DONALD J. PAONE, PETITIONER V. UNITED STATES OF AMERICA

   SAMUEL RUSSOTI, PETITIONER V. UNITED STATES OF AMERICA

   RENE PICCARRETO, PETITIONER V. UNITED STATES OF AMERICA

   RICHARD J. MARINO AND JOSEPH R. ROSSI, PETITIONERS V. UNITED STATES
OF AMERICA

   Nos. 85-1892, 85-1901, 85-1902, and 85-1949

   In the Supreme Court of the United States

   October Term, 1986

   On Petitions for a Writ of Certiorari to the United States Court of
Appeals for the Second Circuit

   Supplemental Brief for the United States in Opposition

   The seventh question presented in this case is whether consecutive
sentences may be imposed for convictions under the Racketeer
Influenced and Corrupt Organizations Act (RICO) substantive and
conspiracy provisions, 18 U.S.C. 1962(c) and (d).  Petitioners Marino
and Rossi (85-1949 Pet. 25-27) ask the Court to review that question,
relying on a conflict between the Sixth Circuit's decision in United
States v. Sutton, 642 F.2d 1001 (1980) (en banc), cert. denied, 453
U.S. 912 (1981) -- holding that consecutive sentences may not be
imposed -- and the uniformly contrary decisions of the other courts of
appeals.  The Sixth Circuit in Sutton reasoned that because the same
evidence at trial supported both the RICO substantive and conspiracy
convictions, the convictions must be merged for purposes of
sentencing.  In our brief in opposition in this case (Br. 25-27), we
contended that the Court need not resolve the conflict among the
circuits on this question.  We observed (Br. 27) that, in light of
subsequent developments, the Sixth Circuit might reconsider its
decision in the Sutton case.  /1/

   On January 23, 1987, the Sixth Circuit decided United States v.
Callanan, No. 86-1140, in which the court abandoned the rationale of
its decision in the Sutton case.  In Callanan the court of appeals
held that concurrent sentences may be imposed for convictions under
the RICO substantive and conspiracy provisions.  The court observed
(slip op. 2) that this question turns on whether "Congress intended a
defendant's conduct to be punishable under both provisions."
Consistent with the analysis applied by all of the other circuits that
have addressed the issue (see Br. 26), the court of appeals first
considered (slip op. 2-3) whether, under this Court's decision on
Blockburger v. United States, 284 U.S. 299 (1932), the substantive and
conspiracy offenses each required proof of a fact that the other did
not.  The court answered this question affirmatively (slip op. 3).
The court next reviewed (id. at 3-6) the legislative history of the
RICO provisions, discerning in that history "Congress' intent to allow
punishment under both Sections 1962(c) and 1962(d)" (id. at 5).  The
court expressly rejected (id. at 6-7) the argument -- crucial to its
earlier holding in Sutton -- that because the proof at the trial in
this case had been the same for both offenses, there could not be
separate punishments.  "(T)he relevant inquiry," the court held
(ibid.), "examines the proof necessary to establish the statutory
elements."

   To be sure, the Callanan case by its terms resolved only the
availability of concurrent sentences for RICO conspiracy and
substantive convictions.  But in deciding that question the court of
appeals made clear that its reasoning applies equally to the question
of consecutive sentences.  The court cited (slip op. 4-5) United
States v. Sutton, 700 F.2d 1078 (6th Cir. 1983) (Sutton II), and
United States v. Rone, 598 F.2d 564 (9th Cir. 1979), cert. denied, 445
U.S. 946 (1980), for the proposition that consecutive sentences may be
imposed for a RICO charge and a predicate offense.  The court
concluded (slip op. 5) that under its analysis in the present case
"Congress' express purposes in enacting RICO suggest the same
conclusion * * * concerning conspiracy to violate and actual violation
of RICO proscriptions."

   The Callahan case thus represents a rejection of Sutton by the
Sixth Circuit, in favor of the contrary analysis applied by the other
courts of appeals.  Accordingly, there is no longer any real conflict
among the circuits on the seventh question presented.

   For the reasons set forth in this supplemental brief and in our
main brief in opposition, the petitions for a writ of certiorari
should be denied.

   CHARLES FRIED

      Solicitor General

   FEBRUARY 1987

   /1/ Our opening brief in opposition in this case also responded to
the petition of Thomas E. Marotta, No. 85-1883.  On October 14, 1986,
the Court denied certiorari as to petitioner Marotta.  We have,
accordingly, deleted his name from the caption in this brief.