604 F.

2d 769

UNITED STATES of America, Plaintiff-Appellee,

v.
Eugene DiFRANCESCO, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellant,
v.
Eugene DiFRANCESCO, Defendant-Appellee.
Nos. 231, 908 and 1094, Dockets 78-1250, 78-1369 and 78-1371.

United States Court of Appeals,

Second Circuit.
Argued April 20, 1979.
Decided Aug. 6, 1979.

Harold J. Boreanaz, Buffalo, N.Y. (Boreanaz, NeMoyer & Baker, Buffalo,

N.Y.), for defendant-appellant, defendant-appellee DiFrancesco.
Victor D. Stone, Atty., Dept. of Justice, Washington, D.C. (Richard J.
Arcara, U.S. Atty., for the Western District of New York, Jerome M. Feit,
Atty., Dept. of Justice, Washington, D.C., of counsel), for plaintiffappellee, plaintiff-appellant United States.
Before SMITH and MESKILL, Circuit Judges, and HAIGHT,* District
Judge.
J. JOSEPH SMITH, Circuit Judge:

These are appeals by a defendant from judgments of conviction entered after

two separate jury trials in the United States District Court for the Western
District of New York, and by the government from a sentence imposed under
the "dangerous special offender" provisions of 18 U.S.C. 3575. In the first
trial, Harold P. Burke, Judge, presiding, the appellant, Eugene DiFrancesco,
was convicted of conspiring to participate in and conduct the affairs of an
enterprise through a pattern of racketeering activity, which included multiple
acts of arson and use of the mails to defraud insurance companies, in violation
of 18 U.S.C. 1962(c) and (d). In the second trial, George C. Pratt, Judge,

presiding by designation, DiFrancesco was convicted on three counts which

alleged that he willfully caused damage in excess of $100 to federal property,
18 U.S.C. 1361, unlawfully stored explosive materials, 18 U.S.C. 842(j),
and conspired to commit these acts, 18 U.S.C. 371. We affirm the convictions
and dismiss the government's appeal.
2

On July 24, 1975, DiFrancesco, together with seven co-defendants, was

indicted on charges arising out of a series of bombings that occurred in the
Rochester area on Columbus Day in 1970. A second indictment, filed on April
7, 1976, named DiFrancesco and seven others, two of whom were also
defendants in the bombing indictment, as defendants in two counts of
racketeering involving an "arson-for-hire" ring operating in the Rochester area.
Since this second indictment was the first to come to trial, we shall begin by
discussing DiFrancesco's appeal from the resulting conviction on the
racketeering charges.

RACKETEERING
3

DiFrancesco and five of the seven co-defendants in the racketeering indictment

were tried jointly, in September and October of 1977. Of the two remaining
defendants, Joseph LaNovara pleaded guilty before trial and testified as a
witness for the government, while Frank Valenti, the alleged leader of the
conspiracy, was severed upon the government's motion because he was ill.

The government presented evidence by which it sought to prove that an arsonfor-hire team, which operated as part of a larger organization engaged in illicit
activities in the Rochester area, had been responsible for at least eight fires that
occurred there between 1970 and 1973. The arson ring allegedly agreed with
the property owners to destroy their buildings in return for a share of the
insurance proceeds. The government charged that insurance companies had
been defrauded of about $480,000 as a result of the eight fires. The jury
acquitted four of the six defendants, but convicted DiFrancesco and Vincent
Rallo on both counts. DiFrancesco's appeal alleges several errors in the district
court.

The most substantial issue raised by DiFrancesco is whether certain statements

made by government witnesses to the FBI should have been turned over to the
defendants under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963). Shortly before this trial began, it was disclosed that
allegations of wrongdoing had been lodged against some members of the
Monroe County Sheriff's Office. These allegations arose in connection with the
Sheriff's Office's investigation of a number of crimes in which the defendants in

this case allegedly had been involved, including a murder for which
DiFrancesco had been convicted in state court. The FBI, as part of a federal
civil rights investigation of the Sheriff's Office's activities, conducted a number
of interviews and compiled interview reports.1 The subject matter of some of
these interviews included alleged instances of perjury by witnesses in state
court proceedings. Some of these witnesses were expected to be called by the
United States to testify in the case against DiFrancesco and his co-defendants.
6

When this matter arose, Judge Burke granted a continuance for one week
during which the government represented that it would seek to learn more
about the allegations and would then "turn over all materials that is (sic)
favorable to the defense that result from the investigation." The government
reviewed approximately thirty to thirty-five FBI reports and determined that
only one was Brady material. The government then submitted the reports to the
trial judge to allow him to decide whether he thought any of the remaining
material fell within Brady. The judge picked out about fifteen other reports
which he ruled were Brady material, but the government refused to turn over
these additional reports to the defendants. It argued that exposure of the reports
could endanger the ongoing civil rights investigation. Thus, the government
stated that it was "willing to stand or fall on that decision (that the reports were
not Brady material) made by itself." The court denied a motion that it order the
government to turn over the reports. Instead, those reports which the court
believed were Brady material were sealed as Court Exhibit A, and those which
the court and government agreed were not within Brady were sealed as Court
Exhibit B. At some later time, the government gave defense counsel the reports
of interviews of LaNovara and of Angelo Monachino, an unindicted coconspirator, who was to testify for the government. Both of these reports were
part of Court Exhibit A, as was a third report which the government eventually
turned over as Jencks Act material.

Our examination of the court exhibits convinces us that the reports included no
Brady material. None of the reports exculpated DiFrancesco, nor did any
demonstrate that the government's case included perjured testimony.
Furthermore, nothing in the reports that the government refused to turn over
constituted "material evidence that would impeach a Government witness
whose 'reliability . . . may well (have been) determinative of guilt or
innocence.' " Ostrer v. United States, 577 F.2d 782, 785 (2d Cir. 1978), Cert.
denied, 439 U.S. 1115, 99 S.Ct. 1018, 59 L.Ed.2d 73 (1979), Quoting Giglio v.
United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972),
Quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217
(1959). One report (Part A of Court Exhibit A) contains two comments
attributed to Monachino. Neither of these comments, however, could have been

used to impeach Monachino in any way that might have affected the outcome of
the trial, which is the standard by which we measure the materiality of
undisclosed information for which the defendant makes a specific request.
United States v. Agurs, 427 U.S. 97, 104-06, 96 S.Ct. 2392, 49 L.Ed.2d 342
(1976); Ostrer, supra, 577 F.2d at 786. In short, the FBI reports would have
added nothing to the vigorous attacks which DiFrancesco and his co-defendants
made upon the credibility of a number of the government's witnesses through
use of the substantial public information relating to the investigation.
8

DiFrancesco also raised several arguments involving evidentiary questions and

portions of the court's instructions to the jury. The first concerns the
introduction into evidence of a state court indictment that charged DiFrancesco
and others with an act of arson, a fire at Select Tire Company, that also
constituted part of a specific act of racketeering alleged in the federal
indictment. The government offered the indictment and had a portion of it read
to the jury as part of its rebuttal case, for the stated purpose of making the jury
aware of the final disposition of the state court case against one of the persons
named in the state indictment.

It is difficult to perceive how the indictment was relevant for the purpose stated
by the government. In fact, its relevance and materiality to any issue in the case
was, at best, minimal. Counsel for the various defendants, including
DiFrancesco, opened up the subject of the state court proceedings in their crossexamination of government witnesses. Introduction of the indictment, however,
was not, as the government now contends, necessary to clarify the "meaning" of
the outcome of the state trial.2 But admission of the indictment, even if
erroneous, did not prejudice DiFrancesco. The jury already knew, from the
defendants' cross-examination of government witnesses, that the state grand
jury had received testimony implicating DiFrancesco in the Select Tire fire, that
some persons had been tried in state court in connection with that fire, that
testimony alleging DiFrancesco's participation had been offered at the state
court trial, and that DiFrancesco had been named as a co-conspirator in yet
another federal indictment alleging mail fraud arising from a separate act of
arson. Under these circumstances, admission of the indictment, even if
erroneous, was harmless.

10

DiFrancesco also disputes the admissibility of certain testimony by LaNovara

and Monachino, who described the initiation ritual3 followed by the
organization of which the arson-for-hire ring was a part. Admission of this
testimony was not erroneous. The evidence was probative of the existence of an
"enterprise," the affairs of which were conducted through a pattern of
racketeering activity, which was a matter on which the court correctly charged

that the government had the burden of proof. The evidence was sufficiently
probative to outweigh any possible prejudice.
11

DiFrancesco next contends that the testimony that LaNovara and Monachino
were participants in the Federal Witness Protection Program, as authorized by
the Organized Crime Control Act of 1970, P.L. No. 91-452, Title V, 84 Stat.
933, should not have been allowed. Since a defendant often will seek to
impeach a participating witness by showing that he has received significant
benefits while in the program, the government may desire to bring out the
witness' participation during direct examination in order to avoid an inference
that the government was attempting to hide the witness' possible bias. Although
disclosure of such participation "must be handled delicately," United States v.
Partin, 552 F.2d 621, 644-45 (5th Cir.), Cert. denied,434 U.S. 903, 96 S.Ct.
1493, 47 L.Ed.2d 753 (1977), so as to minimize the possibility that the jury will
infer that the defendant was the source of danger to the witness, such testimony
is permissible so long as the prosecutor does not attempt to exploit it. No
exploitation occurred here, and the defendants cross-examined the witnesses at
length to develop the full extent of the benefits received by them. Thus there
was no error in allowing the testimony. Nor was the court's instruction to the
jury on this subject erroneous or insufficient.4 The instruction did not suggest,
as DiFrancesco argues, that the Attorney General was vouching for the
credibility of the witnesses. Instead, it simply explained the purpose of the
program and dispelled any implication that the benefits received by LaNovara
and Monachino were bestowed improperly. No additional instruction was
necessary. Id.

12

Lastly, DiFrancesco argues that the court removed an element of the crime
from the jury's consideration by instructing that, if the jury believed the
evidence that about $480,000 in claims was paid by insurance companies in
New York and other states as a result of the arsons and mail fraud, then the
enterprise did affect interstate commerce as required by 18 U.S.C. 1962(c).
This instruction was proper. The court left to the jury the question of fact,
whether the claims had been paid as a result of arson engaged in by the
defendants. The trial judge correctly determined, however, that if the
defendants' alleged actions were proven, the effect of those actions on interstate
commerce was a question of law. Cf. United States v. Ricciardi, 357 F.2d 91,
94 (2d Cir.), Cert. denied, 384 U.S. 942, 86 S.Ct. 1464, 16 L.Ed.2d 540 (1966)
(whether activities constitute an "industry affecting commerce" under 29 U.S.C.
186 is a question of law); United States v. Varlack, 225 F.2d 665, 670-72 (2d
Cir. 1955) (judge instructed that, if jury believed testimony of government
witnesses, defendant's acts affected commerce as defined in Hobbs Act, 18
U.S.C. 1951).

THE COLUMBUS DAY BOMBINGS

13

DiFrancesco's attack on his conviction arising from the bombing and

explosives charges focuses on the delay between his indictment and the
commencement of trial. He contends that the indictment should have been
dismissed because this delay violated the Speedy Trial Act, 18 U.S.C. 316174 ("the Act"), the Western District's Transitional Plan for Achieving the
Prompt Disposition of Criminal Cases ("the Plan"), and the sixth amendment's
guarantee of a speedy trial.

14

DiFrancesco was indicted on July 24, 1975 and arraigned on September 8,

1975. The relevant provisions of the Act, 18 U.S.C. 3161(g) and 3163(b)(2),
and of the Plan, 5(a)(1), did not take effect until July 1, 1976. They require
that trial of a defendant arraigned before the effective date shall commence
within 180 days of that date. Both the Act and the Plan ( 10(a)) provide,
however, for the exclusion of certain periods of delay set forth in 18 U.S.C.
3161(h) in computing the 180-day period. DiFrancesco contends that the nonexcludable delay in this case amounted to 309 days. The government, which
conceded in the district court that the 180-day period had expired, now argues
that the non-excludable delay totaled either 283, 273, 177 or 145 days, or
perhaps no time at all. We need not choose, however, from among these various
calculations, because 18 U.S.C. 3163(c) delays the effective date of the
sanctions provided in 3162 for violations of the Act until July 1, 1979, United
States v. New Buffalo Amusement Corp., 600 F.2d 368 at 376-377 (2d Cir.
1979); United States v. Carini, 562 F.2d 144, 148 (2d Cir. 1977), and 11(e) of
the Plan provides that failure to comply with its provisions shall not require
dismissal. New Buffalo Amusement Corp., supra, at 376 n.13.

15

Although the district court retains discretionary power under Rule 48(b) of the
Federal Rules of Criminal Procedure to dismiss an indictment because of
excessive delay, United States v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977),
DiFrancesco did not invoke that discretion and thus cannot complain of the
court's failure to exercise it. New Buffalo Amusement Corp., supra, at 376 n.13.

16

We turn therefore to DiFrancesco's claim that the pretrial delay violated his
sixth amendment right to a speedy trial. We shall assume for this purpose that
the delay exceeded that allowed under the Act and the Plan, since such a
violation may be considered in assessing the merit of a constitutional speedy
trial claim. Id. at 2758; Carini, supra, 562 F.2d at 148, 151-52. Nonetheless, we
agree with the district judge's thorough and well-reasoned opinion in which he
concluded that DiFrancesco's claim lacks merit. United States v. DiFrancesco,
Cr. 75-165 (W.D.N.Y. April 3, 1978).

17

The controlling authority is of course Barker v. Wingo, 407 U.S. 514, 92 S.Ct.
2182, 33 L.Ed.2d 101 (1972), in which the Court enunciated four factors to be
considered in evaluating a claim of a denial of the right to a speedy trial. These
factors are (1) the length of the delay; (2) the reason for the delay; (3) the
defendant's assertion of his right; and (4) the existence of prejudice to the
defendant from the delay. Id. at 530, 92 S.Ct. 2182. Other relevant
circumstances also may be considered in conducting a "difficult and sensitive
balancing process," Id. at 533, 92 S.Ct. 2182, " in which the conduct of both the
prosecution and the defendant are weighed." Id. at 530, 92 S.Ct. 2182, 2192.

18

The delay between indictment and trial in this case was about 30 months. The
government concedes that this is sufficient to "trigger" a further investigation of
the other factors. See id. at 530-31, 92 S.Ct. 2182; Carini, supra, 562 F.2d at
148-49. The reasons for the delay were numerous, including trials of
DiFrancesco on state charges and the federal racketeering charges, illness of his
attorney and of Judge Burke, to whom the case originally was assigned, the
participation of DiFrancesco's attorney in a trial on behalf of another client
(during which time Judge Burke denied the government's request to remove the
attorney from this case), and the pendency of motions by the defendants and the
government. Although the government bears the responsibility for some of the
delay, including that caused by "institutional factors" such as overcrowding of
the district court's docket, Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct.
2182, there is no suggestion in the record of any "deliberate attempt (by the
government) to delay the trial in order to hamper the defense," Id., and it is
apparent that DiFrancesco was responsible for a substantial portion of the
delay. Moreover, the government repeatedly moved to set a trial date, a fact
which distinguishes this case from United States v. Vispi, 545 F.2d 328, 334
(2d Cir. 1976). DiFrancesco, on the other hand, did not assert his speedy trial
claim until the eve of trial.5

19

The final factor, prejudice to the defendant, also fails to support DiFrancesco's
claim. He argues that the death of a potential witness, Samuel DiGaetano,
caused substantial prejudice which can be attributed to the delay. DiGaetano,
attorney for severed co-defendant Frank Valenti, allegedly would have testified,
in direct contradiction of a government witness, that Valenti was in Pittsburgh
on the day of and the day immediately preceding the bombings.6

20

We find no error in the district court's conclusion that the evidence presented to
it failed to support the contention that DiGaetano would have given such
testimony. Moreover, although DiGaetano's death apparently was caused by a
heart condition from which he had suffered for a substantial period of time,
DiFrancesco made no effort to preserve by deposition the testimony that

purportedly would have been given. In addition, as the district court noted,
DiFrancesco's motion and supporting materials contained no affidavit from
Valenti concerning his whereabouts on October 11 and 12. Although Valenti
was too ill to undergo trial at the same time as his co-defendants, there is no
indication that his illness prevented him from asserting, by affidavit or any
other means, his presence in Pittsburgh on the days in question.7
21

Even if we assume then that the Plan and Act were violated and weigh such
violation in our analysis of DiFrancesco's claim, the balance tips strongly
against his contention that his right to a speedy trial was violated.

22

DiFrancesco next argues that the court should have severed or declared a
mistrial as to Count II of the indictment because of an error that was not
discovered until the conclusion of the presentation of the government's case. At
that time it was learned that the language contained in Count II of the copies of
the indictment possessed by counsel for both the government and the
defendants differed from that in the copy filed with the court. The prosecutor
mistakenly had distributed copies of an earlier draft of the indictment, rather
than the final, filed version. The earlier draft, which all counsel had assumed to
be the actual indictment, named Valenti as the person who caused the damage
to the old Federal Building and named the other defendants, including
DiFrancesco, as aiders and abettors.8 The actual indictment named all the
defendants as principals and, in addition, merely cited 18 U.S.C. 2, the aiding
and abetting statute.9

23

DiFrancesco complains that as a result of this confusion, for which he bore no

fault, he was convicted under a theory at substantial variance from that which
he had a right to believe was the basis of the case. He argues that the assumed
indictment was more narrowly drawn than the actual, and that therefore, the
substitution of the actual version was forbidden by Stirone v. United States, 361
U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), which holds that a broadening of
the charges may only be accomplished by the grand jury itself.

24

The decision in Stirone, however, is not relevant to the circumstances presented

here. The Court relied in Stirone on the violation of "the defendant's substantial
right to be tried only on charges presented in an indictment returned by a grand
jury." Id. at 217, 80 S.Ct. at 273. There is no question that the count on which
DiFrancesco ultimately was tried and convicted actually was returned by the
grand jury, thus protecting his right to have his jeopardy limited to "offenses
charged by a group of his fellow citizens acting independently of either
prosecuting attorney or judge." Id. at 218, 80 S.Ct. at 273. DiFrancesco's real
claim is that he was not afforded notice of the charge on which he was

convicted. As the Supreme Court explained in Berger v. United States, 295

U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935), one of the reasons "that
allegations and proof must correspond is . . . the obvious (requirement) that the
accused shall be definitely informed as to the charges against him, so that he
may be enabled to present his defense and not be taken by surprise by the
evidence offered at the trial . . .." The protection of this right to notice of the
charges requires a determination "whether there has been such a variance as to
'affect the substantial rights' of the accused." Id.; United States v. Knuckles, 581
F.2d 305, 311 (2d Cir.), Cert. denied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d
659 (1978); See United States v. Garguilo, 554 F.2d 59, 63 (2d Cir. 1977).
25

No such prejudicial variance occurred here. Although the assumed indictment

was drawn somewhat more narrowly than was the actual indictment, the
evidence introduced and the theory of culpability advanced by the government
were not affected by the difference. The government offered no evidence as to
who actually delivered the bomb to the Federal Building. Its evidence
supported the narrower charge that Valenti "caused" the damage to the building
because he directed the conspiracy. Finally, the government withdrew the
aiding and abetting theory and proceeded on the "Pinkerton "10 theory that each
defendant was responsible for the substantive acts of his co-conspirators carried
out in furtherance of the conspiracy. This theory would have been permissible
under either version of Count II.

26

DiFrancesco's claim of prejudice is unsubstantiated. He contends that, had he

known the actual wording of the indictment, he would have conducted
additional cross-examination of Monachino and would not have entered into
certain stipulations. This contention is undermined, however, by counsel's
failure to ask the trial court to recall Monachino for further cross-examination
and his failure to withdraw any of the stipulations, which had not yet been
given to the jury. Since the difference in the two versions of the indictment
caused no prejudice to any substantial rights of the accused, the district court
did not err in denying severance or a mistrial.

27

DiFrancesco's final argument involves Count VI, which accused him of

unlawfully storing explosives. He contends that this count should have been
dismissed because there was no proof presented that the storage continued after
February 12, 1971, the effective date of 18 U.S.C. 842(j), which he was
charged with violating. We disagree.

28

The government offered evidence that, during the summer of 1970,

DiFrancesco brought two boxes that contained dynamite, guns and various
other items to a house in which Joseph Turri lived. DiFrancesco received

permission from Turri to store the boxes in the basement. On the night of
October 11, DiFrancesco removed a burlap bag from the box and brought it
upstairs to Turri's apartment, where a meeting of the conspirators was held.
There they used some of the material in the bag dynamite, fuses and blasting
caps to construct the explosive devices which were used in the bombings. After
the bombs had been made, the remaining material was put back into the bag.
DiFrancesco then left the room with the bag and returned without it a short time
later. No one actually saw DiFrancesco return the bag containing the remaining
explosives to the basement. Turri testified that he moved the boxes from the
basement to the attic of his new residence during the summer of 1971. Turri's
wife testified that DiFrancesco called her at some time in 1973 and asked her to
move the boxes from the attic to another location, which she did.
29

Although none of the witnesses actually examined the contents of the boxes
after the effective date of the statute, the jury properly could have inferred that
some of the explosives remained in the boxes after that time. The evidence
supported a logical inference that, when DiFrancesco left the October 11, 1970
meeting for several minutes and returned without the burlap bag, he had
returned the bag containing the remaining explosive materials to the boxes in
the basement, and that the explosives remained in the boxes while Turri moved
them to his new residence and until DiFrancesco asked that they be moved
again in 1973.

GOVERNMENT APPEAL OF THE SENTENCE

30

Prior to the start of DiFrancesco's trial on the racketeering counts, the

government, in compliance with 18 U.S.C. 3575(a), filed a notice with the
district court alleging that DiFrancesco was a "dangerous special offender," as
defined in 18 U.S.C. 3575(e)(3) and (f). The filing of such a notice indicates
the government's intention to seek, if the defendant is convicted, imposition of
an enhanced sentence as authorized by 18 U.S.C. 3575(b).

31

On March 17, 1978, after DiFrancesco had been convicted in both the
racketeering and bombing trials, Judge Burke held a sentencing hearing,
required by 3575(b), to obtain information which, with that submitted during
trial, would form the basis for his determination whether DiFrancesco was a
dangerous special offender. On April 21, the court issued findings of fact and
its conclusion that DiFrancesco was a dangerous special offender. United States
v. DiFrancesco, Cr. 76-45 (W.D.N.Y. April 21, 1978). One week later, the
court sentenced DiFrancesco to concurrent ten-year terms of imprisonment on
the two racketeering counts, to be served concurrently with sentences totaling
nine years which had been imposed by Judge Pratt on the bombing counts.

32

The government, under the authority granted by 18 U.S.C. 3576,11 filed a

notice of appeal from the sentence imposed by Judge Burke. DiFrancesco
argues that the trial judge did not abuse his discretion in setting the sentence
and, moreover, that such portion of 3576 as authorizes the government to
appeal a sentence where the defendant has not done so violates the double
jeopardy clause of the fifth amendment.12 Since the government's right to
appeal and thus our jurisdiction to consider the merits of the sentence are
dependent upon the constitutionality of the statutory provision, See United
States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 252 (1975), we
must immediately confront the constitutional issue.13

33

The concept of a government appeal to obtain an increase in a valid,

enforceable sentence14 was unknown to the American legal system throughout
most of this nation's two hundred year history. Few states have given their
appellate courts any power to increase a sentence, and in each instance where
the power exists, it may be exercised only if the defendant has initiated the
appellate proceeding by seeking review of the sentence.15 The United States,
prior to 1970, did not have statutory authority to seek an increase in a sentence.
In that year, however, Congress enacted 18 U.S.C. 3576, which provides that,
in a case involving a dangerous special offender, "a review of the sentence on
the record of the sentencing court may be taken by the defendant Or the United
States to a court of appeals." (Emphasis added.) The court of appeals is
authorized to review "whether the procedure employed was lawful, the findings
made were clearly erroneous, or the sentencing court's discretion was abused,"
and then to affirm the sentence, impose any sentence that the trial court could
have imposed, or remand for further sentencing proceedings.

34

The government has not rushed to make use of its new power to seek review of
sentences.16 Whether this has resulted from doubts about the constitutionality
of the procedure, an extraordinary degree of satisfaction with the sentences
imposed under the dangerous special offender provision, a decision to allocate
prosecutorial resources to other tasks, or other factors is of course only a matter
of speculation, but this case is apparently the government's first attempt to
obtain review of a sentence on appeal.17 Moreover, the government's primary
response to DiFrancesco's attack on the constitutionality of 3576 is not that
government-instigated review of a final sentence is constitutional, but rather
that the sentence imposed by the district court is merely "tentative" and that
thus the defendant is not placed twice in jeopardy.

35

The language of the statute does not support the construction urged by the
government. Section 3575(b) requires that, if the district court finds the
defendant to be a dangerous special offender, it "Shall sentence the defendant to

imprisonment for an appropriate term not to exceed twenty-five years . . .."

(Emphasis added.) This command is not tentative; the sentence imposed is
effective immediately.18 This procedure contrasts with that provided in, E. g.,
28 U.S.C. 636(b)(1), whereby a trial judge may designate a magistrate to
conduct a hearing in certain matters and to submit "proposed" findings and
recommendations, which have no force until they have been reviewed by the
judge, who may accept, reject or modify them. Nor is the procedure here
similar to that provided in 18 U.S.C. 4205(c) (formerly 18 U.S.C. 4208(b)),
to which it is compared by the government. Section 4205(c) allows a court that
desires more information before imposing sentence to commit the defendant to
the custody of the Attorney General for a period which will "be deemed to be
for the maximum sentence of imprisonment prescribed by law." After the court
obtains the desired information, it then may affirm the original commitment or
impose a different sentence which of course cannot exceed the aforementioned
maximum prescribed term. "It is plain that as far as the sentence is concerned
the original order entered under ( 4205(c)) is wholly tentative," because "(t)he
whole point of using ( 4205(c)) is, in its own language, to get 'more detailed
information as a basis for determining the sentence To be imposed . . ..'
(Emphasis supplied.)" United States v. Behrens, 375 U.S. 162, 164-65, 84 S.Ct.
295, 296, 11 L.Ed.2d 224 (1963). In contrast, the commitment ordered by the
district court pursuant to 3575 is neither tentative nor merely a predicate to a
sentence "to be imposed" by the court of appeals.
36

That Congress, as the government argues, could have written this statute in a
manner analogous to 4205(c) or in some other form which might not raise
problems of double jeopardy is an inadequate response to the contention that
the statute which Congress did write is constitutionally infirm. " '(A)ppeals by
the Government in criminal cases are something unusual, exceptional, not
favored,' at least in part because they always threaten to offend the policies
behind the double-jeopardy prohibition." Will v. United States, 389 U.S. 90,
96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967) (citations omitted). Therefore, we
are obliged to construe strictly the procedure that Congress has authorized and
to determine whether it, not some other, hypothetical procedure, offends the
double jeopardy clause.19

37

The plain command of the fifth amendment is that no "person (shall) be subject
for the same offense to be twice put in jeopardy of life or limb." Although the
phrase "life or limb" suggests only the most serious of penalties, it has long
been established that it encompasses all penalties which may be imposed in
criminal proceedings. Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44
L.Ed.2d 346 (1975); Ex parte Lange, 85 U.S. (18 Wall.) 163, 170-73, 21 L.Ed.
872 (1873). A defendant who has stood trial and been convicted and sentenced

by the district court has been placed once in jeopardy. Had the position
advocated by Mr. Justice Holmes, dissenting in Kepner v. United States, 195
U.S. 100, 134, 24 S.Ct. 797, 49 L.Ed. 114 (1904), prevailed, the double
jeopardy clause might present no barrier to an increased sentence on appeal.
Justice Holmes argued that "logically and rationally a man cannot be said to be
more than once in jeopardy in the same cause, however often he may be tried."
But the Supreme Court has never adopted this concept of "continuing
jeopardy," which, although it might have simplified the matter of government
appeals, United States v. Scott, 437 U.S. 82, 90 n. 6, 98 S.Ct. 2187, 57 L.Ed.2d
65 (1978), would have greatly decreased the fifth amendment's protection
against government oppression. The legislative history of 3576 demonstrates
that Congress was cognizant of possible constitutional objections to the
provision, but that it concluded that Kepner's rejection of the continuing
jeopardy concept should not apply to government appeal of a sentence rather
than of an acquittal. S.Rep. No. 617, 91st Cong., 1st Sess. 95 (1969). We
cannot perceive, however, how a defendant who, after being sentenced to
several years' imprisonment by a district court, might be subject to imposition
of a sentence of death upon a government appeal, would be any less placed
twice in jeopardy of life or limb than was the defendant in Kepner, who, after
acquittal in the court of first instance, was found guilty and sentenced to
imprisonment for slightly less than two years upon appeal by the government.
That 3576 subjects a defendant "merely" to a longer term of imprisonment,
not to the actual loss of his life, is a difference of degree, not principle, from the
example given, for the double jeopardy clause applies equally to all criminal
penalties. See Supra at 780. Under the statute the government, dissatisfied with
final judgment in one court, seeks a more favorable result in another tribunal.
Therefore, the conclusion appears inescapable that to subject a defendant to the
risk of substitution of a greater sentence, upon an appeal by the government, is
to place him a second time "in jeopardy of life or limb."
38

Since this is the first attempt to use a statute allowing such an appeal, there are
no precedents directly on point.20 But the substantial body of double jeopardy
case law, although hardly charting a straight-line path, See, e. g., United States
v. Scott, supra, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 overruling United
States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), supports
the conclusion that we reach.

39

The guarantee against double jeopardy has been said to consist of three separate
constitutional protections: (1) against a second prosecution for the same offense
after acquittal; (2) against a second prosecution for the same offense after
conviction; and (3) against multiple punishments for the same offense. North
Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).21

The interests underlying these protections are similar. United States v. Wilson,
supra, 420 U.S. at 343, 95 S.Ct. 1013. They promote the goal of preserving the
integrity of final judgments, Scott, supra, 437 U.S. at 92, 98 S.Ct. 2187, and
protect the individual against oppression by the government. Id. at 99, 98 S.Ct.
2187. More particularly, the protection against reprosecution after acquittal
safeguards the individual against the embarrassment, expense and ordeal of
repeated attempts by the government to use its resources and power to convict
him and reduces the danger that an innocent defendant may be found guilty.
Serfass v. United States, 420 U.S. 377, 387-88, 95 S.Ct. 1055, 43 L.Ed.2d 265
(1975); Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d
199 (1957). And, at the root of the second and third of these protections is the
idea, especially relevant here, expressed in Wilson, supra, 420 U.S. at 343, 95
S.Ct. at 1021-1022:
40
When
a defendant has been once convicted and punished for a particular crime,
principles of fairness and finality require that he not be subjected to the possibility of
further punishment by being again tried or sentenced for the same offense.
41

This concern was perhaps most clearly expressed in Ex parte Lange, supra, 85
U.S. (18 Wall.) at 183, 21 L.Ed. 872:

42

For of what avail is the constitutional protection against more than one trial if
there can be any number of sentences pronounced on the same verdict? Why is
it that, having once been tried and found guilty, he can never be tried again for
that offence? Manifestly it is not the danger or jeopardy of being a second time
found guilty. It is the punishment that would legally follow the second
conviction which is the real danger guarded against by the Constitution. But if,
after judgment has been rendered on the conviction, and the sentence of that
judgment executed on the criminal, he can be again sentenced on that
conviction to another and different punishment, or to endure the same
punishment a second time, is the constitutional restriction of any value? Is not
its intent and its spirit in such a case as much violated as if a new trial had been
had, and on a second conviction a second punishment inflicted?

43

The argument seems to us irresistible, and we do not doubt that the Constitution
was designed as much to prevent the criminal from being twice punished for
the same offence as from being twice tried for it.

44

The prohibition against multiple punishment22 has been so strongly felt that,
although the question of increasing a valid sentence has never been squarely
presented, numerous courts, including the Supreme Court, have emphatically
stated in dictum that such a procedure would be impermissible. In United States

v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931), the Court was
confronted with the question whether a district court has the power, upon
petition by a defendant, to reduce the sentence previously imposed on him. The
Court noted the then-prevailing general rule that judgments, decrees and orders
could be amended, modified or vacated by the court that made them, during the
term at which they were made. It stated that this rule applied to criminal cases,
"provided the punishment be not augmented," Id. at 307, 51 S.Ct. at 114, and
held that because the district court had decreased, not increased, the
punishment, it had acted within its power.23 The unanimous Court then stated
that the distinction between decreasing and increasing a sentence was based
"upon the ground that to increase the penalty is to subject the defendant to
double punishment for the same offense in violation of the Fifth Amendment to
the Constitution . . . ." Id.
45

In Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711 (1900),
the Supreme Court rejected the argument that the double jeopardy clause was
offended when a defendant, whose original sentence had been vacated at his
behest because the statute under which it was imposed was unlawfully applied,
was resentenced under the appropriate statute to a term longer than the original
one. The Court, however, distinguished the case before it from one in which
"the (trial) court undertook to impose In invitum a second or additional sentence
for the same offense, Or to substitute one sentence for another." Id. at 160, 20
S.Ct. at 641 (emphasis added). And again in Reid v. Covert, 354 U.S. 1, 37 n.
68, 77 S.Ct. 1222, 1241 n. 68, 1 L.Ed.2d 1188 (1957), Mr. Justice Black's
plurality opinion, discussing the application of the Bill of Rights to military
trials, stated:

46 Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823, this Court held
In
that the President or commanding officer had power to return a case to a courtmartial for an increase in sentence. If the double jeopardy provisions of the Fifth
Amendment were applicable such a practice would be unconstitutional.
47

In Walsh v. Picard, 446 F.2d 1209 (1st Cir. 1971), Cert. denied, 407 U.S. 921,
92 S.Ct. 2465, 32 L.Ed.2d 807 (1972), the court upheld the Massachusetts
statute which allows a reviewing court to increase as well as decrease the
sentence of a defendant who seeks sentence review. But the court explicitly
noted that "the Massachusetts procedure does not permit the state to reopen the
question of sentence on its own initiative. Were it to do so, it would of course
violate the proscription against double jeopardy." Id. at 1211. Several other
courts of appeal, including this one, have stated that a sentence may not be
increased, at least where, as here, the punishment already has been partly
suffered, United States v. Chiarella, 214 F.2d 838, 841 (2d Cir.), Cert. denied,

348 U.S. 902, 75 S.Ct. 226, 99 L.Ed. 708 (1954); Oxman v. United States, 148
F.2d 750, 753 (8th Cir.), Cert. denied, 325 U.S. 887, 65 S.Ct. 1569, 89 L.Ed.
2001 (1945); Frankel v. United States, 131 F.2d 756, 758 (6th Cir. 1942);
Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499, 501 n. 3 (1940), and the
defendant has not challenged the sentence. United States v. Coke, 404 F.2d
836, 845 (2d Cir. 1968) (en banc).
48

Although such dicta of course are not legally binding, their number and the
high authority of their sources offer impressive evidence of the strength and
prevalence of the view that the double jeopardy clause bars an increase in the
sentence imposed by the district court.

49

The conclusion reached here does not conflict with the Supreme Court's
decision in North Carolina v. Pearce, supra, 395 U.S. 711, 89 S.Ct. 2072, 23
L.Ed.2d 656. There the Court held that the double jeopardy clause did not
prohibit imposition of a greater sentence On retrial than had been imposed at
the original trial of a defendant, Where the defendant succeeded in getting his
first conviction set aside. The Court relied in Pearce on United States v. Ball,
163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), which had established that
"this constitutional guarantee imposes no limitations whatever upon the power
to Retry a defendant who has succeeded in getting his first conviction set
aside," Pearce, supra, 395 U.S. at 720, 89 S.Ct. at 2078 (emphasis in original),
and on Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919),
which held that a corollary of that power to retry was the power to impose any
legally authorized sentence.

50

Although various rationales have been advanced and rejected for the rule that a
defendant may be retried after reversal of an original conviction, See Burks v.
United States, 437 U.S. 1, 15 n. 9, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the
Court most recently adopted, in its unanimous opinion in Burks, id. at 15, 98
S.Ct. at 2149, the justification offered in United States v. Tateo, 377 U.S. 463,
466, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964):

51would be a high price indeed for society to pay were every accused granted
It
immunity from punishment because of any defect sufficient to constitute reversible
error in the proceedings leading to conviction.
52

This rationale,24 however, does not fully explain the result in Pearce since a
defendant would not be granted immunity from punishment if the sentence on
retrial were limited to that imposed at the first trial. Rather, Pearce depends too
on a second line of reasoning, that the double jeopardy protection simply has no
relevance where "the original conviction has, at the defendant's behest, been

wholly nullified and the slate wiped clean." Pearce, supra, 395 U.S. at 721, 89
S.Ct. at 2078. This outcome does not result from any "waiver" of double
jeopardy protections, as was suggested in Trono v. United States, 199 U.S. 521,
533, 26 S.Ct. 121, 50 L.Ed. 292 (1905), and rejected in Green v. United States,
supra, 355 U.S. at 191-92, 78 S.Ct. 221, but instead is compelled by the fact
that "the Double Jeopardy Clause, which guards against Government
oppression, does not relieve a defendant from the consequences of his voluntary
choice." Scott, supra, 437 U.S. at 99, 98 S.Ct. at 2198.
53

Here, however, neither factor that militated against the application of the
double jeopardy clause to resentencing in Pearce is present. There is not the
slightest danger that DiFrancesco will go unpunished if the government's
appeal is dismissed. The ten-year terms imposed on him by Judge Burke are
valid and enforceable, and in fact are already being served. Moreover,
DiFrancesco has made no "voluntary choice" that has subjected him to jeopardy
for a second time. He faces the risk of an increased sentence solely because the
government desires a second chance to obtain a sentence satisfactory to it.25

54

We do not deny the existence of legitimate governmental interests that might be

served by allowing the government to appeal a sentence, E. g., improved
uniformity in sentencing. But such interests must be pursued in alternative ways
that do not conflict with the fifth amendment's guarantee against double
jeopardy. "(W)here (, as here,) the Double Jeopardy Clause is applicable, its
sweep is absolute. There are no equities to be balanced, for the Clause has
declared a constitutional policy, based on grounds which are not open to
judicial examination." Burks v. United States, supra, 437 U.S. at 11 n. 6, 98
S.Ct. at 2147. To subject Eugene DiFrancesco for a second time to the risk of
the entire range of penalties that the law provides for his crimes would violate
that constitutional policy. The appeal by the government therefore must be
dismissed.

55

The judgments of conviction are affirmed, and the appeal by the government is
dismissed.

56

HAIGHT, District Judge (concurring in the result on the government's appeal).

57

I concur in Judge Smith's opinion affirming DiFrancesco's convictions, and

agree that the government's appeal must be dismissed. However, I would base
that dismissal upon the non-constitutional ground of the inapplicability of 18
U.S.C. 3576 in the circumstances of this case.

58

In United States v. Batchelder, --- U.S. ----, ----, 99 S.Ct. 2198, 2199, 60
L.Ed.2d 755 (1979), the Supreme Court reiterated the maxim "that statutes
should be construed to avoid constitutional questions," going on to state:

59 'cardinal principle' of statutory construction . . . is appropriate only when an

"This
alternative interpretation is 'fairly possible' from the language of the statute. Swain
v. Pressley, 430 U.S. 372, 378 n. 11, 97 S.Ct. 1224, 1228, 51 L.Ed.2d 411 (1977);
see Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932);
United States v. Sullivan, 332 U.S. 689, 693, 68 S.Ct. 331, 334, 92 L.Ed. 297
(1948); Shapiro v. United States, 335 U.S. 1, 31, 68 S.Ct. 1375, 1391, 92 L.Ed. 1787
(1948)."
60

While neither DiFrancesco nor the government raised the issue below, this
"cardinal principle" of statutory construction permits a court to consider Sua
sponte whether the sentencing procedures in 3575 and 3576 can be
interpreted so as to avoid the constitutional question. Clearly such an
interpretation is "fairly possible" from the language of the statute.

61

Governmental appeal of a sentence under 3576 is available only in respect of

an individual properly proceeded against in the district court as a "dangerous
special offender" under 3575(a). To come within the statute, the offender
must be both "special" as defined by 3575(e), and "dangerous" as defined by
3575(f). DiFrancesco qualifies as "special" under 3575(e)(3).1 He is
"dangerous" under 3575(f) if, and only if, "a period of confinement Longer
than that provided for such felony is required for the protection of the public
from further criminal conduct by the defendant." (emphasis added).

62

Section 3575(b) provides in pertinent part:

63 it appears by a preponderance of the information, including information

"If
submitted during the trial of such felony and the sentencing hearing and so much of
the presentence report as the court relies upon, that the defendant is a dangerous
special offender, the court shall sentence the defendant to imprisonment for an
appropriate term not to exceed twenty-five years and not disproportionate in severity
to the maximum term otherwise authorized by law for such felony. Otherwise it shall
sentence the defendant in accordance with the law prescribing penalties for such
felony."
64

I construe the statute to provide the district judge with an additional capacity to
impose a sentence of up to twenty-five years in cases where the underlying
statute, standing alone, would not permit a term of such duration. Stated

conversely, if the period of confinement provided for the felony by the

underlying statute equals or exceeds twenty-five years, the dangerous special
offender statute has no office to perform.2
65

If that is the proper interpretation of the dangerous special offender statute, it

could not apply to DiFrancesco. DiFrancesco was prosecuted under the
racketeering statute, 18 U.S.C. 1961 Et seq. He was convicted of a
substantive offense under 1962(c),3 and conspiracy under 1962(d).4 The
district court had the unquestioned power under the underlying statute, entirely
without regard to the dangerous special offender statute, to sentence
DiFrancesco to two consecutive 20 year terms, for a total of 40 years,5 or 15
years longer than the maximum term permitted by 3576. The district court's
discretionary power to impose consecutive, rather than concurrent, sentences
upon a defendant convicted on more than one count has been recognized for so
long6 that it may fairly be regarded as inherent in the "period of confinement . .
. provided for such felony" by the underlying statute. In urging sentencing
judges to impose consecutive sentences where the circumstances permit,
prosecutors can and frequently do make the same arguments (the defendant is
dangerous, the public must be protected) that the dangerous special offender
statute contemplates.

66

Such arguments could have been made in the case at bar, and a sentence passed
in excess of the maximum permitted by 3576, entirely on the basis of the
underlying felony statute, and the district court's well-established discretionary
power to impose separate sentences on separate counts and make them run
consecutively. I interpret 3575 and 3576 to be inapplicable in those
circumstances and would dismiss the government's appeal on that ground,
leaving the constitutional question for a case in which it cannot be avoided.7

Honorable Charles S. Haight, Jr., United States District Judge for the Southern
District of New York, sitting by designation

This investigation resulted in the filing of an indictment in the Western District

on April 12, 1979 against five members of the Monroe County Sheriff's Office.
United States v. Kennerson, Cr. 79-65

Only two of the defendants named in the state court indictment had been tried.
The jury acquitted Joseph Nalore, one of DiFrancesco's co-defendants in this
case, but was unable to agree on a verdict as to Lawrence Uchie. Uchie then
entered an "Alford plea" of guilty, see North Carolina v. Alford, 400 U.S. 25,
91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the state charges, while at the same

time maintaining his innocence

3

The ritual, which included the recitation of an oath of loyalty to the

organization, consisted of pricking one's trigger finger, absorbing the blood in a
tissue and holding the tissue in one's hand while it burned

The court instructed the jury:

You have heard numerous references during the course of this trial to the
Federal Witness Protection Program. Federal law provides that the Attorney
General of the United States is authorized to provide for the security of
government witnesses, potential government witnesses and potential witnesses
in legal proceedings against any person alleged to have participated in any
organized crime activity.
Federal law also provides that the Attorney General of the United States is
authorized to provide for the health, safety and welfare of witnesses and
persons intended to be called as government witnesses and the families of
witnesses and persons intended to be called as government witnesses in legal
proceedings instituted against any person alleged to have participated in an
organized crime activity whenever in his judgment testimony from, or a
willingness to testify by such a witness would place his life or person or the life
or person of a member of his family or household in jeopardy.

Two of DiFrancesco's co-defendants, but not DiFrancesco himself, moved for

dismissal of the indictment in March 1977, alleging a violation of the Speedy
Trial Act. These motions of course do not evidence any assertion by
DiFrancesco of His right to a speedy trial

The government contended at trial that Valenti arranged and conducted a

meeting in Rochester on October 11, 1979, at which the bombings were
planned, and that he also took part in the bombings

The absence of evidence to support the claim of prejudice perhaps is explained

by Valenti's subsequent plea of guilty, entered on February 15, 1979 before
Judge Curtin, to one count of the indictment in this case. Valenti entered his
plea after the attorney for the Department of Justice had recited a summary of
the testimony which the government would have offered if the case against
Valenti had gone to trial. This included testimony placing Valenti in Rochester
on October 11 and 12. Valenti offered no objection or comment in response to
this summary

Count II of the draft of the indictment charged:

THAT, on or about October 11 and 12, 1970, in the Western District of New
York, the Defendant herein, FRANK J. VALENTI unlawfully did wilfully
cause the wilful injury to and commission of depredations against the property
of the United States of America and the departments and agencies thereof
namely the premises known as the (old) Federal Building located at Church and
Fitzhugh Streets in the City of Rochester, New York the damages to the said
premises having exceeded the sum of $100:
AND, at the time and place aforesaid, RENE J. PICCARRETO, SALVATORE
GINGELLO, THOMAS DIDIO, DOMINIC CELESTINO, EUGENE DI
FRANCESCO, ANGELO VACCARA and ANTHONY GINGELLO, the
Defendants herein, unlawfully did aid, abet, counsel, command, induce and
procure the commission of the aforesaid offense, all of which was in violation
of the provisions of Sections 1361 and 2 of Title 18 of the United States Code.
9

Count II of the filed indictment charged:

THAT, on or about October 11 and 12, 1970, in the Western District of New
York, the Defendants herein, FRANK J. VALENTI, RENE J. PICCARRETO,
SALVATORE GINGELLO, THOMAS DIDIO, DOMINIC CELESTINO,
EUGENE DI FRANCESCO, ANGELO VACCARO and ANTHONY
GINGELLO unlawfully and wilfully did injure and cause injury to and the
commission of depredations against the property of the United States of
America and the departments and agencies thereof namely, the premises known
as the (old) Federal Building located at Church and Fitzhugh Streets in the City
of Rochester, New York the damages to the said premises having exceeded the
sum of $100, all of which was in violation of the provisions of Sections 1361
and 2 of Title 18 of the United States Code.

10

Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 90 L.Ed. 1489
(1946)

11

18 U.S.C. 3576 provides:

With respect to the imposition, correction, or reduction of a sentence after
proceedings under section 3575 of this chapter, a review of the sentence on the
record of the sentencing court may be taken by the defendant or the United
States to a court of appeals. Any review of the sentence taken by the United
States shall be taken at least five days before expiration of the time for taking a
review of the sentence or appeal of the conviction by the defendant and shall be
diligently prosecuted. The sentencing court may, with or without motion and
notice, extend the time for taking a review of the sentence for a period not to
exceed thirty days from the expiration of the time otherwise prescribed by law.
The court shall not extend the time for taking a review of the sentence by the

United States after the time has expired. A court extending the time for taking a
review of the sentence by the United States shall extend the time for taking a
review of the sentence or appeal of the conviction by the defendant for the
same period. The taking of a review of the sentence by the United States shall
be deemed the taking of a review of the sentence and an appeal of the
conviction by the defendant. Review of the sentence shall include review of
whether the procedure employed was lawful, the findings made were clearly
erroneous, or the sentencing court's discretion was abused. The court of appeals
on review of the sentence may, after considering the record, including the
entire presentence report, information submitted during the trial of such felony
and the sentencing hearing, and the findings and reasons of the sentencing
court, affirm the sentence, impose or direct the imposition of any sentence
which the sentencing court could originally have imposed, or remand for
further sentencing proceedings and imposition of sentence, except that a
sentence may be made more severe only on review of the sentence taken by the
United States and after hearing. Failure of the United States to take a review of
the imposition of the sentence shall, upon review taken by the United States of
the correction or reduction of the sentence, foreclose imposition of a sentence
more severe than that previously imposed. Any withdrawal or dismissal of
review of the sentence taken by the United States shall foreclose imposition of
a sentence more severe than that reviewed but shall not otherwise foreclose the
review of the sentence or the appeal of the conviction. The court of appeals
shall state in writing the reasons for its disposition of the review of the
sentence. Any review of the sentence taken by the United States may be
dismissed on a showing of abuse of the right of the United States to take such
review.
12

Although DiFrancesco asserts that 3576 also runs afoul of the due process
and equal protection clauses of the fifth amendment, he frames his argument
solely in terms of double jeopardy. In light of our disposition of the double
jeopardy claim, we need not consider whether other constitutional provisions
might also prohibit the government's appeal

13

Judge Haight argues in his opinion concurring in the result that 3575 was
inapplicable to DiFrancesco and that therefore it is unnecessary to reach the
constitutional issue because (1) 3575(f) provides that a defendant is
"dangerous" "if a period of confinement longer than that provided for such
felony is required . . ."; (2) 3575(b) provides for a maximum term of twentyfive years; and (3) DiFrancesco already was subject, without use of the
dangerous special offender sentencing provision, to a total sentence of forty
years, consisting of consecutive twenty-year terms for each of the two counts of
which he was convicted

However, a defendant who has been convicted on more than one count comes
before the district court for sentencing on each of the counts for which he has
been convicted. The determination whether a defendant is a "special offender"
for the purpose of sentencing on each count depends upon whether the
particular felony in question satisfies the requirements of 3575(e). Moreover,
the language of 3575(f) refers to a need for confinement longer than that
provided for the underlying "felony," not "felonies."
Therefore, the application of 3575 depends on a particularized determination
with regard to each of the felonies for which dangerous special offender
sentencing is sought. Indeed, the district court did consider each of
DiFrancesco's two convictions separately and imposed separate, albeit
concurrent, sentences for them. Since the maximum sentence of twenty years
for each of DiFrancesco's two felony convictions was less than the twenty-five
year term available under 3575, the district court properly could find that the
statute was applicable.
We express no opinion as to whether 3575 authorizes the imposition of
consecutive sentences totaling more than twenty-five years.
14

Where the original sentence imposed by the trial court is invalid because of, E.
g., failure to impose a mandatory minimum penalty, the sentence may be
corrected, even if doing so increases the punishment, because otherwise "no
valid and enforceable sentence can be imposed at all." Bozza v. United States,
330 U.S. 160, 166, 67 S.Ct. 645, 649, 91 L.Ed. 818 (1947). Here, however, the
sentence imposed by Judge Burke was within that legally authorized and thus is
enforceable

15

As of 1978, Alaska, Colorado, Connecticut, Maine, Maryland, Massachusetts,

Montana and New Hampshire allowed appellate courts to increase a sentence,
but only if the defendant sought review. Citations to these states' statutory
provisions are collected in Dunsky, The Constitutionality of Increasing
Sentences on Appellate Review, 69 J.Crim.L. & Criminology 19, 20 nn. 7-8
(1978). This court knows of no state which subsequently has authorized an
increased sentence upon prosecutorial appeal

16

Such power also exists under 21 U.S.C. 849, a similar provision which deals
with "dangerous special drug offenders." This provision also was enacted in
1970. Since that time, legislation has been introduced in Congress, as part of
the proposed comprehensive revision of the federal criminal code, to extend the
government's power to seek sentence review beyond the dangerous offender
context to encompass all cases in which the sentence imposed by the district
court varies by some preestablished degree from proposed sentencing

guidelines. See, E. g., 3725 of the Criminal Code Reform Act of 1977, S.
1437, 95th Cong., 1st Sess. (1977). Such legislation has not been enacted
17

The government has directed our attention to several other appellate decisions
dealing with aspects of the dangerous special offender provisions. In none of
these cases, however, did the government seek review of a sentence imposed
under 3575. Rather, the government has appealed a district court's refusal to
sentence a defendant under the special provisions because, E. g., the district
court ruled that the government had failed to comply with 3575's notice
provision, United States v. Ilacqua 562 F.2d 399 (6th Cir. 1977), Cert. denied,
435 U.S. 917, 98 S.Ct. 1473, 55 L.Ed.2d 509 (1978), or it held the statute to be
unconstitutionally vague. United States v. Stewart, 531 F.2d 326 (6th Cir.),
Cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976). In these
cases, the court of appeals vacated the non-enhanced sentences imposed under
the ordinary sentencing provisions and remanded for resentencing under
3575. Although the defendants thereby were exposed to the possibility of an
increased penalty upon resentencing, this danger resulted from their voluntary
decisions to contest the use of 3575 in the original proceedings. Thus, these
previous cases did not involve the double jeopardy considerations raised by the
government's attempt to appeal a sentence actually imposed under 3575. See
text, Infra, at 782

18

DiFrancesco is presently incarcerated in federal prison at Atlanta, Georgia,

serving the sentences imposed by Judge Pratt and Judge Burke

19

We note that at least some of the alternative procedures suggested by the

government would raise issues that Congress did not have to consider in
enacting 3576. For example, a system whereby the district court tentatively
imposed the maximum permissible sentence with provision for review and
possible reduction by the court of appeals would likely result in an appeal of the
sentence being taken by the defendant in every dangerous special offender
case. This would increase the appellate caseload and in effect would reverse the
usual presumption of finality which is accorded district court orders and
judgments. Since we cannot know how Congress would weigh these additional
considerations, we must reject the government's suggestion that a failure to read
3576 in the light of possible alternatives will result in frustration of the
Congressional intent
We of course express no opinion as to the constitutionality of any alternative
methods by which sentencing review might be accomplished.

20

The existing and proposed provisions for government appeal of sentences have
generated a substantial amount of comment in the legal literature. Some

commentators have argued that such provisions violate the guarantee against
double jeopardy, E. g., Spence, The Federal Criminal Code Reform Act of
1977 and Prosecutorial Appeal of Sentences: Justice or Double Jeopardy?, 37
Maryland L.Rev. 739 (1978); Note, Twice in Jeopardy: Prosecutorial Appeals
of Sentences, 63 Virginia L.Rev. 325 (1977), while others have contended that
the provisions would be constitutional, E. g., Dunsky, The Constitutionality of
Increasing Sentences on Appellate Review, 69 J.Crim.L. & Criminology 19
(1978), and at least one commentator has surveyed the competing arguments
and concluded that "the answer is simply unclear." Low, Special Offender
Sentencing, 8 Am.Crim.L.Q. 70, 91 (1970)
21

In addition, it is now clear that a defendant's "valued right to have his trial
completed by a particular tribunal," Wade v. Hunter, 336 U.S. 684, 689, 69
S.Ct. 834, 837, 93 L.Ed. 974 (1949), is also encompassed by the double
jeopardy clause. Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156, 57 L.Ed.2d 24
(1978)

22

The principle that the double jeopardy clause bars multiple punishment has not
been undermined by the Supreme Court's statements that the prohibition of the
double jeopardy clause "is not against being twice punished, but against being
twice put in jeopardy," United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192,
1194, 41 L.Ed. 300 (1896), and "is written in terms of potential or risk of Trial
and conviction, not punishment." Breed v. Jones, 421 U.S. 519, 532, 95 S.Ct.
1779, 44 L.Ed.2d 346 (1975) (emphasis in original), Quoting Price v. Georgia,
398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed. 200 (1970). In each of those cases,
the Court was not limiting the scope of double jeopardy protection, but instead
was rejecting arguments that the clause prohibited Only multiple punishment.
The Court held that the double jeopardy clause prohibits retrial where the
defendant has been the subject of an express, Ball, or implied, Price, acquittal,
or of a juvenile proceeding in which he was found guilty but where no
disposition was entered. Breed

23

Rule 35 of the Federal Rules of Criminal Procedure now permits a district court
to reduce a sentence within 120 days after the sentence is imposed or the
conviction is affirmed on appeal

24

Cf. Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d
717 (1978) (failure to allow retrial after mistrial declared because of "manifest
necessity" would deprive society of its "one complete opportunity to convict
those who have violated its laws"; Bozza v. United States, 330 U.S. 160, 166,
67 S.Ct. 645, 649, 91 L.Ed. 818 (1947) (invalid sentence may be corrected even
if doing so necessitates increase in punishment because otherwise "no valid and
enforceable sentence can be imposed at all" and a convicted criminal will go

free)
25

The government correctly does not contend that DiFrancesco has exposed
himself to an increased sentence by appealing his conviction. Section 3576
distinguishes between an appeal of a conviction, which brings before us only
the propriety of the process by which the defendant was convicted, and a
review of a sentence. The statute allows the government to seek review of a
sentence without regard to whether the defendant has chosen to appeal
That it might be constitutionally permissible to impose consent to sentence
review as a condition to exercise of a defendant's right to appeal, Cf. Walsh v.
Picard, 446 F.2d 1209 (1st Cir. 1971) (constitutional to allow increase as well
as decrease in sentence when defendant petitions for sentence review), a
question which we need not decide, is irrelevant here, where 3576 imposes no
such condition. Considerations of due process would require that a defendant be
informed of such a consequence of his decision to appeal.

Section 3575 provides:

"(e) A defendant is a special offender for purposes of this section if
"(3) such felony was, or the defendant committed such felony in furtherance of,
a conspiracy with three or more other persons to engage in a pattern of conduct
criminal under applicable laws of any jurisdiction, and the defendant did, or
agreed that he would, initiate, organize, plan, finance, direct, manage, or
supervise all or part of such conspiracy or conduct, or give or receive a bribe or
use force as all or part of such conduct."
The district court found that the conspiratorial elements of the crimes for which
DiFrancesco was convicted satisfied the requirements of the statute. A.51-56.

The legislative history is not voluminous on the point, but such indications as
there are favor this interpretation. The Assistant Attorney General, Criminal
Division, writing to the House Judiciary Committee on the wording of
3575(b), and particularly on the point of whether the statute should read "shall"
sentence or "may" sentence, said in part:
"We think that the term 'shall' as used here is appropriate. It conforms with the
language generally used in the sentencing provisions of title 18, which has not
previously been misconstrued as providing for a mandatory minimum sentence.
Furthermore, inasmuch as an offender in any of the three defined categories is
to be considered 'dangerous' Only when the court finds that a longer prison term
than that which may be imposed for the felony of which he has been convicted
is required to protect the public from further criminal conduct on his part, it

would be incongruous for the court to fail to sentence a 'dangerous' offender to

any prison term at all. Therefore, a provision that some such term of
imprisonment 'shall' be imposed is appropriate for the purposes of the title. If a
court finds that the usual maximum term for the felony, or any lesser term, is
all that should be imposed, by definition the court could not find the defendant
to be a dangerous special offender. The proposed change from 'shall' to 'may'
therefore, would serve no purpose." 2 U.S.Code Cong. & Admin.News, pp.
4007, 4065-6 (1970) (emphasis added).
The House Report says of 3575(f):
"Subsection (f) provides that a defendant is 'dangerous' if confinement longer
than that ordinarily provided is required to protect the public from further crime
by him." Id. at 4039.
I construe the phrase "ordinarily provided" to mean the penalties provided by
the underlying felony statute.
3

That section 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."

That section provides:

"It shall be unlawful for any person to conspire to violate any of the provisions
of subsections (a), (b), or (c) of this section."

18 U.S.C. 1963 provides in pertinent part:

"(a) Whoever violates any provision of section 1962 of this chapter shall be
fined not more than $25,000 or imprisoned not more than twenty years, or both,
and shall forfeit to the United States (1) any interest he has acquired or
maintained in violation of section 1962, and (2) any interest in, security of,
claim against, or property or contractual right of any kind affording a source of
influence over, any enterprise which he has established, operated, controlled,
conducted, or participated in the conduct of, in violation of section 1962."

See United States v. Daugherty, 269 U.S. 360, 363, 46 S.Ct. 156, 70 L.Ed. 309
(1926), adopting the reasoning of Neely v. United States, 2 F.2d 849, 852-3 (2d
Cir. 1924), which in turn relied upon the statement in Ex parte DeBara, 179

U.S. 316, 322, 21 S.Ct. 110, 113, 45 L.Ed. 207 (1900) that a court, by
exercising such sentencing options, "may express its views of the criminality of
a defendant . . . ."
I do not find in the legislative history of the special dangerous offender act
specific reference to the trial judge's ability to impose consecutive sentences in
multiple count indictments, but the Congress must surely have been aware of so
established a power.
7

If my interpretation of the statute is wrong, and the constitutional question is

unavoidably presented by this case, then I am in complete agreement with
Judge Smith's scholarly demonstration that the statute violates the double
jeopardy clause of the fifth amendment