United States v. Di Carlo

Citation102 F. Supp. 597
Decision Date07 February 1952
Docket NumberCr. 20299.
CourtU.S. District Court — Northern District of Ohio


Don C. Miller, U. S. Atty., John J. Kane, Jr., First Asst. U. S. Atty., Cleveland, Ohio, for the United States.

Russell Mock, Youngstown, Ohio, for defendant DiCarlo.

McNAMEE, District Judge.

Defendant was charged in an indictment containing eight counts with violating Title 2, Section 192 U.S.C.A., in refusing to answer pertinent questions put to him as a witness before a sub-committee of a special committee of the United States Senate at Cleveland, Ohio on January 19, 1951.

Waiving his right to a trial by jury, defendant submitted the case on its merits to the court. Preceding the submission of the case, defendant moved to dismiss the indictment on the ground that because of the absence of a quorum there was no meeting of a duly authorized sub-committee of the special committee of the Senate. This contention is based upon the fact that Senator Estes Kefauver, Chairman of the Special Committee, was acting as a sub-committee of one in taking testimony of witnesses at the hearing in question.

Section 2 of Senate Resolution No. 202 specifies that a majority of the committee or a sub-committee shall constitute a quorum and authorizes the special committee to designate one or more of its members to act as the sub-committee for the purpose of taking testimony.

Pursuant to the authority thus conferred, the special committee on January 3, 1951 adopted a resolution authorizing the Chairman at his discretion "to appoint one or more sub-committees of one or more Senators, of whom one member shall be a quorum for the purpose of taking testimony and all other Committee acts, to hold hearings at such time and places as the Chairman might designate, in furtherance of the Committee's investigations of organized crime, in the vicinities of the cities of Cleveland, Ohio, and Detroit, Michigan."

In the foregoing resolutions of the Senate and of the Special Committee there is ample authority for the action of the Chairman in designating himself to act and in acting as a sub-committee of one to take testimony at the hearing in Cleveland, Ohio on January 19, 1951.

Upon the trial defendant urged that the questions he refused to answer were not pertinent to the inquiry, and in justification of such refusals he relied upon his constitutional immunity from self-incrimination.

Section 192 of Title 2 U.S.C.A. provides: "Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months."

The hearing on January 19, 1951 was conducted openly in one of the court rooms in the Federal Building in Cleveland, Ohio. The court room was taxed to capacity by the presence of spectators, law-enforcement officials of various branches of the federal, state and local governments, newspaper reporters, photographers, radio broadcasters and television cameramen. The Chairman of the Committee was assisted by a staff of attorneys and investigators. Wide publicity was given to the proceedings and to the preliminary investigations made immediately prior thereto. As a result of these preliminary investigations there was a vast amount of information relative to the operations and identity of reputed violators of federal and state laws in the possession of the Committee at the time the hearing commenced.

Several law-enforcement officials preceded the defendant as a witness. One of these was Edward J. Allen, Chief of Police of Youngstown, Ohio, where the defendant resides. The testimony of Chief Allen was taken on January 18, 1951, the first day of the hearing. Allen testified that before his arrival in Youngstown in 1946 the defendant had a "long time criminal record in Buffalo, New York," and that since defendant came to Youngstown he was a member of a triumvirate consisting of one Aiello, Caputo, and himself, which "demanded and received fifty per cent of the local take from the various `bookies' that operated in Youngstown, Ohio." The witness also stated that the defendant was engaged in the operation of slot machines in Mahoning County "which surrounds the city of Youngstown." In his testimony Allen linked defendant with the so-called "Licavoli gang," which he asserted had connections in various parts of the country, including Cleveland, Youngstown and vicinity, Warren, Ohio, and Buffalo, New York. The witness submitted to the Committee a chart which he had prepared at the suggestion of one of counsel for the Committee, which depicted these connections in graphic form and which listed the defendant as a member of the gangs that operated in and around Youngstown, Ohio and Buffalo, New York. Chief Allen expressed the opinion that the members of the gang operated "a government within a government," and obtained control of "legal and illegal enterprises" by "forcibly excluding others." The witness indicated his belief that district leadership of the gang was attained through "force" and "ruthlessness", — "the whole fabric of which is based on murder." It was apparent that since his induction as Chief of Police of Youngstown in 1948 the witness had made and was making a determined effort to stamp out racketeering in the area within his jurisdiction.

The defendant appeared as a witness on the following day, January 19, 1951. Many questions were put to him. He was examined about his criminal record and his present and past activities and associates. He answered all but a few of the questions. His refusal to answer the questions contained in the indictment was upon the stated ground that the answers thereto would tend to incriminate him. The first five questions relate to defendant's business in Youngstown, Ohio in 1945 or 1946 — his business in 1947 — whether he was in the slot machine business in 1947 "or thereabouts" — whether he was associated with others in the "bookie" business "in the last seven years," — and whether he was "ever in the gambling business in Buffalo," New York. The last three inquiries sought to learn the identity of persons in Youngstown with whom the defendant was acquainted when he went to that city, — and the nature of his business dealings with Aiello and Caputo.

The first issue to be determined is whether these questions were pertinent to the inquiry.

It is not open to question that the Congress or either House thereof, acting through committees, has the power to conduct investigations in aid of its legislative function and that a legislative inquiry may be as broad as the legislative purpose requires. Townsend v. United States, 68 App.D.C. 223, 95 F.2d 352; United States v. Emspak, D.C. 95 F.Supp. 1012. Nor is there any doubt that Congress may compel disclosure of facts pertinent to the inquiry. McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580. Pertinency is an element of the offense defined by Section 192 of Title 2 U.S.C.A. And the burden rests upon the government to establish the pertinency of the questions propounded. The question of pertinency under Section 192 is one of law — and not dependent upon the probative value of evidence. Sinclair v. United States, 279 U.S. 263, 268, 49 S.Ct. 268, 273, 73 L.Ed. 692. The test of pertinency as applied by the Supreme Court in the Sinclair case was "whether the facts called for by the question were so related to the subjects covered by the Senate's resolutions that such facts reasonably could be said to be `pertinent to the question under inquiry.'" Applying that test here, the pertinency of the questions put to the defendant is to be determined by reference to the terms of Senate Resolution 202.

That resolution created a Special Committee of five members of the Senate — "to make a full and complete study and investigation of whether organized crime utilizes the facilities of interstate commerce or otherwise operates in interstate commerce in furtherance of any transactions which are in violation of the law of the United States or of the State in which the transactions occur, and, if so, the manner and extent to which, and the identity of the persons, firms, or corporations by which such utilization is being made, what facilities are being used, and whether or not organized crime utilizes such interstate facilities or otherwise operates in interstate commerce for the development of corrupting influences in violation of law of the United States or of the laws of any State: Provided, however, That nothing contained herein shall (1) authorize the recommendation of any change in the laws of the several States relative to gambling, (2) effect any change in the laws of any State relative to gambling, or (3) effect any possible interference with the rights of the several States to prohibit, legalize, or in any way regulate gambling within their borders."

The wide scope of the inquiry is spelled out explicitly in the broad and comprehensive language of the resolution. Its clearly indicated purpose was to ascertain the facts in relation to the suspected or reputed use of the facilities of interstate commerce, either in the furtherance of violations of state and federal laws, or in aid of the development of corrupting influences in violation of such laws. The resolution specifically directed an investigation of the identity of "persons, firms, or corporations" utilizing the facilities of interstate commerce in furtherance of the described illegal...

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