US. v. DiFrancesco
Decided on December 9, 1980; 449 US 117

The Court reviews whether the Organized Crime Control Act of 1970 imposes double jeopardy


A. Issues Discussed: Criminal Justice (procedure), 5th Amendment, Organized Crime Control Act of 1970

B. Legal Question Presented:

Does the Organized Crime Control Act of 1970, which authorizes the government to appeal the criminal sentence imposed upon a "dangerous special offender," violate the Double Jeopardy Clause of the Fifth Amendment? 


A. Background:

The Crime Control Act of 1970, 18 U.S.C. Section 3576, grants the United States the right, under specified circumstances, to appeal the sentence imposed on a "dangerous special offender."  In 1977, at a trial in a federal district court, respondent Eugene DiFrancesco was convicted of federal racketeering offenses.  At another jury trial in 1978 (before a different judge in the same District) based on an indictment returned prior to the racketeering indictment, respondent was convicted of damaging federal property, of unlawfully storing explosive materials, and of conspiring to commit those offenses.

Respondent was first sentenced, in March, 1978, for his convictions at the 1978 trial. He received eight years on the charge for damaging federal property and five years on the conspiracy charge (both sentences to be served concurrently), and one year on the unlawful storage charge (to be served consecutively to the other sentences). This made a total of nine years imprisonment. In April, respondent was sentenced as a dangerous special offender under Section 3575 to two 10-year terms on the racketeering counts upon which he was convicted at the 1977 trial; the court specified that these two 10-year sentences were to be served concurrently with each other, and with the sentences imposed in March. The dangerous special offender charge and sentences thus resulted in an additional punishment of only about one year.

Respondent appealed the judgments of conviction to the Court of Appeals for the Second Circuit, and the United States sought review, under § 3576, of the sentences imposed upon respondent as a "dangerous special offender." The Court of Appeals unanimously affirmed the judgments of conviction. By a divided vote, however, the court dismissed the Government's appeal on double jeopardy grounds. The US Supreme Court granted the Government's petition for certiorari.
B. Counsel of Record:
Opposing Side
Edgar C. DeMoyer argued the cause and filed a brief for respondent.
Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General McCree, Assistant Attorney General Heymann, and Victor D. Stone.
C. The Arguments:
Opposing Side
Unavailable Unavailable


Opposing Side
Briefs of amici curiae urging affirmance were filed by Quin Denvir and Laurance S. Smith for the State Public Defender of California and by Martin Michaelson for the American Civil Liberties Union. No amici curiae briefs were filed on behalf of Petitioner.

"The exaltation of form over substance is to be avoided. The Court has said that in the double jeopardy context it is the substance of the action that is controlling, and not the label given that action. Congress could have achieved the purpose of Section 3576 by a slightly different statute whose constitutionality would be unquestionable. Congress might have provided that a defendant found to be a dangerous special offender was to receive a specified mandatory term, but that the trial court then could recommend a lesser sentence to the court of appeals, which would be free to accept the recommendation or to reject it. That scheme would offer no conceivable base for a double jeopardy objection. Yet the impact on the defendant would be exactly the same as, and possibly worse than, the impact under Section 3576 as written. No double jeopardy policy is advanced by approving one of these procedures and declaring the other unconstitutional.

It is perhaps worth noting... that 3576 represents a considered legislative attempt to attack a specific problem in our criminal justice system, that is, the tendency on the part of some trial judges 'to mete out light sentences in cases involving organized crime management personnel.' The Challenge of Crime in a Free Society, Report by the President's Commission on Law Enforcement and Administration of Justice 203 (1967). Section 3576 was Congress' response to that plea. The statute is limited in scope and is narrowly focused on the problem so identified. It is not an example of 'Government oppression' against which the Double Jeopardy Clause stands guard...

We conclude that 3576 withstands the constitutional challenge raised in the case before us... The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."

Held: The judgment of the Court of Appeals is reversed
Justice Vote: 4 Pro vs. 5 Con
  • Blackmun, H. Con (Wrote majority opinion)
  • Powell, L. Con (Joined majority opinion)
  • Stewart, J. Con (Joined majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Burger, W. Con (Joined majority opinion)
  • Brennan, W. Pro (Wrote dissenting opinion)
  • Stevens, J. Pro (Wrote dissenting opinion, joined Brennan’s dissent)
  • Marshall, T.  Pro (Joined Brennan’s dissent)
  • White, B. Pro (Joined Brennan’s dissent)

The ACLU filed as amicus curiae urging affirmance; the US Supreme Court reversed the Court of Appeals in a 5-4 vote, giving the ACLU an apparent loss.