The jury marked PROVEN only on one other predicate racketeering act A-1 Conspiracy to Murder in Count One RICO & Count Two RICO conspiracy. See December 22, 1999 VERDICT SHEET via: United States v. Marino, CR-97-40009-NMG. (District of Massachusetts/Worcester) in support.
With the preclusion of predicate racketeering Act-B cocaine conspiracy which is also Count 30 cocaine conspiracy from Count One RICO & Count Two RICO conspiracy BECAUSE of the government’s motion to dismiss Count 30 cocaine conspiracy on September 28 or 29, 1998 DOCUMENT 581 & the Court Allowed that motion on October 22, 1998 see DOCUMENT DATE: October 22, 1998 in support DURING TRIAL WHILE THE JURY WAS EMPANELLED & the reintroduction of predicate racketeering Act-B cocaine conspiracy back on the December 22, 1999 VERDICT SHEET violates the 5th Amendment’s Double Jeopardy Clause & Due Process.
The Fifth Amendment states “that no person (Marino) shall be subject for the same offense to be twice put in jeopardy of life or limb. United States Constitution Amendment Four.
This Double Jeopardy protects against both multiple punishments and successive prosecutions for the same offense, regardless of whether a first prosecution resulted in conviction or acquittal.
In the case of successive prosecutions, the critical inquiry is whether the offenses are “the same in fact and in law.”
A multi-factor test used for determining whether successive racketeering charges in fact present distinct patterns of racketeering activity for purposes of double jeopardy. Under this test, a Court properly considers:
1. The time of the various activities charges as part of separate patterns; (Same dates as in Marino Count 30 cocaine conspiracy & predicate racketeering Act-B cocaine conspiracy);
2. The identity of the persons involved in the activities under each charge; (Same identities charged in Count 30 cocaine conspiracy & predicate racketeering Act-B cocaine conspiracy in Marino );
3. The statutory offenses charges as racketeering activities in each charge; (both Count 30 cocaine conspiracy and predicate racketeering Act-B cocaine conspiracy charges Statutory violations of Title 21 U.S.C. Sections 841(a)(1) and 846 in Marino);
4. The nature and scope of the activity the government seeks to punish under each charge; (Same conspiracy & Same elements charges in Count 30 cocaine conspiracy & predicate racketeering Act-B cocaine conspiracy & wording in the indictment United States v. Marino, CR-97-40009-NMG. (D.Mass). The government/defendants/U.S. Dep’t of Justice’s stipulates in EXHIBIT: on October 15, 2009 via: United States v. Marino, U.S. Court of Appeals for the First Circuit #09-1854 (1st Cir.2009) see government’s response pages 1-3, 14, in support.
5. The places where the corrupt activity took place under each charge (Count 30 cocaine conspiracy & predicate racketeering Act-B cocaine conspiracy in Marino depict the very same places the corrupt activities took place).
These factors are sufficiently comprehensive to warrant review of the totality of the circumstances, which comports with the overall approach to double jeopardy review.
Double Jeopardy precludes successive prosecutions for conducting the affairs of the same Enterprise through the same pattern of racketeering.
For successive substantive racketeering prosecutions to place a defendant twice in jeopardy for the same offense, both the enterprise and the pattern of the racketeering activity are issue in the two cases must be the same (as seen in Marino) “[i]f either is different, there is no infirmity under the double jeopardy clause of the 5th Amendment.” United States v. Russotti, 717 F.2d at 33, (emphasis in original).
The patterns alleged by the defendants/government/U.S. Dep’t of Justice components in Count 30 cocaine conspiracy and predicate racketeering Act-B cocaine conspiracy are factually the same. Plaintiff Marino is “actually innocent of engaging in pattern of racketeering activity.”
What that means, is just did the Plaintiff Marino commit two of more racketeering acts related to the enterprise described in United States v. Marino, CR-97-40009-NMG. (D.Mass).
But pattern is an essential element of racketeering. Once a grand jury has charges a pattern of racketeering common to a number of defendants, only the grand jury, NOT THE COURT, NOT the government, NOT the defendants/U.S. Dep’t of Justice, may decide whether an individual (Marino) should be charges with a different pattern after co-defendants have pleaded guilty. See generally United States v. Stirone, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).