Page 1 599 F.3d 184 (Cite as: 599 F.3d 184) 319H Racketeer Influenced and Corrupt Organiza- tions United States Court of Appeals, 319HI Federal Regulation Second Circuit. 319HI(A) In General UNITED STATES of America, Appellee, 319Hk24 Pattern of Activity v. 319Hk26 k. Number of predicate acts. Vincent BASCIANO, also known as Vinny Gor- Most Cited Cases geous, also known as Vinny from the Bronx, De- Where a grand jury has charged a single pattern fendant-Appellant. of racketeering consisting of various predicate acts ascribed to a number of co-defendants, a court Docket No. 09-0281-cr. properly considers all charged predicates in identi- Argued: Oct. 27, 2009. fying the pattern through which the defendants are Decided: March 23, 2010. alleged to have conducted the affairs of an enter- Background: Defendant, previously convicted in prise. two jury trials on charges of conspiratorial and sub- [2] Criminal Law 110 1023(3) stantive racketeering relating to his participation in an organized crime family, and awaiting a third tri- 110 Criminal Law al on charges of substantive racketeering, two 110XXIV Review counts of conspiracy to murder in aid of racketeer- 110XXIV(C) Decisions Reviewable ing, murder in aid of racketeering, and a related 110k1021 Decisions Reviewable firearms charge, moved to dismiss, on double jeop- 110k1023 Appealable Judgments and ardy grounds, the counts charging him with sub- Orders stantive racketeering and conspiracies to murder in 110k1023(3) k. Preliminary or in- aid of racketeering. The United States District terlocutory orders in general. Most Cited Cases Court for the Eastern District of New York, Nich- Pursuant to the collateral order doctrine, Court olas G. Garaufis, J., 2008 WL 4596215, denied the of Appeals had jurisdiction to hear defendant's motion, and defendant appealed. challenge to the denial of his motion to dismiss three counts of his pending indictment. Holdings: The Court of Appeals, Reena Raggi, Cir- cuit Judge, held that: [3] Criminal Law 110 1023(3) (1) counts charging defendant with conspiring to commit two murders in aid of racketeering were 110 Criminal Law legally distinct from those in his prior conviction, 110XXIV Review but 110XXIV(C) Decisions Reviewable (2) double jeopardy barred successive prosecution 110k1021 Decisions Reviewable for substantive racketeering. 110k1023 Appealable Judgments and Orders Affirmed in part, reversed in part, and re- 110k1023(3) k. Preliminary or in- manded with directions. terlocutory orders in general. Most Cited Cases Although Court of Appeals generally lacks jur- West Headnotes isdiction to review rulings before a final judgment [1] Racketeer Influenced and Corrupt Organiza- has been entered, the collateral order doctrine cre- tions 319H 26 ates an exception for the denial of a pre-trial motion © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 599 F.3d 184 (Cite as: 599 F.3d 184) to dismiss criminal charges on double jeopardy closed grounds. U.S.C.A. Const.Amend. 5. 135HV(A) In General 135Hk132 Identity of Offenses; Same Of- [4] Criminal Law 110 1139 fense 135Hk135 k. Proof of fact not required 110 Criminal Law for other offense. Most Cited Cases 110XXIV Review Standard for analyzing whether offenses are the 110XXIV(L) Scope of Review in General same in law, within meaning of the Double Jeop- 110XXIV(L)13 Review De Novo ardy Clause, is the same-elements test established 110k1139 k. In general. Most Cited in Blockburger. U.S.C.A. Const.Amend. 5. Cases Because a double jeopardy challenge presents a [8] Double Jeopardy 135H 151(2) question of law, Court of Appeals' review is de novo. U.S.C.A. Const.Amend. 5. 135H Double Jeopardy 135HV Offenses, Elements, and Issues Fore- [5] Double Jeopardy 135H 5.1 closed 135HV(A) In General 135H Double Jeopardy 135Hk139 Particular Offenses, Identity of 135HI In General 135Hk151 Conspiracy; Racketeering 135Hk5 Prohibition of Multiple Proceedings 135Hk151(2) k. Multiple conspir- or Punishments acies or prosecutions. Most Cited Cases 135Hk5.1 k. In general. Most Cited Cases Indictment counts charging defendant with Double Jeopardy Clause protects against both conspiring to commit two murders in aid of racket- multiple punishments and successive prosecutions eering were legally distinct from those in his prior for the same offense, regardless of whether a first conviction for conspiracy to conduct the affairs of prosecution resulted in conviction or acquittal. an organized crime family through a pattern of U.S.C.A. Const.Amend. 5. racketeering that included murders, and thus were [6] Double Jeopardy 135H 132.1 not barred by the Double Jeopardy Clause; murder conspiracy counts required proof of an agreement 135H Double Jeopardy to commit a violent crime, which was not an ele- 135HV Offenses, Elements, and Issues Fore- ment of the racketeering conspiracy charge. closed U.S.C.A. Const.Amend. 5; 18 U.S.C.A. §§ 135HV(A) In General 1959(a)(5), 1962(d). 135Hk132 Identity of Offenses; Same Of- fense [9] Conspiracy 91 28(3) 135Hk132.1 k. In general. Most Cited 91 Conspiracy Cases 91II Criminal Responsibility In the case of successive prosecutions, critical 91II(A) Offenses inquiry in a double jeopardy analysis is whether the 91k28 Conspiracy to Commit Crime offenses are the same in fact and in law. U.S.C.A. 91k28(3) k. Particular crimes. Most Const.Amend. 5. Cited Cases [7] Double Jeopardy 135H 135 A conviction for conspiracy to murder in aid of racketeering requires proof, inter alia, that the de- 135H Double Jeopardy fendant (1) agreed with others to commit a violent 135HV Offenses, Elements, and Issues Fore- crime-either murder or kidnapping, or maiming or © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 599 F.3d 184 (Cite as: 599 F.3d 184) specified assaults-and (2) entered into that agree- 319Hk34 k. In general. Most Cited ment for the purpose of gaining entrance to or Cases maintaining or increasing position in an enterprise To convict a defendant of racketeering, govern- engaged in racketeering activity; purpose element ment must prove, at a minimum, the existence of an may also be satisfied by proof that the crime was enterprise and a related pattern of racketeering committed as consideration for the payment or activity. 18 U.S.C.A. § 1962(c). promise of anything of pecuniary value from a racketeering enterprise. 18 U.S.C.A. § 1959(a). [12] Double Jeopardy 135H 151(1) [10] Conspiracy 91 28(3) 135H Double Jeopardy 135HV Offenses, Elements, and Issues Fore- 91 Conspiracy closed 91II Criminal Responsibility 135HV(A) In General 91II(A) Offenses 135Hk139 Particular Offenses, Identity of 91k28 Conspiracy to Commit Crime 135Hk151 Conspiracy; Racketeering 91k28(3) k. Particular crimes. Most 135Hk151(1) k. In general. Most Cited Cases Cited Cases A conviction for conspiracy to conduct a rack- For successive substantive racketeering prosec- eteering enterprise requires proof, inter alia, that a utions to place a defendant twice in jeopardy for the defendant agreed with others (1) to conduct the af- same offense, both the enterprise and the pattern of fairs of an enterprise (2) through a pattern of rack- racketeering activity at issue in the two cases must eteering; conduct prong requires only that conspir- be the same; if either is different, there is no infirm- ators reached a meeting of the minds as to the oper- ity under the Double Jeopardy Clause. U.S.C.A. ation of the affairs of the enterprise through a pat- Const.Amend. 5; 18 U.S.C.A. § 1962(c). tern of racketeering conduct. 18 U.S.C.A. § 1962(d) . [13] Racketeer Influenced and Corrupt Organiz- ations 319H 28 [11] Racketeer Influenced and Corrupt Organiz- ations 319H 25 319H Racketeer Influenced and Corrupt Organiza- tions 319H Racketeer Influenced and Corrupt Organiza- 319HI Federal Regulation tions 319HI(A) In General 319HI Federal Regulation 319Hk24 Pattern of Activity 319HI(A) In General 319Hk28 k. Continuity or relatedness; 319Hk24 Pattern of Activity ongoing activity. Most Cited Cases 319Hk25 k. In general. Most Cited Cases Racketeer Influenced and Corrupt Organiza- tions 319H 49 Racketeer Influenced and Corrupt Organiza- tions 319H 34 319H Racketeer Influenced and Corrupt Organiza- tions 319H Racketeer Influenced and Corrupt Organiza- 319HI Federal Regulation tions 319HI(A) In General 319HI Federal Regulation 319Hk49 k. Nexus between enterprise and 319HI(A) In General acts. Most Cited Cases 319Hk33 Enterprise To constitute the pattern required in a substant- © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 599 F.3d 184 (Cite as: 599 F.3d 184) ive racketeering case, the underlying predicate acts ations 319H 25 must be related, both to each other (horizontal re- latedness) and to the enterprise (vertical related- 319H Racketeer Influenced and Corrupt Organiza- ness), and must threaten continuous criminal activ- tions ity. 18 U.S.C.A. § 1962(c). 319HI Federal Regulation 319HI(A) In General [14] Racketeer Influenced and Corrupt Organiz- 319Hk24 Pattern of Activity ations 319H 49 319Hk25 k. In general. Most Cited Cases 319H Racketeer Influenced and Corrupt Organiza- tions Racketeer Influenced and Corrupt Organiza- 319HI Federal Regulation tions 319H 34 319HI(A) In General 319Hk49 k. Nexus between enterprise and 319H Racketeer Influenced and Corrupt Organiza- acts. Most Cited Cases tions Relatedness and continuity of the underlying 319HI Federal Regulation predicate acts, as required in a prosecution for sub- 319HI(A) In General stantive racketeering, can be established simply by 319Hk33 Enterprise connecting diverse predicate acts to an enterprise 319Hk34 k. In general. Most Cited whose business is racketeering activity, such as an Cases organized crime family. 18 U.S.C.A. § 1962(c). Enterprise and pattern are distinct elements of racketeering. 18 U.S.C.A. § 1961 et seq.