United States v. Ronald J. Trucchio , 196 F. App'x 825 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13242 September 14, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00348-CR-T-24-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD J. TRUCCHIO,
a.k.a. Ronnie One Arm,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Florida
(September 14, 2006)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Ronald J. Trucchio (“Trucchio”) appeals the district court’s order denying
his motion to dismiss on double jeopardy grounds. For the reasons that follow, we
affirm.
I. BACKGROUND
A grand jury indicted Trucchio for one count of conspiracy to violate the
Racketeer Influenced and Corrupt Organizations (“RICO”) laws, in violation of 18
U.S.C. § 1962(d). Specifically, the grand jury charged that Trucchio was a “capo”
or “captain” in the Gambino crime family who supervised and controlled Mafia
“crews” operating in New York, New Jersey, the Southern District of Florida, the
Middle District of Florida, and elsewhere, in return for “tribute,” or a share of the
crews’s proceeds. According to the indictment, members of the crew included
John Alite, Steven Catalano, Michael Malone, Kevin McMahon, Terry Scaglione,
Pasquale Andriano, and others (collectively, “the Alite crew”). The grand jury
further charged that the statutory enterprise, an association in fact, was the Alite
crew, operating under the authority of the Gambino crime family, and that,
between 1984 and 2005, Trucchio and the Alite crew conspired with each other to
violate § 1962(c). The pattern of racketeering activity was premised upon 11
violations of federal and state laws, including murder, extortion, and drug
trafficking.
2
Prior to the instant case, a Southern District of Florida grand jury convicted
Trucchio for RICO conspiracy. There, the grand jury charged that Trucchio was a
capo in the Gambino crime family who supervised and controlled Mafia crews
operating in New York, Florida, and elsewhere. According to the indictment, the
crew in question referred to themselves as the “Liberty Posse” and the “Young
Guns,” and included Peter Zuccaro, Kevin Antinuche, Gennaro Bruno, Edward
Callegari, Robert Bucholz, Darrin Sirrota, Frank Roccaforte, David Prevete, and
Jamie Carr, and others (collectively, the “Liberty Posse crew”). The grand jury
further charged that the statutory enterprise, an association in fact, was the
Gambino crime family and that, between 1986 and 2004, Trucchio and the Liberty
Posse conspired to violate § 1962(c). That pattern of racketeering activity was
premised upon 17 violations of federal and state laws, including murder, extortion,
and drug trafficking.
II. DISCUSSION
On appeal, Trucchio argues that because he may be convicted of the instant
charges based upon the same facts for which he was tried and convicted in the
Southern District case, the district court should have granted his motion to
dismiss. He asserts that the conspiracy charged in the instant case is identical to
the conspiracy charged in the Southern District case because (1) the time periods
3
overlap, (2) there is overlap in the persons charged with the conspiracy, and (3) all
of the criminal offenses charged in the instant case, except violations of New
Jersey law, were charged in the earlier case. Next, Trucchio asserts that neither of
the indictments identify an enterprise other than the Gambino crime family and
that, essentially, the government created artificial divisions within that enterprise
for the purposes of the prosecutions. Finally, he argues that the government’s
Rule 404(b) letter in the Southern District case stated that all the evidence
presented at trial was relevant and material to that case, and, thus, because the
government failed to give him notice of the uncharged crimes of the Alite crew, all
of the evidence was direct evidence of the charged conspiracy.
This court reviews de novo a district court’s ruling on double jeopardy.
United States v. Baptista-Rodriguez, 17 F.3d 1354, 1360 (11th Cir. 1994). We
have jurisdiction to review interlocutory orders regarding application of the
Double Jeopardy Clause. United States v. Duarte-Acero, 208 F.3d 1282, 1284
(11th Cir. 2000).
The Double Jeopardy Clause provides that no person shall “be subject for
the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend.
V. The Double Jeopardy Clause protects defendants in three situations: (1) A
second prosecution for the same offense after acquittal; (2) A second prosecution
4
for the same offense after conviction; and (3) Multiple punishments for the same
offense. Jones v. Thomas, 491 U.S. 376, 380-81, 109 S. Ct. 2522, 2525 (1989).
Generally, when presented with a double jeopardy claim to charges involving
distinct statutory provisions, the courts must determine “whether each provision
requires proof of an additional fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932). We have noted,
however, that the Blockburger test is insufficient to analyze a double jeopardy
challenge to successive conspiracy charges, because the government “could divide
a single conspiracy into two separate charges by alleging different overt acts for
the two conspiracies when in fact only one conspiracy existed.” United States v.
Loyd, 743 F.2d 1555, 1562 (11th Cir. 1984). We also have observed that “the
peculiar nature of the RICO statute” further complicates the analysis. United
States v. Ruggiero, 754 F.2d 927, 931 (11th Cir. 1985).
Section 1962(c) of the RICO statute provides:
It shall be unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect, interstate
or foreign commerce, to conduct or participate, directly or indirectly,
in the conduct of such enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful debt.
18 U.S.C. § 1962(c). In Ruggiero, we held that “pattern of racketeering activity”
is a separate element of the RICO offense, and, thus, a defendant may be
5
prosecuted for more than one violation of § 1962(c) in connection with the same
enterprise, without violating the Double Jeopardy Clause, so long as each
violation involved a different pattern of racketeering activity. Ruggiero, 754 F.2d
at 931. We enumerated five factors to be considered in determining whether a
defendant has been charged with different patterns of racketeering activity: (1)
whether the activities occurred during the same time periods; (2) whether the
activities occurred in the same places; (3) whether the activities involved the same
persons; (4) whether the two indictments alleged violations of the same criminal
statutes; and (5) whether the overall nature and scope of the activities set out in the
two indictments were the same. Id. at 932. The fifth factor is the most important
factor. Id. at 933. We also noted that the presence of one particular “racketeering
act” in both indictments was “not significant,” as one racketeering act may be part
of two different patterns of racketeering activity. Id. at 934.
Because the two indictments charged different patterns of racketeering
activity, specifically the activities of two different Mafia “crews” under Trucchio’s
control, each of which engaged in similar but distinct activities, we conclude that
the district court did not err in denying Trucchio’s motion. Accordingly, we
affirm the district court’s order denying Trucchio’s motion to dismiss.
AFFIRMED.
6