Memorandum

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BOSTON

Criminal Action#CR-97-40009-NMG.

DOCUMENT #1367, 8-27-2010.
Petitioner.

United States of America

Honorable: Nathaniel M. Gorton, U.S. District Judge.

v.

Vincent Michael Marino 

MEMORANDUM OF LAW IN SUPPORT

In order for the government to convict Marino of Count One (RICO) and Count Two RICO conspiracy, the jury must mark PROVEN on two or more predicate racketeering acts to convict.

See Statutes 18 U.S.C. Section 1962(c) RICO and 18 U.S.C. Section 1962(d) RICO conspiracy. Also see United States v. Hoyle, 122 F.3d 48 (D.C.Cir.1997); Elements under RICO and RICO conspiracy are:

1. Existence of enterprise which affects interstate or foreign commerce;

2. That defendant (Marino) “associated with” enterprise;

3. That defendant (Marino) participated in conduct of enterprise’s affairs; and that participation was through pattern of racketeering activity, i.e., BY COMMITTING AT LEAST TWO OR MORE PREDICATE RACKETEERING ACTS MUST BE FOUND BY A JURY.

Retrial Following Dismissal of Count 30/Act-B Cocaine conspiracy by the Government DOCUMENT #581, when the jury is empanelled, during trial and reintroduction of predicate racketeering Act-B cocaine conspiracy violates the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution

Once jeopardy attaches, the Double Jeopardy clause prohibits retrial after any dismissal that is sought by the prosecution. (AUSA’s: Auerhahn and Young), United States v. Scott, 473 U.S. 82, 86, 97-100 (1978); United States v. Rivera, 872 F.2d 507, 509 (1st Cir.1989)

(Double Jeopardy Barred Retrial of Count Dropped By The Government see DOCUMENT #581 and DOCUMENT Date October 22, 1998, in United States v. Marino, CR-97-40009-NMG. (D.Mass/Worcester))

This remains true even if the government’s (AUSA’S: Auerhahn and Young’s) dismissal is based on an “egregiously erroneous foundation.” Fong Foo, 369 U.S. at 143, (retrial barred when judge erroneously directed verdict of acquittal. One example of dismissal that operates as an acquittal is a judicial announcement made before jury has entered its verdict that the evidence presented is legally insufficient to convict the defendant. See Smalis, 476 U.S. at 144, (retrial barred when at close of government’s case in chief, trial judge dismissed certain charges against defendant legally insufficient to support conviction). When a trial court does not expressly acquit a defendant trial may still be prohibited if the court’s action represents a resolution in defendant’s favor of or all of the factual elements of the offense charged.” Martin Linen Supply Co., 430 U.S. at 571.

DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT BARS, MULTIPLE PROSECUTIONS FOR SINGLE OR RELATED ACTS COUNT 30 and PREDICATE RACKETEERING ACT-B

The Double Jeopardy Clause of the 5th Amendment of the U.S. Constitution also bars subsequent prosecutions for single act. See Blockburger v. United States, 284 U.S. 299, 304 (1932), same transaction, as a consequence of Blockburger, Doouble Jeopardy also bars successive prosecutions for greater and lesser included offenses. Predicate racketeering Act-B cocaine conspiracy and Count 30 cocaine conspiracy, SAME names in indictment, SAME dates of the conspiracy, SAME, Statutes, SAME wording in indictment, SAME conspiracy, SAME course of conduct. Rutledge v. United States, 517 U.S. 292 (1996), lesser included offense is one that does not require proof of elements beyond those required by the greater offense.

Brown, 432 U.S. at 167-68, once the defendant (Marino) makes a prima face, non- frivolous showing of double jeopardy, see supra see e.g., United States v. Stroller, 78 F.3d 710, 721 n.11 (1st Cir.1996) (defendant bears burden of presenting evidence of non-frivolous claim that 2 charges (Act-B & Count 30) contain identical elements, SAME dates of conspiracy, SAME named co conspirators, SAME wording in indictment, SAME Statutes 21 U.S.C. Section 841(a)(1) and 846. The government must prove that the offenses charged (Act-B/Count 30), is NOT the same for which defendant (Marino) was formally placed in jeopardy.

AT SENTENCING THE DOUBLE JEOPARDY CLAUSE PROHIBITS COURTS FROM PUNISHING DEFENDANTS (MARINO) TWICE FOR SAME OFFENSES

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