605 F.2d 116 (3rd Cir. 1979), 79-1937, United States v. Fiumara

Docket Nº:79-1937.
Citation:605 F.2d 116
Party Name:UNITED STATES of America v. Tino FIUMARA, Michael Copolla, Jerry Copolla and Larry Ricci. Appeal of Tino FIUMARA.
Case Date:September 05, 1979
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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605 F.2d 116 (3rd Cir. 1979)

UNITED STATES of America

v.

Tino FIUMARA, Michael Copolla, Jerry Copolla and Larry Ricci.

Appeal of Tino FIUMARA.

No. 79-1937.

United States Court of Appeals, Third Circuit

September 5, 1979

Submitted Aug. 6, 1979.

Matthew P. Boylan, Theodore V. Wells, Jr., Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, A Professional Corporation, Newark, N. J., Dennis D. S. McAlevy, Hoboken, N. J., for appellant.

Robert J. Del Tufo, U. S. Atty., Newark, N. J., for appellee; Maryanne T. Desmond, Chief, Appeals Div., Mark J. Malone, Asst. U. S. Attys., Newark, N. J., on brief.

Before ALDISERT and WEIS, Circuit Judges.

OPINION

WEIS, Circuit Judge.

The defendant in this criminal proceeding has asked that we enter a stay or enjoin his

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sentencing proceedings in the district court pending appeal or consideration of a petition for mandamus. He contends that the district court's refusal to exclude the public and press from his sentencing hearing will result in publicity jeopardizing his right to a fair trial in a case pending in a neighboring district. We do not read Gannett Co. v. DePasquale, --- U.S. ----, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), to grant the defendant a constitutional right to a private hearing in the circumstances of this case. Entertaining substantial doubts as to the likelihood of his success, both on the merits and on jurisdictional grounds, we deny defendant's motion.

The defendant was convicted on June 20, 1979, of violations of the Hobbs Act, 18 U.S.C. §§ 1951-1952 (1976), and a presentence report was prepared at the direction of the trial judge. After reviewing the report, which contained references to other criminal activity, the defense requested a hearing at which it proposed to refute some of those allegations.

The trial and conviction were in the United States District Court for New Jersey sitting in Newark, New Jersey, and it was there that the sentencing hearing was scheduled for July 17, 1979. At that time, the defendant was under indictment for numerous other offenses, and was scheduled for trial in the Southern District of New York in October 1979. Many of the same newspapers and television stations that cover the district court in Newark also service New York City where the court for the Southern District of New York conducts its trials. The defendant timely asked that the public and press be excluded from the evidentiary hearing on the ground that prejudicial matters inadmissible in the New York trial would be divulged. 1 The United States Attorney objected to closing the hearing, and the trial judge denied the defendant's request. A single judge of this court granted interim relief, pending submission of defendant's request for a stay to a motions panel.

In passing upon a motion for a stay, we consider the following factors:

1. the likelihood that the petitioner will prevail on the merits of the appeal;

2. whether there will be irreparable injury to the petitioner unless a stay is granted;

3. whether there will be substantial harm to other interested...

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