United States v. Agnello
Decision Date | 03 December 1973 |
Docket Number | No. 73 CR 827.,73 CR 827. |
Parties | The UNITED STATES v. Fabrizzio AGNELLO et al. |
Court | U.S. District Court — Eastern District of New York |
COPYRIGHT MATERIAL OMITTED
Robert A. Morse, U. S. Atty., E.D.N. Y., Denis E. Dillon, Atty. in Charge, Organized Crime Section, by David J. Ritchie, Sp. Atty., Brooklyn, N.Y., for the United States.
DelRosso & Weinstein, by Anthony N. DelRosso, Hempstead, N.Y., for defendants Carmine Piccora, Frank Questel and Raymond Suarez.
Jerome F. Matedero, Brooklyn, N.Y., for defendant Nicholas Langella.
Krivit, Levitov, Miller, Galdieri & DeLuca, by Samuel R. DeLuca, Jersey City, N.J., for defendants Anthony Bamonte and Raymond Coughlin.
Michael A. Querques, Orange, N.J., for defendant Pasquale Macchirole.
Gilbert S. Rosenthal, New York City, for defendant Anthony Bencivenga.
Vincent L. Verdiramo, Jersey City, N.J., for defendants Joseph Conte, Charles Greene, Fred Smith, Albert Grasso, Joseph Danduono and Fabrizzio Agnello.
Dennis D. S. McAlevy, Jersey City, N.J., for defendant Donald Fontana.
Joseph W. Allen, New York City, for defendant Gerard Ruggiero.
Saxe, Bacon, Bolan & Manley, by Roy M. Cohn, New York City, for defendants Hildo Gillis and John Macchirole.
Joseph J. Lombardo, Brooklyn, N.Y., for defendant Spadafora.
Seymour Margulies, Jersey City, N.J., for defendant Neil Pacilio.
Several of the defendants in this proceeding have made omnibus pretrial motions. Following oral argument, the receipt of briefs and pretrial conferences the court makes the following rulings:
Pasquale Macchirole
The bases for defendant's motion are that he is seriously ill and therefore unable to stand trial, and that he anticipates that he will call certain codefendants to testify on his behalf. With regard to the latter reason the court denies the motion for severance, with leave to renew at the time of trial when a proper showing of prejudice can be made. With regard to defendant's claim of illness the court will reserve decision, pending examination of the defendant by a government appointed physician.
The motion is denied.
1. Motion for severance
The motion is denied, with leave to renew at the time of trial when a proper showing of prejudice can be made.
The motions are denied.
The motions are denied with leave to renew at the time of trial when a proper showing of prejudice can be made.
The motions are denied.
1. Motion for severance
The motion is denied with leave to renew at the time of trial when a proper showing of prejudice can be made.
The motion is denied.
The motion is denied, with leave to renew at the time of trial when a proper showing of prejudice can be made.
All defendants
The indictment consists of fourteen counts charging twenty three defendants, and encompassing a period of over eight years. The defendants argue that unless the indictment is "broken down" none of the defendants will receive a fair trial. Although the argument has verisimilitude, the court at this stage of the proceedings does not have a sufficient factual basis to make a ruling. Specifically, the court could not direct the form or manner in which this case should be dissected.
The court is cognizant, however, that because of the complexity of the charges and the number of defendants involved, grave problems may be anticipated. For example, there are several defendants who are named in the conspiracy count only and not in any of the thirteen substantive counts. While this alone is not controlling, it cannot be questioned that during the trial a large portion of the evidence received will not apply to these defendants. Concomitantly, where the evidence to be received at trial is to be voluminous and where a jury is required to make its determination on the basis of inferences to be drawn from circumstantial evidence, substantial prejudice may arise in that the jury may not be able to decipher the facts, thus becoming confused and unable to judge each defendant on the merits of his own case.
Fortunately, the prosecuting attorney, Special Attorney David J. Ritchie, has foreseen the difficulties confronting this court. He has proffered to the court his suggestion as to how this case could be simplified if this court should find that the indictment is unmanageable.
Though the government attorney continues to object to the granting of any motion for severance, he would agree that this case is highly intricate and will require a protracted trial. Therefore, based upon the complexity of the charges, the anticipated duration of the proceedings, the number of defendants, and the fact that several of the defendants are named solely in the conspiracy count, the court is inclined to accept the prosecutor's suggestion with a view toward facilitating these proceedings. Consequently, the court orders that the following defendants are severed from the initial trial: Fabrizzio Agnello, Nicholas Langella, Anthony Spadafora, Raymond Suarez, Keith Lofton, Jasper Lester, Alfred Smith and Hildo Gillis.
After having made an in camera inspection of the Grand Jury minutes, the court finds that the indictment was properly obtained. Therefore, the motion is denied.
Count XIV of the indictment charges that during the period beginning on or about January 1, 1964, and ending on September 12, 1972, all the defendants "did knowingly and willfully combine, conspire, confederate and agree together, with one another and with others, to embezzle and steal foreign shipments of freight in violation of 18 U.S.C. § 659 (1971), to unlawfully remove merchandise from customs in violation of 18 U. S.C. § 549 (1971) and to transport in interstate commerce stolen merchandise known to have been stolen in violation of 18 U.S.C. § 2314 (1971)."
In Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), the Court sounded the following warning:
A conspiracy case carries with it the inevitable risk of wrongful attribution of responsibility to one or more of the multiple defendants. See, e. g., United States v. Bufalino, 285 F.2d 408, 417-418 (C.A.2d 1960). Under these circumstances, it is especially important that the defense, the judge and the jury should have the assurance that the doors that may lead to truth have been unlocked. In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact. Exceptions to this are justifiable only by the clearest and most compelling considerations. Id. at 873, 86 S.Ct. at 1851.
Recently a federal district court has held that a defendant is entitled to see copies of "all statements the government intends to offer against him as his admission whether they were made by him directly or indirectly or by his agent or by a coconspirator during the course and in furtherance of the conspiracy." United States v. Percevault, 61 F.R.D. 338 (E.D.N.Y., filed Oct. 26, 1973) (Weinstein, J.).
It is of course well settled that a statement made by a coconspirator during the course and in furtherance of a conspiracy may be offered in evidence against a defendant as if it were his own utterance. Unquestionably these statements are detrimental to a defendant's case in that they can be damaging while the defendant may be completely unaware of their existence. This will be especially true where the conspiracy charged involves crimes purported to have been committed over a period spanning eight years and which involve many diverse acts committed by diverse parties.
The government opposes discovery of any statements not actually made by a defendant. It argues that Rule 16 refers only to statements made by the defendant. In essence the government urges a strict construction of Rule 16. This, however, would fly in the face of the legislative history of the rule, 8 J. Moore, Federal Practice ¶ 16.01 (2d ed. 1965), and the case law arising thereunder. Dennis v. United States, supra.
Additionally, the government relies upon United States v. Louis Carreau, Inc., 42 F.R.D. 408 (S.D.N.Y.1967) to support its position. The court in that case held that Rule 16 did not entitle defendants, two corporate officers, to discover statements made by a bookkeeper employed by them to government agents. The ruling hinged upon the court's finding that the statements did not constitute a statement of a defendant producible under Rule 16(a) and that the defendants had failed to show that it was material to the preparation of their defense.
Clearly the holding in Carreau has little import to the case sub judice. The statements of coconspirators can be admitted into evidence against a defendant as if they were his own. Consequently, they should be deemed to be statements made by the defendant under Rule 16(a) or in the alternative they should be deemed to be of such importance as to necessitate their discovery under Rule 16(b)....
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