402 F.2d 314 (1st Cir. 1968), 7126, Patriarca v. United States

Docket Nº:7126-7128.
Citation:402 F.2d 314
Party Name:Raymond PATRIARCA, Defendant, Appellant, v. UNITED STATES of America, Appellee. Ronald J. CASSESSO, Defendant, Appellant, v. UNITED STATES of America, Appellee. Henry TAMELEO, Defendant, Appellant, v. UNITED STATES of America, Appellee.
Case Date:October 14, 1968
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 314

402 F.2d 314 (1st Cir. 1968)

Raymond PATRIARCA, Defendant, Appellant,

v.

UNITED STATES of America, Appellee.

Ronald J. CASSESSO, Defendant, Appellant,

v.

UNITED STATES of America, Appellee.

Henry TAMELEO, Defendant, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 7126-7128.

United States Court of Appeals, First Circuit.

October 14, 1968

Page 315

Francis J. DiMento, Boston, Mass., with whom Charles A. Curran, Providence, R.I., and DiMento & Sullivan, Boston, Mass., were on brief, for Raymond Patriarca, appellant.

Ronald J. Chisholm, Boston, Mass., for Ronald J. Cassesso, appellant.

Joseph J. Balliro, Boston, Mass., for Henry Tameleo, appellant; William E. Searson, III, Boston, Mass., of counsel.

Edward F. Harrington, Asst. U.S. Atty., with whom Paul F. Markham, U.S. Atty., and Walter T. Barnes, Special Atty., Dept. of Justice, were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

These are appeals from judgments of conviction following jury verdicts on an indictment in three counts. The first count charged all of the appellants with conspiracy, in violation of 18 U.S.C. § 371, to travel and use the telephone in interstate commerce with intent both to commit murder to further an unlawful gambling enterprise, in violation of 18 U.S.C. § 1952(a)(2), and to promote such enterprise, in violation of 18 U.S.C. § 1952(a)(3); and thereafter to attempt to commit such murder and acts of promotion. The chief witness for the prosecution, one Baron, was named as a co-conspirator but not a defendant. Other substantive counts charged appellant Tameleo with using a telephone facility in interstate commerce and appellants Patriarca and Tameleo with causing Baron and appellant Cassesso to travel in interstate commerce pursuant to the same intent, followed by an attempt.

The district court is alleged to have erred in denying a motion for continuance and change of venue because of prejudicial publicity; in refusing to grant a mistrial for prosecutorial expression of belief during the closing argument; and in denying various motions to strike part of the indictment, to grant a severance, to enter judgments of acquittal, and to make a requested instruction.

MOTIONS FOR CONTINUANCE AND CHANGE OF VENUE

Appellants, in alleging error by the court in refusing their motions for continuance and change of venue filed on February 20, 1968 and at the opening of trial on March 4, 1968 refer in their brief to

'* * * a long history of publicity, beginning with the widely publicized 'Valachi hearings', so-called, of 1963, which named the defendant Patriarca as 'Boss' of the New England 'Cosa

Page 316

Nostra' or 'Mafia' and the defendant Tameleo as one of his subordinates. It is a matter of common knowledge that the publicity, surrounding Patriarca, at least, multiplied and persisted uninterrupted down to May, 1967, when the Government disclosed, in connection with a tax-evasion prosecution in Rhode Island, unconnected with Patriarca, that his office in Providence had been 'bugged' for three years and that both he and Tameleo had engaged in highly compromising conversations with others.'

Subsequently, in May of 1967, newspapers in Boston published stories that a Mafia 'strongarm', one Joe (Barboza) Baron, had been 'singing' to the FBI, referring to appellant Patriarca as a Cosa Nostra boss. Then on June 20, 1967, the date of the indictment in this case, there were more newspaper headlines and accounts concerning all appellants and Baron. The newspaper clippings included as exhibits in the record before us contain no items between July 10, 1967 and October 27, 1967, when appellant Tameleo was named as having been indicted, after grand jury testimony by Baron, for a slaying unrelated to these appeals and as being an aide to 'New England Cosa Nostra boss Raymond Patriarca.'

On October 30, 1967, pursuant to appellants' first motion for change of venue on July 26, 1967, hearing was had in camera. Counsel for appellant Patriarca, alleging nationwide publicity, waived his motion for a change of venue and requested a continuance of four or five months. The court stated that the case would not be tried until after the first of the year and on January 22, 1968 set the date of trial for February 6.

In the meantime, on January 16, 1968, there had been several newspaper accounts of the indictment of appellant Cassesso for conspiracy to incite a fellow prison inmate to confess falsely to a murder. These, however, were of small moment compared to the figurative and literal bombshell of January 30, 1968 when Baron's attorney, John E. Fitzgerald, Jr., was almost killed by a bomb wired to the ignition of his automobile. Widespread reporting of an editorializing on the bombing ensued.

On February 2, 1968, appellants moved for a continuance, which was granted until March 4. On February 20 motions for continuance and a change of venue to New York were filed, hearing was had in camera, and the motions were denied on February 27, the court observing in a memorandum that the newspaper articles on which the motions were based concerned the Mafia and Costa Nostra and made no specific reference to defendants; that such articles are constantly appearing in New York as in New England; and that the climate for a fair trial was far more favorable than on October 30, 1967. Similar motions were filed on the day of trial, March 4, based on recent publicity, and were denied for the reasons given on February 27. These two rulings are now before us.

Appellants argue that the prejudice created by the February news accounts, was 'the connection of the defendants, in the public's mind, to the bombing incident.' The record of newspaper clippings before us, apparently assembled through a clipping service, contains, exclusive of duplications, seventy items from newspapers in Boston and five other major Massachusetts cities covering the period from January 31 to March 4. While not complete and not including any data on television and radio reports, we must take it as reasonably representative. We report the results of our scrutiny in the margin. 1

Page 317

In none of the newspaper accounts were appellants linked with the Mafia or Cosa Nostra or with the Fitzgerald bombing. In none were the acts alleged in the indictment reported. In only one article, published one month before trial, was Baron labelled a Cosa Nostra informer; he was elsewhere uniformly referred to as an underworld or gangland informer. Even more significant are the facts that the amount of coverage diminished sharply after the week following the bombing and that, subsequent to appellants' filing motions on February 20, the subject matter was almost wholly that of the making and disposition of the motions themselves.

Under these circumstances, we cannot say that the court abused its discretion. Indeed, the sharp diminution of decibels after the first week following the Fitzgerald bombing indicates that a month's delay was a realistic estimate. That a rash of stories centered about moves for further delay was inevitable; if such could be ground for continuance, cases would never be tried.

We are mindful of the authorities relevant to this issue. But there is here lacking as of the time of the relevant motions, the kind of incriminating nexus that was present in Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (out of court confession widely seen); in United States v. Dioguardi, 147 F.Supp. 421 (S.D.N.Y.1956) (publicity of recent trial testimony incriminating defendants); in Delaney v. United States, 199 F.2d 107 (1st Cir. 1952) (widely publicized Congressional hearings on the 'scandal' involving defendant); in Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1958), and in Coppedge v. United States, 106 U.S.App.D.C. 275, 272 F.2d 504 (1959), cert. denied, 368 U.S. 855, 82 S.Ct. 92, 7 L.Ed.2d 52 (1961) (widespread publicity of excluded or inadmissible information).

Nor do we find a suggestion of the kind of prejudicial statements or records of conviction, arrests, or indictments emanating from a public official, zealous attempts by the media to arouse a community on a particular trial, reports of refusal to submit to certain tests, pejorative characterizations of a defendant, description of...

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75 practice notes
  • 414 Mass. 51 (1992), Commonwealth v. Auguste
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • December 30, 1992
    ...as support three inapposite Federal cases. United States v. Gonzalez Vargas, 558 F.2d 631 (1st Cir.1977); Patriarca v. United States, 402 F.2d 314 (1st Cir.1968), cert. denied, 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567 (1969); and United States v. Cotter, 425 F.2d 450, 453 (1970), focused......
  • 422 F.2d 1110 (7th Cir. 1970), 17005, United States v. Solomon
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • February 24, 1970
    ...that the court 'may on its own motion or shall on motion of either party' conduct such an interrogation. See Patriarca v. United States, 402 F.2d 314, 318 (1st Cir. 1968), certiorari denied, 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567. Here defense counsel failed to request individual polli......
  • 492 F.2d 1141 (5th Cir. 1974), 73-1294, United States v. Goodwin
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • April 19, 1974
    ...him what the First Circuit has described as 'a hunting license exempt from ethical constraints on advocacy.' Patriarca v. United States, 402 F.2d 314 (1st Cir., 1961). He is at liberty to strike hard blows, but not foul ones. United States v. Bursten, 5 Cir. 1971, 453 F.2d 605, 610-611, cer......
  • 968 F.3d 24 (1st Cir. 2020), 16-6001, United States v. Tsarnaev
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • July 31, 2020
    ...prospective juror's "exposure to the case or the parties," if asked by counsel, see Patriarca v. United States, 402 F.2d 314, 318 (1st Cir. 1968) — only then can the judge reliably assess whether a potential juror can ignore that publicity, as the law requ......
  • Free signup to view additional results
74 cases
  • 414 Mass. 51 (1992), Commonwealth v. Auguste
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • December 30, 1992
    ...as support three inapposite Federal cases. United States v. Gonzalez Vargas, 558 F.2d 631 (1st Cir.1977); Patriarca v. United States, 402 F.2d 314 (1st Cir.1968), cert. denied, 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567 (1969); and United States v. Cotter, 425 F.2d 450, 453 (1970), focused......
  • 422 F.2d 1110 (7th Cir. 1970), 17005, United States v. Solomon
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • February 24, 1970
    ...that the court 'may on its own motion or shall on motion of either party' conduct such an interrogation. See Patriarca v. United States, 402 F.2d 314, 318 (1st Cir. 1968), certiorari denied, 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567. Here defense counsel failed to request individual polli......
  • 492 F.2d 1141 (5th Cir. 1974), 73-1294, United States v. Goodwin
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • April 19, 1974
    ...him what the First Circuit has described as 'a hunting license exempt from ethical constraints on advocacy.' Patriarca v. United States, 402 F.2d 314 (1st Cir., 1961). He is at liberty to strike hard blows, but not foul ones. United States v. Bursten, 5 Cir. 1971, 453 F.2d 605, 610-611, cer......
  • 968 F.3d 24 (1st Cir. 2020), 16-6001, United States v. Tsarnaev
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • July 31, 2020
    ...prospective juror's "exposure to the case or the parties," if asked by counsel, see Patriarca v. United States, 402 F.2d 314, 318 (1st Cir. 1968) — only then can the judge reliably assess whether a potential juror can ignore that publicity, as the law requ......
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1 books & journal articles
  • Bringing RICO to the ring: can the anti-mafia weapon target dogfighters?
    • United States
    • Washington University Law Review Vol. 89 Nbr. 1, December 2011
    • December 1, 2011
    ...entertainment ("amusement industry," taverns, bars, nightclubs, theaters). Id. (163.) See, e.g., Patriarca v. United States, 402 F.2d 314, 315-16 (1st Cir. 1968); Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir. 1976). (164.) Blakey & Gettings, supra note 19, at 1015. (165.) Pub.......