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UNITED STATES v. SCARFO

July 9, 1997

UNITED STATES OF AMERICA
v.
NICODEMO SCARFO



The opinion of the court was delivered by: VAN ANTWERPEN

 Van Antwerpen, J.

 July 9, 1997

 I. INTRODUCTION

 On November 19, 1988 Nicodemo Scarfo, the former boss of the Philadelphia La Cosa Nostra Family, was convicted by a jury in a major mafia trial of RICO and RICO Conspiracy, Illegal Gambling Business, and two counts of Unlawful Distribution of Methamphetamine, 18 U.S.C. §§ 1962(c) and (d), 1963, 1955, and 841. The jury specifically found him guilty of thirty-two RICO predicate acts including eight murders, four attempted murders, two distributions of methamphetamine, one extortionate collection of credit, fourteen extortions, one Hobbs Act extortion and one illegal sports bookmaking operation. Post verdict motions were denied, United States v. Scarfo, 711 F. Supp. 1315 (E.D. Pa. 1989), and Mr. Scarfo was sentenced to a fifty-five year term of imprisonment on May 11, 1989. This sentence was imposed consecutive to a fourteen year federal sentence previously imposed by Chief Judge John P. Fullam, and consecutive to a life sentence later imposed in state court for murder. Mr. Scarfo appealed his conviction, United States v. Pungitore, 910 F.2d 1084 (3d Cir. 1990); it was affirmed and his petition for certiorari was denied. 500 U.S. 915 (1991).

 On April 22, 1997, two days before the new statute of limitations period expired pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, Mr. Scarfo filed the instant petition for relief under 28 U.S.C. § 2255. He makes three claims: (1) that the consecutive sentences that he received for RICO and RICO Conspiracy violated the double jeopardy prohibition within the Fifth Amendment; (2) that his sentence was based upon his conviction in an earlier state case in which he was later given a new trial and acquitted; and (3) that his trial counsel, Mr. Robert Simone, provided him with ineffective assistance of counsel because he was burdened by conflicts of interest that were either unwaivable, or insufficiently waived. We disagree. As the facts of this case have been much discussed by this court previously, see Scarfo, 711 F. Supp. 1315, we will not repeat ourselves.

 II. DISCUSSION

 A. Double Jeopardy

 Mr. Scarfo's first complaint stems from the recent Supreme Court decision of Rutledge v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996). He argues that because the Supreme Court held in that case that conspiracy to distribute controlled substances (21 U.S.C. § 846) is a lesser included offense of the continuing criminal enterprise offense ("CCE") (21 U.S.C. § 848) and therefore convictions of both cannot amount to consecutive sentences, we should reconsider the Court of Appeals' decision in Pungitore, 910 F.2d at 1115-17. Petition, at 4. We disagree.

 The question of whether the double jeopardy clause of the Fifth Amendment prohibits consecutive sentencing for RICO conspiracy and substantive offenses (18 U.S.C. §§ 1962(c) & (d)) has already been litigated and decided on Mr. Scarfo's direct appeal. "Once a legal argument has been litigated and decided adversely to a criminal defendant at his trial and on direct appeal, it is within the discretion of the district court to decline to reconsider those arguments if raised again in collateral proceedings under 28 U.S.C. § 2255." United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981) (citing Kaufman v. United States, 394 U.S. 217, 227 n.8, 22 L. Ed. 2d 227, 89 S. Ct. 1068 (1969)); see also Reed v. Farley, 512 U.S. 339, 358, 129 L. Ed. 2d 277, 114 S. Ct. 2291 (1994)(J. Scalia, concurring; "claims will ordinarily not be entertained under § 2255 that have already been rejected on direct review."). There is a great interest in the finality of litigation; matters fully addressed and decided on direct appeal should not be reexamined lightly.

 We find, however, that even if we were to reconsider pursuant to Rutledge, there is nothing in that opinion which would give us pause. Contrary to Mr. Scarfo's interpretation, the Supreme Court case is quite frankly in line with the Third Circuit's assessment of § 846 and § 848. The Rutledge court followed the logic in Jeffers, and, using the "same offense" test, held that consecutive sentences could not be imposed for CCE and CCE conspiracy because they are the same offense. The Court made no comparison or connection between the CCE and RICO statutes. In fact, it noted that its holding was not contrary to the holding in Garrett v. United States, 471 U.S. 773, 794-95, 85 L. Ed. 2d 764, 105 S. Ct. 2407 (1985) that conspiracy and the substantive crime that is the object of the conspiracy are distinct offenses. Rutledge, 116 S. Ct. at 1247. As such, nothing in Rutledge undermines the ruling in Pungitore that RICO and RICO conspiracy are separate offenses because of the different elements of proof required; indeed, the rationale and holding of the cases are materially identical. We therefore decline to reevaluate the measured opinion of the Court of Appeals.

 B. Sentencing

 Mr. Scarfo next argues that he is entitled to a resentencing because "he was sentenced based on the belief that he was guilty of the first degree murder of Frankie Flowers [D'Alfonso]." Petition at 4. Mr. Scarfo apparently believes that because his federal sentence was given consecutive to his state sentence in the D'Alfonso case, we were influenced in sentencing by that state conviction. Now that Mr. Scarfo has been given a new trial and has been acquitted in the D'Alfonso case, he argues, we must resentence him without reference to the state matter. We do not agree.

 Mr. Scarfo was sentenced on May 11, 1989. At that time, we heard both Mr. Simone and the Government on the issue of sentencing. We imposed our sentence by saying the following:

 
THE COURT: ... Very well. We're prepared to impose sentence. The defendant will rise. Defendant -- I'll say one further thing, Mr. Simone, I heard what you said about the system, and its inability, often, to reform people, and I think that's true. Sentencing is often difficult. Prison wastes lives, but in this case, I feel that I have no choice. This is a City of Brotherly Love, it's not a City of Murder. And, Congress has set maximum penalties, and if they don't fit this case, I don't know when they would ever apply.
 
Accordingly, the sentence of the Court is, that the defendant is hereby committed to the custody of the Attorney General of the United States of America, or his authorized representative, for imprisonment for a total term of 55 years. This sentence is composed of a sentence of 20 years on Count One, followed by a sentence of 20 years on Count Two, followed by a sentence of five years on Count Four, followed by a sentence of five years on Count Six, followed by a sentence of five years on Count Seven. They are all consecutive. And, of course, as I've indicated, I am referring to counts on the redacted indictment. On the superseding indictment, Count Six would be Count Ten, and Count Seven would be Count Eleven.
 
Upon any release, I also impose a lifetime special parole term under Counts Six and Seven. I also impose a committed fine of $ 500,000, and find, that based upon the trial testimony, the defendant has the ability to pay the same. The fine is allocated one-half to Count One, and one-half to Count Four. The Court recommends an institutional security level of six and imposes a special assessment of $ 250. The sentence is imposed today. It shall be consecutive with, and shall follow the defendant's previous Federal sentence from Judge Fullam, and shall also be consecutive with the State [D'Alfonso] sentence imposed by Judge Clarke. ...

 Transcript, 5/11/89 at 16-17.

 It is clear that the only manner in which the D'Alfonso case impacted our sentence is that we imposed our sentence consecutive and not concurrent with the state sentence yet to be imposed. The sentence itself was not impacted by the fact of this prior state conviction. Cf. United States v. Lyons, 227 U.S. App. D.C. 284, 706 F.2d 321, 335 n. 25 (D.C.Cir. 1983) (resentencing only necessary where it cannot be ascertained whether the district court's sentence was influenced by a conviction that was later overturned). Mr. Scarfo was convicted of RICO, and RICO conspiracy with 32 underlying Racketeering Acts, including eight murders and four attempted murders. The enormity of his crimes was staggering. This alone justifies the maximum penalty as set out by Congress, without any reference to or reliance on the state conviction. Ergo, the fact ...


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