United States v. Riccobene

• Decision Date: 17 December 1970
• Docket Number: Crim. No. 69-460.
• Citation: 320 F. Supp. 196
• Parties: UNITED STATES of America v. Harry RICCOBENE, John Scially, Joseph Zavod.
• Court: U.S. District Court — Eastern District of Pennsylvania

320 F. Supp. 196

UNITED STATES of America v. Harry RICCOBENE, John Scially, Joseph Zavod.

Crim. No. 69-460.

United States District Court, E. D. Pennsylvania.

December 17, 1970.

COPYRIGHT MATERIAL OMITTED

Richard T. Spriggs, and Thomas H. Henderson, Jr., Dept. of Justice, for the Government.

Zinke, Shinehouse & Holmes by Lester J. Schaffer, and Hal F. Doig, Philadelphia, Pa., for defendants.

OPINION AND ORDER

HANNUM, District Judge.

Presently before the court is a motion by all three defendants for new trial pursuant to Fed.R.Crim.P. 33. A jury convicted the defendants of conspiracy and interstate transportation of a stolen security in violation of 18 U.S.C. §§ 371, 2315, 2314 and 2. Very able and skillful defense counsel have carefully reviewed the record and have cited thirty (30) reasons in support of the motion. These included practically every ruling of the court which was adverse to the defendants. In the interests of judicial economy and in an effort to minimize and possibly avoid confusion, the court will attempt to collectively discuss those reasons having a related subject matter and will only review each individual contention where necessary.

1. Denial of defendants' motion for a continuance and/or severance.

On March 13, 1970, defense counsel filed, among other motions, a motion for a continuance and a motion for severance. The contentions in support of each of these motions were substantially similar. They basically involved counsel's alleged inability to properly prepare the case for trial because of the incarceration of Harry Riccobene, one of the defendants, because of a parallel schedule set in another federal criminal matter in which counsel was involved and because of the government's failure to cooperate in pretrial discovery.

It is clear, and defense counsel agree, that the granting or denial of a motion for a continuance is a matter which is clearly within the discretion of the trial court. United States v. Weathers, 431 F.2d 1258 (3d Cir. October 6, 1970). The contention is, however, that under the facts of this particular case that discretion was abused.

In determining whether to deny this motion, the court considered several factors. Defense counsel had entered his appearance in the case on January 29, 1970, and trial did not commence until April 6, 1970. Counsel for the government represented to the court that a great amount of pretrial discovery had been effected and that probable agreement on any remaining discovery could and would be rapidly achieved. The court also considered the fact that the state incarceration of defendant Riccobene was not one of brief duration, but rather would involve a continuance of possibly several years. Furthermore, at the trial of this case, counsel's able and diligent efforts on behalf of his clients clearly reflects the adequacy of his preparation and the absence of any prejudice from the refusal of his request for additional time.

It is interesting to note that while one of the most frequent complaints in todays judicial process is the delays which a defendant must suffer prior to his case reaching trial, these defendants complain of the speed with which they were brought to trial. One of the reasons for the government's haste in this case was their belief which they represented to the court at oral argument on this motion that the life of their key witness, the so-called "informer", was in jeopardy and that any further delays in reaching trial might result in his permanent unavailability.

In light of the foregoing considerations the court concluded that it would be inappropriate to grant a continuance and now concludes that this exercise of judicial discretion was not abused.

Defendants' motion for a severance was based solely upon the state incarceration of the defendant, Harry Riccobene. Counsel contended that because of this fact, the defendants were unable to confer inter se and with counsel, and therefore counsel was unable to properly prepare the case for trial.

Again it is clear that this matter is within the sound discretion of the trial court and again it is contended that the denial of the requested severance was an abuse of that discretion.

In determining the disposition of this motion, the court again considered a number of relevant factors. Here the defendants were jointly indicted and charged with the commission of the same offenses. The government's evidence would be substantially similar against all three defendants and the same defense counsel who would conduct the cross examination of the government witnesses represented all three defendants. The court again noted that the state incarceration of defendant Riccobene could possibly extend for several years. But most importantly, the indictment charged all three defendants with conspiracy, and a severance as to one would visit undue hardship and expense upon the government.

In weighing these factors against defense counsel's assertion that he could not properly prepare for trial without being able to consult with his clients simultaneously, the court concluded that the defendants clearly failed to sustain their burden of proving that they would be so severely prejudiced by a joint trial that it would in effect deny them a fair trial. United States v. Tomlin, 380 F.2d 373 (3d Cir. 1968); United States v. Barber, 296 F.Supp. 795 (D.Del.1969), reversed on other grounds as to Calvin Jerome Loper, 429 F.2d 1394 (3d Cir. 1970); United States v. Crisona, 271 F. Supp. 150, 154 (S.D.N.Y.1967).

2. Denial of motion to dismiss the indictment.

In support of this motion, defense counsel contended that the language used in the indictment was at variance with that contained in the statute.

The law on this point is well settled, Pereira v. United States, 202 F.2d 830 (5th Cir. 1953), affirmed, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); United States v. Koptik, 300 F.2d 19, 22 (7th Cir. 1962), and therefore the court concluded at that time, as it does again now, that this contention is clearly without merit.

3. The impropriety of a statement made by counsel for the government before the grand jury.

Here the defendants contend that a statement made by one of the government counsel before the grand jury was improper, highly inflammatory and sufficiently prejudicial to warrant, at the very least, a new trial.

It appears that the alleged improper statement occurred during an explanation to the grand jury by one of the government counsel that the government was about to present hearsay testimony because, in their opinion, it would be dangerous for their key witness, Edward H. Wuensche, to travel to Philadelphia to testify in person. Counsel for the government further stated that their witness "would be putting himself in danger in coming to Philadelphia, because the proposed defendants in this case, if you see fit to indict, are connected with organized crime and could harm him".

While the grand jury was certainly entitled to know why the government was presenting hearsay testimony through a Secret Service agent in lieu of the direct testimony of the witness actually involved in the transactions, it was unnecessary for the prosecutor to interject a statement of opinion which was without evidentiary substantiation to the effect that these defendants were personally involved in organized crime and could personally harm this witness. However, this statement could not have in any way effected the fairness of the trial that the defendants received before the petit jury since the statement was neither admitted into evidence nor otherwise made known to the jury. It was the petit jury that determined that the government had sustained its burden of proving the validity of the allegations contained in the indictment beyond a reasonable doubt. Therefore the argument that this statement may have in some way prejudiced the defendants and produced an invalid indictment has been rendered academic and is clearly insufficient to set aside the defendants' conviction.

4. Limitation on cross-examination of government witnesses.

Of the numerous contentions of defense counsel under this subject area, the basic claim is that the court prejudicially limited the defendants' right to cross-examine the primary government witness, Edward H. Wuensche.

"The right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him, as guaranteed by the Sixth Amendment." United States v. Norman, 402 F.2d 73, 76 (9th Cir. 1968) citing Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1967). The extent of cross-examination is within the discretion of the trial court. However, a severe and prejudicial restriction upon cross-examination sufficient to constitute a denial of the right of confrontation would be a proper basis upon which to set aside a subsequent conviction. United States v. Norman, supra.

Here the cross-examination which defense counsel contends was severely and prejudicially limited consumed approximately two and one-half days of trial. A number of the matters upon which the defendants focus their complaints involved situations where either the question was improper or the information sought was wholly unrelated to the issues at trial. However, in order to understand the basis for the court's sustaining government counsel's objections in the instances where the question was neither improper nor irrelevant, it is necessary to view these rulings in their proper perspectives. Where the defendant in a criminal case introduces no evidence at trial, it is the practice in this court to permit defense counsel to make the last closing argument to the jury. During the trial of this case both sides jockeyed for this desirable position. In cautiously guarding against introducing evidence, defense counsel created the dilemma of which he now complains. In the process of achieving this tactical prize, defense counsel attempted on...