-RWZ
March 21, 2003
FINDINGS IN SUPPORT OF RETAINING JURISDICTION
This Court, after briefing and argument, denied defendant Paul A. DeCologero's ("Paul A.") motion to dismiss Counts One, Two and Twenty-Three of the Indictment against him on the grounds of double jeopardy and collateral estoppel. Defendant filed a timely notice of appeal of the Court's double jeopardy and collateral estoppel ruling with respect to Counts One and Two (the "RICO counts"). Recognizing defendant's right to interlocutory review of this Court's double jeopardy ruling, Abney v. United States, 431 U.S. 651 (1977), I nevertheless find defendant's appeal to be frivolous and retain jurisdiction in accordance with the decision of the United States Court of Appeals for the Fifth Circuit in United States v. Dunbar, 611 F.2d 985 (5th Cir. 1980) (en banc). The Court supports its retention of jurisdiction with the following written findings:
1. Paul A. was indicted and tried in this district in a nine-defendant RICO case (Criminal No. 97-40009-NMG) (the "Carrozza case"). The other defendants were Robert Carrozza, Michael P. Romano, Sr., Anthony Ciampi, John J. Patti, III, Eugene A. Rida, Jr., Vincent Michael Marino, Nazzaro Ralph Scarpa, and Christopher Puopolo. A copy of the indictment that was tried in the Carrozza case is attached hereto as Exhibit A.
2. The Carrozza indictment consisted of 34 counts. Count One was a substantive RICO count under 18 U.S.C. § 1962(c). Count Two was a RICO conspiracy count under 18 U.S.C. § 1962(d) (collectively, "theCarrozza RICO counts").
3. The enterprise in the Carrozza RICO counts was defined as the Patriarca Family of La Cosa Nostra (the "Patriarca Family"), including its members and associates. The defendants in Carrozza comprised a faction of the Patriarca Family that acted to usurp control of the Patriarca Family when Francis P. Salemme ("Salemme") became "boss" of the family. The RICO counts alleged, in most significant part, that the defendants attempted to take control of the Patriarca Family through a series of murders and attempted murders of those who were loyal to Salemme. Racketeering Act A-1 charged eight of the nine defendants (including Paul A.) with a conspiracy to murder 14 named individuals. The attempted murders and murders all occurred between March and October 1994, with the lone exception of the attempt to murder Salemme, which occurred on June 16, 1989. Paul A. was charged with the murder conspiracy (Racketeering Act A-1), the attempted murder of Steven Rossetti (Racketeering Act A-8), and a cocaine conspiracy (Racketeering Act B). On January 12, 1999, Paul A. was acquitted of all of theCarrozza RICO counts and all related substantive counts.
Although the conduct charged in the Carrozza Indictment ended in 1994, the government stated on several occasions during the Carrozza trial that the enterprise continued into 1996. According to materials filed by Paul A. and not disputed by the government, the government sought to introduce tape recordings of Paul A. made in December 1994, May and October 1995, and January 1996. The government represented to the Carrozza Court that the recordings were evidence that Paul A. was a member of the Carrozza faction: "Mr. DeCologero is saying in no uncertain terms that it's the same conspiracy that I was involved in back in `93 and `94 and `95 and `96[,] that I'm still involved. . . . So it's clear from the conversation itself, very clear, beyond a reasonable doubt clear that it's the same conspiracy that existed in `93, `94, `95, `96 and continued beyond the date of that conversation, there's no question."
4. The Indictment in the present case currently consists of 20 counts. On April 7, 2003, defendant is scheduled to be tried along with four co-defendants on some of those counts. The trial will be limited to Counts One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, and Twenty-Three. The defendants will be prosecuted on the remaining counts in a second trial to be scheduled after the completion of the first. Count One is a RICO conspiracy count under 18 U.S.C. § 1962(d). Count Two is a substantive RICO count under 18 U.S.C. § 1962(c) (collectively, the "RICO counts"). All five of the defendants to be tried are named in the RICO counts. A copy of the indictment in this case, with original caption, but redacted to delete dismissed counts, is attached hereto as Exhibit B.
Paul A.'s co-defendants in the April trial are John P. DeCologero, Jr., Paul J. DeCologero, Derek A. Capozzi, and Joseph F. Pavone.
This Court has divided the Indictment into separate trials, pursuant to its 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).
Daniel Tsoukalas, a sixth defendant who is not named in the RICO counts, will be tried separately on Counts Eight, Fourteen, Fifteen, and Sixteen.
5. Although the RICO counts in the Indictment allege 38 predicate Racketeering Acts categorized under 14 major headings, the April trial on the RICO counts is specifically limited to all parts of Racketeering Acts 1, 2, 3, 4, 5, 11, 12, and 13, plus two additional acts to be elected by the government from Racketeering Acts 7, 9, 10, and 14. Additionally, the trial will limit the robberies alleged as overt acts in the Hobbs Act conspiracy charge (Racketeering Act 3 and Count Eight) to the robberies charged in Racketeering Acts 4 and 5 (and Counts Nine and Fourteen) plus whichever other robbery or robberies the government chooses to elect from among Racketeering Acts 7, 9, and 10.
Racketeering Act 14, the fourth predicate from which the government may elect two, alleges the extortionate collection of credit.
6. The enterprise in this case is defined as the DeCologero Crew, headed by Paul A., and is specifically alleged to be an entity separate from the Patriarca Family, although aligned with the dissident faction of the Patriarca Family charged in Carrozza. With the exception of Paul A., none of the members of the DeCologero Crew was charged in Carrozza, nor were they specifically alleged to be members of the Carrozza enterprise. The RICO counts allege that the DeCologero Crew was a drug organization that used violence against drug competitors in territory it claimed as its own. The indictment and the government's summary of the evidence allege that the DeCologero Crew used the apartment of 19-year-old Aislin Silva as a stash house. Most significantly, the government alleges that after law enforcement authorities seized guns from Silva's apartment in November 1996, the Crew first attempted to keep Silva away from authorities and then murdered her to prevent her from becoming a witness against the Crew.
7. The racketeering acts to be tried on April 7 bear no relation to the enterprise and activities alleged in Carrozza. Rather, the acts focus entirely on the murder of Aislin Silva and the drug- and robbery-related activities of the DeCologero Crew that allegedly formed the context and motive for Silva's murder. The robbery or robberies to be tried all involve victims who were alleged to be area drug dealers. One armed burglary of an area drug dealer netted the firearms charged in Counts Eighteen and Nineteen as well as the drugs that are charged as Racketeering Act 11. It is the firearms from that burglary that led, as charged in the RICO counts, to the witness tampering and murder of Silva. The remaining racketeering acts involve cocaine distribution and the collection of an extension of credit by extortionate means. The earliest charged racketeering act is the attempted robbery of Daniel Pollard (Racketeering Act 10), which is alleged to have occurred in 1995.
Racketeering Acts 6 and 8, which are not going to trial in April, bear some relationship to the Carrozza enterprise. Racketeering Act 6 (which is also charged as Counts Twelve and Thirteen), charges defendant with the October 19, 1996, robbery of Alfred Sapochetti, a cocaine dealer. Paul A. allegedly directed his underlings to rob and murder Sapochetti. According to the government's Summary of Evidence, which was filed on February 14, 2003, Sapochetti was "aligned with the Salemmi [sic] faction of the Patriarca crime family." The government concludes that "Paul A., who was aligned with the Carrozza faction of the same crime family, had additional motives, beyond mere robbery, in targeting Sapochetti. In fact, the robbery and possible murder of Sapochetti were one part of a more complicated plan to also kill Jackie Salemmi." See Government's Summary of Evidence at 14 n. 10 (attached hereto as Exhibit C).
Similarly, Racketeering Act 8 charges Paul A. with directing the late 1995 robbery of marijuana dealers Phil Soccorso and Gary Ramus. According to the Summary of Evidence, Paul A. told the two victims that "he was at war with the Salemme organized crime faction; he needed money to finance the war and stockpile weapons; and that they were doing business in his backyard and he was not getting a cut of their earnings."Id. at 18.
To the extent that Racketeering Acts 6 and 8 impinge on the enterprise charged in the Carrozza case, they involve a different enterprise from the one being charged in the present case. Because, however, Racketeering Acts 6 and 8 are not being tried in the April trial, there is no possibility that Paul A. will be tried twice for racketeering acts committed in the course of fighting with the Carrozza faction against the Salemme faction.
8. A comparison of the Carrozza RICO counts and the RICO counts of this Indictment shows that the two enterprises and the two patterns of racketeering activities are substantively different. Paul A.'s Fifth Amendment rights will in no way be violated by the limited scope of the April trial.
Accordingly, Paul A.'s Abney appeal of this Court's double jeopardy ruling is frivolous in that it is wholly lacking in merit and destined to fail, and that the interests of justice in the smooth and efficient functioning of the criminal judicial process favor the retention of jurisdiction by this Court and the trial of this matter as scheduled.