United States v. Iacovetti

• Decision Date: 05 October 1972
• Docket Number: No. 71-2887.,71-2887.
• Citation: 466 F.2d 1147
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Robert IACOVETTI et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

466 F.2d 1147 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. David Robert IACOVETTI et al., Defendants-Appellants.

No. 71-2887.

United States Court of Appeals, Fifth Circuit.

August 31, 1972.

Rehearing Denied October 5, 1972.

Max P. Engel, Miami, for De Rosa.

Lawrence E. Hoffman, Hoffman & St. Jean, Miami Beach, Fla., for Iacovetti.

Max Lurie, Miami, Fla., for Dentarmaro.

Joel D. Robrish, Miami, Fla., (Court-appointed), for Cardillo.

Joseph J. Balliro, Boston, Mass., for Dentarmaro and Waggenheim.

Robert W. Rust, U. S. Atty., Miami, Fla., Sidney M. Glazer, Eugene M. Propper, Crim. Div., Gary L. Betz, Spec. Atty., Beatrice Rosenberg, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before TUTTLE, COLEMAN and CLARK, Circuit Judges.

COLEMAN, Circuit Judge:

The individuals in this scenario were:

1. David Robert Iacovetti,

2. William Vito Dentarmaro, also known as Willie "D",

3. Anthony William De Rosa, also known as Tony Pulio,

4. Robert L. Cardillo,

5. Phillip Waggenheim,

6. Barry Glenn Lipsky.

De Rosa dismissed his appeal and Lipsky entered a plea of guilty, so the appellate cast is reduced to four.¹

The indictment was in four counts, subsequently reduced to three.² The defendants were charged with:

Count I

Conspiring to violate and violating 18 U.S.C., §§ 2314 and 2315; 18 U.S.C., § 371;

Count II

Knowingly, willfully, and unlawfully receiving, selling and disposing of 655 shares of American Express Company stock of the approximate value of $43,869.69, knowing the same to have been stolen, 18 U.S.C., §§ 2315 and 2; Count III

Willfully, knowingly, and unlawfully transporting and causing the same to be transported in interstate commerce from the State of New York to the State of Florida, knowing it to have been stolen in violation of 18 U.S.C., §§ 2314 and 2.³

A second trial resulted in a verdict of guilty on all counts for Cardillo and guilty on the first two counts for Dentarmaro, Iacovetti, and Waggenheim.

The appellants, along with secondary points, vigorously urge that the second trial infringed the prohibition against being twice put in jeopardy for the same offense, United States Constitution, Amendment V. We are compelled to disagree, and the convictions are in all respects affirmed.

I The Double Jeopardy Issue

The first trial began (Lipsky was then pleading not guilty) on December 7, 1970. The very next day, Vincent Teresa was testifying as a witness for the prosecution. Waggenheim's counsel called for the production of "Jencks" material prior to cross-examination. It was at this point that the fat began to get into the fire.

The trial court agreed and ordered the government to disclose the requested material before the termination of the direct examination of Teresa. Included in this material was the transcript of Teresa's grand jury testimony, with certain pages omitted which the trial court held did not have to be provided. This undelivered material contained information concerning a stolen check which showed a prior relationship between Teresa and Iacovetti's attorney.

On December 9, however, this excluded information was voluntarily given to appellants, apparently to avoid the possibility that defense counsel would inadvertently go into it during cross-examination of Teresa.

After receiving this information, all appellants except Iacovetti moved for a severance on the ground that they would be unable fully to cross-examine Teresa because of his privileged relationship with Iacovetti's counsel.

Iacovetti asked for a severance in order to obtain other counsel. Dentarmaro and Waggenheim moved, in the alternative, for a mistrial. All counsel agreed that if Iacovetti's counsel became the subject of an accusation by Teresa, an inference adverse to their clients' interests would necessarily be raised.

The trial court stated his belief that it was "absolutely impossible to try Iacovetti in this case and to require Kessler to continue as counsel for Iacovetti because of all these situations that have developed and the possibility of future developments . . .".

Lipsky's motion for severance was granted, the trial was ordered to proceed against him, and it was announced that the other appellants would be tried at a later date.

Upon being confronted with this development, the government claimed that this procedure would seriously prejudice its case against the other appellants. It therefore moved the trial court to grant a mistrial as to the other appellants and to try Lipsky at a time subsequent to their trial. Lipsky's counsel also expressed concern because his client would be "tied with them the other appellants with this jury". After the noon recess, Lipsky's counsel moved for a mistrial. The motion was granted.

Prior to the second trial appellants moved to dismiss the indictments on the ground that the second trial was precluded by the Fifth Amendment prohibition against double jeopardy. Motion denied.

II The Second Trial

At the second trial Teresa testified that while vacationing in Miami, Florida, in March of 1969, he met with appellants Cardillo, Iacovetti, and Waggenheim at the Casa Luigi Restaurant. Teresa asked Iacovetti whether he knew anyone who would be in a position to pass stolen securities, i.e., to convert the securities into cash. Iacovetti replied that he would ask an acquaintance in a brokerage firm whether he could handle such securities.

A week later Teresa and the other men met again at the Casa Luigi. Iacovetti stated that he had spoken with a young man employed by a brokerage firm in Miami who was willing to do anything within reason to help out. However, Iacovetti said that the young man would have to be instructed as to what to do with the stolen securities.

A few minutes later, Barry Lipsky came over to the table where the men were sitting and Iacovetti introduced him as the young man who would pass the stolen securities. Dentarmaro and Waggenheim went to another table while Cardillo and Teresa explained that Lipsky was to open a brokerage account under an assumed name, through which the securities would be cashed.

Teresa, Cardillo, Waggenheim and Dentarmaro then went to the Thunderbird Hotel on Miami Beach where they met Anthony De Rosa and a man called "Frankie". In February it had been pre-arranged that De Rosa and Frankie would obtain and supply stolen securities. Frankie said that he would have to call New York, to check on the availability of stolen securities. Frankie placed a call to someone named "Jerry" and asked Jerry to fly to Miami with the stock which he had on hand.

The next day Teresa, Cardillo, Waggenheim, Dentarmaro, De Rosa, Frankie and Jerry met at the Thunderbird Hotel. Teresa selected certain stocks from among the securities which Jerry brought to Miami. Teresa, Waggenheim and Dentarmaro carried the securities Teresa had selected to Cardillo's home in Miami. Cardillo selected some American Express stock as the best for the purposes of their plan. Then Cardillo called Lipsky and arranged an appointment with him for Teresa to endorse the certificates in the name of "Paul McGaughy".⁴

That night all the appellants again met with Teresa at the Casa Luigi. Teresa told Iacovetti that the stocks had been given to Lipsky and they should be paid for the stocks in a short time. Later Teresa left the Miami area to appear in separate trials in Massachusetts and Maryland.

Approximately the first week of April, Cardillo telephoned Teresa in Baltimore, Maryland, and told him that the payment was ready. Teresa flew into Miami, met with Lipsky at a bank, and cashed two checks totaling over $43,800.

Assuring Lipsky that he would be paid his share of the proceeds later, Teresa went to the Thunderbird Hotel where he met with Cardillo, De Rosa, Dentarmaro and Waggenheim. The money was split into shares with everyone present receiving a share. Shares were also set aside for Lipsky and Iacovetti.

Other evidence consisted of registration cards of the Thunderbird Hotel which indicated that Waggenheim and Cardillo paid hotel bills on April 3, 1969, the same day they received their shares of the money.

III The Law of Double Jeopardy

At a very early date the Supreme Court confronted a double jeopardy issue, United States v. Perez, 22 U.S. 579, 9 Wheat. 579, 6 L.Ed. 165 (1824), opinion by Mr. Justice Story. A jury in a capital case had been unable to agree upon a verdict and had been discharged without the consent of either the defendant or the prosecution. The defendant then claimed that a second trial for the same offense would constitute double jeopardy. This contention was rejected. The Supreme Court said:

"We think, that in all cases of this nature, the law has invested the courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound judicial discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious causes; and in capital cases especially, the court should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner."

This decision announced the governing principles in a case in which the defendant had not consented to the discharge of the jury.

Other Supreme Court cases on the subject are: Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) and Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1958)....