United States v. Provenzano, 76 Cr. 580.

• Decision Date: 29 October 1976
• Docket Number: No. 76 Cr. 580.,76 Cr. 580.
• Parties: UNITED STATES of America, v. Anthony PROVENZANO et al., Defendants.
• Court: U.S. District Court — Southern District of New York

423 F. Supp. 662

UNITED STATES of America, v. Anthony PROVENZANO et al., Defendants.

No. 76 Cr. 580.

United States District Court, S. D. New York.

October 29, 1976.

Robert B. Fiske, Jr., U. S. Atty., S.D. N.Y., New York City, for the U. S. (William I. Aronwald, New York City, of counsel).

Maurice Edelbaum, New York City, for Anthony Provenzano (Henry J. Boitel, New York City, of counsel).

Frederick C. Ritger, Jr., South Orange, N.J., for Salvatore Briguglio.

Harold Konigsberg pro se (Frank A. Lopez, New York City, assisting).

Robert S. Eisenberg, Jersey City, N.J., for George Vangelakos.

MEMORANDUM

STEWART, District Judge.

Defendants Anthony Provenzano, Salvatore Briguglio, Harold Konigsberg and George Vangelakos have been charged with violating 18 U.S.C. § 1201. The two counts of the indictment charge 1) that the defendants conspired "from on or about the 1st day of January, 1961 up to and including on or about October 1, 1961" to kidnap Anthony Castellito, then Secretary-Treasurer of Local 560 of the International Brotherhood of Teamsters, for the purpose of murdering him, and 2) that defendants kidnapped Castellito by taking him from New Jersey to New York for the purpose of murdering him "on or about June 5, 1961." This indictment was handed up by the Grand Jury on June 22, 1976.

Defendants have moved for dismissal of the indictment on the ground that it is barred by the statute of limitations.

There are two sections of the United States Code that set forth the statutes of limitation applicable to criminal offenses. The first, 18 U.S.C. § 3281 applies to "capital offenses" and provides

An indictment for any offense punishable by death may be found at any time without limitation ...

The second, 18 U.S.C. § 3282 applies to "offenses not capital" and provides

Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.

Since the indictment in the instant case was returned some fifteen years after the alleged offenses were committed, it is time-barred unless § 3281 governs. In order for § 3281 to apply, the offense must be "capital," which traditionally has meant "punishable by death." To determine whether a violation of § 1201 may be considered capital now, we must analyse the particular transitions which the death penalty provision of the kidnap statute has gone through since 1961.

In 1961, 18 U.S.C. § 1201 read in pertinent part

(a) ... Whoever knowingly transports in interstate or foreign commerce any person who has been unlawfully ... kidnapped ... and held for ransom or reward or otherwise .. shall be punished (1) by death if the kidnapped person has not been liberated unharmed and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.

. . . . .

and

(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished as provided in subsection (a).

In the instant case, the government has alleged that the kidnap victim was not "liberated unharmed" (Castellito is alleged to have been murdered). Thus in 1961, when the offenses were alleged to have taken place, they could have been punishable by death so they would have been "capital offenses" within the meaning of 18 U.S.C. § 3281.

However, in 1968, the United States Supreme Court held that the death penalty provision of the statute was unconstitutional. In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the Court found that because the death penalty could only be imposed "if the verdict of the jury shall so recommend," the provision placed an unconstitutional burden on the assertion of the accused's Fifth Amendment right not to plead guilty and Sixth Amendment right to demand a jury trial (Id. at 591, 88 S.Ct. at 1221). Accordingly, the Court held that the death penalty provision was "unenforceable." On October 24, 1972, the kidnap statute was amended by Congress to totally eliminate the death penalty provision. P.L. 92-539, Title II, § 201, 86 Stat. 1072. To determine, then, what statute of limitations is applicable when the alleged offense occurred in 1961 and the indictment was returned in 1976, we must decide what effect, if any, the Jackson ruling and the 1972 amendment have on the characterization of a violation of the kidnap statute as a "capital offense."

First, we will consider the effect of the ruling in Jackson. After Jackson, no death penalty could be imposed constitutionally under the terms of § 1201. The question is whether this rendered prosecutions under this statute "non-capital" for purposes of the statute of limitations. This specific issue has never been raised before under § 1201. However, other courts have dealt with prosecutions under § 1201 (and other statutes whose death penalty provisions had been declared unconstitutional) where they had to determine the continued applicability of other statutory provisions which prescribed particular procedures when an accused was faced with a "capital" crime. See United States v. Massingale, 500 F.2d 1224 (4th Cir. 1974); United States v. Hoyt, 451 F.2d 570 (5th Cir. 1971), cert. den., 405 U.S. 995, 92 S.Ct. 1272, 31 L.Ed.2d 465 (1972); Reed v. United States, 432 F.2d 205 (9th Cir. 1970), cert. den., 401 U.S. 957, 91 S.Ct. 986, 28 L.Ed.2d 242 (1971) all involving prosecutions under § 1201 and the question of whether 18 U.S.C. § 3432, requiring a list of witnesses and veniremen to be furnished the defendant and F.R.Crim.P. 24(b), allowing 20 peremptory challenges, were still applicable; United States v. Watson, 496 F.2d 1125 (4th Cir. 1973) prosecution under 18 U.S.C. § 1111 (murder) raising question as to applicability of 18 U.S.C. § 3005 providing two attorneys; United States v. McNally, 485 F.2d 398 (8th Cir. 1973), cert. den., 415 U.S. 978, 94 S.Ct. 1566, 39 L.Ed.2d 874 (1974) prosecution under 49 U.S.C. § 1472(i) (air piracy) raising question as to applicability of Rule 24(b); United States v. Crowell, 359 F.Supp. 489 (M.D.Fla.1973) aff'd, 498 F.2d 324 (5th Cir. 1974) prosecution under 18 U.S.C. § 2113(a), (b) and (e) (bank robbery) and applicability of § 3432 and Rule 24(b); State v. Flood, 263 La. 700, 269 So.2d 212 (La.1972); State v. Holmes, 263 La. 685, 269 So.2d 207 (La.1972) both involving murder prosecutions under state law raising questions of the defendant's eligibility for bail and of the applicability of requirements of a unanimous jury, a bill of exceptions, sequestration of jury, etc.; People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (Cal.1972) state murder prosecution and eligibility for bail; State v. Zarinsky, 143 N.J.Super. 35, 362 A.2d 611 (App.Div. 1976), app. pending state murder prosecution and applicability of unlimited statute of limitations.

While the courts have reached different final conclusions as to the continued applicability of the procedural statutes in these cases, they have all followed a similar process of reasoning. The analysis in United States v. Watson, supra, is typical. There the question was whether the holding in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), had rendered the offense charged (murder) non-capital for the purposes of determining whether the accused still had a right to the appointment of two attorneys, allowed under 18 U.S.C. § 3005 to those faced with "capital" crimes. The Court noted that "in a very literal sense," the statute still authorized the imposition of the death penalty since Congress had not repealed it. Further, Congress had done nothing to amend, in light of Furman, any of the procedural statutes which provided special rules for "capital" cases. As Congress had not yet acted, the Fourth Circuit was loathe to do so unless it were convinced that continued application of the two-attorney statute "could not conceivably serve any of the purposes that motivated Congress to enact it" (Id. at 1128). Thus, the Court looked behind the two-attorney rule to see whether the sole reason for it was the defendant's potential exposure to the death penalty, or whether Congress had other rationales relating to the complexity or grave nature of offenses punishable by death. The Watson court concluded that the complex nature of capital cases, as well as the gravity of the penalty, supported the two-attorney rule. Since the unconstitutionality of the death penalty in no way altered the complexity of the offense, the Court held that it was still "capital" for the purpose of applying the two-attorney rule.

Similarly, courts have looked to the purpose behind making "capital" offenses non-bailable when deciding whether a ruling that the offense could not constitutionally be punished by death meant that the offense was now bailable. On this question of purpose, the courts have split. Some have found that the gravity of the penalty was the sole reason for making the offense non-bailable (see e. g. Flood, supra), and others have concluded that it was the grave nature of the offense that made the offense non-bailable, and since the unconstitutionality of the death penalty had not changed this nature, the offense remained non-bailable (see e. g. Anderson, supra).

Thus, considering the effect of Jackson alone, we are instructed by previous decisions to consider the rationale behind providing an unlimited time within which a prosecution may be brought for certain offenses which are referred to by statute as "capital offenses."

The legislative history behind § 3281 consists of a Senate and a House Report (Senate Report No. 215 dated March 27, 1939 and House Report No. 1337 dated July 27, 1939). The Reports offer only one explanatory statement — a letter from the then ...