*4
grand
BROWN,
Chief
R.
indicted
Before
JOHN
the New
*5
DYER,
Judge
Judge,
HUNT-
Circuit
and
Orleans
of
division
the Eastern District
Judge.
ER,
of
District
Louisiana
the same offense.
July 3,
filed,
among
On
1967
Judge:
BROWN,
JOHN R.
Chief
others,
a “motion
continuance and for
appeal
Appellant’s
This is
from
con-
an
change
a
of venue.” These motions were
assaulting
forcibly
viction
and intimi-
of
September 13,1967,
heard on
and
mo-
dating an officer of the
in violation
FBI
change
tion for
of
a
venue was im-
points
of 18
111.1
U.S.C.A.
Fifteen
§
mediately granted because of extensive
raised,
of error are
each which we
of
find
prejudicial publicity in the New Orleans
wanting
affirm.
area. Not more than 10 minutes after
September 30,
hearing
On
1966 Carlos Marcello
of
conclusion
and the
airport
granting
motion,
arrived
at
the New Orleans
of
defense counsel
where,
reputation
parte request
of
because
as
made an oral ex
for the
boss,
immediately
Mafia
he was
sur- Court to withdraw its order. The Court
by newspapermen
photog-
kept
rounded
this motion under advisement
Among
raphers.'
group
FBI
5
on
months
March
it
agent
Collins, posing
deplan-
Patrick
as a
ordered
the case transferred
ing passenger,
co-agent photog-
and his
Southern District of
Texas.
case
rapher
job
keep
eye
whose
it was to
an
came
Connally
on for trial before
Laredo,
May
This crowd
Mar-
in
followed
Texas in
of
Marcello.
1968 and
through
airport
hung
cello
jury
and onto the
resulted in a
and mistrial on
upper
ramp
Marcello, May
outside where
reset
29. The case was
before
provides:
weapon,
1. 18
§
U.S.C.A.
be fined not more
shall
than
forcibly assaults,
resists,
imprisoned
$10,000
“Whoever
or
more than
not
impedes, intimidates,
opposes,
years,
or inter-
or
ten
both.”
any
designated
person
feres
§
U.S.C.A.
engaged
“Any
employee
or
of
section 1114 of this
while
officer
Fed-
title
performance
Investigation
in or on account of the
of
of
eral Bureau
partment
the De-
duties,
among
“per-
of
official
fined
shall be
of Justice” is
$5,000
imprisoned
designated
more than
or
sons
1114.”
section
years,
more
three
than
or both.
Whoever,
in the commission of
dangerous
deadly
such acts
or
uses
Judge Singleton
grant
and on Au-
acquittal,
Houston
refusal
to
motion of
mo-
guilty
gust 8,
judgment
re-
verdict
tion
of
arrest
and a new
September
Appel-
trial, (15) improper
sentencing.
turned. On
basis for
to
lant was fined
and sentenced
$5000
years imprisonment.
two
Illegal
Jury
Grand
argument
appeal
Appellant’s
point
is that he was
concerning
first
pentadecal.
issues
He raises
right
by a
indicted
to be
grand jury,
denied his
(1)
of the
the constitution
grand
compiled
jury
a fair cross
from
allege
(2)
indictment
of the
failure
Texas,
community. Hill
section of
the in-
(3) procurement
offense,
an
1159, 86
immunity
misconduct,
(4)
by
dictment
1559;
venue,
L.Ed.
Rabinowitz v. United
change
(5)
prosecution,
from
banc).
(en
999 er, they by case order of the in a were excluded The criminal indictment grand jury 8, by en District Court banc dated October must be returned broadly January 20, by pool persons amended on 1948 as 1967 “drawn from a parishes adding Bap- community.” Ra John the representative St. States, supra, pursuant at 45.5 tist and St. Charles to the au- binowitz v. United granted every thority by This, course, 28 18658 does not mean U.S.C.A. § (before amendment). group represented its to be conceivable has jury on does mean list.6 What Appellant has not shown that generally approxi is that must list any parishes of the exclusion community mate its different thing goal conducive to the but achiev supra. Texas, 5, interests. v. note Smith ing impartial incurring without unnecessary unduly expense or burden grounds on attacks two ing any part citizens of of the dis par names from 6 the exclusion jury trict The with service. action of says First, taken it was ishes. Judges of the Eastern District of 7 (before pursuant to 28 U.S.C.A. 1863 § Louisiana was reasonable accord amendments) since and that the 1968 1865 Constitution. § by findings the Trial were that, complaint A Judge 1863, related dis required the exclu § regarding validity the technical fact of matter sion The was invalid. excluding order, jury list it resulted parishes is that were not excluded representative single of the com- under 1863. Rath- § 74; 841, 92, holding beyond prospective S.Ct. 17 L.Ed.2d U.S. court Davis, jurors Cir., 1966, residing shall, 361 F.2d Davis re- individual 770; Cir., quest therefor, Bennett, 1966, jury Labat v. be excused from 1967, 698, denied, ground cert. F.2d service of undue hard- 334; 991, ship 1303, traveling place 87 S.Ct. 18 L.Ed.2d where 1966, Beto, court Brooks v. 366 F.2d is held.” denied, specifically apply cert. U.S. new act does not 135. case at L.Ed.2d bar: apply “This Act shall not case example, 6. For firemen excluded in which an indictment re- has been statute, 28 The new § U.S.C.A. petit empaneled jury prior turned or provides also their Act exclusion. such effective [December date 4, supra. See note 1968]. 90-274, Pub.L. § 82 Stat. 53: provided: Section reviewing panels for all Dis- judge good “(a) A cause district adopted plans tricts in the Fifth Circuit from serv- excuse or exclude *7 prescribe, among things, other that any person juror. ice called as a grand jurors are to be drawn persons from (b) Any group class or whole of District or for may, public interest, Division for be ex- grand juries respec- District or Division panel jury cluded from the or excused tively. article, See Gewin’s jurors from service as of the order Jury Selection and Service Act of 1968: judge finding district based on that Implementation in the Fifth ‘Circuit jury such service entail undue Appeals, Court of 20 Mercer hardship, L.Rev. 349 extreme or inconvenience (1969). delay serious obstruction or in the fair jus- impartial administration Texas, 5. 1940, 128, See Smith v. 311 U.S. tice. 164, 84; 61 S.Ct. 85 L.Ed. v. Glasser (c) No citizen excluded from shall be . States, 1942, 60, United 315 62 U.S grand petit juror any in service 457, 680; S.Ct. 86 L.Ed. Thiel v. South court of the on account United States Co., 1946, ern 217, Pacific 328 U.S. 66 of race color.” 984, 1181; Mobley S.Ct. 90 L.Ed. v. 28 U.S.C.A. 1863. § Cir., States, 1967, United 5 379 F.2d 4, supra. note See 768. See also the series of en banc de 4, supra. cisions of this Court 8. heard with notes 3 and Rabino See Walker, Cir., witz: 1966, constitutionality Scott v. 5 On this record 358 561, 564; Billingsley pre-1968 F.2d open Clayton, in 1865 its § 5 form is Cir., 1966, 13, denied, question. 359 F.2d cert. organized in munity there crime blue collar workers obvious that is in that complete Mar- excluded, and that this systematically [New Orleans] if area this list there the interests of ly, partially, from the cello was least parish this an- La Marcello asserts that exclusion. See area.” reason Bennett, supra. highly improper 5, of He nouncement was note bat v. did influence the the truth of was calculated no facts to establish fered grand bring- assertion, is in its deliberations and since the burden this Morrow, ing so, indictment. That the claim him to do Jackson v. 903; 1968, is shown United borders on the frivolous 404 F.2d Ware v. 34, 1965, U.S.App.D.C. the statement made before fact that leading 787, denied, 919, the occurrence of incident F.2d cert. 383 U.S. 673; 914, appeared It the news- Frazier v. indictment. 15 L.Ed.2d 30, 497, 503, morning, September States, 1948, Friday paper on U.S. 194; 205, 187, 201, until The assault did not occur 93 L.Ed. 1966. 69 S.Ct. evening. States, 1942, U.S. v. United Glasser 457, 680, 87, this 86 L.Ed. S.Ct Immunity contention fails.
Appellant’s next
meets the
contention
Insufficient
Indictment
preceding
fate as his
ones. After
same
alleged
assault but
the Federal
before
is that
Appellant’s
second contention
trial, Appellant
was called before
allege an of-
the indictment
failed to
Queens County,
grand jury
New York
alleged that Car-
fense. The indictment
investigating
organized crime. Under
forcibly
in-
los Marcello “did
assault
immunity
York
he
the New
State
statute
Collins, Jr.,
Patrick J.
an offi-
timidate
granted immunity
prosecution
from
Investiga-
cer of the Federal Bureau of
(as
testimony
from
* * *
well as
the use of
tion,
engaged
while
Collins was
might
elicited)
for
he
men-
crime
performance of
in the
his official duties
testifying
testimony.
tion in his
While
of Title
violation
United States
he was asked whether he was under
in-
Code,
111.” In
the same
Section
almost
anywhere
replied
dictment
he
(see
supra)
words
note
111 makes it
§
was, in
Louisiana
on a federal
assault
just
a crime to do
this.
officer. Now he contends that his an-
argument
ap-
offers no
Queens grand
swer while under
peal
support
contention,
at the
but
jury’s grant
immunity insulates him
stage
pre-trial
argued
the indict-
prosecution
from
crime in Fed-
allege
ment did not
knew
that Marcello
eral Court
Louisiana and Texas.
agent
Collins to
FBI
be an
argues
Murphy
He
v. Waterfront
knowledge is an element of the offense.
Commission, 1964,
84 S.Ct.
forcefully
This same contention
more
12 L.Ed.2d
holds that when
(contention
10)
raised later
number
grants
immunity
witness,
the state
to a
say
we
discuss it then.
will
It suffices
grant
binding
on the federal
second contention
government. Hence,
goes,
argument
wholly without merit.
Queens grant
from
immunized him
prosecution
any crime mentioned and
3. Prosecution
Misconduct
*8
in-
he mentioned
been
since
contention,
third
assault,
try
Queens
dicted for
not
could
by
procured
the indictment
the
Queens
assault,
him for this
since
prosecuting
of
misconduct
the
officials
try him
could not
neither could the Unit-
and therefore
should
been dis
have
ed States.
missed,
apparently
is
a state
based on
by
government
reportedly
This contention fails for several
ment
attorney
is
press
The most
of which
to the
reasons.
obvious
New Orleans
accepted
City
if his
then
of
York
contention were
arrest
Marcello in New
organized
meeting
any
state-be-
at an
“makes it
arm
the state with
crime
liability relating
penalty
immunity
grant
to a
or forfei-
power
could
queathed
to
prosecution.
ture
information
any
The
since the
contained
federal
thwart
already
grant
immunity
prosecu
the statement was
a matter
power
from
to
public
destroy,
question
power
to
record.
and answer
tion
be
nothing
1819,
Maryland,
revealed
new unknown.
M’Culloch v.
Wheat) 316,
579,
(4
but it would
4 L.Ed.
5. Venue
power
frustrate
federal
then
to
be the
opposition
ap
to this
crime control.
In
Appellant’s fifth contention is that the
urged
protection
proach
of a
changing
District Court erred in
venue
privilege
Fifth Amendment
defendant’s
from the Eastern District of Louisiana
against
outweighs the
self-incrimination
to the
Southern District
Texas and
possibility
of harm that
state could
thereby
that he was
denied his Article
supra,
Murphy,
provides
cause. But
ade
3,
2, cl. 3 and Sixth Amendment and
§
protection
rights
quate
by
de
these
rights
by
impartial
Rule 18
a.to trial
an
nying
government
to the federal
the use
jury of the State and
district where
testimony.
of Defendant’s
crime was committed.9
why
A second
ar-
reason
Defendant’s
The facts here
im-
are
the utmost
gument
rejected
must
as
is because
portance.
July
On
defendant
posed
answer,
question
and its
he moved for a continuance and for a
against
did
privilege
not have .the
self-
change of venue10
because
“wide-
grant
Consequently
incrimination.
spread front-page
coverage”
newspaper
immunity
response.
did not cover his
alleged
publicity
assault and other
privilege
prejudice
There
no
basis for the
which “was such
as
gleened
against
here
because
information
readers of the same
defendant.”
question,
from an answer to
mat- With this motion defendant
ex-
filed as
might
been,
ter what
newspaper
the answer
have
hibits several New Orleans
in,
possibly
present
which,
could
say
least,
result
articles
leading
evidence
to,
highly inflammatory.11
August 1,
criminal or civil
On
III,
provides:
9. Article
§
cl. 3
the offense was committed.
The court
except
Crimes,
place
“The Trial of all
shall
fix the
within the
Impeachment,
by
regard
Cases of
shall be
district
due
the conve-
Jury;
and such Trial
shall be held in
nience of the
wit-
defendant
the State where the said Crimes shall
nesses.”
committed;
have been
but when not
F.R.Crim.P.
any State,
committed within
the Trial
21(a) provides:
10. Rule
shall be at such Place or Places
Prejudice in
“(a)
District.
For
Congress may by Law have directed.”
defend-
The court
motion
Ill,
U.S.Const. art.
cl. 3.
§
proceeding
ant shall
transfer
provides:
The Sixth Amendment
him
or not
to another district whether
prosecutions,
“In all criminal
the ac-
specified
such district
in the defend-
enjoy
right
speedy
shall
cused
to a
motion if the court is satisfied that
ant’s
public trial, by
impartial
there
in the district where the
exists
of the State and district
wherein
prosecution
pending
great
preju-
so
committed,
crime shall have been
which
against
the defendant
that he can-
dice
previously
district
shall have been
as-
impartial
a fair
obtain
trial at
by law,
certained
and to be informed of
any place
holding
fixed
law for
court
accusation;
the nature and cause of the
district.”
to be confronted with the witnesses
21(a).
F.R.Crim.P.
against
him;
compulsory
process
obtaining
consisting
Witnesses
in his
filed seven exhibits
favor,
editorials,
photographs
articles,
and to have
Assistance
newspapers,
Counsel for his defence.”
in the New Orleans
found
Times-Pieayune
The States-
U.S.Const. amend. VI.
provides:
September
Item,
during
period
Rule 18
from
“Except
permitted
as otherwise
1966. The first
1966 to October
prosecu-
rules,
accompanying photo-
statute or
these
an article and
graphs
September
Times-
tion shall
be had
a district
in the
*9
originally prepared
1967 this and other motions were con-
the time I
mo-
they
September
thought maybe something
1967 when
tion
tinued to
could
I
hearing
up
Heebe.
for
before
be done to assist Mr. Marcello
came
with
regard
change
Judge’s suggestion,
all
in which
to a
of
I
At the
venue. But
styled
place
acquiesced,
“Motion
the motion
know of
where I think
this
at
Change
particular
time,
pub-
a
of
for
and for
with the
Continuance
adverse
reasoning
first,
licity
height,
its
Venue”
heard
at
that Mr. Marcello
trial,
being
mo-
disposition of the venue
would
fair
in
receive a
view
* * *
publicity.
make
.to defendant would
this adverse
tion favorable
er was
could
teed fair
Orleans
several
by pointing
determination
ferred with
appropriate
persuasively
newspaper
an
area
get
article
out three
since
(see note
counsel
a
of the other
case.
in Louisiana. One
constitutionally
they
proved
in
articles
groups of instances
opened
11, supra),
.that Marcello
September
in the New
motions
be trans-
guaran-
hearing
anoth-
in-
your pardon
request
a
this case
time.
feel
time.
is for a five-month continuance.
request
[******]
“My
we
motion
I
should not
for
am, naturally,
in
—I
a
this
change
change
* *
am not
atmosphere
*
obliged
this afternoon
venue
venue —I
pressing my
withdrawing
at
at this
this
beg
try
I
third consisted of
1967 issue
Life
two
Magazine12
published
state-
“I am
[******]
only pressing
at this time the
McKeith-
Louisiana Governor
ments
until,
request
postponement
for a
un-
stated:
en.13 Counsel then
fortunately,
I
after
think until
elec-
tion,
publicity,
and until after
this
“Now,
atmosphere, na-
it is in this
I feel
continue
some
tionwide,
publicity that we are
adverse
try
particular
At
time.”
case.
asked
Pieayime describing
Queens,
in
of this
in
cello
there
the interests
raid
Apalachin”
next
is a
meet
area.” Defendant’s
exhibit
York
a “little
New
ing
gang
photograph
in
States-
(this
assault
term came from “the 1957
MARCELLO,
captioned
Item
and their
“CARLOS
land conference of
hoodlums
figure,
York”)
Apalachin,
hauls
crime
off
with
Jefferson Parish
friends at
New
punches
agent
FBI
an unidentified
at
in attendance. The sec
Carlos Marcello
Airport.”
September
polit
States-Item
New
International
ond
Orleans
support
ical-type
pointing
in
of his
Marcello’s last exhibit
out Marcello’s
cartoon
presence
meeting
change
an
of venue is
October
raided
motion for
years.
I,
deportation
in the States-Item that
for 13
1966 statement
avoidance of
charges
arraigned on
he had been
stem-
exhibit
of two front-
The third
page
consists
ming
punch
September
Parish
“from a
the Jefferson
States-Item articles of
agent
investigation
figure
concerning
at FBI
Patrick
or
crime
threw
—one
* *
ganized
Orleans,
Collins,
tying
*.”
Jr.
crime in New
J.
Apalachin” meeting,
Queens “little
magazine
Carlos
12. The
article stated that
delaying
telling
a bomb
the other
scare
organized
kingpin
was the
crime
Marcello
County
jury questioning
grand
the Queens
also
It
described
New Orleans.
reputed
leaders,
including
Mafia
“12
particular assault.
figure
Jefferson Parish rackets
Carlos
* * *."
Appellant characterized the
Marcello
13. Counsel for
story
front-page
we find
Next
Governor’s statements:
Times-Picayune
September
seemed
be that
first statement
“His
present
not deal
Mr.
1 issue of States-
laws could
editorial
the October
reported
quoting
Marcello,
this is
Item both
the coordinator of the
Times-Picayune
September
organized
Department
crime
Justice’s
McKeithen,
Louisiana,
today,
Mississippi,
“Then,
Governor
Mr.
section for
bama,
Ala-
McKeithen,
Georgia
saying
that Mr.
to have said
re-
seems
legitimate
engaged in
en-
Carlos
in New
Marcello
cent arrest of
Marcello
terprises,
he would still like
or-
but that
York “makes it obvious that
there is
get
ganized
him
of the state.”
out
crime in this
and that Mar-
rid of
area
*10
ity
clearly
(see
transpired
swpra)
*11
Constitutional
serious
both
are
with a
10, supra)
the
that
Defend- note
and
Constitution.
and in view of the fact
the
overwhelmingly proved
The evidence
to
his Constitutional
ant desires
assert
get
though
unpreju-
here,
right
Marcello could not
an
that
to have a trial
even
Judge
prejudicial publicity,
view
trial
and in
diced
in New Orleans. No
there is
change worthy
permit
provisions
of
of
name could
that
of the fact
that
Judge
that
the De-
to
The
could also see
of
are for
benefit of
occur.
venue
grant
change
fendant,
to
he
of venue
does not desire
if
did not
a
and
he
since
begin
advantage
it,
this
the case
with built-in
of
I
take
submit
grounds for
be
reversal.
In the face of
for
reconsideration should
motion
Marcello,
showing by
granted.”
motion
this
and
Judge
this Court
Heebe stated and
Judge
see,
in his
Heebe
did
We
utterly
agrees that
it would have been
(United
opinion
written
States
well
Marcello,
to
absurd
that if the motion had
believe
motion,
denying
supra)
if
been denied and
convicted,
had been
Defendant
ar-
He
Marcello’s contention as dual.
higher
a
then
Court would
gues (i) that
his motion
he withdrew
preclude
arguing
the Defendant from
original
change
hear-
for
ing
of
venue
appeal
lower court
erred
that the
(ii)
not,
if he did
and
that even
denying
change
of
the motion
ven-
right
did not waive his Constitutional
ue on
basis that it
aban-
had been
to be tried New Orleans.
doned.
Appellant’s idea
he with
Judge
entitled,
re-
The
was
indeed
factually
just
incor
his motion is
drew
pre-
quired, to
Marcello’s claim as
take
as set
rect
is
from the events
clear
duty
proved.
to act
and
His
was
sented
italicized
out above.
supra,
statement
Counsel's
having
for the
and
it
not
acted
was
withdrawing
am,
a
naturally,
“I
reweigh
strategic or
Defendant
to
beg
request
change
of venue—I
a
disadvantages
victory.
tactical
my
your pardon
pressing
re
am not
—I
phase of Defend
The second
change
quest
time”
for a
of venue at this
though
complaint
ant’s
original
is that even
shrewdly,
carefully
obviously,
and
is
may not
been with
motion
Nothing
by
a withdrawal.
said or done
drawn,
himself
not know
Defendant
did
anyone,
could have left
Court or counsel
rights.15
ingly
There is
waive his
including
any
specifically Marcello, in
rights
question
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6. Place Of quash The Trial did sixth contention is not portions subpoena right other briefed but is that second motion for change ly government forcing so since the the venue, after mistrial bring granted Laredo, been be- these records have should have would Laredo, Appellant publicity cause of been adverse unreasonable. Corpus Christi, clearly attempting 17(c) to use Antonio and Hous- Rule as San clearly discovery a device, ton. There which it not. error here is Bow Dairy States, man because for- Defendant did meet the v. United Co. seeking facing 214, 220, 675, 679, midable task defendant U.S. change venue, Holtzoff, 879, 885; L.Ed. 4 Barron & Gilmore Procedure, Federal Practice and 256 F.2d 567. § (1951 Moore, supp.); Wright, See 1 C. Federal Federal Practice (2d ed., 1969); Annot., Practice, Procedure, (1969). 21.03 ¶ § (1964). L.Ed.2d 1272-87 8. Mafia References Suppression Subpoena 7. Of eighth Appellant's claim in this in- For opus attack seventh exhaustible the District urges the District Court Court should not should declared have a mistrial suppressed subpoena prosecution “improperly the te- when duces the in- (F.R.Crim.P. jected” 17(c))19 cum upon served Cosa Nostra Mafia refer- Attorney calling ences General into the trial. This contention production September essentially fails because it a mis- preplanned may promptly quash modify 18. This had the of a marks or Judge, subpoena compliance attack. It was clear as it if un- be us, oppressive. is to if Defendant’s motion for reasonable The court change may books, papers, of venue were denied and he had direct docu- convicted, objects designated been then his conviction could ments or the sub- easily appeal poena produced be reversed on and if the before the at court granted, prior prior motion were then he use could time to the trial or procedure presently using. they he is to be time when are offered in evi- may production dence their 17(c) provides: 19. F.R.Crim.P. permit papers, books, documents or “(c) Documentary For Production of objects portions thereof to be in- Objects. subpoena Flvidence and A spected by parties and their at- person also command the to whom torneys.” produce books, it directed 17(c). F.R.Crim.P. objects papers, other documents or des- ignated therein. The court on motion 18 U.S.C.A. § Q. prosecution Maroun, did Who is Mike statement of fact. Col- Mr. you anything Rath- inject the trial. lins? Do into know? er the defense potion to be administered. one who allowed A. [******] Long-time business associate of happened. personal Carlos Collins Marcello. Close is how Here confidante, nightclub manager, counsel was work- stand. Defense on the ing relatively lawyer, does an act and he’s him after a innocuous prosecution’s chief redirect: enormous tion. cution’s toxic icine on examination But dote. brought up Bar, and the an cerned) He ings Town it comes ing Collins, he—defense 12, 1968.21 1967, New Orleans (as “Q. When response to tactics Michael attorney questioned if it far with Maroun: what references Here But Now, you Lucky meeting defense action. as the examination. is, may yet hypodermic well turn this Country Maroun, who was is what it defense for the for Marcello in New Orleans? other Pierre’s opponent’s Collins counsel had misconceives Mafia with Like into the whole first actually occurred Motel counsel saw one in surgeon returned out to Shreveport at at Mike Maroun most be a medicine is about needle in November adversary, when While testimony asked about Lucky Pierre’s time in this turn, finished, the fitting questioning be two originally February counsel— question- strong. fall action. opera- prose- inject meet- given name anti- med- con- on at A. A. The main Q. Again with the same limitations Q. Now, [*] [******] [******] Country in and we did discuss La Cosa Again, ject matters and the discussion well over of was wire conversation, what were the sub- tails, about, as we *14 phones have know roun’s on like that. ter, not all the details. court and the sation, also. subject Pierre’s. tion particular (cid:127)X’ wired.’ night Mr. without which repeated had to 'we know which of our we want ?Motel] matter we have it occurred half Collins, subject Just big thing [at night of our And going tapping, the time statements to the Town and you which took of the conver- he Lucky the conversa- tapped. subject into [*] during rooms kept to tell the he listening was Ma- general Pierre Lucky [*] going spoke mat- you We me de- up Nostra, Yes, A. the American Mafia.” sir. testimony pertaining No, these A. sir. to 21. We set out definitely Q. You verbatim. did not make that two conversations Lucky Pierre’s Bar statement? at Conversation any No, having you A. sir.” Do recall “Q. [Collins] Country there? Conversation at Town and him Motel [Maroun] with conversation you Yes, “Q. Did have [Collins] or 20 minutes. con- A. sir. discussing you versation with him case [Maroun] recall this about this Do Q. ease on that occasion? him? No, sir, No, A. not about this case. I not. A. sir. did this You did Q. discussion about not discuss this case at all You no had Q. Lucky with him? with him at Pierre’s? ease No, No, sir.” A. A. sir. telling him at recall You don’t Q. Lucky incident this entire Pierre’s was an accident? stage jury spontaneously At this removed The testimony, volun- mistrial, Appellant witness, and moved teered subject was relevant to Judge refused, he by Appellant, which the Trial but first broached disregard jury to did instruct connection him between utter- weak, him, prejudice statement.22 ance was if slight, any, prop- arguments of are sim- both sides erly instructed in a manner did argues ple. Appellant that the statement spotlight cast on the statement limiting prejudicial instruc- was so (see light supra). itself note In this possibly have tion could cured it. the instruction was sufficient and a argues Appellant’s Government appro- declaration of mistrial was not counsel the one who sowed seeds priate, mandatory. much less and what whole conversations including reap that shall he also sowed Bag Grab Prosecutorial flowing any prejudicial from the effects Misconduct interrogation response, whether initially elaboration redirect Appellant’s ninth contention is examination. hexagonal deals acts with several prosecution of the ing before dur both presumably Defense counsel can dealt trial. Three of these thought through helpful Col show Appellant first with in short fashion. lins that had discuss Maroun and Collins complains allegedly prejudicial an ed the assault that Collins Depart made a Justice nouncements things mentioned to Maroun several det ment the New coordinator to Orleans rimental to the Government’s case. note, (see press September 29, Since the could then antic Government 11, supra). statements were These stage ipate at Maroun some here, prior alleged violation (see —as he later did contention nothing case, do with and thus infra)- -testify con to his version of the — do not call for reversal. versation, every the Government had argu pretrial complaint at second is that right rebut idea misrepre attorneys ment Government credibility same time bolster the of Col sented that certain evidence was lins. In view of the fact that Collins possession. *15 does their did have conversation with Maroun complaint points to document this and something, and an entire did talk about injury misrepresentation if from a ly proper inquiry was sub area the Appellant’s third in occurred. fact one ject matter of conversations. That the complaint failed to al Government —the testimony called for on said what who inspect in con low him to an exhibit he said said was said. discovery formity un with order —is condi founded because the order was Additionally, nothing there is here to upon making tioned a sim Defendant’s legit- in indicate that the course tender, apparently ilar he did not interrogation imate the Government do. seeking bring counsel out “Cosa Appellant’s subpoint men- Nostra” or that it fourth is that would even be that, con- should have been declared be- tioned. More than from the mistrial attorney prosecuting Mar- in his versation the connection between cause the closing argument verbally asper- supposedly and non- cast cello the Mafia was very existent, implication only the on two and sions defense counsel and accused slightest. Indeed, lying. testi- on version defense witnesses Collins’ talking Mafia, obviously mony im- Maroun was about the not and statements are (which portant who the or associates were. At first trial members here. the any Forget purpose. 22. He said: not consider it for Don't talk about it. Don’t let “Do it. y.our it enter into discussions.” Laredo) the was an insult jury Michael reason whole defense hung in ain ended intelligence. jury’s met that he had Maroun testified agent Country Town and at the Collins why Appellant presents three reasons (see February note and text on Motel closing argument highly jury the day had supra) he the next and that charged First, improper: it the because Febru- dated a memorandum dictated ary fab- defense and defense witnesses with him told that Collins 6 to the effect second, evidence, rication of because the night put in the fear on not that he was prosecution on a commented memoran- injured assault, alleged was not (Ma- in dum which was not evidence his clearly win Marcello February 6), roun’s memo dated appellate level. trial or either case at the third, prosecutors expressed because out came At the second personal opinion. their February meeting really 12 and on reason, As to first attempted to Maroun not on the 5th. prosecution legitimately attempt to could discrepancy fact and explain the between persuade jury there facts were stating his his memorandum secretary tending support conclusion the memoran- misdated had Angel telling Maroun and not dum. relating (see in truth what Collins said brought out facts were These text, supra) note and that related capital unnaturally not second trial and telling contrary on the Collins was closing prosecution ized truth such state- denial objected argument.23 jury The defense swearing ments. In this match over prosecuting ground at on the what Collins said he said what others torney deliberately an accusa said, emphasis said Collins much against counsel. tion defense disparity focused on the of time—wheth- construe he did not so stated that February er the conversation was on nothing argument, it said and as which, or 12—and of- the memorandum overruled Defendant about proof meeting, positive of fered as objection. itself turned out to error. argument prosecution Another memorandum, This its existence wit- complained aimed at defense of was accuracy Appel ties into and refutes Angel’s testimony that Katherine ness prosecution lant’s contention that February 12 she had noted the date improperly commented on a memorandum night met she her as the calendar course, which was in evidence. Of attorney men- prosecuting Collins. The question improper there is no that “It is her notation tioned calendar express personal opin counsel light objectionable. found defense ion or to state of his knowl facts own only knows when He stated that “God edge, evidence, part date inserted the she went back presented; to be or to make un evidence February 12,” *16 memo- referred the and to or cal warranted inferences insinuations in as “skunk this case”. randum the prejudice to the culated defendant.” States, Cir., argu- 1962, complains Dunn v. 5 307 United Defendant also 883, quoting F.2d 886 from counsel Taliaferro ments to that the effect defense States, Cir., 1931, being presenta- 47 699. 9 F.2d not in their were fair evidence, matter that But the fact of the here is was tion that Mr. Maroun prosecutor’s telling truth, the was not aimed not that were comment others telling truth, memorandum itself rather this at the but was not for- and that they Mr. time When came 23. “So men? have a memorandum dated prior occasion, testify February days prior to 6th. Six to the Maroun they alleged saying needed some that event to decided what Collins defense impeach Agent said, meeting to have never kind of memorandum and the phony they up place. Now, memo- so taken this is unbelievable. Collins gentle- happened, And what ladies and randum.” 1010 concerning 1960, Cir., testimony States, the mem- aimed at Bennett v. United 5 567, denied, 1961, testimony matter 366
orandum. This was a 285 F.2d cert. trial, record, given 1087, 911, in the first 81 6 L.Ed.2d S.Ct. U.S. 236, vital, very and to in the second which is still Burke had been referred see argument States, prosecution’s Cir., 1968, v. United 5 400 trial. Thus the 866, 1969, denied, in not aimed fact not evidence F.2d at a cert. 395 U.S. 1771, 237; proper. 919, 89 and 23 L.Ed.2d S.Ct. Pipes Cir., 1968, v. United 5 399 Appellant’s As to last subcon denied, 471, 1969, F.2d 394 cert. U.S. Dunn, supra tention, from that we know 934, 1207, 464, 22 clear S.Ct. L.Ed.2d improper express to “It counsel ly required holds that “scienter is not * *." * opinion personal In this proof in the indictment or in the either regard prosecution as case do not we to sustain Section conviction.” expressing personal opinion. Rather its Pipes, supra at 472 of 399 F.2d. See also arguments legitimate forensic these were 1966, Wallace, Cir., United States v. why, pointing jury out 537, 1967, denied, 368 F.2d cert. persons jurors minds of the reasonable 136; 976, 1169, L.Ed.2d supposed be, the contentions are Lombardozzi, United States v. muster, pass not Defendant could 335 F.2d cert. A.L.R.3d arguments prevail, not were could denied, U.S. 85 S.Ct. not which were and hence were claims L.Ed.2d 185. fairly they be cred fair could since Injure 11. Willful Intent To fair, jurors. ited disinterested arguments upshot is that none of the argument In his eleventh hotly of fact issues the face of contested contends that Court erred refus improper, certainly none were ing charge that offense forcible prejudicial. required attempt assault25 willful injury. intent inflict or serious violent “ Knowledge an Element charged The Court the word ‘as * * * any sault’ means intentional tenth contention attempt unlawful threat to com in not in the District Court erred * * *." 26 injury mit He then defined knowledge structing “forcibly” as “the of force.” use element status Collins an Defendant intimidation contends the Trial offense assault and agent 111.24 should under 18 included as inherent an FBI U.S.C.A. § supra. ‘intimidate,’ “The word as used See note charge indictment means 1, supra. 25. See note simply to make timid or fearful or to charged: inspire 26. The Court or affect one with fear. ‘assault,’ “The used in the word ‘forci- “In connection with word charge, bly’ ‘intimidate,’ and in this means indictment the word it is any necessary Jr., intentional unlawful threat or Collins, that Patrick J. injury attempt per- any bodily.injury might to commit believed coupled another, great son of when sustain For severe. present ability apparent do, instance, attempting person so to to strike a display open might an intentional of force such as with an hand constitute an place ap- although assault, person victim reasonable knows prehension harm, bodily open of immediate that a blow hand is normally An constitutes an assault. assault calculated to cause serious actually touching, bodily injury. Therefore, be committed without it is sufficient *17 bodily striking, committing attempt or harm to if to use force causes a person Collins, another. such as Patrick J. Jr. ‘forcibly,’ reasonably injury used in the “The word to believe that some charge, might injury although indictment means in be inflicted such simply part might of use Carlos not b.e severe.” upon Marcello force or toward Pat- Collins, rick J. Jr.
1011
1003;
Gosser,
idea of
L.Ed.2d
of assault
United States v.
in
definition
his
1964,
denied,
charged
Cir.,
102,
crime
339 F.2d
cert.
that the
6
so
violence
1965,
819,
44,
threat
and violent
382 U.S.
86 S.Ct.
15 L.Ed.
to a
amount
“forcible
66;
1967,
injury”
States,
2d
cf. Brooke
attempt
or a
v. United
or
to commit
“forci
19,
U.S.App.D.C.
attempt
violent
to
a
128
14. Motions There is no Judge determining the sentence is fourteenth contention go can outside the consider record and that, the since case was submitted the past activities. Defendant’s conduct and on in- alternative of forcible issues York, 1949, Williams New v. assault, timidation and since and forcible 241, 1079, De 69 1337. 93 L.Ed. S.Ct. nor neither substantial evidence evidence quibble fendant does not seem to with guilt more than in- consistent with does he statement law. What existed, acquittal for nocence his motion quibble type infor of outside with is the judgment for and motion arrest Appellant er pinpoints as mation used. granted. have been a new should Judge’s verbally taking ror into ac proceedings count which two Court question The whether Judge’s ultimately oral won. But actually Marcello the act that committed report, presentence committing summation ques he was accused of is a obviously which he had considered jury if tion for a well-instructed the evi (F.R.Crim.P. which rules call enough dence is establish substantial (c)), one at least reflected that there was jury may from infer a case which more, instance, if not guilt beyond which Mc reasonable doubt. finally of 1960, was convicted of criminal States, Cir., Farland v. United nothing determining fenses. 417, There was to indicate In 273 F.2d Judge pun retrospectively sufficient, is whether evidence ishing having successfully in light him for must most be viewed in favor rights. Judge A is Government, voked Constitutional to the able Glasser v. Unit history 1942, 457, States, means confined to a ed U.S. criminal convictions. The activities inferences that L.Ed. and all Defendant, including reasonably his relation from the facts must drawn public authorities, police position Auer be considered. United v. States community in the bear bach, Cir., other factors 420 F.2d sentencing 9, 1969]; his life and lead the Peters [Dec. Judge (i) punishment, on to a balance fur 839. Without F.2d (iii) (ii) already lengthy deterrence and lengthening rehabilitation. ther opinion by setting out all evidence Windup supporting we view Government’s Having at- found each of the fifteen case, hold there is more than we wanting, tacks the conviction must stand. ample from could evidence forcibly find that either as Collins was Affirmed. saulted, intimidated, both.28 ON PETITION FOR REHEARING punch in the face a forcible assault AND PETITION RE- FOR supra). (see And contention No. HEARING BANC EN put this more in fear than Collins since being struck, PER CURIAM: it constituted forcible intimidation as well. Rehearing Petition denied panel and no member of this nor regular Court active service 15. Sentence having requested polled the Court be
Marcello’s rehearing (Rule last contention banc, en 35 Federal District Court not have Procedure; should utilized Appellate Rules Local imposing “brushes with 12) the law” sen Fifth Circuit Rule the Petition tence in this Rehearing case.29 En Banc denied. objections sufficiency against (see Marcello’s held area and Marcello 11, supra). of the evidence also involve the contention correct- No. charge ness Court’s defini- imposed years 29. The sentence was two “assault,” tions “intimidate” $5,000 and a years fine out of maximum 3 “forcibly”. already $5,000 We have fine. discussed notes reflects But the Trial what Judge pre- get felt filed and as then that motion as Marcello that could not and fair trial in continuance the Eastern covered both District of Loui sented inflammatory change siana.14 Before his final venue because determination question specific purpose reply simply forcibly publicity. to a In but ex pressed. an alterna- “Let his motion was me make it clear here as whether change grant change that I or will the motion for motion for continuance tive replied, venue, venue and leave all other counsel motions * * both, Leaving incorporated I but *." no doubt what his motion “The suggest change to the conclusion was and that a of ven at a loss would be me, ordered, Court, ask ue would if the be the Court and coun Court were changed sel then to.” discussed should be whether counsel where venue should districts, many, submit alternative how matter submitted The Government they and within what time should be sub argument. without mitted. more After discussion concern Judge it clear .that with then made The ing potential transferee districts with change of venue the motion both nary objection a sound of either from immediately he him before continuance counsel, grant or Marcello the Court on and rule take tack the wisest would change ed defendant’s motion for of ven portion had to he venue first since ue determined that all mo other “any contin- on it at some time rule including tions, the motion for continu * * * granted might be uance ance should be transferred. atmosphere depend upon local Although exposition of fact would particular district.” of that [transferee] lengthy enough seem to be to determine reasoning if he did rule was that His issues, one of the fifteen it is not. A changed, he should venue should be new wrinkle the form of Mr. Mar- (the contin- other half rule attorney cello’s enters chambers. portion) rather of the motion but uance more than Not ten minutes after coun- (along disposition with its should leave vigorously pressed sel’s motion so had Judge motions) other granted, appeared been he in the district. transferee Judge’s Judge chambers Heebe’s and to objection by or Marcello no There was “complete surprise” United States procedure. this course his counsel to Marcello, E.D.La., F.Supp. Judge plain It be could 512), requested just- of the withdrawal change going of venue to rule on entered for a order. The Court asked Again acquiescence there was first. memorandum, motion written objection. no—the word no— counsel filed in the form of a “Motion to doubly Directing Change en- This clear from the became Reconsider Order suing positively colloquy which made it taken sub- Venue” which was under present argument Septem- that on the basis oral evident all mission after overwhelming public- hearing, At it was evidence adverse ber “put Judge figured possibility emphasized that the article Life , getting finger fair would be And Defendant’s of Louisiana. on the State its change grant- greater quite if the of venue was sure that that reason I am First, people percentage and most read the ed for several reasons. who newspaper obviously, articles, articles were not with a fe- who read them extensively front-pagedly intensity, people circulated who live verish Louisiana, Concerning Louisiana. because this outside the State Life maybe people Magazine state; whereas, in— he realized the fact that article their well, was not mentioned? nationwide circulation and what state had they affecting prospective Wyoming? Perhaps possibility of its Montana? jurors everywhere quite in it. We as interested but concluded were not in, prejudicial magnified generally what we are interested effect would read Perhaps us closest at home.” an amateur but what reaches Louisiana. experience-trained psychologist-philosopher longer argued we “in of the fact that desired. view (see right, duty dealing under rules
Notes
notes able See key government complaining and wit Judge swpra. required Nor ness, sharply in issue. His con regard such a after determination might tention ex be somewhat better just so a matter of tactics all much cept Judge the fact that did by clever advocates resourceful in what suppress subpoena as to Jencks might heads-I-win-tails-you- well be a fact, Act20 material. In the Trial technique.18 lose than was even more liberal the Jencks judge A requires federal no sense a mere Act directed the Govern —in —he perform attorneys moderator —does not awe- ment Marcello’s allow “rights” allowing role peruse some to be the statements before his trial began moved like than, required chessmen. rather as is Act, after the witness had testified at