Cardarella v. United States

• Decision Date: 21 March 1967
• Docket Number: 18441.,No. 18400,18400
• Citation: 375 F.2d 222
• Parties: Anthony CARDARELLA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

375 F.2d 222 (1967)

Anthony CARDARELLA, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18400, 18441.

United States Court of Appeals Eighth Circuit.

March 21, 1967.

COPYRIGHT MATERIAL OMITTED

Anthony Cardarella, pro se.

Fred M. Vinson, Jr., Asst. Atty. Gen., Dept. of Justice, Washington, D. C., and Brian Conboy, Atty., Dept. of Justice, Washington, D. C., for appellee.

Before MATTHES and LAY, Circuit Judges and REGAN, District Judge.

REGAN, District Judge.

His two most recent applications for post-conviction relief, one under Rule 35, Federal Rules of Criminal Procedure, and the other under 28 U.S.C. Section 2255, having been denied by the district court, Anthony Cardarella has again appealed to this Court. Again we affirm both orders.

Cardarella was convicted in 1961 on three counts of an indictment, the first two charging him with the substantive offenses of obstructing justice in violation of 18 U.S.C. Section 1503, by shooting a witness because he testified before a federal grand jury in a narcotics investigation, and by the same assault endeavoring to intimidate this witness from testifying in a subsequent trial. The remaining count charged him with conspiring to obstruct justice in violation of 18 U.S.C. Section 371. He received concurrent sentences of five years for the substantive offenses and an additional sentence of five years on the conspiracy count to run consecutive to the sentence on the other counts.

The convictions of Cardarella and Felix Ferina, a co-defendant, were affirmed by this Court in Ferina v. United States, 8 Cir., 302 F.2d 95 (1962) cert. denied sub nom. Cardarella v. United States, 371 U.S. 819, 83 S.Ct. 35, 9 L. Ed.2d 59 (1963).

Cardarella's motion under Rule 35, attacking the validity of his sentence, is based on the contention that the consecutive sentences imposed double punishment for the same offense. His theory is that the evidence necessarily used to prove the substantive offenses was also required to prove the conspiracy charge, hence, there was but one offense within the reasoning of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L. Ed. 306 and Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435.

Petitioner's protestations to the contrary notwithstanding, this same issue was advanced by him in an earlier unsuccessful motion also filed under Rule 35 which this Court held to be without substance. Cardarella v. United States, 8 Cir., 351 F.2d 272 (1965). So, too, Ferina also made a similar claim of double punishment which was rejected by this Court. Ferina v. United States, 8 Cir., 340 F.2d 837 (1965). The only difference between the present motion and the earlier ones is in the approach petitioner takes, but not in the fundamental issue raised.

In his pro se brief, Cardarella concedes the general rule to be as stated in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1189, 90 L.Ed. 1489 (1946), namely, that the commission of a substantive offense and a conspiracy to commit it are separate and distinct offenses, because ordinarily the conspiracy has "ingredients, as well as implications, distinct from the completion of the unlawful project." Additionally, he does not dispute the fact that the conspiracy offense charged was an agreement to act in violation of the law and not the substantive acts themselves. He urges, however, that Pinkerton does not here apply, on the theory that the proof used to obtain a conviction upon both the conspiracy and the substantive charges was the same. Stated otherwise, petitioner's contention is that as the case was actually tried and submitted to the jury, "the implication, ingredient, or proof of fact necessary to consider for conviction on the conspiracy charge was also necessary to consider to obtain a conviction on the obstruction of justice charged." We do not agree.

Cardarella misreads Blockburger and Pereira. These and other cases teach that the test to be applied to determine whether there are two offenses or only one is whether proof of any additional fact, not constituting an element of one of the offenses, is required to sustain a conviction on the other. Clearly, an agreement to do the unlawful acts here charged is an offense separate and distinct from the doing of those acts, even though the doing of the acts are the overt acts charged in the conspiracy count. It is only when such an agreement is a necessary part of the substantive crime that only a single punishment may be imposed. Ferina v. United States, 8 Cir., 340 F.2d 837, 841. Accepting that holding, Cardarella expressly disclaims any contention that either an agreement of joint or reciprocal action between himself and Ferina was necessary in order to prove their separate guilt of the substantive offenses. Yet an agreement was of the very essence of the conspiracy charge.

Cardarella's present theory is premised upon his construction of excerpts from the Court's charge to the jury which emphasized the decisive significance of the purpose or reason for shooting the witness, and referred to the importance of the statement "This is from Tony." Cardarella summarizes his position in this fashion, "It is the appellant's contention that once the conspiratory implication (in the statement, "this is from Tony.") was considered to conclude guilt on the substantive count, the use of it again for consideration of guilt on the conspiracy count, makes the counts identical upon conviction of the counts."

Purpose and motivation for the assault was vital, not however as proof in itself of an agreement or conspiracy, but as demonstrating that the substantive offenses and the conspiracy to commit them were federal, as distinguished from state, crimes. Ferina v. United States, 302 F.2d, l. c. 102. True, the purpose for which the assault was perpetrated and for which it had been agreed upon was a necessary element common to both the substantive and conspiracy offenses, just as was the witness' past or expected conduct. However, once the requisite motivation was found, and his individual guilt for the substantive offenses established, petitioner still could not have been convicted on the conspiracy count absent proof, and a finding by the jury, of agreement on his part with another to commit the offense.

That evidence which was relevant in proving the existence of a conspiracy was also relevant or even vital in proving the entirely different fact of motivation in both the substantive and conspiracy counts is beside the point. The question of merger or identity of offenses is dependent upon the nature of the ultimate facts which must be proved in each instance, not the specific evidence tendered to prove those facts. Nor does the doctrine of merger come into play simply because other evidence may not have been available to or adduced by the government.

The order denying petitioner's motion for relief under Rule 35 is affirmed on the merits, although the appeal could well have been dismissed as frivolous.

By his § 2255 motion¹ Cardarella argues (1) that the indictment was obtained in violation of his constitutional rights guaranteed by the Fifth and Sixth Amendments, and for such reason the Court was without jurisdiction to try him; (2) that he was denied a fair trial because the jury was permitted to separate during their deliberation; and (3) that by reason of claimed lack of diligence and negligence on the part of his retained counsel, his representation was ineffective, thus depriving him of due process of law. The trial court determined that these contentions were without merit and denied the motion without a plenary hearing. Cardarella v. United States, 258 F.Supp. 813 (D.C. 1966).

The grand jury which subsequently indicted petitioner was conducting a general inquiry into the circumstances surrounding the shooting of the witness. As part of this investigation, Cardarella, who had not been arrested or charged with an offense, appeared and testified before the grand jury in response to a subpoena, without having been advised of his right to counsel. He now claims that such appearance of itself violated both his constitutional right against self-incrimination and his Sixth Amendment right to counsel and thus voids the indictment.

Petitioner was interrogated concerning the subject of the grand jury's inquiry, and although he "testified freely" he made no incriminating statements. None of his testimony was used at the trial, so it could have had no effect on the jury which tried the case. Having given no incriminating or other inadmissible testimony before the grand jury, Cardarella does not contend, nor could he reasonably do so, that the indictment was based upon any such evidence.

The rule is now established that "(a)n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough for the trial of the charge on the merits. The Fifth Amendment requires nothing more." Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). Cf. United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966). There is an entire want of any showing in the moving papers and the trial record of prejudice in fact to petitioner.

We hold that the self-incrimination clause of the Fifth Amendment does not automatically immunize from subpoena for testimony before a grand jury one who is neither in custody nor then charged with an offense, merely because an indictment might eventuate from the inquiry. "The grand jury was entitled to his testimony subject, of course, to his right not to incriminate himself." United States v. Winter, 2 Cir., 348 F.2d 204, 208 (1965).

Petitioner does not contend that he made a futile request to consult with counsel nor that any of his testimony was not rightfully...