Petition for Writ of Certiorari — DiNorscio v. United States

Supreme Court brief1989

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Supreme Court, i$,

FILED

88.1664" we Dd ee

JOSEPH F, SPANIOM,

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

GIACOMO DiNORSCIO, Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

KIRK WOODBRIDGE MUNROE

Richey, Munroe & Fine, P.A.

200 South Biscayne Blvd.

3100 Southeast Financial Ctr.

Miami, Florida 33131

(305) 372-8808

Counsel of Record

QUESTIONS PRESENTED

oo In Batson v. Kentucky, this Court

established the evidentiary burden of a

defendant Claiming a denial of equal

protection through a prosecutor's use of

peremptory challenges to exclude members of

his race from the petit jury. The trial court

below denied petitioner's Batson claim for

discriminatory challenges against Italian-

Americans ruling that Batson is limited to

blacks and, alternatively, that petitioner

failed to establish a prima facie case under

Batson.

The questions presented are:

(a) Does the right to equal

protection under Batson extend to non-black

groups such as Italian-Americans?

(b) If so, does the Batson prima

facie case require an Italian-American

defendant to make an affirmative showing that

persons with Italian surnames (1) constitute

a group that has been singled out for

differential treatment, and (2) have been

disparately represented on juries in the

jurisdiction?

Surnames are seated as jurors, does the

requisite prima facie showing increase to one

of actual prejudice?

2. Whether The Bail Reform Act of 1984

precludes sentencing under 18 U.S.C. §3147 of

a person who was not advised at the time of

release of the penalties for committing an

offense while released on bail?

iii

LIST OF PARTIES

The parties to the proceedings in the

Court of Appeals for the Third Circuit were:

Giacomo DiNorscio

Vincent DiPasquale

Gerald Cohen

Gerald DeLuca

John Sinico

Anthony Truglia

United States of America

Petitioner believes that Vincent

DiPasquale, Gerald DeLuca and John Sinico have

no interest in the outcome of this Petition.

Gerald Cohen and Anthony Truglia have

filed a separate petition.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTE sc ccc cc es eseceesvsseeeae i

LiSs OF FRREAMO seh cee ee eden s eer eeeenesins iii

TAs GCE RPTL ELBO sc oc cctv cas da sac eeense vi

OPINIONS BRU 6c cc cc eee see cae sbr eter eannas 1

STATEMENT OF JURISDICTIONAL GROUNDS........ 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

PGs, +) ee ee Pee a rae ae eae eae ee a ee ae =

Semameueees UF THE CARR se osc vee eseesernnveusses 6

REASONS FOR GRANTING THE WRIT.....- cc cceee 14

i Batson: The decision

below highlights the need

for fuller standards on

the applicability of non-

black groups under Batson.

Lower courts are reaching

conflicting conclusions

via different standards.

The decision below adds to

the confusion in the area

and conflicts with the

principles announced by

this Court in

le re a ee a ee eee 14

pe §3147 Sentence: The

decision in the court of

appeals below created a

Girect conflict with two

other circuits. The

conflict involves an

important and common issue

- the notice requirement

under The Bail Reform Act

of 1984 as a precondition

to additional punishment

for the commission of a

Crime WhA1G OM DELL... cscccseves 33

ci yO 8 8s iar aaa eee eee arena ere 36

APPENDIX A - Opinion and Judgment of Court

OE AMMGOLG. os cc ccceseceas la

APPENDIX B - Bench Ruling by the District

6.) a eae eee 28a

APPENDIX C - Sentencing by the District

eg ee ee eee ee ee 39a

APPENDIX D

Judgment and Sentence by the

BASTESEGCe COUR Ge csc ec wecucs 43a

TABLE OF AUTHORITIES

Cases: Page

Barber v. Ponte

772 F.2d 982 (lst Cir. 1985) 26, 27, 28

Batson v. Kentucky

476 U.S. 79 (1986) : 2, 9, 10, 14-21,

oe ee ee * « 2 2 eee, eos ae

Castaneda v. Partida

Gs Uses Soe ti977) «x i. @h, O02 “20

Government of the Virgin Islands v.

Forte

865 F.2d 59 (3d Cir. 1989) ts gt Se-5 20

Hernandez v. Texas

oar Wems Gre taeee) « « & * 6 ss Zk, a

Regents of the University of

California v. Bakke

438 U.S. 265 (1978) . . . . « ..- 25

Snell v. Suffolk County

Olli F.Supp. 3241 (E.D.N.¥. 1985) .. 25

Swain v. Alabama

ae Usa meee CESOO)y « se sls is, 20, se

United States v. Alcantar

Gan Vee sara (wen Cit. 2987) « « 20

United States v. Angiulo

847 F.2d 956 (list Cir. 1988) ... 19

vii

United States v. Biaggi

673 F.Supp. 96 (E.D.N.Y. 1987)

» « « £48, 20-23, 25-27

United State v. Biaggi

853 F.2d 89 (2d Cir. 1988) ee oe ae a

United States v. Bucci

839 F.2d 825 (lst Cir. 1988) eo er ee ee

United States v. Chalan

812 F.2d 1302 (10th Cir. 1987) 20

United State v. Cooper

827 F.2d 991 (4th Cir. 1987) ; Wa 04 a eee ee

United States v. David

803 F.2d 1567 (11th Cir. 1986) ‘ 32

United States v. DiCaro

852 F.2d 259 (7th Cir. 1988) 34

United States v. DiPasquale

S664 f.20 474 (ae Git. i908) .. 1, 2, 20-13,

ee ae ee ee ae ee ae ae a a6. - 19, “29-32 ,::32

United States v. Gordon

817 F.2d 1538 (llth Cir. 1987) 32

United States v. Montgomery

819 F.2d 847 (8th Cir. 1987) 32

United States v. Saade

652 F.2d 1126 (lst Cir. 1981) . 24

United States v. Sink

851 F.2d 1120 (3d Cir. 1988) 34

United States v. Sgro

SiG Fi. 20 20 €ESt Cis. 1967) i: +. « 28,19, 26

viii

Village of Arlington Heights Vv.

Metropolitan Housing Corp.

429 U.S. 252 2c 2 a earn.

Weber v. Kaiser Aluminum &

Chemical Corp.

963 F.2d 216 (5th Cir. aertr? 3 | oe

Constitution:

Fifth Amendment ... 3, passim (14-33)

Sixth Amendment .... o « « « « £6=29

Statutes: de

s8 U.8.C. $2142. <... oe ee oe

18 U.S.C. §3147 2, 4, 6, 12, 23. 33-38

so 0.8.0, $3338 ou: tee ee ee ee

28 U.S.C. §1254 .... J ee ee ee

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

GIACOMO DiNORSCIO, Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner Giacomo DiNorscio respectfully

prays that a writ of certiorari issue to

review the judgment and opinion of the United

States Court of Appeals for the Third Circuit

entered in this case on December 23, 1988.

OPINIONS BELOW

The opinion of the court of appeals is

reported at United States v. DiPiasquale, 864

F.2d 271 and is reprinted in the appendix

hereto, p. la, infra.

The bench opinion of the United States

District Court of the District of New Jersey

(Barry, J.) which deals with the Batson issue

is reprinted in the appendix hereto, p. 28a,

infra. The relevant portion of the sentencing

is reprinted in the appendix hereto, p. 39a,

infra. The judgment and sentence is reprinted

in the appendix hereto, p. 43a, infra.

STATEMENT OF JURISDICTIONAL GROUNDS

The United States Court of Appeals for

the Third Circuit entered judgment on December

23; 2986. No petition for rehearing was

sought. On January 24, 1989, Justice Brennan

ordered that the time for filing this petition

for writ of certiorari be extended to and

including March 23, 1989. An additional

period of time was allowed until April 19,

1989 by letter from the Office of the Clerk of

the Supreme Court of the United States dated

March 24, 1989 (received March 29, 1989).

The jurisdiction of this Court to review

the judgment of the Third Circuit is invoked

under 28 U.S.C. §1254(1) and Rule 21, Rules of

the Supreme Court of the United States.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fifth Amendment to the Constitution

of the United States provides, in relevant

part: ;

[No person shall] be deprived of

life, liberty, or property, without

due process of the law; nor shall

private property be taken for public

use without just compensation.

18 U.S.C. 3147 - Penalty for an offense

committed while on release:

A person convicted of an offense

committed while released pursuant to this

chapter shall be sentenced, in addition

to the sentence prescribed for the

offense to -

(1) a term of imprisonment of not

less than two years and not more than ten

years if the offense is a felony; or

(2) a term of imprisonment of not

less than ninety days and not more than

one year if the offense is a misdemeanor.

A term of imprisonment imposed pursuant

to this section shall be consecutive to

any other sentence of imprisonment.

-S.C. 3142(h) - Contents of release order

In a release order issued pursuant

to the provisions of subsection (b) or

(c), the judicial officer shall -

(1) include a written statement

that sets forth all the conditions to

which the release is subject, ina manner

sufficiently clear and specific to serve

as a guide for the person's conduct; and

(2) advise the person of -

(A) the penalties for

violating a condition of release,

including the penalties for committing an

offense while on pretrial release;

(B) the consequences’ of

violating a condition of release,

including the immediate issuance of a

warrant for the person's arrest; and

1503 of this title (relating to

intimidation of witnesses, jurors, and

officers of the court), 1510 (relating to

obstruction of criminal investigations),

1512 (tampering with a witness, victim,

or an informant), and 1513 (retaliating

against a witness, victin, or an

informant).

STATEMENT OF THE CASE

Petitioner Giacomo DiNorscio was one of

eleven defendants accused in a six count

indictment with charges arising from a

conspiracy to distribute cocaine among several

states during the period between September,

1985 and June, 1986. The district court had

jurisdiction pursuant to 18 U.S.C. §3231. The

trial was in Newark, New Jersey and resulted

in the conviction of all defendants. The

trial court sentenced petitioner to a 25 year

prison term, a six year special parole term,

and a $5,000 fine. It also added a

consecutive five year term pursuant to 18

U.S.C. $3147.

Voir Dire

This case concerned allegations that

petitioner Giacomo DiNorscio together with

Manuel Monteiro, Gerald DeLuca, Thomas Marino,

John Sinico, Frank Suppa, Vincent DiPasquale,

Anthony Truglia, Gerald Cohen, Robert Fisher

and Dick Pearson committed crimes in southern

Florida and northern New Jersey.*

The trial took place in northern New

Jersey. <

The trial court included two questions in

its voir dire designed to ferret out prejudice

against Italian-Americans: "If you have any

business or social contact with Italian-

Americans, would such contact influence you

After the first week, the trial

proceeded with only one non-Italian-American

defendant, Cohen. Fisher agreed to be a

government witness before trial and pled

guilty on the fourth day of trial. Pearson

left the trial at the end of the first week by

pleading guilty.

either favorably or unfavorably against any

Italian-American defendant?” "Is there

anything about Italian-Americans which would

cause you to hesitate to serve as a juror in

this case?" These questions were asked to

every potential juror.

During the selection of the petit jury

the prosecution exercised eight peremptory

challenges, five against Italian surnamed

people: Carl Stiso, Donna Ferrante, Anthony

Bitanso, Anthony Liosi, and Anthony Oranco.

Immediately after the government's challenge

of Mr. Oranco, defense counsel raised the

issue that there was a pattern of

discrimination against Italian-Americans in

the jury selection process and requested that

the government be instructed to cease such

discrimination. The prosecutor responded by

giving reasons for his challenge of Mr. Oranco.

and stating that he was unaware of whether the

other jurors challenged were Italian-

Americans. Later that day, defense counsel

cited the case of Batson v. Kentucky and

requested the government's explanation for

striking the other Italian-American jurors.

The following morning the court stated that it

had read the Batson decision and because

counsel was pressing the application the court

would read its opinion into the record during

a recess. The next day, the court read its

ruling into the record, denying the

application. See p. 28a, infra.

In her order denying the application, the

trial court started from the premise that

Batson was limited to blacks and denied the

application on the basis that petitioner was

challenging the government's peremptory

strikes of Italian-Americans. The court then

set forth an alternate holding: even if Batson

applied to Italian-Americans, at least one

Italian-American was on the jury, the defense

struck two i{italian-Americans, and two of the

government's peremptory strikes stood out in

the court's mind and were justified. The

trial court did not directly consider whether

Italian-Americans were a cognizable group.

She did however state a difficulty in

determining Italian-American ancestry based

strictly on the use of surnames.

On appeal to the Third Circuit,

petitioner argued that the prosecutor's use of

peremptory challenges violated his right to

equal protection as set forth in Batson v.

Kentucky, 476 U.S. 79 (1986). United States

v. DiPasquale, 864 F.2d 271, 275-77 (3d Cir.

1988). The appellate court affirmed the trial

court. It found no reversible error in

denying a Batson hearing. Id. at 276. In

doing so, the Third Circuit declined to decide

whether Batson applied to other ethnic or

racial groups. Id. 276-77. Rather, the

appellate court assumed it did and focused on

whether petitioner satisfied his burden to

establish that Italian-Americans were a

cognizable racial group. Id. at 277. The

Third Circuit identified the requisite showing

of cognizability as follows: "under Batson,

DiNorscio wae required to show that persons

with Italian surnames...constitute a group

that has been singled out for differential

treatment and has been disparately represented

on juries in New Jersey." Id. (emphasis

supplied). The court found no such proof.

Specifically, the appellate court underscored:

"He has not made a showing that this group has

been systematically excluded from jury service

in New Jersey..." Id. In addition, the Third

Circuit found most significant that there was

no demonstration of actual prejudice since the

jury, as seated, included two jurors with

Italian surnames. Id.

Sentencing

At sentencing, the trial court imposed a

five year consecutive prison term pursuant to

18 U.S.C. §3147. Petitioner was not indicted,

tried nor convicted of a §3147 offense.

Further, he was not notified by the court or

the government prior to the day of sentencing

that the government sought, or that the court

was considering, imposition cf a _ sentence

under §3147. Defense counsel immediately

objected to the .sentence as illegal and,

pursuant to the direction of the court, filed

a motion to vacate the sentence. The day

after this motion was filed, petitioner filed

his notice of appeal. The motion was never

ruled upon.

On appeal, petitioner raised two §3147

issues: (1) the section establishes a

separate criminal offense, and (2) petitioner

received inadequate notice that he was subject

to a penalty under §3147.* DiPasquale, 864

F.2d at 279-81.

The court of appeals below affirmed the

sentence holding that the satisfaction of the

notice provisions of §3142(h) is not a

precondition to a sentence pursuant to §3147.

Id. at 280-81. In reaching this result, the

Third Circuit specifically discussed _ and

rejected the opposite conclusion of the Fourth

Circuit in United States v. Cooper, 827 F.2d

991 (4th Cir. 1987). Id.

In the face of a government challenge

of the propriety of petitioner's appeal on

this issue due to a éeclaimed lack of

preservation at the trial level, the Third

Circuit found the appeal proper. DiPasquale,

864 F.2d at 279 n.12.

REASONS FOR GRANTING PETITION

Batson

The decision below highlights the

need for fuller standards on the

applicability of non-black groups

under Batson. Lower courts are

reaching conflicting conclusions via

different standards. The decision

below adds to the confusion in the

area and conflicts with the

principles announced by this Court

in Batson.

It is self-evident that America consists

of numerous ethnic and racial groups; we are

a melting pot where many of the newer

ingredients are largely unmelted.

Discrimination against many of these groups

also is a hard fact of life and history in

this land. It is in this context that

petitioner urges this Court to settle the

growing sea of confusion in the identification

of cognizable groups under Batson v. Kentucky,

475 U.S. 79 (1986). Trial courts, both state

and federal, badly need the guidance of this

Court. A clear delineation cof standards in

determining the applicability of Batson to the

numerous ethnic and racial groups across this

country would greatly facilitate the

administration of criminal justice in the

United States.

To compound the situation, the court of

appeals below pronounced standards which

directly conflict with the principles

announced by this Court in Batson. The

analysis is simply wrong. Worse, it

effectively limits Batson in the Third Circuit

to blacks by imposing standards even harsher

than those in the decision overturned in

Batson, Swain v. Alabama, 380 U.S. 202 (1965).

Almost three years ago, this Court in

Batson articulated three elements necessary

for a criminal defendant to establish a prima

facie case for tne denial of equal protection

by the discriminatory use of peremptory

challenges during jury selection. Perhaps the

most troubling and growing area of litigation

following Batson centers on the identification

and proof of a cognizable racial group. Does

Batson apply to non-black ethnic groups such

as Italian-Americans? If so, what proof is

necessary to establish the cognizability of

the group, the defendant's membership in the

group, and the venireman's membership in the

group? What is the standard to determine

cognizability and membership during the jury

selection process?

The circuits, but not the district

courts, have sidestepped the applicability of

Batson to non-black groups by generally

assuming applicability. The First Circuit and

now, in this case, the Third Circuit have

erected impressive standards of proof to

establish the cognizability of non-black

groups. This is contrary to the reasoning and

holding of Batson. The Third Circuit now

requires a defendant to show that the claimed

group has been disparately represented on

juries in the jurisdiction.

Moreover, the Third and the Eleventh

Circuits are now in conflict on another aspect

of the Batson prima facie case. The Third

requires a demonstration of actual prejudice

once a member of one's group is seated. The

Eleventh, on the other hand, finds an equal

protection violation for the improper striking

of a single juror regardless of the seating of

others of the same group.

Cognizability of

Italian-Americans in New Jersey

The trial court held that Batson applied

only to blacks. The Third Circuit declined to

consider the correctness of that ruling and

instead focused on whether Italian-Americans

were a cognizable group for Batson purposes.

The question of cognizability of Italian-

Americans as a group for a Batson claim has

now been decided in three circuits with

different results. Compare United States v.

DiPasquale, 864 F.2d 271, 275-77 (3d Cir.

1988) and United States v. Sgro, 816 F.2d 30,

32-33 (lst Cir. 1987), cert. denied, 108 S.Ct.

1021 (1988) with United States v. Biaggi, 673

F.Supp. 96, 99-103 (E.D.N.¥. 1987), aff'd, 853

F.2d 89, 95-96 (2d Cir. 1988), cert. denied,

109 S.Ct. 1312 (1989).

The circuits affirming findings of no

Batson cognizability for Italian-Americans

have required defendants to satisfy up to four

evidentiary tests during voir dire: 1) that

Italian-Americans have been or are subjected

to discriminatory treatment outside of the

jury selection process;?* 2) that Italian-

Americans meet the cultural cohesion standards

for class cognizability under the Sixth

Amendment;* 3) that there is a meaningful

relationship between surnames and ethnicity;°

and 4) that Italian-Americans must have been

systematically excluded from jury service in

the district.°®

In sharp contrast, Batson cognizability

has been accepted, without the introduction of

3 United States v. DiPasquale, 864 F.2d

at 277; United States v. Angiulo, 847 F.2d

956, 984 (lst Cir.), cert. denied, 109 S.Ct.

138 (1988); United States v. Bucci, 839 F.2d

S25, G33 tist Cir.), cert. Geniea, i093 $.Cct.

117 (1988).

4 DiPasquale 864 F.2d at 277; United

States v. Sgro, 816 F.2d 30, 33 (lst Cir.

1987), cert. denied, 108 S.Ct. 1021 (1988).

> DiPasquale, 864 F.2d at 277; Bucci, 839

F.2d at 832; Sgro, 816 F.2d at 33.

€ pDiPasquale, 864 F.2d at 277.

evidence, as to Italian-Americans,’ Hispanics,°®

Native Americans’ and whites in the Virgin

Islands.*°

The area is badly in need of the Court's

guidance.

To raise a Batson claim, a defendant

"must show that he is a member of a cognizable

racial group..." Batson, 476 U.S. at 96.

This Court identified Castaneda v. Partida,

430 U.S. 482 (1977), as the case to which

litigants should look for guidance on

’? united States v. Biaggi, 673 F.Supp. 96

(E.D.N.¥. 1987), @£2'°@, Goa Ficae Se tae Cif.

1988), cert. denied, 109 S.Ct. 1312 (1989).

6 united States v. Alcantar, 832 F.2d

1175 (9th. Cae. Bere

7 United States v. Chalan, 812 F.2d 1302

(10th Cir. 1987), cert. pending (petition

filed August 8, 1988).

10 Government of the Virgin Islands v.

Forte, 865 F.2d 59 (3d Cir. (V.I.) 1989).

determining cognizability. Id. In Castaneda,

this Court relied on Hernandez v. Texas, 347

U.S. 475, 479 (1954), which held that Mexican-

Americans are an identifiable class. In

Hernandez, the Court rejected the notion that

only two "racial" groups, white and black, are

deserving of equal protection. Instead, the

Court concluded "(t]he exclusion of otherwise

eligible persons from jury service solely

because of their ancestry or national origin

is discrimination prohibited by the Fourteenth

Amendment." Hernandez, 347 U.S. at 479.

The same analysis can be made of Italian-

Americans. The shared ancestry of Italian-

Americans is easily identifiable in their

Italian surnames, just as Mexican ancestry was

found by this Court to be readily apparent

from surnames alone. Biaggi, 673 F.Supp. at

102, citing Castaneda, 430 U.S. at 495.

In Hernandez, the Court found Mexican-

Americans to be a distinct class in part

because the "attitude of the community" was to

distinguish them from whites in general. 347

U.S. at 479, 74 S.Ct. at 671. Similarly, the

trial court in this case repeatedly asked two

voir dire questions which clearly demonstrated

a perception Italian-Americans were

identifiable and distinguishable from the

community at large.

A defendant claiming to be a member of a

cognizable group such as Italian-Americans

must demonstrate a relationship between

Surnames and ethnicity. However, the issue of

what type of showing is necessary has drawn

two very different conclusions. The First and

Third Circuits have required that a defendant

present evidence demonstrating the link

between surnames and ethnicity. The district

court in Biaggi took judicial notice of the

cognizability of Italian-Americans and of

their commonly identifiable names. Biaggi,

673 F.Supp. at 100-101. More significantly,

this Court took judicial notice that Spanish

surnames are easily identifiable and did not

require any evidence to show that the

individuals excluded from service on the grand

jury were in fact Mexican-American when it

appeared from their names that they were

Mexican-American. Castaneda v. Partida, 430

U.S. at 494-95.

Judicial notice is appropriate for a

cognizability determination because of the

timing of this issue at trial. When a grand

jury challenge is contemplated based on a

repeated history of statistical

underrepresentation, the discrimination is

known to the defense in advance of trial.

However, in a peremptory challenge situation

the defense only sees evidence of governmental

discrimination during voir dire. To require

the defense to prepare for a possible Batson

challenge on the basis of ethnic ancestry in

advance of trial, by gathering experts and

census reports, would require the defense to

always assume that the government will act in

bad faith and discriminate against Italian-

Americans through the use of its peremptory

challenges. Courts presume that the

government acts in good faith. United States

v. Saade, 652 F.2d 1126, 1135 (lst Cir. 1981)

(selective prosecution claim). Citizens in

this county should be able to assume their

government will act lawfully and in good

faith.

If this Court concludes that some history

of discrimination must be demonstrated by

defendant as part of the proof of a cognizable

racial group under Batson, it can be found

with respect to Italian-Americans by judicial

notice as easily as can the relationship

between surnames and Italian-American

ethnicity. The district court in Biaggi took

judicial notice that Italians have been the

subject of stereotyping, invidious ethnic

humor and discrimination.’+ See also Batson,

476 U.S. at 104 n.3 (Marshall, J., concurring)

(noting a jury selection treatise circulated

in a prosecutor's office which instructed:

1+ Biaggi, 673 F.Supp. at 101. The

district court in Biaggi then cited the

following authority: "See Snell v. Suffolk

County, 611 F.Supp. 521 (E.D.N.Y. 1985),

aff'd, 782 F.2d 1094 (2d Cir. 1986). See also

Regents of the University of California v.

Bakke, 438 U.S. 265, 292 & n. 32...(1978)

(Opinion of the Court per Powell, ga)

(""...Italians...continue to be excluded from

executive, middle management, and other job

levels because of discrimination based on

their religion and/or national origin.’ 41

C.F.R. §60-50.1(b)(1977)"); Weber v. Kaiser

Aluminum & Chemical Corp., 563 F.2d 216, 235

(Sth Cir. 1977) (Wisdom, J., dissenting)

(noting that "Americans of Irish, Italian,

Jewish [and] German extraction" have been

subjected to "undoubted past societal

discrimination")." Id.

"Do not take Jews, Negroes, Dagos, Mexicans or

a member of any minority race on a jury, no

matter how rich or how well educated." )

The Third Circuit below, relying on

United States v. Sgro, supra, ignored this

Court's repeated references in Batson to

Castaneda v. Partida and adopted a Sixth

Amendment cognizability test found in Barber

v. Ponte, 772 F.2d 982, 997 (lst Cir. 1985)

(en banc), cert. denied, 475 U.S. 1050 (1986).

Borrowing the Sixth Amendment criteria is

suspect, however, because this Court "quite

clearly commanded that Castaneda govern its

own use of the term ‘cognizable racial

group.'" Biaggi, 673 F.Supp. at 100 (citation

omitted).

These Sixth Amendment standards are

inapplicable because discrimination in the

composition of the venire may be demonstrated

by mere statistical underrepresentation of the

subject group, whereas violations of the equal

protection clause by discrimination in the use

of peremptory challenges require a showing of

discriminatory purpose. Id. "Because the

guarantee against Giscrimination through

peremptory challenges requires a showing of

purpose, ‘cognizable recial groups' may be

defined less rigidly, for it is precisely the

evidence of intentional exclusion of the group

that helps to identify the group." Id.**

12 The distinction between the necessity

of showing discriminatory purnose and the use

of statistical underrepresentation to show

discrimination was also discussed in Barber v.

Ponte, 772 F.2d at 999-1000: "That is not to

say, however, that if a classification were

specifically and systematically excluded from

jury duty the same standard would be used as

here, where defendant simply relies on a

statistically [sic] disparity in the venires

to challenge its constitutionality. If

certain people are specifically and

systematically excluded from jury duty, then

the jury-administrating authority would have

created its own group." Id. (emphasis in

original).

octal

The use by the Third Circuit of the Sixth

Amendment criteria moves from suspect to

plainly wrong when the rationale for the fair

cross section requirement is compared to the

Batson rationale. The goal of the fair cross

section requirement is to accommodate the

attitudes, values, ideas and experience of the

eligible citizens that compose the community

where the case is tried. Barber v. Ponte, 772

F.2d at 997. Under the fair cross section

analysis, a group must be distinctive in terms

of common attitudes and experience. Id.

Otherwise, its absence from the jury would not

show the application of community values.

Indeed, it is so important that distinctive

group views be represented in the composition

of the jury that any defendant, even one not

a member of the absent or underrepresented

group, may raise a Sixth Amendment claim.

Conversely, to raise a Batson claim the

defendant must be of the same race as the

jurors peremptorily struck by the government.

Batson, 476 U.S. at 96. Under Batson, the

focus is on the government's use of peremptory

challenges to discriminate against members of

the defendant's racial or ethnic’ group.

Batson seeks to end the use of a presumption

that a juror will be biased in favor of a

defendant of his own racial or ethnic group.

Batson's cognizable group analysis, based as

it is on purposeful discrimination, shares

nothing with the basis for and selection of a

distinctive group under fair cross’ section

analysis.

To exacerbate the situation, the Third

Circuit below reads a suggested method of

proving discrimination as mandatory for Batson

purposes. The word "may" is transformed into

"must." DiPasquale, 864 F.2d at 277. In the

Third Circuit, to establish the cognizability

of a non-black group, therefore, a defendant

must establish that the group "has_ been

systematically excluded from jury service" in

the jurisdiction. Id.

Like the crippling burden of proof

imposed by Swain, if this remains the standard

for determination of cognizability of groups

under Batson, discriminatory challenges of

members of these non-black groups will be

largely immune from constitutional scrutiny.

Actual prejudice

After the below decision, the circuits

are in conflict is whether it is possible to

make a prima facie showing of discrimination

under Batson if members of the cognizable

group serve as jurors. Both the trial court

and the circuit court in this case placed

emphasis on the fact that the prosecution did

not strike every Italian-American on the

panel. As stated below, "[p]Jerhaps most

significantly, [petitioner] does not

demonstrate the actual prejudice to him in the

constitution of his jury, which included two

jurors who have Italian surnames."

DiPasquale, 864 F.2d at 277 (emphasis in

original).

The mere existence of two jurors from the

defendant's cognizable group on the jury

cannot insulate the government's

discriminatory use of peremptory challenges.

This Court stated clearly that a_ single

invidiously discriminatory governmental act is

not immunized by the absence of such

Giscrimination in the making of other

comparable decisions. Batson, 476 U.S. at 95

citing Village of Arlington Heights v.

Metropolitan Housing Corp., 429 U.S. 252, 266

n.14 (1977). Indeed, the holding of Batson is

an elimination of the pattern requirement of

Swain v. Alabama.

As correctly held by the Eleventh

Circuit: "(T]he striking of a single black

juror for a racial reason violates the Equal

Protection Clause, even where other black

jurors are seated and when there are valid

reasons for the striking of some _ black

jurors." United States v. Gordon, 817 F.2d

1538, 1541 (11th Cir. 1987), vacated in part

on other grounds, 836 F.2d 1312 (llth Cir.),

cert. dismissed, 109 S.Ct. 28 (1988); United

States v. David, 803 F.2d 1567, 1571 (11th

Cir. 1986). Cf. United States v. Montgomery,

819 F.2d 847, 851 (8th Cir. 1987) (existence

of blacks on jury precludes an inference of

discrimination when prosecutor had remaining

challenges).

The importance of the meaning and

operation of Batson is national in scope. The

decision below adds to the confusion in the

area and conflicts with the principles

announced by this Court in Batson. The area

needs the authoritative voice of this Court.

§3147 Sentence

The decision in the court of appeals

below created a direct conflict with

two other circuits. The conflict

involves an important and common

issue - the notice requirement under

The Bail Reform Act of 1984 as a

precondition to additional

punishment for the commission of a

crime while on bail.

The decision below created a direct

conflict in the circuits. The Third Circuit

now holds that The Bail Reform Act of 1984

does not require notice at the time of a

defendant's reiease that he is subject to an

additional, mandatory prison term for any

offense committed while on release as a

precondition to a §3147 sentence. DiPasquale,

864 F.2d at 280-281.

The Fourth and the Seventh Circuits hold

directly the opposite. United States v.

Cooper, 827 F.2d 991, 994 (4th Cir. 1987)

("Congress did not intend §3147 to apply when

the notice requirements of §3142 were not

fulfilled."); United States v. DiCaro, 852

F.2d 259, 264-65 (7th Cir. 1988) ("We agree

with the Fourth Circuit's decision in United

States v. Cooper...that The Bail Reform Act

itself precludes the sentencing under §3147 of

a person who was not advised at the time of

release of the penalties for committing an

offense while released on_ bond.") In

addition, two judges of the Eighth Circuit

also have written in support of the Cooper

decision. United States v. Sink, 851 F.2d

1120, 1122 (8th Cir. 1988), cert. denied, 109

S.Ct. 800 (1989) (Heaney, J., concurring,

joined by Lay, C.J.) ("[F]Jor the penalty to be

imposed, it must...be shown that before the

Sa ll i aes A BE: ‘

eer? Te pase

defendant was released, he...had actual notice

of the penalty provision of section 3147.")

The federal trial courts across this

nation conduct bail hearings and release

defendants daily. An unfortunate percentage

of those released commit additional offenses

while on bail. Congress passed The Bail

Reform Act of 1984, in part, to provide

additional prison penalties for those people

who commit crimes while released on bail. Now

there is confusion over the release notice

provision which directly impacts on the

applicability of the punishment provision.

Two circuits have ruled one way. A third now

has ruled the other. The circuits disagree

over the statutory construction of this

important provision of The Bail Reform Act of

1984. This Court's review is essential to

resolve this conflict regarding the proper

construction of a widely used Congressional

See

CONCLUSION

The decision below adds to the confusion

concerning the applicability of non-black

groups under Batson and conflicts with this

Court's principles in Batson. The decision

below also creates a direct conflict with

other circuits concerning the proper

construction of important provisions of The

Bail Reform Act of 1984. For these reasons,

this petition for certiorari should be

granted.

Respectfully submitted,

RICHEY, MUNROE & FINE, P.A.

Counsel for Petitioner

200 South Biscayne Boulevard

3100 Southeast Financial Cntr

Miami, Florida 33131

(305) 372-8808

by: #

Kirk Woodbridge Munroe

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 86-5810, 86-5835, 86-5836, 86-5841

86-5875, 86-5886, 87-5284, 87-5285,

87-5286, 87-5288 & 87-5317

UNITED STATES OF AMERICA

VINCENT DI PASQUALE,

Appellant in 86-5810

UNITED STATES OF AMERICA

Vv.

DI NORSCIO, GIACOMO,

Appellant in 86-5835 & 87-5284

UNITED STATES OF AMERICA

Vv.

COHEN, GERALD,

Appellant in 86-5841 & 87-5285

UNITED STATES OF AMERICA

Vv.

DELUCA, GERALD,

Appellant in 86-5836 & 87-5256

UNITED STATES OF AMERICA

Vv.

SINICO, JOHN,

Appellant in 86-5875 & 87-5288

UNITED STATES OF AMERICA

Vv.

TRUGLIA, ANTHONY,

Appellant in 86-5886 & 87-5317

On Appeal from the United States District Court

for the District of New Jersey - Newark

(D.C. Criminal Nos. 86-223-9, 86-223-01, 86-223-02,

86-223-05, 86-223, 86-223-10)

Argued January 11, 1988

Before: HIGGINBOTHAM and BECKER, Circuit

Judges, 2

and SHAPIRO, District Judge.*

(Filed December 23, 1988)

JOHN A. MOORE, ESQ.

Moore & Kealy

574 Newark Avenue

Jersey City, N.J. 07306

Attorney for Appellant in 86-5810

KIRK W. MUNROE, ESQ. (ARGUED)

Richey & Munroe, P.A.

3100 Southeast Financial Center

300 South Biscayne Boulevard

Miami, FL 33131-2327

Attorney for Appellant in 87-5284

* Honorable Norma L. Shapiro. United States District Judge for the

Eastern District of Pennsylvania. sitting by designation.

THOMAS R. ASHLEY, ESQ. (ARGUED)

Ashley and Charles

24 Commerce Street

Newark, N.J. 07102

Attorney for Appellant in 86-5841 & 87-5285

THOMAS CAMMARATA, ESQ. (ARGUED)

850 Bergen Avenue

Jersey City, N.J. 07306

Attorney for Appellant in 86-5836 & 87-5286

ANDREW K. RUOTOLO, ESQ. (ARGUED)

DiRienzo & Ruotolo, P.A.

116 Saint Paul Street

Westfield, N.J. 07090

Attorney for Appellant in 86-5875 & 87-5288

GARRY J. FURNARI, ESQ. (ARGUED)

Law Office of Garry J. Furnari

596 Franklin Avenue

Nutley, N.J. 07110

Attorney for Appellant in 86-5886 & 87-5317

EDNA BALL AXELROD, ESQ. (ARGUED)

Chief, Appeals Division

United States Attorney's Office

970 Broad Street

Newark, N.J. 07102

Attorney for Appellee

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, JR.., Circuit Judge.

These consolidated appeals are brought by six

co-defendants from judgments of conviction and

——————

sentence on charges arising from a conspiracy to

distribute narcotics. Appellants Giacomo Di Norscio,_

Gerald Cohen, Gerald Deluca, John Sinico, Anthony

Truglia and Vincent Di Pasquale, assert several and

various contentions of error in the district court's

conduct of their trial and imposition of sentence. They

assert, inter alia, that the district court erred by

refusing to grant a motion for an evidentiary hearing to

determine whether the government had impermissibly

utilized its peremptory challenges during voir dire to

exclude a cognizable ethnic group: that the district

court erred by refusing to grant a motion for recusal;

that the district court erred by its imposition of an

enhanced sentence pursuant to the federal statute that

provides for increased penalties for persons convicted

of an offense committed while on bail for a separate

offense: and finally, that the district court erred by

refusing to dismiss the indictment because the

charging grand jury did not fairly represent a

cross-section of the community.' We find each of these

1. Appellants seek relief from their convictions on a host of other

grounds as well. On the claim of ineffective assistance of counsel

raised by Sinico. we will adhere to this Court's prior holdings that

such claims are not properly interposed on direct appeal. but

should be raised in appropriate collateral proceedings. See. e.g..

United States v. Gambino, 788 F.2d 938 (3d Cir.). cert. denied, __

U.S. —_. 107 S.Ct. 98 (1986).

Appellants contend that the verdict was affected by juror

taint. that the district court erred by failing to grant a motion for

severance and by improperly denying the request for a jury charges

regarding the alleged existence of multiple conspiracies. that the

government's closing summation unfairly prejudiced the jury and

that the verdict was contrary to the weight of the evidence. Di

Norscio claims that the district court erred by refusing to dismiss

the indictment against him for prosecutorial misconduct and that

his prosecution violated his double jeopardy rights. He and DeLuca

allege that the district court improperly denied them the

opportunity to present a complete defense by erroneously excluding

evidence. restricting cross-examination and limiting their opening

contentions without merit and, accordingly, we will

affirm the district court's judgments of conviction and

sentence.”

Background

Appellants were charged. in a six-count indictment

returned in June 1986, with participation in a

conspiracy to distribute cocaine between several states

during the period between September 1985 and June

1986. Specifically, the indictment alleged that the

appellants. together with five co- -defendants’,

conspired to distribute cocaine from a base in Florida

to New Jersey and several other states; possessed and

and closing arguments to the jury. DeLuca and Di Pasquale

contend that the district court considered improper factors in its

determination of sentence and Di Pasquale contends that his

prosecution was improper because it violated the government's

“Petite” policy of not prosecuting persons who have previously been

prosecuted in a state proceeding for the same acts that are the basis

of the federal prosecution. Truglia contends that the district court

erred by denying his request for a jury instruction that one of the

criminal acts charged to him was an independent act not in

furtherance of the charged conspiracy and by denying his motion

for a judgment of acquittal. We have evaluated all of these claims

and find them to be plainly without merit and not warranting

discussion.

2. Pursuant to Fed. R App. P. 28(i), each appellant has adopted

arguments raised by other appellants to the extent that those

arguments apply to him. For convenience and clarity. our

discussion of the appellants’ contentions makes reference only to

one of the named appellants. We have. however. considered the

merit of each argument to each appellant whose conviction and

sentence is implicated and. in that light. we reach our decision to

affirm.

3. These individuals: Frank Suppa. Manuel Monteiro. Thomas

Marino. Dick Pearson and Robert Fisher each pleaded guilty to the

charges prior to the commencement of the trial.

aided and abetted the possession of cocaine with the

intent to distribute it; and that, in pursuit of the

conspiracy, two of the appellants -- Di Norscio and

Cohen -- engaged in a continuing criminal enterprise

as the principal administrators and organizers of the

illicit conspiracy. The principal evidence of the

conspiracy was presented through the testimony of

three witnesses: William Hawley, Gregory Hamilton,

and Robert Fisher, each of whom observed and

participated in some aspects of the illegal

transactions.‘

The trial of these charges commenced in

September 1986 and resulted in the conviction of each

appellant for participation in the conspiracy and for

possession with the intent to distribute cocaine in

4. Hawley. (who changed his name to “Jay Richmond”). testified

that he was a regular occupant at Di Norscio’s home in Florida and

at Truglia’s home in Florida from September through December,

1985. During that time he witnessed cocaine transactions three or

four times a week at either Truglia’s home or at Di Norscio’s home

and observed DeLuca and Sinico working for Di Norscio and

Truglia as “runners” who picked up crugs in Florida for delivery to

New Jersey, New York. Rhode Island and Tennessee. Hawley also

testified that he was often with Di Norscio and Truglia while they

counted the proceeds from these drug transactions. See Joint

Appendix to the Briefs of Defendants-Appellants (“Appellants

App.”) at 207-09.

Hamilton testified that he purchased cocaine on a

regular basis from Di Norscio and Cohen. Hamilton had been

arrested in Tennessee for the sale of cocaine to undercover drug

enforcement agents. He testified that the cocaine in his possession

in Tennessee at the time of his arrest was part of a shipment that

he had received from DiPasquale who had delivered it to him on

behalf of Di Norscio from Florida. See Appellants’ App. at 1439-41.

Fisher. who was indicted with the appellants. testified

that he too regularly purchased cocaine from Di Norscio and

Cohen. He testified that he delivered cocaine payments to DeLuca

in New Jersey. and to Di Norscio and Cohen in Florida. He also

testified that he had received cocaine from Di Norscio and Cohen

for distribution in Rhode Island. See Appellants’ App. at 1067-71,

1168-70.

violation of 21 U.S.C. § 846 (1982).* Additionally, the

jury found Di Norscio and Cohen guilty of the

continuing criminal enterprise charge, which involved

felony violations of subchapters I and II of the

Comprehensive Drug Abuse Prevention and Control

Act of 1970, 21 U.S.C. § 848 (Supp. IV 1986)*, and

5. Under § 846, it is unlawfu! for “(a)ny person [to! attempt{] or

conspire] to commit any offense defined in this subchapter.” 21

U.S.C. 8 846 (1982). °

Each of the defendants except Di Pasquale was tried by a

jury on these counts and convicted pursuant to the jury's verdicts.

Di Pasquale entered a plea of guilty to the offenses with which he

was charged.

6. Section 848(b) provides, in pertinent part, that

[ainy person who engages in a continuing criminal

enterprise [CCE}.shall be imprisoned for life and fined

wee i

(1) such person is the principal administrator.

crganizer. or leader of the enterprise or is one of

several such principal administrators, organizers.

or leadersj,]

21 U.S.C. § 848(b)(Supp. IV 1986). and the enterprise involves a

quantity of drugs or sum of money that exceeds a delineated

amount.

Section 848(d) states that

[a] person is involved in a CCE if:

(1) he for she] violates any [felony} provision of this

subchapter or subchapter II of this chapter. . . and

(2) such violation is a part of a continuing series of

violations of this subchapter or subchapter II of this

chapter -

(A) ... undertaken by such person in concert

with five or more other persons with respect to

whom such person occupies a position of

organizer, a supervisory position. or any other

position of management, and

found Di Norscio and De Luca guilty of possession with

the intent to distribute a controlled substance in

violation of 21 U.S.C. § 841(a)(1)(1982).”

Pursuant to these verdicts, the district court

sentenced Di Norscio to two concurrent twenty-five

year prison terms, a six year special parole term, and a

$5,000 fine. It also imposed a consecutive five year

term pursuant to 18 U.S.C. 83147 (Supp. IV

1986)("8 3147").® The district court sentenced Cohen

to a twenty-five year prison term and:to a consecutive

five year term under § 3147. DeLuca was sentenced to

concurrent terms of seventeen and ten years and to a

three year special parole term. He was also sentenced to

a consecutive term, under § 3147, of three years. The

district court sentenced Sinico to a seven year prison

term, Truglia to a ten year prison term and DiPasquale

to a fifteen year prison term, to be served concurrently

(B) from which such person obtains substantial

income or resources.

21 U.S.C. 8 848(d)(Supp. IV 1986).

7. Section 841(a)(1) makes it unlawful:

to manufacture, distribute, or dispense. or possess with

intent to manufacture, distribute. or dispense, a

controlled substance.

21 U.S.C. § 841(a}(1)(1982).

8. Section 3147 provides that

[a] person convicted of an offense committed while

released under this chapter shall be sentenced, in

addition to the sentence prescribed for the offense to -

(1) a term of imprisonment of not less than two years

and not more than ten years if the offense is a felony

18 U.S.C. § 3147 (Supp. [IV 1986). The statute further provides that

the “term-of imprisonment imposed under this section shall be

consecutive to any other sentence of imprisonment.” Id.

nite et ses

with a term that he was serving as the result of a prior

conviction.

Following the entry of judgments of convictions

and sentences, the appellants timely filed notices of

appeal alleging error in the conduct of their trial. They

assert: (1) that the government improperly exercised

its peremptory challenges to exclude Italian-Americans

from the petit jury in violation of Batson v. Kentucky,

476 U.S. 79 (1986); (2) that the district court erred by

failing to grant a motion for recusal pursuant to 28

U.S.C. § 455(a), (b)(1). and (b)(3)(1982); (3) that the

district court improperly enhanced their sentences

under § 3147; and (4) that the grand jury selection

process systematically excluded Blacks.

Hispanic-Americans and persons with less than high

school educations,'‘in violation of the sixth and

fourteenth amendments and the Jury Selection and

Service Act of 1968, (“Jury Selection Act”), 28 U.S.C.

§ 1861 et seq. (1982). We have reviewed these

contentions and find none of them sufficient to

warrant intrusion upon the judgments of the district

court. We will, therefore, affirm.

II.

Exclusion of Italian-Americans From the Petit Jury

Di Norscio contends that, during the selection of

the jury. the government exercised five peremptory

challenges against venire persons with Italian

Surnames for the purpose of excluding

Italian-Americans from the jury. Di Norscio argues that

the government's use of peremptory challenges in that

manner violated his right to equal protection, as set

forth in Batson v. Kentucky, 476 U.S. 79 (1986). Di

Norscio moved for a hearing under Batson to require

the government to put forward a “neutral explanation.”

id. at 97, for challenging the jurors and the district

court reserved judgment on the motion pending the

10a

completion of the voir dire. The jury selection process

was completed resulting in the selection of two jurors

who had Italian surnames.

Immediately following the jury selection, the

district court denied Di Norscio’s application for a

Batson hearing. It concluded that the Batson rule is

explicitly limited to racial discrimination against

blacks and, thus, did not extend to Italian-Americans.

United States v. Di Norscio, et al., No. 86-223, Trans.

of Proceedings (Opinion) at 271 (D.N.J. Sept. 11,

1986), reprinted in Appellants’ App. at 271.

Significantly, however, it found regarding two of the

challenged jurors, that permissible grounds for

exclusion existed, and concluded that even if it read

Batson to extend beyond black Americans, Di Norscio

had not made the requisite factual showing of the

cognizability of the group that he alleges to have been

excluded, or that any group was actually excluded.

The district court stated its finding that “[Di Norscio’s]

application [for a Batson hearing] is bottomed on

nothing -- on utterly nothing either factual or legal.” Id.

at 274.

We need not consider the correctness of the district

court's determination that the rule of Batson is not

applicable to cognizable racial or ethnic groups other

than black Americans under any circumstances

because we conclude that the district court's decision

not to exercise its discretion and order a Batson

hearing -- on the facts of this case -- did not constitute

reversible error.® Accordingly, we will not disturb the

9. We note that several federai appellate courts have assumed that

Batson has applicability to racial or ethnic groups other than black

Americans. See e.g.. United States v. Alcantar, 832 F.2d 1175,

1180 (9th Cir. 1987)(applying Batson to a challenge that

Hispanic-Americans were improperly excluded from jury service);

United States v. Chalan, 812 F.2d 1302. 1313-14 (10th Cir.

1987)(applying Batson to a challenge that Native Americans were

se acerca wanes cee all

lla

district court's judgment. '®

Under Batson, to establish a prima facie case of

purposeful discrimination in the selection of the petit

jury, a

defendant must first show that he [or she] is a

member of a cognizable racial group, Castaneda v.

Partida, ... {430 U.S.] at 494, and that the

prosecutor has exercised peremptory challenges to

remove from the venire members of the

improperly excluded from jury service). Cf. Roman v. Abrams, 822

F.2d 214, 227 (2d Cir. 1987)(under the Sixth Amendment. whites

are a cognizable group for Batson analysis), petition for cert. filed.

(U.S. Dec. 12, 1987)(No. 87-6031). Indeed. two federal appellate

courts have considered the applicability of Batson to

Italian-Americans. See United States v. Sgro, 816 F.2d 30, 33 (Ist

Cir. 1987)(“[wle assume without deciding that the principles of

Batson would extend to ethnic as well as racial constituencies”),

cert. denied, __ U.S. __. 108 S.Ct. 1021 (1988): United States v.

Bucci, 839 F.2d 825, 833 (lst Cir. 1988)(“[w)Jhether

Itaiian-Americans comprise a group needing ‘protection’ from

‘community prejudices’ is a question of fact”); United States v.

Biagg!, 853 F.2d 89 (2d Cir. 1988) affg United States v. Biaggi. 673

F. Supp. 96. 102 (E.D.N.Y. 1987) (“It can therefore be confidently

concluded that the Court in Batson meant ‘cognizable racial

groups’ to include a variety of ethnic and ancestral groups subject

to intentional discrimination. including !talian-Americans.”). In

each of these decisions, the appellate court concluded that, even if

Batson is not per se limited to black Americans or to race, the

defendant failed to make the requisite factual showing of the

cognizability of Italian-Americans or persons with Italian surnames

to merit relief under Batson. We reach the same result in this case.

10. While Judge Becker agrees with the discussion in this section

of the opinion, he would pretermit it in view of his agreement with

the district court that the Batson rule is limited to discrimination

against members of cognizable racial groups. See Brown v. North

Carolina, __ U.S. —, 107 S.Ct. 423. 424 (1986) (O'Connor. J.

concurring in the denial of certiorari) (Batson “is a product of the

unique history of racial discrimination in this country; it should

not be divorced from that context.”)

12a

defendant's race. Second, the defendant is entitled

to rely on the fact, as to which there can be no

dispute, that peremptory challenges constitute a

jury selection practice that permits “those to

discriminate who are of a mind to discriminate.”

Avery v. Georgia. 345 U.S., at 562. Finally, the

defendant must show that these facts and any

other relevant circumstances raise an inference

that the prosecutor used that practice to exclude

the venire{persons] from the petit jury on account

of their race.

Batson, 476 U.S. at 96. We assume arguendo that the

holding of Batson is not limited to black Americans,

and applies to any ethnic or racial group that meets the

criteria of cognizability delineated by the Supreme

Court. In that light, we note that ~

[t]he defendant initially must show that he is a

member of a racial group capable of being singled

out for differential treatment. . . a defendant may

then make a prima facie case by proving that in the

particular jurisdiction members of his race have

not been summoned for jury service over an

extended period of time.

Id. at 94 (citing Castaneda v. Partida, 430 U.S. 482,

494 (1977)). In the present case, therefore, under

Batson, Di Norscio was required to show that persons

with Italian surnames -- the group that he has

identified as impermissibly excluded from his jury --

constitute a group that has been singled out for

differential treatment and has been disparately

represented on juries in New Jersey.

In our evaluation of factors that must be shown in

order to demonstrate the cognizability of a racial or

ethnic group, we take some guidance from a decision of

the Court of Appeals for the First Circuit. In United

States v. Sgro, 816 F.2d 30 (Ist Cir. 1987), cert.

13a

denied, __ U.S. —_, 108 S.Ct. 1021 (1988), that

appellate court noted that:

[t]he proponent must prove that (1) the group must

be definable and limited by some clearly

identifiable factor, (2) a common thread of

attitudes, ideas or experiences must run through

the group, and (3) there must exist a community of

interests among the members, such that the

group's interests cannot be adequately represented

if the group is excluded from the jury selection

process.

Sgro, 816 F.2d at 33. We refer to these factors to

illustrate the nature of the showing required of Di

Norscio and the insufficiency of the proof presented by

him on the question of cognizability. Di Norscio offered

no evidence from which the district court could

reasonably have found that persons with Italian

surnames are reliably identified as members of a single

ethnic descent, or that persons with such surnames

“either have been or are currently subjected to

discriminatory treatment,” United States v. Bucci, 839

F.2d 825, 833 (Ist Cir. 1988). See also, United States

v. Angiulo, 847 F.2d 956. 984 (Ist Cir. 1988). Indeed,

during voir dire, Di Norscio himself conceded that “it’s

impossible to tell by the names” which jurors are

Italian-Americans. Appellants’ App. at 3540.

Significantly, he presented no evidence, other than the

surnames, to establish the ethnicity of the challenged

jurors. During Di Norscio’s oral motion for a Batson

hearing, the district court stated it's belief that “the

record also would reflect that no one here knows

whether these people are truly Italian-Americans or

not, and [that] it’s speculation at best on behalf of

defense counsel.” Appellants’ App. at 3543.

Moreover, Di Norscio has not demonstrated that

persons with Italian surnames -- even if they do not

l4a

share Italian descent -- are themselves an identifiable

ethnic group that shares common backgrounds and

ideas linked to a single culture and group loyalties, or

that there exists among them a community of interests

“such that the group's interests cannot be adequately

represented if the group is excluded from the jury

selection process.” Sgro 816 F.2d at 33. He has not

made a showing that this group has been

systematically excluded from jury service in New Jersey

and, perhaps most significantly, he does not

demonstrate the actual prejudice to him in the

constitution of his jury, which included two jurors who

have Italian surnames. For these reasons, we conclude

that Di Norscio has failed to carry his burden of

demonstrating that a cognizable group for Batson

purposes was impermissibly excluded from his jury

and, therefore. we conclude that he has failed to

establish a prima facie case of discrimination in the

government's use of its peremptory challenges.

Il.

Denial of the Motion for Recusal

At the time the indictment underlying this appeal

was returned, Di Norscio was awaiting trial on a

separate criminal indictment, also returned in the

District Court for New Jersey, in United States v.

Accetturo. One count of the indictment in Accetturo

charged Di Norscio with conspiracy to distribute

cocaine in violation of 21 U.S.C. § 846 and § 841 (a)}(1)

(1982). The conspiracy charged in that case was

alleged to have existed between September 1982 and

July 1985. After his arrest in Accetturo, Di Norscio was

released on bail. During the period of that release, Di

Norscio was indicted in the instant case. Di Norscio

contends that the interrelationship between these

prosecutions mandated recusal by the trial judge

15a

under 28 U.S.C. 8 § 455(a), (b)(1) and (b)(3)(1982).""

He contends that the Di Norscio and Accetturo cases

were actually separate prosecutions of a single

conspiracy and, because the district judge in the

present case served in the United States Attorney's

office during the time that the Accetturo investigation

was in progress, it was improper for her to preside over

the trial of the case underlying this appeal.

Judge Barry denied all defense motions to recuse,

on the grounds that: (1) the conspiracy charged in the

case before her and the conspiracy charged in the

Accetturo case were separate conspiracies; (2) she had

no previous knowiedge of the Di Norscio case and had

never been involved in any aspect of the prosecution of

this case while she was in the U.S. Attorney's office

and; (3) she had no actual bias against the defendants

and no reasonable person would question her

impartiality. We review the district court's decision not

te grant the motion for recusal for abuse of discretion,

see United States v. Dalfonso, 707 F.2d 757, 760 (3d

Cir. 1983), and we will affirm.

Di Norscio contends that recusal was necessary

because Judge Barry served as a Supervisory Assistant

U.S. Attorney in the District of New Jersey through

November 1983. Di Norscio argues that recusal was

mandated by 28 U.S.C. § 455(b)(3), because the judge

11. Pursuant to § 455(a). a judge must “disqualify himself Jor

herself] in any proceeding in which his [or her] impartiaiity might

reasonably be questioned.” 28 U.S.C. § 455(a) (1982). A judge must

also disqualify himself or herself where he or she “has a personal

bias or prejudice concerning a party. or personal knowledge of

disputed evidentiary facts concerning the proceeding.” 28 U.S.C.

§ 455(b)(1)(1982). Finally. pursuant to § 455(b)(3) a judge is

required to disqualify himself or herself if he or she “has served in

governmental employment and in such capacity participated as

counsel, advisor or material witness concerning the proceeding or

expressed an opinion concerning the merits of the particular case

in controversy.” 28 U.S.C. § 455(b)(1982).

16a

“served in governmental employment and in such

capacity participated as counsel, advisor or material

witness ... or expressed an opinion concerning the

merits of the ... case.” Section 455(b)(3), however,

mandates withdrawal only when “the judge is asked to

hear the same case in which [he or she] has been of

counsel. ..." In re Grand Jury Investigations, 486

F.2d 1013, 1015 (3d Cir. 1973)(emphasis in original)

cert. denied sub nom. Testa v. United States, 417 U.S.

919 (1974). In the present case, the district judge

explicitly stated that she never participated as counsel

or advisor, or expressed any opinion concerning Di

Norscio’s case. We note that the indictment in this case

charges acts that began in September 1985, nearly two

years after the Judge Barry left the U.S. Attorney's

Office.

The district court found that the conspiracy

charged in the Accetturo case terminated at the time of

the appellants’ indictments in that case in August

1985. It held, therefore, that the conspiracy underlying

the indictment in the present case -- which alleged acts

that succeeded the appellants’ arrests in Accetturo --

was separate from the conspiracy underlying the

indictment in Accetturo. We are not persuaded that

that factual finding was clearly erroneous.

Even if we accepted Di Norscio’s contention that

the conspiracy charged in this case arises from the

same factual circumstances as the conspiracy charged

in Accetturo, however, recusal was not required under

§ 455(b)(3). Although, as Di Norscio asserts, the United

States Attorney is “of counsel” in all criminal

prosecutions within his or her district. see e.g., In re

Grand Jury Investigation, 486 F.2d at 1015; United

States v. Vasilick, 160 F.2d 631, 632 (3d Cir. 1947), Di

Norscio offers no compelling argument for extending

this per se “of counsel” rule to cover every judge who

has previously worked as a supervisory attorney in the

17a

U.S. Attorney's Office. In our view, absent a specific

showing that that judge was previously invoived with a -

case while in the U.S. Attorney's office that he or she is

later assigned to preside over as a judge, § 455(b)(3)

does not mandate recusal. In the present case,

therefore, we decline to hold that the trial judge's

position as a Supervisory Assistant U.S. Attorney made

her “of counsel” in either the Accetturo prosecution or

the present case. In light of that cOnclusion, and

because there is no evidence that she otherwise

participated in the investigation or the prosecution of

the present case or of Accetturo, we hold that the trial

judge did not abuse her discretion by denying the

motion for recusal under § 455(b)(3).

Recusal was also not mandated under either

§ 455(a) § 455(b(1). Apart from the allegation

concerning the trial judge's prior employment as

Assistant U.S. Attorney, Di Norscio presents no

evidence of bias. prejudice or improper motive that

Judge Barry harbored with regard to Di Norscio’s case.

He does not offer evidence to refute the trial judge's

statement that she had “no personal knowledge of any

evidentiary facts concerning this case,” Appellants’

App. at 3262-63, nor did he offer any evidence tending

to show that “a reasonable [person] knowing all the

circumstances would harbor doubts concerning the

judge's impartiality.” Edelstein v. Wilentz, 812 F.2d

128, 131 (3d Cir. 1987)(construing § 455 (a)). As we

have discussed above, he has not shown that the

district judge had prior involvement in the prosecution

of his case, or that she had any improper connection

with the defendants, prosecutors. witnesses or any one

else involved with this trial. On this record, we are not

persuaded that trial judge's impartiality was in doubt

and, therefore. we find no abuse of discretion in the

denial of the motion to recuse.

dh cisternae

18a

IV.

Enhancement of Sentence Pursuant to § 3147

We next review the claim that Di Norscio was

sentenced illegally under § 3147. Di Norscio claims

that § 3147 establishes a criminal offense. He argues

that, because he was not indicted, tried and convicted

for that offense, he was not properly sentenced under

the provision. Alternately, he contends that even if

§ 3147 is merely a sentence enhancement provision,

the sentence that he received under it was nonetheless

improper because he was not given adequate notice of

the fact that he was subject to the enhanced penalty.

Our standard of review of these issues of statutory

construction is plenary. See Chrysler Credit Corp. v.

First Nat'l Bank and Trust Co., 746 F.2d 200, 202 (3d

Cir. 1984). Pursuant to that standard, we will affirm

the district court's imposition of sentence. '?

12. The government argues that Di Norscio did not preserve his

right to appeal this sentence because he did not comply with the

district judge's request for a written motion after sentencing. Di

Norscio orally objected to the § 3147 sentence. He submitted the

motion that the judge requested; it was received and filed but was

not listed for argument by the clerk because of Di Norscio’s failure

to attach a proposed order. Di Norscio then filed this appeal and the—

motion was never ruled upon.

We treat the motion before the district court as one for

reconsideratien of the sentence that was not ruled upon by the

district court. Di Norscio, however. is not appealing the disposition

of that motion. Rather, he challenges the propriety of the sentence

itself. “Final judgment in a criminal case means sentence. The

sentence is the judgment.” Berman v. United States, 302 U.S. 211.

212 (1937). Thus, although the district court never disposed of Di

Norscio’s motion. it did enter a final judgment of conviction and

sentence and, from that judgment. Di Norscio’s present appeal is

proper.

19a

A. Section 3147 Does Not Create a Separate Offense

In reaching our conclusion that § 3147 was

intended only to enhance the punishments for other

offenses, we are guided both by the plain language of

the statute, which speaks clearly in terms of enhanced

penalty -- “[a] person convicted of an offense committed

while released under this chapter shall be sentenced,

in addition to the sentence prescribed for the offense”

18 U.S.C. § 3147 (Supp. IV 1986) -- and by the

legislative history of the provision, which reflects

Congress's intent that the potential for enhanced

punishment serve as a deterrent to the commission of

crimes during bail release. The Senate Report of this

provision noted that

[section 3147 is designed to deter those who

would pose a risk to community safety by

committing another offense when released under

the provisions of this title and to punish those who

indeed are convicted of another offense. This

section enforces the self-evident requirement that

any release ordered by the courts include a

condition that the defendant not commit another

crime while on release. Given the problem of crime

committed by those on pretrial release this

requirement needs enforcement. Accordingly, this

section prescribes a penalty in addition to any

sentence ordered for the offense for which the

defendant was on release. This additional penalty

is a term of imprisonment of at least two years and

not more than ten if the offense committed while

on release is a felony. If the offense committed

while on release is a misdemeanor, this additional

penalty is at least 90 days and not more than one

year.

See S. Rep. No. 225, 98th Cong.. 2d Sess., reprinted in

1984 U.S. Code Cong. & Admin. News 3182, 3217

20a

(emphases added). This passage refers to penalty only

and to the fact that that penalty is “additional” to the

sentence imposed for the substantive offense for which

the defendant has been convicted. It gives no

indication that Congress intended to create a separate

criminal offense by its enactment of § 3147 and we

have found no such intent evident elsewhere in the

legislative history.

Our conclusion accords with a decision of the

Court of Appeals for the Ninth Circuit in a case

involving a claim identical to Di Norscic’s. In United

States v. Patterson, 820 F.2d 1524 (9th Cir. 1987), the

appellate court held that

(slection 3147 is a sentence enhancement statute

which simply mandates an enhanced sentence for

someone who commits an offense while released

on bail. There is nothing exceptional about the

statute, nor is it vague or ambiguous. The

language is plain and the meaning is clear.

Patterson. 820 F.2d at 1526. See also, United States v.

Sink, 851 F.2d 1120 (8th Cir. 1988)(Section 3147

merely enhances punishment for crime committed

while on release, rather than creating separate crime

that had to be presented to a grand jury and proven

beyond reasonable doubt at trial); United States v.

Feldhacker, 849 F.2d 293 (8th Cir. 1988)(same). We

are similarly persuaded that § 3147 is a sentence

enhancement provision and not a separate offense

and, accordingly we will affirm the district court's

judgment of sentence.

B. Section 3147 Does Not Require Specific Notice

Di Norscio also claims that he received inadequate

notice that he was subject to penalty under § 3147. He

did not claim, at his sentencing, that he was unaware

that he was subject to this penalty, and raises this

claim for the first time on appeal. We find this

2la

contention without merit. We do not read the language

or the legislative history of § 3147 as mandating

explicit notice to a defendant of the possibility for

sentence enhancement as a pre-condition to sentence

and, accordingly, we will affirm the district court's

judgment of sentence.

Di Norscio’s argument on this issue relies upon a

decision of the Court of Appeals for the Fourth Circuit.

In United States v. Cooper, 827 F.2d 991 (4th Cir.

1987} the appellate court held that a defendant who

was not specifically advised by the judicial officer who

released him on bail that the defendant would be

subject to enhanced penaity for committing an offense

while on release could not be sentenced under § 3147.

Cooper reasoned that § 3147 should be read in tandem

with a provision of 8 3142 of the Bail Act. See 18 U.S.C.

§ 3142(h) (Supp. IV 1986). Section 3142 regulates the

conditions and circumstances of releases for

defendants pending their trials. It requires that such

conditions be set forth in a written statement to the

defendant “in a manner sufficiently clear and specific

to serve as a guide for [his or her] conduct.” 18 U.S.C.

§ 3142(h)(1} (Supp. IV 1986). It also provides that the

judicial officer who authorizes the release of a person

under this statute advise that person of “the penalties

for violating a condition of release, including the

penalties for committing an offense while on pretrial

release.” 18 U.S.C. 8 3142(h)(2)(A) (Supp. IV 1986).

Cooper held that, because § 3142 explicitly mandates

notice to a defendant of the punishment to which he or

she would be subject for breaking the terms of release,

a similar mandate should be read into § 3147. The

court noted that “while Congress did not specify the

effect on sentence enhancement of the failure to give

such notice, its silence and the rule of lenity to be

applied in construing ambiguous penal statutes lead to

the conclusion that § 3147” could not be applied in the

22a

absence of notice. Cooper, 827 F.2d at 994. We see no

such ambiguities in the language of the provision and,

accordingly, we reject the view reached by Cooper.

Cooper noted that the legislative history of § 3142

included particular reference to Congress's intent that

the statute serve to deter recidivism. Consistent with

that goal, as Cooper notes, the legislative history of

§ 3142(h) states that: :

[the judicial officer] is ... required to advise the

person [released on bail] of the penalties applicable

to a violation of the conditions. . . . The purpose of

such advice is solely to impress upon the person

the seriousness of failing to appear when required.

S. Rep. No. 225 at 25, reprinted in 1984 U.S. Code

Cong. & Admin. News at 3208, see also Cooper, 827

F.2d at 994. We do not, however, read this legislative

history as broadly as did Cooper, to require that such

notice be a prerequisite to punishment for violation of

the statute. Moreover, we fail to see how such a reading

could be consistent with Congress's intent. Indeed, the

statements immediately succeeding the above quoted

legislative history suggest precisely the opposite

conclusion. In statements concerning the effect of

§ 3142(h)’s notice requirement on other provisions of

the Bail Act, the Senate Report noted that “failure to

render such advice is not a bar or defense to

prosecution for bail jumping under § 3146. . .{or|toa’

prosecution under the{] sections of title 18 designed to

protect witnesses, victims and informants.” Rather,

“(t]he purpose of such advice is solely to impress upon

the person the seriousness of failing to appear when

required.” Id. (emphasis added).

Cooper interpreted the omission from the passage

of legislative history quoted above of a specific

reference to § 3147 -- in light of the specific references

that that passage makes to other provisions of the act --

23a

as indicative of Congress's intent that the notice

requirement of 3142(h) serve as a prerequisite to the

imposition of an enhanced sentence under § 3147 even

though it explicitly does not serve as a bar to

punishment for other violations. See Cooper, 827 F.2d

at 995. In our view, this rationale reads too much into

what was not said by the legislative history and reads

too little of what was said by the statute itself. We find

it too inconsistent with the overall scheme of the Bail

Act to subscribe to the view that Congress intended

that persons who commit the very crimes that the act

Intended to deter, should avoid punishment for those

crimes because of the judicial officer's failure explicitly

to remind the defendant of the consequences of his or

her acts. Cf. Feldhacker, 849 F.2d at 299 (Section

3147 does not require written notice to the defendant

of the government's intent to seek an enhanced

sentence, “[iJt is a self-executing and mandatory

provision of law, addressed by Congress to sentencing

courts.”). We will therefore affirm Di Norscio’s sentence

under § 3147. .

Denial of Due Process In The Constitution Of The

Grand Jury

Cohen argues that the grand jury that indicted

him substantially underrepresented Blacks.

Hispanic-Americans and persons with less than high

school educations, in violation of his sixth amendment

right to be tried by an “impartial jury.“'’ Encompassed

13. Cohen also argues that the alleged underrepresentation

violated his equal protection rights. The Fifth Amendment

“forbid[{s] discrimination that is so unjustifiable as to be violative of

due process.” Weinberger v. Weisenfeld. 420 U.S. 636. 638 n.2

(1975). Fifth amendment equal protection claims are approached

in the same way as fourteenth amendment claims. Id. We find that

Cohen lacks standing to assert an equal protection violation.

24a

within this right is the requirement that juries be

selected through a process that represents a2 fair

cross-section of the community. Taylor v. Louisiana,

419 U.S. 522, 530 (1975); United States v. Salamone,

800 F.2d 1216, 1218 (3d Cir. 1986). Cohen also

charges violation of the Jury Selection Act of 1968, 28

U.S.C. § § 1861 et. seq. (1982), which codifies the fair

cross section requirement."* We conclude that Cohen

did not satisfy each element of the applicable test

established by the Supreme Court in Duren v.

Missourt, 439 U.S. 357 (1979)'5 and, therefore, is not

entitled to relief on this claim.

Duren requires that a defendant prove: (1) that the

allegedly excluded group is distinctive in the

community; (2) that the group's representation in jury

pools is not fair and reasonable in relation to the

number of its members in the community; and (3) that

this underrepresentation is due to systematic

exclusion in the jury selection process. Duren, 439

however. given that neither he nor any of the appellants claim to be

members of the allegedly excluded groups. See Castaneda uv.

Partida, 430 U.S. 482. 494 (1977) (“{I]n order to show that an equal

protection violation has occurred ... the defendant must show

that the procedure employed resulted in substantial

underrepresentation of his [or her] race or of the identifiable group

to which he [or she] belongs.”)(emphasis added). Cohen's standing

is limited to the assertion of violations of the sixth amendment’s

and the Jury Selection Act's guarantee of a fair cross section. see

Taylor v. Louisiana, 419 U.S. 522. 526 (1975). and we address

these claims in this opinion.

14. The Jury Selection Act states “that all litigants in Federal

courts entitled to trial by jury shall have the right to grand...

juries selected at random from a fair cross section of the

community... .” 28 U.S.C. § 186(I) (1982).

15. The same prima facie case is required to prove a violation of

both the Act and the Sixth Amendment. United States v. Miller. 771

F.2d 1219, 1227 (9th Cir. 1985); United States v. Test. 550 F.2d

977. 584-85 (10th Cir. 1976).

25a

U.S. at 364, see also Salamone, 800 F.2d at 1218.

Each of these three elements must be demonstrated in

order for the claim to succeed. United States v. Pepe,

747 F.2d 632, 649 (11th Cir. 1984). We hold that

Cohen's claim falls on the third Duren ground and, in

light of that conclusion, hold that he has failed to

establish a violation either under the Jury Selection

Act or under the Sixth Amendment."®

Juries in the District of New Jersey are selected

pursuant to the guidelines set out in The Plan of

Implementation of the United States District Court for

the District of New Jersey Pursuant to the Jury

Selection and Service Act of 1968, (“The New Jersey

Plan”), reprinted in Supplemental Appendix of Appellee

(“Supp. App.”) at 87. The District is divided into three

divisions, of which the Newark Division is the largest.

Potential jurors’ names are randomly selected from

voter registration lists and automobile driver

registration lists. Id. at 3, reprinted in Supp. App. at

89. The New Jersey Plan then provides for the merging

of the names on the voters lists and the drivers lists, to

create consolidated lists. Id. at 3-4, reprinted in Supp.

App. at 89-90."’

The names of potential jurors that will comprise

the master wheel are drawn randomly, as follows: “a

starting number from one to 20 shall be drawn by lot,

and the corresponding name shall be selected from the

16. In light of our holding that the claim falls on the third Duren

ground, we express no finding regarding the sufficiency of the

claim on the first and second factors of the Duren test.

17. This methodology is consistent with the Jury Selection Act.

which explicitly provides that either voter registration lists or lists

of actuai voters shall serve as a source for the names of prospective

jurors and that plans to determine juror lists “shall prescribe some

other source or sources of names in addition to voter lists where

necessary to foster the policy and protect the rights secured by [this

Act}.” 28 U.S.C. § 1863(b)(2)(1982).

26a

first list used along with each 500th name thereafter

on that list and continuing with the remainder of the

lists.” Id. at 4. reprinted in Supp. App. at 90. The

master jury wheel may consist of a “revolving drum,

drawers of file cabinets or electronic data storage

devices such as punched cards, magnetic tapes. or

magnetic disc files.” Id. at 7, reprinted in Supp. App. at

93. The wheel is emptied and refilled every four years,

within nine months of the November election. Id. at 8.

reprinted in Supp. App. at 94. The wheel from which

Cohen's grand jurors were drawn, and which he

contests, was emptied and refilled within nine months

of the November 1984 election.

Cohen claims that the Plan systematically excluded

the three groups that he has identified by its use of

voter and driver lists as the exclusive source of names

for the jury wheel and by the improper merging of these

two lists of persons. His only factual support for his

entire underrepresentation claim is an affidavit from a

demographer, Dr. James O'Reilly, who compared a

sample taken from the 1984 qualified-juror wheel to

the adult population of Blacks, Hispanic-Americans

and persons without a high school education in the

Newark Division and concluded that the groups were

substantially underrepresented."® Affidavit of James

O'Reilly at 1-4, reprinted in Appellants’ App. at

5242-45. Assuming arguendo that this affidavit

supplies a statistical basis for the claim that the

underrepresentation existed, it does not address why

the Plan causes this underrepresentation. Cohen

presents no proof to support his contention that the

use of voter lists in fact causes systematic exclusion of

18. Dr. O'Reilly adjusted upwards the Black and

Hispanic-American population, based on his assumption of

under-counting in the 1980 census. We will accept these adjusted

popuiation figures for purposes of this analysis.

27a

these groups. Even if we accepted the argument

however, that the voter lists underrepresent the groups

identified by Cohen, his only argument for why drivers

lists insufficiently supplement voter lists appears in a

footnote in his motion to the district court: “In some

communities use of the driver's license list as a

supplement may be adequate to solve the problem...

(hlowever, use of this list alone as the supplemental

source is obviously insufficient in the peculiar urban

communities comprising the Newark Division.”

Appellants’ App. at 5264 (citation omitted). Cohen's

conclusory statement that supplementation with

drivers lists is “obviously insufficient” in these

“peculiar urban communities” simply does not meet

the most minimum requirement for making out a

prima facie case. We hold, therefore, that Cohen has

not made out a prima facie case of systematic

underrepresentation in the grand jury venire.

VI.

Conclusion

In accordance with this opinion, we will affirm the

judgments of convictions and sentences entered by the

district court as to each appellant.

A True Copy:

Teste:

Clerk of the United States Count of Appeals

Sor the Third Circuit

28a

APPENDIX B

September 11, 1986

Bench Order

THE COURT: The defendant DiNorscio

merely refers me to Batson v. Kentucky, and

without supporting this reference with any

argument or brief, complains that in violation

of Batson the Government excluded Italian-

Americans from the jury now sitting on this

case.

Although I do not have a transcript of

the voir dire proceedings, it is my

recollection that he complained at side bar

that the Government excluded four Italian-

Americans and one black out of the seven

challenges it exercised. I note that he has

dropped any claim as to blacks and, indeed, we

have black members of our jury.

29a

Yesterday, in response to my question as

to whether he was pressing his application

with reference to Italian-Americans, he

advised me that five Italian-Americans had

been excused by the Government. I believe he

is incorrect. To the extent that names mean

what he takes them to mean, my notes reflect

that the Government excused four prospective

jurors with Italian names and the defense

excused two, Mr. Frank Brescia and Miss Helen

Lamantina.

Be that as it may, Batson v. Kentucky

specifically dealt only with blacks in an

equal protection analysis, and if there is one

thing that is crystal clear from the opinion

is that it is restricted to blacks. Indeed,

the Chief Justice's dissenting opinion

emphasized that the majority opinion is so

limited. On that ground alone, the

application is denied, raising as it does,

30a

only challenges the Government addressed to

the Italian-Americans. Indeed, under the

explicit language of the opinion, to establish

a prima facie case to which the Government

must respond with a statement as to its

explanation related to the particular case to

be tried, a defendant must show that he is a

member of a cognizable racial group and that

the prosecutor has exercised peremptory

challenges to remove the veniremen of the

defendant's race, and that these and other

circumstances raise an inference that the

prosecutor used that practice to exclude the

veniremen on account of their race. Slip

Opinion at 16-17. But even if I, a district

court judge, expanded the protection of Batson

far beyond that which the Supreme Court

explicitly chose not to do, the application

would fail.

3la

Relying solely on the last names of

jurors, defendant argues that four of the

seven challenges exercised by the Government

were of Italian-Americans. Even assuming that

to be true, at least one Italian-American

juror is on the jury, and the defense, as I

noted earlier, struck another two, the last

defense challenge being exercised jointly by

the defendants even after defendant made his

record.

But in Batson the Supreme Court majority

and the Chief Justice's dissenting opinion pay

humana tie the trial judge to see, to hear, and

to protect against discrimination.

Now, we were in jury selection from 1:30

in the afternoon until almost 6 o'clock at

night. The defense exercised 17 of its 18

challenges, and the Government, seven of its

nine, and I excused somewhere between 15 and

20 prospective jurors for cause. Therefore,

32a

when the 16 that were finally selected are

added in, I individually questioned somewhere

around 60 prospective jurors.

Two of the four Government challenges on

purported Italian-American grounds clearly

stand out in my memory, a fact of some

considerable significance, given the tedium of

the process and the fact that at this point I

cannot remember.even most of the many persons

of whom I inquired.

The two jurors I most clearly remember,

both very young-~ men, should have _ been

nat veeinn by any responsible prosecutor on

grounds having nothing to do with their ethnic

background.

First, Mr. Aranjo, I think it was Juror

Number 4, was a caricature of a young tough.

As I described him the day before yesterday,

he literally bopped to the stand with a know-

it-all grin on his face; "bopped" being an

33a

old-fashioned word for which I apologize, his

hair was slicked back on the sides in a "D-A"

style, yet many inches high on top, and all he

lacked was a cigarette dangling from his

mouth. He appeared to be a Fonzey with hair,

an analogy I Know is again outdated.

Indeed, one of the advantages of the

perch on which I sit is that I could see that

many Of the counsel in this case, including

the attorney making this application, were

smiling as this prospective juror bopped into

the box and answered my questions.

The second juror I vividly remember was

Number 16, I think Carl Stiso. He was a wise

guy. His initial answer to my questions was

something to the effect that he would favor

Italian-Americans because he was one, and he

laughed a "try me" kind of a laugh. While he

Subsequently agreed that he could be a fair

juror, I frankly did not believe him tor a

34a

minute. And when the Government waited one

round before challenging him, I remember

observing at a side bar, either on or off the

record, "What took you so long?" If the

Government had not challenged these two clowns

it would have been remiss in its duties.

If the Government challenged two other

Italian-Americans, I can only remember one of

them and all I can remember about Miss

Ferranti is that she was a very young woman.

Defendants, of course, challenged two Italian-

Americans as well. This application -is

bottcmed on nothing -- on utterly nothing

either factual or legal, and frankly, should

not even have been dignified by these few

remarks. The application..for a hearing is

denied.

All right.

MR. COOGAN: Your Honor --

MR. HOWES: Judge --

35a

MR. COOGAN: I ask Your Honor how you

arrived at the exercise of the defense

challenges? I was under the belief that when

we said "acceptable" that we had exhausted all

but one of our challenges.

MR. RICHEY: I thought that's what we had

done --

THE COURT: Is that what it is? See, I

don't have that transcript. My records show

two, but it's either one or two.

MR. COOGAN: Miss Costello, can you help

us?

THE CLERK: I believe it was one.

MR. COOGAN: We were only one challenge

allowed at the time we agreed.

THE COURT: All right. I'll amend this,

or Mr. Stone will amend it. So you exercised

17 or your 18 instead of 16 of your 18.

MR. COOGAN: The reason I think that

there is some importance to that, is because

36a

no seasoned trial lawyer likes to be put in

the position of having to use the last

challenge when his adversary has additional

challenges that can obviously be utilized to

affect the composition of the then panel.

THE COURT: What does that have to do

with what I've just done?

MR. COOGAN: It would have some effect,

if Your Honor please, in terms of the ability

to get a more -- a more balanced panel when I

only have one challenge left, and your

adversary has, I think, five left at the time.

THE COURT: That application is almost as

ridiculous as the one that prompted me to

return to the bench. If, indeed, at that time

you felt you were prejudiced in any way, and

that you wanted more challenges, it behooved

you to ask. And I think the argument on its

face, in any event, makes no sense.

37a

I appreciate your trying to raise an

issue, but I reject it.

MR. COOGAN: Your Honor, with regard --

THE COURT: Certainly three days into

trial I reject it. All right.

MR. RICHEY: With regard to challenging

a couple of Italian-Americans by the defense,

I would note I could not determine who would

be challenged and would not be.

I'm one of many attorneys in the defense

group, and I'm not in the position to say who

will and will not be challenged. That's one

of the problems.

THE COURT: Well, you were there to

participate with the others if you so chose.

And if you chose not to do so, that is your

problem. Nobody complained when I said that

the challenges would be exercised jointly.

MR. COOGAN: I think we filed a motion.

38a

THE COURT: The motion was’ denied

pretrial and it was one of the few denials as

to which no motion for reconsideration was

filed.

MR. COOGAN: Yes.

THE COURT: And when I said they would be

exercised --

MR. MUNROE: The court made a ruling.

MR. COOGAN: Your Honor --

THE COURT: This is too little, too late.

If Mr. Richey chose to participate or not to

exert his very considerable stature on his

fellow counsel, that is Mr. Richey's problem

and not mine.

Gentlemen, have a good evening.

MR. HOWES: Just one very brief thing,

Your Honor.

MR. COOGAN: Thank you, Your Honor.

39a

APPENDIX C

November 17, 1986

Sentencing

other families who suffer as a result of these

activities. Activities for which neither

defendant indicates any remorse.

Perhaps within a hundred and 20 days

there will be some indication that these men

are ready and willing to finally show some

evidence of rehabilitation. Perhaps not. Be

that as it may, all judges can really do is to

fashion sentence to fit a crime and make a

statement thereby.

Defendant DiNorscio, would you please

rise.

For the purposes of sentencing only,

Counts 1 and 2 are merged and the defendant is

hereby committed to the custody of the

Attorney General or his authorized

representative for imprisonment for a term of

40a

25 years.

It is adjudged, that on Count 3 the

defendant is hereby committed to the custody

of the Attorney General or his authorized

representative for imprisonment for a term of

20 years, to be served concurrently with the

sentences imposed on Counts 2 and 1, with a

special parole term of six years to follow and

a $5,000 fine.

Pursuant to Title 18 U.S.C. Section 3147,

the defendant is hereby committed to the

custody of the Attorney General or his

authorized representative for a period of five

years, to be served consecutive to the

sentences imposed above. Therefore, it is the

intention of the court that the sentence be 30

years imprisonment with six years’ special

parole to follow and a $5,000 fine. A special:

assessment of a hundred dollars is imposed.

Mr. Cohen.

4la

MR. DI NORSCIO: Thank you, Your Honor.

THE COURT: For the purposes of

sentencing only, Courts 1 and 2 are merged,

and it is adjudged that the defendant is

hereby committed to the custody of the

Attorney General or his authorized

representative for a term of 25 years.

Pursuant to Title 18 U.S.C. Section 3147,

the defendant is hereby committed to the

custody of the Attorney General or his

authorized representative for a term of five

years. This term sentence is to run

consecutive to the 25 year sentence. Total

aggregate sentence, 30 years. A special

assessment of $50 is imposed.

Is there anything else?

MR. RICHEY: Yes, Your Honor, One matter.

I would call to the court's attention

that the bond violation, at 813, 3547 [sic]

violation, I suggest is an illegal sentence.

42a

Constitution requires that people be indicted

and they be convicted by a jury for a crime

for sentencing. I suggest that such charge

has not been brought, no indictment has been

returned, no jury's found them guilty. Thank

you.

THE COURT: If that's your position,

please put in the papers.

Is there anything --

MR. ASHLEY: Your Honor, I join in the

remarks Of Mr. Richey and that's the extent to

which I have anything to say.

THE COURT: All right. Is there anything

else, Mr. O'Malley?

MR. O'MALLEY: Nothing else, Your Honor.

THE CLERK: All rise, please.

43a

APPENDIX D

United States District Court

for District of New Jersey

Docket No. Criminal 86-223

United States of America

vs.

GIACOMO DI NORSCIO

Defendant

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the

government the defendant appeared in person on

this date, NOVEMBER 17, 1986.

With counsel, WILLIAM RICHEY, Esq.

FILED

PLEA: Not Guilty. NOV 18, 1986

At [3:00 P.M.]

WILLIAM T. WALSH

CLERK

FINDING & JUDGMENT:

There being a verdict of GUILTY.

Defendant has been convicted as charged

of the offense(s) of conspiracy to distribute

and possession with intent to distribute

cocaine (Schedule II); engage in a continuing

criminal enterprise; aid and abet in the

intentional possession with intent to

distribute cocaine (Schedule II).

SENTENCE OR PROBATION ORDER:

The court asked whether defendant had

anything to say why judgment should not be

pronounced. Because no sufficient cause to

the contrary was shown, or appeared to the

court, the court adjudged the defendant guilty

as charged and convicted and ordered that:

44a

The defendant is hereby committed to the

custody of the Attorney General or his

authorized representative for imprisonment for

a period of

twenty-five (25) years on merged Counts 1 and

2; twenty (20) years on Court 3, to run

concurrently with merged Counts 1 and 2 and a

Special Parole term of six (6) years and a

fine of $5,000.00.

™T IS FURTHER ADJUDGED that pursuant to

Titis .4e, USC Sec. 3147, defendant is

committed for a period of five (5) years to

run consecutively to merged Counts 1 and 2 and

Count 3.

SPECIAL CONDITIONS OF PROBATION:

IT IS FURTHER ADJUDGED that defendant pay

a Special Assessment of $100.00.

ADDITIONAL CONDITIONS OF PROBATION:

In addition to the special conditions of

probation imposed above it is hereby ordered

that the general conditions of probation set

out on the reverse side of this judgment be

imposed. The Court may change the conditions

of probation, reduce or extend the period of

probation, and at any time during the

probation period or within a maximum probation

period of five years permitted by law may

issue a warrant and revoke probation for a

violation committed during the probation

period.

COMMITMENT RECOMMENDATION:

The court orders commitment to the

custody of the Attorney General and

recommends,

45a

It is ordered that the Clerk deliver

a certified copy of this judgment

and commitment to the U.S. Maxshal

or other qualified officer.

/s/

MARYANNE TRUMP BARRY 11/18/86

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.