*1 plaintiff publication, be barred injury re- presenting evidence from sulting publication. The from negate appropriate to or court thinks undertaking dependency affirm weighing interests, time another picture
incorporating factual the entire giving the Rhode Is- credit to full supra. land interests outlined deliberation, does the court After due pro- there basis for not feel that claiming aggregate interests either states, Il- Rhode Island and
of the two linois, superior inferior those Looking to Woodward the other.
“tie-breaking” procedure, the finds court it in the labeled interest factor “better determined, at rule of The court law.” 6, supra, p. Illinois rule Illinois the better one. The common law, recognizes the tort of inva- litiga- govern privacy,
sion tion, will plaintiff be allowed will resulting present injury evidence publication defendant's its ad- vertising material Rhode Island. Defendant’s motion to dismiss here- by denied. JACKSON, Petitioner,
Artis America, UNITED STATES Respondent. Civ. A. No. 37-70. Court, United States District Jersey. D. New Jan. 1971. Rehearing Denied Feb. 1971. Supplemental Opinion Feb.
appeared pro
Petitioner se. appearance respondent.
No MEMORANDUM and ORDER AUGELLI, Judge: Chief pauperis This is a application forma pursuant to 28 U.S.C. § judgment vacate the of conviction and imposed upon petitioner sentence on No- vember in Criminal No. Action 120-66. Petitioner other three individuals
(Eugene Boone, Harold L.
Howard
Loffa)
charged
Vincent
J.
in a
three-count
indictment with a violation
2113(a),
(b)
(d)
U.S.C.
§
connection
with
March
rob-
bery
Rahway
Avenue Branch
County
Company
Union
Trust
Elizabeth,
Jersey,
federally in-
New
sured
I
bank. Count
of the indictment
charged the defendants with the unlaw-
taking
$59,505.06
ful
from the
Branch;
alleged
II
use of
Count
effecting
force and intimidation
charged
taking;
and Count
unlawful
III
putting
lives
defendants
dangerous
weap-
painstaking
has made a
examination
jeopardy
the use of
complete
finds
in this
commission of the
case
ons
justify,
absolutely
pleaded
to each
no basis
fact
remotely,
charges
levelled
His codefend-
even
of the indictment.
count
against
Judge Wortendyke.
I
Boone
Counts
Considera-
ant
grounds
given
II,
and codefendants Howard
tion will now be
*3
petitioner
I.
for
under
to Count
asserted
relief
Loffa
28 U.S.C.
2255.
§
trial,
Judge
Petitioner’s
first
before
Coolahan,
to a
commenced on June
claims to be entitled
disagreement.
hearing
jury
application,
in a
The
and
on his 2255
but ended
trial,
by Judge
presided
requests
over
that coun-
second
connection therewith
jury
Wortendyke,
assigned
resulted in a
verdict
to him and witnesses
sel be
testify
subpoenaed
all
of
in
Pe-
three counts
to
his behalf.
Judge
following
alleges
hearing
dictment,
Worten
such a
will
titioner
dyke
petitioner
the term he
sentenced
establish a violation of
constitutional
serving.
appeal,
rights
grant
is
On
convic
new
now
and result
a
custody.
The
tion
affirmed.
from
was
trial or his release
1968).
(3
particulars
petitioner’s
H
prior
rec-
criminal
es Loffa’s extensive
to an admission
is tantamount
confusion,
cross-
ord,
when
and also
“sell his
he
Howard that
had
exchange
to whether he
examined
prosecution”
to the
or more counts
to one
whereby
escape the conse-
deal
he would
pointed out
It
charged against
also
indictment.
quences of the offenses
only
gave
one
the first
Loffa
at
the indict-
III of
him
II and
Counts
reason,
inability
and that was
ment.
against
testifying
bail,
make
vigorous
Despite
efforts made
trial,
tioner, whereas,
he
at the second
existence
to show the
defense counsel
so,
doing
an
reason for
added
additional
vigorously
just
“deal”,
of a
Howard
get his
he did not
because
him,
any promises
made to
denied
money.
full
share of
stolen bank
plea of
he
such that
if
entered
Howard, Loffa
he received
Like
testi
I
indictment
Count
only
$15,-
instead
the loot
$7500.00
against petitioner,
other counts
fied
any deal
denied that
000.00. Loffa
Moreover, Howard
would be dismissed.
to in-
offered to
the Government
testify for
denied that his decision
against
testify
duce him to
way
related
Government
get
although
hoped “to
did admit
he
July
or that
letter
guilty.
by pleading
a break”
up
after
his mind to do so
pressed
on cross-examination
When
*5
copy
A
of
letter.
he received a
said
why
changed
plea from not
tell
he
testimony
perusal
makes
of Howard’s
guilty,
to
Loffa said :
testify for the
clear that he refused to
say
“Well, sir,
you
if
let me
will
at
first
trial be
Government
changed my plea,
I
reason I
or when
deal”
that since
cause
“wanted a
and
change my plea
I
decided
to
because
prosecution
promise
not
did
[petitioner].
Artis
talked to
Jackson
testify
anything,
“re
and
he refused
of this
I asked him about
the rest
eventually
neged
What
on the stand.”
money
no
and he told me there was
against pe
testify
motivated Howard to
money.
different,
more
I found out
only
received
titioner
is the fact that he
$60,000
that
there was
involved
money
as his
sto
share
$7500.00
got $7,500,
I
I
and
bank
$15,000.00.
bank,
len from the
instead of
got
says
$7,500.
for
I
to him
beat
As stated
Howard:
money.
my
I
of
He
that
the rest
want
[petitioner]
been
“Had Mr. Jackson
getting
I am
There-
said that
not
it.
enough
give
man
the balance
me
get
—to
fore,
just
anything out
I
didn’t
—I
my
my money
my
of
mother
just pleaded guilty to the
of
it.
I
my children,
I
for
common law wife
case.”
today.
definitely
here
would
not be
by petitioner
Reference is also
being
my
here.
This
reason for
testimony
of defense witnesses
Government,
There is no deal with the
Hobson,
Arlington
Joseph Christinizio,
promises,
the Govern-
no deal with
Eugene
and
Boone.
ment. This
one bad hand
is where
was an inmate
Christinizio
washes the other.”
County
during
pe-
Mercer
Loffa’s
Jail
Loffa,
As
testified
of incarceration
therein.
Christi-
who
riod
alleged
trials,
and Loffa had a
at
it is
nizio testified that he
Government
both
damaging
general
testimony
rob-
that all
was
conversation about a bank
robbery
testimony
bery (name
perjurious,
bank and
that such
was
date
discussed),
promise by
prosecution
induced
not
and that
the course
against petition-
if
mentioned the
that
testified
their conversation Loffa
Loffa
er,
accept
plea
of Howard and Boone but not
names
Government
This
indictment
also
to Count I
name
witness
a “third
dismiss
In
said that Loffa made mention of
other
two counts.
naming him;
charge,
man”,
petitioner
that
stress-
without
of this
$25,000.00 belonging
had
individual
and also to avoid
arrest
threatened
Loffa;
girl
testimony giv-
never
the authorities would
that
friend.
In his
apprehend
person;
trial,
Loffa
en at the second
Boone admitted
regardless
robbers;
turn him in
would never
he was one
the bank
robbery
consequences.
points
to the automobile used in the
by Loffa;
petitioner
bolster his claim that
driven
was not
crime;
Loffa lied when he testified
had
all
at
involved in
and that
petitioner
conversation
about
the three men who entered the
bank
robbery money,
himself, Howard,
“Ricky”.
division of
one
also to
show
Loffa used
Boone,
addition to
Hobson
guy”
the “fall
unnamed “third
Christinizio, other
witnesses testified
man”
mentioned
Loffa Christinizio.
including
behalf of
his two
Hobson, member
Po-
of the Elizabeth
testimony,
that of
sisters. Their
like
Department,
lice
patrol duty
testified that he was
attempted
witnesses,
other
defense
on March
the date
petitioner or to
establish an alibi for
robbery,
peti-
the bank
and that
sawhe
cast doubt that he
one of the bank
tioner some
between 9:35 and 9:50
time
robbers. Much of
morning
day.
of that
Hobson conflicting.
Loffa and Howard
said he had no conversation with
was one of the bank rob
tioner,
being
the latter
in an automobile
saying
bers.
first
the same
after
when the
Peti-
observation was made.
thing,
later testified
tioner, erroneously stating that Hobson
involved in the
It
uncon
testified he saw
9:30
“about
participated
tradicted that four men
A.M.”, invites the Court’s attention to
robbery,
that Loffa drove
employee,
Ber-
getaway car,
while three men entered
gamo,
who said
took
bank.
and that of
Boone’s
place between 9:00 and 9:15 A.M. on
attempted
Christinizio
one
show that
*6
argues
March
and
that a consideration
“Ricky”,
petitioner,
the
and not
entered
bank,
of the
it took to rob the
time
bank with Howard and Boone and com
getaway,
apartment,
make a
the
reach
robbery.
mitted the
himself
Petitioner
money,
and to
the
the
divide
leads to
testify. Loffa, Boone, Howard,
did not
petitioner
conclusion that
was not
Christinizio,
prior
and
all had
criminal
crime,
volved in the
and that “Howard
records. The
of these
cross-examination
covering
and Loffa were
the
tracks
thorough.
vigorous
witnesses
and
was
associate,
hopes
they
the real
in
Loffa, Boone, and
accom
Howard were
get
get
a short sentence” and then
Wortendyke,
charge
plices. Judge
in his
missing $25,000.00
out and
in
share
the
jury,
point
out
was careful to
by
referred to
Loffa in his conversation
credibility
testi
the witnesses who
with Christinizio.
jury
fied
matter
case was a
for the
Boone,
recalled,
it
jury
will be
accomplices,
was
co-
As to
decide.
testimony
defendant in this
case.
a statement was instructed
of ac
that the
given to
complices
the Federal Bureau of Investi-
caution
was
be received with
gation, Boone,
Loffa,
weighed
great care,
like Howard and
implicated petitioner
rob-
a defendant was
be
not to
convicted
bery.
petitioner’s
At
testimony
first
unsupported
accom
an
Howard,
testify.
like
plice
testimony
refused
At the
believed
unless
was
second trial
jury “beyond
Boone testified for
de-
all
reasonable
repudiated
fense. He
the statement
doubt.”
than
Here there was much more
previously given
F.B.I.,
unsupported testimony
and the
an ac
signed only
claimed said
complice.
statement was
The
fur
record as whole
leniency
promised
after he had been
if
ample
than
for the
nishes more
cooperate
he would
with the
jury
Government
The
verdict
this case.
implicate petitioner
crime,
establishing
proofs
fall far short of
photo-
may
album,
the 12 loose
it
as well as
perjury.
While
claim
tioner’s
separately
hoped
graphs,
to each
exhibited
and Loffa
true that Howard
be
they did,
employee,
them
leniency
and not shown to
testifying
there
bank
group.
presence
as a
absolutely
proof
of each other
the Govern-
promises,
a deal or
made
ment
trial,
employees testi-
At the
bank
exchange
otherwise, in
for their testi-
they
concerning
opportunities
fied
mony.
preposterous,
And
on
it is
With
had to observe
respect
bank robbers.
suggest
prosecu-
record,
to even
knowing
“perjured”
use
tion made
testimony
might
witnesses,
expected,
these
be
in order to obtain
height
varied
somewhat as
petitioner character-
conviction. What
agree-
weight,
there
substantial
but
was
nothing
“perjured”
izes as
on
of identification.
ment
Bergamo
other indicia
implicated
more than
particularly noted
jury
in the
It was for the
him
crime.
eyes.
Link testified she
Miss
nose
credibility
much
to determine how
petitioner
to observe
“most
was able
given to
testified.
be
the witnesses who
there”, and that he was
the time he was
proper
from the
Under
instructions
negro
“heavyset
“broad
male” with a
Judge,
jury
petitioner
concluded
was nose”,
than
which to her seemed “broader
robbers,
already
one of the bank
and as
Mooney
most of them.”
Miss
stated,
amply supports this
the record
away
she
four
three or
feet
conclusion.
petitioner
at
sev-
and “looked
urged
ground
also said
eral
times.” She
next
for relief
The
fighter,
muscular,
“very
photographic
built like a
relates to the
nose.” Paren-
and he had a broad flat
thetically,
out-of-court
made of him
identification
may
custody,
that there was
noted
he was in
in the
while
ab-
was,
case
sence
counsel.
identification was
“good
fact,
All of
employees
boxer.”
on March
made
positive
employees
bank,
iden-
namely,
in-eourt
of the robbed
Gabriel
Bergamo,
manager,
of the
tifications of
as one
Do-
and tellers
major point
Mooney
Margaret
robbers. The
lores
Link.
aspect
petitioner, however,
on
arrested
March
present
case, is that his counsel was not
day
On that
photographic
at the
of his
identifi-
time
day, following
robbery, F.B.I.
same
Agent Hart,
cation March
charge
who was in
*7
investigation
crime,
right
the
to
exhibited
to
in line
counsel
employees
cases,
up
by
the bank
a “bank
v.
mandated
United States
containing, according Hart,
Wade,
1926,
218,
album”
to
80
18
S.Ct.
388 U.S.
87
pictures
(1967)
or 90
who
of individuals
had
Cal
L.Ed.2d 1149
and Gilbert v.
previously
1951,
ifornia,
263,
been convicted of bank rob-
87 S.Ct.
18
388 U.S.
bery
well,
(1967),
or armed
Petitioner’s
in
L.Ed.2d 1178
extends as
picture
among
Circuit,
photographic
in
was not
those
to
identifica
album,
employees
custody.
suspect
and hence the bank
tion of
after he is
day.
Zeiler,
made no identification on that
v.
were to him when made he was shown her in-court identification of pictures the 12 on March and Miss Wade, United States v. 87 388 U.S. testimony Link’s was to the same effect. any S.Ct. 18 L.Ed.2d She, Mooney, as well as Miss confirmed event, very most, and at the Miss Moon concerning Hart’s the individ- ey’s ual pictures of petitioner, exhibited in-court identification of examination on March 18. in view of other identification case,, amount more could to no upon Mooney’s Petitioner seizes Miss Chapman than harmless error. v. Cali question answer to a on cross-examina- fornia, tion improper establish 386 U.S. 87 S.Ct. 17 L.Ed. that an suggestive procedure identification was 2d 705
15
years
in-court
received
of 20
tioner
a sentence
It
is also evident
by
upon
petitioner
his
all three
conviction under
counts
identification of
Bergamo
employees,
of criminal
His
Mr.
indictment No. 120-66.
other bank
by their
not
codefendants Howard and Loffa were
Link were
tainted
Miss
years,
photo-
respectively,
sentenced to 8 and 7
earlier
selection of
pleas
Both
graph
robbers.
on their
of
to Court I of
as
of the bank
one
pe-
following
indictment,
opportunity to observe
which Counts
had sufficient
against
participants
II and III
dismissed
them.
titioner
as one
guil-
Bergamo,
previ-
pleas
Codefendant
on his
of
indictment,
ty
ously mentioned,
II
a view
I and
testified to
to Counts
prison
was
iy2 minutes,
Link
she
a
term of 12
and Miss
said
was sentenced to
by
years,
for most
followed
dismissal
Count
to observe
a
able
against
disparate
These
III
These
sen-
the time
was
the bank.
he
him.
coupled
by
sup-
viewing
opportunities,
are
tences
stressed
employees
port
he
discriminated
concern-
his claim that
clearly
features,
against
given
ing petitioner’s physical
a
sentence than
heavier
independent
he refused
a
codefendants because
furnished
sufficient
jury
plead guilty
identifica-
demanded a
trial.
in-court
source to
argument
re-
wit- A
these
similar
was made
tions
States,
this,
jected
and most
from all
v. United
But aside
Green
nesses.
Court,
1964),
identity
importantly,
petitioner as
F.2d 733
Cir.
where
page
at
one
robbers
established
736 said:
given
in court
remaining
is that
“The
contention
codefendants,
Loffa.
Howard and
two
against
discriminated
be-
Green was
infirmity
Thus,
did exist
even if
given
longer
a
after
cause
photographic iden-
connection with the
sentence
a
who
than
co-defendant
the admission
tification
pleaded guilty
count
one
any testimony relating
thereto would
understanding
dictment on the
error when measured
harmless
mere
to him
counts would be
other two
against petitioner’s
one
identification as
and who thereafter
dismissed
men
of the bank
two of the
robbers
prosecution.
is
for the
It
too frivolous
robbing
bank,
and who
who admitted
to merit discussion.”
partici-
named
as one
Petitioner’s reliance on United States
States,
pants.
Clemons v. United
(S.D.N.Y.1963),
Tateo,
F.Supp.
(1968);
U.S.App.D.C. 27,
maximum under 18 U.S.C. Action A notice § No. was denied. 2113(d) years. appeal 25 His codefend from this determination was to other sections ants filed with Clerk of the Court Jan- carrying prison uary 21, statute maximum 1971. periods. in terms of lesser But even February 9, 1971, petitioner On plural con cases where defendants are rehearing with the Clerk a motion for offense, is the same a court victed of justified, respect “point with one” of his considering mitigat all after original application, and in connection ing aggravating circumstances requested therewith in the record sentencing process, are relevant Ap- his case not sent to be the Court of disparate imposing in sentences. United peals pending decision on said motion. Russell, Huntt F. States ex rel. 285 “point by petition- one” referred to (E.D.Pa.1968), Supp. F.2d aff’d 406 765 er was based on the claim that ar- Vita, 1969); 774 Cir. United States rest was effected without a warrant (E.D.N.Y.1962); Bays F.Supp. 172 probable February 17, peti- On cause. States, F.Supp. den v. United motion, supplement- tioner filed another (E.D.N.C.1963), aff’d F.2d ing amending his first motion for a rehearing. expands This second motion petitioner’s argument a A consideration of this record as that his arrest was illegal. changes whole to the conclusion that what also, leads He in ver- petitioner really biage is retrial of substance, seeks that do not affect asks case. asks this to summon as He Court for a reconsideration of several individuals, grounds witnesses ten all of whom urged that were in for relief already testified, original have four on behalf application. Government, petition- and six for prior Just to the time sec- er. Petitioner would hearing, entitled to be attention, ond motion came to the Court’s and relief the form of new already a Memorandum and Order had custody, only trial or release from prepared, denying been relief on the event record discloses a violation illegal copy arrest issue. A of that Mem- rights. constitutional But orandum and Order annexed hereto Applying here. stand- case part and made hereof. The Court has ard laid down in 28 U.S.C. § again patiently reviewed the record Court finds that the file records light this motions. case “conclusively peti- this case show” that There is no basis in fact or in law that tioner, for the reasons this stated justify change any of the con- memorandum, is entitled to no relief on any clusions reached as to the Court grounds peti- asserted in his grounds urged by petitioner circumstances, peti- tion. Under the relief. application tioner’s for relief under 28 For the reasons in the Memo- stated re- U.S.C. 2255 will be denied all § randum and filed in action on Order this spects, and it is so January supplemented Ordered, January, day this 7th memorandum, petitioner’s motions for And the Court further certifies rehearing denied, so should and it is probable appeal that no cause for exists Ordered, February, day 24th in this case. 1971. And the Court certifies there probable appeal. cause for an
ON MOTION FOR REHEARING By Memorandum and filed in Order ON SECOND MOTION FOR RE- January 7, 1971, this action HEARING application, pursuant tioner’s judgment U.S.C. vacate the By § Memorandum and filed in Order imposed upon conviction and sentence January 7, 1971, petition- this action on
17 pursuant consideration, application, 28 Court’s er’s made two affidavits judgment 2255, the to vacate fellow inmates. These affida- U.S.C. § imposed vits, says as of conviction and sentence are submitted 10, proof prejudicial “of him on November Criminal further the effects illegal 120-66, prelim- A notice arrest of a Action No. was denied. denial inary appeal determination was had trial and this examination” on his Court on Jan- conviction. filed with Clerk of the uary 21, 1971. affidavit, by The first C. one James 9, 1971, Chester, February filed refers to a conversation over- On rehearing (one heard with Clerk motion between Harold Howard for original application, petition- “point one” of bank robbers indicted with er) coupled request and woman that the record who visited him in pen detention Court of Howard is al- his case not be sent Newark. leged Appeals pending to have told the that had said motion. woman decision on been “crossed” At- United States by peti- “point The one” referred torney in that he did not receive the tioner was based on the claim that year promised had sentence that been or arrest a warrant was effected without individual, that re- but instead probable petitioner’s cause. Attached year an 8 ceived sentence. The affidavit copies papers of the com- motion are goes say then on to that after Howard’s plaint filed with United States Com- left, visitor Howard affiant asked 9, 1966, on March and the war- missioner alleged happened. what had is Howard petitioner’s issued and rant arrest promise to have told the affiant about a executed on the same date. to him the United At- States robbery on March was indicted for Howard, torney he, testify if 23, stated 1966. For the reasons implicate peti- Government and on Jan- Memorandum filed in action robbery, tioner in the bank the United rehearing uary the motion for Attorney States would recommend to the if will be denied. Even assumed Judge sentence, year illegal, arrest Attorney States failed to do so. United standing fact, alone, suffi- would not be alleged matter of deal This an cient to void his In addi- whole conviction. and the between Howard Government cited tion the federal cases thoroughly Memorandum, explored at trial of also aforementioned see case, sur- Pennsylvania as were the circumstances Commonwealth of ex rel. rounding implication Craig Maroney, 22, Howard’s 348 F.2d America, tioner in the commission of 1965) Cir. robbery Bishop Rundle, reasons therefor. See ex F.2d 204 rel. 5, pp. filed of Memorandum and Order it must be Once more January 7, The action on stressed a careful examination nothing conclusively Chester affidavit adds new the trial this case legal significance. alleged illegal the case and of no shows that arrest and way detention of in no affect- affidavit, by one second ed the fairness of Edwards, Robert Paul is likewise of deprived him safe- constitutional The bank value to guards. place on March in this case took rehearing hereby The motion for A.M. The 9:00 9:15 between denied. gist Edwards affidavit greeted petitioner at about affiant SUPPLEMENTAL OPINION he was about A.M. on March 8:55 room, housing building pool In furtherance of his motions for a enter a again rehearing case, spoke to in this denied Memo- and that he building February at about the latter left randum Order when affidavit, if filed, for the This has now 9:15 to 9:20 A.M. *11 believed, represents tiny bit of but a phase cumulative fully developed at the trial. case that was testimony of a number of witnesses including by petitioner, his two
called sisters, attempted an alibi to establish doubt that he was for him or create references one of bank robbers. See Hobson and and Or- Christinizio Memorandum January der in this action on 1971. herein, the reasons stated
For Court finds that affidavits James Edwards, Paul C. Chester Robert by petitioner submitted legally rehearing, are motions change sufficient to warrant mo- heretofore decision reached rehearing denied. tions be therefore, day is, 26th It on this February, Ordered, order of this Court’s February denying petitioner’s rehearing case, for a in this motions hereby is, same affirmed. al., Plaintiffs, Jesse DOUGLAS et al., Robert E. HAMPTON et Defendants. Civ. A. No. 313-71. Court, District District Columbia.
Feb.