491 F.2d 906 (2nd Cir. 1974), 1120, United States v. Cangiano

Docket Nº:1120, 1121, 73-1360, 73-1449.
Citation:491 F.2d 906
Party Name:UNITED STATES of America, Appellee, v. Cosmo 'Gus' CANGIANO and Elana Marie Isola, Appellants.
Case Date:January 11, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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491 F.2d 906 (2nd Cir. 1974)

UNITED STATES of America, Appellee,

v.

Cosmo 'Gus' CANGIANO and Elana Marie Isola, Appellants.

Nos. 1120, 1121, 73-1360, 73-1449.

United States Court of Appeals, Second Circuit.

January 11, 1974

Argued Aug. 17, 1973.

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William M. Piatt, Atty., Dept of Justice, Washington, D.C. (Robert A. Morse, U.S. Atty., Eastern District of New York, Robert L. Keuch, Atty., Dept. of Justice, Washington, D.C., on the brief), for appellee.

Henry J. Boitel, New York City (Martin N. Gamliel, New York City, of counsel), for appellant Cangiano.

Phylis Skloot Bamberger, New York City (Robert Kasanof, The Legal Aid Society, New York City), for appellant Isola.

Before MULLIGAN, OAKES and TIMBERS, Circuit Judges.

MULLIGAN, Circuit Judge:

On June 30, 1971, a two-count indictment was filed in the Eastern District of New York, naming Cosmo Cangiano, Elana Marie Isola, Anthony Palumbo and Anthony C. Mascola as defendants. The first count charged the defendants with conspiracy 'to transport in interstate commerce for the purpose of sale and distribution obscene, lewd, lascivious and filthy motion picture films, pictures, books and pamphlets' in violation of 18 U.S.C. §§ 371 & 1465. The second count charged Cangiano, Palumbo and Isola with the substantive crime of transporting from Staten Island, New York to New Jersey, some 'ninety reels of obscene, lewd, lascivious and filthy eight-millimeter motion picture films, for the purpose of sale and distribution therein,' in violation of 18 U.S.C.§ 1465. The indictment was tried before Hon. Jacob Mishler, Chief Judge, Eastern District of New York, and a jury. The charge against Mascola was dismissed On the motion of the Government. On October 27, 1972, the jury returned a guilty verdict on both counts against Cangiano, Isola and Palumbo. Cangiano was sentenced to three years imprisonment on each of the two counts and a $10,000 fine. Each of the sentences was to run concurrently, but was to be consecutive to a five-year term previously imposed for a similar offense. The fine imposed here was also in addition to a $30,000 fine levied in the prior case (Cangiano I). 1 Isola was sentenced to three years on each count, sentences to run concurrently. Palumbo received suspended sentences on both counts and was placed on probation for three years. These appeals by Cangiano and Isola ensued.

I. SPEEDY DISPOSITION

Appellants Isola and Cangiano, on the appeal, urge that they were not given speedy trials in accordance with the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (28 U.S.C.App. (Supp.1973)). 2 The appellants were arrested on November 12, 1969, indicted on June 30, 1971 and arraigned on July 22, 1971, but the Governments's notice of readiness was not filed until September 28, 1971 (twenty-two months after arrest), and the trial was not commenced until October 18, 1972. Although this case began before the promulgation and effective date of our Rules (Jan. 5, 1971 and July 5, 1971 respectively),

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the appellants argue that the permissible time period within which the Government must have been ready for trial was six months from the date of arrest. Rule 4; United States v. Scafo, 480 F.2d 1312, 1316-1317 (2d Cir.), cert. denied, 414 U.S. 1012, 94 S.Ct. 378, 38 L.Ed.2d 250 (1973).

Before we can sensibly talk about the possible expiration of the six-month period, initial reference must be made to the periods excluded by Rule 5. United States v. Lasker, 481 F.2d 229, 233 (2d Cir. 1973). Rule 5(a) excludes 'the period of delay while proceedings concerning the defendant are pending, including but not limited to . . . pretrial motions . . . trial of other charges, and the period during which such matters are sub judice.' The Government is not required to make any motion before the six-month period has elapsed in order to take advantage of this provision. Cf. United States v. Rollins, 475 F.2d 1108 (2d Cir. 1973).

Cangiano was arrested on February 6, 1969, on similar charges involving the sale of obscene material and the indictment in that case (Cangiano I) was filed on April 30, 1969. The trial there did not begin until October 18, 1971, which was three weeks after the notice of readiness was filed in the present case. Thus, since Cangiano I was pending during the entire period from the arrest of Cangiano here, on November 12, 1969, to the filing of the notice of readiness, on September 28, 1971, the period is excluded under Rule 5(a), and, as to Congiano, there was no violation of the six-month rule. 3

With respect to Isola, Rule 5(e) provides that we exclude from the six-month period '(a) reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance.' Since Cangiano's time for trial had not run, Rule 5(e) would again exclude the same period and no violation of our Rules would occur providing the period of delay was reasonable and there was good cause for not granting a severance.

On May 22, 1972, when the defendants Cangiano and Isola moved to dismiss the indictment under Rule 4, no motion for a severance was made by Isola. Judge Mishler denied the motions, finding that no prejudice was established by Cangiano (Isola claimed none), and he further indicated that he had been waiting for this court to determine the appeal of Cangiano I, since 'that decision might very well be dispositive of some of the questions in this cause and maybe the entire case . . ..' United States v. Lasker, supra, 481 F.2d at 234, makes it clear that in a 5(e) case it is unrealistic to expect the Government to take the initiative to move for a severance. Here, Isola made no effort to obtain one, and Judge Mishler, in effect, found no unreasonable period of delay, since there was no prejudice and since the appeal in Cangiano I, not decided until June 26, 1972 (464 F.2d 320 (2d Cir.)), might well have disposed of the case.

There was here no violation of the Prompt Disposition Rules and there is no basis for dismissing the indictment, particularly since no prejudice is attributed to the delay encountered. United States v. Pierro,478 F.2d 386, 389 (2d Cir. 1973).

II. SPECIFIC INTENT

Where the crime charged is conspiracy, a conviction cannot be sustained unless the Government establishes beyond a reasonable doubt that the defendant had the specific intent to violate the substantive statute. That has been the position of this Circuit, at least since Learned Hand's opinion in United States v. Crimmins, 123 F.2d 271 (2d Cir. 1941), and the principle has been reaffirmed by this Court's recent decisions. E.g., United States v. Houle, 490 F.2d 167, 170, 172 (1973) ;

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United States v. De Marco,488 F.2d 828, 832 (1973); United States v. Alsondo, 486 F.2d 1339, 1341 (1973); United States v. Jacobs, 475 F.2d 270, 282, cert. denied, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53 and Thaler v. U.S., 414 U.S. 821,94 S.Ct. 131, 38 L.Ed.2d 53 (1973); United States v. Fields, 466 F.2d 119, 121 (1972); United States v. Vilhotti, 452 F.2d 1186, 1189 (1971), cert. denied, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972).

Applying the principle here, since the defendants were charged with a conspiracy to transport obscene matter in interstate commerce, the court should have instructed the jury that the defendants could be found guilty on that count only if their intent had been to transport the goods across state lines. The trial court charged on this point as follows:

The...

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