ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (D.C. Criminal No. 89-00036-01)
Before: Becker, Nygaard and Roth, Circuit Judges
Walter Esposito appeals his conviction of narcotics offenses under 21 USC § 841(a)(1). The sole issue on appeal is: Because the government listed certain substantive drug offenses as predicate acts in Esposito's earlier RICO trial in which a jury acquitted him, does the second indictment for offenses based on the same drug transactions that supported the RICO predicate acts constitute a vindictive prosecution which deprives Esposito of his due process fights under the Fifth Amendment? The district court held that it did not. We will affirm.
In 1985, Esposito and numerous other codefendants were indicted for racketeering and various related offenses, including loansharking, illegal gambling, credit card fraud and drug dealing. Esposito was charged with four counts in the indictment. Count One charged him with a conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 USC § 1962(d). Count Two charged him with participating in a racketeering enterprise, 18 USC § 1962(c). The indictment listed as predicate acts: participating in a drug distribution conspiracy from 1977 to July 1985; cocaine distribution in November 1984; cocaine distribution in December 1984; and cocaine distribution in January 1985. Count Three charged him with conspiracy to distribute and possess with intent to distribute illegal drugs, 18 USC § 846. Count Four charged him with distribution of cocaine in November 1984, 21 USC § 841(a)(1) and 18 USC § 2.
Esposito and his codefendants pleaded not guilty. In August 1988, all defendants, including Esposito, were acquitted by a jury in United States v Accetturo, Cr No 85-292, DNJ. But because the jury found Esposito not guilty of the overall RICO charge, the jury did not answer any special interrogatories as to whether he had committed the specific predicate acts charged against him.
In February 1989, a federal grand jury returned an indictment against Esposito in three counts of knowingly and intentionally distributing cocaine in violation of 21 USC § 841(a)(1) on three separate dates: on or about December 5, 1984; on or about December 20, 1984; and on or about January 9, 1985. The government concedes that these counts were based on the same transactions that supported the predicate acts under Count Two of the earlier Accetturo indictment.
Esposito was arraigned and entered a plea of not guilty. He then filed a motion to dismiss this second indictment, alleging that the indictment violated his fight to be free from double jeopardy under the Fifth Amendment and that the second indictment constituted a vindictive prosecution in violation of due process. The district court denied the motion, United States v Esposito, 726 FSupp 991 (DNJ 1989), and Esposito appealed. We affirmed the district court's denial of the motion, holding that substantive narcotics offenses listed as predicate acts of the RICO charge in which Esposito was acquitted were not the same offense as the RICO charge for the purpose of double jeopardy. United States v Esposito, 912 F.2d 60, 67 (3d Cir 1990) (Esposito I). Because the district court's decision concerning the vindictive prosecution issue was not a final order, we left open the question "whether this scenario may present a situation of prosecutorial vindictiveness or overreaching so severe that it violates the Due Process Clause." Id at 67.
Esposito appeared before the district court to waive his right to a jury trial. Furthermore, he stipulated to the facts underlying the charges of the indictment, permitting the district court to base its verdict upon those facts. Esposito decided to forego a jury trial because in view of the overwhelming evidence he "believe[d] a jury would, in fact, very quickly find [him] guilty of these charge." The district court found Esposito guilty of the charged drug offenses. Esposito appeals, contending that the second indictment constituted a vindictive prosecution by the government and thus violated his due process rights under the Fifth Amendment.
The issue of whether a prosecutor's decision to indict is vindictive, if it is based on charges that formed the operative facts from a case in which the defendant was acquitted, is new before this court.*fn1 We review the district court's finding of facts for clear error and exercise plenary review over its application of legal precepts. United States v Schoolcraft, 879 F.2d 64, 67 (3d Cir 1989).
Esposito contends that the circumstances here give rise to an inference and a presumption of vindictive prosecution. Specifically, he suggests that "where new charges arise out of the same factual setting as [a prior] prosecution, a presumption ...