(dissenting).
I do not disagree with my colleagues’ conclusion regarding the appealability of the district court order in this case. Because the predicate acts stricken by the district court could have formed the basis for a separate RICO count, this court has jurisdiction under 18 U.S.C. § 3731. But that very statement of the basis for our review demonstrates the correctness of Judge Young’s action. Simply put, the issue is this: can the government, in order to gain an advantage in a criminal prosecution, be permitted to represent to one federal court that it will not retry certain counts in an indictment, and then, having gained the advantage, relabel the same counts as predicate acts in a RICO indictment and prosecute the same defendants for the same conduct in another federal court. I agree with Judge Young that the government should not be permitted to do so.
The legal issues in this case are well-addressed in Judge Young’s Memorandum and Order, with which I concur wholeheartedly.1 I add the following in order to address points raised by the majority of this court.
In order to support its reversal of the district court, the majority relies on technical distinctions between a RICO prosecution and a prosecution for the substantive offenses serving as predicate acts for the RICO charge. With respect, I think that this overly technical reasoning serves only to mask, and thus to condone, what is in substance contradictory and deceptive conduct by the government. The majority makes much of the fact that, under governing law, the government might have chosen to retry the open counts, and to prosecute the RICO charges as well, in the same court. The short answer to this, of course, is that while the government might have chosen to do so, it did not. Instead, the government chose to treat the substantive counts and the RICO charges entirely separately and, indeed, to pursue them in different jurisdictions. Thus, when the government represented to Judge Glasser in New York that it would dismiss the substantive counts, the judge did not and could not know (as the government did) that those same counts would soon reappear as predi*796cate act allegations in a RICO indictment. In fact, Judge Glasser had every reason to believe that after the counts were dismissed, the defendants would be free from criminal liability for the actions underlying those counts.
Given this, I think the majority’s argument that Judge Glasser was not misled is farfetched. In considering the government’s motion to exclude time under the Speedy Trial Act, Judge Glasser was obviously concerned with what the defendants stood to gain. See 635 F.Supp. at 254 (“the benefit to be gained by the defendant surely need not be ignored”). It is, therefore, hard to imagine that Judge Glasser would not have been interested in knowing that the same defendants were about to be indicted in Massachusetts for the same allegedly criminal acts. But the government did not provide him with this information.
Moreover, contrary to the majority's assertion, double jeopardy concerns are raised by this case. Had the retrial of the substantive counts not been delayed as a result of the district court’s excluding time under the Speedy Trial Act, and had the defendants been acquitted, the government could not then have used those same charges as predicate act allegations in a RICO indictment. Only as a result of the government’s misleading representations to Judge Glasser were the defendants denied this opportunity for acquittal.
Finally, I am disturbed by the majority’s unwillingness even to acknowledge that the doctrine of judicial estoppel can be invoked against the government in a criminal case. The purpose of judicial estoppel is to prevent a party from gaining an advantage in litigation by asserting inconsistent positions in different legal proceedings. I fail to see any justification for the government being exempted from this rule. Indeed, because of the coercive power it wields, and because of the constitutional safeguards for criminal defendants, it seems especially appropriate to hold the government to this minimal standard of fair dealing.
I would affirm Judge Young’s decision to strike from the RICO indictment the so-called “open counts.”
I respectfully dissent.
APPENDIX
Excerpt from United States v. LeVasseur, No. 86-180-Y, slip op. at 8-24 (D.Mass. Mar. 14, 1987) (Memorandum and Order) (Young, J.).
The six defendants claim that the government ought be judicially estoped from re-trying the open counts as predicate acts in the present case. See generally Note, Judicial Estoppel: The Refurbishing of a Judicial Shield, 55 Geo.Wash.L. Rev. 409 (1987). After careful reflection, this Court concludes they are right.
The doctrine of judicial estoppel8 has been recognized for some time in the District Court for the District of Massachusetts, see, e.g., Latino Political Action Committee v. City of Boston, 581 F.Supp. 478, 480-81 (D.Mass.1984) (Caffrey, J.); To-man v. Underwriters Laboratories, Inc., 532 F.Supp. 1017, 1019 (D.Mass.1982) (McNaught, J.), rev’d on other grounds, 707 F.2d 620 (1st Cir.1983), including this Court, Palandjian v. Pahlavi, 614 F.Supp. 1569, 1579 n. 2 (D.Mass.1985), vacated on other grounds, 782 F.2d 313 (1986), cert. denied, — U.S. -, 107 S.Ct. 1974, 95 L.Ed.2d 814 (1987). More recently, judicial estoppel has been expressly recognized in this circuit. Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208 (1st Cir. 1987). But see Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366, 373 n. 7 (1st Cir.1980). As its essence, this doctrine forbids a party from asserting inconsistent positions in judicial proceedings. The doctrine is borne of “a universal judicial reluctance to permit litigants to ‘play fast and loose’ with courts of justice according to the vicissitudes of self-interest” as well as a desire “to protect ... the judicial process from abuse.” IB J. Moore & J. Lucas, Moore’s Federal Practice 110.405[8] (2d ed. 1984) (citing Scarano v. Central R. Co. of
*797New Jersey, 203 F.2d 510, 513 [3d Cir.1953] [Hastie, J.]).
As already stated, the six defendants’ judicial estoppel argument was not clearly articulated on the papers, presumably due to the time pressures attendant to the pretrial motion session. Even so, this Court construes it to run as follows: In order to obtain relief from the time limitations of the Speedy Trial Act, the government represented to the District Court in Brooklyn that it would not retry the open counts if, on appeal, it retained the convictions and sentences resulting from the trial just completed in Brooklyn. The government made this representation knowing that in Massachusetts it was seeking a RICO indictment that included all the open counts as predicate acts and would necessarily require the retrial of each open count to support the impending RICO charge in Massachusetts. The government failed to notify the judge in Brooklyn of its then present intention and, instead, allowed the judge to believe that acceding to the government’s request would result in a substantial judicial economy. Now, having gained the benefits of delay, the government seeks to retry each of the open counts as part of the RICO charge (which, as originally drafted, included twenty-six predicate acts involving eight defendants) pending in this Court — an indictment which the parties estimate will take nine months to try. The six defendants claim that the government ought be judicially estopped from pursuing this course.
To this argument, the government raises a number of strong objections. On close analysis, however, each one must be found wanting.
First, it is argued that the government cannot be estopped by the acts of its agents, since those agents are powerless to act in derogation of the public’s right to full and exact enforcement of the law as written. Cf Phelps v. Federal Emergency Management Agency, 785 F.2d 13 (1st Cir. 1986) (holding that the government was not estopped to deny flood insurance coverage in the absence of a written proof of loss even though the failure to file such proof was the result of misrepresentations by an employee of the agency that such proof was unnecessary). When the government comes into court, however, the due process clause of the fifth amendment to the United States Constitution requires that it be subject to the same fundamentally fair treatment as is accorded any other litigant. Simply put, this means that, like any other litigant, the government may be held to its representations made during the course of litigation.
Consider the example set by the courts of the Commonwealth of Massachusetts.
When ... promises are made by the public prosecutor or with his authority, the court will see that due regard is paid to them, and that the public faith which has been pledged by him is duly kept.
Commonwealth v. St. John, 173 Mass. 566, 569, 54 N.E. 254 (1899) (Morton, J.).
Here the district attorney [sought] to repudiate the agreement made by an assistant district attorney_ In our opinion this is a dishonorable course for the Commonwealth to attempt to take. The highest degree of ethics should be the standard of the sovereign which should serve as an example to all others. The courts have a duty to enforce that standard.
Commonwealth v. Benton, 356 Mass. 447, 449, 252 N.E.2d 891 (1969) (Wilkins, C.J.).
Surely the government of the United States is held to a standard no less exacting. Indeed, this is expressly the law in this circuit. “Were the government to renege on its sworn promise, it is hard to conceive of a court failing to find an estop-pel.” In re Snoonian, 502 F.2d 110, 112 (1st Cir.1974) (citing Benton). Further, there is a variety of circumstances such as plea bargaining and the use of letter immunity in which the government’s representations are subject to specific enforcement.9
*798Courts are generally reluctant to permit the government “by words and inaction to lull a party into a false sense of security and then by an abrupt volte-face strip the party of its defenses without a hearing.” United States v. Baus, 834 F.2d 1114, 1123 (1st Cir.1987). In light of these considerations, this Court is not hesitant to hold that the government of the United States is, like any other litigant, subject to judicial estop-pel whenever that doctrine is properly invoked.
Second, the government submits that, even if it is subject to the doctrine of judicial estoppel, the representations of an Assistant United States Attorney in the Eastern District of New York cannot estop the proper enforcement of the laws by the United States Attorney for the District of Massachusetts. Analogizing the present circumstances to the context of a plea bargain in the Second Circuit, the government argues that the representations of .an Assistant United States Attorney in the Eastern District of New York can, at most, bind only the government attorneys in that district. It is settled law in the Second Circuit, at least in the plea agreement context, that one United States Attorney cannot bind another from another district unless such a restriction is specified in the plea agreement or can be inferred from the negotiations or statements at the plea colloquy. This state of the law is, of course, counter-intuitive as the Second Circuit itself has recognized:
As an original proposition, a plea agreement whereby a federal prosecutor argues that “the government” will dismiss counts of an indictment other than the ones to which guilty pleas are entered might be thought to bar the United States from reprosecuting the dismissed charges in any judicial district unless the agreement expressly limits the scope of the agreement to the district in which the dismissed charges are initially brought. However, the law has evolved to the contrary.
United States v. Annabi, 771 F.2d 670, 672 (2d Cir.1985) (per curiam). The situation here is emphatically not a plea bargain, however.10 The six defendants had no meaningful opportunity to negotiate the binding scope of the conditional dismissal without relinquishing their insistence on their constitutional and statutory rights to a speedy trial. As bargaining over such rights must be wholly voluntary, it would be error to extend a doctrine arising in the plea bargain context to an adversary determination made, over defense objection, in reliance on a prosecutor’s recommendation.11 The more appropriate context is that which confronts the government when it makes representations to the court and the defendants concerning the existence vel non of exculpatory material. In that context, once the duty to disclose is triggered appropriately, the government is considered a monolith, its good faith is immaterial, see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), and the failure of any government official to make such disclosure of material *799exculpatory evidence (even if unaware of the duty to disclose) binds the prosecutor making the representation (even if unaware of the existence of the exculpatory material).
The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. See Restatement (Second) of Agency § 272. See also American Bar Association, Project on Standards for Criminal Justice, Discovery and Procedures Before Trial § 2.1(d). To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.
Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).12 In the judicial estoppel context, therefore, this Court holds that the representation of any Assistant United States Attorney may, in appropriate circumstances, be invoked to estop the United States when it engages in further litigation with the same party, whether that litigation is conducted by the representing attorney or any other attorney acting on behalf of the United States.
Third, the government argues that, even if the representations of the Assistant United States Attorney in the Eastern District of New York may be considered by this Court, those representations dealt only with the circumstances under which the government would dismiss the “open counts.” There is here, the government says, none of that reversal of position as to facts or law which traditionally calls for the invocation of judicial estoppel. The First Circuit sets out the complete answer to this argument in Patriot Cinemas, Inc. v. General Cinema Corp.:
[W]e recognize that holding a litigant to his stated intention not to pursue certain claims is different from the “classic” case of judicial estoppel. In the latter, a litigant asserts inconsistent statements of fact or adopts inconsistent positions on combined questions of fact and law. For example, in Hurd [v. DiMento & Sullivan, 440 F.2d 1322 (1st Cir.), cert. denied, 404 U.S. 862, 92 S.Ct. 164, 30 L.Ed.2d 105 (1971)] we did not allow a litigant to claim both that a law firm did and did not represent her. See 440 F.2d at 1323. In Allen [v. Zurich Insurance Co., 667 F.2d 1162 (4th Cir.1982)] the court prevented a party from claiming that he was both an employee and not an employee of the defendant. 667 F.2d at 1167. However, in recent years courts have also applied judicial estoppel to situations such as this, where a party declares an intention not to pursue a claim. See Matek v. Murat, 638 F.Supp. 775, 782-83 (C.D.Cal.1986); Wade v. Woodings-Verona Tool Works, Inc., 469 F.Supp. 465 (W.D.Pa.1979). In Wade the plaintiff brought an action for a breach of a trade secrets agreement. The defendant brought a counterclaim attacking the validity of a patent related to the trade secret. Plaintiff then moved for summary judgment on the counterclaim, arguing that he was not claiming nor would he claim patent infringement, and thus that the patent’s validity was not in issue. The court granted the motion for summary judgment, but also stated its opinion that any future suit for infringement would be foreclosed by the doctrine of judicial estoppel. 469 F.Supp. at 467.
On reflection, representations such as were made here, that a party will abandon a claim, present a stronger argument than do the classic cases for application of the doctrine [of judicial estop-pel].
834 F.2d at 214 (emphasis in original). In this Circuit, therefore, abandonment of a claim to obtain a litigation advantage precludes the later reassertion of that claim.
Finally — and it is by far the government’s most telling argument — counsel for *800the government here in Boston argue strenuously that the dismissal of the open counts in the Eastern District of New York, whatever the circumstances of that dismissal, simply cannot, as matter of settled law, have any effect on the ability of the government to prosecute the RICO, RICO conspiracy, and seditious conspiracy charges here. The substantive charges which make up the predicate acts charged here are, the government argues, wholly separate claims from the three claims or counts with which the six defendants are charged here. Thus, the government contends that it follows inexorably that dismissal of any substantive charge which constitutes a RICO predicate act in the present Massachusetts indictment has — and can have — no effect whatever on the prosecution of the Massachusetts indictment.
It is true that the great majority of courts which have considered the issue have held that the Double Jeopardy clause does not prohibit simultaneous but separate — or even consecutive — indictments for a substantive crime and also for RICO (with the same substantive crime charged as a predicate act to establish a pattern of racketeering). See, e.g., United States v. Grayson, 795 F.2d 278, 283 (3d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 927, 93 L.Ed.2d 978 (1987); United States v. Hampton, 786 F.2d 977, 979-80 (10th Cir. 1986); United States v. Licavoli, 725 F.2d 1040, 1049-50 (6th Cir.), cert. denied, 467 U.S. 1252, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984); United States v. Walsh, 700 F.2d 846, 856 (2d Cir.1983), cert. denied, 464 U.S. 825, 104 S.Ct. 96, 78 L.Ed.2d 102 (1983); United States v. Greenleaf, 692 F.2d 182, 189 (1st Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1523, 75 L.Ed.2d 946 (1983); United States v. Hartley, 678 F.2d 961, 991-92 (11th Cir.1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1014 (1983); United States v. Hawkins, 658 F.2d 279, 287 (5th Cir.1981) (Unit A); United States v. Rone, 598 F.2d 564, 571 (9th Cir.1979), cert. denied sub nom. Little v. United States, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); cf. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 2415-17, 85 L.Ed.2d 764 (1985) (holding that the defendant’s prosecution for a continuing criminal enterprise under the Comprehensive Drug Abuse Prevention and Control Act of 1970 following, his earlier prosecution for marijuana importation did not violate the Double Jeopardy Clause); United States v. Aleman, 609 F.2d 298, 306-07 (7th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980) (holding that a predicate act count and a RICO count are not multiplicitous, at least where each requires, in part, different proof).13
Indeed, even where a defendant has been acquitted on a substantive charge in a state *801court, it appears that he may be subsequently indicted for a RICO violation in federal court and that identical charge may be retried in federal court as one of the predicate acts necessary to prove the RICO violation. See United States v. Licavoli, 725 F.2d 1040, 1047 (6th Cir.), cert. denied, 467 U.S. 1252, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984); U.S. v. Malatesta, 583 F.2d 748, 757 (5th Cir.1978), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979); United States v. Frumento, 563 F.2d 1083, 1087-89 (3d Cir.1977), cert. denied sub nom. Millhouse v. United States and Sills v. United States, 434 U.S. 1072, 98 S.Ct. 1256, 1258, 55 L.Ed.2d 775, 776 (1978); Von Bulow by Auersperg v. Von Bulow, 634 F.Supp. 1284, 1310 (S.D.N.Y.1986); but see U.S. v. Louie, 625 F.Supp. 1327, 1336-37 (S.D.N.Y.1985), appeal dismissed sub nom. United States v. Tom, 787 F.2d 65 (2d Cir.1986).14
It does not follow, however, that there is no relationship whatsoever between litigation of a predicate act and a subsequent RICO prosecution. A substantive RICO prosecution requires, in a very practical sense, the full trial of each of the predicate acts alleged. Moreover, the judge must charge the jury as to the elements of each of the charges encompassed by the alleged predicate acts and the jury must be satisfied that each such essential element has been proved beyond a reasonable doubt before it may consider whether such a predicate act constitutes part of a pattern of racketeering. See, e.g., U.S. Fifth Circuit District Judges Association, Pattern Jury Instructions — Criminal Cases (West Pub. Co. 1983). A substantive RICO charge demands far more proof than the proof of the overt act sufficient to carry a conspiracy prosecution. Indeed, it is this marked difference in proof that makes permissible separate counts for a substantive RICO violation and a RICO conspiracy. If a federal prosecution for commission of the predicate act results in an acquittal, double jeopardy concerns would be most seriously implicated were the identical predicate act to be presented to a second jury as indicative of the pattern of racketeering necessary to sustain a RICO prosecution. See Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970) (defendant acquitted of robbing one member of a poker game could not be tried for robbing another member, where the only ground for acquittal had been insufficient evidence that he was one of the robbers).
The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. In his Commentaries, which greatly influenced the generation that adopted the Constitution, Blackstone recorded:
*802... the plea of auterfoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.
Substantially the same view was taken by this Court in Ex parte Lange, 18 Wall. 163, at 169:
The common law not only prohibited a second punishment for the same of-fence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187— 88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957) (footnotes omitted).
The government here implicitly concedes as much in the framing of its indictment. Those of the defendants who have been acquitted of any of the predicate acts charged in this indictment are not charged with those predicate acts herein. The indictment lists as perpetrators of such predicate acts only those co-defendants who have been convicted thereof or as to which the earlier charges have concluded in a mistrial due to the jury’s inability to reach a verdict, i.e., the “open counts.”
If it is true that after a federal court acquittal of a particular crime the Double Jeopardy Clause forbids subsequent re-prosecution in the guise of a predicate act of a larger RICO indictment, the narrow question here is whether, since the government has disabled itself from reprosecuting the open counts in the Eastern District of New York, can those same open counts— re-cast as predicate acts — be re-tried herein as elements of this larger RICO prosecution? United States v. Stricklin, 591 F.2d 1112 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979) appears to counsel an affirmative answer since, just as the dismissal of the conspiracy charge there on Speedy Trial grounds was held not to implicate guilt or innocence, so here the doctrine of judicial estop-pel is invoked to protect the integrity of the judicial process, not to improve the accuracy of the Court’s truth seeking function. Even so, although the issue is a close one, the unique circumstances presented here15 convince this Court that the government cannot retry the open counts as predicate acts of this larger RICO charge.16
The government is, therefore, judicially estopped from retrying, as to any of the six defendants particularly affected, any of the so-called “open counts” and their names shall be deleted in the copy of the indict*803ment sent to the jury from the particular predicate acts which constitute the so-called “open counts.”17
. Because Judge Young’s Memorandum and Order has not been published, an excerpt from that decision, containing the pertinent discussion on judicial estoppel, has been annexed hereto.
. Also termed, less elegantly, the doctrine of preclusion against inconsistent positions.
. As to the specific enforcement of plea bargains, see Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) ("[W]hen a plea rests in any significant degree on a promise of agreement of the prosecutor, so that it can be said to be part of the inducement *798or consideration, such promise must be fulfilled"). Indeed, the Fourth Circuit has gone so far as to require specific performance of an offer made by a subordinate prosecutor which was withdrawn upon the directions of a superi- or before the defendant, acting with reasonable promptness, could accept it. Cooper v. United States, 594 F.2d 12, 18-19 (4th Cir.1979). Likewise, since letter immunity is lawful in this Circuit, United States v. Winter, 663 F.2d 1120, 1133 (1st Cir.1981) cert. denied, 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 479 (1983), such agreements, if performed, will surely be enforced against the government, see In re Snooni-an, 502 F.2d at 112, even though, since such agreements are beyond the government’s statutory authority and disapproved, United States v. Doe, 465 U.S. 605, 614-17, 104 S.Ct. 1237, 1243-44, 79 L.Ed.2d 552 (1983); United States v. Biag-gi, 675 F.Supp. 790, 804 (S.D.N.Y.1987), the government cannot enforce such an agreement against a witness to compel his testimony.
. The six defendants here never agreed to trade their right to a speedy trial in return for a conditional dismissal in the Eastern District of New York. The District Court in Brooklyn made this decision over their objection. See United States v. Levasseur, 635 F.Supp, 251, 255 (E.D.N.Y.1986).
. This Court need express no view here — and does not — concerning whether the Second Circuit’s view of the binding effect of the government’s representations during plea bargaining ought be adopted here.
. In the plea bargain context, the Supreme Court requires that:
The staff lawyers in a prosecutor’s office have the burden of "letting the left hand know what the right hand is doing” or has done. That the breach of [a plea] agreement was inadvertent does not lessen its impact.
Santobello v. New York, 404 U.S. at 262, 92 S.Ct. at 499.
. While initially subscribing to this majority view, see United States v. Boylan, 620 F.2d 359, 361 (2d Cir.1980), cert. denied, 449 U.S. 833, 101 S.Ct. 103, 66 L.Ed.2d 38 (1980), more recent Second Circuit decisions give strong indication that the broadly permissive approach to RICO/predicate act prosecutions previously taken in Boylan is being eroded in that Circuit in light of the Supreme Court’s decision in Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 2410-11, 2417-19, 85 L.Ed.2d 764 (1985) (upholding the validity of using a prior criminal conviction for marijuana importation to prove the commission of a predicate act as part of a continuing criminal enterprise prosecution under 21 U.S.C. § 848, at least where the enterprise activity continued four months past the date of the conduct underlying the conviction). In United States v. Pérsico, 774 F.2d 30 (2d Cir.1985), the court affirmed a lower court ruling that the Double Jeopardy Clause did not preclude the defendants’ trial on RICO charges based on predicate acts for which the defendants had previously been convicted. Id. at 32. The court noted that the RICO indictment alleged that the substantive conduct and conspiracy continued for at least four years beyond the conduct underlying the indictments in the previous case. Moreover, the court did not criticize the lower court's conclusion that subsequent RICO charges can only survive double jeopardy objections if the subsequent indictment alleges conduct that post-dates the plea to the prior charges, or if evidence accumulated subsequent to that plea establishes either a second predicate offense or participation in a criminal enterprise. Id. Indeed, it noted only that "we need not and do not’’ decide the question. Id.
However, in United States v. Russo, 801 F.2d 624 (2d Cir.1986), the Second Circuit appears to have adopted the Pérsico district court’s view. Citing its own Pérsico opinion, the court held that a RICO prosecution subsequent to and making use of predicate acts previously resolved by a plea agreement did not violate the Double Jeopardy Clause "because the second indictment [the RICO indictment] indicated that the sub*801stantive conduct and the RICO conspiracy continued after the [earlier] plea ...” in which the predicate acts were dismissed. Id. at 626. The thrust of the Persico-Russo decisions is that, in order to be able to charge a RICO violation in addition to predicate acts, the RICO violation must extend beyond a prosecution for the predicate acts.
Here, the RICO enterprise ended when the six defendants were taken into custody in 1984 and 1985. Thus, the six defendants, in part, rest their motion for dismissal on a claim that, having been convicted of certain predicate acts with others having been dismissed and with no untried predicate acts following on these as to which a final disposition has been reached, the RICO count cannot stand independently. In view of the Second Circuit's decisions in Pérsico and Russo, this argument is not frivolous, but neither is it persuasive. Not only does it transform two decisions upholding the government’s decision to indict separately and sequentially into a most significant restriction on governmental power to prosecute alleged RICO violations, it ignores the fact that the instant RICO indictment alleges the existence of a consistent pattern of racketeering activity which substantially antedates any subtantive charge acted on in the Eastern District of New York. Thus, even if this Court considered Pérsico and Russo persuasive in this Circuit, but see United States v. Greenleaf, 692 F.2d at 189, the factual distinctions present in the instant record render them inapposite.
. These decisions all turn on the fact that, for Double Jeopardy purposes, a state is an entirely different sovereign from the federal government and each may prosecute violations of its laws. See United States v. Wheeler, 435 U.S. 313, 316— 17, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); cf. Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (holding that under the dual sovereignty doctrine, successive prosecutions by two states for the same conduct are not barred by the double jeopardy clause).
. Among these circumstances are the special requirements of full proof of the predicate acts as part of this RICO charge, the fact that the six defendants have once been placed in jeopardy and tried to juror deadlock on the open counts, the fact that the government has unequivocally promised to drop the open counts against these defendants, and the realization that, to allow the government to proceed as it wishes here, will render this a hollow promise indeed and result in the government’s making an end run around the proper application of the doctrine of judicial estoppel.
. The six defendants also assert that they have been prejudiced by the government’s maneuvers herein. That is, they complain that, by denying them a speedy trial in the Eastern District of New York, proceedings could go forward here in Massachusetts which they perceive as a much less favorable forum. Though not overly happy with Judge Glasser when on trial before him in the Eastern District of New York, the six defendants now complain that they have been deprived of "the patience, scholarship, and judicial temperament of [that] outstanding jurist." United States v. Levasseur, 816 F.2d 37, 45 (2d Cir.1987). Moreover, in light of the juror deadlock as to the open counts in the Eastern District of New York, the six defendants now profess a strong preference for that cosmopolitan jury pool over the municipal, suburban, and rural pool of jurors from which the jury will be selected in Springfield, Massachusetts. Finally, the six defendants complain that they have been deprived of the services of lawyers intimately *803familiar with the case since they have been forced to proceed to trial here in Massachusetts rather than face the open counts in New York supported by counsel in which they had high confidence. These same defendants, however, objected to the New York venue in their appeal to the Second Circuit, see ibid., and they are thus now judicially estopped themselves from abruptly changing their position and claiming the Eastern District of New York as the preferred venue.
Perhaps more important, these claims of prejudice play no part in the analysis set forth above.
. While the analysis presented in the text persuades the Court of the propriety of applying judicial estoppel in this conext, there is another, somewhat more narrow basis for its application here, viz., that the government has, indeed, played "fast and loose” with the courts.
This Court finds that, at the time the government sought to avoid the strictures of the Speedy Trial Act by offering to drop the "open counts” in the Eastern District of New York, it well knew that it was, in reality, giving up nothing because the Massachusetts RICO indictment alleged the same conduct as predicate acts to the RICO charge. The government failed to apprise Judge Glasser of this important fact, thus allowing him to conclude — contrary to the practical situation the government knew (indeed intended) would result — that the defendants would be spared the anguish and uncertainties of again confronting the same evidence and that significant judicial economies would accrue.
This conduct constitutes playing "fast and loose” with the courts and this Court concludes, as an alternative ground, that such conduct warrants the application of judicial estoppel here.