Patriarca v. United States, 7126-7128.

Decision Date20 January 1969
Docket NumberNo. 7126-7128.,7126-7128.
Citation402 F.2d 314
PartiesRaymond 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.
CourtU.S. Court of Appeals — First Circuit

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.

Certiorari Denied January 20, 1969. See 89 S.Ct. 633.

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 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 and 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

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 evidence against the accused or reports of plea negotiation cited as presenting the "greatest hazards" to a fair trial by the ABA, Standards Relating to Fair Trial and Free Press, (Tentative Draft, Dec. 1966), pp. 25-40.2

Following the denial of the motions for continuance and change of venue, there was another opportunity for counsel to mitigate any possible effect of pretrial publicity — on the voir dire. Counsel for one of the appellants requested that the court "ask a question of the jury in connection with this case, in the light of all the publicity." The court replied that it would "put to them a general question and ask them if there is any member of the jury here who feels that he would not be able to give the defendants a fair and impartial trial." Counsel said, "Fine, thank you, your Honor." The question was put. No response was forthcoming. The court stated that it assumed that all were "in agreement on this particular question." The jurors were then sworn and thereafter sequestered.

While the court did all that was requested at this juncture, and cannot under the circumstances of this case be charged with error in not inquiring further, sua sponte, we feel bound to concede that such a single question posed to the panel en bloc, with an absence of response, achieves little or nothing by way of identifying, weighing, or removing any prejudice from prior publicity. In cases where there is, in the opinion of the court, a significant possibility that jurors have been exposed to potentially prejudicial material, and on...

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