244 F.2d 833 (2nd Cir. 1957), 377, United States v. Bando

Docket Nº:377, 24483.
Citation:244 F.2d 833
Party Name:UNITED STATES of America, Appellee, v. Domenico BANDO, a/k/a 'Nick Bando, ' Leo Telvi and Gondolfo Miranti, a/k/a 'Shiekie, ' Appellants.
Case Date:May 13, 1957
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 833

244 F.2d 833 (2nd Cir. 1957)

UNITED STATES of America, Appellee,

v.

Domenico BANDO, a/k/a 'Nick Bando, ' Leo Telvi and Gondolfo Miranti, a/k/a 'Shiekie, ' Appellants.

Nos. 377, 24483.

United States Court of Appeals, Second Circuit.

May 13, 1957

Argued April 1 and 2, 1957

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Aaron B. Z. Silver, Brooklyn, N.Y., for appellant Bando.

Matthew H. Brandenburg, New York City, (Daniel H. Greenberg, of counsel), for appellant Miranti.

Chester E. Kleinberg, New York City, Milton H. Miller, Brooklyn (Chester E. Kleinberg, New York City, and Milton H. Miller, Brooklyn, of counsel), for appellant Leo Telvi.

Paul W. Williams, U.S. Atty., for Southern District of New York, New York City (Arthur H. Christy, Robert Kirtland, Earl J. McHugh and Adelbert C. Matthews, Jr., Asst. U.S. Attys., New York City, of counsel), for appellee.

Before CLARK, Chief Judge, LUMBARD, Circuit Judge, and LEIBELL, District Judge.

LEIBELL, District Judge.

The indictment herein charged John Dioguardi, Charles Tuso, Theodore Rij, Charles Salvatore Carlino, Domenico Bando, Leo Telvi, Joseph Pater Carlino and Gondolfo Miranti with the crime of conspiracy (T. 18 U.S.C. § 371) 1 in that

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they had conspired to injure Victor Riesel, a witness before a Federal grand jury in the Southern District of New York in a 'rackets' investigation (thereby violating § 1503 of T. 18 U.S.C., the Obstructing Justice statute); 2 and in that they had conspired to remove one of the co-conspirators Abe Telvi from the State of New York 'in order to protect the said Abe Telvi from arrest upon charges of violating the laws of the State of New York, and in order to prevent his prosecution therefor and likewise the prosecution of the said defendants' (thereby violating § 1073 of Title 18 U.S.C., the Fugitive Felon Act). 3

Abe Telvi's assault on Victor Riesel, by throwing acid in Riesel's face, was committed in the early morning of April 5, 1956, when Riesel was leaving a restaurant in the Borough of Manhattan. Riesel was blinded by the acid. The assault was a violation of Section 1400 of the New York Penal Law, McK. Consol. Laws, c. 40, 4 in that it 'maimed' Riesel by destroying an 'organ of his body, ' his eyes; and in that it 'seriously disfigured his person' by burning his face. It was an offense under the State law, and also part of an alleged conspiracy of the defendants, except Leo Telvi, to obstruct justice.

'Maiming' by throwing acid in the face of the victim would also constitute the common law crime of 'mayhem'

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mentioned in Sec. 1073 of T. 18 U.S.C., as one of the types of crimes for which the person fleeing the State seeks 'to avoid prosecution.' The maximum punishment for maiming under the N.Y. statute (§ 1400) is fifteen years.

The trial on the Federal indictment was severed as to Dioguardi, Tuso, Rij, Charles S. Carlino and Joseph P. Carlino. The latter pleaded guilty and became a government witness. Just before presenting his proof at the trial against Bando, Leo Telvi and Miranti, on November 14, 1956, the District Attorney announced that the government would not try the offense of conspiracy to injure a witness who had appeared before the Grand July (§ 1503 of T. 18 U.S.C.), but only the conspiracy to violate Sec. 1073, in relation to Abe Telvi's flight across State lines in order to 'avoid prosecution' in New York for the crime of maiming (mayhem), committed within the State of New York. Thus the charge boiled down to this, that the defendants conspired to get Abe Telvi out of the State of New York to help him avoid prosecution for the crime of having blinded and disfigured Riesel by throwing acid in his face on April 5, 1956, in the County of New York. The jury found all three defendants, Bando, Miranti and Leo Telvi, guilty as charged.

When Abe Telvi threw the acid at Riesel, he splashed some of it on his own face and his face was marked with red spots. Abe Telvi was a marked man; the acid marks on his face would arouse suspicion. Those who had hired him to commit the crime wanted him to go under cover and leave town. An effort to get him to go to Florida was not successful. So it was finally arranged that he would go to Youngstown, Ohio, in the company of the defendant, Joe Carlino, Abe's girl friend named de la Cruz, and his brother, Leo Telvi. Leo Telvi was in Florida when the attack on Riesel took place and after returning to New York was told of the crime and was later enlisted in the conspiracy to remove his brother Abe from the State of New York. On June 10th or 11th Leo Telvi drove his own car in which his brother Abe, the girl and Carlino traveled from New York to Youngstown, Ohio. The government contended that this was done to enable Abe Telvi to escape arrest and avoid prosecution for the maiming of Riesel. Abe Telvi and the girl remained in Youngstown about eleven days and then returned to New York by plane. It does not appear that at the time Abe Telvi was driven to Youngstown, the police knew who had committed the crime. No formal charge had been filed against anyone for the attack on Riesel. On July 28th Abe Telvi was found shot to death on Norfolk Street, on the lower East Side of New York City. The investigation of his murder eventually led to those who are alleged to have been co-conspirators in the attack on Riesel, and to those who had conspired to get Abe Telvi to leave the State of New York, to avoid prosecution for the attack.

A first indictment (C151-22) was returned September 7, 1956. Dioguardi made a motion to dismiss that indictment or for a change of venue on September 17th, because of the publicity attending the investigation of the crime and the resulting indictment. The motion was permitted to stand as against the superseding indictment (C151-65) filed September 26th, which added the defendant, Theodore Rij. On September 28th the defendants, Charles S. Carlino, Leo Telvi and Charles Tuso were permitted to join in the motion; Bando and Miranti did not join in the motion. The publicity complained of occurred in the last half of August and the first half of September. Judge Edelstein denied the motion on October 15th. The action against Dioguardi and certain other defendants was later severed.

We again stress the obligation that rests upon all law enforcement agencies to avoid making any public statements concerning the progress of the investigation of a crime or the proof already obtained as to the complicity

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of any person who is either a defendant or likely to be prosecuted for the crime. Judge Edelstein's opinion (20 F.R.D. 33) properly condemned publicity emanating from law enforcement officials in criminal prosecutions in general, and in this case in particular, because of the difficulty it creates in getting a fair trial for the accused. But even that type of publicity does not make a fair trial improbable. The degree of care exercised by the trial judge in his examination of the panel of jurors on the 'voir dire, ' to determine whether the publicity has so impressed them that they will not be able to give the defendant a fair trial, is an important consideration.

The defendants who went to trial, Miranti, Bando and Leo Telvi moved at the trial for a change of venue to the District of Columbia. They did not ask for a postponement. Their contention was that because of the publicity in the Southern District of New York the defendants could not get a fair trial here.

On the first 'voir dire' in selecting the jury, eleven of the prospective jurors were excused. On a second 'voir dire' twenty-three additional members of the jury panel were excused. From those who remained of a panel of sixty, a jury was selected. As an indication of the care exercised in selecting the jury, the trial judge had before him eight pages of questions from defendants' attorneys to put to the prospective jurors. More than 150 pages of the stenographer's minutes deal with the selection of the jury. The trial judge conducted the examination of the prospective jurors pursuant to Rule 24, Fed.Rules Cr. Proc. 18 U.S.C. All subdivisions of that rule were complied with. Specifically the trial judge asked the jurors-- 'Do any of you have the slightest doubt in your minds that you will be able to serve conscientiously, fairly and impartially in this case?' The trial judge then denied defendants' motion for a charge of venue with this statement: 'I have not the slightest doubt as to the capacity of this jury as presently constituted to serve impartially, objectively and fairly in determining the issues of this case.'

There is no good reason why we should substitute our judgment for that of the trial judge. He had an opportunity to observe the panel of jurors during the selection of the trial jury. The jurors who tried the case rendered a just verdict. The evidence to support the verdict was conclusive. Counsel on this appeal do not attack the jurors as biased or prejudiced. They make that charge against the trial judge for reasons that will be hereinafter discussed. True, the attack on Riesel had received nationwide publicity. Some of its published details were probably known to millions of readers. This would be so in the District of Columbia and in any community serviced by national press associations. Nothing could be gained by transferring the trial to the District of Columbia.

The appellant, Leo Telvi, alleges as error the denial of a motion he made to have his trial severed from that of Bando and Miranti, who had been implicated in the crime of assaulting Riesel with acid. One reason why the defendant, Leo Telvi, did not wish to be tried with the other two, was that Miranti had made a confession, two in fact, which would probably be used at the trial. He had also testified...

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