Petition — Langella v. Commissioner of Corrections

, Supreme Court, u. S,

& FILED,

FEB 7 1977

IN THE

Supreme Court of the Wnited Sted Et RODAK. IR CLERK |

OCTOBER TERM, 1976

No. ..76.- 1096

JERRY LANGELLA,

Petitioner,

V.

COMMISSIONER OF CORRECTIONS,

STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

ee a ee ee ee ee ST

NANCY ROSNER

Attorney for Petitioner

401 Broadway

New York, N.Y. 10013

(212) 925-8844

J. JEFFREY WEISENFELD,

Of Counsel :

On the Petition

EEE ee

Dick Bailey Printers *P.0. Box X, Siaten Isiand, N.Y. 10302 * Tel,: (212) 447-5358

TABLE OF CONTENTS

Page

EE. G09 dG de bbb > wwe CaeS Glted Ke ose ce 1

REN SED, Bd RY DF ne ae aE, eR 1

Vil id cd. adh ce oanp iv naned oeeens 2

Constitutional Provision Involved .................. 2

Statutes Involved eee EC eee wad ca ekekh cheese 2

Ns os bid dn Np awe ddan ed des due 4

Reasons for Granting the Writ ..............6...4.. 9

1. The Decision Below Raises Serious and Important

Issues Concerning the Proper Construction and

Application of 18 U.S.C. §2515 ................ 9

2. The Decision below raises serious and important

constitutional issues as to whether the same 7rand

jury that heard petitioner's immunized testimony

may return an indictment against him for contempt

Swe bbde'S e's b 0606S 6605 0 Chee éeeehbdooceaneb ens 14

NN ee keene swe 18

APPENDIX

A — Order and Opinion of the United States Court of

Appeals for the Second Circuit ................. la

B — Order and Opinion of the United States District

Court for the Southern District of New York ...... 10a

ii

C — Minutes of Proceedings Before the Third August

1972 Grand Jury December 19, 1972 Testimony of

ED Su bdu ead s gh ebe Ws céecesouws tess 24a

TABLE OF AUTHORITIES

Counselman v. Hitchcock, 142 U.S. 457 (1892) ....... 15

Gelbard v. United States, 408 U.S. 41 (1972) ........ 9

Goldberg v. United States, 472 F.2d 513, 516 (2d Cir.

ST jc vGeks intl er Nn dsdaue ne teks bucabanees 16

In re Persico, 491 F.2d 1156 (2d Cir.), cert. denied. 419

U.S. 924; reh. denied, 419 U.S. 1060 (1974) ...... 11

Kuastigar v. United States, 406 U.S. 441 (1972) ....... 15

Murphy v. Waterfront Commission of New York, 378

SO Ub vat eedsctbecees Jive Vededevaa 15

People v. Einhorn, 3S N.Y .2d 948 (1974) .........4.. 8

United States v. Calandra. 414 U.S. 338, 355 n.11

Pe acientes ds euvas ak beu die de ceded ok eeua 10

Nd vedusas apis cay couch skate vee 17

RANE RRS pes Ren 2 1 FS 17

United States v. Marion. 535 F.2d 697, 701 (2d Cir.

POE rk Danse cienndan nesters tis tines P

Other Authorities

MY: PeeertS.St ......... 0.00. ind :

28 U.S.C. §1254()

18 U.S.C. $2515

18 U.S.C. $3504

P ecancevucess Weatve’ Fas Foe

Se Pees ee Ceerwe see 8 C8 4.8 ee e+e eee @ @ 6.6.8

In THE

Supreme Comrt of the Anited States

OCTOBER TERM. 1976

No.

JERRY LANGELLA,

Petitioner.

Vv.

COMMISSIONER OF CORRECTIONS,

STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jerry Langella prays that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Second Circuit entered in

this proceeding on November 22, 1976.

OPINION BELOW

The opinion of the Court of Appeals, not yet officially

la-9a*.

reported. appears in the Appendix hereto at pp.

The opinion of the District Court is reported at 413

F.Supp. 1214 (S.D.N.Y. 1976) and appears in the Ap-

pendix at pp. 10a-23a.

JURISDICTION

The judgment of the United States Court of Appeals for

the Second Circuit was entered on November 22, 1976. A

*References are to petitioner’s appendix and are designated “a’’.

2

timely petition for rehearing was denied on December |

1976 and the petition for a writ of certiorari was filed withi..

ninety days of that date. The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

QUESTIONS RAISED

1. Whether the procedures employed in the State Court

to resolve the issue of whether petitioner was required to

answer questions to which he refused to respond on

grounds of illegal electronic surveillance complied with the

requirements of 18 U.S.C. §2515?

2. Whether the decision below is correct in holding that

the same grand jury which heard petitioner's truthful and,

therefore, immunized testimony may return an indictment

against him for contempt?

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Fifth Amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury. except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use,

without just compensation.

STATUTES INVOLVED

18 U.S.C.

$2515. Prohibition of use as evidence of intercepted wire or

oral communications

‘3

Whenever any wire or oral communication has been

intercepted, no part of the contents of such communication

and no evidence derived therefrom may be received in

evidence in any trial, hearing. or other proceeding in or

before any court, grand jury, department, officer, agency,

regulatory body, legislative committee, or other authority

of the United States, a State, or a political subdivision

thereof if the disclosure of that information would be in

violation of this chapter.

$3504. Litigation concerning sources of evidence

(a) In any trial, hearing, or other proceeding in or before

any court, grand jury, departmert, officer, agency.

regulatory body, or other authority of the United States—

(1) upon a claim by a party aggrieved that

evidence is inadmissible because it is the primary

product of an unlawful act or because it was ob-

tained by the exploitation of an unlawful act, the

opponent of the claim shall affirm or deny the

occurrence of the alleged unlawful act;

(2) disclosure of information for a determination

if evidence is inadmissible because it is the primary

product of an unlawful act occurring prior to June

19, 1968, or because it was obtained by the ex-

ploitation of an unlawful act occurring prior to

June 19, 1968, shall not be required unless such

information may be relevant to a pending claim of

such inadmissibility; and

(3) no claim shall be considered that evidence of

an event is inadmissible on the ground that such

evidence was obtained by the exploitation of an

unlawful act occurring prior to June 19, 1968, if

such event occurred more than five years after such

allegedly unlawful act.

(b) As used in this section ‘unlawful act’ means any act

the use of any electronic, mechanical, or other device (as

4

defined in section 2510(b) of this title) in violation of the

Constitution or laws of the United States or any regulation

or standard promulgated pursuant thereto.

STATEMENT OF THE CASE

Federal Court Proceedings

On May 12. 1976 the United States District Court for the

Southern District of New York (Brieant, J.) denied Mr.

Langella’s petition for a writ of habeas corpus attacking a

judgment of the Supreme Court of the State of New York,

County of New York (B. Roberts, J.), convicting petitioner,

upon his plea of guilty, of criminal contempt in the first

degree (N.Y. Penal Law §215.51) and sentencing him to

five months imprisonment.

Petitioner appealed the denial to the United States Court

of Appeals for the Second Circuit, which court affirmed the

denial on November 22, 1976. A timely petition for

rehearing was denied on December |, 1976. On December

21, 1976 the Court of Appeals stayed petitioner's surrender

to the state authorities pending the determination of this

petition. This stay expired 30 days later and on January 27,

1977 petitioner commenced serving his sentence. A motion

tor an extension of the stay is presently pending before the

Court of Appeals.

State Court Proceedings

Jerry Langella was subpoenaed to appear before a New

York County grand jury on December 19, 1972 as a witness

in the investigation of a homicide. By his counsel, he moved

to quash the subpoena on the ground that the questions to

be asked were the product of illegal electronic surveillance.

In an unsworn statement, the prosecutor admitted that

Court ordered electronic surveillance had been employed in

this investigation but refused to answer whether any of Mr.

5

Langella’s conversations had been intercepted. Petitioner's

counsel then moved for an opportunity to inspect the

authorizing order but no order was ever produced for the

inspection of counsel or for the ex parte review of the court.

All of petitioner's applications were denied on the sole basis

of the prosecutor's unsworn statements.

On the same day, Langella appeared before the grand

jury and received transactional immunity (24a-25a). From

the outset, Langella, who admitted to less than a complete

grade school education (37a), and the prosecutor had some

difficulty in communicating. This communication problem

necessitated Langella’s leaving the grand jury to consult

with counsel.

On his return, Langella inquired as to the effect the

immunity conferred would fare in federal court or in any

other jurisdiction, but the prosecutor never responded to

these inquiries (28a-29a, 33a-35a). Langella then

responded to questions about his employment, stating that

he was a gambler and had no job (34a).

Nor did the witness’ difficulties cease with the

preliminaries. The very next question was ‘Did you plan to

kill Joseph Gallo on April 7, 1972?” (34a). This thrust for

the jugular again moved the witness to ask whether the

immunity conferred protected him from __ federal

prosecution, a matter the witness was justly concerned with

in light of the highly incriminating subject of the question

(34a). His inquiry led to a hot debate among foreman,

witness and prosecutor concerning the nature of the wit-

ness’ right to counsel which culminated with this confused

and utterly mistaken, but dogmatic exposition of the

witness’ rights by the grand jury foreman which was never

corrected by the prosecutor:

“THE WITNESS: But I am not—you know, you're

a smart man, why ain't I allowed to go out and ask

my question?

6 7

THE FOREMAN: You left the room I think he would: answer after an opportunity to consult with

twice now to ask questions of your attorney as the counsel. Indeed, upon his return, he did answer several

District Attorney indicated. If the question is of a questions directed at him in the intervals between his

legal nature and you do not understand the legality repeated requests to speak with counsel (49a),

of the question you are entitled to speak to your After another go round .of several minutes, without

attorney. speaking with counsel, petitioner was asked and answered:

THE WITNESS: Right | “Q After April 7, 1972, Mr. Langella, didn't you

THE FOREMAN: But if he asks you your name discuss with Alphonse Persico, inside apartment

or where you were yesterday and what your oc- LK at 1010 Gedney Street in Nyack, New York, the

cupation is there is nothing legal about that. That murder of Joseph Gallo?”

required a simple question and a simple answer. A. No. I did not.

(emphasis supplied) Q. You did not discuss the murder of Joseph Gallo

THE WITNESS: Ain't allowed to go out after each : with Mr. Persico, is that what you are saying?

“$3 9

question’ A. Yes.”* (52a-S3a).

FOR CUERSAR: Ne. The next round involved the question:

THE WITNESS: I'm not? ee Ags :

Have you been receiving messages from Joseph

THE FOREMAN: No. Gorgone?’* (59a).

THE WITNESS: Are you sure, Mr. Foreman? Mr. After another seemingly endless series of entreaties,

Tannenbaum. is he correct? petitioner was permitted to speak with counsel (6Sa-66a).

THE FOREMAN: Unless there— Immediately upon returning to the grand jury room, the

witness volunteered the answer to a question which he

evidently recollected had been left unanswered earlier in

the interrogation (66a).

Petitioner then asked that the pending question be put

again and then made a two-fold statement as his counsel

had directed, namely that he believed the question

regarding the transmission of messages to be the product of

electronic surveillance and: asked to be brought before a

Q The question put to you—

A. Mr. Tannenbaum, is he right?

Q When you become an assistant district attorney

and appear in a grand jury you will ask the

question. Now you are a witness and the question

put to you is did you plan to kill Joseph Gallo on

April 7, 1972?

A. The answer is I would like to talk to my

attorrey."’(39a-40a).

en ee ee ee

. ° ° ° . “a _ ’ f

Despite the erroneous advice as to his right to confer with *In fact this individual's tapped phone had been the source of many o

the prosecutor's questions and specifically this one. Petitioner’s phone con-

counsel, petitioner was ultimately permitted to consult with | versation with Gorgone had been intercepted on July 20, 1972. Petitioner

counsel. After many more questions and exhortations to was only apprised of this interception after his indictment for criminal con-

answer, in the face of which, he steadfastly maintained that ) tempt, in response to hi$ discovery motions.

|

8

judge. a perfectly reasonable request made, not once. but

more than 1S times (66a-69a).*

Rather than comply with his request, the prosecutor

excused Langella from the grand jury room. Langella was

never taken before a judge or recalled for further

questioning. Instead he was indicted a few days later for

tailing to answer the questions ‘whether he visited 101

Gedney Street in Nyack, New York during the month of

April, 1972 and, whether inside the apartment LK, at 101

Gedney Street in Nyack, New York, after April 7, 1972, he

also spoke with Joseph Luparelli."” These were two in a

series of questions petitioner had been asked early on in the

interrogation (40a, 47a, SOa), most of which were sub-

sequently answered (49a). These two questions were never

put again nor was petitioner reminded or warned of the

consequence of his failure to answer them before his abrupt

departure from the grand jury.

During the course of the proceedings in the trial court

Langella moved to dismiss the indictment on several

grounds:

; I. rhe prosecutor had not adequately responded to the

witness inquiry concerning electronic surveillance by

refusing to respond whether Langella’s conversations had

been intercepted and by refusing to take Langella before a

judge.

2. The witness’ truthful and therefore immunized an-

swers had been improperly used by the same grand jury to

establish the necessary element of wilfulness to indict him

lor criminal contempt.*

. ;

Interestingly the procedure sought to be employed by petitioner and his

counsel is precisely that later ado

pted by the New York

See People v. Einhorn, 35 N.Y.2d 948 (1975) rk Court of Appeals.

o oe

oe in its Brief in the Appellate Division of the New York

supreme Court, the prosecution conceded that Langella’s immunized

answers were used to find an element of the offense: arguing that such

use was ‘ ivisi

= proper, People’s Brief to the Appellate Division, pp. 16 through

Ae a OI AOE a iy Hee nl

ee ee

9

3. The extent of his immunity was never properly ex-

plained to him in violation of the Fifth Amendment.

Langella also moved for discovery and a bill of par-

ticulars. in response to which for the first time he received a

copy of a transcript of intercepted communications and the

court order purporting to authorize its interception.

Ultimately. all of Langella’s motions were denied and he

pled guilty in return for a promise of a sentence of no more

than five months incarceration and bail pending appeal.

He was sentenced to the maximum under the plea bargain.

Langella’s conviction was affirmed in the Appellate

Division. First Department without opinion and the

Honorable Sol Wachtler denied leave to appeal to the New

York Court of Appeals.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Raises Serious and Important

Issues Concerning the Proper Construction and Ap-

plication of 18 U.S.C. §2515.

Because of the sensitive privacy right involved and a

desire for uniformity in all state and federal jurisdictions,

the various provisions of Title II] of the Omnibus Crime

Control and Safe Streets Acts (18 U.S.C. §§2510-2520) are,

by their terms. applicable to the states. 18 U.S.C. §2515

explicitly applies to the states. See also, Gelbard v. United

States, 408 U.S. 41 (1972); United States v. Marion, 535

F.2d 697. 701 (2d Cir. 1976). Under the Supremacy Clause

of the Constitution. these statutory protections are

cognizable as federal constitutional claims for the purposes

of habeas corpus jurisdiction. Thus, whether Langella’s

motion to dismiss the state indictment should have been

granted because unlawful electronic surveillance was

employed before the grand jury in violation of 18 U.S.C.

§2515 is an issue properly before this Court.

10

A. A grand jury witness who refuses to answer, claiming

that the questions asked of him were based upon illegal

electronic surveillance, has standing under 18 U.S.C.

$2515 to assert that illegality as a defense to a charge of

criminal contempt.

The somewhat murky font of all law in this area is this

Court's opinion in Gelbard v. United States, supra.

However, it is clear, that the intent of 18 U.S.C. §2515, as

enunciated in Gelbard and United States v. Calandra, 414

U.S. 338, 355 n. 11 (1974), is that a grand jury witness may

detend a contempt indictment where his interrogation was

based upon unlawful electronic surveillance. Having taken

the risk by refusing to answer, §2515 provides the alleged

contemnor full vindication, if unlawful electronic sur-

veillance was indeed employed in his questionir .. Gelbard

v. United States, supra; United States v. Calandra, supra

at 355 n. 11.

B. The procedures followed in the state court did not

comply with the requirements of §2515.

Below, the Court of Appeals held that §2515 imposes

upon the states the obligation to formulate procedures

sufficient to effectuate the purposes of §2515 (6a). This

effect of §2515 is, of course, entirely independent of the

Statutory codification contained in 18U.S.C. 3504, which is

applicable only to the federal government. Thus, a state

must implement its procedures for raising at §251S claim in

a manner which does not impair that federally guaranteed

right. Here. the New York procedures upheld by the courts

below do not meet the required standards of §2515.

The Court of Appeals stated:

In People v. Einhorn, 35 N.Y .2d 948 (1974) (per

curiam), the New York Court of Appeals set out

the procedure to be followed by a grant jury witness

11

who claims the questions being posed violate 18

U.S.C. §2515: “The request during the grand jury

proceeding by the witness that he be brought

before the court must be respected and once there

the Presiding Justice may make appropriate

inquiry whether the witness’ objection is sound.”

Id.. 949. The New York procedure, as set out in

Einhorn, complies with 18 U.S.C. §2515. (6a).

and turther:

Justice Sandifer's denial of Langella’s _pre-

appearance motion, on the prosecutor's assurance

of the existence of a court order for the electronic

surveillance. essentially meets the requirements of

Einhorn and constitutes a sufficient ac-

commodation of the needs of the grand jury with

those of the witness (7a).

It the Second Circuit was saying that the New York

procedure merely satisfied minimum federal standards,

this would permit a variance in procedure between not only

the various states but between the states and the federal

government. In light of the clear intent to promote

uniformity, this holding would frustrate a prime policy of

Congress.

Aside trom the matter of uniformity, the procedure

tollowed by the state court before petitioner's grand jury

appearance and the procedure followed by the prosecutor

in the grand jury can hardly be said to meet the

requirements of §2515.

The Second Circuit has held that under §2515., a witness

refusing to answer based upon a claim that the questions

posed were the fruit of illegal electronic surveillance can

receive a suppression hearing during the grand jury

proceedings only if (1) there is no valid court order for the

surveillance. (2) the government concedes the illegality of

the surveillance. or (3) there is a prior judicial deter-

mination that the surveillance was illegal. Jn re Persico,

12

491 F.2d 1156 (2d Cir.), cert. denied, 419 U.S. 924; reh.

denied, 419 U.S. 1060 (1974). Here, to avoid holding such

a hearing. the prosecution attempted to establish the

existence of a prior court order authorizing the sur-

veillance.

The only proof on the issue was the unsworn statement of

the assistant district attorney that such a judicial order

existed. The prosecutor was not examined under oath, nor

was he required to respond adequately to petitioner's

request that he be informed if his conversations had been

intercepted, nor did the court inspect the wiretap order in

camera. See, In re Persico, supra.

To say the above was a sufficient inquiry under §2515 is

to promote form over substance.* The reason for requiring

a ‘sufficient’ inquiry is to afford a witness a reasonable

basis upon which to decide whether to remain silent and

later assert §2515 as a defense to a contempt charge. The

procedure followed here was so insubstantial, that it cannot

atford a proper basis for decision and as such, it does not

conform to the requirements of §2515.

Further, Langella’s efforts to implement his rights under

$2515 were completely and pointlessly frustrated by the

prosecutor's refusal to respond, until after indictment. to

the inquiry whether Langella’s conversations had been

intercepted during the course of electronic surveillance.

Here too, it is appropriate to remember that without the

necessary information, a witness is left entirely without the

foundation to judge whether to assert his claim of illegal

surveillance. Since the purpose of §2515 is to prevent the

use in the grand jury of illegal interceptions, it is essential

to the statutory scheme that those who are the victims of

—_——— ee ee ee ee ee ee ee

_ *The procedure of permitting a prosecutor to merely state that there is an

order is just too subject to error or inaccuracy to be sound. There is no

need to continue such procedures when it is so easy for the prosecutor to

supply the court with a copy of the order for its in camera inspection.

eh

13

such illegality be able to make an intelligent and knowing

decision to assert or withdraw the claim.

The Court of Appeals further held that Langella waived

his claim by failing to request that he be brought before the

judge as to each and every particular question which

remained unanswered. The Court of Appeals decision can

only result in requiring a witness to make such a request to

each and every question or face the prospect of forfeiting

the protection of §2515. This is so because, on its face, a

question predicated on electronic surveillance might not

indicate its source. That is, the fact that surveillance was

the root of a question might not be evident so that a

cautious and prudent witness must request that he be

brought before a judge on each and every question or risk

losing his right. This is precisely what happened here.

Petitioner's request was triggered by a question which

referred to “transmitted messages’* which he did not

answer and for which he was not indicted. Instead, he was

indicted for refusing to answer two questions which lacked

internal clues of their eavesdropping origin and hence,

triggered no inquiry by the witness. To compound the utter

unfairness of the procedure approved here, the two

questions upon which the indictment was based preceded

the question about transmitted messages. which triggered

Langella’s unfulfilled request to be brought before a judge.

Such a procedure has implications so disruptive of the

orderly and expeditious progress of grand jury proceedings

that this Court must ultimately condemn it. To require a

witness to assert his §2515 claim as to each question asked

serves no useful purpose; in fact, it undercuts the policy

behind that statute by making the grand jury proceeding a

trap for contempt.

The opinion of the Second Circuit endorsing the

requirement stands as ground breaking precedent not only

for the SO states to which §2515 by its terms applies, but

also to federal jurisdictions. for the Second Circuit opinion

14

is ambiguous as to whether it reaches federal grand juries

as well. Until this ambiguity is resolved, any attorney who

has read the Langella opinion and who represents a witness

before a federal grand jury must advise his client to make

such a request as to each question posed. This procedure

will result in frustrating the purposes of the grand jury as

well as force a witness to indulge in empty formalisms to

protect himself. Further, the entire process is demeaning to

all the parties involved.

Moreover. if the ambiguity as to scope is resolved that

the holding reaches only state courts, then again the policy

of uniformity of procedure is frustrated.

This is a case of first impression in the federal circuits

and the holding of the Court of Appeals misconstrues the

proceedures contemplated by §2515S. This misconstruction

should be rectified by this Court's grant of certiorari.

2. The Decision below raises serious and important

constitutional issues as to whether the same grand jury that

heard petitioner's immunized testimony may return an

indictment against him for contempt.

Pursuant to New York law, petitioner was granted

transactional immunity upon being sworn as a witness

before the grand jury. In the course of his appearance, he

gave truthful and therefore. immunized testimony, stating

that he was a professional gambler and was a close friend of

Alphonse Persico, an individual allegedly involved in the

murder under investigation. Langella further testified that

he did not plan to kill Joseph Gallo on April 7, 1972, that

since April 7, 1972 he had not spoken to Carmine Di Biase.

and, that after April 7. 1972 he did not discuss with Persico

the murder of Joseph Gallo. The same grand jury which

heard this immunized testimony, later indicted Langella

for contempt for failing to answer certain questions.

15

The use by the grand jury of this immunized testimony

was conceded by the prosecution in its brief to the New

York Appellate Division, in which it argued that such use

was proper. (People’s brief to the Appellate Division, pp.

22-23).

The Court of Appeals held that it was proper for the

same grand jury which heard Langella's truthful, im-

munized testimony to indict him for contempt. This is,

apparently. the first circuit court decision to sanction such

a procedure.* Petitioner contends that this procedure

violated his Fifth Amendment rights and asks this Court to

review the decision below.

The Fifth Amendment privilege against self in-

crimination makes ours an accusatorial rather than an

inquisatorial system of justice. Kastigar vy. United States.

406 U.S. 441 (1972). Therefore. it must be maintained

inviolate and may not be displaced except by immunity

perfectly co-extensive with it. Counselman v. Hitchcock.

142 U.S. 457 (1892); Malloy v. Hogan, 378 U.S. 1 (1964):

Murphy v. Waterfront Commission of New York, 378 U.S.

52 (1964); Kastigar v. United States. supra. Thus, the issue

herein is the right of petitioner to be free from the use of his

immunized testimony against him in a_ criminal

prosecution.

In the circumstances of this case, it is impossible for the

prosecutor to furnish the degree of proof Kustigar. supra.

requires. Kustigar, after all, proscribed “any use. direct or

indirect . . ."’ of the immunized testimony in a criminal

proceeding. Indeed, if the immunity protection is to be

coextensive with the Fifth Amendment privilege, as it must

to be constitutionally sufficient, then it must forbid a//

prosecutorial use of the compelled testimony, not merely

*It must be remembered, that we are here dealing with criminal contempt

and not civil contempt, which is used remedially and not to punish the

witness.

16

that which results in the presentation of evidence to a petit

jury. Petitioner must be left “in substantially the same

position as if [he] had claimed the Fifth Amendment

privilege.” Kastigar, supra, at 462.

Thus, the prosecution must affirmatively show that it did

not use against petitioner his immunized testimony or Its

fruits “in any respect.” Kastigar. supra. In the present

case. however, this is not possible. since the prosecution

has conceded the use of this testimony and further has

asserted that such use was proper. Even if such a con-

cession had not been made, the prosecution could not meet

its burden. for as lower courts have repeatedly held, once

the immunized testimony has been heard ‘‘it would be well

nigh impossible for the grand jurors to put [his] answers

out of their minds. . . . '’ Goldberg v. United States, 472

F.2d $13. 516 (2d Cir. 1973).*

As the Second Circuit itself recently held,

_.. for us to condone the practice of having the

same grand jury that heard the immunized

testimony indict the witness who so testified is to

invite action where the cure is worse than the

malady. The prospect of peering into the grand

jurors’ minds, or of examining them individually.

to ascertain whether Hinton’s testimony was

improperly used, is both impractical and un-

palatable. To so defile the secrecy of the grand jury

process is to compound the problem the Govern-

ment has created, rather than to alleviate it. The

alternative of convening a grand jury distinct from

that which heard the immunized testimony is not

so onerous as to justify the jeopardizing of a

detendant’s Fifth Amendment rights.

— ee eee

*See also, United States v. Dornau, 359 F Supp. 684, 687 (S.D.N.Y. 1973),

rev'd on other grounds, 491 F.2d 473 (2d Cir. 1974), United States v. Mc-

Daniel, 482 F.2d 305, 312 (8th Cir. 1973).

17

U.S. v. Hinton, 543 F.2d 1002. 1010 (2d Cir. 1976)

(footnotes omitted). In Hinton. the court reversed the

conviction of a defendant who gave immunized testimony

before the same grand jury that later indicted her for

conspiracy to violate the federal narcotics laws.

Here, the Court of Appeals affirmance was based on an

analogy to a recent case, United States v. Camporeale. 515

F.2d 184, 189 (2d Cir. 1975), which affirmed the practice

of permitting the same grand jury which heard the witness

to indict him for perjury. Petitioner contends that such

analogy is misleading and incorrect. Here, truthful and.

therefore. immunized testimony of Langella was used to

prove the contempt. In Caumporeale, there was no in-

dication that Camporeale’s truthful testimony was relied

upon to prove the perjury. Camporeale dealt only with the

use by the grand jury of false and, therefore, unimmunized

testimony. The Court of Appeals’ reliance upon Cam-

poreale to support the use by this grand jury of immunized

testimony is entirely misplaced, for truthful answers given

under a grant of immunity cannot be used in any way in a

criminal prosecution against that witness. United States v.

Hockenberry, 474 F.2d 247 (3d Cir. 1973).

In simplest terms, the witness was promised that if he

answered questions truthfully, they would not be used

against him in a criminal prosecution. With this assurance

he confessed himself a gambler and associate of suspect

persons, and he answered substantive questions concerning

his participation in the planning of the murder under

investigation. The probity of these facts is apparent and

their use by the grand jury is conceded. Thus, Langella’s

Fitth Amendment rights were violated.

This Court should grant the petition for a writ of

certiorari to review the constitutionality of such grand jury

procedure under the Fifth Amendment and to reaffirm the

requirement of Aastigar that immunized testimony may

not, in a criminal prosecution. be used in any way against a

witness.

18

CONCLUSION

THE PETITION FOR CERTIORARI SHOULD

BE GRANTED, THE JUDGMENT BELOW

REVERSED, AND THE WRIT OF HABEAS

CORPUS GRANTED.

Respectfully submitted,

NANCY ROSNER

Attorney for Petitioner

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuit

No. 83—September Term, 1976.

(Argued September 13, 1976 Decided November 22, 1976.)

Docket No. 76-2050

JERRY LANGELLA,

Petitioner-A ppellant,

v.

CoMMISSIONER OF CorREcTIONS, StaTE oF New York,

Respondent-A ppellee.

Before:

SmitH, Oakes and MESKILL,

Circuit Judges.

Appeal from denial of petition for a writ of habeas

corpus by the United States District Court for the South-

ern District of New York, Charles L. Brieant, Jr., Judge.

Appellant was convicted in state court on plea of guilty

to criminal contempt for refusing to answer questions

posed by a New York grand jury, and attacks his con-

viction as in violation of 18 U.S.C. § 2515 and the fifth

amendment.

Affirmed.

ee

2a

Nancy Rosner, New York, N.Y., for Appellant.

Henry J. Sreinciass, Assistant District Attor-

ney (Robert M. Morgenthau, District At-

torney, New York County, Peter L. Zim-

roth, Assistant District Attorney, of coun-

sel), for Appellee.

Smitu, Circuit Judge:

Jerry Langella appeals the denial of his petition for

a writ of habeas corpus by the United States District

Court for the Southern District of New York, Charles

L. Brieant, Jr., Judge. Langella argues that his convic-

tion for criminal contempt for refusing to answer the

questions of a New York grand jury violates 18 U.S.C.

§ 2515 and the fifth amendment. We affirm.

I.

In 1972 Langella was subpoenaed to appear before a

New York County grand jury investigating the death of

Joseph Gallo in April, 1972. On December 19, 1972 Jus-

tice Jawn Sandifer, Supreme Court (New York), denied

Langella’s motion to quash the subpoena. The motion

was based on a claim that the questions to be asked by

the grand jury were the product of illegal electronic sur-

veillance. Justice Sandifer, on the prosecution’s repre-

sentation that a court surveillance order had been ob-

tained, rejected Langella’s request that a hearing be held.

On the same day Langella appeared before the grand

jury and was given “transactional” immunity.’ While he

1 [Y]ou are a witness in this legal proceeding and you cannot be

convicted of any offense or be subjected to any penalty or forfei-

ture for or on aceount of any transaction, matter or thing concern-

ing which you give evidence in this legal proceeding. You possess

immunity from any such conviction, penalty or forfeiture. How-

3a

answered some questions, Langella refused, after con-

sulting with his attorney, to answer other questions, and

on January 16, 1973 he was indicted, pursuant to New

York Penal Law § 215.51 (McKinney 1975), for criminal

contempt for refusing to answer two questions. In June,

1975 Justice George Roberts, Supreme Court (New York),

denied Langella’s motion to dismiss the indictment, and

on June 18, 1975 Langella pleaded guilty. On July 24,

1975 he was sentenced to five months’ imprisonment.

On March 4, 1976 the Appellate Division, First De-

partment, affirmed his conviction without opinion, and

April 13, 1976 the New York Court of Appeals denied

leave to appeal.

Langella then filed a petition for a writ of habeas corpus,

which Judge Brieant denied on May 12, 1976. On appeal

Langeiia claims that the grand jury’s questions were de-.

rived from illegal electronic surveillance in violation of

18 U.S.C. § 2515* and that it is a violation of the fifth

ever, even though you possess such immunity you may nevertheless

be convicted of perjury as a result of having given false testimony

in this legal proceeding and vou may be convicted of or adjudged

in contempt as a result of having contumatiously [sic] refused

to give evidence. I further tell you that this grand jury proceeding

is a legal proceeding and to give evidence here means to testify

or to produce physical evidence.

Statement of Immunity.

2 Langella was indicted for refusing to answer “whether he visited 101

Gedney Street in Nyack, New York during the month of April, 1972;

and, whether inside the apartment LK, at 101 Gedney Street in Nyack,

New York, after April 7, 1972, he also spoke with Joseph Luparelli.”

3 18 U.S.C. § 2515 provides:

Whenever any wire or oral communication has been intercepted,

no part of the contents of such communication and no evidence

derived therefrom may be received in evidence in any trial, hearing,

or other proceeding in or before any court, grand jury, department,

officer, agency, regulatory body, legislative committee, or other au-

thority of the United States, a State, or a political subdivision

thereof if the disclosure of that information would be in violation

of this chapter.

4a

amendment for the same grand jury that heard his im-

munized testimony later to indict him for contempt.

II.

Before reaching the merits of Langella’s claims, we must

deal with New York’s vigorous argument that this court

cannot consider these claims because they were not pre-

sented to the United States District Court, because Lan-

gella by-passed the New York courts, and because he

pleaded guilty. The first two arguments are without merit.

Judge Brieant’s opinion indicates that the issues were fully

presented to the district court. Justice Roberts’ opinion

and the brief Langella presented to the Appellate Division

indicate that the substance of these issues was also pre-

sented to the New York courts. Picard v. Connor, 404 U.S.

270, 278 (1971). )

On the third contention, relying on People v. Melton, 35

N.Y.2d 327, 329 (1974), and People v. Lynn, 28 N.Y.2d 196,

201-03 (1971), New York argues that under New York law

Langella’s claims are not reviewable in New York on appeal

after a guilty plea and thus, under Lefkowitz v. Newsome,

420 U.S. 283 (1975), Langella is foreclosed from pursuing

these claims in a federal habeas corpus proceeding.

Both Melton and Lynn, however, involve appeals from

a coram nobis proceeding in which the defendant initially

failed to appeal after pleading guilty. People v. Gleeson,

354 N.Y.S.2d 207, 208 (App. Div. 1974), rev’d on other

grounds, 36 N.Y.2d 462 (1975), holds that despite a guilty

plea a defendant retains his right to appeal the denial of

his suppression motion, pursuant to New York Criminal

Procedure Law (NYCPL §710.70(2) (McKinney 1971).

Judge Brieant held that under Lefkowitz, Langella’s plea

of guilty did not foreclose his pursuing his claims in a

federal habeas corpus proceeding. See also Menna v. New

York, 423 U.S. 61 (1975) (per curiam). Lefkowitz involved

Sa

a fourth amendment claim, and Menna involved a fifth

amendment claim. We agree with Judge Bricant that

NYCPL §710.20(2) and §710.70(2)* permit Langella to

challenge the legality of the electronic surveillance and

that NYCPL § 210.20(1)(c) and § 210.20(1)(d)* (McKin-

ney 1971), permit him to challenge the same grand jury’s

hearing his testimony and then indicting him.*

4 NYCPL §710.20(2) provides:

Upon motion of a defendant who (a) is aggrieved by unlawful

or improper acquisition of evidence and has reasonable cause to

believe that such may be offered against him in a criminal action,

or (b) claims that improper identification testimony may be offered

against him in a criminal action, a court may, under circumstances

prescribed in this article, order that such evidence be suppressed

or excluded upon the ground that it:

2. Consists of a record or potential testimony reciting or describ- .

ing declarations or conversations overheard or recorded by means

of eavesdropping, obtained under circumstances precluding admis-

sibility thereof in a criminal action against such defendant... .

NYCPL §710.70(2) provides:

An order finally denying a motion to suppress evidence may be

reviewed upon an appeal from an ensuing judgment of conviction

notwithstanding the fact that such judgment is entered upon a plea

of guilty.

5 NYCPL §210.20(1)(¢) and (1)(d) provide:

1, After arraignment upon an indictment, the superior court may,

upon motion of the defendant, dismiss such indictment or any count

thereof upon the ground that:

(ec) The grand jury proceeding was defective, within the mean-

ing of section 210.35; or

(d) The defendant has immunity with respect to the offense

charged, pursuant to section 50.20 or 190.40.

6 Tollet v. Henderson, 411 U.S. 258, 266 (1973), holds that a guilty

plea precludes a federal habeas corpus claim that the composition of the

indicting grand jury violated the fourteenth amendment. Blackledge v.

Perry, 417 U.S. 21, 30 (1974), explains that in Tollet the tainted indict-

ment “could have been ‘cured’ through a new indictment by a properly

selected grand jury.” Here Langella argues that there must be both

a new grand jury and redaction of his truthful immunized answers.

6a

Il.

In In re Persico, 491 F.2d 1156 (2d Cir.), cert. denied,

419 U.S. 924, reh. denied, 419 U.S. 1060 (1974), we held

that under 18 U.S.C. § 2515 a witness before a federal

grand jury is not entitled to a suppression hearing during

the grand jury’s proceedings unless (1) there is not a valid

court order for the electronic surveillance, (2) the govern-

ment concedes the surveillance is illegal, or (3) there is a

prior judicial determination that the surveillance was il-

legal. Id., 1162. Section 2515 also applies to a witness

before a state grand jury. United States v. Marion, 535

F.2d 697, 701 (2d Cir. 1976).

Langella relies on the first exception set out in Persico.

At the December 19, 1972 hearing the prosecutor told

Justice Sandifer that Langella’s attorney “inquired of me

whether or not there was electronic eavesdropping. The

people told them [sic] that it was. In addition I told them

that we had a Court order” (A. 22). Langella’s attorney

asked the court to determine whether “all the questions to

be asked by the government are based only on lawful inter-

ceptions, and not on any other unlawful interceptions”

(A. 25). Justice Sandifer denied this request.

In People v. Einhorn, 35 N.Y.2d 948 (1974) (per curiam),

the New York Court of Appeals set out the procedure to

be followed by a grand jury witness who claims the ques-

tions being posed violate 18 U.S.C. § 2515: “The request

during the Grand Jury proceeding by the witness that he

be brought before the court must be respected and once

there the Presiding Justice may make appropriate inquiry

whether the witness’ objection is sound.” Id., 949. The

New York procedure, as set out in Einhorn, complies with

18 U.S.C. § 2515.

When the grand jury asked Langella whether he had

been receiving messages from Joseph Gorgone about the

7a

murder of Joseph Gallo, Langella, after consulting for the

fourth time with his attorney, asked whether the question

was based on electronic surveillance and requested that he

be taken before a judge. His request was denied. Upon

his continuing to be recalcitrant and to request that he be

taken before a judge, he was excused by the grand jury.

But the two questions for which Langella was held in con-

tempt were asked earlier in the grand jury proceedings

(A. 49, 61, 65, 69-70, 71, 75-77). Although he had already

consulted three times with his attorney, Langella never

told the grand jury that his refusal to answer these two

questions was based on his claim that they were the prod-

uct of an illegal electronic surveillance.

The hearing here occurred before Einhorn, which would

today govern the procedure in the New York courts in a

similar case. Justice Sandifer’s denial of Langella’s pre-

appearance motion, on the prosecutor’s assurance of the

existence of a court order for the electronic surveillance,

essentially meets the requirements of Einhorn and consti-

tutes a sufficient accommodation of the needs of the grand

jury with those of the witness. Gelbard v. United States,

408 U.S, 41, 70 (1972) (White, J., concurring). Moreover,

Langella failed thereafter to make a timely request for

further determinatic.: as to the source of the two questions

which were the subject of the contempt indictment. The

court had been informed that the surveillance was pursu-

ant to court order and denied the motion. Later Langella

refused to answer the question on which the indictment for

contempt was based, until he could see his lawyer. After

consulting his lawyer, he persisted in evading answers, but

not on any claim the questions were based on illegal sur-

veillance. Later, after being asked about one Gorgone,

a/k/a Black, he asked to see a judge to determine whether

that question arose from illegal surveillance. Here there

was a sufficient compliance with the requirements of Ein-

8a

horn on the earlier motion, and nothing new was raised

before the grand jury to require a new hearing as to the

source of the particular questions the witness refused to

answer, which refusal was the basis of the contempt con-

viction.

IV.

Langella claims that his indictment by the same grand

jury that heard his immunized testimony violates the fifth

amendment. He argues that Kastigar v. United States, 406

U.S. 441 (1972), puts the burden on the government to

show that the immunized testimony was not the basis of

the subsequent indictment and that it is impossible to meet

this burden when the grand jury which hears his truthful

but highly prejudicial answers to some of its questions’

also indicts for contempt. His proposed solution is to have

a different grand jury examine the transcript of his testi-

mony, with all the truthful answers being redacted.

One problem with this proposed solution is that in decid-

ing on a charge of criminal contempt, the second grand

jury would also want to know the extent of his answers to

questions. To be guilty of contempt under New York Penal

Law § 215.51 a “witness need not flatly refuse to answer

the questions put to him; false and evasive profession of

an inability to recall, which amounts to no answer at all,

is punishable as criminal contempt.” People v. Ianniello,

36 N.Y.2d 137, 142 (1975).

In United States v. Camporeale, 515 F.2d 184, 189 (2d

Cir. 1975), we affirmed “the settled practice of permitting

the same grand jury which heard the witness to file an

indictment charging him with perjury. Having had the

opportunity tc observe his demeanor on the stand, it was

7 Langella told the grand jury that he was a gambler, that he had not

filed income tax returns for a number of years, and that he was the

bodyguard of Alphonse Persico.

9a

in a superior position to determine whether there were

reasonable grounds to believe that he was deliberately giv-

ing false [immunized] testimony. The grand jury’s knowl-

edge of a witness’ prior criminal record, furthermore,

should not preclude its filing the indictment, which merely

represents a charge.” We think similar considerations war-

rant having the same grand jury return the indictment for

criminal contempt,’ especially where, as here, the charged

contempt involved refusal to answer, not any crime re-

vealed in the immunized answers.

Affirmed.

8 In United States v. Hinton, —— F.2d ——, slip op. 5679 (2d Cir.

Sept. 27, 1976), this court held that it was reversible error for the same

federal grand jury which heard Hinton's immunized testimony in 1973

concerning narcotics transactions to indict her in 1975 for violating

federal narcotics laws. We noted that Hinton’s appeal did not involve

perjury or contempt. /d., 5692 n. 9.

10a

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JERRY LANGELLA,

Petitioner.

Vv

COMMISSIONER OF CORRECTIONS,

STATE OF NEW YORK,

Respondent.

No. 76 Civ. 1790-CLB.

May 12, 1976.

State prisoner who, upon his plea of guilty, was con-

victed of criminal contempt in the first degree filed petition

for writ of habeas corpus. The District Court, Brieant, J.,

held that the state prosecutor's oral representation, in

response to petitioner's motion to quash grand jury sub-

poena on ground that the questions likely to be asked of

him were derived from unlawful electronic surveillance,

that such surveillance was employed, but was conducted

pursuant to court order, was constitutionally sifficient even

if a different procedure would be required of federal

prosecutors; that there was no reason why the grand jury

before whom petitioner testified under a grant of immunity

could not thereafter indict him for contempt, based in part

on the jurors’ own observation of his demeanor while

refusing to answer questions; that where petitioner ad-

mitted having committed the offense of criminal contempt,

he thereby waived any objection that the indictment was

founded on insuf.icient evidence and was a result of bias or

prejudice of the grand jurors; and that petitioner's claim

that he was deprived of his right to confer with counsel

lla

during his appearance before grand jury was un-

substantiated by the record.

Petition denied.

1. Habeas Corpus — 25.1(1)

When state law permits a defendant to plead guilty

without forfeiting his right to judicial review of specified

constitutional issues, the defendant is not foreclosed from

pursuing those constitutional claims in a federal habeas

corpus proceeding. 28 U.S.C.A. §2254.

2. Habeas Corpus — 30(1)

Although petitioner pleaded guilty to charge of criminal

contempt in the first degree, he was not precluded from

raising, on petition for federal writ of habeas corpus,

claims that he was denied his right not to be compelled to

answer, before state grand jury, questions derived as a

result of unlawful electronic surveillance, that his Fifth

Amendment rights were abridged when he was indicted for

contempt by the same grand jury which heard testimony he

had given under a grant of immunity, and that he was

denied his Sixth Amendment right to counsel when he was

not permitted to consult with his attorney during his in-

terrogation before the grand jury. Penal Law N.Y. §215.51;

28 U.S.C.A. §2254; 18 U.S.C.A. §2515; U.S.C.A. Const.

Amends. 4-6.

3. Grand Jury — 36

State prosecutor's oral representation, in response to

petitioner's motion to quash grand jury subpoena on

ground that the questions likely to be asked of him were

derived from unlawful electronic surveillance, that such

surveillance was employed, but was conducted pursuant to

court order, was constitutionally sufficient even if a dif-

ferent procedure would be required of federal prosecutors.

18 U.S.C.A. §2515.

12a

5. Grand Jury — 36

Power of criminal contempt is lawfully available in aid of

a state grand jury's investigations. Penal Law N.Y.

§215.S!.

6. Grand Jury — 36

Any grand jury that would consider whether an accused

committed criminal contempt would have to determine

that there was probable cause to believe he refused to

answer a “legal and proper interrogatory” and refused with

the requisite criminal intent, i.e., ““contumaciously and

unlawfully." Penal Law N.Y. §215.51.

7. Grand Jury — 36

Since any grand jury could consider in its entirety the

transcript of petitioner's grand jury appearance to

determine the propriety of the questions which he refused

to answer, and whether he acted with specific criminal

intent. there was no reason why the grand jury before

whom petitioner testified under a grant of immunity could

not thereafter indict him for contempt, based in part on the

jurors’ own observation of his demeanor while refusing to

answer questions. Penal Law N.Y. §215.51.

8. Indictment and Information — 196(3)

Where petitioner admitted having committed the offense

of criminal contempt, he thereby waived any objection that

the indictment was founded on insufficient ev’ “nce and

was a result of bias or prejudice. Penal Law N.Y. §215.51.

9. Grand Jury — 36

Petitioner's claim that he was deprived of his right to

confer with counsel during his appearance before the grand

jury was unsubstantiated by the record, which indicated

that at no point did petitioner answer any question without

13a

having the opportunity to confer with counsel. U.S.C.A.

Const. Amend. 6.

Nancy Rosner, New York City, for petitioner.

Robert M. Morgenthau, Dist. Atty., by Henry J.

Steinglass, Asst. Dist. Atty., New York City, for

respondent.

MEMORANDUM AND ORDER

BRIEANT, District Judge.

Upon his plea of guilty, petitioner was convicted in the

Supreme Court of the State of New York, New York

County on July 24, 1975, of criminal contemp., in the first

degree, N.Y. Penal Law §215.51. Petitioner was sentenced

to aterm of five months imprisonment.! He was permitted

to continue on bail pending review by the state appellate

courts. The Appellate Division of the Supreme Court, First

Department, affirmed the judgment of conviction and the

New York Court of Appeals denied petitioner leave to

appeal. Petitioner, having exhausted his state remedies,

seeks a writ of habeas corpus, pursuant to 28 U.S.C.

§2254.2

|. Since petitioner was sentenced to a term of five months imprisonment, he

would not be remanded to the custody of the Commissioner of Corrections of

the State of New York. Rather, he would serve his sentence in the custody of

the correctional system of the City of New York. Process here has been served

upon both City and State officials, and the District Attorney of New York

County has entered a general appearance, waiving whatever defect there may

be in naming the appropriate party respondent.

2. Petitioner brought on his motion by order to show cause, issued April 20,

1976, the date on which he was to surrender to State custody. A stay of

surrender was granted pending hearing of this motion and was thereafter

extended pending its determination. To expedite consideration of this petition,

both sides agreed to submit the merits of the controversy upon briefs filed on

direct appeal with the Supreme Court of the State of New York, Appellate

Division. An evidentiary hearing was waived. There are no disputed factual

issues.

14a

Petitioner attacks his conviction on three separate

constitutional grounds. First, petitioner contends that he

was denied his right not to be compelled to answer before a

State grand jury, questions that were derived as a result of

unlawful electronic surveillance. Petitioner contends that

this right is derived from 18 U.S.C. §2515 and the Fourth

and Fifth Amendments of the United States Constitution.

Second, petitioner contends that his Fifth Amendment

rights were abridged when he was indicted for criminal

contempt by the same grand jury that heard testimony he

had given under a grant of immunity. Finally, petitioner

contends that he was denied his Sixth Amendment right to

counsel when he was not permitted to consult with his

attorney during his interrogation before the grand jury.

{1, 2] At the outset, respondent contends that since

petitioner pleaded guilty, and there is no explicit statutory

right to reserve his objections, these objections were waived

by his plea and therefore this Court is barred from con-

sidering them. Lefkowitz v. Newsome, 420 U.S. 283, 293,

95 S.Ct. 886, 891, 43 L.Ed.2d 196 (1975), held that

‘When state law permits a defendant to plead

guilty without forfeiting his right to judicial review

of specified constitutional issues, the defendant is

not foreclosed from pursuing those constitutional

claims in a federal habeas corpus proceeding.”

In Newsome, the Court found that New York Criminal

Procedure Law (“*N.Y.C.P.L.”), §§710.20(1) and 710.70(2)

permitted a defendant, after pleading guilty, to appeal the

denial of his motion to suppress evidence allegedly ob-

tained as a result of an unlawful search and seizure. Ac-

cordingly, there was no bar to consideration of these claims

upon a petition for a federal writ of habeas corpus.

Petitioner's claim that he was compelled to answer

questions derived from unlawful electronic surveillance is

similar to the Fourth Amendment claim raised in

Newsome. Although petitioner could not move to suppress

15a

this alleged fruit of the poisonous tree, petitioner did in-

voke his federal constitutional and statutory rights with

regard to the alleged wiretap information.

Similarly, petitioner's second claim, that he was

deprived of his Fifth Amendment rights because the same

grand jury heard his immunized testimony and later in-

dicted him for contempt, is not barred. The issue raised

here is whether this particular grand jury, in accordance

with law, could return this indictment. New York permits a

defendant to move to dismiss the indictment after his plea

of guilty if “[t]he grand jury proceeding was defective,

within the meaning of [N.Y.C.P.L. §] 210.35” or if [t]he

defendant has immunity with respect to the offense

charged, pursuant to section 50.20 or 190.40." N.Y.C.P.L.

§$§210.20(1)(c), (1)(d), (2).

Petitioner moved to dismiss the indictment, which

motion was denied in June 1975, and shortly thereafter, on

June 18, 1976, he pleaded guilty. There was no doubt but

that petitioner refused to answer the questions

propounded, and the only issues raised were issues of law,

whether there was just cause for the petitioner's refusal to

answer. When the issues of law were decided adversely to

petitioner, there were no issues remaining for trial. These

legal issues provide fair ground for litigation and the Court

declines to view petitioner's plea of guilty as a waiver of the

constitutional claims that he sought to raise in the state

courts. We therefore proceed to a consideration of the

merits of petitioner's claims.

Petitioner was subpoenaed to testify under a grant of

immunity before the State grand jury investigating the 1972

murder of one Joseph Gallo, an organized crime figure who

was shot in an early morning restaurant killing. Petitioner

moved to quash the subpoena on the ground that the

questions likely to be asked of him were derived from

unlawful electronic surveillance. In the course of the

hearing on the motion to quash, the Assistant District

16a

Attorney stated that there had been electronic

eavesdropping conducted in the investigation of this case,

but that this had been done pursuant to an eavesdropping

warrant issued by the Court. The prosecutor also stated

that he had so informed petitioner’s prior counsel on a

previous occasion (A-22-23).3 The Court denied

petitioner's motion to quash the subpoena. Petitioner

raised the same argument upon his motion to dismiss the

contempt indictment, which motion was also denied.

|3] Petitioner relies upon 18 U.S.C. §2515 and Gelbard

v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d

179 (1972). Gelbard held that §2515 was available as a

defense to a contempt charge, and that a grand jury witness

may refuse to answer questions derived from unlawful

electronic surveillance. In Gelbard and its companion case,

United States v. Egan, the issue arose as a defense to a

contempt charge, and not upon motion to quash a grand

jury subpoena. Neither Gelbard nor §251S require the state

court to quash a grand jury subpoena upon the speculation

that the questions to be asked are derived from a tainted

source. 408 U.S. at 60-61, 92 S.Ct. 2357.

Petitioner contends that a mere statement by the

prosecutor that electronic surveillance was conducted

pursuant to court order is an insufficient response and that

therefore §2515 bars an adjudication of contempt. Justice

White in a concurring opinion provided the decisive vote

for the majority in Ge/bard. Obviously concerned lest a

recalcitrant witness be empowered to obstruct the lawful

investigations of a grand jury, Justice White concluded:

‘Where the Government produces a court order

for the interception, however, and the witness

nevertheless demands a full-blown suppression

hearing to determine the legality of the order, there

3. Page references are to pages as numbered in Appellant's Brief and Ap-

pendix in the Supreme Court. Appellate Division.

17a

may be room for striking a different ac-

commodation between the due functioning of the

grand jury system and the federal wiretap statute.

Suppression hearings in these circumstances would

result in protracted interruption of grand jury

proceedings. At the same time. prosecutors and

other officers who have been granted and relied on

a court order for the interception would be subject

to no liability under the statute, whether the order

is valid or not; and, in any event, the deterrent

value of excluding the evidence will be marginal at

best. It is well, therefore. that the Court has left

this issue open for consideration by the District

Court on remand.” /d., at 70, 92 S.Ct. at 2372.

In accord with Justice White's views, Jn re Persico, 491

F.2d 1156 (2d Cir.), cert. denied, 419 U.S. 924, 95 S.Ct.

199, 42 L.Ed.2d 158 (1974), upheld an adjudication of civil

contempt where a grand jury witness refused to answer

questions derived from court-ordered electronic sur-

veillance. The trial court declined to conduct a suppression

hearing but did examine the orders in camera and

determined that they appeared proper on their face. In

affirming the adjudication, the Court said:

“We hold that in contempt proceedings initiated

when a witness who has been granted ‘derivative

use’ immunity refuses to answer questions

propounded by a grand jury because he claims he

is entitled to a hearing to ascertain whether the

questions posed are the product of unlawful

electronic surveillance the witness is not entitled to

a plenary suppression hearing to test the legality of

that surveillance. We hold that the refusal would

be permissible only if there is an absence of a

necessary court order or if there is a concession

from the Government that the surveillance was not

in conformity with statutory requirements or if

18a

there is a prior judicial adjudication that the

surveillance was unlawful.’ [Emphasis in original|

491 F.2d at 1662.

The procedure devised by the District Court in Persico,

of examining the court order in camera has been approved

and followed by other federal courts. See Drobuck v.

United States, SOY F.2d 625 (9th Cir. 1974), cert. denied

421 U.S. 964, 95 S.Ct. 1389, 43 L:Ed.2d 650 (1975); In re

Grand Jury Proceedings — United States v. Worobyzt. 522

F.2d 196, rehearing denied 525 F.2d 693 (Sth Cir. 1975).

Concededly, a facial examination of the court order may

not reveal whether there was in fact probable cause for the

issuance of the order, or whether the order was executed

according to its terms, observing “minimization” and

respecting privileged communications. Nevertheless, this

procedure strikes a necessary balance between the rights of

the witness and the needs of the grand jury.

[4] Although a federal district court may be required to

follow the Persico procedure, neither Gelbard nor federal

statute requires that state courts observe a _ similar

procedure. The state prosecutor's oral representation that

electronic surveillance was employed, but conducted

pursuant to court order, was constitutionally sufficient

even if a different procedure would be required of federal

prosecutors s

|5| We are mindful that Jn re Persico and other federal

cases arose upon an adjudication of civil contempt, pur-

suant to 28 U.S.C. §1826, during ongoing investigations by

the grand jury. Here, the contempt was committed on

December 19, 1972; petitioner was indicted on January 16,

4. Although by its terms 18 U.S.C. §251S applies both to federal and state

grand jury proceedings, 18 U.S.C. §3504 applies only to federal proceedings.

Therefore. the gloss placed on that statute in cases where federal prosecutors

deny the use of electronic surveillance does not apply here. Cy.. United States v.

Grusse. 515 F.2d 157 (2d Cir. 1975); In re Buscaglia, S18 F.2d 77 (2d Cir.

1975): United States v. Toscanino. SOO F.2d 267. 281 (2d Cir. 1974).

19a

1973, and the charge was not disposed of until petitioner's

plea of guilty on June 18, 1975. Clearly, the disruption of

the grand jury proceedings that would have been oc-

casioned by a plenary suppression hearing is not the same

as where the power of civil contempt is used to coerce the

giving of testimony before a sitting grand jury. The very

delay in the prosecution of these charges supports this

conclusion. Nevertheless, the power of criminal contempt is

lawfully available in aid of the state grand jury's in-

vestigations. Threatened with the possibility of a sub-

sequent criminal prosecution, a witness will be more in-

clined to obey the lawful orders of the Court and grand

jury. The determination of lawfulness required by Gelbard

must be prompt even in this context, so that a witness may

guide his conduct before the grand jury accordingly.

The second ground raised by petitioner is that the Fifth

Amendment privilege against self-incrimination barred his

indictment for criminal contempt by the same grand jury

which heard his testimony under a grant of immunity. The

New York Court of Appeals, considering other con-

stitutional objections, has upheld the procedure followed

here. People v. Mulligan, 29 N.Y .2d 20, 323 N.Y.S.2d 681,

272 N.E.2d 62 (1971). See also People v. Ward. 37 App.-

Div.2d 174, 323 N.Y.S.2d 316 (1st Dept.1971).

[6] Section SO.10(1) of the N.Y.C.P.L. provides:

“A person who possesses ... immunity may

nevertheless be convicted of perjury as a result of

having given false testimony in such legal

proceeding, and may be convicted of or adjudged

in contempt as a result of having contumaciously

refused to give evidence therein.”

See N.Y.C.P.L. §§190.35, 190.40. Kastigar v. United

States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)

held that 18 U.S.C. §6002, which granted more limited use

immunity, was coextensive with the Fifth Amendment

privilege although it too permitted prosecution for con-

tempt. Since petitioner could be prosecuted for contempt.

20a

the only issue here is whether the same grand jury which

heard his testimony could thereafter return a true bill of

indictment for contempt.

A New York grand jury may indict a person only when

‘‘(a) the evidence before it is legally sufficient to

establish that such person committed such offense

and (b) competent and admissible evidence before

it provides reasonable cause to believe that such

person committed such offense.” N.Y.C.P.L.

§190.6S.

Any grand jury that would consider whether an accused

committed criminal contempt would have to determine

that there was probable cause to believe that he refused to

answer a “legal and proper interrogatory” and did so

refuse with the requisite criminal intent, that is ‘‘con-

tumaciously and unlawfully."" N.Y. Penal Law §215.51.

[7| Langella appeared before the grand jury and an-

swered responsively to a meager number of questions.

Under these circumstances, any grand jury that would

consider indictment might need to examine the transcript

of his appearance in its entirety to determine whether the

questions were proper, and whether the witness acted with

the requisite specific criminal intent. Since any grand jury

could consider the transcript in its entirety, and receive

parol evidence of the witness’ demeanor in the grand jury

room, there is no reason why the grand jury before whom

Langella testified under grant of immunity could not

thereafter indict him for contempt, based in part on the

jurors’ own observation of his demeanor while refusing.

[8] Petitioner contends that certain testimony which he

gave must have prejudiced the grand jury. Langella

testified that he was a professional gambler (A-53), that he

had not filed income tax returns for a number of years (A-

52)5 and that he was a close friend of Alphonse Persico (A-

5. Petitioner volunteered this information in an unresponsive answer to the

question of what his occupation was.

2la

100), a person alleged to have been involved in the subject

murder investigation. There was sufficient evidence upon

which the grand jury could indict for contempt, and there

is no reasonable basis for inferring bias or prejudice on the

part of the grand jurors. See United States v. Polizzi, 500

F.2d 856, 887-88 (9th Cir. 1974), cert. denied 419 U.S.

1120, 9S S.Ct. 802, 42 L.Ed.2d 820 (1975), quoting

Silverthorne v. United States. 400 F.2d 627, 634 (9th Cir.

1968), cert. denied 400 U.S. 1022, 91 S.Ct. 585, 27

L.Ed.2d 633 (1971):

“The quantum of evidence necessary to indict is

not as great as that necessary to convict. If a grand

jury is prejudiced by outside sources when in fact

there is insufficient evidence to indict, the greatest

safeguard to the liberty of the accused is the petit

jury and the rules governing its determination of a

defendant's guilt or innocence."’

The safeguard against the prejudice claimed here would

have been a trial on the merits. Petitioner admitted having

committed the offense and thereby waived any objection

that the indictment was founded on insufficient evidence

and was a result of the bias or prejudice of the grand jurors.

Goldberg v. United States, 472 F.2d 513 (2d Cir. 1973)

and United States v. Dornau, 359 F.Supp. 684 (S.D.N.Y.

1973), rev'd 491 F.2d 473 (2d Cir. 1974), relied upon by

petitioner, are inapposite. In each of those cases, the Court

was concerned with whether a defendant could be indicted

by a grand jury, after it heard his testimony under a grant

of use immunity, for transactions concerning which he had

testified. Under those circumstances, to insure against

direct and derivative use of the testimony, in accordance

with the immunity conferred, it may be necessary to

present the evidence to another grand jury. Here, the

immunity conferred specifically excluded the crime of

contempt.

Petitioner's final contention is that he was deprived of his

22a

Sixth Amendment right to counsel because he was not

permitted to consult with his attorney when questions arose

concerning the scope of his immunity. Petitioner contends

that the limited right of a grand jury witness to consult with

his counsel is grounded in the Sixth Amendment. There is

reason to doubt that the term “‘criminal prosecution” used

in the Sixth Amendment encompasses a grand jury in-

vestigation. See Counselman v. Hitchcock, 142 U.S. 547,

563, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). For purposes of

this argument. however, we assume that the rights con-

ferred upon a state grand jury witness by People v. lan-

niello, 41 N.Y.2d 418, 288 N.Y.S.2d 462, 235 N.E.2d 439

(1968), are rights secured by the United States Con-

stitution.

Langella conferred with his attorney prior to entering the

grand jury room. After being advised that the grand jury

was investigating the Gallo murder and that he was

testifying under a grant of immunity except for the crimes

of perjury and contempt, he was asked if he had any

questions about his appearance before the grand jury and

answered that he had none (A-41). Langella stated his

name and address but when he was asked his occupation,

he made his first request to confer with counsel and was

excused from the room to permit him to discuss the

question with his attorney.

|9| In the approximately one hour and forty minutes that

he was in the grand jury room, Langella was excused to

conter with his attorney on four separate occasions for a

total of approximately forty minutes. During the time that

he was present before the grand jury, petitioner refused to

answer the questions put to him and succeeded in his effort

to engage in a fencing match with the Assistant District

Attorney over his right to consult with counsel. At no»point

did the prosecutor deny petitioner's requests and petitioner

did not answer any question without having the op-

portunity to confer with counsel. In sum, petitioner was not

deprived of his right to confer with counsel during his

appearance betore the grand jury.

23a

The petition for a writ of habeas corpus is in all respects

denied.

Although we find his claims wanting in merit, they

concern sensitive constitutional issues and present fair

ground for litigation. Accordingly, pursuant to 28 U.S.C.

$2253 and Rule 22(b), F.R.App.P., petitioner is hereby

granted a certificate that probable cause exists to maintain

an appeal.

In view of the relatively short term of incarceration to

which petitioner has been sentenced, and the possibility

that he might be required to serve this sentence before the

substantial issues raised upon this petition could be

reviewed on appeal, petitioner's surrender will be stayed

pending appeal, and he will remain enlarged on his existing

bail unless the Court of Appeals shall direct otherwise.

Argro v. United States, 505 F.2d 1374, 1377-78 (2d Cir.

1974). The stay shall be conditioned upon a continued

compliance with all existing bail arrangements applicable

to petitioner.

So Ordered.

24a

APPENDIX C

MINUTES OF PROCEEDINGS BEFORE THE THIRD

AUGUST 1972 GRAND JURY DECEMBER 19, 1972

TESTIMONY OF JERRY LANGELLA

JERRY LANGELLA, called as a witness, having

been first duly sworn, testified as follows:

BY MR. TANENBAUM:

Q Mr. Langella, I wish to inform you that this grand jury

is investigating the death of Joseph Gallo. And they are

investigation—that is this grand jury is investigating the

crimes of murder and conspiracy to commit murder as well

as other related crimes. Do you understand that?

A Yes, | do.

Q | further instruct you that every witness in a grand jury

proceeding must give any evidence legally requested of him

regardless of any protest or belief on his part it may tend to

incriminate him. A witness who gives evidence in a grand

jury proceeding receives immunity unless he has waived it

and nobody has asked you to waive immunity, or such

evidence is not responsive to any inquiry and is

gratuitiously given or volunteered by the witness with

knowledge that it is not responsive. Do you understand?

A Yes. I think I do.

Q I mentioned the word “‘immunity” and I tell you that

if you give evidence in this proceeding you have what is

called transactual immunity. And I will explain that to you

right now.

A l wish you would.

Q You are a witness in this legal proceeding and you

cannot be convicted of any offense or be subjected to any

penalty or forfeiture for or on account of any transaction,

matter or thing concerning which you give evidence in this

legal proceeding. You possess immunity from any such

conviction, penalty or forfeiture. However even though you

25a

possess such immunity you may nevertheless be convicted

of perjury as a result of having given false testimony in this

legal proceeding and you may be convicted of or adjudged

in contempt as a result of having contumatiously refused to

give evidence. | further tell you that this grand jury

proceeding is a legal proceeding and to give evidence here

means to testify or to produce physical evidence. Do you

understand that, sir?

A Mr. Tanenbaum, may I ask you a question? I un-

derstand what you said. In other words, if I was to lie here I

would not get punished for perjury?

Q That is not correct. The immunity does not cover, Mr.

Langella—the immunity granted to you, the transactual

immunity granted to you, does not cover any possible

perjury or contempt. Do you understand that now?

A I think I do.

Q | further will tell you the law of criminal contempt in

the first degree. A person is guilty of criminal contempt in

the first degree when he contumatiously and unlawfully

refuses to be sworn as a witness before a grand jury or when

after having been sworn as a witness before a grand jury he

refuses to answer any legal and proper interrogatory. Do

you understand that, Mr. Langella?

A I imagine I do.

Q Do you have any questions concerning these legal

matters between you and this grand jury?

A No, I guess not.

Q Have you conferred with your lawyer Mr. Gellina?

A Yes, I did.

Q Now, you were just up in Part 30, is that correct, in the

Supreme Court, New York County?

A Yes.

Q And Justice Sanderford (phonetic) there directed you

to answer questions before this grand jury, is that correct?

26a

A If that is the judge’s name, that is correct.

Q That was done in the presence of your attorney Mr.

Gallina, is that correct, Mr. Langella?

A Yes. Mr. Tanenbaum.

Q Can we have your full name and address, please?

A Jerry Langelia, 1617 Cropsey Avenue.

Q And your occupation, please?

A | have to ask my lawyer that.

Q Do you understand all the legal matters concerning

you before this grand jury. Mr. Langella?

A | have to ask my lawyer.

Q Do you understand the legal matters concerning you

before the grand jury? Do you understand the question I

just asked you?

A I said | would have to ask my lawyer that.

Q Oh. do you understand the question I just asked you,

namely do you understand the legal matters concerning you

before this grand jury?

A | did answer the question. | would have to ask my

lawyer.

Q Well, Mr. Langella, I'm asking you a very simple

question. Do you, Mr. Langella, understand the legal

matters concerning you before this grand jury?

A Mr. Tanenbau, you are confusing me. Now I forgot the

question.

Q I'll repeat it. If at any time you forget the question or

don’t understand anything please indicate that. The

question is do you understand the legal matters concerning

you before this grand jury?

A Not really. You confuse me.

Q Would you like to discuss that with your lawyer?

A | don’t know what even to discuss with him right now.

27a

Q You indicated you wanted to discuss it with your

lawyer?

A You asked me a question a few minutes ago.

Q Do you intend to discuss with your lawyer after every

question is asked of you?

A I have to ask my lawyer.

Q Do you understand your lawyer is not allowed to be in

the grand jury?

A I have to ask him.

Q Go out and consult with your lawyer.

A As to what?

Q Everything you said in the grand jury.

A I imagine so.

Q Is that correct or not, Mr. Langella?

A It’s correct.

Q Please go out and confer with your lawyer.

(Witness is excused from the grand jury chamber at

this point.)

MR. TANENBAUM: It is now eight minutes after

three. (The witness reenters the grand jury chamber.)

MR. TANENBAUM: The record should reflect that

the witness left at 3:08 and it is now 3:15.

Q Have you conferred with your attorney, Mr. Langella?

A Yes, I did, Mr. Tanenbaum.

Q Now, do you understand the legal proceedings con-

cerning you before this grand jury?

A Do | have immunity here, Mr. Tanenbaum?

Q Do you understand the legal matters concerning you

before this grand jury?

A Do I have immunity?

Q Do you understand the question. Mr. Langella?

28a

A Do I have immunity here?

Q Do you understand the question | asked you?

A Do I have immunity?

Q It has already been explained you possess a :

known as transactual immunity. Do you understand that?

. . ° 9

A I'm asking a question. Do I have immunity:

Q Do you understand the question that is put to you,

Mr. Langella? Do you understand the legal matters

concerning you before this grand jury?

A I'm asking you a question. Do I have immunity?

Q It has already been explained to you, Mr. 2

you possess transactual immunity. Do you . oaeeaeees

that? Do you understand that, Mr. Langella‘

A Not really.

Q Did you discuss it with your lawyer?

A He wants to know if I would be prosecuted here or any

other state if I was to testify? |

QO Well, Mr. Langella, you have a a card that you just

read from, is that correct?

A Yes.

Q Was that given to you by the lawyer?

A Yes.

1 9

Q Now, you just talked to your lawyer, is that correct:

A Yes, | did. |

Q And you spoke with your lawyer prior to wang called

into this grand jury room today, isn’t that correct:

A Yes. | did.

Q And you discussed the matters that oom you

before this grand jury with those lawyers, didn't you:

A Yes. :

Q Now, you have been informed that you possess what is

29a

called transactual immunity which | explained to you.

A I have immunity in other words. Mr. Tanenbaum?

Q That is correct. That immunity, as I explained to you,

does not cover any perjury that you may commit before this

grand jury. And it does not cover any possible contempt

that you may commit before this grand jury.

A Does it consist of—

Q Do you understand that?

A —statements—

Q Do you understand that?

A Excuse me?

Q Do you understand that?

A What was the question again?

Q The question is that you possess transactual immunity

as I explained it to you. However that does not cover any

possible perjury which you may commit and or contempt

that you may commit. Do you understand?

A Yes.

Q Now, you are here to answer questions, Mr. Langella.

If it were otherwise other people will be answering

question. I informed you that your lawyer is not permitted

by law in New York State to be in this grand jury room.

Now the question that was put to you was would you please

tell this grand jury what, if any, your occupation is?

A I have to ask my lawyer that. I didn’t know what the

question was.

Q That is what you went out to ask your lawyer, Mr.

Langella, what is your occupation.

A I didn't ask him.

Q That you can choose to answer the question or not

answer the question.

A Il didn't ask him that.

30a

Q You went out to talk to your lawyer, Mr. Langella.

and it was clear what the question was. You. spoke to him

approximately ten minutes. It is a very simple question.

What is your occupation?

A Mr. Tanenbaum, you clocked me for me there with him

five minutes and I told you before I left the room I did not

know what I wanted to talk to my attorney about.

Q You indicated that you wanted to talk to your lawyer

about what your occupation was.

A | was confused.

Q What are you confused about?

A | am not as bright as you.

Q You are a very intelligent man. Tell the grand jury

what is confusing to you? .

A | don't know what to talk to him.

Q You want to speak to him and you didn't know what

to sspeak to him?

A He was confusing me.

Q Your lawyer?

A | said | don’t know why he told me to come out. I don't

know what the question was.

Q That is what you spoke to your lawyer about, is that

correct?

A (No response.)

Q Is that correct?

A Yes.

Q Didn't you request to speak to your lawyer after the

question was put to you what is your occupation?

A Yes, | also asked you what was the question.

Q The questions is obviously, Mr. Langella, which you

know now, what is your occupation? That is the question.

A Let me talk to my lawyer, please.

3la

Q The question is what is your occupation?

A | would like to confer with my lawyer.

Q What don't you understand?

A | want to talk to him.

Q You can only confer with the lawyer if you don't

understand the relevance of the question to the in-

vestigation and or whether or not you don’t understand the

legal matters concerning you before this grand jury. Now

you have indicated that you understand the matters

concerning you before this grand jury, isn’t that correct?

A I still want to talk to my lawyer about whether I should

answer that question or not.

Q You can choose to answer it or not answer it. Mr.

Langella. The question is what is your occupation?

A I would like to talk to my lawyer about that.

Q Mr. Langella, did you ever visit 101 Godney Street in

Nyack, New York?

A | would like to talk to my lawyer about the first question,

please. One question at a time.

Q Is that what you intend to do, to talk to your lawyer

after every question is asked?

A | would like to talk to my lawyer about the first question.

Q Is that what you intend to do before this grand jury?

A Please let me talk to him about the first one.

Q Do you understand the question asked of you, Mr.

Langella?

A I'm still thinking about the first one.

Q What is the answer to the first one? What is your

occupation?

A I have to talk to my lawyer.

Q Did you plan to murder Joseph Gallo on April 7,

1972?

32a

A I still have to .alk to him about the first one.

Q The question put to you now, Mr. Langella, is did you

plan to kill Joseph Gallo on April 7, 1972?

A | still have to talk to him about the first question, Mr.

Tanenbaum.

Q The question, Mr.—

THE FOREMAN: You are instructed by the grand

jury, Mr. Langella, to please answer the question.

THE WITNESS: The first question?

THE FOREMAN: The first question.

THE WITNESS: Let me talk to my lawyer.

Q Mr. Langella, so it is clear, you will talk to your lawyer

about the legal matters concerning you. And please come

back with full knowledge of that. | am informing you after

every question if you intend to talk to your lawyer you will

be in error with this grand jury.

A Let me talk to him. One question at a time.

MR. TANENBAUM: The record should reflect it is

now twenty-one minutes after three.

(Witness leaves the grand jury room and returns a

short time thereafter.)

MR. TANENBAUM: The record should reflect it is

approximately 3:30—

A Mr. Tanenbaum—

MR. TANENBAUM: —that the witness has reap-

peared.

Q Now, Mr. Langella, have you spoken with your

lawyer?

A Can my attorney come in here to help me answer—

understand the questions?

THE FOREMAN: I'm afraid your lawyer cannot come

into the room and the grand jury instructs you to answer all

33a

questions. Mr. Langella.

Q Now. you have conferred with your lawyer, is that

correct. Mr. Langella?

A Yes, but does that also mean I have also be given

protection against federal and other prosecutors as to the

matters of which I am testifying?

Q Did you confer with your lawyer about the issues that

you asked us to confer with him about?

A I'm asking you a question.

Q Did you understand the question? Do you understand

the question that was posed to you?

A | was told to ask you does that immunity also give me the

protection from federal and other state prosecutors into the

matters of which I am testifying?

Q Did you understand the question that was put to you?

A (No response).

Q What is your occupation, Mr. Langella?

A Ihave not filed income tax returns for a number of years.

MR. TANENBAUM: The record should reflect that

Mr. Langella is reading from a yellow piece of paper, is

that correct. Mr. Langella?

A (No response)

Q Is that correct. Mr. Langella?

A (No response)

MR. TANENBAUM: Mr. Foreman, is that correct

that Mr. Langella was just reading from a yellow piece of

paper?

THE FOREMAN: That is correct.

Q What is your occupation. Mr. Langella?

A I have to confer with my lawyer.

Q Mr. Langella—

34a

A Again—

Q The question to you is—

A A gambler.

Q That is your occupation?

A Yes.

Q You have no job, is that correct?

A A gambler.

Q You don’t go to work anywhere is that correct?

A A gambler.

Q Did you plan to kill Joseph Gallo on April 7, 1972?

A Does that immunity give me the protection from federal

and other prosecutors also in the matters of which I am

testifying?

2 Did you hear the question?

A (No response)

Q Did you hear the question. Mr. Langella?

A I have to ask my lawyer.

THE FOREMAN: The grand jury directs you to

answer Mr. Tanenbaum’s question, Mr. Langella.

THE WITNESS: I would like to speak to my lawyer.

Q The question is did you plan to kill Joseph Gallo on

April 7, 1972? What is the answer, please?

A | would like to speak to my lawyer.

Q Is that the answer to the question?

A I would like to speak to my lawyer.

Q What is it that you would like to talk to your lawyer

about?

A Because | ain't as smart as you.

Q What don't you understand?

A Does that immunity give me protection against federal

35a

and other prosecutors in the matters which I am testifying?

Q The scope of the immunity has been explained to you

and you said you understood what it means. The question

before you is did you plan to kill Joseph Gallo on April 7,

1972?

A I said I didn’t understand the immunity fully. I also told

you I would like to have my lawyer in here to help me

understand the questions of immunity—

Q You discussed immunity with your lawyer, didn't you?

A | can't explain it to him in legal—

Q Did you talk to your lawyer about the extent of your

immunity before this grand jury?

A Mr. Tanenbaum, you can see how smart I am. He has to

give me a card to come in here.

Q You are not deceiving the grand jury. The games you

play here are amply noted by the grand jurors. The

question is did you speak to your lawyer as to the scope of

your immunity as you indicated you did when you first went

out to talk to your lawyer?

A Yes.

Q The question is do you understand the legal matters

concerning you before this grand jury?

A Not really.

Q What don’t you understand?

A All the legalities here.

Q Did you talk to your lawyer about it?

A I would like to have his presence.

Q Did you talk to your lawyer about it?

A I don't know how to explain it.

Q Did you talk to your lawyer about the legal matters

before this grand jury?

36a

A What | told him he don't understand because I didn’t

explain it to him.

Q Did he explain to you the legal matters concerning you

before this grand jury?

A Yes.

Q Did you discuss it with him?

A Yes.

Q The question is did you plan to kill Joseph Gallo on

April 7, 1972?

A I would like to speak to my lawyer about that.

Q Concerning what?

A The question.

Q What is it that you don’t understand?

A The question you asked me.

Q You cannot go out and speak to your lawyer after

every question asked of you.

A Why not?

Q That is the law.

A That is my right.

Q The question is, you can choose to answer it or not

answer it, | wish to inform you in the interest of fairness

you are a witness hece. If you choose not to answer that

question you can subject yourself to contempt before the

grand jury. That is up to the grand jury. The question is

did you plan to kill Joseph Gallo on April 7, 1972?

A I would like to talk to my lawyer.

THE FOREMAN: You are directed by the grand jury,

Mr. Langella, to answer the District Attorney's question.

THE WITNESS: When I speak to my lawyer.

Q You are refusing to answer the question?

A I said I want to talk to my lawyer.

37a

Q About what?

A About the question that you asked me.

Q What about it?

A Il want to talk to him.

THE FOREMAN: We ask you again to answer the

District Attorney's question.

THE WITNESS: After I speak to my lawyer.

THE FOREMAN: You do not understand the

question, Mr. Langella?

THE WITNESS: After | speak to my lawyer.

QIs there anything you don’t understand, Mr.

Langella?

A I don't understand what you are doing to me. You are

hollering and screaming at me.

THE FOREMAN: I would like to contradict you. |

don't think Mr. Tanenbaum has been hollering and

screaming. He has been asking you in a level tone to answer

a specific question. The grand jury instructs you to answer

that question.

THE WITNESS: Mr. Foreman, | don’t have the

knowledge he has. I'm only a sixth grade dropout. He's a

college man. He's giving me questions I cannot answer with

the legalities of these big words. These are five letter words.

THE FOREMAN: I now ask the District Attorney to

ask the question again in as simple terms as possible.

Q The question is simply did you plan to kill Joseph

Gallo on April 7, 1972?

A 1 would have to ask my lawyer that.

THE FOREMAN: We direct you to answer that

question.

THE WITNESS: I will after I speak to my lawyer.

THE FOREMAN: You realize what contempt means?

38a

THE WITNESS: Not really. I would still like to talk to

my lawyer.

Q Did your lawyer tell you to come in here and tell the

grand jurors for the record that I was yelling at you?

A I'll answer one question at a time.

Q Did you understand the question I just asked you?

A If I killed Joseph Gallo?

Q Did you understand that question?

A I would like to talk to my lawyer.

Q Did you understand the question?

A One question at a time.

Q Ad you plan to go out and talk to your lawyer, is that

correci:

A One question.

Q You have been directed to answer the question. Did

you plan to kill Joseph Gallo on April 7, 1972? What is the

answer to the question, please?

A_ I would like to talk to my lawyer.

Q The next question is did your lawyer tell you to come

in here and put on the record that anybody in this grand

jury was yelling at you?

A No.

Q You just volunteered that yourself, is that correct?

A You are hollering at me.

THE FOREMAN: Does any one of these members of the

grand jury feel that the District Attorney has been hollering

at the witness?

THE WITNESS: He's scaring me anyway.

THE FOREMAN: There is a difference between

hollering and scaring.

THE WITNESS: Scaring.

39a

THE FOREMAN: You don't mean hollering?

THE WITNESS: Scaring.

THE FOREMAN: He is scaring you by his questions?

THE WITNESS: Yes.

THE FOREMAN: You don't feel as though he is

hollering at you though?

THE WITNESS: Mr. Foreman, he’s telling me im-

munity. I really—I’m saying yes but I honestly don’t know

what immunity is, congressional immunity, these are words

1 never heard in my life. | mean I would love to have my

attorney in here and I'll be willing to answer all of the

questions.

THE FOREMAN: Your attorney is not permitted in this

room.

THE WITNESS: Why ain't I permitted—

THE FOREMAN: Not only for you but for any other

witness.

THE WITNESS: But I am not—you know, you're a

smart man, why ain't I allowed to go out and ask my

question?

THE FOREMAN: You left the room I think twice now to

ask questions of your attorney as the District Attorney

indicated. If the question is of a legal nature and you do not

understand the legality of the question you are entitled to

speak to your attorney.

THE WITNESS: Right.

THE FOREMAN: But if he asks you your name or where

you were yesterday and what your occupation is there is

nothing legal about that. That requires a simple question

and a simple answer.

THE WITNESS: Ain't allowed to go out after each

question?

THE FOREMAN: No.

40a

THE WITNESS: I'm not?

THE FOREMAN: No.

THE WITNESS: Are you sure, Mr. Foreman? Mr.

Tanenbaum, is he correct?

THE FOREMAN: Unless there—

Q The question put to you—

A Mr. Tanenbau, is he right?

Q When you become an assistant district attorney and

appear in a grand jury you will ask the question. Now you

are a witness and the question put to you is did you plan to

kill Joseph Gallo on April 7, 1972?

A The answer is I would like to talk to my attorney.

Q The next question is did you visit 101 Godney Street,

apartment LK in Nyack, New York during the month of

April, 1972?

A I would like to talk to my attorney.

THE FOREMAN: We direct you to answer that last

question, please.

THE WITNESS: How many questions can I answer at

once?

THE FOREMAN: If you answer one question at a time.

THE WITNESS: I want to see my attorney after each

question.

THE FOREMAN: You do not understand the question,

is that the reason?

THE WITNESS: I do not understand the question.

Q What is it that you don't understand?

A Yes. I have to answer a question without consulting

my attorney.

Q That's what you don't understand?

A Yes.

4la

Q_ So there is nothing i i

g in here in the question th

don't understand, is that correct? : aie

A_ I want to speak to my attorney.

Q It is a very simple

, question, Mr. Langella. isn't it?

Did you plan to kill Joseph Gallo on April 7, ae isn't it?

A_ I want to speak to my attorney.

Q Are there any words in that sen y

,

tence ou don't

A Yes, you won't let me speak to my attorney.

Q That is the only part you don’t understand?

A_ I want to speak to my attorney.

QI will go through it word b

' y word that you don't

understand it. We'll go through it. Did you om to kill

Joseph Gallo on April 7, 1972?

A_ I want to talk to my attorney.

Q Is there anything about th

derstand? S at that you do not un-

A I would like to talk to m

y attorney. Wh ;

me talk to my attorney? ‘ ee

Q Is there anything about that questi

stion th ,

understand, Mr. Langella? ’ elie

A Mr. Tanenbaum, can I speak please to my attorney?

Q Is there anything you don't

uaa g y ont understand, Mr.

A When I speak to my :

y attorney I'll answer any questi

you want me to. sisitienna

‘ Q Mr. Langella, you just spoke to your attorney twice.

ow what is the answer to the question, please?

A I still want to speak to my attorney.

Qi! wish to inform you again in the interest of fairness if

you persist in not answering these questions you subject

yourself to possible contempt before this grand jury and

42a

contempt is a felony, it’s a crime for which you can be

prosecuted. Do you understand?

A_ I would like to talk to my attorney.

Q_ What is it that you don't understand that causes you

to want to talk to your attorney?

A I don’t understand why you won't let me talk to my

attorney.

Q Is there anything you don’t understand, Mr.

Langella? You are looking at your watch, Mr. Langella?

A I would still like to talk to my attorney.

Q_ Is there anything, Mr. Langella, that you don't

understand?

A Why you won't let me talk to my attorney.

Q Is that the only thing you don’t understand?

A_ | would like to talk to him.

Q Is that all you don't understand is why you cannot

talk to your lawyer?

A_ (No response)

Q_ Is that correct, Mr. Langella?

A_ I want to talk to my attorney.

Q Is there anything you don’t understand that causes

you to want to talk to your lawyer?

A Why can't I talk to my attorney?

Q Do you understand the question, Mr. Langella?

A Do you understand me?

Q Is there anything you don't understand that causes

you to want to talk to your lawyer?

A Ican’t understand why you won't let me talk to him.

Q_ Is that all? |

A_ | would like to talk to him. That's it.

Q Is that all?

43a

(No response)

Did you visit 101 Godney Street in Nyack, New York?

I want to —

During the month of April, 1972?

I want to talk to my attorney.

> OP?ro >

Q Did you plan to murder Joseph Gallo with Joseph

Yacoveli?

A I want to talk to my attorney.

Q Is there anything you don't understand about the

question?

A_ 1 want to talk to my attorney.

Q_ Is there anything you don't understand about the

question?

A_ I want to talk to my attorney.

THE FOREMAN: Mr. Langella, you are directed by the

grand jury to please answer the question.

THE WITNESS: When I talk to my attorney. When and

if | am allowed to talk to my attorney | will answer the

question.

Q Mr. Langella, have you communicated with Carmine

DiBiase since April 7, 1972?

Q When I talk to my lawyer I will answer the question.

THE FOREMAN: Will you answer the question, please?

THE WITNESS: When | talk to the lawyer I will answer

the question.

Q Is there anything about the question that you don't

understand?

A When I talk to the lawyer I will answer the question.

Q Is there anything you don't understand about the

question, Mr. Langella? Is there anything you don't un-

derstand about the question?

44a

A When I talk to my attorney | will answer all questions

put to me.

Q . Well, you already indicated that, havenat you, Mr.

Langella? You spoke to your attorney twice, haven't you?

A_ Ican go out that door as many questions as you ask

me. Mr. Tanenbaum.

Q Have you already spoken to your attorney twice?

A_ I didn’t count. Did you?

Q Do you recall speaking to your lawyer twice?

A_ I recall speaking to him.

Q Was it once or twice?

A_ Twice I imagine.

Q You indicated on both of these occasions prior to

talking to him if you spoke to him you would answer all of

our questions, didn't you?

A l—

Q Is that correct?

A_ I would like to talk to him.

Q Can't you answer that question?

A_ 1 would like—

A_ I would like—

Q You can handle that question?

A_ I would like to talk to my attorney.

Q Isn't that what you said before?

. A_ 1 would like to talk to him. Take one question at a

time.

Q Is that the way you want this grand Jury to proceed,

one question at a time?

A How ever you would like it.

Q It is quite clear this grand jury would like you to

answer these questions.

45a

I would love to answer them.

Please answer them.

One at a time.

Now—

THE FOREMAN: Let’s start with the first one then, Mr.

Oro >

Tanenbaum.

Q Did you plan to kill Joseph Gallo on April 7, 1972?

A_ I would like to talk to my attorney about that.

Q What is it that you don't understand about that

question that causes you to want to talk to your attorney?

A I don't understand why you won't allow me to leave

the room.

Q What is it about that question that causes you to

want to talk to your lawyer?

A I don't understand why you won't let me leave the

Ei

S

> Oro ro ro FrO PO PO

Is that your answer to my question?

I didn’t say that.

You didn't say what?

Are you making up my mind?

Is that your answer to the question?

I would like to talk to my attorney.

Is that your answer to the question?

That I want to talk to my attorney, yes.

That is your answer to these questions?

I said I want to talk to my attorney.

Is that your answer to the question?

Don't make up my mind.

Is that your answer to the question?

| want to—

46a

Q Is that your answer to the question?

A I want to talk to my attorney.

Q That is your answer to the question, is that correct?

A I said I want to talk to my attorney. That's all I said.

Q Now, that was the first question that was put to you.

Again, did you plan to kill Joseph Gallo on April 7, 1972?

A Isn't that the first question?

Q What is the answer, please?

A I would like to talk to my attorney.

Q The next question is did you visit 101 Godney Street,

apartment LK in Nyack, New York during the month of

Apri. 1972?

A I would like to talk to my attorney.

Q You have been !ooking at your watch, is that correct.

Mr. Langella?

A (No response)

Did you hear me?

I heard you.

What is the answer to the question?

Yes.

Do you have some place to go?

Or © & ©

Al got a date with a girl.

Q You have a date with a girl?

A Yes.

Q You feel by not answering these questions that this

grand jury will go home and they won't ask you any more

questions?

A Definitely not.

Q Now, the first question that was put to you is a simple

question. Did you plan to kill Joseph Gallo on April 7.

1972? What is the answer?

47a

A_ I would like to speak to my attorney.

Q Did you speak—have you spoken with Carmine

DiBiase since April 7, 1972?

A_ | would like to%peak to my attorney.

Q Do you know where Joseph Yacoveli is presently?

A I would like to speak to my attorney.

THE FOREMAN: You are directed by the grand jury,

Mr. Langella, to answer the District Attorney's question.

THE WITNESS: I would like to speak to my attorney,

please.

Q Did you plan to murder Joseph Gallo with Joseph

Yacoveli?

A_ I would like to speak to my attorney.

Q Have you been the bodyguard for Alphonse Persico?

A_ I would still like to speak to my attorney.

Have you met and conferred with Joseph Luperoli prior

to April 7, 1972?

A_ I would like to speak to my attorney.

Q Have you been receiving messages from Joseph

Yacoveli through Joseph Gorgone concerning the murder

ot Joseph Gallo on April 7, 1972?

A_ I would like to speak to my attorney.

THE FOREMAN: Would you answer these questions,

please.

THE WITNESS: I would like to speak to my attorney,

please.

Q Is there anything about these questions that you do

not understand?

A | would like to speak to my attorney.

Q Have you spoken or communicated with Joseph

Yacoveli since April 7, 1972?

48a

A | would like to speak to my attorney.

BY MR. TANANBAUM:

Q Were you present during conversations had between

Alphonse Persico and Joseph Yacovelli concerning the

murder of Joseph Gallo?

A_ | would like to speak to my attorney.

MR. TANENBAUM: Mr. Foreman?

FOREMAN: You are instructed by the grand jury, Mr.

Langella, to answer the district attorney's question.

THE WITNESS: Mr. Foreman, does anybody instruct

me to go out and talk to my lawyer? I will answer the

questions if | am allowed to speak to my attorney.

FOREMAN: If you go out will you answer all his

questions?

THE WITNESS: One at a time.

Q Very well, go out and speak with your attorney.

A About what now?

MR. TANENBAUM: Let the record reflect that Mr.

Langella is laughing and smiling.

Q Mr. Langella, have you requested to talk to your

lawyer?

A Yes, I do.

Q And now you don't know what you want to talk to

your lawyer about?

A You have asked me so many questions, I forgot.

FOREMAN: You are directed to answer Mr. Tanen-

baum ’'s questions. This grand jury instructs you to answer

his questions.

THE WITNESS: So far as what. Mr. Foreman?

FOREMAN: Any of the questions that you might

remember that Mr. Tanenbaum has asked.

49a

(Witness leaves grand jury room at 3:44 p.m. and

returns at 3:59 p.m.)

MR. TANENBAUM: The record should reflect that the

witness left at approximately ten minutes to four and it is

now approximately five minutes after four.

Q Have you spoke with your lawyer, Mr. Langella?

A Yes, I did. |

Q Are you now prepared to answer the questions that

were put to you?

A Yes.

Q_ Did you plan to kill Joseph Gallo on April 7, 1972?

A No, I did not.

Q Did you, since April 7, 1972, have you spoken with

Carmine DiBiase?

A No. I did not.

Q Have you conferred with Joseph Yacovelli after April

7, 1972?

A No, I did not.

Q Did you visit 101 Godney Street in Nyack, New York

during the month of April, 1972?

A Because of my concern about this criminal procedure

and any other prosecution, I may assure—if I answer the

questions here would I be, you know—he gave me the

wrong card the lawyer.

Q The question is: Did you visit 101 Godney Street in

Nyack, New York during the month of April, 1972? What

is the answer, please?

A_ I refuse to answer.

FOREMAN: The grand jury instructs you to answer the

question.

THE WITNESS: I refuse to answer.

Q Mr. Langella, isn't it a fact that you visited 101

50a

Godney Street in Nyack, New York, apartment LK, with

Alphonse Persico, also known as Allie Boy Persico, and

there discussed the murder of Joseph Gallo?

A I refuse to answer.

FOREMAN: You are directed by this grand jury, Mr.

Langella, to answer the question.

THE WITNESS: I refuse to answer.

Q Mr. Langella, isn’t it a fact that inside that apart-

ment, after the murder of Joseph Gallo. you discussed with

Mr. Yacovelli and with Mr. Alphonse Persico, also known

as Allie Boy Persico, the murder of Joseph Gallo?

A I refuse to answer.

FOREMAN: You are instructed by the grand jury, Mr.

Langella. to answer the district attorney's question.

THE WITNESS: I refuse to answer.

Q Isn't it a fact that inside that apartment, apartment

LK, at 101 Godney Street in Nyack, New York, after April

7, 1972, you also spoke with Joseph Luparelli?

A_ I refuse to answer.

FOREMAN: You are instructed by this grand jury to

answer the question. Mr. Langella.

THE WITNESS: I refuse to answer.

Q Isn't it a fact that you have been and were during the

month of April, 1972, the bodyguard for Alphonse Persico?

AI have to talk to my lawyer about that.

Q Is there anything you don’t understand about that?

A_ | would like to talk to my lawyer about the first

question.

Q Mr. Langella, isn't it a fact that inside of apartment

LK at 101 Gedney Street in Nyack, New York, after the

murter of Joseph Gallo, which took place on April 7, 1972,

you were acting as a bodyguard for Mr. Alphonse Persico?

Sla

AI refuse to answer.

FOREMAN: This grand jury instructs you to answer the

question, Mr. Langella.

THE WITNESS: I want to talk to my lawyer.

Why can't I talk to my lawyer, please?

Q Is there anything about that question that you don’t

understand why you won't allow me to talk to my attorney.

What is it that you don’t understand, Mr. Langella?

Why you won't let me talk to my lawyer.

About what?

About these questions.

Which ones?

If I have ever been up at Nyack.

What is it you don’t understand?

I told you, I refuse to answer.

Is there anything you don’t understand about that

question?

A It's I would like to talk to my attorney.

Q About what?

A About why you won't let me talk to him.

Q_ Is there anything you don't understand about the

question?

Oro ro FO PO

A Just the same answer.

Q What is that, sir?

A Why you won't let me talk to him.

Q After April 7, 1972, Mr. Langella, didn’t you discuss

with Alphonse Persico, inside apartment LK at 101 Godney

Street in Nyack, New York, the murder of Joseph Gallo?

A_ I would like to talk to my lawyer.

FOREMAN: You are directed, Mr. Langella, by this

52a

‘

grand jury to answer the question.

THE WITNESS: I would like to talk to my lawyer.

Q What is it you don’t understand, please?

A Why you won't let me talk to my lawyer.

Q_ Is there anything in the question that you do not

understand?

A Idon’t understand why you will not allow me to speak

to my attorney.

Q Is there anything, Mr. Langella, in the last question

Et was asked of you that you do not understand?

A Why you won't allow me to talk to my attorney.

Q Is that your answer to the question?

A Why won't you allow me to talk to my attorney.

Q Isthat your answer to the question, please?

A_ I even forgot the question, Mr. Tanenbaum.

Q Is there anything you don’t understand about the

question, Mr. Langella?

A Why won't you allow me to talk to my lawyer?

Q Is that your answer?

A To what?

Q Is there anything you don’t understand about the

question?

A Idon't even know what the question is, to tell you the

truth.

MR. TANENBAUM: Will the stenographer read back

. the question?

(Question read back as follows:

“Question: After April 7, 1972, Mr. Langella, didn’t you

discuss with Alphonse Persico, inside apartment LK at 101

Gedney Street in Nyack, New York, the murder of Joseph

Gallo?"’)

53a

A_ No, I did not.

Q You did not discuss the murder of Joseph Gallo with

Mr. Persico, is that what you are saying?

A Yes.

Q Were you with Mr. Persico after April 7, 1972?

A _ I would like to speak to my attorney.

Q Is there anything you don’t understand about that

question?

A Why won't you let me talk to my attorney?

Q Is there anything you don’t understand about the

question, Mr. Langella?

A Idon’t know why you won't let me talk to my lawyer,

that I don’t understand.

Q Is that what you don’t understand?

A Yes, | don’t understand why you won't let me talk to

my attorney.

Q Is there anything in the question that you do not

understand?

A Why can't I talk to my lawyer after each question? |

don't understand that.

Q Is that what you don’t understand?

A No, I don't understand.

Q Do you understand the question?

A What is the question?

Q Do you understand the questions that have been

asked of you?

A Not really. | mean, you are talking all this law. I am

not too much of a bright fellow.

Q You haven't understood the questions, is that what

you are saying?

A What question?

54a

Q Any question that has been asked of h

understood? whoa aa

A I don't understand this congressional immunity, not

too well.

Q That is what you don't understand?

A Not really.

Q Did you discuss that with your lawyer?

A I don't know how to tell him what you are telling me.

Q Do you have this card in your hand concerning this

congressional immunity?

A He is just as nervous as I am; he gave me the wrong

card.

Q He gave you the wrong card?

A Yes.

Q Didn't he talk to you about what was on whatever

cards he gave you?

A_ (No response)

Q What is the answer to that, please?

A To what?

Q. Didn't you just hear what I said?

A Not really.

Q Aren't you paying attention, Mr. Langella?

A I'm nervous.

Q Aren't you paying attention to the questions being

asked of you?

A_ I am very nervous, that I know.

Q Did your lawyer taok to you about what was on those

cards that were given to you?

A Naturally.

Q What was on those cards concerned this immunity,

didn't it?

55a

A I imagine so.

Q He spoke to yoy about that, didn’t he?

A | better go out and talk to him again.

Q He spoke to you about that, didn't he?

A | would like to talk to him now. This way I got a clear

head.

Q You spoke to him before you came into this grand

jury about these matters, haven't you?

A 1 would like to talk to him now.

Q Did you understand the question I just asked you?

A Can 1 go out and talk to him?

Q Did you understand the question I just asked you?

A Can I go out and talk to him?

Q Did you understand the question I just asked you?

Didn't you talk to your lawyer about these matters before

you came into this grand jury room?

A 1 don't even know what I'm here for, to tell you the

truth.

Q You know you are a witness in this grand jury

procedure?

A All 1 know is I got a subpoena, that’s all I know.

Q You know that on that subpoena this is a grand jury

investigation into the death of Joseph Gallo; you know that,

don't you?

A Truthfully I had no subpoena here. I was just told by

an attorney to be here.

Q You were in court this morning before Justice

Sandifer.

A An attorney to appear in court. There was nobody to

hand me something to say I had to be here.

Q You say you were never given a subpoena to appear

before this grand jury on any day?

56a

This morning?

On any day.

On any day, yes.

You were given a subpoena?

Months back.

Months back?

Not this morning.

Q That subpoena said “Investigation into the death of

Joseph Gallo,”’ didn't it?

A Yes.

Q You were in court this morning, weren't you, in Part

XXX of the Supreme Court?

A Yes.

Q You heard argument about this matter before Justice

Sandifer in Part XXX?

A Is that his name?

> OP?FrOH &O >

Q Do you know the judge’s name?

A No.

Q The judge who was presiding in Part XXX, didn’t you

hear the argument before him by your attorney and myself?

A Yes, but I didn’t know what was going oi: there.

Q You had no idea what was going on?

A Not really. I knew my lawyer was trying to help me, I

imagine.

Q What did you think was going on in that room?

.A You was trying to send me to jail and he was trying to

keep me out.

Q That was what your understanding of that

proceeding was?

A Yes.

57a

Q What is your understanding of this proceeding?

A You are trying to send me to jail again.

Q_ Is that what you understand of this proceeding is?

A I imagine so.

Q You were standing right at the bar, right in back of

your lawyer, when the argument concerning this matter of

the grand jury subpoena was discussed before the judge,

weren't you?

A Right. You were talking about law.

Q And the judge directed you to come into the grand

jury room and answer questions, didn’t he?

A Definitely.

Q You understood that?

A Yes.

Q And that was about this investigation into the death

ot Joseph Gallo this grand jury is conducting, isn’t that

correct?

A If you say so.

Q Well, isn't that what you understood when you were

up in court?

A No; you told the judge to tell Mr. Langella to answer

the questions and I am here to answer questions.

Q What did the judge say?

A For me to come and answer your questions.

Q And answer the questions, right?

A Right.

Q Is there anything about these questions you dont

understand?

A Idon’t understand why I can't go out and talk to my

attorney.

Q Is that your answer to all these questions?

58a

A Let us take them one at a time.

Q We have taken several questions one at a time. Is

there anything you don't understand about the questions?

A (No response)

Q Is there anything you don’t understand, Mr.

Langella?

A As far as what?

Q You tell us, please. You are the one who indicates

you would like to talk to your lawyer.

A Give me a question and I will go out and talk to him

and I will answer the question.

Q Have you been receiving messages from Joseph

Gorgone?

A Can I speak to my attorney about that?

Q Is there anything you don't understand about that

question?

A 1 can’t understand why you won't let—you will not

allow me to speak to my attorney. I believe that is my right.

FOREMAN: The jury instructs you to answer the

question.

THE WITNESS: Mr. Foreman, I believe that is my right

to leave the room after each and every question.

FOREMAN: You may leave the room if you don’t un-

derstand the question. If you want your attorney to explain

the question to you. Is there anything about Mr. Tanen-

baum’'s question you don't understand, the question itself?

THE WITNESS: I would like my attorney to explain it to

me.

Q Inother words, you don't understand the question, is

that what you are telling us?

A_ I would like to speak to my attorney.

FOREMAN: Do you understand the question? The

59a

grand jury would like to know if you understand the

question.

THE WITNESS: I would like my attorney to explain it to

me, please.

Q . What is it you don’t understand?

A I don’t understand why you want to send me to jail.

Q . What is it about the question you want your lawyer

to explain to you?

A About this one, who is his name? What's his name?

Q What is his name, you tell us.

A Idon't know. I don’t know any more. By the time I

leave that room you confuse me. I don’t even know what to

ask my lawyer about it. You give me one at a time and |

could answer each and every question.

Q Have you been receiving messages from Joseph

Gorgone?

A Gorgone? .

Q Yes, also known as Joe Black.

A Can I| go out and speak to my attorney?

Q What don't you understand about the question?

A I don’t understand why you won't let me leave the

room.

Q_ Is there anything you don't understand about the

question? ‘

A | want to speak to my attorney.

FOREMAN: I think if you don't understand the

question, Mr. Langella, we will permit you to speak to your

attorney. Do you understand the question?

THE WITNESS: I would like to speak to my attorney.

FOREMAN: You don't understand the question?

THE WITNESS: I said I would like to speak to my

attorney.

Kaa! ss

60a

FOREMAN: The grand jury instructs you to answer the

question.

THE WITNESS: After I speak to my attorney I will

definitely answer the question.

Q Are you refusing to answer this question now, Mr.

Langella?

A You said it. I didn’t say it.

Q The foreman has directed you to answer the question.

Have you been receiving messages from Joseph Gorgone,

also known as Joe Black?

A After I speak to my attorney I will answer the

question.

Q Are you presently refusing to answer the question?

A You said it, I didn't.

Q Mr. Langella, have you spoken to Mr. Gorgone, also

known as Joe Black, on the telephone and have con-

versations with him concerning the murder of Joseph

Gallo?

A I would like to speak to my attorney.

FOREMAN: You are directed to answer the question.

THE WITNESS: After I speak to my attorney I will

answer any question.

Q Is there anything about the question you do not

understand?

A I don't understand why you won't allow me to speak

to my attorney.

FOREMAN: We have allowed you three times to leave

the room and speak to your attorney. If you understand the

question we will be happy to let you speak to your attorney.

THE WITNESS: I am under the impression that every

question you ask me I have the right to leave the room. I

have the right to leave the room and ask my attorney for

advice because that is what he is here for, to advise me as to

6la

what to do after each and every question. And Mr.

Tanenbaum could tell you that.

ls that your answer to the question?

| would like to speak to my attorney.

That is your answer to the question?

I want to talk to my attorney?

Yes.

In reference to what now?

Will you tell us? You want to talk to your lawyer.

Tell me the question and | will go out and ask him.

What do you want to talk to him about?

About the question you want to ask me.

About any question?

I can't go out there—he is going to ask me the

question. |

Q You just want to talk to him about any question

posed to you, is that what you are telling this grand jury?

A You are confusing me now.

Q Is that why you are telling this grand jury that you

want to ask your lawyer about every question that 1s orn

to you here, regardless of whether or not you understand it?

Is that what you are telling this grand jury?

A Ifyou give me the question, Mr. Tanenbaum—

Q Do you understand what I just said, Mr. Langella?

A lam trying to tell you something and—

Q

A

> Or OO? OF? OF? ©? ©

Do you understand what I just said?

Not really. What did you say now?

Q Is it your intention to go out and talk to your lawyer

after every question is asked of you, regardless of whether

or not you understand it? Is that your intention?

A Is it my right?

62a

Q Is that your intention?

A lam asking you, is it my right?

Q Is that your intention? Will you please just answer

that question?

A I would like to talk to my lawyer about that also.

Q Is that what you are telling this grand jury, Mr.

Langella?

A_ (No response)

Q Do you understand the question?

A You asked me so many questions. I don’t even know

what you are asking me.

Q Is it your intention to speak with your lawyer after

every question is put to you, regardless of whether or not

you understand it?

A Not really.

Q What is it you don’t understand about the question

posed to you: Have you been receiving messages from Joe

Gorgone, also known as Joe Black?

A I want to talk to my lawyer.

Q What is it you don’t understand? We are trying to

help you understand the question. It’s a very simple

question. What is it you don’t understand?

A I don’t understand why you will not allow me to go

out and talk to my attorney. I would love to know why.

Is that what you don’t understand?

Yes.

You understand everything else?

Look, I don’t know why you will not let me go out.

Do you understand everything else?

As far as what?

As far as everything that has been going on in this

grand jury.

Oro roro

63a

Not really.

What don’t you understand?

I don't understand what is going on, period.

What don't you understand?

That you are accusing me of doing things.

What is it that anybody has accused you of?

Participating in the death of—

Auestions have been asked of you. No one has ac-

cused you of anything. You are a witness in this

proceeding, that has been explained to you both here and

before you came here in the court.

A A witness is one thing. You are saying did I have any

knowledge—did I participate in the death of one—

Q That's correct, that is one of the questions that was

asked of you.

A I know.

Q Is there anything about that that you don’t un-

derstand?

A Yes.

Q You understand that?

A Definitely.

Q The only thing is you don’t understand why you can't

go out and talk to your lawyer after each and every

question, isn’t that fair?

A That is the reason why you want to send me to jail. I

have nothing to do with—

Q Is that what you think?

A That is what you are trying to do.

Q What makes you say that, tell the grand jury?

A The questions you are asking me.

Q From the questions that are being asked of you?

Ororvroro P

* 2S re ay seh ,

A Yes.

Q And you feel because of those questions that someone

is trying to put you in jail?

A_No, you are trying to trick me because you know I am

not an educated fellow.

Q How am I or any of the grand jurors or the foreman

trying to trick you, will you please tell us that?

A Because you—you asked me a question and you know

I'm all nervous.

Q You are sitting there very calmly, Mr. Langella.

A I am nervous, very nervous.

Q Is it you intention to talk to your lawyer after every

question is put to you, regardless of whether you un-

derstand the question or not?

_ A No, of course not. If I understand the question I will

answer it.

Q You will answer it. You will only sdy you want to talk

to your lawyer when you don't understand the question, is

that it?

A That’s right.

A Yes.

Q And you feel because of those questions that someone

is trying to put you in jail?

A No, you are trying to trick me because you know I am

not an educated fellow.

Q How am I or any of the grand jurors or the foreman

trying to trick you, will you please tell us that?

A Because you—you asked me a question and you know

I'm all nervous.

Q You are sitting there very calmly, Mr. Langella.

A | am nervous, very nervous.

65a

Q Is it your intention to talk to your lawyer after every

question is put to you, regardless of whether you un-

derstand the question or not?

A No, of course not. If I understand the question | will

answer it.

Q You will answer it. You will only say you want to talk

to your lawyer when you don’t understand the question, is

that it?

A That’s right.

Q And you have so indicated on the record; is that

correct?

A Yes.

Q Everything else you understand, except; when you

have a question and you have asked to talk to your lawyer;

is that correct, Mr. Langella?

A Yes.

Q Thank you. Now I ask you again: Have you had any

communication with Joseph Gorgone, also known as Joe

Black?

A That | would like to talk to my attorney about.

Q What is it you don’t understand, could you tell us

that?

A I don't understand why you will now allow me to leave

this room and talk to my attorney, which is my right to

leave this room after each and every question. You are

trying to banter words with me. You are going to make me

answer questions which I don’t even know what I am saying

yes or no. Is this what you want? | want to give you a fair

and square deal here.

Q Mr. Langella, please go out and talk to your lawyer.

A Thank you. About what is that name, Joe Galgone

(phonetic)?

66a

(Witness leaves grand jury room at 4:20 p.m. and

returns at 4:30 p.m.)

THE WITNESS: Mr. Tanenbaum, I would like to

clear up one thing.

MR. TANENBAUM: The record should reflect that

my watch is five minutes fast. However, the time spans, to

the best of my knowledge, have been accurate.

Q Have you conferred with your lawyer?

A Yes. And he told me to explain with me and Alieboy

about you saying I’m his bodyguard. We are just close

friends. We go everywhere together.

Q By Alieboy, whom are you referring to?

A Alphonse Persico.

Q Now, you have conferred with your lawyer; is that

correct?

A Yes, I did.

Q You have a yellow sheet of paper in your hand. Is

there anything you would like to tell the grand jury?

A No, | will wait for your questions.

Q You will wait for the question?

A Yes.

Q The question is: Have you been receiving messages

from Joseph Gorgone, also known as Joe Black, about the

murder of Joseph Gallo?

A ls that question about Joseph Galgone based on

electrical surveillance or wire taps or bugs?

Q Is that your answer to the question?

A My lawyer says he believes that before we go any

further as of this matter, we should go before the judge.

FOREMAN: You are directed by this grand jury to

answer the question. Mr. Langella.

67a

THE WITNESS: My lawyer says before we go any

further with this matter we should go before the judge.

Q Mr. Langella, the question is perfectly clear. Have you

been receiving messages from Joseph Gorgone, also known

as Joe Black, about the murder of Joseph Gallo?

A My lawyer said before we go any further we should go

before the judge.

Q Is there anything you don’t understand about the

question?

A My lawyer said before we go any further we should go

before the judge.

Q Do you understand the question, Mr. Langella?

A My lawyer said before we go any further we should go

before the judge.

Q Can we have your lawyer’s name for the record,

please?

A Gene Gallina. Gino Gallina.

Q Is there anything you do not understand about the

question, please?

A My lawyer said before we go any further we should go

before the judge.

Q You understand that you are a witness here before this

grand jury and not your lawyer; do you understand that?

A My lawyer said before we go any further we should go

before the judge.

QO And that in the interest of fairness I instruct you that

if you refuse to answer the question you can be held in

contempt, do you understand that?

A My lawyer said before we go any further we should go

before the judge.

Q Any question that you would refuse to answer you can

be charged with contempt. And contempt is a crime, do

you understand, Mr. Langella?

68a

A My lawyer said before we go any further we should go

before the judge.

Q Is that your answer to the question, Mr. Langella?

A My lawyer said before we go any further we should go

before the judge.

FOREMAN: You are instructed by the grand jury to

answer the question.

. THE WITNESS: My lawyer said before we go amy

further we should go before the judge.

FOREMAN: Mr. Langella, when you agreed to go

outside to speak to your attorney you agreed to come back

here and answer the questions of the grand jury. You

specifically told this grand jury that after you spoke to your

attorney you would answer any questions that the district

attorney had for you. Now will you kindly answer the

question?

THE WITNESS: Mr. Foreman, | believe I answered

Mr. Tanenbaum about ten times that my lawyer instructed

me to go before the judge.

Q Is that your answer to the question, Mr. Langella?

A My lawyer informed me to go before the judge.

FOREMAN: In connection with what, Mr. Langella?

THE WITNESS: About—let me get it out. please.

The question was asked if 1 got amy messages from one Mr.

Joe Galgone. I asked is that question based upon wire taps,

surveillance or—no, illegal wiretap, surveillance, bugs?

Q Is that your answer to the question?

A No, my lawyer—

Q Is that; your lawyer's answer or your answer?

A My lawyer said he believes before we go any further as

to this matter we should go before the judge. —_

FOREMAN: You mean in connection with the

question that Mr. Tanenbaum just asked?

69a

_._THE WITNESS: He said we should go before the judge.

Q In connection with Mr. Tanenbawm’'s question?

A As of Joe Galgone, he wanted to know whether you

have any wiretap, illegal device.

POREMAN: Maybe Mr. Tanenbaum will ask you

questions not related to—

Q How long have you known Joe Galgone, also known as

Joe Black?

A I will gave to ask my lawyer.

FOREMAN: You agreed before you left the room you

would answer the question if we permitted you to talk to

your attorney. Mr. Tanenbaum is asking you a specifically

different question. The grand jury instructs you to answer

the question.

THE WITNESS: Can | ask you something, Mr.

Foreman? Am | allowed to go out of this room after each

and every question, yes or no?

Q Mr. Langella, as | explained to you, the law in New

York State is clear. You can talk to your lawyer if you don't

understand the legal matters before the grand jury, and if

you don't understand the relevamce of any question con-

cerning the investigation that this grand jury is conducting.

A I have no right to go out there?

Q Do you understand what I just said?

A Do I have a right to go out?

Q Do you understand what | just said?

A Do | have a right to go out?

Q I just explained to you when you have the right to go

outside and talk to him.

A 1 would like to go out now.

Q What is it you don’t understand?

A I don't understand why; you will not allow me to go

70a

out and talk to him after each and every question.

Q That is what you don’t understand?

A Definitely.

Q Everything clse you understand, certainly you can

answer that.

A You are answering the questions for me. You are not

making me answer.

Q Do you understand everything else besides that?

A I don't understand why I am not allowed to go outside

the room and ask my attorney for advice. That is what he is

out here for.

FOREMAN: You are directed to answer the question

by the grand jury.

THE WITNESS: I want to speak to my attorney.

MR. TANENBAUM: Mr. Langella, would you step

outside?

(WITNESS EXCUSED.)