United States v. Persico, 486-489

• Citation: 425 F.2d 1375
• Decision Date: 15 April 1970
• Docket Number: Dockets 34016,No. 486-489,34235 and 34344.,34119,486-489
• Parties: UNITED STATES of America, Appellee, v. Carmine PERSICO, Salvatore Albanese, Ralph Spero, and Hugh McIntosh, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

425 F.2d 1375 (1970)

UNITED STATES of America, Appellee, v. Carmine PERSICO, Salvatore Albanese, Ralph Spero, and Hugh McIntosh, Appellants.

Nos. 486-489, Dockets 34016, 34119, 34235 and 34344.

United States Court of Appeals, Second Circuit.

Argued January 23, 1970.

Decided April 15, 1970.

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Maurice Edelbaum, New York City (Lawrence K. Feitell, New York City, of counsel), for appellant Persico.

Robert Kasanof, New York City, for appellant Albanese.

Frances T. Wolff, New York City (Jerome Lewis, New York City, of counsel), for appellant Spero.

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

Robert M. Ornstein, Special Atty., Dept. of Justice, Brooklyn, N. Y., Thomas M. Vockrodt, Atty., Dept. of Justice, Washington, D. C. (Edward R. Neaher, U. S. Atty., Eastern District of New York, on the brief), for appellee.

Before MOORE, HAYS and FEINBERG, Circuit Judges.

HAYS, Circuit Judge:

Carmine Persico, Salvatore Albanese, Ralph Spero and Hugh McIntosh appeal from judgments of conviction entered after a jury trial in the United States District Court for the Eastern District of New York on a charge of robbery of merchandise moving in interstate commerce 18 U.S.C. § 1951 (1964) and of conspiracy to commit the robbery.¹ Appellants also appeal from the denial of their pretrial motion to dismiss the indictment "on the ground that the long delay and repeated trials have seriously prejudiced them and constitute, in effect, cruel and unusual punishment."

I. Background

The appellants have been tried five times on an indictment filed in April 1960 charging them with hijacking and conspiring to hijack a truck loaded with piece goods from the Akers Motor Lines Terminal in Brooklyn on or about July 28, 1959. The first trial, in May 1961, ended in a jury disagreement. The second trial, in June 1961, resulted in convictions of the present appellants on both counts.² We reversed these convictions because of errors at trial. United States v. Persico, 305 F.2d 534 (2d Cir. 1962). The third trial in the spring of 1963 was aborted as to appellants Persico, Albanese and Spero³ by the declaration of a mistrial. The jury disagreed as to the other defendants. The fourth trial, which lasted from January to April 1964 resulted in the conviction of all the appellants. We reversed these convictions because of errors in the trial judge's charge. United States v. Persico, 349 F.2d 6 (2d Cir. 1965).

The fifth trial which is the subject of this appeal took place in April and May of 1968. The jury returned verdicts of guilty on May 9, 1968. On October 11, 1968, in response to appellants' post-trial requests for relief, the trial judge distributed to all parties copies of a memorandum and order which he intended to file, dismissing the indictment. The decision to dismiss was based on Judge Dooling's conclusion:

"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 governmental rights of retrial and orderly deliberateness in seeking retrial * * *. 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.

"On these grounds it is concluded that Counts 1 and 2 of the indictment must be dismissed by appropriate order as to the moving defendants."

The Government sought mandamus from this court ordering Judge Dooling to enter judgment on the jury verdicts and to impose sentence. We granted the relief requested. United States v. Dooling, 406 F.2d 192, 198 (2d Cir.), cert. denied, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969).

The factual background of this case is relatively simple and has been adequately reported in our earlier opinions. See 305 F.2d at 536, 349 F.2d at 9. As in the earlier trials, the government's case in the latest trial was based primarily on the testimony of Gasper Vaccaro, an alleged co-conspirator, and Edward Kennedy, an employee of Akers Motor Lines and driver of the hijacked truck.⁴ However, at this trial for the first time the government called as a witness Joseph Valachi, who recounted certain admissions alleged to have been made by several of the appellants.

Appellants do not attack the sufficiency of the evidence, but make numerous claims of error. We are not persuaded that any of these allegations warrant reversal and therefore affirm the judgments of conviction.

II. Failure of the Government to Inform the Defense That Joseph Valachi Was to Be Called as a Witness

Appellants contend that the failure of the government to give advance notice of its intention to call Jospeh Valachi as a witness requires reversal. Valachi achieved notoriety as a result of his testimony concerning organized crime before a Senate Committee in 1963 and elsewhere. Appellants maintain that the failure to inform them of Valachi's impending appearance prevented their suggesting prophylactic measures to counter the possibility of prejudicial publicity, and deprived them of a proper voir dire of the jury and the full advantage of their peremptory challenges.

There is no obligation on the part of the government to inform the defense of its intention to call a witness when the indictment is for a non-capital offense. See 18 U.S.C. § 3432 (1964); United States v. Van Duzee, 140 U.S. 169, 173, 11 S.Ct. 758, 35 L.Ed. 399 (1891); Thompson v. United States, 381 F.2d 664, 665-666 (10th Cir. 1967); United States v. Chase, 372 F.2d 453, 466 (4th Cir.), cert. denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967); Dean v. United States, 265 F.2d 544, 547 (8th Cir. 1959).

Appellants' suggestion that the government intentionally and affirmatively misled them into believing that no new witnesses would be called is expressly contradicted by the record.

III. Publicity Surrounding the Appearance of Valachi

Shortly after 3:00 P.M. on April 16, 1968, the government indicated its intention to call Joseph Valachi as its next witness. The defense pleaded surprise,⁵ objected to Valachi's appearance and questioned his testimonial capacity. The argument on these issues lasted the rest of the day.

That evening and the next morning all the New York newspapers and many of the radio and television stations carried news announcements stating that Valachi was to be called as a witness. Many of these announcements contained details about the trial and the defendants. The article from the Four Star Edition of the April 17, 1968, New York Daily News, which most of the jurors saw, appears in the margin.⁶

Not all of the jurors were exposed to the same quantity or quality of publicity.⁷ However, taking the publicity at its worst it indicated that appellants were connected to the Cosa Nostra; that Persico was nicknamed the Snake, and had graduated out of the Profaci mob; that the case had been tried four times previously; that a special prosecutor from the Department of Justice was trying the case; that Valachi was a former underworld figure who had previously testified concerning organized crime; that the government was concerned for Valachi's safety; and that the admissions about which Valachi was to testify had been made to him while appellants were in prison.

The publicity to which the jurors were exposed did not deal with the issues of appellants' guilt, as in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L. Ed.2d 600 (1966), and Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L. Ed.2d 663 (1963), but involved background information. Most of the material, save the reference to Cosa Nostra which we believe to have been dealt with effectively, was brought out at trial as competent evidence.

The three weeks that passed before the jury was called upon to make its decision also served to blunt much of the adverse effect of the publicity. See United States v. Kahaner, 317 F.2d 459, 470 (2d Cir.), cert. denied, Keogh v. United States, 375 U.S. 836, 84 S.Ct. 73, 11 L.Ed.2d 65 (1963).

Appellants moved for a mistrial on the ground that the publicity prejudiced the jury, making it impossible for them to receive a fair trial. The trial judge took prompt and effective corrective action. See United States v. Agueci, 310 F.2d 817, 832 (2d Cir. 1962), cert. denied, Guippone v. United States, 372 U. S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963). He held a separate voir dire of each juror, frankly and candidly discussing the problems caused by the publicity. He correctly isolated the reference to the Cosa Nostra as the most potentially prejudicial aspect of the publicity and placed that element in its proper perspective by instructing each juror that it was completely irrelevant to the case.⁸ After completing this process and carefully considering the problem, Judge Dooling concluded that, although the publicity was prejudicial, the jurors remained capable of giving the appellants a fair trial. In denying a motion for mistrial, he stated:

"Some very considerable part of the prejudicial matter is strongly implied by other evidence properly in the case, by the competent substance of Valachi\'s testimony and its essentially indivisible nature and by the very calling of Valachi as a witness and the identifying of his criminal record.

"But the publicity and the other circumstances attending Valachi\'s testimony, added to the inevitable and inescapable atmosphere and tensions of this trial, is not accurately measurable; but I am unable to find indications that it is sufficient as to prevent a fair trial.

"The existence of this readily regrettable prejudicial matter challenges the jury to be fair, to be faithful to their oaths. The jury cannot be taken to lack either the will or the capacity

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