Saturday, March 27th, 2010

A Pattern Emerges

United States v. Basciano, NO. 09-0281-cr (2d Cir. March 23, 2010) (Walker, McLaughlin, Raggi, CJJ)

On this interlocutory appeal, the circuit found that an indictment charging Basciano, who had previously been convicted of racketeering in conducting the affairs of the Bonanno crime family, with a successive racketeering count violated the Double Jeopardy Clause, because both counts alleged the same pattern of racketeering.


1. The 2003 Indictment

Basciano and several co-defendants were originally charged in a 2003 Indictment with racketeering conspiracy and several other counts. The jury convicted Basciano of the racketeering conspiracy, but was unable to reach a verdict on some of the other counts. In preparing to retry him on the 2003 Indictment, the government superseded and added a substantive racketeering count. That count alleged that, from January 1979 through November 2004, Basciano conducted and participated in the conduct of the affairs of the Family through a pattern of racketeering activity. It described the structure and purpose of the Family and Basciano’s role – he started as an associate and rose to acting boss. The 2003 Indictment alleged six predicates – three homicide-related offenses, a marijuana distribution conspiracy, an illegal lottery, and an illegal sports betting ring.

In 2007, a jury convicted Basciano of all counts and found that all of the predicates had been proved. The judge sentenced him to life imprisonment.

2. The 2005 Indictment

In the meantime, after Basciano’s 2004 arrest, another Family member told the government that Basciano was continuing his criminal activity from prison. He had ordered the murder of one person, and was actively soliciting the murder of an AUSA. While Basciano was awaiting retrial on the 2003 Indictment, the government filed the 2005 Indictment, which it then superseded several times. In the version at issue here, it charged Basciano with substantive racketeering on behalf of the Bonanno Family between February 1997 and June 2005. It described the Family as a racketeering enterprise and repeated the 2003 Indictment’s allegations about Basciano’s role, although it gave more detail.

The pattern it alleged included eleven racketeering acts, although Basciano was named in only five of them. The 2005 Indictment also alleged, inter alia, two counts of conspiracy to murder in aid of racketeering (the “Murder Counts”).

3. The Motion to Dismiss

Basciano moved to dismiss the substantive racketeering count and the Murder Counts of the 2005 Indictment on double jeopardy grounds. The district court denied the motion.

The Appeal

On appeal, Basciano partially succeeded. The court found that the substantive racketeering count of the 2005 Indictment violated the Double Jeopardy Clause, but that the Murder Counts did not.

1. The Legal Standard

The Double Jeopardy Clause protects against successive prosecutions for offenses that are “the same in fact and in law.” Basciano’s first claim was that the Murder Counts violated double jeopardy with respect to the 2003 Indictment’s racketeering conspiracy count. As to this claim, since the statutes were different, the question turned on whether the crimes were “the same in the legal sense, as defined by Congress” under the “same-elements test” of Blockburger/Dixon. For the substantive racketeering claim, since the 2003 Indictment and the 2005 Indictment alleged violations of the same statute, the issue turned on whether the crimes “are the same in fact,” that is, whether a “reasonable person familiar with the totality of the facts and circumstances would construe the substantive racketeering” pled in the 2003 Indictment “to include the substantive racketeering” pled in the 2005 Indictment.

2. No Double Jeopardy Violation For The Murder Counts

The court rejected Basciano’s argument that the Murder Counts were barred because those crimes were “legally subsumed” in the 2003 Indictment’s racketeering conspiracy, which charged him with conspiring to conduct the affairs of the Bonanno Family through a pattern of racketeering that included murders.

Basciano argued that the court should apply a“same-conduct” test, and not the traditional Blockburger/Dixon same-elements test. He noted that, in one post-Dixon case, the circuit had left open the possibility in dicta that in situations “where one of the statutes covers a broad range of conduct,” examination of “the allegations of the indictment rather than only the terms of the statutes” would be appropriate to a double jeopardy assessment. Here, the court declined this invitation, noting that it has consistently construed Dixon to preclude fact-based assessments of double jeopardy claims based on successive prosecutions under different statutes.

Here, under Blockburger/Dixon, the result was easy. The racketeering conspiracy statute charged in the 2003 Indictment has different elements from the murder-in-aid-of-racketeering statutes charged in the Murder Counts. They were thus “legally distinct offenses no implicating double jeopardy concerns.”

3. Double Jeopardy Barred The Substantive Racketeering Count of the 2005 Indictment

Finding that the substantive racketeering count in the 2005 Indictment charged Basciano with conducting the affairs of the same enterprise through the same pattern of racketeering as the substantive racketeering count in the 2003 Indictment, the court reversed and remanded for dismissal of that count.

For successive substantive racketeering prosecutions to place a defendant twice in jeopardy for the same offense, both the enterprise and the pattern of racketeering activity must be the same. Here, the government conceded that the enterprise in the 2003 Indictment was the same as that in the 2005 Indictment – the Bonanno Family. The circuit concluded, however, that the patterns were also the same.

The court first noted that Basciano had made a strong preliminary showing that the two Indictments alleged the same pattern. They used “identical language to describe” the Family’s criminal methods and the means by which its affairs were conducted. Moreover, the Indictments relied on common predicates and the government had proved some of the predicates alleged in the 2005 Indictment to “complete the story” of the racketeering charge at the trial on the 2003 Indictment. The circuit noted that the “story” being “completed” was that of the broad pattern of racketeering engaged in by the Bonanno Family.

Thus, the government failed to establish that the pattern in the 2003 Indictment was different from that alleged in the 2005 Indictment. The court rejected the government’s claim that the pattern in the 2005 Indictment was narrower than, and distinct from, that in the 2003 Indictment, because the later pattern was defined by a limited time and purpose – defending the family after it was threatened by a series of 2004 arrests, including Basciano’s own.

Here, the pattern alleged in the 2003 Indictment was described at the “highest level of generality” – the predicates were alleged simply to be related to the activities of the Bonanno Family. Although it would have been possible to plead a narrower pattern by defining it with other unifying principles, such as time or purpose, the government did not do so.

When the government first prosecutes a defendant for conducting the affairs of an enterprise through the broadest possible pattern of racketeering, which gives the government the greatest latitude to rely on a wide rage of crimes to make it case, the government’s choice has consequences. Such a pattern provides the “broadest shield against a successive racketeering prosecution based on other criminal activities fitting within that pattern.”

Given this, the court did not agree that the language of the 2005 Indictment alleged a distinct, narrow pattern. First, that count alleged a pattern of activity from February 1997 to June 2005; it hardly supported “a preponderance finding that the charged pattern is defined by the limited goal of defending the Family … in the wake of [Basciano’s] arrest,” which occurred in 2004. Similarly, while the 2005 Indictment alleged that Basciano continued to participate in the Family’s affairs after his arrest, it “nowhere asserts that the pattern through which he conducted the Family’s affairs after his arrest is distinct from, as opposed to a mere continuation of, the pattern through which he conducted the Family’s affairs before his arrest.” While it might have been possible to plead a distinct pattern of conduct based on Basciano’s post-arrest activity, the 2005 Indictment “as it stands does not support a conclusion that the alleged pattern more likely than not is distinct from that charged” in the 2003 Indictment.

To get around this problem, the government argued that the pattern alleged as to Basciano in the 2005 Indictment should be defined only by the predicate acts ascribed to him, since he was not placed “in jeopardy” by the predicates attributed to others, an argument that the Court dismissed as an effort to “rewrite the indictment.” First, a racketeering indictment does not put a defendant in jeopardy for any predicate acts; it puts him in jeopardy only for conducting an enterprise though a pattern of activity that is defined by its related predicates. Thus, the pattern charged against Basciano cannot be limited to the predicates attributed to him on the theory that he is not being put in jeopardy for acts attributed to others. Moreover, in a single-count racketeering case, a court cannot identify the charged pattern by reference only to those predicates attributed to a particular defendant. This would risk the identification of multiple racketeering patterns rather than the single, common pattern alleged by the grand jury. Only the grand jury can decide whether an individual defendant should be charged with a pattern different from his co-defendants. Finally, the government’s argument ignores those cases holding that evidence beyond a defendant’s own predicate acts is relevant to establishing the charged pattern of racketeering.

Having found that Basciano satisfied his initial burden, the court turned to the multi-factor Russotti test for determining whether, under the totality of the circumstances, the “reasonable person” test was met. This test considers: (1) the time of the various activities charged as parts of separate patterns; (2) the identity of the persons involved in the activities under each charge; (3) the statutory offenses charged as racketeering activities in each charge; (4) the nature and scope of the activity the government seeks to punish under each charge; and (5) the places where the corrupt activity took place under each charge.

Here, (1) as to timing, there was a partial overlap of nearly eight years. Although this “did not necessarily signal identical patterns,” the court noted that all of the predicates charged in the 2003 Indictment occurred during the time period of the 2005 Indictment. Thus the timing of the predicates did not “permit a preponderance finding” that the 2005 Indictment pattern was narrower than and distinct from that in the 2003 Indictment. (2) In terms of participants, the 2003 Indictment named Basciano and “unnamed others,” while the 2005 Indictment charged Basciano and two named co-defendants. But, warning against exalting form over substance, the court noted that in viewing the two counts together, “a number of overlapping participants” could be discerned. (3) The similarity of the statutory offenses charged in the two Indictments supported the same conclusion. “Where racketeering activity consists of similar offenses, distinct patterns are not foreclosed, but their likelihood diminishes.” (4) The court’s discussion of the “nature and scope” prong was its most detailed. It first found similar motives in the two patterns. Both the 2005 Indictment and the 2003 Indictment included murders committed with the specific objective of exerting and preserving Bonanno authority whenever its leadership fell vulnerable to law enforcement. The court thus concluded that the totality of the predicates established that the two patterns were not distinct. Finally, (5) as to location, there was no real dispute that both Indictment alleged activities that took place in the metropolitan area.

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