U.S. v. Berrios, No. 1111

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore KAUFMAN, Chief Judge, and MANSFIELD and MULLIGAN; MANSFIELD
Citation501 F.2d 1207
Parties87 L.R.R.M. (BNA) 3029, 74 Lab.Cas. P 10,254 UNITED STATES of America, Plaintiff-Appellant, v. Pablo BERRIOS et al., Defendants-Appellees. ocket 74-1365.
Decision Date08 August 1974
Docket NumberNo. 1111,D

Page 1207

501 F.2d 1207
87 L.R.R.M. (BNA) 3029, 74 Lab.Cas. P 10,254
UNITED STATES of America, Plaintiff-Appellant,
v.
Pablo BERRIOS et al., Defendants-Appellees.
No. 1111, Docket 74-1365.
United States Court of Appeals, Second Circuit.
Argued June 7, 1974.
Decided Aug. 8, 1974.

Page 1208

James W. Dougherty, Sp. Atty., U.S. Dept. of Justice, Edward John Boyd, V, U.S. Atty., E.D. of N.Y., Denis E. Dillon, Sp. Atty., U.S. Dept. of Justice, on the brief, for plaintiff-appellant.

Martin Garbus, New York City, on the brief for Pablo Berrios, defendant-appellee.

Michael B. Standard, New York City (Rabinowitz, Boudin & Standard, New York City, on the brief), for William Nuchow and Julius Zaretsky, defendants-appellees.

Phylis Skloot Bamberger, Atty., New York City (William J. Gallagher, The Legal Aid Society of New York City, Federal Defender Service Unit, on the brief), for Matthew Principe, defendant-appellee.

Before KAUFMAN, Chief Judge, and MANSFIELD and MULLIGAN, Circuit judges.

MANSFIELD, Circuit Judge:

At issue on this appeal by the government is the question of whether the district court, after the defendant Pablo Berrios alleged that in this case he had

Page 1209

been the victim of selective and discriminatory prosecution by the government, acted properly and within its powers in dismissing the indictment against all defendants because of the government's refusal to turn over to the court for disclosure to defense counsel a memorandum that had been sent by the prosecutor to the United States Department of Justice recommending that prosecution of the defendants be initiated. We vacate the district court's order and remand the case for further proceedings consistent with this opinion.

Some eighty years ago, the Supreme Court observed that the administration of laws 'with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances' constitutes a denial of equal protection. Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Nothing can corrode respect for a rule of law more than the knowledge that the government looks beyond the law itself to arbitrary considerations, such as race, religion, or control over the defendant's exercise of his constitutional rights, as the basis for determining its applicability. See Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). Selective prosecution then can become a weapon used to discipline political foe and the dissident, see, e.g., United States v. Falk, 479 F.2d 616 (7th Cir. 1973); United States v. Steele, 461 F.2d 1148 (9th Cir. 1972). The prosecutor's objective is then diverted from the public interest to the punishment of those harboring beliefs with which the administration in power may disagree. This case involves such allegations.

In an indictment filed on January 8, 1973, appellee Berrios stands accused of holding union office in violation of 29 U.S.C. 504, which provides that no person who has been convicted of the crime of arson, among others, shall within five years of such conviction serve as an officer or employee of a labor organization. 1 Berrios, it is alleged, was convicted of the crime of arson by the Supreme Court of New York in 1971 and, notwithstanding that conviction, within five years thereafter became Trustee and a member of the Executive Board of Teamsters Union Local 840. His success in achieving these positions is the cause of his present plight. The other appellees (Nuchow, Principe and Zaretsky) were later charged with violating 504 by wilfully and knowingly permitting Berrios to hold union office after his conviction.

Berrios contends that he was chosen for prosecution because he was counted among the few Teamster officials who were in 1972 outspoken in their support of Senator McGovern for President as against President Nixon and because he was at that time spearheading an effort to unionize the Marriott Restaurant Chain, an enterprise that apparently enjoys close ties with President Nixon and his family. In support of his charge of selective prosecution, Berrios submitted the affidavit of his counsel, Martin Garbus,

Page 1210

Esq., which states that he and his client 'believe' that (1) there have been only three prosecutions under 504 since 1969; 2 (2) Mr. Marriott has been a close friend of the President and a substantial contributor to his political campaign; (3) Donald Nixon, the President's brother, is a vice-president of Marriott; (4) Herbert Kalmbach, attorney for Marriott, was also the President's personal attorney; (5) Charles Colson, formerly counsel to the President and later counsel to the Teamsters Union was a 'prime mover in the prosecution', and (6) there are hundreds of unions with officers who have prison records. 3 Although Berrios' counsel later pointed to newspaper articles as the basis for some of these beliefs, no evidence or facts were offered to show the basis of his belief that numerous other violations of 29 U.S.C. 504 had gone unprosecuted. Nevertheless, on the strength of the affidavit, Berrios moved for a hearing on his defense of selective prosecution.

Upon oral argument, which was conducted by the court for the purpose of determining whether a hearing was required, counsel for Berrios urged that he had shown enough to warrant further exploration by way of a hearing. As might be anticipated, the government took the opposite view, pointing out the vagueness of Berrios' allegations and explaining that the prosecutor had learned of Berrios' criminal record while investigating a charge of arson lodged against him for an attempted firebomb attack on a Marriott restaurant. (Berrios was acquitted of this charge after a jury trial before Judge Judd on February 7, 1973). Judge Judd suggested that the charge of selective prosecution might be resolved without a hearing if the government would turn over a copy of the letter from the prosecutor to his superiors, which originally sought authorization for the prosecution of Berrios. At...

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413 practice notes
  • American Baptist Churches in the USA v. Meese, No. C-85-3255 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 24, 1989
    ...Inc., 684 F.2d 928, 932 (D.C. Cir.1982), cert. denied, 459 U.S. 1172, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983); United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir.1974) ("decision to permit a hearing ... lies largely in the trial judge's discretion"). "The fact that access to the Governm......
  • United States v. Nelson, No. G78-115 CR5.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • February 15, 1980
    ...such as race, religion or the desire to prevent the defendant from exercising his other constitutional rights). United States v. Berrios, 501 F.2d 1207 (2d Cir. Nelson's attempt here to meet this test is insufficient. He alleges that the United States Attorney refused to investigate an ille......
  • US v. Bradley, Crim. No. 1:CR-92-200-01
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • May 3, 1994
    ...impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). See also Attorney General, 684 F.2d at 946-47; United States v. Eklund, 733 F.2d 1287, 1290 (8th Cir.1984), cert. deni......
  • Murgia v. Municipal Court
    • United States
    • United States State Supreme Court (California)
    • September 24, 1975
    ...p. 69--70, 73 S.Ct. at p. 527.) 9 See, e.g., United States v. Oaks (9th Cir. 1974) 508 F.2d 1403; United States v. Berrios (2d Cir. 1974) 501 F.2d 1207; United States v. Berrigan, supra, 482 F.2d 171; United States v. Falk (7th Cir. 1973) 479 F.2d 616; United States v. Steele (9th Cir. 1972......
  • Request a trial to view additional results
413 cases
  • American Baptist Churches in the USA v. Meese, No. C-85-3255 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 24, 1989
    ...Inc., 684 F.2d 928, 932 (D.C. Cir.1982), cert. denied, 459 U.S. 1172, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983); United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir.1974) ("decision to permit a hearing ... lies largely in the trial judge's discretion"). "The fact that access to the Governm......
  • United States v. Nelson, No. G78-115 CR5.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • February 15, 1980
    ...such as race, religion or the desire to prevent the defendant from exercising his other constitutional rights). United States v. Berrios, 501 F.2d 1207 (2d Cir. Nelson's attempt here to meet this test is insufficient. He alleges that the United States Attorney refused to investigate an ille......
  • US v. Bradley, Crim. No. 1:CR-92-200-01
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • May 3, 1994
    ...impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). See also Attorney General, 684 F.2d at 946-47; United States v. Eklund, 733 F.2d 1287, 1290 (8th Cir.1984), cert. deni......
  • Murgia v. Municipal Court
    • United States
    • United States State Supreme Court (California)
    • September 24, 1975
    ...p. 69--70, 73 S.Ct. at p. 527.) 9 See, e.g., United States v. Oaks (9th Cir. 1974) 508 F.2d 1403; United States v. Berrios (2d Cir. 1974) 501 F.2d 1207; United States v. Berrigan, supra, 482 F.2d 171; United States v. Falk (7th Cir. 1973) 479 F.2d 616; United States v. Steele (9th Cir. 1972......
  • Request a trial to view additional results

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