APPEAL: THE UNITED STATES DISTRICT COURT
January 14, 2002
Vincent Marino argues that the general prohibition against multiple punishments for the same acts bars the multiple punishments in his case. Specifically,he claims that he cannot be punished separately (as he was) for the substantive RICO violation and for RICO conspiracy.
In addition, he argues that the VICAR violation (Count Three) is a lesser included offense of the substantive RICO violation because the
same offense is used as one of the RICO predicate acts. The Double Jeopardy Clause prohibits successive prosecutions or punishments for the same offense.
United States v.Ursery,518 U.S.267,273 (1996).
The test to determine whether two offenses are considered the same offense for double jeopardy is set forth in Blockburger v.United States,284 U.S. 299 (1932):Two offenses are separate offenses if each contains an element not contained in the other. Because a RICO conspiracy contains a different element than a substantive RICO violation, namely an agreement with others to commita substantive RICO violation,a substantive RICO violation and a RICO conspiracy are not the same offense for double jeopardy purposes.The Supreme Court has long recognized that “in most cases separate sentences can be imposed for the conspiracy to do an act and for the subsequent accomplishment of that end.”
Iannelliv.UnitedStates,420 U.S. 770, 777-78 (1975).
The only exception is Wharton’s Rule, which applies only “when the substantive offense is of a sort that necessarily requires the active, or culpable, participation of the -53-same . . . people for its successful completion,” such as in the case
United Statesv.Previte,648 F.2d 73, 76 (1st Cir.
A RICO conspiracy and a RICO violation do not
necessarily require the participation of the same people. Instead, the agreement
to violate RICO by conspiring to commit racketeering acts could be made
by a different group of people than the ones who actually end up
committing the substantive violation.
We join the circuits that have held that a substantive RICO
violation and a RICO conspiracy are not the same offense for double
jeopardy purposes, and accordingly, can be punished separately.
See,e.g.,United States v.Sessa,125 F.3d 68, 71 (2d Cir. 1997);
United States v.Rone, 598 F.2d 564, 569-71 (9th Cir. 1979).
Marino’s argument that the VICAR violation (conspiracy to
murder thirteen individuals) is a lesser included offense of the
substantive RICO violation is similarly flawed. Many courts, including
this one, have considered the issue of whether the double jeopardy
clause prohibits separate punishments for a substantive RICO violation
as well as its predicate acts. These courts have reached the
conclusion that it does not.