20 F.R.D. 33 (S.D.N.Y. 1956), United States v. Dioguardi
|Citation:||20 F.R.D. 33|
|Opinion Judge:||EDELSTEIN, District Judge.|
|Party Name:||UNITED STATES of America, Plaintiff, v. John DIOGUARDI, also known as ‘ Johnny Dio’, Charles Tuso, Charles Salvatore Carlino, also known as ‘ Charley Woppie’, Domenico Bando, also known as ‘ Nick Bando’, Leo Telvi, Joseph Peter Carlino, also known as ‘ Joe Peelo’, and Gondolfo Miranti, also known as ‘ Shiekie’, Defendants.|
|Attorney:||Paul W. Williams, U.S. Atty., Southern Dist. of New York, New York City, by Thomas B. Gilchrist, Jr., New York City, of counsel, for plaintiff. Noah L. Braunstein, New York City, for defendant John Dioguardi.|
|Case Date:||October 15, 1956|
|Court:||United States District Courts, 2nd Circuit, Southern District of New York|
Proceedings upon motions to dismiss and for change of venue in criminal case arising from alleged acid-throwing attack upon newspaper columnist. The District Court, Edelstein, J., held, in part, that where, because prejudicial newspaper publicity was nation wide, it could not be assumed, without speculation or conjecture, that impartial jury could not be selected from district in which prosecution was brought, motion for change of venue on account of local prejudice would be denied, with leave to renew motion at trial if it should appear that fair and impartial jury could not be secured.
Defendants have been indicted for the crime of conspiring to obstruct justice by intimidating prospective witnesses before the grand jury. Central to the conspiracy alleged was an acid-throwing attack upon Victor Riesel, a nationally syndicated newspaper columnist. The heinous and despicable deed was, of course, accorded a wide news coverage. But when the accused defendants were arrested, on August 29, 1956, an avalanche of publicity broke loose from all media of communications. It is charged that representatives of the Department of Justice, including the United States Attorney, engendered the sensational news exploitation in large part by issuing public statements in such detail and intensity as to amount to a preview of
the Government's case, or a ‘ trial by newspaper’, calculated to create in the mind of the public the guilt of defendants not only before trial, but even before indictment. For much of this news coverage occurred while the grand jury was in session and before September 7, 1956, when an indictment was returned.1 The defendant Dioguardi has moved for a dismissal of the indictment, or, in the alternative, for a change of venue.2
Defense counsel emphasizes at length, in his affidavit, that much of the material appearing in the newspapers, on radio, on television and in news reels was ‘ fed’ to them by representatives of the United States Department of Justice including the United States Attorney. Indeed, it does appear from newspaper accounts that there were detailed statements by representatives of the United States Department of Justice made even before an indictment was filed in this case, to the effect that the crime had been ‘ solved’, and setting forth in detail the persons by whom and the manner and means by which it was committed. While the Government indicates in brief and in oral argument that much of the material that found its way into the press was derived merely from statements properly made at arraignments, nevertheless, substantial charges by the defendant are not denied, by affidavit or otherwise. To the extent that ‘ trial by newspaper’ was indulged in by Federal law-enforcement officials, it is to be regretted and condemned.3 But the issues
raised by the defendant's motion require an examination into the existence and prejudicial effect of the publicity, rather than into its source and inspiration.
The motion to dismiss is based on the proposition, be it one of law or fact, that the deliberations of the grand jury must have been tainted by the flood of prejudicial publicity. In Delaney v. United States, 1 Cir., 199 F.2d 107, 112, 39 A.L.R.2d 1300, the court said, in finding no reversible error in a trial court denial of a motion to dismiss the indictment: ‘ The damaging publicity resulting from the King Committee hearings took place after the indictments had been handed down, and cannot be supposed to have infected the deliberations of the grand jury.’ Defendant argues that this is implied authority for holding that a motion to...
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