United States v. Addonizio

• Decision Date: 30 April 1970
• Docket Number: Crim. No. 548-69.
• Citation: 313 F. Supp. 486
• Parties: UNITED STATES of America v. Hugh J. ADDONIZIO et al., Defendants.
• Court: U.S. District Court — District of New Jersey

313 F. Supp. 486

UNITED STATES of America v. Hugh J. ADDONIZIO et al., Defendants.

Crim. No. 548-69.

United States District Court, D. New Jersey.

April 30, 1970.

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Frederick B. Lacey, U. S. Atty. for the District of New Jersey, by Herbert J. Stern, Chief Asst. U. S. Atty.

Hellring, Lindeman & Landau, by Bernard Hellring, and Edwin H. Stern, Newark, N. J., for defendant Hugh J. Addonizio.

Thomas A. Wadden, Jr., Washington, D. C., for defendant Ruggiero A. Boiardo, Jr.

Mylod & Feinberg, by Julius A. Feinberg, Bloomfield, N. J., for defendant Anthony LaMorte.

Thomas R. Dyson, Jr., Washington, D. C., for defendant Joseph Biancone.

Patrick M. Wall, New York City, for defendant Ralph Vicaro.

Lum, Biunno & Tompkins, by William F. Tompkins, and William B. McGuire, Newark, N. J., for defendant Norman N. Schiff.

Budd, Larner, Kent, Gross & Picillo, by John J. Budd, Newark, N. J., for defendant Phillip Gordon.

Bracken & Walsh, by Joseph F. Walsh, Newark, N. J., for defendant Benjamin Krusch.

Raymond A. Brown, by Irving I. Vogelman, Jersey City, N. J., for defendants Frank Addonizio, Lee Bernstein, Calvin D. West and Irvine I. Turner.

Joseph A. Hayden, Newark, N. J., for defendant James Callaghan.

OPINION AND ORDER

BARLOW, District Judge.

This case involves thirteen defendants (originally there were fifteen; two have since died) charged with violations of the Hobbs Act, 18 U.S.C. § 1951, in a sixty-six count indictment, Cr.No. 548-69, returned by a United States Grand Jury on December 17th, 1969. Specifically, Count I charges the defendants with "wilfully, unlawfully and feloniously" conspiring to "obstruct, delay and affect interstate commerce" by extortion "induced both by fear of financial injury and under color of official right" in connection with certain municipal construction projects undertaken by the City of Newark.

In Counts II through LXVI, all of the defendants are charged with substantive violations of 18 U.S.C. § 1951 in furtherance of the conspiracy and, additionally, in Counts XI through LXVI, various defendants are specially named.

The defendants filed a plethora of pre-trial motions in this case. Arguments thereon were heard on March 16th through March 19th, 1970. For the purposes of exposition and decision, these motions have been grouped in several categories.

I MOTION TO STRIKE ALIAS

Defendant Boiardo moves to strike the alias "Tony Boy" from the caption and from all counts of the indictment, on the ground that its inclusion can serve only to inspire jury prejudice.

During oral argument, the United States represented that its proofs at trial will necessitate the use of the alias to identify this defendant in connection with the acts charged in the indictment. The cases hold that, where relevant, the use of an alias in an indictment is permissible, and a pre-trial motion to strike should not be granted. United States v. Johnson, 298 F.Supp. 58, 65-66 (N.D. Ill., 1969); United States v. Miller, 381 F.2d 529 (2d Cir., 1967), cert. denied, 392 U.S. 929, 88 S.Ct. 2273, 20 L.Ed.2d 1387 (1968). If, however, the United States fails to offer proof relating to the alias, this motion may be renewed, the alias struck, and an appropriate precautionary instruction given to the jury. See United States v. Brandt, 139 F. Supp. 367 (N.D.Ohio, 1955); United States v. Valenti, 74 F.Supp. 718 (W.D. Pa., 1947). Thus this motion must now be denied.

II MOTIONS TO PERMIT CONFERENCES

Defendant H. Addonizio seeks an order permitting the defendants to interview any witnesses held by the United States in any form of protective custody. The United States represented to the court that it holds no witnesses in such custody and has no objections to the defendants interviewing any prospective witnesses who are willing to be so interviewed.

Additionally, the defendant H. Addonizio requests the entry of an order authorizing the defendants' attorneys to confer among themselves with respect to this indictment. Such an order is necessary, it is suggested, because the alleged "chilling effect" resulting from the pre-trial publicity accorded this indictment may have inhibited defense counsel. All defendants herein are represented by experienced and knowledgeable counsel who are entirely aware of their complete freedom to communicate among themselves if they deem it advisable. Accordingly, any orders of the court with respect to either of these motions would be meaningless, and the motions therefore are denied.

III MOTION FOR PRE-TRIAL CONFERENCES

Defendants Boiardo and Biancone move for the scheduling of a pre-trial conference of all parties to (1) set a time and place for trial, and (2) order counsel to refrain from making public statements relating to the indictment.

It is the announced intention of the court to schedule a pre-trial conference, as provided for by Fed.R.Crim.P. 17.1, for the purpose of resolving numerous matters relating to the conduct of the trial. The date of that conference and the specific subject matter thereof will be determined at a later date. Therefore, that portion of the motion is granted.

All counsel are hereby admonished to adhere to the guidelines concerning publicity as set forth in General Rule 36 of the United States District Court for this district. Accordingly, at this time, no preventive order is necessary, and that portion of the motion is denied.

IV MOTION FOR SPEEDY TRIAL

Defendants Krusch and Schiff move for a speedy trial. The court recognizing that the interests of justice require that the trial be held at the earliest practicable time, has heretofore advised all counsel that trial will commence on June 2nd, 1970. The relief sought has, accordingly, been granted.

V MOTIONS TO SUPPRESS EVIDENCE OBTAINED BY THE UNITED STATES BY MEANS OF ELECTRONIC SURVEILLANCE

Defendants H. Addonizio, Boiardo, Biancone and Vicaro move to suppress all evidence, or the fruits thereof, obtained by the United States by means of electronic surveillance. Defendant Turner has made an associated motion phrased in terms of requesting discovery and inspection of any such evidence.

The United States represented, during the course of oral argument, that it has never picked up the voice of the defendant H. Addonizio in any electronic surveillance. Counsel for defendant H. Addonizio stated, on the record, that he was satisfied by that representation. See Transcript, March 16th, 1970, p. 61. In addition, the United States represented that it had never picked up the voice of defendant Biancone in any electronic surveillance.

As to the defendants Boiardo and Vicaro, the United States represented that the only information concerning these defendants which was acquired through electronic surveillance is contained in the so-called DeCarlo and DeCavalcante tapes, which are available for inspection as public records, filed with the Clerk of the United States District Court in Newark.

Defendants Boiardo, Biancone and Vicaro refuse to accept such representations of the United States for the reason that there may be additional information resulting from electronic surveillance which reposes in government files unknown to the United States Attorney. They seek a pre-trial hearing to test the accuracy of the United States' representations as to the extent of any electronic surveillance of them or their premises.

It is the position of the United States that (1) existing law establishes that the representation of the United States in such circumstances is to be believed, and (2) in any event, it has made a full inquiry as to the extent of electronic surveillance regarding these defendants and has made full disclosure thereof.

This court has examined the transcript of the oral argument, the briefs filed, the relevant case law and the affidavit filed by the United States, at the direction of this court, outlining the scope of the inquiry underlying its representation. The court is satisfied that the United States has done all that could be reasonably required of it to assure that any information resulting from electronic surveillance involving the defendants in this case has been unearthed and disclosed. See United States v. Zirpolo, 288 F.Supp. 993, 1016-1018 (D.N.J., 1968).

The court is further satisfied that the law requires that the United States' representation concerning the existence of electronic surveillance is to be believed, especially where, as here, there has been no particular showing by defendants of facts casting doubt upon that representation. See United States v. De Sapio, 299 F.Supp. 436, 449 (S.D. N.Y., 1969). No pre-trial hearing on this issue is warranted, and the motion is denied.

Defendants Boiardo, Biancone and Vicaro next urge that a pre-trial hearing be held to determine if any of the evidence which the United States intends to use at trial is the fruit of illegal electronic surveillance. The defendants rely, essentially, upon the case of Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). In Alderman, the Supreme Court remanded the case to the trial court for the purpose of holding an adversary hearing to determine whether tainted evidence arising from electronic surveillance had been introduced at trial. Only in the event that such a hearing established the use of tainted evidence was the conviction to be reversed and a new trial ordered. Nowhere in Alderman does the Supreme Court indicate that a pre-trial hearing must be granted to determine possible taint, even where, unlike the facts of Alderman, it is admitted before trial that defendants were subjected to electronic surveillance.

Logically, it would seem that a post-trial procedure to determine taint would be the better practice. In order to hold an effective pre-trial hearing in such a case, all of the admissible evidence that the United States proposes to introduce at trial would have to be presented. The...