754 F.

2d 927

UNITED STATES of America, Plaintiff-Appellee,

v.
Benjamin RUGGIERO and John Cerasani, DefendantsAppellants.
No. 83-3750.

United States Court of Appeals,

Eleventh Circuit.
March 5, 1985.

Charles R. Wilson, Tampa, Fla., for Ruggiero.

Michael Young, New York City, for Cerasani.
William C. Bryson, Sidney M. Glazer, Dept. of Justice, Washington, D.C.,
for United States.
Appeal from the United States District Court for the Middle District of
Florida.
Before KRAVITCH and HENDERSON, Circuit Judges, and ATKINS, *
District Judge.
KRAVITCH, Circuit Judge:

In late 1982, appellants Benjamin Ruggiero and John Cerasani were prosecuted
in the United States District Court for the Southern District of New York for
substantive and conspiracy violations of the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. Secs. 1962(c) and (d). Ruggiero was
convicted of conspiring to violate RICO, but was acquitted of the substantive
RICO count. He was sentenced to fifteen years in prison. Cerasani was
acquitted on both counts.

In early 1983, the indictment in the instant case was returned in the United
States District Court for the Middle District of Florida, and the appellants again
were charged with substantive and conspiracy RICO violations. The appellants

moved to dismiss the Florida indictment on the grounds of double jeopardy.

Their motion was denied, and this appeal ensued.
3

The appeal presents an issue of first impression in this circuit: How to define
the scope of a RICO violation for double jeopardy purposes. We conclude that
the substantive and conspiracy RICO violations charged in the Florida
indictment are distinct from those for which the appellants previously were
prosecuted in New York, and therefore hold that the appellants are not entitled
to a dismissal of the Florida indictment on the grounds of double jeopardy. We
also hold that the doctrine of collateral estoppel does not require the dismissal
of the charges against Cerasani in the Florida indictment.

I. BACKGROUND
A. The New York Indictment
4

The New York indictment, which was returned on July 7, 1982,1 charged the
appellants and eight others with conspiring to violate RICO, and the appellants
and seven others with substantive violations of RICO, in connection with the
activities of the so-called "Bonnano Family" of La Cosa Nostra, also known as
the Mafia.2 The indictment alleged the occurrence of numerous illegal activities
between 1974 and July, 1982, including:

(1) the murders of Alphonse Indelicato, Philip Giaccone, and Dominick

Trinchera, three "captains" of the Bonnano Family who were seeking to wrest
control of the family away from two other "captains," Dominick Napolitano
and Joseph Messina;3

(2) a conspiracy to murder Anthony "Bruno" Indelicato, Alphonse's son;

(3) the receipt, storage, and resale of a truckload of stolen tuna fish;

(4) the theft of a tractor-trailer containing clothing and other freight;

(5) the attempted robbery of the occupants of an apartment belonging to the

sister of the Shah of Iran;

10

(6) a conspiracy to rob the Landmark Union Trust Bank in St. Petersburg,
Florida;

11

(7) a conspiracy to rob the Pan Am Credit Union in Rockleigh, New Jersey;

11

(7) a conspiracy to rob the Pan Am Credit Union in Rockleigh, New Jersey;

12

(8) a conspiracy to rob the occupants of the Galerie Des Monies in New York;

13

(9) the possession and distribution of methaqualone in the Eastern and Southern
Districts of New York; and

14

(10) the operation of an illegal sports and numbers gambling business.

15

The indictment alleged that Ruggiero conspired to commit the four murders and
to distribute methaqualone in the Eastern District of New York, and that he
actually participated in the murders of Alphonse Indelicato, Giaccone, and
Trinchera. Cerasani was named as a conspirator in the two truck thefts and all
of the robberies except the robbery of the Landmark Union Trust Bank, the
distribution of methaqualone in the Eastern District of New York, and the
operation of the illegal gambling business, and as an actual participant in the
two truck thefts, the attempted robbery of the apartment belonging to the sister
of the Shah of Iran, the distribution of methaqualone in the Eastern District of
New York, and the operation of the illegal gambling business.

16

Ruggiero was convicted of conspiring to violate RICO, but was acquitted on

the substantive RICO count. He was sentenced to fifteen years in prison. His
RICO conspiracy conviction was affirmed on appeal. See United States v.
Ruggiero, 726 F.2d 913 (2d Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 118, 83
L.Ed.2d 60 (1984). Cerasani was acquitted on both counts.
B. The Florida Indictment

17

The Florida indictment, which was returned on March 31, 1983, charged the
appellants and ten others with conspiring to violate RICO, and the appellants
and nine others with substantive violations of RICO, in connection with the
activities of a loose-knit enterprise composed of members of several La Cosa
Nostra "families." The enterprise included members of the "Trafficante
Family," the "Luchese Family," the "Gambino Family," the "Chicago Outfit,"
and the "Bonnano Family."4 The indictment alleged the occurrence of
numerous illegal activities between March, 1979, and November, 1981,
including:

18

(1) the operation of an illegal gambling business at an apartment in Port Richey,

Florida;

19

(2) the operation of an illegal gambling business at the Kings Court Club in
Holiday, Florida;

20

(3) a conspiracy to operate an illegal gambling business at the Ridgerunner

Club in Port Richey, Florida;

21

(4) a conspiracy to maintain an illegal gambling facility in the Middle District

of Florida;

22

(5) the operation of an illegal sports bookmaking business;

23

(6) travelling in interstate commerce to facilitate the operation of an illegal

gambling business;

24

(7) the extortion of money from one Sylvester Hutchins;

25

(8) a conspiracy to interfere with commerce by extorting money from persons

and organizations engaged in the private sanitation industry on the west coast of
Florida;

26

(9) a conspiracy to collect debts by violent means and by threats of violence;

27

(10) a conspiracy to obtain through bribery a license to operate a parimutuel

dog track in Pasco County, Florida;

28

(11) a conspiracy to rob the Landmark Union Trust Bank in St. Petersburg,
Florida;

29

(12) a conspiracy to possess, sell, and distribute marihuana, cocaine, and heroin;

30

(13) a conspiracy to obstruct justice by paying bribes to the captain of the Pasco
County, Florida, Sheriff's Office; and

31

(14) the obstruction of justice by giving false testimony before a federal grand
jury.

32

The indictment alleged that Ruggiero conspired to operate the illegal gambling
business at the Kings Court Club, to operate the illegal sports bookmaking
business, to maintain the illegal gambling facility in the Middle District of

Florida, to travel in interstate commerce to facilitate the operation of an illegal

gambling business, to obtain through bribery the license to operate the
parimutuel dog track in Pasco County, to rob the Landmark Union Trust Bank,
and to possess, sell, and distribute marihuana, cocaine, and heroin, and that he
actually travelled in interstate commerce to facilitate an illegal gambling
business and participated in the operation of the illegal gambling business at the
Kings Court Club. Cerasani allegedly conspired to rob the Landmark Union
Trust Bank and to possess, sell, and distribute marihuana, cocaine, and heroin.
C. The Proceedings Below
33

On July 15, 1983, the appellants filed a motion to dismiss the Florida
indictment on the grounds of double jeopardy. The district court conducted a
hearing and, on December 6, 1983, denied the motion. The appellants then filed
a notice of appeal. On December 15, 1983, the court ruled that the appellants'
double jeopardy claim was non-frivolous and, in accordance with United States
v. Dunbar, 611 F.2d 985, 988 (5th Cir.) (en banc ), cert. denied, 447 U.S. 926,
100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980),5 continued the trial date until the
merits of the claim could be resolved by this court on appeal.

II. RICO AND DOUBLE JEOPARDY

34

The Double Jeopardy Clause of the Fifth Amendment provides: "[N]or shall
any person be subject for the same offense to be twice put in jeopardy of life or
limb...." U.S. Const. amend. V. The Supreme Court has emphasized that the
Double Jeopardy Clause protects a person not only against being twice
convicted of the same offense, but also against being twice put to trial for the
same offense. See Abney v. United States, 431 U.S. 651, 660-61, 97 S.Ct.
2034, 2041, 52 L.Ed.2d 651 (1977). Therefore, we must dismiss the Florida
indictment if we find that the indictment charges the appellants with the same
offenses for which they previously were prosecuted in New York.6

35

Our task is made more difficult by the peculiar nature of the RICO statute. The
subsection of RICO that the appellants are charged with violating and
conspiring to violate,7 18 U.S.C. Sec. 1962(c), provides:

36 It shall be unlawful for any person employed by or associated with any enterprise
(c)
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.
37

Unlike most criminal statutes, subsection 1962(c) deals not with clearly

distinguishable discrete acts, but with ongoing criminal activity. At the same
time, subsection 1962(c) differs from most other criminal statutes dealing with
ongoing criminal activity. Such statutes generally prohibit participation in a
particular kind of criminal venture. See, e.g., 18 U.S.C. Sec. 1955 ("Whoever
conducts, finances, manages, supervises, directs, or owns all or part of an
illegal gambling business shall be fined not more than $20,000 or imprisoned
not more than five years, or both."); 21 U.S.C. Sec. 848 ("Any person who
engages in a continuing criminal enterprise shall be sentenced to a term of
imprisonment which may not be less than 10 years and which may be up to life
imprisonment...."). Thus, under such statutes, a potential double jeopardy
problem arises whenever a defendant is charged twice with participating in the
same criminal venture during the same period of time. See Sanabria v. United
States, 437 U.S. 54, 69-74, 98 S.Ct. 2170, 2181-84, 57 L.Ed.2d 43 (1978)
(defendant may be prosecuted only once under 18 U.S.C. Sec. 1955 for
participating in an illegal gambling business during given period of time, even
if the illegal gambling business violated more than one criminal statute).
38

Subsection 1962(c), on the other hand, prohibits participation in an enterprise

"through a pattern of racketeering activity." The "pattern of racketeering
activity" is a separate element of the RICO offense, distinct from both the
existence of the enterprise and the participation of the individual in the
enterprise. See United States v. Phillips, 664 F.2d 971, 1011 (5th Cir. Unit B
1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). 8
Because of this separate element, an individual may be prosecuted for more
than one violation of subsection 1962(c) in connection with the same
enterprise, so long as each violation involved a different "pattern of
racketeering activity." See United States v. Russotti, 717 F.2d 27, 33 (2d
Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1273, 79 L.Ed.2d 678 (1984);
United States v. Dean, 647 F.2d 779, 787 (8th Cir.1981), modified on other
grounds, 667 F.2d 729 (8th Cir.) en banc, cert. denied, 456 U.S. 1006, 102
S.Ct. 2296, 73 L.Ed.2d 1300 (1982).

39

The crucial inquiry in this case, therefore, is whether the activities set out in the
New York and Florida indictments constitute one "pattern of racketeering
activity" or two different "pattern[s]."9 Although we have not conducted this
kind of inquiry before, we do not write on an entirely clean slate. Both the
Eighth Circuit, in Dean, and the Second Circuit, in Russotti, addressed double
jeopardy claims raised by defendants who had been charged with multiple
RICO violations.10 The Dean and Russotti courts considered the following five
factors in determining whether the indictments charged the existence of one
"pattern of racketeering activity" or two different "pattern[s]":

40 whether the activities that allegedly constituted two different RICO "pattern[s]"
(1)
occurred during the same time periods;
(2) whether the activities occurred in the same places;
41
(3) whether the activities involved the same persons;
42
(4) whether the two indictments alleged violations of the same criminal statutes; and
43
44 whether the overall nature and scope of the activities set out in the two
(5)
indictments were the same.
45

See Russotti, 717 F.2d at 33; Dean, 647 F.2d at 788. These five factors are
modified versions of the factors long used to determine whether multiple
indictments charge the existence of one or several conspiracies. See United
States v. Marable, 578 F.2d 151, 154 (5th Cir.1978); Arnold v. United States,
336 F.2d 347, 350 (9th Cir.1964), cert. denied, 380 U.S. 982, 85 S.Ct. 1348, 14
L.Ed.2d 275 (1965); Short v. United States, 91 F.2d 614, 619-20 (4th
Cir.1937).11

46

We are persuaded that these five factors constitute an appropriate method for
determining whether multiple RICO indictments allege the existence of one
"pattern of racketeering activity" or several "pattern[s]." In this regard, we agree
with the following observations of the Dean court:

47RICO charge focusses upon the "pattern" formed by a number of unlawful acts,
A
while a conspiracy charge focusses upon the agreement formed by persons to do
unlawful acts. Thus, a RICO charge, like a conspiracy charge, focusses upon a
relation between various elements of criminal activity rather than a single criminal
act. Determination in a given case of the number of patterns or agreements requires
examination of the four corners of the charges. The cases have employed five
factors to make this determination in conspiracy cases, and similar factors appear to
us relevant in the RICO context....
48

647 F.2d at 788; see Tarlow, RICO: The New Darling of the Prosecutor's
Nursery, 49 Fordham L.Rev. 165, 257-259 (1980) ("The practical approach to
multiple conspiracy indictments should affect cases involving separate section
1962(c) indictments.").12 We also agree with the Russotti court that the fifth
factor, which involves a comparison of the overall nature and scope of the
activities set out in the two indictments, is the most important factor. See
Russotti, 717 F.2d at 34. We therefore proceed to apply the five factors to the
indictments involved in this case.

49

Applying the first factor, we find a significant overlap in the time periods
covered by the two indictments. The New York indictment included activities
that occurred between 1974 and July, 1982, and the Florida indictment included
activities that occurred between March, 1979, and November, 1981. Thus, the
time period covered by the Florida indictment fits completely within the time
period covered by the New York indictment.

50

The second and third factors, however, involve only minor overlaps. The
activities set out in the two indictments generally occurred in different places.
The activities in the New York indictment primarily occurred in New York and
New Jersey, and the activities in the Florida indictment primarily occurred in
Florida. The only geographic overlap is created by the reference in both
indictments to the conspiracy to rob the Landmark Union Trust Bank in St.
Petersburg, Florida. The activities set out in the two indictments also generally
involved different persons. In fact, the only persons named in both indictments
are the appellants.

51

The fourth factor also involves only a minor overlap in the two indictments.
The New York indictment involved the underlying statutory crimes of murder
(New York law), theft (18 U.S.C. Secs. 2315 and 659), robbery (New York,
New Jersey, and Florida law), possession and distribution of methaqualone (21
U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(A)), and gambling (New York law
and 18 U.S.C. Sec. 1955). The Florida indictment involved the underlying
statutory crimes of gambling (Florida law and 18 U.S.C. Sec. 1955), bribery
(Florida law), obstruction of law enforcement (18 U.S.C. Sec. 1511),
interference with commerce (18 U.S.C. Sec. 1951), interstate travel in aid of a
racketeering enterprise (18 U.S.C. Sec. 1952), extortion (18 U.S.C. Sec. 894),
obstruction of justice (18 U.S.C. Sec. 1503), robbery (Florida law), and
possession and distribution of controlled substances (21 U.S.C. Secs. 841(a)(1)
and 846). Thus, the two indictments overlap only in their references to the
federal drug statutes, 21 U.S.C. Secs. 841 and 846, the federal gambling statute,
18 U.S.C. Sec. 1955, and the Florida robbery statute.

52

Finally, we find no overlap in the fifth and most important factor. The New
York indictment, viewed in its totality, involved the efforts of the "Bonnano
Family" to establish and maintain a criminal empire in the New York/New
Jersey area. The Florida indictment, on the other hand, involved a "joint
venture" by members of several La Cosa Nostra families to conduct various
criminal activities on the west coast of Florida. We find this distinction in the
overall nature and scope of the activities set out in the indictments more than
sufficient, in this case, to outweigh the overlaps in connection with the other
factors.

53

On balance, then, we conclude that the New York and Florida indictments
charged the existence of two different "pattern[s] of racketeering activity." In
view of this conclusion, the presence of one particular "racketeering act" in both
indictments, namely, the conspiracy to rob the Landmark Union Trust Bank in
St. Petersburg, Florida, is not significant. We see no reason why one
"racketeering act" may not be a part of two different "pattern[s] of racketeering
activity."13 The Double Jeopardy Clause protects a person against successive
prosecutions for the same crime, not against successive prosecutions for two
different crimes that happen to include the same underlying act.14

54

Like the Dean and Russotti courts, we are mindful of the Supreme Court's
admonition that "[t]he Double Jeopardy Clause is not such a fragile guarantee
that prosecutors can avoid its limitations by the simple expedient of dividing a
single crime into a series of temporal and spatial units." Brown v. Ohio, 432
U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977). We also recognize
that the RICO statute is susceptible to abuse in the hands of overzealous
prosecutors. See Russotti, 717 F.2d at 34 & n. 4; Tarlow, RICO: The New
Darling of the Prosecutor's Nursery, 49 Fordham L.Rev. 165, 259 n. 505
(1980). Nevertheless, we perceive no such abuse in this case. Here, the
appellants engaged in two fundamentally different "pattern[s]" of criminal
conduct. Hence, the Florida indictment did not charge the appellants with the
same offenses for which they previously were prosecuted in New York, and the
appellants' motion to dismiss properly was denied.15III. COLLATERAL
ESTOPPEL

55

Appellant Cerasani also contends that the doctrine of collateral estoppel

requires the dismissal of the charges against him in the Florida indictment. It is
true that, in criminal cases, the doctrine of collateral estoppel is a corollary of
the Double Jeopardy Clause. See Ashe v. Swenson, 397 U.S. 436, 445-46, 90
S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). The doctrine, however, requires the
dismissal of charges against an individual only if, in order to prove those
charges, the government must relitigate an issue of ultimate fact that necessarily
was resolved in favor of the individual in a previous trial. See Russotti, 717
F.2d at 35. The crucial issue is "whether a rational jury could have grounded its
verdict upon an issue other than that which the defendant seeks to foreclose
from consideration." Ashe, 397 U.S. at 444, 90 S.Ct. at 1194; see Russotti, 717
F.2d at 35.

56

The doctrine does not apply to the instant case because there is no issue of
ultimate fact raised by the Florida indictment that necessarily was resolved in
favor of Cerasani in the New York trial. Cerasani's previous acquittal could
have been based on the jury's conclusion that, although Cerasani was an active

member of the "Bonnano Family," he did not participate in the particular

"pattern of racketeering activity" set out in the New York indictment. The
Florida indictment, on the other hand, charges the existence of a different
"pattern of racketeering activity." Thus, in the words of the Russotti court, "at
this stage of the proceedings, we fail to see any indication of an attempt by the
government 'to persuade a second jury of the same fact already litigated' in
defendants' favor." 717 F.2d at 35 (quoting United States v. Mespoulede, 597
F.2d 329, 335 (2d Cir.1979)); see also United States v. Boffa, 513 F.Supp. 444,
483 (D.Del.1980) ("A fortiori the jury could have reached its decision to acquit
without resolving any of the present issues in favor of the defendant.
Consequently, the doctrine of collateral estoppel does not require dismissal of
any portion of the present Indictment."). We hold that Cerasani is not entitled to
a dismissal of the charges against him in the Florida indictment under the
doctrine of collateral estoppel.
IV. CONCLUSION
57

For the foregoing reasons, the order of the district court denying the appellants'
motion to dismiss the indictment is AFFIRMED.

Honorable C. Clyde Atkins, U.S. District Judge for the Southern District of
Florida, sitting by designation

The indictment superseded indictments filed on November 23, 1981, and

March 25, 1982

The indictment also charged three individuals with possession and distribution
of methaqualone, 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(A), and
conspiring to possess and distribute methaqualone, 21 U.S.C. Sec. 846. Neither
of the appellants were charged with the methaqualone offenses

The evidence at trial revealed that Ruggiero was a member of the "crew"
captained by Napolitano. Neither Napolitano nor Messina appeared for trial,
and Napolitano later was found murdered

The indictment alleged that Santo Trafficante, Jr., the head of the "Trafficante
Family," agreed to permit the members of the other families to engage in
criminal activities on the west coast of Florida in return for a percentage of the
profits derived from those activities

The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former

Fifth Circuit rendered prior to October 1, 1981

6

In Abney, the Supreme Court held that "pretrial orders rejecting claims of
former jeopardy ... constitute 'final decisions' and thus satisfy the jurisdictional
prerequisites of Sec. 1291." 431 U.S. at 662, 97 S.Ct. at 2042. Thus, we have
jurisdiction to hear this appeal although the appellants have not yet been placed
on trial under the Florida indictment

The charge of conspiring to violate RICO arises under 18 U.S.C. Sec. 1962(d),
which provides:
(d) It shall be unlawful for any person to conspire to violate any of the
provisions of subsections (a), (b), or (c) of this section.

Decisions of the former Fifth Circuit, Unit B, rendered after September 30,
1981, are binding precedent in this circuit. Stein v. Reynolds Securities, Inc.,
667 F.2d 33, 34 (11th Cir.1982)

Although each indictment contained both a substantive RICO charge and a

conspiracy RICO charge, we need not compare the substantive and conspiracy
charges separately. It is apparent that, in each indictment, both the substantive
and conspiracy RICO charges were based on the same underlying "pattern of
racketeering activity." Therefore, we may compare the indictments as a whole
in order to determine whether the underlying "pattern[s] of racketeering
activity" were the same or different

10

In Dean, the defendant, an Arkansas county judge, was charged in two

indictments with two substantive RICO violations, 18 U.S.C. Sec. 1962(c), and
thirty-six violations of the Travel Act, 18 U.S.C. Sec. 1952. The first RICO
violation involved actual and fictitious county purchases of corrugated metal
culverts and other items from a supplier who paid kickbacks to the defendant.
The second RICO violation involved county purchases of diesel fuel additives,
gasoline additives, motor oil, and other automotive products from a different
supplier who also paid kickbacks to the defendant. The defendant was tried and
convicted on all counts
On appeal, the Eighth Circuit reversed and remanded the case for a new trial
because one of the jurors was biased against the defendant. Dean, 647 F.2d at
785. The court also, however, rejected the defendant's contention that his
conviction on both RICO counts violated the Double Jeopardy Clause. Id. at
785-89. On rehearing, the en banc court held that the defendant had waived the
issue of juror bias, and affirmed the convictions. Dean, 667 F.2d at 734.
In Russotti, four defendants were indicted for substantive and conspiracy RICO

offenses, 18 U.S.C. Secs. 1962(c) and (d). Two of the defendants had been tried
and acquitted of substantive and conspiracy RICO charges some five years
earlier. The two defendants filed motions to dismiss the indictment based on,
inter alia, the Double Jeopardy Clause and the doctrine of collateral estoppel.
The district court denied the motions to dismiss, and the Second Circuit
affirmed. Russotti, 717 F.2d at 35.
11

The five factors, as applied to multiple conspiracy indictments, include:

(1) the time periods during which the events alleged to be part of the
conspiracies occurred;
(2) the places where the events occurred;
(3) the persons acting as coconspirators;
(4) the statutory offenses charged in the indictments; and
(5) the overt acts or any other description of the offense charged that indicates
the nature and scope of the activity that the government sought to punish in
each case.
See Marable, 578 F.2d at 154.

12

Although subsection 1962(c) is not a conspiracy statute, we find it to be

sufficiently similar to allow the use of the same five factors for double jeopardy
analysis. In particular, although the search for one or more conspiratorial
"agreements" may differ in some respects from the search for one or more
RICO "pattern[s]," this court's predecessor has discussed the multiple
conspiracy issue in terms perfectly applicable to RICO:
The evidence discloses that the unlawful agreement pursuant to which the
conspirators acted was but a single agreement to deal in drugs. It cannot be
separated into dual conspiracies under Section 846 to distribute cocaine and
heroin without offending the Double Jeopardy Clause. When the events of the
alleged heroin conspiracy are overlaid with those of the cocaine conspiracy,
there emerges not two discrete patterns of activity but a single design with the
events most important in each case appearing at crucial and common junctures.
Marable, 578 F.2d at 155-56 (emphasis added).

13

By way of comparison, we note that one "overt act" can be in furtherance of

two different conspiracies. For example, A might purchase a gun for the dual
purposes of (1) committing a bank robbery pursuant to a conspiracy with B and

C, and (2) committing a murder pursuant to a different conspiracy with X and

Y. The presence of the same overt act, the purchase of the gun, in separate
indictments for the two conspiracies certainly would not create a double
jeopardy problem
14

For similar reasons, we reject the appellants' contention that the Double
Jeopardy Clause was offended by the introduction, at the New York trial, of
evidence relating to some of the activities later set out in the Florida indictment.
This contention would have merit only if the evidence at the New York trial
revealed that the "pattern of racketeering activity" was broader in scope than
alleged in the indictment. Upon reviewing the excerpts from the New York trial
contained in the record on appeal in this case, we conclude that the challenged
evidence primarily was offered to explain how the government's witnesses,
who had infiltrated the criminal enterprise in Florida, had obtained their
information. We find no indication, either in the trial excerpts or in the Second
Circuit's opinion on appeal, that the "pattern of racketeering activity" was
broadened at trial to include the activities set out in the Florida indictment. In
fact, the one "racketeering act" contained in both indictments, the conspiracy to
rob the Landmark Union Trust Bank in St. Petersburg, Florida, was not even
submitted to the jury at the New York trial

15

The government also contends that the New York and Florida indictments
involved two different RICO "enterprises." According to the government, the
New York indictment involved a group of persons affiliated with the "Bonnano
Family," and the Florida indictment involved a basically different group of
persons affiliated with several La Cosa Nostra families
It is true that Congress gave the term "enterprise" under the RICO statute an
extremely broad definition, see United States v. Thevis, 665 F.2d 616, 625 (5th
Cir.), cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982), and
that "any union or group of individuals associated in fact," whether legitimate
or illegitimate, can constitute a RICO "enterprise," see United States v.
Turkette, 452 U.S. 576, 580-81, 101 S. Ct. 2524, 2527, 69 L.Ed.2d 246 (1981).
Furthermore, multiple RICO indictments involving truly different "enterprises"
pose no double jeopardy problem, even assuming that the indictments allege
only one "pattern of racketeering activity." See Russotti, 717 F.2d at 33 ("[I]n
order for the present indictment to give rise to a valid claim of double jeopardy,
both the enterprise and the pattern of activity alleged in the [previous]
indictment must be the same as those alleged in the [present] indictment."
(emphasis in original)). The problem is in determining whether two RICO
"enterprises" are truly different for double jeopardy purposes. See Tarlow,
RICO: The New Darling of the Prosecutor's Nursery, 49 Fordham L. Rev. 165,
258-59 & n. 505 (1980). Eventually, courts may find it necessary to devise a

method, perhaps similar to the one we employ today to compare RICO

"pattern[s]," for determining whether two RICO "enterprises" are the same or
different. We need not address the issue here, however. Because we find that
the New York and Florida indictments charged the existence of two different
"pattern[s] of racketeering activity," it is immaterial whether the indictments
also alleged the existence of two different RICO "enterprises."