United States v. Provenzano

• Decision Date: 30 March 1965
• Docket Number: Crim. No. 429-60.
• Citation: 240 F. Supp. 393
• Parties: UNITED STATES of America v. Anthony PROVENZANO.
• Court: U.S. District Court — District of New Jersey

240 F. Supp. 393

UNITED STATES of America v. Anthony PROVENZANO.

Crim. No. 429-60.

United States District Court D. New Jersey.

March 30, 1965.

David M. Satz, Jr., U. S. Atty., by Richard A. Levin, Asst. U. S. Atty., for the Government.

Wilentz, Goldman & Spitzer, by Warren W. Wilentz, Perth Amboy, N. J., for defendant, Zoloto, Karger & Zurkow, New York City, of counsel (Hyman L. Zoloto, Arthur Karger, and Alfred Donati, Jr., New York City, appearing).

SHAW, District Judge.

This is a motion for a new trial pursuant to Rule 33. The defendant, Anthony Provenzano, was charged by grand jury indictment on November 15, 1960 with violation of 18 U.S.C. § 1951. Trial by jury began on May 23, 1963 and was concluded on June 11, 1963 with a jury verdict of guilty. Defendant appealed and his conviction was affirmed. U. S. v. Provenzano, 334 F.2d 678 (3rd Cir. 1964). Cert. denied, 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 544. The mandate of the United States Court of Appeals was filed with the Clerk of this Court on December 31, 1964.

On January 4, 1965 defendant filed Notice of Motion in this court pursuant to Rule 33 seeking an order granting a new trial. On January 18, 1965 an amended Notice of Motion was filed. The relief sought is grounded upon allegations that a juror, Stephen J. Cassidy, Sr., was prejudiced against the defendant, Anthony Provenzano, and had failed to disclose the existence of such prejudice during examination on the voir dire. In connection with his application for a new trial, defendant also seeks to obtain an order of this court directing that inquiry be made by the United States Attorney as to the existence of additional evidence and information which might be material to the issue of defendant's guilt.

Nineteen affidavits were filed by defendant in support of his motion. Three of these affiants¹ subsequently furnished affidavits to the Government in which they retracted statements made in the affidavits filed by defendant with denial that such statements were made under oath. Eleven affidavits were filed by the Government in opposition to the motion including those of the three affiants who had retracted previous statements. Upon examination of the moving papers, the affidavits of the defendant and of the Government, the Court decided to hear the oral testimony of the affiants with direction that investigators employed on behalf of Provenzano be available for such inquiry as the Court deemed appropriate to determine the nature and scope of the investigation which had been undertaken. Pursuant thereto hearing was held.

At the time of the trial and for many years prior thereto the juror, Mr. Cassidy, was an employee of the Ford Motor Company and had been working at its plant in Mahwah, New Jersey since the time it was located there. He is a member of Local 906 UAW and has held various offices in the union. He was employed by the company as a cycle checker and, in connection with his employment, had occasion to visit the LCL dock (less than carload lot) where freight was handled. The dock was described as an area approximately 100 yards in length and 40 feet in width and would accommodate 18 trucks. There was an enclosed office located on the dock covering an area of approximately 20 feet × 30 feet. Within this enclosure several of the Ford Motor Company employees who are members of Local 906 have desks in close proximity to a desk occupied by Mr. Charles Giannone. Mr. Giannone had worked as a "switcher" and was a member of the Teamsters Union Local 560, of which Mr. Provenzano has been and still is president². Subsequent to his employment as a "switcher", Mr. Giannone acquired an interest in the C & L Cartage Company and has conducted the business of that company on the same LCL dock. He still retains his membership in Teamsters Local 560.

It was on this LCL dock, both in the enclosed and outer area, where Mr. Giannone testified that he had from 200 to 250 arguments with Mr. Cassidy over a period of years prior to the Provenzano trial in which Mr. Cassidy expressed violent prejudice against Mr. Provenzano personally, the Teamsters and Mr. Hoffa. These arguments were alleged to have been loud and heated and to have taken place in the presence of a number of other employees of the Ford Motor Company who worked on the dock.

This dock was described as a very busy and noisy area with as many as 20 to 30 people coming in and out during working hours. It should be mentioned at this point that there was also testimony of other arguments in which Mr. Cassidy is alleged to have engaged at other locations in the plant and at union meetings in which he expressed violent prejudice against the Teamsters, Provenzano and Mr. Hoffa. The principal witness for Provenzano as to these other arguments was Mr. Bladen.

Mr. Bladen had held office in Local 906 UAW from time to time. He was president of this union while the Provenzano trial was in progress. At the present time he is employed as an international servicing representative of UAW working out of Detroit, Michigan. He stated that he had heard Mr. Cassidy express himself on approximately 100 occasions violently condemning the Teamsters, Provenzano and Mr. Hoffa.

As indicated above, the principal witnesses as to the volume of vituperative statements by Mr. Cassidy condemning Mr. Provenzano, Mr. Hoffa and the Teamsters union were Mr. Giannone and Mr. Bladen. According to the testimony of Mr. Giannone, Cassidy, among other things, characterized Provenzano as a "racketeer", a "gangster", a "bum" and a "bad labor leader." In his testimony he stated, "You name it. He called him." This witness also testified that from time to time Mr. Cassidy would exhibit newspaper clippings and other literature containing derogatory comments about Mr. Provenzano, Mr. Hoffa and the Teamsters. Mr. Bladen testified that on the many occasions when he heard Mr. Cassidy express himself on the subject of the Teamsters union, he would refer to Mr. Provenzano, Mr. Hoffa and the Teamsters as "crooks", "racketeers" and "gangsters." Other epithets couched in obscene language were also included in the alleged expressions of Mr. Cassidy's opinion of Mr. Provenzano, Mr. Hoffa and the Teamsters.

If the testimony of these two witnesses is to be believed, it would follow that Mr. Cassidy suffered from an obsession on the subject of Mr. Hoffa, the Teamsters and Mr. Provenzano which bordered upon, if it did not amount to, hatred. He would, as the evidence discloses, be completely out of character on this one particular subject. He had no acquaintance with Mr. Provenzano and every witness who made any reference to his character or disposition described him as a quiet, mild-mannered, retiring man who was not inclined to be talkative or argumentative. There was also evidence that he was not inclined by disposition to be abusive or use obscene language.

In order to evaluate the probative value of the testimony of Mr. Bladen and Mr. Giannone, it is necessary to look to the sequence of events following the Provenzano trial, the framework of investigation out of which this evidence emerged, the motives that may have influenced it, and the degree to which there is credible corroboration.

It appeared from the affidavits filed and further developed at the hearing that a very extensive investigation had been conducted over a considerable period of time to discover evidence in support of a motion for a new trial. One of the investigators, Mr. Neidorf, testified that he had been employed to initiate an investigation as early as July of 1963 and that he had been conducting investigation intermittently since that month. The following excerpts from his testimony during the course of interrogation by the Court are quoted:

"Q. Mr. Neidorf, are you acquainted generally with the nature of the proceeding that is before the Court on a motion that was filed seeking a new trial on the ground of prejudice of a juror?

"A. Yes, sir.

"Q. Mr. Neidorf, in connection with that, were you employed to conduct any investigation?

"A. Yes, sir.

"Q. Can you tell the Court when you were first employed to initiate an investigation in this matter?

"A. About July of 1963.

"Q. And have you been conducting an investigation since that month?

"A. Intermittently and not continuously by any means."

He stated, however, in connection with alleged prejudice on the part of the juror, Cassidy, that he had only interviewed one witness, Mr. Charles Giannone, and that this interview took place on February 17, 1964. Upon further interrogation, it was developed that he had also interviewed the husband of another juror and had interviewed approximately 40 to 50 persons to investigate the background of a third juror.

Another investigator, James Scanzo, testified that he was employed on October 23, 1964 to conduct an investigation for the defendant. He interviewed fellow employees of the juror, Stephen Cassidy, and also conducted investigation in the neighborhood where Mr. Cassidy resided. He estimated the number of persons that he interviewed to be approximately 35 to 40 people. When it developed by interview that a person seemed to have knowledge of prejudice on the part of Mr. Cassidy and was willing to cooperate, arrangements were made for that person to visit the office of the defendant's attorney in New York City where further interview was conducted and affidavits prepared. Assistance in the conduct of this investigation was furnished by Mr. Giannone, Mr. Bladen and Mr. DeMarco. Mr. DeMarco holds the office of vice-president of UAW Local 906. He testified on behalf of the Government.

The affidavit of Henry G. Singer, trial and appellate counsel for Provenzano, was filed in support of this motion. He states in Paragraph 4:

"Towards the end of 1963 and during the early months of 1964, while the appeal in this case was pending before the United States Court of Appeals for the Third Circuit, I had several discussions with the defendant

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