United States v. Dooling, 311

• Citation: 406 F.2d 192
• Decision Date: 21 January 1969
• Docket Number: Docket 33019.,No. 311,311
• Parties: UNITED STATES of America, Petitioner, v. Honorable John F. DOOLING, Jr., United States District Judge for the Eastern District of New York, Respondent. UNITED STATES of America, v. Carmine PERSICO, Salvatore Albanese, Ralph Spero, Hugh McIntosh, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

406 F.2d 192 (1969)

UNITED STATES of America, Petitioner, v. Honorable John F. DOOLING, Jr., United States District Judge for the Eastern District of New York, Respondent.

UNITED STATES of America, v. Carmine PERSICO, Salvatore Albanese, Ralph Spero, Hugh McIntosh, Defendants.

No. 311, Docket 33019.

United States Court of Appeals Second Circuit.

Argued December 20, 1968.

Decided January 21, 1969.

Victor C. Woerheide and Robert M. Ornstein, Charles F. C. Ruff, Sp. Attys., Dept. of Justice, for petitioner.

Maurice Edelbaum, New York City, for defendant Persico.

Robert Kasanof, New York City, for defendant Albanese.

Frances T. Wolf, New York City, for defendant Spero.

Edmund A. Rosner, New York City, for defendant McIntosh.

Before LUMBARD, Chief Judge, and MOORE, Circuit Judge and RYAN, District Judge.^*

LUMBARD, Chief Judge:

The government's petition for a writ of mandamus and/or prohibition raises the novel question whether a district judge has the power to dismiss an indictment, after a jury has returned a verdict of guilty, on the ground that there has been a "transgression of due process," even though the trial itself was fair and the evidence supports the verdict.

We find that the district judge lacks the power to dismiss the indictment for the reasons he has given. In the exercise of our supervisory power over the administration of justice we grant the petition and direct that sentences be imposed and that judgment be entered upon the verdict of the jury.

Consideration of the government's application requires examination of Judge Dooling's intended action in the light of the lengthy history of this prosecution, including the conduct of this latest trial.

The four defendants involved in this proceeding — Carmine Persico, Salvatore Albanese, Ralph Spero, and Hugh McIntosh — were indicted in April 1960 for conspiracy to hijack and for hijacking a truck transporting goods in interstate commerce in violation of 18 U.S.C. § 1951. To date there have been five trials based on this indictment. The first trial, in May 1961, ended in a jury disagreement. A second trial followed immediately and in June 1961 the four present defendants were convicted on both counts.¹ We reversed those convictions in July 1962 because of errors at trial. 305 F.2d 534. The third trial the following spring of 1963 was aborted by mistrial as to Persico, Albanese, and Spero, after eight days of trial, and by a second hung jury as to the other defendants. The fourth trial lasted from January to April 1964 and resulted in the conviction of all defendants. The appeal was argued in March 1965; after reviewing the record of 9,595 pages we reversed again in July 1965, 349 F.2d 6, because of errors in the trial judge's charge and remanded for a new trial.

Prior to the fifth trial the defendants moved to dismiss the indictment on the grounds that the repeated trials, and the delay in prosecution of two and one-half years following our reversal in July 1965 of the fourth trial's verdict, seriously prejudiced defendants, violated their right to a speedy trial, and constituted cruel and unusual punishment. Judge Weinstein, upon full argument by both sides, denied the motion. He pointed out that the government alone was responsible only for six months of the delay occurring after our reversal, and that at no time since this date had defendants made a definite motion for a speedy trial. See United States v. Lustman, 258 F.2d 475, 478 (2d Cir.), cert. denied 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958); United States v. Kaufman, 311 F.2d 695, 698 (2d Cir. 1963). Defendants also had made no suggestion that their trial burden had become more difficult because of the loss of any evidence or witnesses since July 1965. In the absence of a showing of prejudice because of the delay and repeated retrials Judge Weinstein permitted the fifth trial to proceed, but granted defendants the right to renew their motion "at the trial" if "on the retrial of the case, it should appear that there was such prejudice. * * *"

The fifth trial commenced before Judge Dooling, in April 1968. The motions made before Judge Weinstein were renewed by defense counsel before trial commenced, at the close of the government's case, and at the close of the case before the charge to the jury. On each occasion Judge Dooling denied the motions. Transcript pp. 199, 371, 4195. Throughout this period Judge Dooling was fully informed of those respects in which defendants claimed that they had been prejudiced by the delays and repeated mistrials, and he seems to have remained consistently unimpressed by these arguments.

Verdicts of guilty were returned by the jury on May 9, 1968. On June 24, 1968, the defendants jointly moved for alternative relief: (A) to set aside the verdict and dismiss the indictment; (B) for entry of judgment of acquittal as to each and all, and (C) for an order granting a new trial. The motion papers set forth 17 reasons why relief should be granted; 13 of these referred to alleged errors regarding evidence at the trial and the conduct of the prosecutor.

Judge Dooling reserved decision on these motions, and there was no further action taken on the case until October 11, 1968. On that date the Judge distributed to all parties copies of a memorandum and order which he intended to enter dismissing the indictment. He indicated that he would not file the order, however, in order to allow government counsel an opportunity to suggest modifications in the form of the memorandum which would allow the government to appeal fram his action. The government chose to seek mandamus from this court ordering Judge Dooling to enter judgment on the verdicts and impose sentence. Judge Dooling entered no appearance in these mandamus proceedings, but the legality of his order was urged by counsel for all four defendants in briefs and oral argument.

We turn first to the propriety of Judge Dooling's proposed action.

The bulk of the memorandum before us carefully analyzes a variety of objections raised by the defense concerning the conduct of the trial. The most serious of these revolves around the appearance of the well known Mafia informer Joseph Valachi as a prosecution witness. Valachi had not testified at any of the four previous trials, and the defense was not informed of his appearance in this trial until shortly before he was called. While defense counsel objected to this element of surprise, and also to the admission of portions of Valachi's testimony, their major emphasis in the post-verdict arguments was on the prejudicial publicity which was occasioned by Valachi's appearance and which reached the jurors through the newspapers. In his opinion Judge Dooling manifests considerable concern over his own handling of this matter; in retrospect he states the view that "the Court would have been well-advised" to begin the trial anew after the Valachi episode with a sequestered jury.

Despite his doubt, Judge Dooling concludes that the Valachi testimony "did not destroy the fairness of the trial." He also rejects each and every one of the defendants' other arguments centering on alleged defects in the trial. He finds that the verdicts were supported by sufficient evidence.

Despite finding no ground upon which the jury verdicts can be set aside the court then goes on to consider the motions made before Judge Weinstein relating to the possible prejudice arising from the retrials and the delay before the fifth trial. He finds that "the specific circumstances of disadvantage which defendants advance as related to delay are not impressive." But this observation does not, as one might expect, end the case. Judge Dooling goes on to consider the arguments concerning delay and retrial which did not turn upon a specific showing of prejudice, and which Judge Weinstein had rejected before trial without leave to renew. Reviewing the exact same facts previously passed upon by Judge Weinstein the court finds that the "critical time lapses" occurring before the fifth trial "were not justified and were not occasioned by acts of the defendants." The court then states its holding:

"It is concluded that the history of the present case through the date of verdict in the fifth trial, including the merely marginal fairness of the fifth trial, reflects transgression of the due process limitations upon the government rights of retrial and orderly deliberations in seeking retrial. * * * cases cited It is not suggested that the subtraction of a single element of the whole history through the time of the rendition of the verdict would not require, or at least justify, a different result. It is held that the aggregate here has reached the point at which to enter judgments of conviction against the defendants would be to deny them due process."

It is apparent from the court's memorandum that the proposed dismissal of the indictment is not based on the powers conferred on the district courts by the Federal Rules of Criminal Procedure. The court relies on none of the Rules in its memorandum, and its findings of fact and law, the correctness of which is not now before us, indicate its belief that the Rules do not sanction its proposed action.

The only Rule which conceivably could be read as authorizing the dismissal of an indictment under the present circumstances is Rule 48(b):

"If * * * there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information, or complaint."

The Rule implements the right to a speedy trial guaranteed by the Sixth Amendment. Pollard v. United States, 352 U.S. 354, 361 n. 7, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); Fleming v. United States, 378 F.2d 502, 503 n. 3 (1st Cir. 1967). It seems doubtful that this Rule contemplates the dismissal of an indictment after the conclusion of a trial and the return of verdicts of guilty, but there is no need to resolve this question for present purposes. There is no doubt that before Rule 48(b) can...