United States v. Lupino

• Decision Date: 14 August 1958
• Docket Number: No. 4-58-Cr-77.,4-58-Cr-77.
• Citation: 171 F. Supp. 648
• Parties: UNITED STATES of America, Plaintiff, v. Rocco Salvatore LUPINO, Also known as "Rocky", Defendant.
• Court: U.S. District Court — District of Minnesota

171 F. Supp. 648

UNITED STATES of America, Plaintiff, v. Rocco Salvatore LUPINO, Also known as "Rocky", Defendant.

No. 4-58-Cr-77.

United States District Court D. Minnesota, Fourth Division.

August 14, 1958.

Clifford Janes, Asst. U. S. Atty., St. Paul, Minn., for plaintiff.

Sidney Goff, St. Paul Minn., for defendants.

DEVITT, District Judge.

The defendant is charged by indictment with violation of 18 U.S.C.A. § 1073, the Fugitive Felon Law. It is alleged in the first count of the indictment that the defendant unlawfully fled from Hennepin County, Minnesota to South Carolina with the intent to avoid prosecution under Minnesota law for the crime of first degree murder. Count two charges that the defendant unlawfully fled from Hennepin County, Minnesota to South Carolina with intent to avoid prosecution under Minnesota law for the crime of kidnapping.

The defendant has made several motions. The first is to dismiss the indictment because the Court is without jurisdiction of the subject matter or of the person of the defendant, and that it does not state facts sufficient to constitute an offense. The second motion is for a bill of particulars, and the third is for a transfer of this case from the Fourth to the Third Division where, it is asked, the case be consolidated with that of one John Frank Azzone, who is charged with the same offenses and who is represented by the same counsel.

The motions will be taken up seriatim.

The first motion for dismissal is based principally on the theory that no indictment, information or complaint had been issued against the defendant by the State of Minnesota prior to his alleged flight, and hence there was no "prosecution" pending from which the defendant could flee in contravention of the statute. The defendant argues that the word "prosecution" as used in the statute contemplates the prior institution of some formal proceedings.

In so far as pertinent, the statute, 18 U.S.C.A. § 1073, reads:

"Whoever * * * travels in interstate * * * commerce with the intent * * * to avoid prosecution * * * under the laws of the place from which he flees, for murder, kidnapping * * * shall be fined not more than $5,000 or imprisoned not more than 5 years, or both.

"Violations of this section may be prosecuted only in the Federal judicial district in which the original crime was alleged to have been committed * * *."

The issue raised by this argument is whether, when it was made a crime to travel in interstate commerce with the intent "to avoid prosecution", the Congress intended that there first be some criminal action instituted by the authorities of the state from which flight was made, as argued by the defendant, or whether it was intended only that the crime be committed and that the defendant travel in interstate commerce with intent to avoid prosecution.

A reading of the statute leaves one with the impression that the principal elements essential to its violation are: (1) the commission of a crime, followed by (2) interstate travel and (3) with intent to avoid prosecution under the laws of the state from which flight originates. There is no indication that the expression "prosecution" is used in any established technical or legal sense.

If the construction urged by the defendant were the correct one, then I dare say that the statute would be an ineffective aid to the capture or prosecution of fleeing felons because of the time which would necessarily be required to institute some formal prosecution. It must be an innate instinct of a person who has committed a crime to immediately leave the scene. By modern means of transportation it takes only a matter of hours for one to reach a state border and move into interstate commerce. It would normally take at least a day, and more likely several days, for a complaint or information to be filed. To summon a grand jury and secure the return of an indictment would probably take much longer. Hence, if defendant's interpretation of the statute is accepted, the law would be an ineffective instrument for justice.

It is more probable that the...