United States v. DeCologero

United States Court of Appeals
For the First Circuit

No. 03-1442, 03-1443

UNITED STATES OF AMERICA,

Appellee/Cross-Appellant,

v.

PAUL DeCOLOGERO, a/k/a Big Paul, a/k/a Paulie,

Defendant-Appellant/Cross-Appellee.
__________

JOHN P. DeCOLOGERO, JR., a/k/a Little John, a/k/a John-John,
PAUL J. DeCOLOGERO, a/k/a Young Paul,
DEREK CAPOZZI,
JOSEPH F. PAVONE,
DANIEL G. TSOUKALAS,

Defendants/Cross-Appellees,

and

IN RE: UNITED STATES OF AMERICA, Petitioner.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.
 Janice Bassil, by appointment of the court, with whom Andrew
D'Angelo and Carney & Bassil, P.C. were on brief for Paul
DeCologero, a/k/a Big Paul, Paulie.
Timothy Q. Feeley, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, Christopher F. Bator
and Ernest S. DiNisco, Assistant United States Attorneys, were on
brief and petition for a writ of mandamus for the United States.
Joan M. Griffin, by appointment of the court, with whom Cooke,
Clancy & Gruenthal, LLP and Paul F. Markham were on brief for John
P. DeCologero, Jr. and Joseph F. Pavone.
Roger Witkin, by appointment of the court, on brief for Paul
J. DeCologero, a/k/a Young Paul.
Terrance J. McCarthy, by appointment of the court, on brief
for Derek Capozzi.

April 12, 2004
 BOUDIN, Chief Judge. Before us are a pair of

interlocutory appeals in a criminal case. Both grow out of a 23-

count federal indictment filed on October 17, 2001, charging Paul

A. DeCologero and six associates with criminal racketeering in

violation of the Racketeer Influenced and Corrupt Organization Act

("RICO"), 18 U.S.C. § 1962(c) (2000),1 conspiracy to violate RICO,

id. § 1962(d) and an array of related crimes. We refer to Paul A.

DeCologero as "DeCologero" even though several co-defendants have

the same last name.

The government alleged that DeCologero headed a criminal

enterprise ("the DeCologero crew") that used brutal tactics to gain

control of a portion of Boston's drug trade and murdered a

nineteen-year-old woman (Aislin Silva) when the members thought she

might betray them. In addition to the RICO counts, the indictment

specified a number of federal crimes charged in separate counts

involving drugs, guns, robberies, and--in the case of the slain

woman--murder for the purpose of witness tampering.

1
18 U.S.C. § 1962(c) provides:

It shall be unlawful for any person employed
by or associated with any enterprise engaged
in, or the activities of which affect,
interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the
conduct of such enterprise's affairs through
a pattern of racketeering activity or
collection of unlawful debt.

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 RICO violations require not only participation in a

criminal enterprise but also participation in a "pattern of

racketeering activity," which in turn requires proof of at least

two of a list of specified federal or state crimes (e.g., murder,

extortion, robbery, drug trafficking). 18 U.S.C. §§ 1961(1), (5)

(2000). In jargon, such acts are called "predicate acts" or

"racketeering acts" ("RAs"), and, in this indictment, a number of

the acts charged as federal crimes in separate counts of the

indictment were restated as RAs in support of the RICO counts. A

table listing the RAs is attached to this decision.

Nominally the indictment identified fourteen separate

RAs, but several had subparts, each constituting a sufficient

predicate act under RICO; for example, the attempted and ultimately

successful murder of the woman was expressed in RA 1 as five

separate crimes (e.g., subpart 1 was conspiracy to murder under

state law, subpart 2 was attempt to murder under state law). The

indictment thus effectively contained thirty-eight predicate acts

only partly overlapping with the substantive counts because some

counts were not RAs and some RAs (e.g., state crimes) were not

counts. Different defendants were implicated in different RAs;

only Paul A. DeCologero was implicated in all.

Four years before the present indictment was filed,

DeCologero had been acquitted of RICO violations in United States

v. Carrozza, Crim. No. 97-40009-NMG (D. Mass. 1999). Following the

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present indictment, DeCologero moved to dismiss the new RICO

charges against him (and one drug conspiracy count) on double

jeopardy grounds. The district court rejected this claim, finding

that the RICO violations alleged in Carrozza were different than

those charged in the current case. DeCologero now appeals from

this ruling under 28 U.S.C. § 1291 (2000), the denial of a double

jeopardy defense being immediately appealable. Abney v. United

States, 431 U.S. 651, 662 (1977).

At one of the pre-trial hearings, the district court had

expressed concern that the scope of the case--the number of counts,

RAs and criminal offenses--made "charging a jury and having them

understand virtually impossible." Then, in an oral ruling at a

further conference, the district court without further explanation

sua sponte divided the case (as described immediately below) into

two separate trials. On motion by the government for

reconsideration, the court entered a written order adhering to the

separation, saying:

[I]t is necessary to divide this case into
separate trials, pursuant to this Court's
inherent "authority and responsibility for
managing . . . trials before it so as to
protect the interests of the parties and the
public in just determination of a criminal
proceeding with 'simplicity in procedure,
fairness in administration and the elimination
of unjustifiable expense and delay.'" United
States v. Shea, 750 F. Supp. 46, 49 (D. Mass.
1990) (quoting Fed. R. Crim. P. 2).

-5-
 The district court's ruling divided the charges in the

indictment into two separate trials, ordering that three

substantive counts involving robberies and unlawful possession of

firearms be postponed until a second trial at some unspecified

date.2 Further, the court ordered that four of the fourteen

racketeering acts that the government included as predicate acts

for the RICO charges be postponed until this second trial. See

attached chart. This left ten RAs and seventeen substantive counts

for the first trial (the government had voluntarily dismissed three

firearms counts).

The government then filed a cross-appeal from the court's

decision to postpone four of the RAs until a later trial, arguing

that this order effectively dismissed and foreclosed the four

postponed RAs since double jeopardy doctrine would prevent the

government from bringing RICO charges based on these RAs in a later

trial. Alternatively, the government said that the order exceeded

the district court's case management authority. The district court

stayed trial pending the resolution of the appeals.

Before us now are three difficult questions: the merits

of DeCologero’s double jeopardy claim (which is clearly appealable

now under Abney, 431 U.S. at 662); whether we have jurisdiction

2
The court did not invoke Fed. R. Crim. P. 14 and "sever" the
deferred counts into a separate case with a separate docket number;
instead, it merely postponed their trial until a second phase of
the same case.

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over the government's cross-appeal contesting the case management

order (the defendants dispute jurisdiction); and, if so, whether

the district court exceeded its authority in its division of the

case insofar as it limited the RAs available to the government in

the first trial. We address the questions in that order.

Double Jeopardy. DeCologero argues that, having been

acquitted of the RICO charges in Carrozza, he is shielded by the

Constitution's prohibition of double jeopardy from the RICO charges

(although not necessarily from the non-RICO counts) in the present

case. This is so if, but only if, the RICO charges in the two

cases are "the same." U.S. Const. amd. V; see, e.g., United States

v. Marino, 277 F.3d 11, 39 (1st Cir. 2002). Based on a comparison

of the two indictments as drafted and the proffer of evidence by

the government, we conclude that the new RICO charges are not

barred.

The Carrozza indictment charged nine defendants with

conducting the affairs of "the Patriarca Family of La Cosa Nostra"

through a pattern of racketeering. La Cosa Nostra is the notorious

crime syndicate also known as the mafia. The "Patriarca Family,"

a New England branch of this organization, was headed by Raymond J.

Patriarca until 1990, at which point Francis P. Salemme was the

heir-apparent. The Carrozza defendants were charged with

attempting "to usurp control of the Patriarca Family" from Salemme

-7-
after Patriarca's death. See Marino, 277 F.3d at 19-21 (detailing

evidence in Carrozza case).

The Carrozza indictment covered the period from 1989 to

1994, although evidence of events occurring through 1998 was

presented at trial. DeCologero was charged in eight substantive

counts, including RICO and RICO conspiracy, conspiracy to commit

murder and attempted murder, various firearms charges, and a

cocaine distribution conspiracy. The RICO counts listed him as a

participant in only three of the fourteen RAs: conspiracy to murder

fourteen individuals, attempted murder, and conspiracy to possess

cocaine with intent to distribute. He was acquitted of all charges

in 1999.

The present indictment charges the defendants with

participating in a nominally different enterprise--the "DeCologero

Crew"--said by the government to be "a separate entity from the

Patriarca La Cosa Nostra ('LCN') Family, yet . . . structured in a

similar manner to a crew or regime of La Cosa Nostra" and "aligned

with" the Carrozza faction of the Patriarca Family. According to

the charge, the DeCologero Crew's aim was "controlling,

supervising, and financing illegal activities," including

generating money through robbery and drug sales "for the personal

use of members . . . and to build up a war chest of firearms,

weapons, and ammunition which was to be used, in part, to support

the" Carrozza faction.

-8-
 If the double jeopardy problem turned solely on whether

the two cases involved the same enterprise, we would be faced with

a hard question. The RICO statute loosely defines an "enterprise"

to include not only any legal entity (e.g., a corporation) but also

"any union or group of individuals associated in fact." 18 U.S.C.

§ 1961(4). Although the DeCologero indictment alleges that the

Carrozza faction and DeCologero crew were separate enterprises, the

proffered evidence could support the view that both were part of a

vertically organized endeavor, with DeCologero somewhere in the

middle of the organizational pyramid.

Past cases have stressed that conspiracies cannot be

artificially broken up for the purpose of bringing separate cases,

see Braverman v. United States, 317 U.S. 49, 53 (1942), and there

is no reason why the rule should be any different for RICO

enterprises. But whether there was one enterprise or two need not

be resolved. Every circuit to have examined the issue has agreed

that double jeopardy only bars successive RICO charges involving

both the same enterprise and the same pattern of racketeering

activity.3 In our view the current RICO charges do involve a

different pattern than the old.

3
See United States v. Ciancaglini, 858 F.2d 923, 928-29 (3d
Cir. 1988); United States v. Langella, 804 F.2d 185, 188-89 (2d
Cir. 1986); United States v. Ruggiero, 754 F.2d 927, 931 (11th
Cir.), cert. denied, 471 U.S. 1127 (1985); United States v.
Russotti, 717 F.2d 27, 33 (2d Cir. 1983), cert. denied, 465 U.S.
1022 (1984); United States v. Dean, 647 F.2d 779, 787-88 (8th Cir.
1981).

-9-
 In deciding whether two patterns are "the same" for

double jeopardy purposes, other circuits all employ some variation

of a "totality of the circumstances" analysis, using factors akin--

although not necessarily identical--to those used in evaluating the

identity of conspiracies. See United States v. Gomez-Pabon, 911

F.2d 847, 860 (1st Cir. 1990) (conspiracy), cert. denied, 498 U.S.

1074 (1991); United States v. Dean, 647 F.2d 779, 788 (8th Cir.

1981) (RICO). These factors include the time, the place, the

people, and the nature and scope of the activities involved in each

indictment.

Here, little overlap exists in the type of crimes

centrally charged as racketeering acts in the two cases. The

Carrozza indictment RAs focused on the systematic murder of rival

mafia members--a pattern of murders and attempted murders of

members of the Salemme faction (including attempted murder of

Francis Salemme) to seize control of the Patriarca crime family.

The specific RAs alleged include conspiracy to murder fourteen

people, attempted murder of six, and successful murder of two, as

well as a cocaine conspiracy and several gambling-related charges.

In the present indictment, the only murder alleged was committed

simply as part of a failed cover-up attempt incident to the crew’s

main activities.4

4
According to the indictment and the government's summary of
evidence, Silva permitted crew members to store weapons at her
apartment; the police raided the apartment on a tip; and, afraid

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 The murder aside, the RAs alleged in the current case

centered on robbery and drug trafficking, primarily the former. By

contrast, not a single Carrozza RA involved robbery. Thus, while

the pattern in Carrozza could be viewed primarily as murders

connected by an aim to secure power, the pattern in the present

case appears to be a more conventional collection of robberies and

drug trafficking offenses, the single murder being merely a means

of protecting the conspiracy from the police.

The other factors--similarity of persons, time, and

place--are less clear-cut but do not preclude the conclusion that

the two patterns are different. The Carrozza indictment identified

eight defendants; Paul is the only member of the DeCologero crew

who was charged in Carrozza, there as a subordinate member of the

Carrozza faction rather than as a leader of his own crew. Still,

the Carrozza indictment named one "FNU [first name unknown]

DeCologero" among the thirty unindicted co-conspirators, so at

least one (and perhaps more) of the other defendants in the current

case may have been involved.

As for time and place, the locations involved in the two

indictments are basically the same--the greater Boston area--but

the time periods overlap only slightly. The Carrozza indictment

alleged RICO violations that ran from 1989 though 1994, although at

Silva might testify, crew members acting under orders from
DeCologero killed Silva.

-11-
trial the government offered proof that the conspiracy to obtain

power continued through January 1998. The present indictment

alleges that the DeCologero crew operated from 1995 through the

beginning of 1997. Again, this is consistent with the view that

there may have been one enterprise but does not disturb the

conclusion that there were two patterns.

In summary, all of the incidents constituting substantive

non-RICO crimes and all of the RAs in the present indictment are

different from those charged in the Carrozza case. Whether the

enterprise in the two cases is "the same" may be open to debate,

but "the pattern" is different, which defeats the double jeopardy

claim. Whether any of the background evidence offered in the first

trial is relevant and admissible in the second is a matter for the

district judge.

DeCologero argues alternatively that collateral estoppel

prohibits the present RICO charges against him or at the very least

precludes the government from making any reference to the "war" for

control of the Patriarca family. See Ashe v. Swenson, 397 U.S.

436, 443-44 (1970). Our authority on DeCologero’s appeal is based

on his double jeopardy claim and we decline to consider other

issues even if we could. See Swint v. Chambers County Comm'n, 514

U.S. 35, 50-51 (1995). The district court can consider in due

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course what effect, if any, collateral estoppel doctrine may have.5

Appeal of the scheduling order. The government's cross-

appeal is directed to the scheduling order issued sua sponte by the

trial court, citing the court's "inherent authority and

responsibility for managing trials." The court ordered that three

substantive counts and four racketeering acts be postponed until a

second trial at some unspecified later date; the rest of the case

would be tried at the first trial. The government’s motion for

reconsideration was denied.

On its interlocutory appeal, the government does not

formally contest the postponement of substantive counts to a second

trial, but only the exclusion of four RAs. The government says

that if this court orders the four RAs to be reinstated for the

first trial, the district court may well decide to reinstate the

postponed counts directed to the same acts; obviously, it would do

little to reduce complexity at the trial if the counts are

postponed but the RAs remain to be proven by the same evidence.

An order severing or deferring counts is generally not

immediately appealable. See United States v. Bloom, 149 F.3d 649,

657 (7th Cir. 1998). By contrast, the court’s treatment of the RAs

presents a puzzle on both scores--appealability and the merits--and

5
If the Carrozza verdict was a general one, DeCologero may
well have considerable difficulty showing what factual findings
underlay his earlier acquittal. United States v. Morris, 99 F.3d
476, 481 (1st Cir. 1996); United States v. Aguilar-Aranceta, 957
F.2d 18, 25 (1st Cir. 1992); Russotti, 717 F.2d at 35.

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we start naturally with the former. To understand just what the

district court did and how it matters requires additional

background--pertinent both to the jurisdictional question and to

the merits.

As explained earlier, the original indictment listed

fourteen RAs but, with subparts, amounted effectively to thirty-

eight different acts.6 DeCologero was charged in all fourteen of

the RAs; of the other defendants, one was named in nine, one in

seven, and the remaining two defendants were named in four each.

See attached chart. The RAs not only involved thirty-eight

separate criminal acts but were violations of over a dozen

different federal and state statutes (e.g., murder, robbery) each

of which would require instructions to the jury as to the elements

of the crime.

Before making her sua sponte ruling, the district judge

expressed fear that the level of complexity of the case "makes

charging a jury and having them understand virtually impossible,"

and noted that she had a "fervent desire to try a piece of the case

first." In her later ruling, she selected two specific RAs--

numbers 6 and 8 on the attached chart--to be "postponed" until some

unspecified later date (presumably the same time as the trial of

6
The district court stressed that there were thirty-eight, but
government's grouping of the predicate acts into fourteen sets may
more accurately reflect the level of factual complexity because the
RAs in each group all relate to the same criminal episode (e.g., a
particular robbery), albeit fragmented into different crimes.

-14-
the severed substantive counts). Both excluded RAs involved

robberies in violation of the same state and federal statutes as

the robberies charged in RAs 4 and 5, which were not postponed.

The court also ordered the government to select two more

RAs to be postponed, listing four from which to choose--three of

these RAs involved robberies and one involved conspiracy to collect

credit by extortionate means. The criterion for exclusion of both

counts and RAs appeared to be how closely related they were to the

murder of Ms. Silva; the district judge repeatedly asked the

government to explain how the counts and RAs related to Silva, and

(for instance) stated that two specific counts would be included in

the first trial "on the representation that those are guns in

Silva's apartment. If they are not, then those counts do not go

forward."

The statute governing appeals by the United States in

criminal cases, 18 U.S.C.A. § 3731 (2003), allows interlocutory

appeals in specified situations, two of which are invoked by the

government in this case. The first paragraph of the statute allows

(in pertinent part) an appeal from a district court’s dismissal of

an indictment "as to any one or more counts, or any part thereof"--

the "any part" language having been added in 2002 in part to

resolve a circuit split about the appealability of dismissed RAs.

See Pub. L. No. 107-273, div. B, tit. III, § 3004, 116 Stat. 1758

(2002); H.R. Rep. No. 107-685, § 3004 (2002).

-15-
 The second paragraph of the statute permits inter alia an

appeal from a district court order "suppressing or excluding

evidence," if made before trial (specifically, "not after the

defendant has been put in jeopardy"). 18 U.S.C. § 3731. The most

familiar target of such appeals are pre-trial orders suppressing

evidence as unlawfully seized; but the provision equally allows

appeal from in limine orders excluding evidence on any ground

(e.g., because prejudice outweighs probative value under Fed. R.

Evid. 403). United States v. King, 827 F.2d 864, 866-67 (1st Cir.

1987).

At first blush, the statute's first paragraph appears to

cover the district court's order excluding RAs as dismissal of

"part" of a count. Of course, the district court here did not

purport to "dismiss" the RAs but--as with the three substantive

counts--only to "postpone" them to a second trial. On the

principle that substance rather than form should prevail, this

labeling would not bar appeal under the first paragraph if the

postponement were effectively a dismissal. See United States v.

Zabawa, 39 F.3d 279, 283 (10th Cir. 1994); United States v.

Nakashian, 820 F.2d 549, 550 (2d Cir. 1987).

In our own case, the deferred substantive counts were not

formally dismissed but explicitly reserved for a second trial, and

could in fact be tried later. The opportunity to employ the

counterpart acts as RAs in a second RICO prosecution is more

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doubtful. Under the RICO statute, predicate acts are offered to

satisfy the "pattern of racketeering" element of the crime. On the

government’s premise that all of the predicate acts charged

comprised the same pattern, a second RICO prosecution based on the

postponed acts would arguably itself be barred by double jeopardy

principles, the "acts" being different but the "pattern" being the

same. If so, deferral was effectively dismissal.

The defendants have sought to defeat this basis for

appeal by agreeing in writing, shortly before oral argument in this

court, to waive double jeopardy protection as to the severed RAs so

far as necessary to negate the government's double jeopardy

argument. Whether this (post-appeal) waiver should be accepted and

whether if accepted it fully answers the government’s claim that

the postponed RAs have effectively been dismissed are interesting

questions; but we by-pass them (the waiver is surely a rare

situation) because the second paragraph of section 3731 is adequate

to support the appeal.

Indeed, while both paragraphs might apply to the same

order, the second paragraph is a more apt basis here because the

real concern of the parties has little to do with any possible--and

highly theoretical--second trial for the postponed RAs. Rather,

both sides are mainly interested in the postponement’s effect on

the first trial--the government because it wants the four RAs to be

available to the jury and the defense because it wants them not to

-17-
be available. Consonantly, the second paragraph's own concern is

with the exclusion of evidence in the instant trial (without regard

to whether there will ever be another trial).

But have the postponed RAs been "excluded" from evidence

in the first trial? The district court’s order and statements are

oblique; the RAs were relegated to a second case without a clear

statement of the effect on the first, but we think that the

district court has in substance told the government that it may

rely only upon ten RAs in order to prove the necessary RICO pattern

and not the fourteen listed in the indictment.

Defendants say that the excluded RAs might still be

admissible for other purposes (such as proving the existence of the

enterprise) or perhaps even on a limited basis as to particular

defendants, but of course "exclusion" within the meaning of section

3731 need not be a complete exclusion. Cf. United States v.

Ceccolini, 435 U.S. 268, 271-2, 275 (1978) (jurisdiction to review

suppression of evidence under § 3731 even though the evidence would

still be admissible for impeachment and other purposes).

Such an exclusion of charged RAs to prove the pattern is

in our view an exclusion of evidence within the meaning of the

second paragraph of section 3731. See United States v. Mobley, 193

F.3d 492, 495 (7th Cir. 1999) (finding jurisdiction under section

3731's second paragraph to review an exclusion of overt acts

offered to prove a conspiracy). It does not mean that the pattern

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could not be proved through other RAs--there are at least two un-

excluded RAs charged against every defendant--but it does mean that

the government would be deprived of factual episodes that it would

otherwise offer to establish the pattern. The RAs are evidence of

the pattern, and section 3731 permits an appeal of an order

suppressing evidence even if there remains other evidence of the

crime.

What little case law exists in this circuit supports our

conclusion. See King, 827 F.2d at 866 (jurisdiction to review a

district court order excluding evidence of a specific racketeering

act); see also United States v. Levasseur, 846 F.2d 786, 787 n.2

(1st Cir. 1988) (suggesting possibility). And, whether or not the

district court’s order was a formal exclusion, "pretrial orders

that have the practical effect of excluding material evidence at

trial are appealable under section 3731, regardless of

nomenclature." United States v. Brooks, 145 F.3d 446, 454 (1st

Cir. 1998).

The merits of the exclusion. The most important issue

before us is the district court’s claim of authority to sculpt the

government’s case by limiting the charged RAs that can be proved in

this case. The government portrays this as a naked encroachment on

the Executive Branch’s constitutional authority to conduct

prosecutions; the defense, as a simple house-keeping matter no

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different than limiting the number of witnesses or the order of

presentation. We think both claims are overstated.

Had the district court purported to exclude the evidence

because (for example) it thought the acts not worthy of

prosecution, it might well be ultra vires, cf. United States v.

Armstrong, 517 U.S. 456, 464 (1996), but the court's concern here

was with trial management and jury comprehension. Supreme Court

cases contain broad statements supporting orders to these ends.

See, e.g., Geders v. United States, 425 U.S. 80, 86-87 (1976).

Routinely, courts sever counts that the government bundled, limit

repetitive witnesses that the government sought to offer, and

exclude pieces of its evidence as unduly prejudicial or like

reasons.

Similarly, this case differs from those in which, finding

that counts had been needlessly multiplied, district courts

deferred trial on some of the counts merely to save time. In those

situations, admittedly on aggravated facts, two circuits have said

firmly that trial courts have no authority to carve down the

government’s case for the court’s own convenience because the judge

regarded it as overcharged. See Zabawa, 39 F.3d at 284-85; United

States v. Giannattasio, 979 F.2d 98, 100-01 (7th Cir. 1992)

(Posner, J.). In our own circuit, dicta in United States v.

Leichter, 160 F.3d 33, 36-37 (1st Cir. 1998), assumes that the

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trial court has authority to postpone excessive counts but does not

deal with the exclusion of evidence.

In our view, telling the government that in order to

simplify the trial it cannot prove RICO acts for which it has

secured an indictment (and which are otherwise proper under the

statute and rules of evidence) is more than mere house-keeping.

True, limits on the time allowed to each side, or the number of

witnesses, can have the effect of restricting each side’s proof;

and such orders have been upheld, usually relying upon a district

court's inherent authority.7 But in such cases each side still

retains control of what it will prove in the time available.

Even courts generous in allowing other trammels have been

cautious about intruding on counsel's ability to shape the case;

one court said that "while courts certainly should have flexibility

in reassessing imposed time limits, they ordinarily should allow a

party to fill its allotment with whatever evidence that party deems

appropriate." Duquesne Light Co. v. Westinghouse Elec. Corp., 66

F.3d 604, 610 (3rd Cir. 1995); see also United States v.

Hildebrand, 928 F. Supp.

7
E.g., Geders, 425 U.S. at 86-87; Duquesne Light Co. v.
Westinghouse Elec. Corp., 66 F.3d 604, 609-10 (3d Cir. 1995); MCI
Communications Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1171
(7th Cir.), cert. denied, 464 U.S. 891 (1983). Sometimes courts
rely upon Fed. R. Evid. 403 rather than inherent authority,
although inherent authority appears a slightly better fit where the
issue is the contours of the trial rather than the inherent quality
of a piece of evidence.

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 841, 848 (N.D. Iowa 1996). This concern may be especially sharp

in a criminal case.

Our own case illustrates the potential impact of such

exclusions. As to DeCologero the government had a fair number of

predicate acts to offer even after the district court order, but as

to other defendants it had only three, four, or five remaining

after the exclusion. While two is the absolute minimum for a

conviction, not just any two predicate acts will do: the

relationship between the acts must form a "pattern" based on

elusive criteria.8 If the district court's order was given effect,

the jury might find that the government had proven the remaining

acts and yet the case still fail for want of the necessary

relationship that an excluded act would have supplied.

In this respect, the present order's treatment of RAs

goes well beyond those that, like the orders in Zabawa and

Giannattasio, postpone or sever counts; although denying the

government the forensic benefit of multiplying counts in a single

trial, those orders still preserved the government's right to

proceed on the stricken charges in a second proceeding. By

8
H.J. Inc. v. N.W. Bell Tel. Co., 492 U.S. 229, 238 (1989)
("[T]here is something to a RICO pattern beyond simply the number
of predicate acts involved . . . . [T]he mere fact that there are
a number of predicates is no guarantee that they fall into any
arrangement or order. It is not the number of predicates but the
relationship that they bear to each other or to some external
organizing principle that renders them 'ordered' or 'arranged.'");
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 497 n.14 (1985).

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contrast, the outright exclusion of individual RAs substantially

weakens the charges that remain in the first trial. By limiting

the blocks of evidence that the government may use, this exclusion

can deprive the public permanently of rightful convictions. This

loss of evidence is not necessarily offset by the dubious

possibility of a second trial, also on truncated evidence.

Seeking a solution for a problem with little direct

circuit precedent, we are led to this answer: in a RICO case, the

exclusion of an RA or other criminal episode in order to make the

trial comprehensible for a jury may not be wholly beyond the

district court’s inherent authority (we need not decide the issue

definitively); but it would have to be a last resort where no more

conventional method existed to assure a fair trial and where the

exclusion rested on detailed and compelling findings. The test, in

short, would be one not of convenience but of last-ditch necessity.

Was there in this case an adequately detailed and

supportable finding of last-resort necessity for the order

excluding RAs? The district judge said that it was "virtually

impossible" to instruct the jury, and that "to run a reasonable

trial the jurors can understand that is fair to both sides requires

a break up of these wide ranging charges." But these conclusions

are not supported with any detailed explanation and whether the

judge meant that the RAs had to be excluded because there was no

other way to provide a fair trial is unclear.

-23-
 On this record we are unwilling to impute to the judge

such a finding of last-resort necessity and, absent some further

underpinning, would be unable to uphold it. The present indictment

before the order took effect covered six defendants, twenty-three

counts, and thirty-eight predicate acts (some overlapping with

counts). This is admittedly quite a wingspan, even though most of

the crimes were familiar rather than esoteric and the focus is upon

a single alleged criminal gang operating in one geographic area

over a limited time period.

Yet indictments of comparable or greater complexity are

regularly tried. See, e.g., United States v. Boylan, 898 F.2d 230,

236 (1st Cir. 1990) (seven-defendant, fifty-seven-count indictment

ruled not so large that a jury was incapable of understanding);

United States v. Shea, 211 F.3d 658 (1st Cir. 2000). The

government here estimated that the trial would take about two

months--a figure far less than the duration of other gangland

cases. E.g., United States v. Casamento, 887 F.2d 1141, 1149-50

(2d Cir. 1989) (rejecting arguments that a 17-month trial was too

complex for the jury to comprehend).

There are potentially limits to the complexity that a

jury can handle: in United States v. Andrews, 754 F. Supp. 1161,

1180 (N.D. Ill. 1990), the district court was faced with a

staggering RICO case--a 305-page, 175-count, 38-defendant

indictment--and the court broke up the case as part of its formal

-24-
Rule 14 severance of trials of particular defendants. But our own

case is a fraction of this size and, when the Andrews court had

divided the mammoth indictment into separate trials, those units

were (on a crude assessment) each about the same size as the entire

DeCologero indictment.

While Andrews may have been facially unmanageable (the

Seventh Circuit never reviewed this question), this case is not,

and so in our view it was insufficient for the district court

merely to recite the number of counts, RAs, and different criminal

statutes involved and then announce a conclusion. As already

noted, the district court stressed that there were thirty-eight

predicate acts, but this overstates the number of criminal episodes

involved, see note 6, above; in this case the criminal statutes

other than RICO are not esoteric; and the district court's

exclusion of RAs did not significantly reduce the number on which

jury instructions would be required--at most, it reduced the number

by one.9

Further, there is no showing that the district court had

exhausted more conventional means to cope with the case. Rule 14

gives the district judge wide authority to sever defendants,

counts, or both, upon a showing of prejudice. Cf. United States v.

9
If the government elected to postpone RA 14 (collection of
credit by extortionate means), the court would not have to instruct
the jury on 18 U.S.C. § 894(a). Otherwise, the elimination of four
RAs would not affect the number of statutes involved.

-25-
Bartelho, 129 F.3d 663, 678 (1st Cir. 1997). In principle, the

district court could require that DeCologero be tried alone and

solely upon the two RICO counts and the RAs applicable to him,

severing all other defendants and counts for a future trial or

trials. Similarly, limits on witnesses and the time allowed to

each side are permissible measures. Duquesne Light Co., 66 F.3d at

609-10; Sec'y of Labor v. DeSisto, 929 F.2d 789, 796 (1st Cir.

1991).

In this case the district judge did not make findings, or

negate alternatives, that would justify the extreme remedy of

excluding otherwise properly charged RAs from the initial trial.

In so ruling, we intend no criticism whatever of the experienced

and distinguished trial judge who was trying to bring more order

into a complex trial. The limits of trial management authority are

inherently uncertain, and existing circuit case law here and

elsewhere is virtually a stranger to the precise problem in this

case.

For the reasons stated, the order rejecting the double

jeopardy defense is affirmed, the trial management order is vacated

insofar as it excluded from the indictment or evidence the four

individual RAs in question in order to simplify proceedings, and

the matter remanded for further proceedings. Our judgment is

without prejudice to severance of counts or parties under Rule 14,

-26-
other trial simplification measures, or other issues pertaining to

the four RAs that may arise in the course of this case.

It is so ordered.

-27-
 ATTACHMENT

This chart shows the racketeering acts, numbered in accordance with the indictment.

The "Disposition" column lists the effect of the district court's scheduling order upon the RAs. The

government was ordered to choose two of the four RAs marked with "Elect" to try at the first trial;

the two RAs not selected were to be postponed to a hypothetical second trial, along with the two RAs

marked as "Out."

The defendants are identified by their initials, and an "x" in the column under their

name means that they were charged in at least one subpart of that RA. The initials P.A.D. stand for

Paul A. DeCologero, whom this opinion refers to simply as "DeCologero." The initials J.P.D. stand

for John P. DeCologero, Jr.; his father, John P. DeCologero, Sr., also charged in the indictment, pled

guilty.

RA # P. J. P. D. J. Description of RA Disposition
A. P. J. A. F.
D. D. D. C. P.
1(a-e) x x x Murder, attempted murder, conspiracy to IN
murder, and witness tampering (Aislin Silva)
MGL ch. 265, § 1
MGL ch. 274, §§ 2, 6, 7
18 USC § 1512(a)(1)(c) and (2)
2 x x x x Witness tampering (Aislin Silva) IN
18 USC § 1512(b)(3) and (2)
3 x x x x x Hobbs Act robbery conspiracy (9 victims) IN*
18 USC § 1951
4(a-d) x x x Hobbs Act robbery & related charges IN
(Godreau)
18 USC §§ 1951, 1952
21 USC § 841(a)(1)
18 USC § 2
MGL ch. 265, §§ 17, 26
MGL ch. 274, § 2

-28-
5(a-f) x x Hobbs Act robbery & related charges (Stevens) IN
18 USC §§ 1951, 1952
21 USC § 841(a)(1)
18 USC § 2
MGL ch. 265, §§ 17, 26
MGL ch. 274, § 2
6(a-d) x x x Hobbs Act robbery & related charges OUT
(Sapochetti)
18 USC §§ 1951, 1952
MGL ch. 265, § 26
MGL ch. 274, § 2
7 x x Hobbs Act robbery & related charges (North) Elect
18 USC §§ 1951, 1952
8(a-e) x x Hobbs Act robbery & related charges (Soccorso OUT
& Ramus)
18 USC §§ 1951, 1952
21 USC § 841(a)(1)
18 USC § 2
MGL ch. 265, §§ 17, 26
9(a-e) x x x Hobbs Act robbery & related charges Elect
(Pesaturo)
18 USC §§ 1951, 1952
21 USC § 841(a)(1)
18 USC § 2
MGL ch. 265, § 26
MGL ch. 274, § 2
10(a-b) x x Hobbs Act robbery & related charges (Pollard) Elect
18 USC §§ 1951, 1952
MGL ch. 265, § 26
11 x x Marijuana distribution conspiracy IN
21 USC § 841(a)(1), 846
12 x x Cocaine distribution conspiracy IN
21 USC § 841(a)(1), 846
13 x x Possession with intent to distribute cocaine IN
21 USC § 841(a)(1)
18 USC § 2
14 x x x Collection of credit by extortionate means Elect
18 USC § 894(a) and 2

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