United States v. Corallo

• Decision Date: 13 March 1968
• Docket Number: No. 67 Cr. 1051.,67 Cr. 1051.
• Citation: 281 F. Supp. 24
• Parties: UNITED STATES of America v. Antonio CORALLO, Henry Fried, S. T. Grand, Inc., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

281 F. Supp. 24

UNITED STATES of America v. Antonio CORALLO, Henry Fried, S. T. Grand, Inc., et al., Defendants.

No. 67 Cr. 1051.

United States District Court S. D. New York.

March 13, 1968.

Robert M. Morgenthau, U. S. Atty., for United States, Michael S. Fawer, Robert G. Morvillo, Elkan Abramowitz, Asst. U. S. Atty., of counsel.

Barry Ivan Slotnick, New York City, for defendant Corallo, Jacob Kossman, Philadelphia, Pa., of counsel.

Zoloto, Karger & Zurkow, New York City, for defendants Fried and S. T. Grand, Inc., Arthur Karger, Alfred Donati, Jr., New York City, of counsel.

On Motion to Transfer

WYATT, District Judge.

This is a motion for defendant Antonio Corallo for an order transferring the proceeding as to him to another district. The motion is based on Rule 21(a) of the Federal Rules of Criminal Procedure which provides for such a transfer if the Court is satisfied that in this district there is "so great a prejudice against the defendant that he cannot obtain a fair and impartial trial" here. It is not suggested by Corallo to what district the case should be transferred, provided it is outside New York and Connecticut.

A similar motion to transfer has been made by defendants Fried and S. T. Grand, Inc., who suggest that the case be transferred to the Eastern District of Pennsylvania at Philadelphia. A similar motion to transfer has been made by defendant Motto who does not suggest to what district the case should be transferred, provided it is outside New York, Connecticut, and New Jersey.

The arguments and averments made by each defendant moving to transfer have been considered in connection with each motion.

It should be noted that defendants Itkin, Marcus, and Rappaport have not made motions to transfer and the case cannot be transferred as to them. This is not only because of the language of Rule 21(a) requiring that the transfer be "upon motion of the defendant" and that the transfer be "as to him"; it is also because of the Sixth Amendment right of a defendant to a trial in the district "wherein the crime shall have been committed". Thus, if a motion to transfer be granted as to some defendants here, it may well be that at least two duplicating trials will be required. While this is no reason to deny a transfer if movants can receive a fair trial only in some other district, it is a factor to be kept in mind in reaching a decision on that point.

The movants have submitted numerous examples of the extensive newspaper publicity which followed the indictment and arrests of the defendants; it is stipulated that radio and television stations carried substantially the same news. It is beyond dispute that the publicity was on a very large scale. It would serve no useful purpose to describe what was published but some of it was plainly unfavorable to defendants, for example, the reference to a defendant as a "Mafia leader", the reference to another defendant as a "wartime racketeer", and the suggestions that the underworld was attempting to infiltrate the municipal government. Whatever the effect of this news coverage, there was no purpose to make difficult a fair jury trial for defendants. While the United States Attorney and an official of the Federal Bureau of Investigation appear to have made statements to the press, they did not stimulate or increase the publicity. The nature of the charges and the identity of the defendants would in any event have excited wide public interest, to which the news media responded naturally. It is assumed that the same factors will insure a continuing amount of publicity.

I am by no means satisfied, however, that the movants could not today obtain a fair and impartial trial in this Court House. Exposure to the most prejudicial type of publicity does not necessarily result in prejudiced jurors. The jury panels drawn in this Court have been, in my experience, remarkably free of bias and prejudice. This is a metropolitan community, sophisticated in the sense that excitement and bizarre events are daily staples. The population is dense, with the supply of jurors virtually inexhaustible. The people of the District are of all types and backgrounds but they nevertheless live together in a high degree of harmony, occasional evidence to the contrary notwithstanding. They take seriously their responsibilities as jurors.

But the question is not whether today the movants could obtain a fair and impartial trial here in this City. No trial date has yet been fixed. It is too soon to decide whether the trial should be here or in some other District.

When the date for trial is reached, then the movants can ask for a transfer if they feel at that time that they cannot obtain here a fair and impartial trial. It is far better for the trial judge to decide such a motion in the light of the then situation than now to embark on the inconvenient and expensive course which a transfer would require. The trial judge can also take into account the cautionary controls available to him, such as those suggested (pp. 138-147) in "Standards Relating to Fair Trial and Free Press", a report of the American Bar Association Project on Minimum Standards for Criminal Justice.

If these motions to transfer are renewed at the opening of trial, the judge then presiding can choose whether to decide them before or after the voir dire examination of the jury panel to select a jury. It is noted that the report just cited recommends (pp. 119, 126, 127) that if the motion is made before the jury is selected it should be decided before the jury is selected; in other words, the ability to pick a jury which seems to meet minimum standards of impartiality should not prevent a transfer if "news coverage has raised substantial doubts about the effectiveness of the voir dire standing alone" (p. 127). It will be time enough, however, to deal with these matters at the opening of trial.

The motion for defendant Corallo for an order transferring the proceeding as to him to another district is denied, without prejudice to its renewal at the opening of trial.

So ordered.

On Motion to Dismiss

This is a motion for defendant Corallo to dismiss the indictment; the motion is authorized by Rule 12(b) (1) of the Federal Rules of Criminal Procedure.

For the reasons given herein, the motion must be, and is, denied.

Defendants Fried and S. T. Grand, Inc. have also moved separately to dismiss the indictment for some of the reasons here advanced for movant Corallo. The arguments for dismissal made for Fried and S. T. Grand, Inc. have been considered in connection with this motion for Corallo.

The indictment was returned by a grand jury on December 18, 1967. It charges in one count that Corallo and others conspired to violate Section 1952 of Title 18 of the United States Code. There is a citation in the indictment to the conspiracy statute (18 U.S.C. § 371).

Section 1952 was enacted by Congress in 1961 as part of a program, submitted by then Attorney General Robert F. Kennedy, to combat organized crime. Section 1952 makes it an offense to travel in interstate or foreign commerce or to use any facility in that commerce with the intent of furthering an unlawful activity and if there is in fact a furthering of the unlawful activity or an attempt so so do. The definition of "unlawful activity" includes bribery in violation of state law.

The indictment charges that Corallo and others conspired together and that it was a part of this conspiracy that they would travel in interstate commerce and would use the telephone in interstate commerce with the object of bribing an official of the City of New York to award a municipal contract to one of the conspirators, the bribe moneys to be distributed to the city official and to others of the defendants.

It is first urged that Section 1952 is unconstitutional because it invades the powers reserved to the States by the Tenth Amendment. The argument is that the section is in aid of state law enforcement and is thus within the reserved police powers of the States. The argument is unsound because the section as here applied deals only with interstate commerce, over which Congress has undoubted power derived from the Constitution (Art. I, § 8). That Congress may adopt means to regulate interstate commerce even though such means "may have the quality of police regulations" (227 U.S. at 323, 33 S.Ct. at 284) is affirmed in decisions such as Champion v. Ames (the "lottery case"), 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 (1903) and Hoke v. United States (a "white slave" case), 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523 (1913). In the one case Congress forbade the movement of lottery tickets in interstate commerce, in the other the movement of women and girls for immoral purposes. In each case, Congress acted to discourage behavior of which it disapproved but over which, within the states, it had no power. In each case, the decision was that the power of Congress over interstate commerce was properly exercised. It is difficult to see any distinction between the lottery case, the white slave case and the case at bar. In Section 1952, Congress has forbidden the use of interstate commerce to aid bribery and other activities illegal under state law; that Congress would have no authority over such activities within the states is of no moment.

Cases cited for movant such as Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819 (1925) are not in point. Linder dealt with the indictment of a physician for violation of what is now 26 U.S.C. § 4705(a), part of the revenue laws as to narcotic drugs. This law made it an offense to "sell, barter, exchange, or give away" narcotics except under a written order on an official form. It was held to be no violation of the cited law for a physician in good faith to give an addict "moderate amounts of drugs for self-administration in order to relieve conditions incident to addiction" (268 U. S. at 22, 45 S.Ct. at 450). The Court found that the law...