U.S. v. Corbo

• Decision Date: 15 July 1977
• Docket Number: No. 76-4403,76-4403
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Blas Jesus CORBO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1279

555 F.2d 1279

UNITED STATES of America, Plaintiff-Appellee, v. Blas Jesus CORBO, Defendant-Appellant.

No. 76-4403.

United States Court of Appeals, Fifth Circuit.

July 15, 1977.

Nathan Kurtz, Miami, Fla. (court-appointed), for defendant-appellant.

Robert W. Rust, U. S. Atty., Michael P. Sullivan, R. Jerome Sanford, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before THORNBERRY, GODBOLD and FAY, Circuit Judges.

FAY, Circuit Judge:

Along with Antonio DeLaCova and Gary Latham, appellant was indicted for conspiracy, attempting to destroy a building used in interstate commerce by means of explosives, and possession of unregistered firearms. ¹ The other two defendants pleaded guilty prior to appellant's trial. In March 1976, DeLaCova introduced Miguel Peraza, an F.B.I. informant, to appellant at Peraza's home. On April 16, DeLaCova met with Peraza and told him that he planned to firebomb the home of Vincente Dopico, a magazine publisher. After purchasing materials for Molotov Cocktails, they met appellant who contributed a can of black gunpowder for the bomb. Appellant wanted to make bombs instead of incendiary devices. Early on the 17th, after the devices had been made, they went to Dopico's home where appellant and DeLaCova hurled the devices which failed to ignite. They returned to Peraza's house and, when DeLaCova left, Peraza called the F.B.I. DeLaCova had gone to Latham's house to type up a proclamation. He told Latham that he and appellant had thrown firebombs at Dopico's house.

On May 4, Peraza again met with DeLaCova who told him they were planning to bomb a bookstore on 8th Street and 34th Avenue. He stated the bomb would be built at Latham's apartment. The F.B.I. was informed and maintained surveillance of Latham's apartment. Peraza and DeLaCova were observed with Latham constructing the bomb. On the way into town, DeLaCova told Latham that appellant was to accompany them to the bookstore. Appellant was picked up and again expressed displeasure at the small size of the bomb. They parked the car about one block from the bookstore. DeLaCova was apprehended after placing the bomb at the store. Appellant and Latham were arrested in the car. The bomb contained gunpowder and dynamite.

In this appeal appellant argues he was so prejudiced by pretrial publicity as to warrant dismissal of the indictment or a change of venue. He alleges he was subjected to double jeopardy because of state prosecution on the same charges. He also argues the court had no jurisdiction because these were strictly state crimes. He alleges the court erred in selecting the jury. He contends that the court prohibited his counsel from making certain closing arguments about matters in evidence and thus prejudiced him. Finally he alleges the prosecutor's closing argument was so prejudicial as to deny him a fair trial.

Appellant argues the indictment should have been dismissed or a change of venue granted because of the pretrial publicity. Since appellant did not request a venue change in the district court, he cannot raise the matter now for the first time. The court denied appellant's motion to dismiss the indictment because of pretrial publicity due to appellant's failure to support the motion with evidentiary materials. To date, appellant has still not made the requisite showing. The critical issue is the actual or probable effect of the pretrial publicity on the trial itself, and more precisely, on those who sat in judgment of appellant. Calley v. Callaway, 5 Cir. 1975, 519 F.2d 184, 206. Appellant has made no showing that the publicity prejudiced him so as to deny him a fair trial. The jurors stated they did not hold preconceived notions of appellant's guilt.

Appellant next alleges his prosecution on state charges arising out of the same incident precluded federal prosecution and thus he was subjected to double jeopardy. This contention was considered and rejected by the Supreme Court in Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). The Court there discussed the dual sovereignties involved and found no constitutional bar to dual prosecution. See also Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Additionally, the offenses here involved added elements not found in the state prosecution; a building in interstate commerce and a firearm not registered as required by a federal statute.

Appellant argues the court did not have jurisdiction since no nexus with interstate commerce was ever established. This bald assertion is directly contradicted by the testimony of Alan Sandler, president of Fiesta Publishing Corporation, the company that supplied materials to the bookstore. He testified that the materials supplied to the bookstore had traveled in interstate commerce. The indictment charged attempting to destroy a building used in and affecting interstate commerce. Here the nexus was established by Sandler's testimony. See Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971).

Appellant contends there was error in the selection of the jury because the court separated those prospective jurors who had heard of ...