U.S. v. Malatesta, No. 77-5032

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before COLEMAN, GEE and RUBIN; ALVIN B. RUBIN; COLEMAN; FOSTER
• Citation: 583 F.2d 748
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel "Danny Blue Eyes", "Billie Blue Eyes" MALATESTA, Jacquelin"Jacquelin Champlin" "Jacquelin Didonna" "Jacquelin Dodaro" "Jackie" Champion, Victor Dodaro, alias "Victor Didonna", Angelo J. Bertolotti, and Vincent Lynch, alias"Vinnie" "Jack", Defendants-Appellants.
• Decision Date: 08 November 1978
• Docket Number: No. 77-5032

Page 748

583 F.2d 748 UNITED STATES of America, Plaintiff-Appellee,
v.
Daniel "Danny Blue Eyes", "Billie Blue Eyes" MALATESTA,
Jacquelin"Jacquelin Champlin" "Jacquelin Didonna" "Jacquelin
Dodaro" "Jackie" Champion, Victor Dodaro, alias "Victor
Didonna", Angelo J. Bertolotti, and Vincent Lynch,
alias"Vinnie" "Jack", Defendants-Appellants. No. 77-5032. United States Court of Appeals,
Fifth Circuit. Nov. 8, 1978.

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Michael Brodsky, Asst. Federal Public Defender, Miami, Fla., for malatesta.

Bernard S. Yedlin, Miami, Fla. (Court-appointed), for Dodaro.

Michael J. Doddo, Miami, Fla. (Court-appointed), for Champion.

Murray M. Silver, Atlanta, Ga., for Bertolotti.

Alan E. Weinstein, Miami Beach, Fla. (Court-appointed), for Lynch.

Jack V. Eskenazi, U. S. Atty., Miami, Fla., John F. Evans, Sp. Atty., U. S. Dept. of Justice, Miami, Fla., Paul J. Brysh, T. George Gilinsky, Sydney M. Glazer, Attys., Appellate Section, Criminal Div., Washington, D. C., for plaintiff-appellee.

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

Before COLEMAN, GEE and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The Racketeer Influenced and Corrupt Organizations statute (RICO), 18 U.S.C. § 1961, Et seq., proscribes certain acts performed as part of a pattern of racketeering activities having an effect on interstate commerce. Indictments for its violation follow a pattern too; they are long and complicated, frequently charging a number of defendants. If the prosecution results in a conviction, the appeals follow a third pattern, raising a large number of complex issues, some common to more than one defendant, others unique to a particular defendant. We here consider these patterns and try to abstain from wandering down garden paths. ¹

I.

This case involves four male defendants and one female defendant, the wife of one of the co-defendants; a sixth defendant, Capotorto, died before trial. All were charged (Count I) with conspiracy to conduct a racketeering enterprise having an effect on interstate commerce in violation of 18 U.S.C. § 1962(d) and (Count II) with carrying out a racketeering enterprise in violation of 18 U.S.C. § 1962(c). The lengthy trial began on November 8, 1976,

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and ended on December 2, 1976. All of the defendants were convicted. ²

The indictment was 12 pages long. The alleged conspiracy was an agreement "to operate an illegal scheme to obtain money, marijuana and cocaine both inside and outside the State of Florida." Count I charged that the conspiracy embraced a plan to conduct the day-to-day operation of the enterprise through a pattern of racketeering activities that included extortions, kidnappings, and robberies, both to acquire money and supplies of marijuana and cocaine and to force other individuals to become employed by and associated with the defendants' enterprise. A part of the conspiracy was alleged to be the transportation of marijuana to Ohio. Twenty-six overt acts were set forth. Count II charged the same six individuals with engaging in an enterprise that consisted of an illegal scheme to obtain money, marijuana and cocaine through a pattern of racketeering activities in violation of 18 U.S.C. § 1962(c). The pattern was described as eleven specific acts made criminal by Florida law.

The evidence at trial, construed most favorably to the government, as it must be on post-conviction review, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, depicts a series of assaults, kidnappings, thefts, robberies, and thuggeries that it is unnecessary to describe in detail. Capotorto, Malatesta and Lynch were involved in most of them. The testimony linked Dodaro with a number of the episodes. There is an issue concerning the sufficiency of the evidence as to Bertolotti and Jacquelin Dodaro, and we will discuss that later.

II.

Presentation to Grand Jury of Transcript of Testimony Before

Another Grand Jury

The present indictment was returned by a grand jury empaneled in the Southern District of Florida, sitting in Fort Lauderdale, relying in part on testimony before a grand jury in Miami. The Assistant United States Attorney in Fort Lauderdale told the grand jury that this procedure was being followed to expedite its hearing of the case and that the government would produce any witnesses whom the grand jury desired to hear in person. The defendants urge dismissal of the indictment because of this use of the Miami grand jury proceedings, which they contend violated grand jury secrecy.

Rule 6(e) of the Federal Rules of Criminal Procedure prohibits disclosure of matters occurring before the grand jury except when it is directed by the court, is made to the attorneys for the government for use in performance of their duties, or is made to government personnel deemed necessary to assist an attorney for the government in performance of his duty to enforce federal criminal law. The rule is designed to protect grand jury secrecy and was adopted to implement the traditional reasons for cloaking grand jury proceedings: (1) to prevent the accused from escaping and from tampering with witnesses; (2) to protect the reputation of an accused who is not indicted; (3) to encourage witnesses to appear and speak freely; and, (4) to encourage jurors to engage in uninhibited investigation and deliberation. See Pittsburgh Plate Glass Co. v. United States, 1959, 360 U.S. 395, 405, 79 S.Ct. 1237, 1244, 3 L.Ed.2d 1323, 1330 (Brennan, J., dissenting); United States v. Procter & Gamble Co., 1958, 356 U.S. 677, 681 n. 6, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077.

The government cannot rely on the thesis that this disclosure of grand jury materials was made to the attorneys for the government for use in the performance of their duties, a disclosure permitted by Rule 6(e). The revelation complained of is not the unveiling of the grand jury transcript to the attorneys for the government, but their reading of it to Another grand jury. That kind of disclosure, although not sanctioned by Rule 6 without a court order, has been permitted in some circumstances. For

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example, in United States v. Garcia, 2 Cir. 1970, 420 F.2d 309, the court approved the use of one grand jury's minutes by government attorneys before another grand jury to obtain an indictment for perjury and later, in preparation for trial, to assist in the examination of witnesses. There the proceedings before the first grand jury were the predicate for the perjury indictment. Disclosure in such cases is necessary to prevent the obstruction of justice and to assure punishment for the crime. See, e. g., State v. Richard, 1898, 50 La.Ann. 210, 23 So. 331, and Izer v. State, 1893, 77 Md. 110, 26 A. 282. See also Sherry, Grand Jury Minutes: The Unreasonable Rule of Secrecy, 48 Va.L.Rev. 668, 675 n. 32 (1962) and Annot., 127 A.L.R. 272, 288 (1940), and cases cited therein. We have ourselves affirmed a conviction in which this procedure was followed. See United States v. Crippen, 5 Cir. 1978, 570 F.2d 535. Cf. United States v. Brumley, 5 Cir. 1977, 560 F.2d 1268 (prosecution for suborning perjury by grand jury witness). Moreover, a number of cases permit disclosure after the grand jury's deliberations have ended and an indictment has been returned. United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 234, 60 S.Ct. 811, 849, 84 L.Ed. 1129, 1174; United States v. Alper, 2 Cir. 1946, 156 F.2d 222, 226.

Judicial exceptions to the broad sweep of Rule 6 should not be expanded. It is neither time-consuming nor difficult to obtain a court order permitting disclosure. When the matter is presented to a court, the judge can take into account both the reasons why revelation is considered necessary and the purposes that underly the rule permitting secrecy. Thus, disclosure to another grand jury has been permitted by various district courts. See In re May 1972 San Antonio Grand Jury, W.D.Tex.1973, 366 F.Supp. 522, 532. Compare In re Grand Jury Investigation of Banana Industry, D.Md.1963, 214 F.Supp. 856, in which the disclosure of the testimony of only those witnesses no longer available was approved; this use is discussed and disapproved in Garcia, supra. See also 1 Wright, Federal Practice and Procedure: Criminal § 107, at 177 (1969).

Secrecy of grand jury materials should be protected almost as well by the safeguards at the second grand jury proceeding, including the oath of the jurors, as by judicial supervision of the disclosure of such materials. If, however, as a matter of policy, disclosure to another grand jury is to be broadly sanctioned, that change should be effected by amendment of Rule 6, rather than by court decision. The real problem in later disclosure to another grand jury may lie in possible prosecutorial abuse, such as the use of selected portions of the testimony, or the presentation of a transcript when the witness in person would be unimpressive. So long as the defendant is prevented from discovering the grand jury's minutes, Pittsburgh Plate Glass Co. v. United States, supra, and United States v. Procter & Gamble Co., supra, the prosecutor's actions remain virtually unchecked. Even court scrutiny after the fact may not always be effective.

Although we adopt the view that a court order should have been obtained permitting disclosure to the Fort Lauderdale Grand Jury, it does not follow that the prosecutor's failure to do so requires dismissal of the indictment in the absence of any showing of abuse. Compare United States v. Braniff Airways, Inc., W.D.Tex.1977, 428 F.Supp. 579, 583-584, in which the court dismissed an indictment relying in part on the fact that the prosecution supplied the indicting grand jury with summaries and excerpts from testimony before a prior grand jury that had conducted an 18-month investigation. In the usual case Rule 6(e) may be adequately enforced by a contempt citation; indeed, it was amended effective July 30, 1977 to provide in part: "A...