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U.S. v. Pungitore

decided: August 1, 1990.


On Appeal from the United States District Court for the Eastern District of Pennsylvania; E.D. Pa. Criminal Nos. 88-00003-01, 88-00003-03, 88-00003-04, 88-00003-05, 88-00003-07, 88-00003-08, 88-00003-09, 88-00003-11, 88-00003-12, 88-00003-15, 88-00003-16, 88-00003-17, 88-00003-18, 88-00003-19.

Becker, Greenberg, and Garth, Circuit Judges.

Author: Greenberg


GREENBERG, Circuit Judge.


These consolidated appeals are the latest saga in the government's dismantling of the Philadelphia branch of La Cosa Nostra. Following a ten week trial which concluded on November 19, 1988, in the Eastern District of Pennsylvania, appellants, all members of the Nicodemo Scarfo crime family, were found guilty of conspiring to participate and participating in the affairs of an enterprise through a pattern of racketeering activity and, in some cases, through the collection of unlawful debts, in violation of RICO, 18 U.S.C. §§ 1962(d) and (c).*fn1

In addition, Joseph Pungitore was convicted of participating in a conspiracy to distribute methamphetamine and Nicodemo Scarfo, Salvatore Merlino, and Joseph Ciancaglini were convicted of possession of methamphetamine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1).*fn2 Scarfo, Merlino and Joseph Pungitore also were convicted of engaging in illegal sports bookmaking, in violation of 18 U.S.C. § 1955. Finally, Francis Iannarella, Jr. and Salvatore Scafidi were convicted of conducting an illegal lottery business, in violation of 18 U.S.C. § 1955(b). Appellants filed post trial motions which were denied by the district court. United States v. Scarfo, 711 F. Supp. 1315 (E.D. Pa. 1989). These appeals followed.


We are bound, after a jury has delivered a guilty verdict, to interpret the evidence in a light most favorable to the government. With that in mind, we offer the following background facts.

The enterprise involved in this case was part of a nationwide criminal organization commonly known as the Mafia or "La Cosa Nostra."*fn3 La Cosa Nostra (LCN) is headquartered in New York and headed by a commission of eleven "bosses," who in turn direct the illegal activities of regional organized crime "families." The national scope of the Mafia is demonstrated by the fact that of its eleven bosses five are from New York City and six are from other cities throughout the country. The Mafia seems to operate a government parallel to that in Washington, although as will be seen changes in its power structure are far more abrupt. Tr. 30/26/88 at 378. The 60 member Scarfo crime family involved here covers Mafia operations in Eastern Pennsylvania and much of New Jersey. Id.

A crime family is a highly structured criminal enterprise with a well defined chain-of-command. At the apex of the family's hierarchy is the "boss," who carries sole authority to approve murders and induct new members into the family. Tr. 10/26/88 at 378. A "consigliere" and "underboss" comprise the next tier in the family's organizational hierarchy. Id. at 378. The consigliere functions as an advisor to the boss and assists in the settlement of disputes among members, while the underboss oversees the family's illegal endeavors when the boss is unavailable and conveys orders to members. Under the consigliere and underboss are the "capos" or "captains," who control "crews" or "regimes" of "soldiers," otherwise known as "made men." The soldiers, in turn, sponsor various "associates," who are best described as criminal colleagues of the family who, for various reasons, have not been formally initiated into its ranks.

The criteria for becoming a member of the Scarfo family are somewhat daunting. To qualify, an aspiring associate must be a male of Italian descent who has participated in a murder pursuant to the boss's order. Tr. 10/10/88 at 80, 90. A primary incentive for joining the family is that the soldier then commands considerable respect from non-Mafia criminals, as his illegal endeavors are backed by "the strength of the Mafia," that is, its well-founded reputation for achieving its objectives through violent means. Tr. at 10/26/88 at 201. Indeed, its members recognize it as "a second government." Id. The soldier also becomes privy to the family's "political" and "union" connections. Id. at 200-01. As Thomas DelGiorno put it, becoming a ranking member of the family means the "difference of being in the major leagues and minor leagues as far as gangsters are concerned." Tr. 10/10/88 at 79. Of course, the Mafia does not look lightly upon the obligations of its members, for loyalty to it comes before "everything, your wife, your kids, your mother, everything." Tr. 10/28/88 at 201. The position of Frank and Phillip Narducci as appellants in this case demonstrates this as their father was murdered on Scarfo's orders.

It is difficult to chart the history of the Philadelphia Mafia, given its frequent personnel changes caused by the violent deaths of several of its members. It is clear, however, that Angelo Bruno served as boss from approximately 1960 until his murder in 1980, when he was succeeded by Phillip Testa.*fn4 Appellant Nicodemo Scarfo functioned as consigliere under Testa and became boss after Testa was murdered by being blown up in his house in early 1983. Scarfo initially appointed Frank Monte as his consigliere and appellant Salvatore Merlino as his underboss. However, in February, 1986, Scarfo demoted Merlino to capo and replaced him with Philip Leonetti, who previously had been a capo.*fn5

In 1983, the capo ranks included appellant Joseph Ciancaglini, Frank Narducci, Sr., and Leonetti, as well as Santo Idone, Joseph Scafidi and Freddie Iezzi. Around January, 1982, Lawrence Merlino, Salvatore Merlino's brother, was promoted to capo, and appellants Francis Iannarella and Joseph Pungitore, along with co-conspirators Eugene Milano, Thomas DelGiorno and Pasquale Spirito, became soldiers.*fn6 Existing members of the soldier ranks included appellants Salvatore Wayne Grande and Frank Narducci, Jr. Appellant Nicholas Virgilio became a soldier a few months later. In the fall of 1984, appellants Charles Iannece and Joseph Grande,*fn7 along with government witness Nicholas Caramandi, became made members and appellant Iannarella and DelGiorno were promoted to acting capos. Appellant Phillip Narducci and Nicholas Milano became made members in February, 1986, and Iannarella and DelGiorno became full capos. Finally, in June 1986, appellants Salvatore Scafidi, Ralph Staino, Jr. and Anthony Pungitore, Jr. became made members.

Over the course of the conspiracy, which was alleged in the indictment to run from April, 1976 through October, 1987, Jt.App. at 128, the Scarfo family's criminal activities included nine murders, four attempted murders, drug trafficking, the conduct of illegal gambling businesses, the extortionate collection of "street taxes" from non-LCN drug dealers and operators of illegal gambling businesses, the collection of unlawful gambling debts, and the collection of various usurious loans. We shall not describe in detail the factual circumstances of all of these crimes because, with few exceptions, appellants understandably have not challenged the sufficiency of the evidence to support their convictions. However, it is appropriate for us to overview them briefly so as to convey a sense of the extraordinary breadth of the evidence the jury had before it of appellants' criminal activity in Pennsylvania and southern New Jersey.


The jury's answers to special interrogatories on the RICO charges indicated that each of the appellants had participated in a murder, attempted murder, or conspiracy to murder. Jt.App. at 1230-62. While the motives for the murders and attempted murders varied, each appears to have been carefully planned and carried out pursuant to Scarfo's instructions.

Vincent Falcone, a cement contractor who socialized with various members of the enterprise, including Scarfo, Philip Leonetti, and Lawrence Merlino, tr. 10/25/88 at 48-49, was murdered on December 16, 1979, because he made disparaging comments concerning Scarfo and Philip Leonetti.*fn8 Joseph Salerno, Jr. testified that in late 1979, Scarfo asked him in a restaurant in Philadelphia if he had any guns and he answered that he owned a .32 caliber revolver and a rifle.*fn9 Tr. 10/25/88 at 43-44. A few weeks later, at Scarfo's request, Salerno brought the guns to the office of Scarf, Inc. on Georgia Avenue in Atlantic City where Scarfo, Leonetti, and Lawrence Merlino took possession of them. Id. at 47-48.

Salerno further testified that on the night of the murder, he was home in Brigantine, New Jersey, when he received a call to go over to the office of Scarf, Inc. which he did. When he arrived there he indicated that he wanted to go home to be with his children and to decorate the Christmas tree but instead was induced to drive with Falcone, Leonetti, and Merlino to an apartment in Margate, New Jersey, where Scarfo was waiting. Id. at 55-57. Scarfo, who was watching television, told Falcone to fix some drinks. Id. at 57. Within minutes after Falcone reappeared with the drinks, Leonetti, using Salerno's gun, shot Falcone once in the head. According to Salerno, Scarfo then stated "'I think, I'll give him another one.'" Leonetti responded, "'No . . . I'll give it to him'" and fired an additional shot into Falcone's chest. Id. at 58. Pursuant to Scarfo's instructions, Leonetti and Merlino then left the premises to dispose of the gun and pick up Falcone's car, id. at 58, and Salerno tied up Falcone's body and wrapped it in a blanket. As Salerno performed his assigned task, Scarfo stated "'I love this . . . I love it.'" Id. at 62. When Merlino returned with Falcone's car, Salerno helped him put Falcone's body into the trunk. Id. at 65, 69. The co-conspirators then abandoned the car in another location in Margate, cleaned the apartment and disposed of their clothing in a sewer. They then had dinner at Scarfo's apartment. Tr. 10/25/88 at 69-70, 71-72, 74, 76. Falcone's murder was charged against Scarfo and co-defendant Leonetti as racketeering act 3.

In December 1979, Salerno began to cooperate with state and federal authorities investigating the Falcone murder and other crimes committed by members of the enterprise. Tr. 10/25/88 at 83. With good reason he was concerned about his safety and that of his family and thus sought and obtained protection from the Atlantic County Prosecutor. In the summer of 1982, he testified against Scarfo in a proceeding before the New Jersey Division of Gaming Enforcement and in a proceeding concerning a union described as "Local 54 Bartender's Union." Tr. 10/25/88 at 92. After this testimony Scarfo, Salvatore Merlino, and Phillip Narducci attempted to murder Salerno's father, Joseph Salerno, Sr. Tr. 10/11/88 at 20-23; 10/25/88 at 92. At that time, Salerno, Jr. was inaccessible because he and his family had entered the federal witness protection program. Tr. 10/25/88 at 88. Phillip Narducci told DelGiorno that he appeared at Joseph Salerno, Sr.'s office in Wildwood Crest, New Jersey, and shot him when he opened the door. Id. at 22. On these facts, Scarfo, Merlino and Narducci were found guilty of racketeering acts 7 (a) and (b), which charged them with conspiracy to murder and attempted murder.

Judge Edwin Helfant's murder also is indicative of the way in which this enterprise operated. On February 15, 1978, Virgilio, wearing a ski mask to avoid identification, shot and killed Judge Helfant, a former municipal court judge in Atlantic County, New Jersey, in the Flamingo Bar and Restaurant in Atlantic City. Scarfo later told DelGiorno and others, described by DelGiorno as "Philip, Chuckie, Larry, Faffy, [and] the Blade," that he had instructed Virgilio to kill Judge Helfant because Helfant had accepted $12,000 to fix a case involving Virgilio but not done so. Tr. 10/10/88 at 132-33. Scarfo drove the get-away car at the time of the murder and later arranged a false alibi for Virgilio. Id. at 133-35. Scarfo and Virgilio were found guilty of the Helfant murder as charged in racketeering act I of the RICO counts.

The evidence also shows that the appellants killed in response to a member's showing of disloyalty to the organization,*fn10 to a drug dealer's refusal to pay the street tax to the enterprise,*fn11 and to eliminate a faction of the enterprise's membership which threatened Scarfo's leadership.*fn12


Appellants conducted four illegal gambling operations, three numbers businesses and a sports betting business. Thomas DelGiorno ran the most profitable numbers business. He testified that his business operated continuously from 1976 until 1986, when he began to cooperate with law enforcement officials, tr. 10/11/88 at 83-85. DelGiorno employed between ten and thirty individuals as salaried numbers writers. Id. at 86, 88. The writers turned their work into one of up to five "numbers offices" which were located, for the most part, in private homes. Id. at 86-87. Over the business's ten-year history, average revenues ranged from $10,000 to $100,000 per week. Id. at 89-90. This business was able to compete with the state lotteries because the players could get credit, would be paid right away if they hit, and would not have to pay taxes on their winnings. Id. at 89.

Appellant Iannarella began work for DelGiorno as a numbers office employee receiving bets in the late 1970's, and served as manager of the business from the early 1980's until mid-1985, when he was replaced by Scafidi. Id. at 91-94. As managers, Iannarella and Scafidi were responsible for supervising all of the offices and employees, collecting gambling debts and bets from the numbers writers, and paying the employees. Id.

In 1982, appellant Salvatore Merlino and DelGiorno became partners in another numbers business in the Philadelphia area. The Merlino-DelGiorno business was managed by Scafidi and received approximately $3000 to $5000 in bets each week, until it closed operations in February, 1986. Id. at 96-98.

A third numbers business was operated by appellant Joseph Pungitore in partnership with Michael Madgin from December, 1985 until early 1987. Pungitore financed the business and supervised collections from the numbers writers. Pungitore's business regularly employed more than five workers and brought in approximately $14,000 in bets each week.

The illegal sports betting business was conducted by appellants Scarfo, Salvatore Merlino and Joseph Pungitore and co-defendant Leonetti in Philadelphia from 1983 until late 1986. In 1983, Pungitore, DelGiorno and Salvatore Testa each invested $25,000 as partners in the business. After Salvatore Testa was murdered on September 14, 1984, Scarfo and Salvatore Merlino assumed his one-third interest in the business and split one third of the business's profits. When Philip Leonetti replaced Merlino as underboss in February, 1986, he took over Merlino's ownership interest. Joseph Pungitore managed the business's daily operations and, after DelGiorno became a cooperating government witness, controlled the business's $300,000 bank roll. Tr. 10/12/88 at 24.

The sports betting operation appears to have been a highly successful endeavor, which provided year-round profits from football, baseball and basketball bets. Tr. 10/12/88 at 16-20. It involved 30 to 40 bookies turning their work into five offices, received more than $2000 in bets on every day of its operation, and on a typical Sunday received $175,000 to $200,000 in bets. Id. Tr. 10/21/88 at 25-35.


In early 1982, Scarfo approved a scheme to extort money from drug dealers and bookmakers. Tr. 10/12/88 at 36-37, 47-48. Ciancaglini told DelGiorno that he and Pat Spirito, with Scarfo's permission, had formed a crew, made up of Charles Iannece, Nicholas Caramandi, and Ralph Staino, to extort or "shake down" bookmakers, and suggested that DelGiorno form a similar crew. Tr. 10/12/88 at 47-48. Ciancaglini was in charge of the crew and Spirito, a made member, was responsible for directly supervising its activities. The crew received half of the proceeds from the shakedowns, and the remainder was equally divided among Scarfo, Ciancaglini, Salvatore Merlino, Philip Leonetti, Lawrence Merlino and Frank Monte. Id. at 49. After Frank Monte was killed in 1982, Salvatore Testa received his share of the shakedown proceeds, until he too was killed on September 14, 1984. Id. at 66. Victims of the shakedowns were told that they would be killed if they failed to pay the "street tax." Id. at 37.

Eventually, additional crews were formed and the co-conspirators extended their shakedown operations to include drug dealers. Although bookmakers paid regular sums every week, receipts from drug dealers, called "extras," were more sporadic, because "drug dealers don't work every week." Id. at 70-71. In an average month, the shakedown proceeds ranged from $24,000 to $40,000. It is not clear from the record whether this sum included the "extras" from drug dealers. Id. at 71-72, 77.

The co-conspirators were careful not to shake down individuals associated with LCN. To that end, Scarfo, Leonetti, Salvatore Merlino, and DelGiorno provided the crews with names of individuals to target.*fn13 From the beginning of the scheme until about February, 1986, Caramandi delivered a weekly tally sheet recording the shakedown collections and the leadership's fifty percent share to various designated co-conspirators to give to Scarfo. Tr. 10/12/88 at 69-70; 10/21/88 at 21-26; 10/28/88 at 13-15. Thereafter, the tally sheets were delivered by assorted co-conspirators, including DelGiorno, Iannarella, Scafidi, and Joseph Grande, to either Scarfo or Leonetti. Tr. 10/12/88 at 69-70. In general, the shakedown operation appears to have been a highly structured and profitable endeavor. As the district court observed, "Literally hundreds of shakedown victims paid a street tax that provided a steady and lucrative stream of revenue for the mob." United States v. Scarfo, 711 F. Supp. at 1339.



Scarfo and Staino contend that the RICO statute is unconstitutionally vague because the pattern of racketeering requirement is not defined with sufficient clarity to place defendants on notice as to what conduct falls within its parameters.*fn14 Appellants rely heavily on Justice Scalia's concurrence in H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989), which hinted that the RICO statute might be vulnerable to a vagueness attack because the pattern of racketeering requirement is not susceptible of precise definition. Id. at 2909. Regardless of whether in other circumstances the uncertain reach of the RICO statute might raise problems of constitutional dimension, we find that the statute is perfectly clear as applied to appellants' conduct and therefore reject their vagueness challenge.*fn15

In H.J., Inc., a class of telephone customers sued Northwestern Bell under RICO's civil liability provisions, 18 U.S.C. §§ 1964(a) and (c), alleging that the defendant company had engaged in a scheme to bribe members of a state public utility commission to obtain favorable rate rulings. The Court of Appeals for the Eighth Circuit affirmed the district court's dismissal of the complaint under Fed. R. Civ. P. 12(b)(6) on the ground that the plaintiffs' allegation of a single unlawful scheme did not satisfy RICO's pattern requirement, which it held requires proof of multiple schemes. 829 F.2d 648, 650 (8th Cir. 1987), aff'g. 648 F. Supp. 419 (D. Minn. 1986). The Supreme Court reversed, holding that a RICO pattern may be predicated upon a single criminal scheme as long as sufficient indicia of continuity are present. 109 S. Ct. at 2902.

The Court explained that RICO's legislative history indicates that a pattern of racketeering must be based upon related predicates which "amount to or pose a threat of continued criminal activity." H.J., Inc., 109 S. Ct. at 2900 (citing Sedima., S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985)). However, while the Court conceded the difficulties inherent in formulating a precise standard for the continuity requirement, it rejected the defendant's contention that the requirement can be satisfied only through proof of multiple criminal schemes. Id. at 2901. According to the Court, evidence of multiple schemes is highly probative of the continuous nature of the defendant's criminal conduct but is not a necessary element of a RICO pattern. Under H.J., Inc., a pattern also may be established through proof that predicate acts forming a single criminal scheme were "a regular way of conducting defendant's ongoing legitimate business," such that absent intervention, they were likely to extend into the future, or through proof that a series of related predicates in fact extended over a "substantial period of time." Id. at 2902. As the Court suggested, in view of the variety of ways that continuity may be established, defining a RICO pattern necessarily is a highly fact specific task.

Justice Scalia, in his concurrence, felt that the Court's "murky discussion" failed to provide sufficient guidance as to the outer boundaries of a RICO pattern. Id. at 2908 (Scalia, J., concurring). In particular, as pertinent to this appeal, he wrote:

No constitutional challenge to this law has been raised in the present case, and so that issue is not before us. That the highest Court in the land has been unable to derive from this statute anything more than today's meager guidance bodes ill for the day when that challenge is presented.

Id. at 2909.

Predictably, appellants seize upon this language in arguing that the RICO pattern requirement is so vague as to offend due process.

A statute is unconstitutionally vague when it "either forbids or requires the doing of an act in terms so vague that men of ordinary intelligence must necessarily guess as to its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322 (1926). See also Rode v. Dellarciprete, 845 F.2d 1195, 1199 (3d Cir. 1988); Aiello v. City of Wilmington, 623 F.2d 845, 850 (3d Cir. 1980). However, outside the First Amendment context, a party has standing to raise a vagueness challenge only insofar as the statute is vague as applied to his or her specific conduct. New York v. Ferber, 458 U.S. 747, 767-69, 102 S. Ct. 3348, 3360-61, 73 L. Ed. 2d 1113 (1982); Rode, 845 F.2d at 1200.*fn16 As stated in Ferber, this standing requirement "reflects two cardinal principles of our constitutional order: the personal nature of constitutional rights, . . . and prudential limitations on constitutional adjudication." 458 U.S. at 767, 102 S. Ct. at 3360.

In light of Ferber, our inquiry must focus on whether persons of ordinary intelligence would know that the repeated commission of murder, extortion, illegal gambling, and usury offenses in furtherance of an organized crime enterprise constitute a pattern of racketeering under RICO. If so, then we need not further consider whether the pattern requirement is unconstitutionally vague as applied to the hypothetical conduct of third parties not before us, as appellants lack standing to assert the rights of those third parties.

As applied to the appellants' criminal activities, the "relationship plus continuity" test for a pattern is readily satisfied. The criminal conduct involved here was not isolated but extended over a substantial time, and the predicate acts cannot fairly be characterized as unrelated as they were committed pursuant to the orders of key members of the enterprise in furtherance of its affairs. Indeed, the independent existence of the enterprise connotes continuity and relatedness because the evidence showed overwhelmingly that the criminal agenda of the enterprise extended beyond the commission of any individual predicate acts: one joined LCN not to commit any one set of crimes but in fact to commit any crime that the boss wanted done. See United States v. Indelicato, 865 F.2d 1370, 1384 (2d Cir.) (en banc), cert. denied, 493 U.S. 811, 110 S. Ct. 56, 107 L. Ed. 2d 24 (1989) ("If the racketeering acts were performed at the behest of an organized crime group, that fact would tend to belie any notion that the racketeering acts were sporadic or isolated."). In sum, appellants' argument that they lacked notice that their conduct constituted a "pattern" under RICO is utterly devoid of merit, as they have engaged in a classic pattern of racketeering under RICO.

The result reached here is consistent with United States v. Angiulo, 897 F.2d 1169 (1st Cir. 1990), which held that, however vague the statute may be as applied to legitimate businesses, its application to the criminal activities of organized crime families is so clear as to be beyond peradventure. Id. at 1180 ("A person of ordinary intelligence could not help but realize that illegal activities of an organized crime family fall within the ambit of RICO's pattern of racketeering activity."). See also Freeman, Jr. and McSlarrow, RICO and the Due Process "Void for Vagueness" Test, 45 Bus. Law. 1003, 1009 (1990) (suggesting that the vagueness problem identified in H.J. Inc. may be more pronounced in civil RICO cases than in criminal prosecutions because private plaintiffs are not politically accountable for their exercise of prosecutorial discretion). We think it is clear that the potential due process problems noted by Justice Scalia in H.J., Inc. are not present in organized crime cases. Unlike in H.J., Inc., which involved allegations of corruption within the ranks of a legitimate business, the application of RICO to the activities of the Scarfo crime family could not have come as a surprise to the members of the family. In fact, we have doubts that a successful vagueness challenge to RICO ever could be raised by defendants in an organized crime case. Certainly appellants' attempt to do so has been singularly unpersuasive.


1. Dual Sovereignty: Successive Prosecutions for the Falcone and Testa Murders

Prior to the trial in this case, Scarfo was tried and acquitted in a New Jersey state court for the murder of Vincent Falcone. Likewise, Scarfo, Scafidi, Salvatore Merlino, Joseph Pungitore, Francis Iannarella Jr., Salvatore Wayne Grande, Charles Iannece and Joseph Grande were jointly tried and acquitted in Pennsylvania in the Court of Common Pleas for the murder of Salvatore Testa. The Falcone murder was charged as racketeering act 3 and the Testa murder was charged as racketeering act 12 in the RICO indictment. Appellant Iannarella brought an unsuccessful pretrial motion, joined in by several other appellants, to have both racketeering acts struck from the indictment on double jeopardy grounds. Jt.App. at 528. On appeal, Scafidi and Scarfo revisit this issue, arguing that, in view of their acquittals in state court, double jeopardy principles precluded the government from charging the Falcone and Testa murders as predicate offenses. Brief for Scafidi at 9-14; Brief for Scarfo at 17-22.

This argument is contrary to a long line of Supreme Court cases which have held that a federal prosecution arising out of the same facts which had been the basis of a state prosecution is not barred by the double jeopardy clause. United States v. Wheeler, 435 U.S. 313, 320, 98 S. Ct. 1079, 1084, 55 L. Ed. 2d 303 (1978); Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959); United States v. Lanza, 260 U.S. 377, 43 S. Ct. 141, 67 L. Ed. 314 (1922). See also Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959) (due process clause does not prohibit a state from prosecuting a defendant for the same act for which he was acquitted in federal court). The "dual sovereignty" doctrine rests on the premise that, where both sovereigns legitimately claim a strong interest in penalizing the same behavior, they have concurrent jurisdiction to vindicate those interests and neither need yield to the other.*fn17

The dual sovereignty doctrine has been interpreted by this court and others to mean that an acquittal in state court does not preclude the government from charging the offense subject to the acquittal as a predicate act in a subsequent RICO prosecution. United States v. Licavoli, 725 F.2d 1040, 1047 (6th Cir.), cert. denied, 467 U.S. 1252, 104 S. Ct. 3535, 82 L. Ed. 2d 840 (1984); United States v. Russotti, 717 F.2d 27 (2d Cir. 1983), cert. denied, 465 U.S. 1022, 104 S. Ct. 1273, 79 L. Ed. 2d 678 (1984); United States v. Frumento, 563 F.2d 1083 (3d Cir. 1977), cert. denied, 434 U.S. 1072, 98 S. Ct. 1256, 55 L. Ed. 2d 775 (1978). In Frumento, which involved successive prosecutions for bribery and racketeering, we observed that the federal interest in prosecuting a RICO offense is significantly different than the state interest in prosecuting the predicate offenses:

The appellants' conduct, even though it may have involved the same operative facts considered in the state court, also contains an additional element of significance to the federal courts though not the state court -- the effect of their state operation on interstate or foreign commerce through a pattern of racketeering activity.

Frumento, 563 F.2d at 1088.

In view of the lack of congruity between the federal and state interests in the defendants' activities, we held that the double jeopardy clause was no bar to the RICO prosecution, as the case fell squarely within the dual sovereignty doctrine. Id.*fn18

Frumento, of course, is controlling precedent in this Circuit and, absent in banc review, we are constrained to follow it.*fn19 See Internal Operating Procedures, Chapter 9.1 (1990). Appellants, however, insist that this case warrants an exception to the Frumento rule because here, the degree of federal and state cooperation in the two prosecutions was so extensive as to cast doubt on the premise that they in fact were brought by separate sovereigns acting independently. Relying on Russotti, 717 F.2d at 31, and United States v. Aleman, 609 F.2d 298, 309 (7th Cir. 1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1345, 63 L. Ed. 2d 780 (1980), they argue that the dual sovereignty doctrine is not unqualified but is subject to an exception where the federal authorities are so intimately involved in the state prosecution that it would be fundamentally unfair to allow them to bring a separate prosecution.

Even if we were to follow Russotti and Aleman in this regard, we would have no basis for applying the exception in this case.*fn20 Apparently, there was a considerable amount of federal-state cooperation in the scheduling of the D'Alfonso murder and federal racketeering trials, but appellants have not pointed to anything in the record to substantiate their claim that federal authorities had any involvement in the Falcone and Testa murder trials. Accordingly, we conclude that appellants' previous acquittals for the Falcone and Testa murders do not provide us with reason to disturb their RICO convictions on double jeopardy grounds.

2. Successive Federal Prosecutions of the Rouse Extortion

Scarfo has been the defendant in numerous federal prosecutions. Before the indictment issued in this case, we affirmed his conviction under 18 U.S.C. §§ 2 and 1951 for conspiring to extort and extorting $1 million from a real estate developer, Rouse & Associates, in exchange for the cooperation of Councilman Leland Beloff in securing the passage of a zoning ordinance needed for Rouse's completion of a redevelopment project on the Philadelphia waterfront. United States v. Scarfo, 850 F.2d 1015 (3d Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 263, 102 L. Ed. 2d 251 (1988). However, in a separate trial, he was acquitted of charges that he conducted a continuous criminal enterprise (CCE), in violation of 21 U.S.C. § 848. United States v. Scarfo, E.D. Pa., No. 87-258.

He asserts that this RICO prosecution infringed his rights under the double jeopardy clause because the Rouse extortion offense forming the basis for his earlier conviction was charged as a predicate offense in the instant indictment.*fn21 He also suggests that his due process rights were violated by the successive prosecutions of the Rouse extortion and the CCE and RICO offenses in federal court, and the Testa and Falcone murders in state court because the government had knowledge of all of the offenses at the time of the first indictment and could have charged all of them at that time. According to Scarfo, the government purposefully brought successive prosecutions in order to embarrass and harass him and exhaust his economic resources to defend himself. Scarfo's Reply Brief at 10.

This argument with respect to double jeopardy on the facts cannot possibly be accepted. The Rouse extortion was only one of the 32 predicate acts which the jury found that Scarfo had committed. Thus, even if we deleted the Rouse act, we would affirm the convictions. See United States v. Riccobene, 709 F.2d 214, 228 (3d Cir.), cert. denied, 464 U.S. 849, 104 S. Ct. 157, 78 L. Ed. 2d 145 (1983). In any event, Scarfo's arguments on this point are controlled by binding precedent in this Circuit.

In United States v. Grayson, 795 F.2d 278 (3d Cir. 1986), cert. denied, 479 U.S. 1054, 107 S. Ct. 927, 93 L. Ed. 2d 978 (1987), we held that prosecution for a RICO offense after an earlier conviction in federal court for a predicate offense is permissible under the double jeopardy clause. We began our analysis in Grayson with the observation that RICO's language and legislative history clearly evince Congress's intent to allow separate prosecutions and cumulative punishment of predicate offenses and RICO offenses. Id. at 283.*fn22 In view of that observation, we went on to consider whether such separate prosecutions are constitutional under the double jeopardy clause. We decided that a RICO offense "is not, in a literal sense, the 'same' offense as one of the predicate offenses," as a RICO violation requires proof of a "pattern of racketeering" and is intended to deter continuous criminal conduct. Id. In contrast, the predicate offenses are intended to deter discrete criminal acts, in Grayson, individual narcotics violations. Accordingly, we held that the double jeopardy clause does not bar a subsequent RICO prosecution which is based, in part, on predicate offenses for which the defendant already has been prosecuted. Accord United States v. Schell, 775 F.2d 559, 568 (4th Cir. 1985), cert. denied, 475 U.S. 1098, 106 S. Ct. 1498, 89 L. Ed. 2d 898 (1986);*fn23 United States v. Licavoli, 725 F.2d at 1049-50. In view of Grayson, the inclusion of the Rouse extortion as a predicate offense in the RICO charges was consistent with the double jeopardy clause, notwithstanding Scarfo's previous conviction for that extortion.*fn24

Scarfo has urged us to reconsider the double jeopardy implications of successive prosecutions for predicate offenses and RICO offenses in light of the Supreme Court's recent decision in Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), which, in his view, implicitly overruled Grayson.*fn25 We believe that Scarfo reads Grady too broadly, as the reasoning in that decision logically extends only to offenses arising from a single discrete event. We do not think that the Supreme Court meant to imply that the double jeopardy clause forecloses successive prosecutions in cases of compound-complex felonies such as RICO, which involve several criminal acts occurring at different times in different places.

In Grady, the government sought to prosecute the defendant on homicide and assault charges stemming from a fatal automobile collision, after he had pleaded guilty to two misdemeanor traffic offenses arising from the same incident, driving while intoxicated and failing to keep to the right of the median. At the time the guilty pleas were received, the court was not informed that the collision had resulted in a fatality. 110 S. Ct. at 2088. A few weeks later, the court imposed minimum sentences for the offenses pursuant to the recommendation of an assistant district attorney who was unaware that another member of the District Attorney's Office was gathering evidence for the homicide prosecution. Id. at 2089. After the defendant was indicted on the homicide and assault charges, the prosecution filed a bill of particulars which identified three reckless or negligent acts upon which it would rely in proving its case: 1) operating a motor vehicle while intoxicated; 2) failing to keep to the right of the median; and 3) driving at a speed too fast for the weather and road conditions. Id.

The Supreme Court held that the double jeopardy clause barred the homicide and assault prosecution to the extent that the state, to establish essential elements of the offenses charged in the prosecution, would endeavor to prove conduct for which the defendant already had been prosecuted. Id. at 2093.*fn26 The Court acknowledged that under the test of Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932), the misdemeanor traffic offenses were not the "same offense" as homicide or assault, as each required proof of facts which the others did not. 110 S. Ct. at 2092-93. However, it decided that, in cases of multiple prosecutions, the double jeopardy clause requires more than a technical comparison of the statutory elements of the successively charged offenses. Id. Thus, under Grady, even if the offense charged in the second prosecution survives the Blockburger test, the prosecution will be barred if the state intends to prove beyond a reasonable doubt the same conduct forming the basis of the earlier conviction.

We realize that the language employed by the Supreme Court in its formulation of the "same conduct" test could be interpreted as extending double jeopardy protection to all situations where the government intends again to prove conduct constituting an offense subject to an earlier conviction. But we would not be justified in reading Grady so expansively. The Court in Grady relied substantially on Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980)*fn27 and Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977),*fn28 the holdings of which implicitly were confined to situations involving discrete criminal events. Indeed, in Brown, the Court indicated that its holding, that a prior conviction for a lesser included offense bars a subsequent prosecution for the greater offense, was required by the insular natures of the offenses charged in the two prosecutions, joyriding and auto theft: "The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units." Id. at 169, 97 S. Ct. at 2227 (emphasis added).

The double jeopardy analysis in Brown and Grady, its most recent progeny, cannot easily be transposed to the RICO context because by definition, a "pattern of racketeering" under RICO is made up of "a series of temporal or spatial units." Instead, we consider the double jeopardy problem posed by the successive prosecutions here to be more closely analogous to that in Garrett v. United States, 471 U.S. 773, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985), which rejected a double jeopardy claim based on the government's use of a drug offense for which a conviction had been obtained as a predicate offense in a later prosecution for engaging in a continuous criminal enterprise (CCE), in violation of 18 U.S.C. § 848. The Court in Garrett assumed without deciding that under the Blockburger test, a predicate narcotics offense is a lesser included offense of a CCE offense, id. at 790, 105 S. Ct. at 2417, but nevertheless rejected the defendant's attempt to invoke the rule in Brown v. Ohio as bar to the CCE prosecution. The Court stated:

We think there is a good deal of difference between the classic relation of the 'lesser included offense' to the greater offense presented in Brown, on the one hand, and the relationship between the [predicate] marihuana offense and the CCE charge involved in this case, on the other. The defendant in Brown had stolen an automobile and driven it for several days. He had engaged in a single course of conduct-driving a stolen car. The very same conduct would support a misdemeanor prosecution for joyriding or a felony prosecution for auto theft, depending only on the defendant's state of mind while he engaged in the conduct in question. Every moment of his conduct was as relevant to the joyriding charge as it was to the auto theft charge.

Id. at 787, 105 S. Ct. at 2416 (emphasis added). After reviewing the defendant's drug trafficking activities, which spanned 5 1/2 years and several states, the Court concluded that the "significant differences" between the facts before it and those in Brown

caution[ed] against ready transposition of the 'lesser included offense' principles of double jeopardy from the classically simple situation presented in Brown to the multilayered conduct, both as to time and place, involved in this case.

Id. at 789, 105 S. Ct. at 2416.

The Court also considered that the defendant's CCE offense continued past the time he was indicted for the predicate offense, and was unwilling to "force the Government's hand" by compelling it either to withhold prosecution for the predicate offense until it was prepared to seek an indictment for the CCE offense, or to limit the scope of the CCE prosecution by bringing it at the time of the indictment for the predicate offense. Id. at 790, 105 S. Ct. at 2417.

We conclude that Grady, which finds its roots in "single transaction" cases such as Brown, is no more applicable in the instant circumstances than Brown was in Garrett.*fn29 It is true that to the extent of the Rouse extortion, the government proved the "same conduct" needed to sustain the guilty verdict in the Rouse extortion trial. However, as was the case with the CCE offense in Garrett, Scarfo's RICO offense was far more extensive than the Rouse extortion. Moreover, Scarfo's racketeering activities continued after his indictment on January 5, 1987, for the Rouse extortion. The evidence showed that the RICO conspiracy extended to October, 1987 and that at least one of the predicate offenses supporting Scarfo's RICO convictions, his participation in the illegal sports bookmaking business, continued through April, 1987. As the Supreme Court observed in Garrett, "one who insists that the music stop and the piper be paid at a particular point must at least have stopped dancing himself before he may seek such an accounting." 471 U.S. at 790, 105 S. Ct. at 2417.

Thus, we reject Scarfo's double jeopardy argument on the basis of Grayson, in which we decided that successive prosecutions of RICO and its underlying predicates are constitutionally permissible, and Garrett, which distinguished single course of conduct crimes, like those in Brown and Grady, from compound-complex crimes, like those at issue here. However significant Grady v. Corbin may prove to be in cases of simple felonies, we are confident that it has nothing whatsoever to do with the compound-complex crimes at issue here.

Scarfo's argument that his successive prosecutions violated due process also lacks merit.*fn30 We acknowledge that successive prosecutions may work hardship on the defendant. Also, from the standpoint of judicial economy, it is preferable for the government to consolidate all charges in a single indictment. However, we are not prepared to say that it was a violation of Scarfo's due process rights for the government to charge the offenses in the manner it did. We could not possibly hold that the inclusion of the Falcone and Testa murders as predicate racketeering acts was overreaching on the part of the government, as the earlier murder prosecutions occurred in state court, beyond the control of the United States Attorneys involved in this case. As for the successive federal prosecutions, Scarfo's argument, which might best be characterized as an allegation of prosecutorial vindictiveness, presupposes that the government had available to it all of the evidence adduced in this case at the time of the Rouse and CCE trials and that it would have been practical to try the offenses together. Although at least two of the government witnesses in this case, DelGiorno and Caramandi also testified at the Rouse trial, Scarfo, 850 F.2d at 1017, we have no way of knowing whether other evidence used to convict Scarfo and his co-conspirators was known to the government at the time of the earlier trials. Furthermore, as the government pointed out at oral argument, the CCE trial itself was a large trial which involved 27 defendants. Tr. of Oral Argument at 149. Had the government attempted to prosecute the RICO and CCE offenses together, the cases may have been completely unmanageable.

As other courts have pointed out, "prosecutors have traditionally enjoyed discretion in deciding which of multiple charges against a defendant are to be prosecuted or whether they are all to be prosecuted at the same time." United States v. Cardall, 885 F.2d 656, 666 (10th Cir. 1989). See also United States v. Becker, 892 F.2d 265, 269 (3d Cir. 1989) (successive prosecutions of two separate drug conspiracies did not constitute harassment); United States v. Partyka, 561 F.2d 118, 124 (8th Cir. 1977), cert. denied, 434 U.S. 1037, 98 S. Ct. 773, 54 L. Ed. 2d 785 (1978). This is not to say that multiple prosecutions may never result in a denial of due process. See Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) (vindictive prosecution brought in retaliation to defendant's invocation of procedural rights violates due process). However, to raise successfully a due process claim, the defendant must affirmatively establish vindictiveness, as the fact of multiple prosecutions, standing alone, does not prove an abuse of prosecutorial discretion. Considering that Scarfo has pointed to no evidence of prosecutorial abuse but relies solely on the fact of multiple prosecutions and that, barring double jeopardy problems, a single trial is not a "'constitutional imperative,'" Cardall, 885 F.2d at 666 (citation omitted), we reject Scarfo's final challenge to his successive prosecutions.

3. Successive RICO Prosecutions of Joseph Ciancaglini

Ciancaglini filed a pretrial motion to dismiss the RICO charges against him on double jeopardy grounds, citing his earlier conviction for a RICO conspiracy involving the same enterprise. United States v. Riccobene, 709 F.2d 214 (3d Cir.), cert. denied, 464 U.S. 849, 104 S. Ct. 157, 78 L. Ed. 2d 145 (1983). We rejected his double jeopardy claim in an earlier appeal, reasoning that the successive RICO charges did not involve the same offense for double jeopardy purposes because they alleged different patterns of racketeering activity occurring over different time periods. United States v. Ciancaglini, 858 F.2d 923, 930 (3d Cir. 1988).

Ciancaglini now urges us to reconsider our decision in light of the record developed at trial. Specifically, he contends that the government relied on identical evidence in both trials and that it expressly conceded the existence of a single RICO conspiracy, thus shifting its ground from pretrial, where it alleged that it intended to prove the same enterprise but successive conspiracies. Brief for Ciancaglini at 14. In support of these contentions, he points to two intercepted conversations, one dated April 20, 1976, and the other, November 4, 1977, which were introduced at both trials and which the government claimed were necessary to prove the existence of the enterprise.*fn31 Brief for Ciancaglini at 15-16. In the course of his response to Ciancaglini's objection on relevancy grounds to the admission of the tapes, the prosecutor stated:

This tape was played . . . in the prosecution of-in 1982 of Harry Riccobene, Mr. Ciancaglini and a number of other defendants. . . . It's a very essential piece of evidence. Its coming from the mouths of these very defendants the fact that there is in fact a La Cosa Nostra, that Mr. Scarfo is a participant in this conversation, this is an ongoing conspiracy.

The conspiracy in this case by the indictment begins in April of 1976, a year before this tape-a year and a half before this tape was even made. The very nature of La Cosa Nostra is this is an ongoing criminal enterprise.*fn32

According to Ciancaglini, these remarks constitute an admission on the part of the government of a single RICO conspiracy. Therefore, he argues, we are not constrained by our earlier decision because it rested on an assumption that the government intended to prove successive conspiratorial agreements. He further argues that even if we conclude that the developments at trial did not undercut our reasoning in his prior appeal, Grady v. Corbin, supra, requires a different analysis.

In Ciancaglini, we held that double jeopardy is offended by successive RICO prosecutions only where, under a totality of the circumstances test, there is no material difference between the "enterprise" and the "pattern of racketeering activity" charged in the two indictments. Id. at 929. We specifically rejected a double jeopardy analysis for RICO conspiracies which focused solely on whether the indictments alleged the same conspiratorial agreement. 858 F.2d at 928. We reasoned that because a RICO conspiracy is nothing more than an agreement to violate a substantive provision of RICO, the double jeopardy analyses for successive prosecutions under 18 U.S.C. §§ 1962(c) and (d) must be identical where, as here, both charges allege the same enterprise and underlying "pattern of racketeering activity." 858 F.2d at 929. Indeed, it is meaningless to speak of a conspiratorial agreement under RICO without reference to the "enterprise" and "pattern of racketeering activity."

We fully appreciated the fact that this case involved the same enterprise as that charged in Riccobene. 858 F.2d at 929. However, we were not troubled by that circumstance because Congress could not possibly have intended that

a defendant should be prosecuted only once for an ongoing RICO enterprise when, after being convicted of carrying out the enterprise's activities through one pattern, he allegedly continues to carry them out through a separate pattern.

Id. at 928-29.

After carefully reviewing the indictments, we concluded that the alleged pattern of racketeering in this case differed substantially from that charged in Riccobene. 858 F.2d at 930. Accordingly, we rejected Ciancaglini's double jeopardy claim. Id.

Under our reasoning in Ciancaglini, the government's reliance on the same evidence adduced in Riccobene to establish the existence of the enterprise hardly means that this prosecution subjected Ciancaglini to double jeopardy. Furthermore, we simply do not agree that the government conceded the existence of a single conspiratorial agreement.*fn33 Thus, the developments at trial do not require us to re-examine our prior decision, as the patterns of racketeering proven in the two RICO prosecutions were distinct. Of course, as Ciancaglini asserts, if our prior decision is inconsistent with Grady v. Corbin, we could not rely on it here. But we do not think that Grady undermines Ciancaglini.

As discussed above in conjunction with Scarfo's double jeopardy claim, Grady held 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 which constitutes an offense for which the defendant already has been prosecuted." 110 S. Ct. at 2087 (emphasis added). By its own terms, Grady does not bar successive RICO prosecutions of the same defendant where the only common element of the two prosecutions is the enterprise because the enterprise, in itself, is not "conduct . . . constitut[ing] an offense for which the defendant already has been prosecuted." First, as the RICO statute requires proof of both an enterprise and a pattern of racketeering activity, United States v. Turkette, 452 U.S. 576, 583, 101 S. Ct. 2524, 2528, 69 L. Ed. 2d 246 (1981), the government's proof of the enterprise in the first RICO prosecution could not be considered proof of the conduct giving rise to the offense of which Ciancaglini previously was convicted. We do not think that under Grady, there necessarily is a double jeopardy problem whenever there is an overlap between the facts satisfying the elements of the successively charged offenses. Grady holds only that the double jeopardy clause bars a subsequent prosecution where, to prove an essential element of the offense charged in that prosecution, the government will relitigate conduct amounting to an offense subject to a previous conviction of the defendant.

Second and even more significantly, Ciancaglini is fully consistent with Grady because an "enterprise" within RICO does not include any conduct element. Although in this case, the enterprise was defined as "a group of individuals associated in fact," Jt. App. at 127A, evidence of the appellants' association was offered not to prove any illegal "conduct" but to prove the existence of the enterprise which, itself, is "an entity." 18 U.S.C. § 1961(4). See also Turkette, 452 U.S. at 583, 101 S. Ct. at 2528.*fn34 We believe that any other construction of the RICO statute would confuse the association giving rise to the enterprise with a conspiracy. It is true that where the enterprise is defined as an association for criminal purposes, proof of the enterprise implicitly may prove an unlawful agreement. However, as the Supreme Court's language in Turkette suggests, see supra at 49 n. 34, a RICO enterprise is not a conspiracy. Thus, while Grady may bar successive RICO prosecutions where the patterns of racketeering activity charged against the defendant substantially overlap,*fn35 we do not think that our prior decision conflicts with Grady, as the government's proof of the same enterprise was not proof of the same "conduct."*fn36

Moreover, even if we were to interpret Grady as implicitly overruling Ciancaglini, we would have no cause to disturb Ciancaglini's conviction because his double jeopardy challenge falls squarely within the exception recognized in Grady for offenses which had not occurred at the time of the earlier indictment. 110 S. Ct. at 2090 n. 7.*fn37 In this regard, we reiterate our observation in Ciancaglini that all of the racketeering acts charged against Ciancaglini in this RICO prosecution occurred after the indictment was filed in the Riccobene case, and many occurred after the Riccobene trial began in April of 1982. 858 F.2d at 930. Ciancaglini has argued that the district court's jury instructions in this case amounted to a "quasi- Pinkerton charge" which encouraged the jury to look beyond the alleged predicate acts and find guilt based on conduct occurring at the time of the earlier indictment. For reasons explained more fully later in this opinion, we reject this contention. See infra typescript at 133 & n. 91. To us, the fact that completely different patterns of racketeering were proven in the two cases is dispositive of the double jeopardy question raised here. Thus, we reject Ciancaglini's claim.


1. Consecutive Sentences for RICO Conspiracy and Substantive Offenses

Scarfo, Salvatore Wayne Grande, Frank Narducci, Jr. and Phillip Narducci argue that the double jeopardy clause prohibits consecutive sentencing for RICO conspiracy and substantive offenses, under 18 U.S.C. §§ 1962(c)-(d). They point out that the same evidence was used to convict them of both RICO offenses and that Count 2 of the indictment, which charged the section 1962(c) offense, incorporated by reference all of the predicate acts charged in Count 1, the section 1962(d) conspiracy offense. Accordingly, they maintain that the consecutive sentences result in multiple punishments for the same offense, in violation of the double jeopardy clause.

The permissibility of consecutive sentencing for RICO conspiracy and substantive offenses is controlled by United States v. Marrone, 746 F.2d 957 (3d Cir. 1984), which held that a RICO conspiracy does not merge with the substantive offense for purposes of sentencing. We reasoned there that sections 1962(c) and (d) define distinct offenses under the test of Blockburger v. United States, 284 U.S. at 304, 52 S. Ct. at 182, as each requires proof of a fact which the other does not. Given that the offenses are distinct and no legislative intent against consecutive sentencing is discernible from the RICO's text or legislative history, we inferred that Congress intended to authorize consecutive sentencing. Marrone, 746 F.2d at 959. Significantly, Marrone expressly rejected a double jeopardy analysis which examined whether the same evidence was used to prove the two offenses. Id. at 959. Under Marrone, the focus of a double jeopardy analysis of cumulative sentencing is on the legislative intent. Therefore, the fact that in this case, both RICO offenses were predicated upon the same pattern of racketeering is irrelevant.

Appellants urge us to reconsider Marrone, as, in their view, it is inconsistent with Jeffers v. United States, 432 U.S. 137, 156-57, 97 S. Ct. 2207, 2219-20, 53 L. Ed. 2d 168 (1977), and subsequent Supreme Court decisions. Absent in banc review, we are constrained by Marrone, as that case squarely decided that sections 1962(c) and (d) define separate offenses for sentencing purposes. However, even if we could relax our rules, we would adhere to Marrone as we believe it was correctly decided.

Jeffers held that principles of double jeopardy bar cumulative punishment for engaging in a continuous criminal enterprise in violation of 21 U.S.C. § 848 and for a conspiracy under 21 U.S.C. § 846 predicated upon the same facts. In examining the double jeopardy implications of cumulative fines imposed upon the defendant, the Supreme Court drew largely upon its prior determination that a conspiracy within section 846 is a lesser included offense of a section 848 offense. Id. at 149-50, 97 S. Ct. at 2215-16. In view of that finding, the Court found it necessary to scrutinize closely the legislative intent to ascertain whether Congress nevertheless intended cumulative punishment under the two statutes. Id. at 155, 97 S. Ct. at 2218. As Congress did not specifically authorize cumulative punishment, the Court held that it was impermissible. Id. at 156-57, 97 S. Ct. at 2219.

The result in Jeffers differed from our decision in Marrone because the Supreme Court in construing a different statute, discerned a different legislative intent. Jeffers does not support appellants' contention that the constitutionality of consecutive sentences depends upon the proof adduced at trial. In subsequent cases, the Court has not suggested otherwise. Instead, it has emphasized that the permissibility of cumulative punishment is a question of legislative intent, which may differ depending on whether the two statutes proscribe the same offense. Thus, in Whalen v. United States, 445 U.S. 684, 693, 100 S. Ct. 1432, 1438, 63 L. Ed. 2d 715 (1980), the Court stressed that "where the offenses are the same . . . cumulative sentences are not permitted, unless elsewhere specially authorized by Congress." Accord Missouri v. Hunter, 459 U.S. 359, 368, 103 S. Ct. 673, 679, 74 L. Ed. 2d 535 (1983) (the Double Jeopardy Clause does not preclude the imposition of consecutive sentences under two statutes proscribing the same offense in cases where the legislative intent to permit such sentencing is "crystal clear.") In contrast, cumulative punishment is presumptively valid if the statutes define distinct offenses. Garrett v. United States, 471 U.S. at 793, 105 S. Ct. at 2419. As stated in Garrett, "the presumption when Congress creates two distinct offenses is that it intends to permit cumulative sentences, and legislative silence on this specific issue does not establish an ambiguity or rebut this presumption." Id.

As recognized in Marrone, sections 1962(c) and (d) of the RICO statute define separate offenses under the Blockburger test. Unlike the CCE statute examined in Jeffers, section 1962(c) does not expressly require concerted activity and therefore a conspiratorial agreement is not an essential element of the offense. Section 1962(c) provides that:

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 ...

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