REUBEN STURMAN, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-1510

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   QUESTIONS PRESENTED
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The memorandum decision of the court of appeals (Pet. App. A1-A8)
is unreported, but the judgment is noted at 919 F.2d 147 (Table).  The
opinion of the district court (Pet. App. A9-A28) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 20,
1990.  A petition for rehearing was denied on February 20, 1991.  The
petition for a writ of certiorari was filed on March 29, 1991.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the RICO conspiracy count against petitioner was barred
by the Double Jeopardy Clause because of petitioner's previous
acquittal for non-RICO conspiracy.

   2. Whether the court of appeals employed an incorrect standard of
review in affirming the denial of petitioner's motion to dismiss the
indictment on double jeopardy grounds.

                               STATEMENT

   On February 10, 1989, a grand jury in the District of Nevada
returned an indictment against petitioner charging him with
participating in the affairs of an enterprise through a pattern of
racketeering activity (RICO), in violation of 18 U.S.C. 1962(c);
conspiring to commit a RICO violation, in violation of 18 U.S.C.
1962(d);  six counts of interstate transportation of obscene material,
in violation of 18 U.S.C. 1462;  and two counts of mailing obscene
material, in violation of 18 U.S.C. 1461.  Thereafter, petitioner
moved to dismiss the RICO counts on double jeopardy grounds.  The
district court denied the motion, Pet. App. A9-A28, and the court of
appeals affirmed, id. at A1-A8.

   1. In the substantive and conspiracy counts under the RICO statute,
the February 1989 indictment charged that, from June 1973 until the
date of the indictment, petitioner and others conducted the affairs of
the Talk of the Town bookstore, a so-called "adult" bookstore in Las
Vegas, Nevada, with affiliates in Nevada and California, through a
pattern of racketeering activity.  Indictment, Count 1 Paragraph 2;
Count 2 Paragraph 2.  According to the indictment, petitioner and his
co-conspirators used the bookstore to conduct a mail order business in
sexually explicit films and videotapes.  Count 1 Paragraph 4.  It was
part of the conspiracy that various business operations controlled by
petitioner, including Sovereign News Co. and Sundial Distributors,
would supply the bookstore and its affiliates with sexually explicit
material for resale, Count 1 Paragraph 5;  that, at the behest of
petitioner, a portion of the revenues obtained through the bookstore
and its affiliates would regularly be transported to Los Angeles,
California, and to Cleveland, Ohio, where petitioner lived, Count 1
Paragraph 8;  and that the identity of the individuals who owned and
operated the bookstore, including petitioner, would be concealed
through the use of nominees and fictitious persons, Count 1 Paragraph
9.  The RICO counts alleged the commission, from January 4, 1985,
until July 23, 1987, of eight predicate acts of racketeering
consisting of the interstate transportation or mailing of obscene
material.  Count 1 Paragraph 10;  Count 2 Paragraph 3.

   2. In 1976, petitioner was indicted in the Northern District of
Ohio for conspiring with Sovereign News and others not charged in the
instant indictment to violate the federal obscenity laws, in violation
of 18 U.S.C. 371, and with numerous substantive obscenity offenses.
The alleged conspiracy, which lasted from September 1973 to March
1976, entailed the wholesale distribution of obscene material from
Sovereign News in Cleveland, Ohio, via interstate carriers and the
mail.  Pet. App. A11.  All the overt acts charged in the 1976
indictment consisted of the shipment of obscene material to an adult
bookstore in Fort Worth, Texas.  Pet. 7.

   At the trial on the 1976 indictment, the government introduced
exhibits relating to shipments of obscene material to the Talk of the
Town bookstore and other bookstores at issue in the instant
indictment.  Pet. App. A17.  The government also introduced evidence
indicating that the distribution channel used by the Cleveland
conspiracy included bookstores controlled by petitioner that received
their material either directly from Sovereign News or from Sovereign
News's regional distributors, including Sundial Distributors in
Denver.  Ibid.  After trial, petitioner was acquitted on all counts.

   3. Relying on Grady v. Corbin, 110 S. Ct. 2084 (1990), petitioner
moved to dismiss the RICO counts in the instant case on double
jeopardy grounds.  He argued that, in proving the RICO counts, the
government would necessarily prove the same conspiracy of which he had
previously been acquitted.  The district court rejected that
contention, holding that "(t)he 'conduct' at issue here is (not) the
conspiracy the government attempted to establish in the 1978 Cleveland
trial." Pet. App. A16.  The court explained that during the Cleveland
trial the government focused on the conspiracy between Sovereign News
and the regional distributors regarding the wholesale distribution of
obscene materials, and not on petitioner's involvement with retail
bookstores.  Id. at A17-A20.  Accordingly, the court concluded that
"(the) Cleveland conspiracy is not an essential element of this
indictment, since the government does not need to prove the existence
of the Cleveland conspiracy in order to convict (petitioner) in this
case." Id. at A21-A22.

   The district court further held that, even if the two indictments
charged the same conspiracy under Grady, the Double Jeopardy Clause
still would not bar the instant prosecution.  Pet. App. A22-A23.  The
court explained that Grady "may be reasonably limited to situations
where all of the conduct giving rise to the various criminal offenses
either occurs at the same instant or is completely known to the
government before it begins the initial prosecution." Id. at A23.  The
court observed that here, by contrast, none of the predicate acts had
occurred and much of the evidence was not available to the government
at the time of the earlier indictment and trial.  Id. at A24.  The
court thus concluded that the instant indictment charges "new conduct"
whose prosecution is not barred by the Double Jeopardy Clause, even if
that conduct is a continuation of the previously prosecuted
conspiracy.  To hold otherwise, the court stated, would be to "grant
(petitioner) immunity from any further conspiracy charge even though
the conspiracy may in fact exist and engage in illegal activities."
Id. at A26-A27.

   4. Petitioner took an interlocutory appeal under Abney v. United
States, 431 U.S. 651 (1977), from the denial of his motion to dismiss.
 The court of appeals affirmed.  Pet. App. A1-A8.  It concluded that
the district court was not "clearly wrong" in its determination that
the instant indictment charges "a different agreement entered into by
different conspirators with a different focus than the Cleveland
conspiracy." Id. at A6.  While acknowledging that "evidence was
introduced at the Cleveland trial describing the distribution of
materials to retail bookstores and indicating (petitioner) and some of
his codefendants controlled a number of such bookstores," the court
concluded that "the only agreement the government attempted to prove
was one between (petitioner) and regional distributors of
pornography." Id. at A7.  Because of its determination that the two
indictments did not charge the same "conduct" within the meaning of
Grady, the court did not consider whether Grady "necessarily applies
to the type of offenses charged in this indictment." Id. at A6 n.1.

                               ARGUMENT

   1. Petitioner contends (Pet. 24-36, 44-50) that his previous
conspiracy prosecution forecloses the instant RICO conspiracy charge
under the Double Jeopardy Clause.  The courts below properly rejected
that claim.

   a. The courts of appeals to address the issue have uniformly held
that the Double Jeopardy Clause permits successive prosecutions for
non-RICO conspiracy and RICO conspiracy, even when the government uses
some of the same evidence concerning the defendant's actions to prove
both conspiracies.  E.g., United States v. Gonzalez, 921 F.2d 1530
(11th Cir. 1991), petition for cert. pending, No. 90-7857;  United
States v. Gambino, 920 F.2d 1108 (2d Cir. 1990), petition for cert.
pending, No. 90-1689;  United States v. Scarpa, 913 F.2d 993,
1013-1014 (2d Cir.), cert. denied, 111 S. Ct. 57 (1990);  United
States v. Grayson, 795 F.2d 278, 282-283 (3d Cir. 1986), cert. denied,
479 U.S. 1054 (1987);  United States v. Schell, 775 F.2d 559, 568 (4th
Cir. 1985), cert. denied, 475 U.S. 1098 (1986);  United States v.
Watchmaker, 761 F.2d 1459, 1466-1468 (11th Cir. 1985);  United States
v. Brooklier, 637 F.2d 620 (9th Cir. 1981), cert. denied, 459 U.S.
1206 (1983).  Cf. Garrett v. United States, 471 U.S. 773, 786, 789-790
(1985) (suggesting that complex offenses like RICO are not the "same
offense" for double jeopardy purposes as their underlying predicate
acts).  /1/ The decision of both courts below that petitioner's
acquittal of a conspiracy under 18 U.S.C. 371 does not preclude later
prosecution for RICO conspiracy thus comports fully with all prior
federal appellate precedent.

   b. Even if a non-RICO conspiracy prosecution could in some
instances preclude a subsequent RICO conspiracy charge, the RICO
conspiracy charge against petitioner would not be barred, because each
conspiracy constituted a separate offense under the totality of the
circumstances test traditionally employed by the courts to determine
whether two conspiracies are the same for double jeopardy purposes.
See, e.g., United States v. Ruggiero, 754 F.2d 927, 932 (11th Cir.),
cert. denied, 471 U.S. 1127 (1985);  United States v. Langella, 804
F.2d 185, 189 (2d Cir. 1986);  United States v. MacDougall, 790 F.2d
1135, 1144 (4th Cir. 1986);  United States v. Marable, 578 F.2d 151,
154 (5th Cir. 1978).  Pursuant to that test, the factors to be
considered are the time periods of the conspiracies;  the places where
the pertinent events occurred;  the persons acting as co-conspirators;
 the statutory offenses that were the objects of the conspiracies;
and the overt acts committed in furtherance of the conspiracies.  See
Marable, 578 F.2d at 154.

   Here, although the two conspiracies overlapped for a period of
three years, the RICO conspiracy continued for 13 years after the
indictment for the Cleveland conspiracy, and all of the predicate acts
of racketeering charged in the RICO indictment postdated the earlier
indictment.  The earlier conspiracy took place primarily in Cleveland,
while the RICO conspiracy was centered in Las Vegas, and petitioner
was the only party named in both indictments.  Further, the earlier
indictment charged a conspiracy to violate the obscenity laws through
the wholesale distribution of obscene materials, while the RICO
indictment charged a conspiracy to violate the substantive provision
of the RICO statute by operating retail "adult" bookstores.  Finally,
there was no overlap whatever between the overt acts charged in the
two indictments.  On this record, there can be no doubt that the two
conspiracies were not the same.

   c. Quite apart from the differences for double jeopardy purposes
between the two conspiracies, petitioner's successive federal
prosecutions were permissible because the RICO conspiracy continued
for 13 years past the date of the earlier indictment and all the
predicate acts of racketeering charged against petitioner postdated
that indictment.  As the Court held in Garrett, 471 U.S. at 791-792, a
defendant may be successively prosecuted where the second-charged
offense was not committed until after the earlier indictment, because
the earlier indictment could not have put him in jeopardy for that
offense.  See id. at 797-798 (O'Connor, J., concurring).  Under
petitioner's argument, a member of a conspiracy who has once been
prosecuted for conspiring to commit certain offenses would obtain a
lifetime grant of immunity from future prosecution for conspiring to
commit the same offenses at a later date, even if he continued
indefinitely to promote the commission of those criminal acts through
his membership in the conspiracy.  /2/

   d. In support of his claim, petitioner relies on Grady v. Corbin,
110 S. Ct. 2084 (1990), in which the Court held that "the Double
Jeopardy Clause bars a subsequent prosecution if, to establish an
essential element of an offense charged in that prosecution, the
government will prove conduct which constitutes an offense for which
the defendant already has been prosecuted." Id. at 2087.  Grady,
however, does not help petitioner's cause.

   First, the Grady test has no application in the RICO context.  In
Grady the successive prosecutions involved simple offenses --
misdemeanor traffic violations and homicide -- that occurred
simultaneously during a single course of conduct spanning a brief
period of time.  A RICO charge, by contrast, entails proof of multiple
criminal acts committed in furtherance of an ongoing enterprise and
occurring over an extended time span.  As the Court stated in Garrett,
471 U.S. at 788, a complex offense such as RICO does not "lend itself
to the simple analogy of a single course of conduct." Contrary to
petitioner's contention (Pet. 47-48), the courts of appeals have found
Grady inapplicable in RICO cases.  See United States v. Gonzalez, 921
F.2d at 1535-1539;  United States v. Link, 921 F.2d 1523 (11th Cir.
1991);  United States v. Esposito, 912 F.2d 60 (3d Cir. 1990);  United
States v. Pungitore, 910 F.2d 1084, 1109-1111 (3d Cir. 1990), cert.
denied, No. 90-1145 (May 13, 1991).  But see United States v. Russo,
906 F.2d 77 (2d Cir. 1990) (accepting government's concession on facts
of that case that Grady barred prosecution for acts that had been
charged as predicate acts in a prior RICO prosecution).

   Even if the Grady test does apply in this context, the non-RICO and
RICO conspiracies in this case did not involve the same conduct.  As
we have shown, the two prosecutions entailed separate agreements to
achieve different objectives over substantially different time
periods.  Accordingly, both courts below correctly concluded that "the
Cleveland conspiracy is not an essential element of this indictment,
since the government need not prove the existence of the Cleveland
conspiracy in order to convict (petitioner) in this case." Pet. App.
A6, A21-A22.  Although evidence was introduced at the Cleveland trial
describing the distribution of materials to retail bookstores and
indicating that petitioner and his co-defendants controlled a number
of such bookstores, the retail distribution of obscene materials was
not the conduct for which petitioner was prosecuted.  Nor does the
introduction of evidence regarding the Talk of the Town bookstore at
the earlier trial alter the analysis.  Grady does not bar the use of
the same evidence at successive trials, as long as the two
prosecutions are not for the same conduct.  110 S. Ct. at 2093.

   Finally, Grady did not renounce the rule allowing successive
prosecutions where, as here, the offense charged in the later case had
not been completed at the time of the indictment in the earlier case.
See United States v. Gambino, 920 F.2d at 1112-1113;  United States v.
Scarpa, 913 F.2d at 1013-1014 n.8;  United States v. Pungitore, 910
F.2d at 1111, 1115 & n.37.  As noted above, that rule was established
quite clearly in Garrett -- a case cited in Grady with apparent
approval, see 110 S. Ct. at 2091, 2094 n.15 -- and the Grady Court
itself expressly reaffirmed that the Double Jeopardy Clause does not
bar a subsequent prosecution where "the State is unable to proceed on
the (latter) charge at the outset because the additional facts
necessary to sustain that charge have not occurred." 110 S. Ct. at
2090 n.7.  /3/

   2. Petitioner contends (Pet. 37-44) that the court of appeals
should have reviewed his double jeopardy claim de novo rather than
under the "clear error" standard of review.  As petitioner points out
(Pet. 41-42), the courts of appeals have differed concerning the
appropriate standard of review in Abney appeals of district court
factual findings concerning whether two charged conspiracies
constitute the "same offense." Compare United States v. Beachner
Construction Co., 729 F.2d 1278, 1281 (10th Cir. 1984) (clearly
erroneous standard);  and United States v. Bendis, 681 F.2d 561,
565-566 (9th Cir. 1981) (same), cert. denied, 459 U.S. 973 (1982);
and United States v. Jabara, 644 F.2d 574, 577 (6th Cir. 1981) (same),
with United States v. Benefield, 874 F.2d 1503, 1505 (11th Cir. 1989)
(de novo standard);  and United States v. Ciancaglini, 858 F.2d 923,
926 (3d Cir. 1988) (same).

   All of the above cited cases involved successive conspiracy
prosecutions brought under the same statute.  In each instance, to
determine whether the second conspiracy was the "same offense" as that
charged in the earlier prosecution, the district court had to answer
the essentially factual question whether the successive conspiracy
charges were based on the same agreement.  Insofar as the courts of
appeals have disagreed concerning the standard of review of such
district court decisions, their disagreement concerns the appropriate
standard of review of such essentially factual determinations.

   The appropriate standard of review in Abney appeals of such factual
determinations is not at issue in this case, for two reasons.  First,
the indictment in this case charges a conspiracy offense that is
different as a matter of law from that for which petitioner was
indicted in 1976.  As discussed above, the conspiracy charged in the
current indictment continued for 13 years after the conspiracy charged
in petitioner's earlier prosecution.  Under settled principles
reiterated in Garrett and Grady, the government is thus permitted as a
matter of law to prosecute the instant conspiracy regardless of the
prior prosecution.  /4/ See pp. 7, 9, supra.  Second, the current
indictment charges petitioner with RICO conspiracy, in violation of 18
U.S.C. 1962(d), while he was charged in his earlier prosecution with
ordinary conspiracy under 18 U.S.C. 371.  Thus, while the above cases
concern the standard of review of factual determinations whether two
indictments charging violation of the same statute charge different
offenses, this case involves the fundamentally different question
whether an indictment charging RICO conspiracy charges a different
offense from an earlier indictment charging conspiracy under 18 U.S.C.
371.  As noted above, see pp. 5-6, supra, every court of appeals to
reach the issue has rejected the claim that a RICO conspiracy is the
same offense as a previously charged conspiracy under another statute.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   JOEL M. GERSHOWITZ

      Attorney

   MAY 1991

   /1/ In Scarpa and Grayson, successive prosecutions were held
permissible even though the previously adjudicated non-RICO conspiracy
was specifically alleged as a predicate act in the RICO conspiracy
indictment.  The result in this case, in which the non-RICO conspiracy
was not itself charged as a predicate act, follows a fortiori from
Scarpa and Grayson.

   /2/ Where, as here, the first prosecution results in an acquittal,
the defendant would of course be protected against future prosecutions
under the doctrine of collateral estoppel of Ashe v. Swenson, 397 U.S.
436 (1970).  Petitioner does not claim in his petition that the
doctrine of collateral estoppel would bar the present prosecution.

   /3/ Contrary to petitioner's argument (Pet. 47), United States v.
Calderone, 917 F.2d 717 (2d Cir. 1990), petition for cert. pending,
No. 90-1527, does not support his invocation of Grady.  In Calderone,
a non-RICO case, the court held that, under Grady, the defendants'
acquittal on charges of participating in a wide-ranging, multi-drug
conspiracy barred a subsequent prosecution alleging a narrower,
single-drug conspiracy.  However, the same court has held that Grady
does not bar successive prosecutions for non-RICO and RICO
conspiracies in circumstances similar to those of the present case.
Gambino, 920 F.2d at 1112-1113;  Scarpa, 913 F.2d at 1013-1014 n.8.

   Nor need this case be held pending the Court's dispostion of the
petition for a writ of certiorari in United States v. Felix, 926 F.2d
1522 (10th Cir. 1991), petition for cert. pending, No. 90-1599.  Felix
does not involve a RICO charge, but instead concerns the
permissibility of prosecution for narcotics conspiracy and substantive
narcotics offenses after a prior prosecution for attempt to
manufacture narcotics in which evidence relevant to the narcotics
conspiracy and the substantive narcotics charges was introduced to
show intent.

   /4/ In Bendis, Benefield, and Ciancaglini, the later indictment
similarly charged a conspiracy that had not yet been completed when
the defendant was indicted for the conspiracy charged in the earlier
indictment.  See Bendis, 681 F.2d at 563;  Benefield, 874 F.2d at
1504;  Ciancaglini, 858 F.2d at 929.  Thus, although the Garrett
principle permitting successive prosecutions where the second
indictment charges a crime continuing past the date of the first
indictment could have been used to decide each of those cases, the
courts of appeals in those cases chose not to rely on that possible
ground of decision.  Instead, they chose to review the district
court's factual finding concerning whether the successive conspiracy
prosecutions were based on the same agreement.  The standard of review
question thus concerns only such district court factual findings in
Abney appeals.