United States v. Bentvena

• Decision Date: 07 November 1960
• Citation: 193 F. Supp. 485
• Parties: UNITED STATES of America, v. William BENTVENA et al., Defendants.
• Court: U.S. District Court — Southern District of New York

193 F. Supp. 485

UNITED STATES of America, v. William BENTVENA et al., Defendants.

United States District Court S. D. New York.

October 26, 1960.

Supplemental Opinion October 27, 1960.

On Motion to Reargue November 7, 1960.

On Motion for Leave to Reargue the Motion for Severance November 7, 1960.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

S. Hazard Gillespie, Jr., U. S. Atty., S. D. New York, New York City, for the United States; William M. Tendy, Paul J. Curran, Asst. U. S. Attys., New York City, of counsel.

James E. Branigan, Jr., New York City, for defendant William Bentvena.

Wilfred L. Davis, Albert J. Krieger, New York City, for defendant Carlie Di Pietro.

Joseph Panzer, New York City, for defendant Joseph Fernandez.

Thomas A. Wadden, Washington, D. C., for defendant Carmine Galante, by Vincent J. Fuller, New York City.

Joseph Panzer, New York City, for defendant Jack Gellman.

Bernard Golding, Houston, Tex., for defendant Benjamin Indiviglio.

Sylvester Cosentino, New York City, for defendant Angelo Loicano.

Joseph Panzer, New York City, for defendant Frank Mancino.

Joseph Panzer, New York City, for defendant Frank Mari.

Oliver C. Biddle, New York City, for defendant Anthony Mirra.

Robert Mitchell, New York City, for defendant Samuel Monastersky.

James E. Branigan, Jr., New York City, for defendant Marcantonio Orlandino.

Vincent J. Fuller, New York City, for defendant John Ormento.

Jerome Lewis, Brooklyn, for defendant Carmine Panico.

Jerome Lewis, Brooklyn, for defendant Salvatore Panico.

Terry Milburn, New York City, for defendant David Petillo.

Bernard Moldow, Legal Aid Society, New York City, for defendant Carmine Polizzano.

George Feit, New York City, for defendant Rocco Sancinella.

Joseph Panzer, New York City, for defendant Salvatore Sciremammano.

James E. Branigan, Jr., New York City, for defendant William Struzzieri.

Leo B. Mittelman, New York City, for defendant Angelo Tuminaro.

George R. Sommer, Newark, N. J., for defendant Joseph Vecchio.

LEVET, District Judge.

In this case, under an indictment alleging a narcotic conspiracy with seven other substantive counts, the defendants have made various pre-trial motions. The substantive counts allege receipt, concealment and facilitation of transportation of narcotics in six counts, illegal importation in one count, and conspiracy with fifteen overt acts in the Eighth Count, all violations of Title 21 U.S.C.A. §§ 173 and 174.

Twenty-two defendants of the twenty-nine named are before this court. Three are said to be fugitives and four beyond the jurisdiction of this court.

The motions seek severance, change of venue, discovery and inspection, bills of particulars and dismissal of the indictment.

A list of moving defendants, as well as the relief sought by each, is as follows:

                Di Pietro            Severance; Bill of
                                     Particulars
                Fernandez            Severance; Change
                                     of Venue; Discovery
                                     and Inspection; Bill
                                     of Particulars
                Galante              Bill of Particulars
                Gellman              Bill of Particulars
                                     Discovery and Inspection
                Indiviglio           Dismiss Indictment;
                                     Bill of Particulars.
                Loicano              Severance; Suppression;
                                     Bill of Particulars.
                Mari                 Severance; Discovery
                                     and Inspection;
                                     Bill of Particulars.
                Ormento              Bill of Particulars.
                Carmine Panico       Bill of Particulars.
                Salvatore Panico     Bill of Particulars.
                Petillo              Severance; Change
                                     of Venue; Discovery
                                     and Inspection; Bill
                                     of Particulars.
                
                

                Sciremammano         Discovery and Inspection;
                                     Bill of Particulars.
                Tuminaro             Severance; Change of
                                     Venue; Discovery
                                     and Inspection; Bill
                                     of Particulars.
                

A conspiracy is charged to include the importation of narcotics from Canada and other countries said to be unknown; the receipt, concealment, transportation and distribution of such drugs. Each of the defendants on trial, except Fernandez, Galante and Sciremammano, is named in at least one overt act.

I. Motions for Severance

A. ON THE BASIS OF EXTRINSIC FACTS Defendants Angelo Tuminaro, Joseph Fernandez and David Petillo

In the Sixth Count, Tuminaro is charged (together with defendants Cotroni, Di Pasqua and Rene Robert) with unlawful importation of approximately 10 kilograms of heroin.

In the Seventh Count, together with the same defendants, he is charged with unlawfully receiving, concealing and facilitating the transportation of 10 kilograms of heroin.

By the Eighth Count, Tuminaro, Fernandez and Petillo are charged with a narcotic conspiracy. Some twenty-six other defendants are so charged in the same count. Two of these co-defendants are Carmine Galante and John Ormento. Ormento was convicted in the so-called Apalachin Trial.¹ See United States v. Bonanno et al., D.C.S.D.N.Y.1959, 177 F. Supp. 106; Id., D.C.1959, 178 F.Supp. 62; Id., D.C.1960, 180 F.Supp. 71.

In this motion for severance, these three defendants, i. e., Tuminaro, Fernandez and Petillo, seek to disassociate themselves from their alleged co-conspirators Ormento and Galante because of the unfavorable publicity allegedly surrounding the latter, their records, as well as publicity said to have been given to the so-called "Mafia," an allegedly existing organization in which the latter are said to have been prominent.

I have examined various newspaper items, magazine articles and excerpts from a book entitled "Brotherhood of Evil—The Mafia," by Frederick Sondern, Jr. While some of these publications mention Carmine Galante and John Ormento, none refer to these moving defendants. Little of the publicity is of any recent vintage. None has emanated from government sources, as far as I can observe. None is damaging to the moving defendants unless mere association is so construed. Association is not proof of guilt, nor is association avoidable in a conspiracy indictment.

The question of a severance must be decided in the discretion of the trial judge whose determination will not be upset in the absence of an abuse of such discretion. Opper v. United States, 1954, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101; United States v. Lebron, 2 Cir., 1955, 222 F.2d 531, 535, certiorari denied 1955, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774. Furthermore, where the charges against all defendants are provable by the same evidence, and the acts charged are of the same or similar character, a severance should not be granted except for the most compelling reasons. United States v. Cohen, 2 Cir., 1941, 124 F.2d 164, 165-166, certiorari denied sub nom. Bernstein v. United States, 1942, 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210; United States v. Bonanno, D.C.S.D.N.Y. 1959, 177 F.Supp. 106, 116.

In respect to pre-trial publicity, Judge Kaufman in United States v. Bonanno, D.C.S.D.N.Y.1959, 177 F.Supp. 106, 122. wrote as follows:

"A study of the cases dealing with the problem of pre-trial publicity indicates that four main factors should be considered in deciding if relief of some kind should be granted at this stage of the proceedings. First, it is necessary that the publicity be recent, widespread and highly damaging to the defendants. Second, it is an important consideration whether the government was responsible for the publication of the objectionable material, or if it emanated from independent sources. This factor is especially significant in regard to the third factor, the inconvenience to the government and the administration of justice of a change of venue or continuance. The government can hardly be heard to complain of inconvenience if it was responsible for the dissemination of damaging material. In fact, governmental complicity was almost singularly dispositive in the leading case in which a trial judge's discretion was reversed, see Delaney v. United States, 1 Cir., 1952, 199 F.2d 107, though the publicity in that case was particularly virulent and was concentrated on the eve of trial. Last, it must be considered whether a substantially better panel can be sworn at another time or place."

I find nothing here which, by reason of the alleged publicity about Ormento and Galante, requires either a severance of the moving defendants or a deferment of the trial or the transfer of this case outside the City of New York. As Judge Kaufman said in United States v. Bonanno, supra, at page 123, "if at the time of selection it appears to me that an unprejudiced panel cannot be sworn, there will be time enough then for me to take the necessary steps to assure the defendants a fair trial. In light of the circumstances, as they presently appear, however, the motions to change venue and postpone the trial must be denied."

This is my ruling here.

B. MOTIONS FOR SEVERANCE BASED ON SO-CALLED "INTRINSIC" FACTS Defendants Tuminaro, Fernandez and Petillo

Tuminaro argues that:

(1) He is named in the Sixth, Seventh and Eighth Counts and not in any of the first five counts.

(2) A conviction of any of the defendants named in the first five counts will prejudice him with respect to the Sixth, Seventh and Eighth Counts.

Fernandez and Petillo similarly argue that:

(1) They are named only in the Eighth Count.

(2) A conviction of any of the defendants in the first seven counts will prejudice them in respect to the Eighth Count.

All three argue that the substantive counts are not alleged as overt acts in the Eighth (i. e., Conspiracy) Count.

Rule 8 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., is as follows:

"Joinder of Offenses and of Defendants

"(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether

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