United States v. Eugene Difrancesco, United States of America v. Eugene Difrancesco

Here, proper for- satisfactorily. to answer America, entirely lacking.

mality is UNITED STATES Plaintiff-Appellee, of the October official minutes call” “special that a meeting suggest 30th DiFRANCESCO, Eugene Trading Wiscope Ltd. only was issued Defendant-Appellant. subsequently declined The Commission minutes however. finding its on these base America, UNITED STATES finding base its It also declined to Plaintiff-Appellant, Instead, author. testimony of the minutes’ finding its on an based Commission DiFRANCESCO, Eugene transcript on the edited inference based Defendant-Appellee. meeting. judg But in 30th our October 78-1250, Nos. 908 and Dockets ment, should not have been “official notice” 78-1369 and 78-1371. transcript. clearly It is not a taken of that might judicially “material fact Appeals, Court noticed a district court Second Circuit. 10.67(b)(i). Fed. C.F.R. See States.” Argued April 201(b). Nor do we think it fair to R.Evid. Aug. Decided transcript public “matter in the term the records of the Commission.” 17 official 10.67(b)(ii). The effect of the

C.F.R. § maneuvering in this case is

Commission’s item that was otherwise not an

that an solely public

“official record” was made so “officially

in order Commission by the explained

notice” it. As Commission

itself, “the first made the tran Commission

script public and then took official notice Thus,

it. at the time the Commission took transcript,

official notice of the it was a 10.67(b).”

public purposes of rule record

Brief at unac 58. This we find not

ceptable beyond anticipa but also well

tion and intention of those who authored

the rule. reasons,

For grant petition these we

and set the order aside.

771 Boreanaz, Buffalo, (Bo-

Harold J. N.Y. reanaz, Baker, Buffalo, NeMoyer N.Y.), & defendant-appellant, defendant-appellee DiFrancesco. Stone, Dept, Justice, Atty.,

Victor D. (Richard Arcara, Washington, D.C. J. Atty., for the Western District of New Feit, York, Atty., Dept, M. Jerome of Jus- tice, D.C., Washington, counsel), plaintiff-appellee, plaintiff-appellant Unit- ed States. MESKILL,

Before SMITH Circuit HAIGHT,* Judges, Judge. District SMITH, Judge: J. Circuit JOSEPH appeals These are a defendant judgments of conviction entered after two separate trials jury in the United States District Court the Western District of York, New from a imposed “dangerous spe- under the cial provisions offender” of 18 U.S.C. trial, Burke, In the first Harold P. Judge, presiding, appellant, Eugene Di- Francesco, conspiring was convicted of participate in and conduct the affairs of an enterprise through pattern of racketeer- ing activity, multiple which included acts of arson and use mails to defraud insur- companies, ance in violation of 18 U.S.C. 1962(c) (d). trial, In the second Pratt, George Judge, presiding C. by desig- nation, DiFrancesco was convicted on three alleged counts which he willfully caused damage excess of to federal $100 property, 18 unlawfully U.S.C. § materials, stored explosive 18 U.S.C. 842(j), conspired acts, commit these 18 U.S.C. We affirm the convictions government’s appeal. and dismiss the DiFrancesco, July together On co-defendants, with seven was indicted on charges arising out of a of bombings series occurred area Rochester on Co- Day indictment, lumbus in 1970. A second filed on April named DiFrancesco others, and seven two of whom were also * Jr., Haight, Judge Honorable Charles S. District for the Southern District of New York, sitting by designation. indictment, bombing investigation as defendants in the Sheriff’s Office’s of a racketeering in two counts of defendants number of crimes in which the defendants ring operating involving involved, an “arson-for-hire” allegedly in this case had been in the Rochester area. this second Since including a murder for which DiFrancesco trial, first come to indictment was the we had been convicted in state court. The begin by discussing ap- shall DiFrancesco’s FBI, part of a civil rights federal investi- peal resulting from the conviction on the activities, gation of the Sheriff’s Office’s racketeering charges. conducted a number of interviews and com- subject piled reports.1 interview mat-

RACKETEERING ter of some of these interviews included DiFrancesco and five of the seven co-de- alleged perjury by instances of witnesses in racketeering fendants in the indictment proceedings. state court of these wit- Some were jointly, September tried and Octo- expected nesses were to be called remaining ber of 1977. Of the two defend- testify in the case ants, Joseph pleaded guilty LaNovara be- DiFrancesco and his co-defendants. fore trial and testified as a witness for the arose, Judge When this matter Burke Valenti, government, while Frank the al- during for one week granted a continuance leged conspiracy, leader of the was severed government represented which the that it upon motion because he allega- would seek to learn more about the was ill. tions and would then “turn over all materi- government The presented evidence als that is favorable to the defense that [sic] sought prove which it to that an arson-for- investigation.” result from the The team, operated hire part as of a government approximately thirty reviewed larger organization engaged in illicit activi- thirty-five reports to FBI and determined area, ties in the respon- Rochester had been Brady one was material. The eight sible for at least fires that occurred government reports then submitted the there between 1970 and 1973. The arson the judge trial to allow him to decide ring allegedly agreed with the' property remaining whether thought any he destroy owners to buildings their in return Brady. judge material fell within for a share proceeds. of the insurance The picked reports other out about fifteen government charged compa- that insurance material, Brady which he ruled were but nies $480,000 had been defrauded of about government over refused to turn these as a result of the eight jury fires. The reports additional the defendants. It acquitted defendants, four of the six but argued exposure reports of the could convicted DiFrancesco and Vincent Rallo on endanger ongoing rights investiga- civil both appeal counts. alleges DiFrancesco’s Thus, government tion. stated that it several errors in the district court. “willing was or fall to stand on that deci- The most substantial issue reports Brady raised Di- were sion mate- [that Francesco is whether certain statements made itself.” The court denied a rial] by government made witnesses to the FBI government motion that it оrder the to turn should have Instead, been turned over to reports. reports the defend- over the those ants under the Brady rule of v. Maryland, Brady were court believed mate- 373 U.S. A, 10 L.Ed.2d 215 rial were sealed as Court Exhibit (1963). Shortly before began, this trial government those which the was disclosed allegations wrongdo- agreed Brady were not within were sealed ing had lodged against been time, some members as Court Exhibit B. At some later of the County Monroe Sheriff’s Office. government gave defense counsel the These allegations arose in connection with reports of interviews of LaNovara and of investigation County filing 1. This resulted in the of an Sheriffs Office. United States v. Ken- April nerson, indictment in the Western District on Cr. 79-65. against five members of the Monroe Monachino, tion into a state court Angelo an unindicted eo-con- evidence of indict- spirator, testify govern- who was to for the charged ment that DiFrancesco and others reports part ment. Both of were these arson, a fire with an act of at Select Tire A, was a report Court Exhibit as third part constituted Company, that also of a government eventually which the turned racketeering specific alleged in act of over as Jencks Act material. government federal of- indictment. portion fered the and had a of it indictment Our examination of the court ex case, its read to rebuttal jury part hibits reports convinces us that included making jury for the purpose stated no Brady reports material. None of the disposition of the aware of the final state DiFrancesco, exculpated nor did dem persons named court case one onstrate that the case includ Furthermore, perjured testimony. ed in the state noth indictment. reports that the re perceive It is how the indict- difficult

fused to turn over constituted “material purpose ment was relevant for stated impeach evidence that Government fact, its government. relevance witness ‘reliability whose . . . may was, any issue in the materiality case well guilt determinative of [have been] best, minimal. Counsel various ” States, innocence.’ v. Ostrer United defendants, including DiFrancesco, opened (2d 1978), denied, cert. up subject proceed- state court 1115, 99 (1979), ings govern- in their cross-examination of quoting Giglio ment witnesses. Introduction of the indict- 150, 154, 31 L.Ed.2d 104 not, ment, however, as the Illinois, quoting Napue contends, necessary clarify now (1959). L.Ed.2d One “meaning” of the of the state tri- outcome report (Part A) A of Exhibit Court contains indictment, al.2 But admission of even two comments attributed Monachino. erroneous, prejudice comments, if did not however, Neither DiFrancesco. of these could knew, have impeach jury been from the already used to Monachino in defend- any way might that have affected the out government ants’ cross-examination wit- trial, come by of the is the which standard nesses, grand jury that the state had re- which we materiality measure the undis testimony implicating ceived DiFrancesco in closed information for which the defendant fire, that persons the Select Tire some had specific makes a request. United States v. been tried in in connection state court Agurs, 97, 104-06, fire, testimony alleging that that DiFran- Ostrer, (1976); L.Ed.2d 342 supra, 577 F.2d participation cesco’s had been offered at the short, reports FBI the trial, state court that and DiFrancesco had have nothing vigorous added the attacks to co-conspirator been yet named as a an- which his DiFrancesco and co-defendants other alleging federal indictment mail upon made credibility the a number of arising separate fraud act of arson. the through witnesses use of circumstances, Under these admission of the public relating substantial information indictment, erroneous, the if even was investigation. the harmless.

DiFrancesco also raised several ar disputes DiFrancesco also the admis guments involving evidentiary questions sibility testimony by of certain LaNovara portions court’s instructions to Monachino, the jury. The the described the initiation first concerns introduc- who Only plea” guilty, two named in Uchie then entered an "Alford of the defendants the Alford, jury state court indictment had been tried. The see North Carolina v. Nalore, acquitted (1970), Joseрh one of DiFrancesco’s 27 L.Ed.2d to the state case, charges, maintaining co-defendants in this but was unable to while same time his at the agree on a innocence. verdict as Lawrence Uchie. by full of the benefits received extent organization of followed ritual3 allowing no was error ring them. Thus there part. was a arson-for-hire was the court’s instruc- Nor testimony testimony. this was not errone- Admission subject this erroneous jury tion to the on probative was ous. The evidence sug- not The instruction did the affairs of insufficient.4 “enterprise,” of an existence argues, the Attor- gest, that through pattern as DiFrancesco which were conducted vouching the credibili- ney was a was racketeering matter General activity, Instead, simply ex- correctly charged ty of witnesses. which the court plained purpose program proof. burden of had the the benefits probative dispelled any implication that sufficiently was The evidence were received Monachino ‍​​​​‌​​‌‌‌‌​‌‌​​​​​‌​‌‌‌‌‌​‌‌‌​​‌​​‌‌​​‌​​‌​​​​​‍outweigh any possible prejudice. by LaNovara in- improperly. No additional bestowed next contends that DiFrancesco necessary. struction was Id. testimony that LaNovara Monachi participants argues Federal that the Lastly, no were in the Witness DiFrancesco Program, authorized an element of the crime Protection as removed instructing jury’s Act of from the consideration Orgаnized Crime P.L. Control 91-452, V, that, jury Title if believed the evidence that No. 84 Stat. should not $480,000 paid by in claims insur have been a defendant of about was allowed. Since participating companies will seek to ance in New York and other impeach ten he has as and mail by showing witness received states a result of arsons fraud, enterprise inter significant program, while in the did affect benefits then bring required by 18 government may desire to out the state commerce as U.S.C. proper. participation during 1962(c). direct This instruction was witness’ exami jury question of nation in order avoid an inference that The court left to the fact, paid claims had attempting hide the whether the been Although engaged result of the defend possible witness’ bias. disclosure arson determined, judge correctly “must be ahts. trial participation of such handled deli however, Partin, alleged if the defendants’ cately,” United States denied, (5th proven, the effect of those Cir.), 644-45 cert. actions were ques was a 47 L.Ed.2d 753 so actions on interstate commerce Ricciardi, possibility minimize tion of United States v. jury as to law. Cf. denied, (2d Cir.), will infer that defendant was source 357 F.2d cert. witness, danger testimony to the such is U.S. permissible prosecutor (1966) (whether so “in long as the does activities constitute an attempt exploitation exploit dustry affecting it. No commerce” under here, law); question occurred the defendants and crоss-ex U.S.C. 186 is a of United § Varlack, 665, length develop (2d amined the witnesses at States v. 225 670-72 ritual, provides Attorney 3. The included the recitation Federal law also the of loyalty organization, oath of the consisted of the General of United is authorized States pricking trigger finger, absorbing health, provide safety one’s of for the and welfare holding blood in a tissue the tissue in one’s persons and to be called witnesses and intended hand while it government burned. as families of witnesses and the persons be called witnesses and intended to jury: 4. The court instructed the government legal proceedings witnesses any person alleged You have heard numerous references dur- to have instituted organized activity the course this trial to the Federal participated of in an crime Program. from, Witness law judgment testimony Protection Federal in his whenever provides Attorney testify by General of the willingness a witness such provide United States is authorized person place life or his life or or the witnesses, security government potential of person family member of his or house- of a potential and witnesses witness- jeopardy. hold in legal proceedings against any person es in alleged participated organized to have activity. crime that, Federal Rules of Procedure 1955) Criminal to dis- (judge jury Cir. instructed if miss an of excessive de- testimony believed witness- indictment because es, Lanе, 1075, lay, defendant’s affected commerce as United 561 F.2d acts Act, 1951). (2d 1977), defined in Hobbs U.S.C. DiFrancesco did not § invoke that and thus cannot com- discretion THE DAY COLUMBUS BOMBINGS plain of failure to exercise it. the court’s Corp., supra, New DiFrancesco’s on his conviction Buffalo Amusement attack arising bombing 376 n.13. explosives from the and charges delay focuses between on the his We turn therefore DiFrancesco’s indictment and the commencement of trial. pretrial delay claim that violated his He contends that the indictment should speedy to a right sixth amendment trial.

have been delay dismissed because this vio- purpose We shall this assume for Act, lated Speedy Trial U.S.C. delay exceeded that allowed under the Act (“the Act”), 3161-74 §§ Western Dis- Plan, may since such a violation trict’s Achieving Transitional Plan for assessing considered in the merit of a con Prompt Disposition (“the Criminal Cases 2758; stitutional claim. Id. at speedy trial Plan”), and guaran- the sixth amendment’s Carini, supra, 562 F.2d at 151-52. tee speedy of a trial. Nonetheless, agree we with the district indicted on July DiFrancesco was judge’s thorough opinion and well-reasoned arraigned September 1975. in which he concluded that DiFrancesco’s Act, The provisions relevant 18 claim lacks merit. States v. Di 3163(b)(2), 3161(g) U.S.C. and of the §§ Francesco, (W.D.N.Y. April Cr. 75-165 Plan, 5(a)(1), did take effect until July not 1978). 1, 1976. They require that trial of a de controlling authority The is of arraigned fendant before effective date Wingo, course Barker v. days shall commence within of that S.Ct. in which (§ 10(a)) date. Both the Plan the Act and the Court enunciated four factors to be provide, however, exclusion of cer evaluating a considered in claim of a denial periods tain set forth in delay 18 U.S.C. right speedy to a trial. These factors 3161(h) 180-day computing period. (1) are length delay; (2) DiFrancesco that the contends non-excluda (3) reason for delay; defendant’s ble delay in this amounted to days. case (4) assertion right; of his the existence government, which conceded in the dis prejudice to the from the de trict 180-day period court that ex had lay. Id. at Other rele pired, now argues that the non-excludable vant circumstances also be considered 283, 273, delay totaled either 177 or 145 in conducting “difficult and sensitive bal a. days, or perhaps no time at all. We need ancing process,” id. at “in choose, however, among these var prosecution, which the both the conduct of calculations, ious because 18 U.S.C. weighed.” and the defendant are Id. at 3163(c) effective delays date of the provided sanctions 3162 for violations July the Act until delay indictment between Corp., v. New Buffalo Amusement 600 F.2d trial in this 30 months. case was about The 1979); at (2d 376-377 Cir. government that concedes this is sufficient Carini, (2d 1977), Cir. “trigger” investigation a of further the 11(e) provides and of the Plan that failure 530-31, other at factors. id. Seе to comply provisions with its shall not re 2182; Carini, supra, 562 F.2d at 148—49. quire dismissal. New Buffalo Amusement numerous, delay The reasons for the were Corp., supra, at n.13. including on trials of DiFrancesco state

Although charges racketeering the district court retains federal the discretionary power 48(b) charges, attorney Rule of and of Judge under the illness of his Burke, given testimony. such originally the was tano would have to whom case Moreover, although ap- death assigned, participation of DiFrancesco’s DiGaetano’s the by of a heart condition attorney parently trial on behalf another was caused in a a had for substan- Judge which time Burke de- from which he suffered (during client time, no period to remove tial DiFrancesco made government’s request nied the of case), pend- by deposition the the testimo- preserve from this effort to attorney the ny purportedly given. the and the that have been ency of motions defendants would noted, addition, Although government the as the Di- government. district supporting some of the materi- responsibility bears the for Francesco’s motion and from delay, including that caused “institution- als no affidavit Valenti con- contained overcrowding cerning whereabouts on October 11 and al factors” such his docket, too ill to Wingo, Although district Barker Valenti was under- court’s supra, go there the same as his co-defend- trial at time ants, suggestion аny in the record of “delib- is no that his illness is no there indication government] asserting, by from [by delay prevented erate the him affidavit attempt defense,” means, hamper any presence trial the his in Pitts- the in order other id., burgh days question.7 DiFrancesco apparent and is that was on the responsible portion a substantial for we then that Plan Even if assume Moreover, delay. government re- weigh and Act were violated and such viola- date, a peatedly to set a trial fact moved claim, analysis tion in DiFrancesco’s our distinguishes this case from United tips against his strongly the balance conten- (2d v. Vispi, 545 F.2d right speedy tion his to a trial was DiFrancesco, 1976). hand, on the other did violated. claim speedy assert his trial until the next argues DiFrancesco the court eve of trial.5 should severed have or declared a-mistrial factor, prejudice to the defend- final as to Count II of the indictment because of ant, support also fails DiFrancesco’s an error that was until the not discovered argues po- claim. that the death of He presentation conclusion of DiGaetano, witness, tential Samuel caused government’s case. time At that it was prejudice substantial which can be attrib- language learned that contained in DiGaetano, delay. attorney uted to copies Count II of the of the indictment Valenti, severed co-defendant Frank al- possessed by govern- counsel both the testified, legedly have in direct would con- ment differed defendants witness, government tradiction of a copy prose- in the filed with the court. Pittsburgh day Valenti on of and mistakenly copies cutor had distributed day immediately preceding the bomb- indictment, draft of the rather earlier ings.6 final, filed The earlier version. draft,

We no error in district had find court’s which all counsel assumed to presented indictment, conclusion that the evidence to it named Valenti as the actual failed to support person damage contention that who caused the old DiGae- co-defendants, support 5. Two of DiFrancesco’s but not 7. The the claim absence evidence himself, prejudice perhaps explained DiFrancesco moved for dismissal of Valenti’s 1977, alleging plea guilty, February subsequent indictment in March viola- entered Curtin, Judge Speedy tion of Trial to one Act. These motions of 1979 before count of course not evidence Di- in this Valenti his do assertion indictment case. entered Department right speedy plea attorney Francesco of his to a trial. after summary testimony Justice had recited have if which the offered 6. The contended at trial that Va- gone Valenti had to trial. This arranged meeting case lenti conducted testimony placing II, 1979, included Valenti Roches- Rochester on October at which the bombings planned, ter on 12. Valenti offered no October were and that he also took objection response to part bombings. or comment in this sum- in the mary. 778 Building prosecuting attorney judge.”

Federal and named the other de- of either fendants, DiFrancesco, including 218, as aiders at Id. at 80 273. DiFrancesco’s S.Ct. The actual and abettors.8 indictment real claim is that he was not afforded notice and, as principals named all the defendants charge of the on he was convicted. addition, 2, merely in 18 cited U.S.C. the Supreme explained As in Berger the Court abetting aiding and statute.9 82, States, 78, 295 55 United U.S. S.Ct. (1935), 79 1314 one of the L.Ed. complains that as a of DiFrancesco result allegations proof reasons “that and must confusion, fault, this for which he bore no correspond is the obvious [re theory he was convicted under a at substan- quirement] that the accused shall be defi right tial from that which he variance had a nitely charges against informed as to the to believe was the basis of the case. He him, may so that he be present enabled to argues the assumed indictment was actual, surprise his defense and be taken by by not narrowly more drawn than the and therefore, the evidence at . offered the trial . ..” the substitution of actu- the protection right of this by al version to notice of the was forbidden Stirone v. Unit- charges requires ed determination “whether there has been as to L.Ed.2d 252 which holds that a such variance ‘affect Id.; of broadening charges only rights’ the be ac- the substantial of the accused.” complished by grand jury Knuckles, the itself. United States v. 581 F.2d Cir.), denied, (2d cert. Stirone, however, decision (1978); see L.Ed.2d United presented relevant the circumstances (2d v. Garguilo, 554 F.2d here. The Court the relied Stirone on 1977). violation “the of defendant’s substantial right tried charges presented on such prejudicial No variance occurred by grand jury.” indictment returned Although here. the assumed indictment Id. at at 273. is no narrowly There was drawn more somewhat question the indictment, count which DiFran the was actual evidence in- cesco ultimately was tried and theory convicted and culpability troduced of ad- actually grand jury, was returned vanced were not affect- thus protecting right his to have jeopar his ed difference. The of- dy charged limited to group “offenses no actually fered evidence to who deliv- acting independently his fellow citizens ered bomb to Federal Building. Its 8. Count II of the draft of the indictment Sections 2 of 1361 and Title 18 the United charged: States Code. THAT, on or about October 11 and charged: II of Count the filed indictment York, in the Western District of New THAT, on or about herein, October and the Defendant FRANK J. VALENTI York, unlawfully in the Western District of New wilfully injury did cause the wilful herein, VALENTI, the Defendants J. FRANK depredations against to and commission of PICCARRETO, RENE J. property SALVATORE GIN- of the United States of America GELLO, DIDIO, THOMAS CELES- departments agencies DOMINIC and the thereof— TINO, FRANCESCO, DI namely premises EUGENE ANGELO (old) known as Fed- VACCARO un- Building and ANTHONY GINGELLO Fitzhugh eral located at Church and lawfully wilfully injure Rochester, City did cause Streets in New York— injury depredations damages premises having and the commission of to the said ex- property of the United States of $100: ceeded the sum of AND, aforesaid, departments agencies place America and time and PICCARRETO, namely, premises RENE known as the J. GIN- SALVATORE thereof — (old) GELLO, DIDIO, Building Federal located at Church and THOMAS DOMINIC CELES- TINO, Rochester, FRANCESCO, Fitzhugh City EUGENE DI Streets ANGELO GINGELLO, damages premis- VACCARA and New York —the to the said ANTHONY herein, abet, unlawfully aid, $100, having Defendants did es the sum all of exceeded counsel, command, procure provisions induce which was in violation of the offense, commission of the all of aforesaid Sections 1361 and of Title provisions violation States Code. bombings. After the bombs had charge narrower used in supported evidence damage made, remaining put to the material was that Valenti “caused” been building conspiracy. he directed the left bag. because DiFrancesco then back into the Finally, withdrew aid- with- bag the room with the and returned theory proceeded abetting actually later. No one out it a short time ” 10theory that each defend- the “Pinkerton bag containing saw DiFrancesco return the responsible ant was for the substantive acts to the basement. remaining explosives co-conspirators of his carried out in further- he moved the boxes Turri testified that conspiracy. theory ance of the This the attic of his new from the basement to permissible have been under either version during summer of 1971. Tur- residence II. Count DiFrancesco called ri’s wife testified that 1973 and asked her to her at some time in prejudice DiFrancesco’s claim of is unsub- move the boxes from the attic to another that, stantiated. He contends had he location, wording which she did. known the actual of the indict- ment, he would have conducted additional actually of the witnesses Although none Monachino cross-examination of and would the contents of the boxes after examined stipulations. not have into certain entered statute, jury effective date of the undermined, however, by This contention is properly could have inferred that some of counsel’s failure to ask the trial court explosives remained in the boxes after recall Monachino for further cross-examina- supported logical that time. The evidence tion and any his failure to withdraw that, inference when DiFrancesco left the stipulations, yet given which had not been meeting October for several min- jury. to the the difference in the two Since burlap bag, utes and returned without the preju- versions of the indictment caused no bag containing he had returned the rights dice to substantial of the ac- remaining explosive mаterials to the boxes cused, the court deny- district did not err in basement, explosives ing severance or a mistrial. remained in the boxes while Turri moved argument DiFrancesco’s final in them to his new residence and until DiFran- VI, volves Count which accused him of un they again cesco asked that be moved lawfully storing explosives. He contends this count should have been dismissed proof presented because there was no APPEAL GOVERNMENT OF the storage February continued after THE SENTENCE the effective date of 18 U.S.C. Prior the start of DiFrancesco’s trial 842(j), charged which he was with violat counts, racketeering govern- on the ing. disagree. We ment, compliance with 18 U.S.C. that, offered evidence 3575(a), filed notice with the district during the summer of DiFrancesco alleging that DiFrancesco was a “dan- brought dyna- two boxes that contained offender,” gerous special as defined in 18 mite, guns and various other items to a 3575(e)(3) (f). filing U.S.C. § house in Joseph Turri lived. DiFran- such a notice indicates the permission cesco received from Turri seek, if intention to the defendant is con- store boxes the basement. On the victed, imposition of an enhanced sentence night of DiFrancesco removed a October 3575(b). as authorized 18 U.S.C. burlap bag brought from the box and 17,1978, after DiFrancesco had upstairs apartment, On March Turri’s where a racketeering meeting conspirators been convicted in both the was held. trials, they bombing Judge There used some of the Burke held a sentenc- material 3575(b), bag dynamite, blasting caps ing hearing, required by fuses and to obtain — —to which, construct submitted explosive devices which were information (1946). 640, 646-47, Pinkerton 90 L.Ed. v. United trial, imposed from the sentence during appeal basis for his notice of would form the argues was a DiFrancesco that by Judge determination whether DiFrancesco Burke. dangerous special April On offender. his judge trial did abuse discretion the court fact and its findings the issued of and, moreover, setting sentence the danger- conclusion that was a DiFrancesco the portion such of authorizes § v. Di- offender. United States special ous the appeal a sentence where Francesco, (W.D.N.Y. April Cr. 76-45 not done so violates dou- defendant has the 1978). later, week the sentenced One court jeopardy clause of the fifth amend- ble ten-year DiFrancesco to concurrent terms government’s right ment.12 the Since imprisonment racketeering of on the two jurisdiction thus appeal and our to consider counts, concurrently to be served sen- the of the dependent merits sentence are totaling years tences nine which had been constitutionality statutory of upon the the imposed by Judge the bombing Pratt on Wilson, United see provision, counts. immediately confront the government, The under author we must the. 3576,11 granted by filed a issue.13 ity 18 U.S.C. constitutionаl § provides: by hearing. Fail- 11. U.S.C. 3576 States and after § the United of correction, United States to take a review respect ure of the imposition, With to the shall, upon imposition proceedings of the sentence the or reduction of a sentence after by chapter, the the United States of under section a review taken 3575 of this review sentence, of the ing or reduction of the fore- sentence on the of the sentenc- correction record may by imposition court be taken the defendant or of a sentence close more severe appeals. Any previously imposed. the Any United States to a court of with- than that by review of the the sentence taken United drawal dismissal of review of the or sentence days States shall be taken at before by least five the United States taken imposition shall foreclose expiration taking of the time for a review of aof sentence more than severe by the sentence or conviction appeal of the but shall not fore- reviewed otherwise diligently prose- the defendant and shall be appeal review of close the the sentence or the may, sentencing cuted. The with or court appeals The shall of the court of conviction. notice, without motion and the time extend writing disposition state in the reasons for its taking for period a for a rеview of the sentence Any of the the review of sentence. review of days thirty not to exceed from the by may the taken the sentence United States expiration prescribed ‍​​​​‌​​‌‌‌‌​‌‌​​​​​‌​‌‌‌‌‌​‌‌‌​​‌​​‌‌​​‌​​‌​​​​​‍of the time otherwise showing on a be dismissed of of abusf by law. The court shall not extend time right re- of United States to take such taking by a review of the sentence view. expired. A States after the time has Although DiFrancesco asserts that taking extending a review time for equal process also protection afoul of the due runs of the sentence States shall the United amendment, he clauses of the fifth taking extend the review of the time argument solely in of double frames his appeal sentence or of the conviction .terms jeopardy. light disposition of our of the taking period. for the same claim, jeopardy double we need not consider a review of the sentence provisions might constitutional taking whether other shall be deemed the review of the prohibit appeal. appeal also sentence and an conviction the defendant. sentence shall Review of the Judge Haight argues opinion in his concur- procedure include review of em- whether the ring inapplicable result that 3575 was ployed lawful, findings was made were to sary and that it is unneces- DiFrancesco therefore clearly erroneous, sentencing or the court’s tо reach constitutional issue because appeals discretion was abused. The court (1) 3575(f) provides that a “dan- defendant is may, on review of the sentence after con- gerous” period longer “if confinement record, sidering including pre- the entire ’’; provided felony required for such . . report, sentence submitted dur- information (2) 3575(b) provides for a maximum term felony sentencing the trial of such already years; (3) twenty-five DiFrancesco hearing, findings and the reasons of the dangerous spe- subject, without was use of the court, sentence, sentencing impose affirm the sentencing provision, total cial offender to a any imposition or direct sentence forty years, consisting sentence of of consecu- originally sentencing which the court could twenty-year two tive terms for each of the imposed, have ing or remand for further sentenc- he was sentence, counts of which convicted. proceedings imposition except However, that a made sentence more defendant who has been convict- severe on review sentence taken than one ed on more count comes before lawful, employed was procedure appeal concept of a valid, erroneous, clearly in a enforceable made were or findings obtain an increase unknown to American sentencing court’s disсretion was throughout most this na- legal system sentence, abused,” and then affirm” history. Few year tion’s two hundred the trial court impose any sentence given appellate have their courts states for further imposed, could have remand sentence, power and in each to increase a proceedings. sentencing exists, may be power instance where the to government has not rushed make The only has initiated exercised if the defendant of power its new to seek review use of by seeking review appellate the proceeding Whether this has resulted sentences.16 States, prior The of the sentence.15 constitutionality the of from doubts about' statutory authority to to did not have extraordinary degree procedure, of the an In that seek increase in a sentence. un- imposed sentences with the satisfaction however, Congress enacted 18 year, U.S.C. special provi- dangerous offender der the that, a case in- provides § sion, prosecutorial re- to allocate a decision offender, “a volving dangerous special a tasks, or other is of o,ther factors sources to the the record of the review of sentence on speculation, a of but this only matter course sentencing may the de- court be taken the first apparently case is the United States to a court fendant of of а review sentence on added.) attempt to obtain appeals.” (Emphasis The of Moreover, government’s pri- appeals appeal.17 is authorized to review “whether appellate Hampshire sentencing courts to New allowed district court for on each of the sentence, counts for if which he has been convicted. The a but the defendant increase sought “spe- determination a whether a defendant is to these states’ statu- review. Citations purpose sentencing Dunsky, cial tory offender” for the of provisions on The are collected depends upon particu- each count whether Increasing Constitutionality of Sentences felony question requirements lar satisfies the Review, Criminology Appellate ’69 & J.Crim.L. 3575(e). Moreover, language of § of (1978). 7-8 This court knows of no nn. 3575(f) long- § refers to a need for confinement subsequently has authorized an state provided underlying er “felo- upon, appeal. prosecutorial increased sentence ny,” not “felonies.” Therefore, application depends §of 3575 power under 21 U.S.C. also exists 16. Such particularized regard on a determination with provision which with similar deals a § “dangerous dangerous each the felonies for which special drug pro- This offenders.” special Indeed, sentencing sought. offender is enactéd in 1970. Since that vision also was did district court consider each of DiFran- time, legislation introduced Con- has been separately imposed cesco’s two convictions comprehensive gress, part proposed separate, concurrent, albeit for sentences them. code, criminal to extend revision of the federal twenty years Since the maximum sentence of government’s power re- to seek sentence felony each two DiFrancesco’s convic- beyond dangerous offender context to view twenty-five year tions was than the less term encompass im- all in which sentence cases prop- available erly § under the district court posed by some the district court varies applicable. could find that statute was preestablished proposed degree sentenc- express opinion We no as to whether See, g., guidelines. the Crimi- e. 3725 of imposition authorizes the of consecutive sen- S. nal Cong., Act of 95th Code Reform totaling twenty-five years. tences more than legislation (1977). Such has 1st Sess. original imposed by 14. Where the sentence not been enacted. of, g., trial court is invalid e. because failure to mandatory impose penalty, minimum the sen- government 17. has directed our attention corrected, doing if tence be even so in- appellate dealing other decisions several punishment, creases because otherwise “no dangerоus special aspects offender with imposed valid and enforceable sentence can be cases, however, provisions. of these In none at all.” Bozza v. United did seek review a sentence 645, 649, (1947). 91 L.Ed. 818 Rather, imposed govern- under Here, however, imposed by Judge the sentence appealed a court’s refusal to ment has district legally Burke within that authorized and special provi- under the sentence defendant thus is enforceable. because, g., sions e. the district court ruled that Colorado, 1978, Alaska, Connecticut, comply had As of failed Maine, Massachusetts, Maryland, provision, I Montana and United States v. lac- § 3575’s notice response ent sentence which course cannot exceed mary to DiFrancesco’s attack on prescribed maximum constitutionality is not aforementioned government-instigated plain review a final term. “It is that as as the sen- far constitutional, is but tence is the original sentence rather concerned order en- 4205(c)] tentative,” imposed wholly the district court is tered under [§ merely point using “tentative” and that thus the de- whole because “[t]he is, placed jeopardy. 4205(c)] get is not twice in its language, fendant own [§ ‘more detailed information as basis for language does statute determining imposed the sentence to be support urged by the construction ..’ (Emphasis supplied.)” United government. 3575(b) that, requirеs Section Behrens, 162, 164-65, States v. if the district court finds the defendant (1963). L.Ed.2d 224 dangerous offender, special it “shall contrast, the commitment ordered imprisonment sentence the pursuant district court to is neither 3575 § an appropriate twenty- term not to exceed merely predicate tentative nor a to a sen- years added.) five (Emphasis . . ..” ap- “to imposed” by tence be the court of tentative; This command is not the sen- peals. imposed immediately.18 tence is effective procedure Congress, This with provided contrasts That as the in, g., 636(b)(1), whereby 28 argues, e. U.S.C. could have written this statute in a § judge may designate magistrate 4205(c) trial to or in some analogous manner to § a hearing conduct in certain and to might problems matters other form which not raise “proposed” findings submit and recommen- jeopardy inadequate of double is an re dations, which they have no force until sponse have the contention that statute been judge, reviewed by may ac- Congress constitutionally who did write is “ reject cept, or modify by them. is ‘[A]ppeals Nor infirm. the Government in procedure unusual, here provided something similar to that in ex criminal cases are favored,’ 18 4205(c) part in be (formerly ceptional, § U.S.C. 18 not at least U.S.C. 4208(b)), by offend compared they always § which it threaten to cause government. 4205(c) policies double-jeopardy prohibi Section a court allоws behind the States, 90, impos- desires more information before tion.” Will v. 389 U.S. United 274, sentence 96, 269, (1967) 305 commit defendant 88 S.Ct. custody Therefore, Attorney omitted). (citations General for a we are period which will procedure “be deemed to obliged strictly be to construe maximum imprisonment pre- Congress sentence of to deter has authorized and by scribed it, other, law.” hypotheti After the court obtains mine whether some not information, the desired jeopardy it then may procedure, affirm cal offends the double the original impose commitment or a differ- clause.19 qua denied, (6th 1977), actually imposed 562 399 3575. See cert. sentence under 917, text, infra,

435 U.S. 98 S.Ct. 55 L.Ed.2d 509 at 782. (1978), or it held the statute to be unconstitu tionally vague. Stewart, United States v. 531 presently in fed- 18. DiFrancesco is incarcerated (6th Cir.), denied, F.2d 326 Atlanta, cert. prison serving 426 U.S. Georgia, the sen- eral (1976). by Judge L.Ed.2d 376 these imposed Judge Pratt tences cases, appeals the court of non-en vacated the Burke. imposed ordinary hanced sentences under the sentencing provisions and remanded for resen least some of the alternative 19. We note that at tencing Although under § 3575. the defendants by suggested procedures would thereby exposed possibility were to the of an Congress issues that did not have to con- raise penalty upon resentencing, increased ger this dan example, sys- enacting in 3576. For sider voluntary resulted from their decisions to tentatively whereby im- the district court tem original pro contest the use permissible posed the maximum Thus, ceedings. previous did these cases not possible by provision reduction for review jeopardy involve double considerations appeals likely court result in an by appeal attempt raised by appeal being of the sentence the de- taken of a sentence ply government appeal the fifth plain command of acquittal. S.Rep. No. “person no be rather than of an amendment is that [shall] (1969). Cong., 1st We cannot put twice 91st subject for the same offense to be Sess. who, however, how a defendant perceive, Although or limb.” jeopardy of life im being years’ to several after sentenced suggests “life the most phrase or limb” court, might be prisonment a district penalties, long it has been estab serious imposition a sentence of death subject to encompasses penalties lished all government appeal, would be upon a imposed proceed criminal limb placed jeopardy twice in life or less Jones, ings. Breed who, Kepner, was the (1975); parte Ex L.Ed.2d instance, of first acquittal the court after Wall.) 170-73, Lange, (18 impris sentenced to guilty and was found (1873). has L.Ed. 872 A defendant who years slightly less than two onment sen stood trial been convicted and government. That upon appeal placed tenced been the district has subjects “merely” to a a defendant advo jeopardy. position once in Had imprisonment, term of not to the longer Holmes, dissenting in cated Mr. Justice life, is a difference of loss of his actual Kepner v. giv principle, example degree, (1904), prevailed, 49 L.Ed. en, jeopardy applies for the double clause present double no jeopardy might clause penalties. supra all equally to criminal See appeal. barrier to an increased sentence govern statute the the Under at argued “logically Justice Holmes ment, judgment final in dissatisfied with rationally a be more man cannot said to be court, seeks more favorable result in one cause, jeopardy than once in in the same Therefore, the tribunal. conclusion another however often he be tried.” But the inescapable subject a de appears Supreme adopted Court has never this con to the risk of substitution of fendant which, cept of “continuing jeopardy,” al sentence, appeal upon greater though it might simplified have matter is him a time government, place second of appeals, United v. States of limb.” jeopardy “in life or Scott, 82, 6, 2187, 437 90 n. 98 U.S. 57 S.Ct. L.Ed.2d 65 (1978), greatly would have de attempt this is to use a Since the first creased the protection fifth amendment’s allowing appeal, there are statute such an against gоvernment oppression. legis The point.20 directly on But precedents no history lative of 3576 demonstrates that body jeopardy case of double substantial Congress cognizant possible of law, although hardly charting straight- constitu Scott, objections see, tional provision, to the that it v. path, g., but e. United States line 2187, rejection 82, concluded Kepner’s 98 supra, of 437 U.S. Jenkins, continuing overruling 420 jeopardy concept ap should 65 every dangerous special legal fendant in literature. commentators have ar- offender Some provisions appellate guarantee case. -This gued would increase the case- that such violate the pre- g., Spence, load and in jeopardy, against effect would reverse the usual double e. The Fed- sumption finality of which is accorded district Act Reform of 1977 and eral Criminal Code judgments. court orders and cannot Appeal Since we Prosecutorial of Sentences: Justice or Congress know how weigh these addi- Maryland Jeopardy?, Double 739 L.Rev. considerations, reject tional Note, we must (1978); Jeopardy: Twice Prosecutorial suggestion that to read a failure Sentences, Appeals Virginia of L.Rev. light possible will alternatives (1977), while have others contended Congressional result frustration of the intent. constitutional, provisions g., would be e. Dun- express opinion Constitutionality We sky, Increasing course no as to Sen- constitutionality any Review, Appellate alternative methods & tences on J.Crim.L. sentencing might review be accom- Criminology and at least one com- plished. surveyed argu- competing mentator has ments and concluded that “the answer is sim- existing proposed provisions 20. The for Low, ply Special unclear.” Offender Sentenc- government appeal generat- of sentences have ing, (1970). Am.Crim.L.Q. ed a substantial in the amount comment principles finality require 43 L.Ed.2d 250 fairness and (1975), supports subjected possibility conclusion that we that he not be to the punishment being again reach. of further tried sentenced or for same offense. guarantee against jeop double perhaps clearly This concern was most ex- has ardy sepa been said to consist three pressed parte Lange, Ex supra, 85 U.S. protections: (1) against constitutional rate (18 Wall.) at 21 L.Ed. 872: prosecution second for same offense For of what is the avail constitutional acquittal; (2) after against prose a second protection against more one trial if for cution the same offense after convic there can be tion; number of sentences (3) punishments against multiple pronounced Why on the same verdict? same Carolina v. offense. North that, having once been Pearce, tried and found 89 S.Ct. guilty, he can again never tried (1969).21 L.Ed.2d 656 underly The interests Manifestly that offence? it is not protections these are similar. United danger jeopardy or of being a Wilson, supra, second guilty. found It is punishment promote time They goal of pre legally that would follow the serving second con- integrity judgments, final guarded viction is the real Scott, danger supra, 437 U.S. at 98 S.Ct. against by if, the Constitution. But after protect against oppres the individual judgment has been rendered con- government. sion Id. at viction, and judg- the sentence of that particularly, protection 2187. More criminal, ment executed on the he can’be against reprosecution acquittal after safe again sentenced on that conviction to an- guards the individual the embar other punishment, to en- rassment, expense of repeated and ordeal different punishment time, dure the same a second attempts by the to use its re is the of any constitutional restriction power sources and to convict him and re spirit value? Is not its intent and its danger duces the that an innocent defend such a case as a new much violated as if may ant guilty. be found v. Serfass United had, trial had been and on a con- second States, 377, 387-88, 1055, 420 95 S.Ct. U.S. a punishment viction second inflicted? (1975); 43 L.Ed.2d 265 v. Green United irresistible, argument The seems to us States, 184, 187-88, 221, 355 U.S. 78 S.Ct. 2 and we do not that doubt the Constitu- And, (1957). L.Ed.2d 199 at the root of the designed tion ‍​​​​‌​​‌‌‌‌​‌‌​​​​​‌​‌‌‌‌‌​‌‌‌​​‌​​‌‌​​‌​​‌​​​​​‍was much prevent as second and protections third these is the from being punished criminal twice idea, here, еspecially expressed relevant being offence same as twice Wilson, 343, supra, 420 U.S. at 95 S.Ct. at it. tried for 1021-1022: When a punish- has once prohibition against multiple defendant been convict- ' punished crime, that, ed and particular strongly a ment22 has been so felt al- addition, potential In it is now clear defendant’s in terms tion, or risk of trial and convic- Jones, right completed by punishment.” “valued to have his trial not Breed v. 421 tribunal,” Hunter, particular 519, 532, 1779, Wade v. 336 U.S. U.S. 95 S.Ct. 44 346 L.Ed.2d 684, 689, 834, 837, (1949), 69 (1975) (emphasis original), S.Ct. 93 974 quoting L.Ed. Price v. encompassed jeopardy 329, is also 323, 1757, the double Georgia, 398 U.S. 90 S.Ct. 26 Bretz, 28, 36, clause. Crist v. 437 U.S. 98 (1970). cases, S.Ct. L.Ed. In 200 each those 2156, (1978). 57 24 L.Ed.2d limiting scope Court was not of double protection, jeopardy rejecting instead but principle jeopardy 22. The the double arguments prohibited only that the clause mul- multiple punishment clause bars (cid:127) has not been tiple punishment. The held that the dou- Court Supreme undermined Gourt’s state- jeopardy prohibits ble clause retrial where the prohibition jeopar- ments that the of the double subject express, defendant has been dy against being punished, clause “is not twice Ball, Price, implied, acquittal, juvenile or or of a against put being jeopardy,” but twice Unit- proceeding guilty in which he was found but Bali, 662, 669, ed States v. 163 U.S. 16 S.Ct. disposition where no was entered. Breed. (1896), 41 L.Ed. 300 and “is written

785 States, 553, v. 165 U.S. In United Swaim increasing a valid though question 823, presented, 448, this squarely been L.Ed. Court held has never sentence S.Ct. courts, including Suprеme numerous commanding officer or that the President Court, stated in dictum emphatically have a case to a court- power had to return impermissi- would be procedure that such a in sentence. If for an increase martial 304, Benz, 282 v. In United States ble. provisions of the jeopardy the double 113, (1931), the Court 75 L.Ed. 354 51 S.Ct. applicable were such a Fifth Amendment question whether was confronted would be unconstitutional. practice upon petition power, has the district court Picard, (1st 446 F.2d 1209 v. Cir. In Walsh defendant, pre- the sentence to reduce by a denied, 921, 92 1971), 407 U.S. S.Ct. him. The Court noted cert. viously imposed on judg- general rule that then-prevailing 2465, (1972), up- the court n ments, and orders could be amend- decrees statute which Massachusetts allows held the ed, the court that modified vacated as well to increase as reviewing them, they during the term at made of a defendant who the sentence decrease applied rule were made. It stated that this review. But the court ex seeks cases, punishment “provided criminal pro “the Massachusetts noted that plicitly 307, 51 augmented,” be not id. at reopen permit the state does not cedure 114, and held that because the district court on its own initia of sentence question increased, decreased, punish- had so, do it would of course Were it to tive. ment, power.23 it had acted within its jeop double proscription violate the then stated that the dis- unanimous Court other courts of ardy.” Id. at Several decreasing increasing tinction between one, have stated that including this appeal, “upon ground a sentence was based increased, not be at least a sentence subject is to penalty to increase the where, here, already punishment has punishment defendant to double suffered, States v. partly United been of the Fifth same offense in violation (2d Cir.), Chiarella, cert. 214 F.2d . . .” Amendment to the Constitution . denied, 99 L.Ed. Id. States, (1954); v. United Oxman Massachusetts, 177 U.S. Murphy v. denied, Cir.), (8th cert. F.2d (1900), 44 L.Ed. 711 (1945); 89 L.Ed. 2001 argument Supreme rejected the Court Frankel offended jeopardy the double clause was Welch, (6th 1942); Rowley App. defendant, original sentence when a whose at his behest because the 501 n. 3 had been vacated 114 F.2d D.C. imposed was which it was

statute under challenged has not the sen was resentenced under unlawfully applied, Coke, 836, v. 404 tence. longer appropriate to a term statute (en banc). (2d 1968) 845 Court, however, original than the one. it from one in before distinguished the case Although such dicta of course are impose to which “the court undertook [trial] binding, their number and the legally not additional sentence in invitum a second or impres sources offer high authority of their offense, to substitute one for the same strength preva sive evidence of 160, at 20 sentence for another.” Id. S.Ct. jeopardy view that the double lence of the added). again in (emphasis at 641 And im bars an increase in the sentence clause 1, 68, Covert, 77 Reid v. 354 37 n. S.Ct. U.S. by the court. posed district_ 1222, 68, (1957), Mr. 1241 n. 1 L.Ed.2d 1188 con- reached here does not The conclusion discussing plurality opinion, Justice Black’s in decision Supreme flict with the Court’s Rights to application of the Bill of Pearce, supra, 395 U.S. trials, v. North Carolina military stated: imposed affirmed or the conviction is fence is 23. Rule 35 of the Federal Rules of Criminal appeal. permits Procedure now a district court to re- on days duce a sentence within 120 after the sen- 786

711, 2072, rationale,24 however, 89 23 fully S.Ct. L.Ed.2d 656. There does ex- This not plain the since a Court result Pearce defendant jeopardy held the double granted immunity pun- would not be from prohibit imposition clause did not of a if lim- ishment the sentence on retrial were greater sentence on retrial been had imposed to ited at first trial. defendant, imposed original at the of a trial Rather, depends Pearce too on a second line getting where defendant succeeded in reasoning, jeopardy pro- that the double his first conviction set The Court aside. tection simply has no relevance “the. where Ball, on relied Pearce United States v. original has, at conviction the defendant’s 1192, 662, 41 163 U.S. 16 S.Ct. L.Ed. 300 behest, wholly been nullified and the- slate (1896), which established that con- had “this Pearce, wiped supra, clean.” 395 U.S. at guarantee imposes stitutional no limitations 721, 89 аt S.Ct. 2078. This outcome does power upon retry whatever to a defend- result any from “waiver” of double ant who in getting has succeeded his first jeopardy protections, as was suggested in aside,” Pearce, conviction supra, set 395 States, 521, 533, Trono United 199 U.S. 720, at (emphasis U.S. 89 S.Ct. at 2078 121, (1905), rejected 50 L.Ed. 292 S.Ct. original), States, and on Stroud v. United States, supra, in Green v. United 355 U.S. (1919), 251 U.S. 64 L.Ed. S.Ct. 191-92, at 78 S.Ct. but instead is com- held corollary power which pelled by the fact that “the Jeopar- Double retry power impose legally was the Clause, dy guards against which Govern- authorized sentence. oppression, ment does not relieve a defend- consequences ant from voluntary his Although rationales been various have Scott, supra, choice.” at U.S. rejected advanced and rule that a at 2198. S.Ct. after retried reversal of Here, however, neither factor that conviction, original see Burks v. United application militated of the dou 15 n. jeopardy resentencing ble clause to recently L.Ed.2d 1 most Court present. is slight Pearce There not the Burks, adopted, opinion in its unanimous danger go unpun est that DiFrancesco will 15,<’98 justification id. at if appeal ished is dis Tateo, offered in United States v. ten-year imposed missed. terms 463, 466, L.Ed.2d by Judge him Burke valid are and enforce (1964): able, already being and in fact are served. high price It would be a indeed for socie- Moreover, made DiFrancesco has no “volun ty pay every granted were accused tary subjected jeop choice” that has him immunity punishment because ardy for a He second time. faces the risk any defect sufficient to constitute revers- solely anof increased sentence because the proceedings leading ible error in the government desires a second chance ob satisfactory conviction. to it.25 tain Washington, appealing Cf. Arizona increased sentence his conviction. appeal (1978) distinguishes between an Section 3576 (failure conviction, brings to allow retrial before us after mistrial declared necessity” deprive process by propriety because of “manifest society defend- convicted, complete opportunity of its “one to and a review of a sentence. ant laws”; convict government those who have violated its to seek re- The statute allows the States, 166, 160, regard Bozza v. U.S. 330 67 view a to whether of sentence without 645, 649, (1947) (invalid appeal. 91 S.Ct. 818 the defendant has chosen to L.Ed. doing sentence be corrected even if so constitutionally permissible might That it be punishment necessitates increase in because impose as a to consent to sentence review otherwise “no valid and enforceable sentence right to condition to exercise of a defendant’s imposed can be at all” Picard, and a convicted criminal (1st appeal, cf. 446 F.2d 1209 Walsh v. go free). will 1971) (constitutional as to allow increase well as decrease in sentence when defendant government review), question correctly ‍​​​​‌​​‌‌‌‌​‌‌​​​​​‌​‌‌‌‌‌​‌‌‌​​‌​​‌‌​​‌​​‌​​​​​‍petitions 25. The does not a contend decide, here, exposed that DiFrancesco has to an is himself which we need not irrelevant

787 statutory of con- principle’ “This ‘cardinal legiti- deny We the existence of do appropriate only is might struction ... interests that be governmental mate interpretation is an alternative when government ap- by allowing served possible’ language from of the ‘fairly sentence, g., improved uniformity peal a e. Pressley, v. statute. Swain must sentencing. in But such interests be 51 L.Ed.2d 378 n. 97 S.Ct. ways that do not pursued in alternative Benson, v. 285 (1977); Crowell 411 see guaran- amendment’s conflict with the fifth 22, 62, 76 L.Ed. 598 U.S. “[Wjhere [, jeopardy. as tee double Sullivan, (1932); 332 United States appli- is here,] Jeopardy Clause the Double 331, 334, 689, 693, 68 92 L.Ed. S.Ct. U.S. cable, are no sweep its is absolute. There (1948); Shapiro v. United 335 297 balanced, equities to be for the has Clause L.Ed. policy, declared a constitutional based on (1948).” judicial grounds open which are not ex- States, supra, Burks v. United amination.” nor While neither DiFrancesco below, n. at To government the issue this raised subject Eugene DiFrancesco for a second principle” statutory construc- “cardinal range sponte time entire permits risk tion a court cоnsider sua penalties provides sentencing procedures in for his whether Jaw interpreted pol- can so as to crimes would violate that constitutional be §§ question. icy. appeal by Clearly avoid the constitutional there- “fairly possible” such is interpretation fore an must be dismissed. language from of the statute. of conviction are judgments af- a appeal Governmental sentence under firmed, appeal by and the only respect § is available is dismissed. proceeded against in the properly individual “dangerous special district court a of- as HAIGHT, Judge (concurring District 3575(a). To within fender” under come § government’s appeal). the result on the statute, must “spe- the offender be both Judge opinion I affirm- concur Smith’s 3575(e), “danger- cial” as defined § convictions, agree DiFrancesco’s 3575(f). ous” as defined DiFrancesco government’s appeal must be dis- 3575(e)(3).1 qualifies “special” under § However, I would base that if, missed. dis- “dangerous” 3575(f) He is under upon ground missal the non-constitutional if, period longer “a of confinement inapplicability of 18 U.S.C. is provided felony for such re- than that the circumstances of case. this public quired protection conduct the defendant.” further criminal Batchelder,—U.S. (emphasis added). —,—, 3575(b) provides pertinent Section Supreme Court reiterated part: the maxim “that statutes should be con questions,” appears by preponderance

strued avoid constitutional a “If going information, including state: information sub- any jurisdiction, applicable imposes laws of where Con- no such condition. would, did, agreed process require initi- siderations due that a defendant or that he consequence finance, direct, ate, manage, organize, plan, informed of such appeal. part conspiracy of his decision to supervise such or all or or conduct, give or or use receive bribe provides: 1. Section 3575 part of such conduct.” force as all or “(e) special A defendant offender conspiratorial found that the The district court purposes of if— this section which DiFrancesco elements of crimes for was, “(3) felony such com- or the defendant requirements of the satisfied the was convicted of, felony in mitted such furtherance con- statute. A.51-56. persons spiracy with three or more other to engage pattern in a of conduct criminal under ny during felony by the trial of such mitted the underlying equals statute or ex- twenty-five ceeds years, the dangerous so hearing spe- much of sentencing cial offender statute has no presentence report per- office to as the relies form.2 upon, dangerous the defendant ais offender,

special the court shall sentence If that is the proper interpretation to imprisonment for an dangerous special statute, offender it could appropriate not to twenty- term exceed not apply to DiFrancesco. DiFrancesco was years disproportionate five and not in prosecuted under the racketeering statute, severity to maximum term otherwise U.S.C. He was convicted seq. §§ et by felony. authorized law for such Oth- of a substantive offense 1962(c),3 under § erwise it shall sentence the defendant and conspiracy 1962(d).4 under dis- prescribing pen- accordance the law with unquestioned trict court had the power un- felony.” alties for such statute, der underlying entirely without regard the dangerous to special provide I construe the statute to the dis- offender statute, to capacity judge trict with additional to DiFrancesco to two terms, year consecutive 20 for impose up twenty-five a sentence of to total years,5 years longer or 15 underlying statute, years cases where the than the maxi- permitted mum term standing alone, *by a term permit would not 3576. The dis- trict discretionary power court’s conversely, such duration. if the impose Stated to consecutive, concurrent, rather period provided of confinement for the felo- than sen- ordinarily provided legislative history required protect voluminous is 2. The is not on point, public as there but such indications are from further crime him.” Id. at interpretation. favor this ney The Assistant Attor- General, Division, writing to the Criminal phrase “ordinarily provided” I construe the wording Judiciary House on Committee penalties underlying provided mean the 3575(b), point particularly felony statute. “shall” sen- whether the statute should read sentence, part: “may” tence or said in provides: 3. That section “We think that the term ‘shall’ used here any person be unlawful for em- “It shall appropriate. It is guage generally conforms the lan- any enterprise ployed or associated with sentencing provi- used in the in, affect, engaged or of which the activities previously sions of title has commerce, foreign or interstate or to conduct providing been misconstrued as tory for a manda- indirectly, participate, directly con- or Furthermore, minimum sentence. inas- through enterprise’s duct such affairs any much as an offender in of the three racketeering activity pattern collection or categories defined is to be considered ‘dan- debt.” of unlawful gerous’ only when court fínds that a longer prison than term be provides: 4. That section imposed felony of which he has been required protect public convicted is any person “It shall be for unlawful to con- part, from further on his criminal conduct spire any provisions to violate of sub- incongruous would be for the court to fail to (a), (b), (c) sections or of this section.” any prison ‘dangerous’ sentence a offender Therefore, provision term at all. that some part: provides pertinent 5. 18 U.S.C. imposed imprisonment such term of ‘shall’ “(a) any provision of Whoever violates sec- appropriate purposes of the title. If chapter tion 1962 this shall be fined not a court finds that usual maximum term $25,000 imprisoned more than or not more term, felony, any is ail or lesser both, twenty years, or and shall forfeit imposed, should be definition the court (1) any he-has interest danger- could not find the defendant to be a acquired or maintained violation of section special proposed change ous offender. The (2) in, of, any security therefore, ‘may’ interest from ‘shall’ would serve against, purpose.” Cong. property claim no News, or or contractual U.S.Code & Admin. pp. (1970) (emphasis right affording 4065-6 kind a source of influ- added). over, any enterprise ence lished, which he has estab- controlled, conducted, operated, says Report 3575(f): The House of § of, participated in the conduct in violation of (f) provides “Subsection ‘dangerous’ defendant is section 1962.” longer if confinement than that upon tenees defendant convicted on more SMITH, Evelyn G. Administratrix of recognized for than one count has been so Roy Smith, Deceased, Estate Earl long6 may fairly regarded Plaintiff-Appellant, “period inherent in . of confinement provided for felony” by such the underlying sentencing In urging judges statute. DRIVING, EASTERN PILE SEABOARD

impose consecutive sentences where the cir- Denny Buckley Co., and W. INC. R. & & permit, prosecutors Denny cumstances can and fre- Buckley, joint venture, T/A & Defendant-Appellee. arguments (the do quently make same dangerous, public defendant is must be No. Docket 78-7531. protected) dangerous special of- Appeals, Court of States contemplates. fender statute Second Circuit. May 14, Argued 1979. have been made arguments could Such bar, passed in and a sentence case Aug. Decided permitted excess of the maximum underly- the basis entirely on statute, court’s

ing and the district felony power to discretionary im-

well-established separate counts

pose separate sentences on consecutively. run I inter- make them

pret inapplicable 3575 and 3576 to be §§

those circumstances and dismiss ground, leav-

government’s appeal on that question ‍​​​​‌​​‌‌‌‌​‌‌​​​​​‌​‌‌‌‌‌​‌‌‌​​‌​​‌‌​​‌​​‌​​​​​‍for a case in the constitutional

which it cannot be avoided.7 Daugherty, judge’s ability impose 6. See United ence to trial con- (1926), adopting multiple secutive 46 S.Ct. sentences L.Ed. count indict- ments, Neely Congress reasoning surely but v. United must have been (2d 1924), power. 852-3 aware of so established which in turn relied upon DeBara, parte statement Ex my interpretation wrong, If of the statute is 45 L.Ed. 207 question unavoidably and the court, constitutional (1900) by exercising that a such sentenc- presented case, complete this then I am in ing options, “may express its views of crim- agreement Judge scholarly Smith’s inality dem- aof . .” . onstration that the statute violates double legislative history I do not find in the jeopardy clause fifth amendment. special dangerous specific offender act refer-

Case Details

Case Name: United States v. Eugene Difrancesco, United States of America v. Eugene Difrancesco

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 6, 1979

Citation: 604 F.2d 769

Docket Number: 231, 908 and 1094, Dockets 78-1250, 78-1369 and 78-1371

Court Abbreviation: 2d Cir.