543 F.2d 466 (3rd Cir. 1976), 75-1173, Zicarelli v. Gray

Docket Nº:75-1173.
Citation:543 F.2d 466
Party Name:Joseph ZICARELLI, Appellant, v. Albert D. GRAY, Jr., Superintendent, New Jersey State Prison.
Case Date:September 10, 1976
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 466

543 F.2d 466 (3rd Cir. 1976)

Joseph ZICARELLI, Appellant,


Albert D. GRAY, Jr., Superintendent, New Jersey State Prison.

No. 75-1173.

United States Court of Appeals, Third Circuit

September 10, 1976

Argued Sept. 4, 1976.

Reargued May 14, 1976.

Page 467

Isles & Weissbard, Montclair, N.J., for appellant; Harvey Weissbard, Montclair, N.J., on brief.

William F. Hyland, Atty. Gen. of New Jersey, Trenton, N.J., for appellee; Howard E. Drucks, Deputy Atty. Gen., Div. of Crim. Justice, App. Section, East Orange, N.J., of counsel and on the petition.

Jonathan L. Goldstein, U. S. Atty., Newark, N.J., for amicus curiae; John J. Barry, Asst. U. S. Atty., Newark, N.J., on brief.

Argued Sept. 4, 1975.

Before VAN DUSEN, ADAMS and HUNTER, Circuit Judges.

Reargued May 14, 1976.



ADAMS, Circuit Judge.

Trial by jury is one of several important protections standing between persons accused of crime and the weighty power of the state to punish those convicted of having committed crime. The right to trial by jury is provided for within the Constitution as originally adopted 1 and in the Bill of Rights as well. 2 It has been guaranteed for federal and state prosecutions since the early days of the Republic. 3 Indeed, the right has been characterized as "fundamental to the American scheme of justice... ." 4

Not only must the trial promised by the Constitution take place before a jury, but it must be a speedy and public trial, and the jury must be impartial. At least in federal prosecutions, it is necessary that the jury be drawn from the state and from the federal judicial district in which the crime was committed, and the district from which the jury is chosen must have been previously ascertained by law. 5 These additional safeguards, which go far in establishing the nature of the jury trial the accused shall

Page 468

have, find their origin both in the English common law and in America's own pre-revolutionary experience. For example, the right to be tried by a jury from a particular geographical region, or vicinage, came in part from the practice established in England by the early 1600's, and in part as a reaction to the efforts of the English Crown during the 1760's to bring colonists to London in order to try them for treason. 6

Although the concept of a trial by a jury drawn from a specific geographical area lies at the core of this appeal, we must first ascertain the contours of the doctrine of exhaustion under the facts in the present controversy. Then we must determine whether the constitutional rights of a defendant in a state prosecution are violated when he is indicted for crimes arising out of acts occurring in one county of the state, and is subsequently tried before a jury drawn exclusively from a second county in the state.


Joseph Zicarelli is currently in custody as a result of two sentences imposed by the courts of New Jersey. 7 Leading to these two convictions were Zicarelli's alleged efforts to protect from prosecution an illegal gambling operation that he controlled in West New York, Hudson County, New Jersey. The convictions were based upon the last two indictments in a series of seven naming Zicarelli as one of the defendants. Each of the seven was returned by a grand jury which, under the applicable New Jersey statute, 8 had statewide investigative jurisdiction.

The first of the seven indictments charged that Zicarelli and others had committed a criminal offense in Hudson County. Of the next four indictments, two specified offenses occurring in Hudson County only, one charged offenses in Hudson and Mercer Counties, and one charged offenses in Hudson, Bergen, and Burlington Counties. The crimes set forth in the sixth and seventh indictments occurred in Hudson County and "elsewhere," although the particular acts they referred to were claimed to have taken place in Hudson County alone. The indictments which led to the convictions under review in this Court today charged Zicarelli and others with a conspiracy to corrupt a public official, and with the substantive offenses of bribery of a public official and corruptly aiding, abetting, and causing the payment of bribes.

Under the New Jersey statute that established a statewide grand jury procedure, the venue of trials resulting from indictments returned by such a grand jury is designated by an assignment judge, who is appointed by the Chief Justice of New Jersey. 9 The venue of the first indictment was initially laid in Hudson County. Trial on the next five indictments was set by the assignment judge for Mercer County. The Attorney General of New Jersey subsequently filed an ex parte petition with the assignment judge, seeking to move the trial on the first

Page 469

indictment from Hudson to Mercer County. An order effecting that change was entered without notice to the defendants.

Subsequent to that transfer of venue, but before the seventh indictment had been returned, the Attorney General filed another petition, again ex parte, this one seeking to move to Burlington County the trial of the six indictments that had then been returned. Three grounds were asserted in support of the petition: Zicarelli was incarcerated in Burlington County; the principal prosecution witness, Peter Policastro, was in personal danger, and his security and safety could be adequately met in Burlington County; and all six indictments involved common questions of law and fact that could best be disposed of by a single judge. Again without notice to the defendants, the assignment judge entered an order redesignating venue in Burlington County.

Following that change of venue, the seventh indictment was filed, and venue on that indictment was set for Burlington County also.

Shortly thereafter, the defendants moved for an order redesignating venue in Hudson County. The motion was denied, without a hearing, by the judge to whom the cases had been assigned for trial. When the defendants appealed, the New Jersey Supreme Court remanded the matter to the original assignment judge in order to provide the defendants an opportunity to be heard on the matter of venue. 10

After a full hearing, the assignment judge held that Burlington was a proper county for purposes of venue. Among the reasons set forth by the court to justify the transfer to Burlington County were the following: the security of Policastro could be better maintained in Burlington County; the sixth amendment to the United States Constitution did not prohibit the laying of venue in Burlington County; there would be less publicity in Burlington County than in Hudson County; there would be an impartial jury in Burlington County that would give defendants a fair trial; and a judge and a courtroom were available for the trial in Burlington County.

The trial was held in Burlington County, and the jury was drawn solely from that county. 11 Zicarelli was convicted of several of the counts contained in the last two of the indictments, and was sentenced to two separate terms, which were to be served concurrently.

Zicarelli's first conviction was affirmed by the New Jersey Superior court, 12 and the second conviction was initially reviewed by the Superior Court, 13 and ultimately upheld by the New Jersey Supreme Court. 14

Zicarelli subsequently petitioned the federal district court for a writ of habeas corpus. Most relevant to our present review are the allegations in the petition that Zicarelli's constitutional rights were violated when he was tried by a jury selected from residents of a county other than the one in which the alleged crimes were committed, 14a

Page 470

and that he was denied the right to trial by a jury comprising a representative cross-section of the locale where the crimes took place. The district court refused to grant the writ.

Upon Zicarelli's appeal from that order, a panel of this Court reversed the district court's judgment, and remanded the case with the instruction that the writ should issue unless the state granted Zicarelli a new trial before a jury selected in accordance with the guidelines set forth by the panel. In essence, the panel held that the sixth amendment requires that the jury venire must represent a cross section of the community where the crime was committed, and that the state breached that guarantee by trying Zicarelli before a jury chosen from a venire that did not include residents of the area where the crime occurred and that was demographically dissimilar to the citizenry of that area.

The State of New Jersey then petitioned for a rehearing before the Court en banc, and an amicus brief was filed by the United States, supporting the petition. In view of the importance of the constitutional issues presented by the case, rehearing en banc was granted, and as a result, the opinion and judgment of the panel were vacated.

After full consideration of the questions presented, we have determined that the judgment of the district court must be affirmed, though without prejudice to the institution by Zicarelli of further proceedings in regard to two of his sixth amendment claims.


Before we may move to Zicarelli's substantive arguments, we are required by the habeas corpus statute 15 to determine whether he has exhausted his state remedies regarding them.

Zicarelli brought two separate contentions to the Court en banc in his efforts to obtain release from custody, both coming within the general ambit of the sixth amendment. The first is that the trial before a jury drawn from Burlington County violated his right to be tried by a jury composed of residents of the county where the crime was committed; the...

To continue reading