United States v. Marcello

• Decision Date: 15 June 1970
• Docket Number: No. 26773.,26773.
• Citation: 423 F.2d 993
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos MARCELLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

423 F.2d 993 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Carlos MARCELLO, Defendant-Appellant.

No. 26773.

United States Court of Appeals, Fifth Circuit.

February 18, 1970.

Rehearing Denied and Rehearing Denied April 1, 1970.

Certiorari Denied June 15, 1970.

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Jack Wasserman, Washington, D. C., G. Wray Gill, George M. Leppert, New Orleans, La., Michel A. Maroun, Shreveport, La., Anthony C. Friloux, Jr., Houston, Tex., for defendant-appellant.

Morton L. Susman, U. S. Atty., James R. Gough, Ronald J. Blask, Asst. U. S. Attys., Houston, Tex., Louis C. LaCour, U. S. Atty., New Orleans, La., Owen A. Neff, Atty., Dept. of Justice, Washington, D. C., Anthony J. P. Farris, U. S. Atty., Malcolm R. Dimmitt, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, DYER, Circuit Judge and HUNTER, District Judge.

Rehearing Denied and Rehearing En Banc Denied April 1, 1970.

Certiorari Denied June 15, 1970. See 90 S.Ct. 2172.

JOHN R. BROWN, Chief Judge:

This is an appeal from Appellant's conviction of forcibly assaulting and intimidating an officer of the FBI in violation of 18 U.S.C.A. § 111.¹ Fifteen points of error are raised, each of which we find wanting and affirm.

On September 30, 1966 Carlos Marcello arrived at the New Orleans airport where, because of his reputation as a Mafia boss, he was immediately surrounded by newspapermen and photographers. Among this group was FBI agent Patrick Collins, posing as a deplaning passenger, and his co-agent photographer whose job it was to keep an eye on Marcello. This crowd followed Marcello through the airport and onto the upper ramp outside where Marcello, angrily and with some profanity, inquired whether the photographers had taken enough pictures. Collins, with arms folded, answered in the negative, and Marcello retorted: "Are you looking for trouble?" which elicited the not unexpected reply from Collins that "I can handle trouble." This exchange had an unsettling effect on Marcello who took a couple of short jabs at Collins and attempted to mow him down with a hay-maker, which never really got off the ground because of his brother Joseph's restraint. For this fray Marcello was first indicted on October 7, 1966 for assault, but this indictment was dismissed on a motion asserting a failure to comply with the requirements of Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34 (en banc). On June 1, 1967, he was reindicted by a grand jury in the New Orleans division of the Eastern District of Louisiana for the same offense.

On July 3, 1967 Appellant filed, among others, a "motion for continuance and for a change of venue." These motions were heard on September 13, 1967, and the motion for a change of venue was immediately granted because of extensive prejudicial publicity in the New Orleans area. Not more than 10 minutes after the conclusion of the hearing and the granting of the motion, defense counsel made an oral ex parte request for the Court to withdraw its order. The Court kept this motion under advisement for 5 months and on March 1, 1968, it ordered the case transferred to the Southern District of Texas. The case came on for trial before Judge Connally in Laredo, Texas in May of 1968 and resulted in a hung jury and mistrial on May 29. The case was reset before Judge Singleton in Houston and on August 8, 1968 a verdict of guilty was returned. On September 12, 1968 Appellant was fined $5000 and sentenced to two years imprisonment.

Appellant's argument on appeal is pentadecal. He raises issues concerning (1) the constitution of the grand jury, (2) failure of the indictment to allege an offense, (3) procurement of the indictment by misconduct, (4) immunity from prosecution, (5) change of venue, (6) change of place of trial, (7) deprivation of records, (8) Cosa Nostra and Mafia references at the trial, (9) improper reference to a document not in evidence, (10) knowledge as an element of the offense, (11) willful intent to injure as an element of the offense, (12) entrapment, (13) refusal of the Trial Court to require an election between the issues of intimidation and assault, (14) refusal to grant motion of acquittal, motion in arrest of judgment and a new trial, (15) improper basis for sentencing.

1. Illegal Grand Jury

Appellant's first point is that he was denied his right to be indicted by a grand jury compiled from a fair cross section of the community. Hill v. Texas, 1942, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34 (en banc). The jury list from which the indicting grand jurors were chosen was composed of residents of only 7 of the 13 parishes comprising the New Orleans Division of the Eastern District of Louisiana² pursuant to a direction by the Court under the power granted it by 28 U.S.C.A. § 1865(a),³ as it existed prior to the Jury Selection and Service Act of 1968.⁴

The indictment in a criminal case must be returned by a grand jury "drawn from a pool of persons broadly representative of the community." Rabinowitz v. United States, supra, at 45.⁵ This, of course, does not mean that every conceivable group has to be represented on the jury list.⁶ What it does mean is that the list must generally approximate the community and its different interests. Smith v. Texas, note 5, supra.

Appellant attacks on two grounds the exclusion of names from the 6 parishes. First, he says that it was taken pursuant to 28 U.S.C.A. § 1863⁷ (before the 1968 amendments) and that since no findings were made by the Trial Judge as required by § 1863, the exclusion was invalid. The fact of the matter is that the parishes were not excluded by a single Trial Judge under § 1863. Rather, they were excluded by order of the District Court en banc dated October 8, 1948 as amended on January 20, 1967 by adding the parishes of St. John the Baptist and St. Charles pursuant to the authority granted by 28 U.S.C.A. § 1865⁸ (before its amendment).

Appellant has not shown that the exclusion of the parishes is anything but conducive to the goal of achieving an impartial trial without incurring unnecessary expense or unduly burdening the citizens of any part of the district with jury service. The action of the Judges of the Eastern District of Louisiana was reasonable and in accord with § 1865 and the Constitution.

A related complaint is that, disregarding the technical validity of the excluding order, it resulted in a jury list that was not representative of the community in that blue collar workers were systematically excluded, if not completely, at least partially, from the list by reason of the parish exclusion. See Labat v. Bennett, note 5, supra. He offered no facts to establish the truth of this assertion, and since the burden is on him to do so, Jackson v. Morrow, 5 Cir., 1968, 404 F.2d 903; Ware v. United States, 1965, 123 U.S.App.D.C. 34, 356 F.2d 787, cert. denied, 383 U.S. 919, 86 S.Ct. 914, 15 L.Ed.2d 673; Frazier v. United States, 1948, 335 U.S. 497, 503, 69 S.Ct. 201, 205, 93 L.Ed. 187, 194; Glasser v. United States, 1942, 315 U.S. 60, 87, 62 S.Ct 457, 86 L.Ed. 680, this contention fails.

2. Insufficient Indictment

Appellant's second contention is that the indictment failed to allege an offense. The indictment alleged that Carlos Marcello "did forcibly assault and intimidate Patrick J. Collins, Jr., an officer of the Federal Bureau of Investigation, while * * * Collins was engaged in the performance of his official duties in violation of Title 18, United States Code, Section 111." In almost the same words (see note 1, supra) § 111 makes it a crime to do just this.

Appellant offers no argument on appeal to support his contention, but at the pre-trial stage he argued that the indictment did not allege that Marcello knew Collins to be an FBI agent and that knowledge is an element of the offense. This same contention is more forcefully raised later (contention number 10) and we will discuss it then. It suffices to say that Appellant's second contention is wholly without merit.

3. Prosecution Misconduct

Appellant's third contention, that the indictment was procured by the misconduct of the prosecuting officials and therefore should have been dismissed, is apparently based on a statement reportedly made by a government attorney to the New Orleans press that the arrest of Marcello in New York City at an organized crime meeting "makes it obvious that there is organized crime in this area New Orleans and that Marcello was there in the interests of this area." Marcello asserts that this announcement was highly improper and was calculated to and did influence the grand jury in its deliberations in bringing the indictment. That the claim borders on the frivolous is shown by the fact that the statement was made before the occurrence of the incident leading to his indictment. It appeared in the newspaper on Friday morning, September 30, 1966. The assault did not occur until that evening.

4. Immunity

Appellant's next contention meets the same fate as his preceding ones. After the alleged assault but before the Federal trial, Appellant was called before a Queens County, New York grand jury investigating organized crime. Under the New York State immunity statute he was granted immunity from prosecution (as well as from the use of testimony elicited) for any crime he might mention in his testimony. While testifying he was asked whether he was under indictment anywhere and replied that he was, in Louisiana for assault on a federal officer. Now he contends that his answer while under the Queens grand jury's grant of immunity insulates him from prosecution for this crime in Federal Court in Louisiana and Texas.

He argues that Murphy v. Waterfront Commission, 1964, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, holds that when the state grants immunity to a witness, this grant is binding on the federal...