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U.S. v. Russo

United States Court of Appeals, Second Circuit
Jun 28, 1990
906 F.2d 77 (2d Cir. 1990)

Summary

finding prosecution of a predicate act following acquittal on RICO conspiracy charge barred under Grady test

Summary of this case from U.S. v. Prusan

Opinion

No. 1008, Docket 89-1503.

Argued April 2, 1990.

Decided June 28, 1990.

Gerald L. Shargel (Alan S. Futerfas, New York City, of counsel), for defendant-appellant.

Peter M. Lieb, New York City, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Andrew E. Tomback, Kerri Martin Bartlett, Asst. U.S. Attys., of counsel), for appellee.

Appeal from the United States District Court for the Southern District of New York.

Before FEINBERG, PRATT, and WALKER, Circuit Judges.


Joseph Corrao appeals on double jeopardy grounds from a judgment of the United States District Court for the Southern District of New York, Shirley Wohl Kram, Judge, convicting him after a one-week jury trial of obstructing justice in violation of 18 U.S.C. § 1503, and conspiring to obstruct justice in violation of 18 U.S.C. § 371. We reverse and, at the government's request, remand for entry of a nolle prosequi.

Corrao was initially prosecuted for a RICO conspiracy in the Eastern District of New York and was acquitted. One of the predicate acts alleged in the RICO prosecution was the identical obstruction of justice for which Corrao was later tried and convicted in the present case. In Grady v. Corbin, ___ U.S. ___, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), decided after this appeal was argued, the Supreme Court ruled that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. at ___, 110 S.Ct. at 2085.

We directed the parties to submit letter briefs addressing the impact of Grady on the present case. In its letter brief, the government conceded that prosecution of the obstruction of justice charges in the Southern District following acquittal of the RICO conspiracy in the Eastern District was inconsistent with the "conduct" test announced in Grady. The government therefore moved to remand this case to the district court for the purpose of entering a nolle prosequi. We grant the government's motion, reverse the judgment of conviction, and remand the case to the district court for entry of a nolle prosequi.

So ordered.


Summaries of

U.S. v. Russo

United States Court of Appeals, Second Circuit
Jun 28, 1990
906 F.2d 77 (2d Cir. 1990)

finding prosecution of a predicate act following acquittal on RICO conspiracy charge barred under Grady test

Summary of this case from U.S. v. Prusan

reversing the defendant's conviction of obstructing justice under Grady where the conviction followed a previous acquittal for RICO conspiracy using the identical obstruction charge as a predicate offense

Summary of this case from U.S. v. Felix

In Russo, the defendant was acquitted in a RICO prosecution and was later retried and convicted for conduct which had been alleged as a predicate act in the RICO prosecution.

Summary of this case from U.S. v. O'Connor

In Russo, the Second Circuit found that a subsequent prosecution for a predicate act that had been alleged in a prior RICO prosecution was barred under Grady.

Summary of this case from U.S. v. Romero
Case details for

U.S. v. Russo

Case Details

Full title:UNITED STATES OF AMERICA, APPELLEE, v. RUSSO, ET AL., DEFENDANTS. APPEAL…

Court:United States Court of Appeals, Second Circuit

Date published: Jun 28, 1990

Citations

906 F.2d 77 (2d Cir. 1990)

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