Petition — Cerilli v. United States

;

jae,

I Supreme Court, U. . 7

FILED

SEP 12 1977

MICHAEL RODAK, JR. CLERK!

Supreme Court of the United “States

October Term, 1977.

No. 77-390.

EDIGIO CERILLI,

RALPH BUFFONE,

MAYLAN YACKOVICH,

JOHN SHURINA,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Joun Rocers CARROLL,

Suite 326,

Three Penn Center Plaza,

Philadelphia, Pennsylvania 19102

Counsel for Petitioners.

international Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

TABLE OF CONTENTS.

Page

CrraTION TO OPINIONS BELOW ..............-00eeeeeeees 1

IT irene SS es re Pace ae seke dar cimaeene ae 2

ee I IIE ons wid cin nwccnckbavcncdenonsecs 2

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ........ 2

SO Or SI GA Fi occc hk cchcedesnvncns ce setonn’ 3

REASONS FOR GRANTING THE WRIT ...............00eee00: 5

I. The Opinion of the Court of Appeals for the Third

Circuit Appears at Variance With This Court's

Decision in Abney v. United States, — U. S. —, 52

L. Ed. 2d 651, 97 S. Ct. — (6/9/77)

II. The Issue Presented Involves an Important Question

of the Jurisdiction of the Court of Appeals Under

28 U.S.C. A. § 1291

CN os kk ven e nonce eewnns 6 seendede dns véeeeccses 7

Appenpix A—Opinion of the Court of Appeals ............. Al

Apprenpix B—Opinion of the District Court ............... _ Al0

Appenpix C—Order of the Court of Appeals Denying Petition

Oe TNE ind ohne ccatvonds cctacceepwesaweub oven A25

TABLE OF CITATIONS.

Cases: Page

Abney v. United States, — U. S. —, 52 L. Ed. 2d 651, 97 S. Ct.

IRS hiv) can ovdvanaepotieuss Gieksisaeas 5, 6,7

Blackledge v. Perry, 417 U.S. 21 ..... Seichabenecaseteaes 5

Cohen v. Beneficial Industrial Loan Corporation, 337 U.$.541 5

Lee v. United States, — U. S. —, 53 L. Ed. 2d 80, 97 S. Ct. —

SCORING SGA aig annag ete rt I Ris Rin cana 5, 6,7

Menna v. New York, 423 U.S. 61 .............ccccceceees 5

Robinson v. Neil, 409 U. S. 505 .... 2.6.62... ccc ceeeeeeeee 5

United States v. Barkett, 530 F. 2d 181, Cert. Denied, — U. S.

ESP ES 2 OR OE RNS: Yee Ae 6,7

United States v. MacDonald, 551 F. 2d 196 (4 Cir. 1976),

Cert. Granted, — U.S. — (June 20, 1977; No. 75-1892) .. 6

U. S. v. DiMarco, 401 F. Supp. 505 (D. C. Cal. 1975) ...... 6

Statutes:

I 5, 6,7

IN THE

Supreme Court of the United States —

Ocroser TERM, 1977.

No.

EDIGIO CERILLI,

RALPH BUFFONE,

MAYLAN YACKOVICH,

JOHN SHURINA,

Petitioners,

0.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Petitioner prays that a Writ of Certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Third Circuit entered on July 15, 1977.

CITATION TO OPINIONS BELOW.

The Opinion of the District Court for the Western

District of Pennsylvania is printed in Appendix B hereto

and is reported at 428 F. Supp. 801 (W. D. Pa. 1977).

The Opinion of the Court of Appeals for the Third Circuit

is not yet officially reported but is printed in Appendix A

hereto.

2 Petition for Writ of Certiorari

JURISDICTION.

The judgment of the Court of Appeals, printed in

Appendix A hereto, was made and entered on July 15,

1977. A Petition for Rehearing en banc was timely filed

and denied by the Court of Appeals on August 12, 1977.

A copy of that Order is appended hereto marked Appendix

C. The jurisdiction of this Court is invoked under 28

U.S. C. § 1254(1).

THE QUESTIONS PRESENTED.

1. Is a District Court Order denying a Motion to Dis-

miss on the ground of pre-trial prosecutorial misconduct

of a kind for which dismissal is alleged to be the appro-

priate remedy, a final order subject to pre-trial appellate

rte in the Court of Appeals under § 1291 of the Judicial

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED.

The Constitutional provision involved is the Due

Process Clause of the Fifth Amendment. The Statute in-

volved is 28 U. S. C. A. § 1291 which provides as follows:

The courts of appeals shall have jurisdiction of ap-

peals from all final decisions of the district courts of

the United States, the United States District Court for

the District of the Canal Zone, the District Court of

Guam, and the District Court of the Virgin Islands,

except where a direct review may be had in the

Supreme Court. June 25, 1948, c. 646, 62 Stat. 929;

Oct. 31, 1951, c. 655; § 48, 65 Stat. 726; July 7, 1958,

Pub. L. 85-508, § 12(e), 72 Stat. 348.

Petition for Writ of Certiorari 3

STATEMENT OF THE CASE.

Three (3) of the four (4) petitioners herein were tried

to a consentual mistrial on an Indictment found in the

Western District of Pennsylvania on February 25, 1976.

The mistrial was declared May 18, 1976 and the operative

events concerned in the present matter occurred thereafter.

Three (3) days after the mistrial the United States

Attorney for the Western District of Pennsylvania filed a

“Motion to Reconvene and Pole the Jury”. This Motion

was simultaneously made public and given to the press and

contained completely baseless allegations that the jury had

agreed on a verdict before the mistrial and implied mis-

conduct in connection with the mistrial. There ensued a

drum fire of public statements by the United States Attor-

ney culminating in a superseding Indictment, the subject

of instant Motion to Dismiss, which was filed on August

5. 1976. The actions of the United States Attorney in this

connection between the time of mistrial and the time of

the Motion for Dismissal were described by the trial Judge

as “ethically and legally uncalled for and unwarranted.

. . . Such action by a powerful officer such as the United

States Attorney was prejudicial and must be condemned

so that it may not be repeated.” (168A of Record-printed

for Court of Appeals). See Appendix B infra.

The District Court denied defendant's Motion on the

ground that remedies alternative to dismissal would suffice.

On appeal to the Court of Appeals for the Third Circuit

defendants argued that the issue of pre-trial misconduct

was reviewable under this Court’s decision in Abney v.

United States, infra. That Court while agreeing that a

double jeopardy issue also raised by the three (3) pre-

viously tried defendants-appellants was reviewable under

Abney held that it was powerless jurisdictionally to con-

4 Petition for Writ of Certiorari

sider the refusal of the Motion to Dismiss for prosecutorial

misconduct under § 1291.

The Court of Appeals read this Court’s decision in

Abney denying jurisdiction of an appellate Court to pass

on the sufficiency of an Indictment as preventing consid-

eration on pre-trial appeal of any issue other than double

jeopardy. Relying on this Court's decision that sufficiency

of an Indictment was only reviewable following an adverse

decision on trial the Court held:

Such reasoning is equally applicable to the “miscon-

duct” and “limitations” questions that the defendants

assert here. For both of these issues may be effectively

reviewed should a final judgment adverse to the de-

fendants result. Consequently, they do not fall within

the ambit of the “collateral order” doctrine.

With respect to the prosecutorial misconduct problem,

in particular, we note that the district judge has re-

served decision on the requested change of venue.

It may be that the trial court will authorize a change

in venue in order to insulate the defendants from any

prejudicial publicity, prosecutorially induced or other-

wise. Or the judge may adopt protective mechanisms

in his own courtroom that will suitably protect the

defendants as well.

On Petition for Rehearing the appellants in that Court

presented the question as follows: “The issue presented by

this Petition is this Court's jurisdiction to review on pre-

trial appeal the denial of defendants’ Motion to Dismiss a

superseding Indictment where the ground of a Motion is

prosecutorial misconduct . . . More specifically the

question presented is whether such Motion and its

denial are clearly collateral and unrelated to the issue of

guilt and the remedy urged upon the Court is to preclude

trial altogether on such Indictment.” Rehearing was

denied as stated on August 12. This Petition followed.

Petition for Writ of Certiorari 5

REASONS FOR GRANTING THE WRIT.

The Court of Appeals faced the issue of its jurisdiction

under 28 U. S. C. A. § 1291 in the context of this Court's

then recent decisions in Abney v. United States, — U. S. —,

52 L. Ed. 2d 651, 97 S. Ct. — (6/9/77), and Lee v.

United States, — U. S. —, 53 L. Ed. 2d 80, 97 S. Ct.

— (June 13, 1977). The Third Circuit held those deci-

sions limited its jurisdiction on pre-trial appeal to the

double jeopardy issue presented in the original appeal of

the three (3) previously tried petitioners in this case.

Petitioners urged in the Court of Appeals that Abney and

Lee do not so limit its jurisdiction and that properly read,

they interpret § 1291 to permit pre-trial review of col-

lateral issues whose resolution favorable to a criminal de-

fendant may include the preclusion of trial as a permissible

remedy.

The Court of Appeals entertained no doubt that the

issue presented was collateral to the issue of innocence

or guilt within the meaning of Abney and Cohen v. Bene-

ficial Industrial Loan Corporation, 337 U. S. 541. There

is and was no doubt in the record below that these peti-

tioners made “no challenge whatsoever to the merits of

the charge against them” nor did they seek suppression of

the government’s intended evidence. Rather, they were in

this Court’s words contesting the very authority of the gov-

ernment to hail them into Court to face trial on the charge

against them.

Unlike the issue of the sufficiency of the Indictment

in Abney, these petitioners contend that no matter what

the form or content of the Indictment they were not

amenable to trial on these charges because of the prosecu-

tion’s misconduct. For this substantive proposition they

relied upon this Court’s decision in Menna v. New York,

6 Petition for Writ of Certiorari

423 U. S. 61; Blackledge v. Perry, 417 U. S. 21 and Robin-

son v. Neil, 409 U. S. 505. Apart from the collateral qual-

ity of the issue presented, these petitioners further argued

in the Court of Appeals that the issue was reviewable be-

cause it involved a right whose vindication may include

the complete prevention of trial.

This Court had held in Abney that the double

jeopardy policy to preclude exposure of an accused to re-

prosecution was one whose vindication required pre-trial

review. Inasmuch as the District Court with more than

adequate foundation in the record characterized the pros-

ecutor’s misconduct as unmistakably deliberate and calcu-

lated and as involving arrogation to himself of the powers

of judgment of a superior Judge (District Court Opinion

page 165a; Appendix B infra), it was at least arguable that

a permissible remedy was the prevention or prohibition of

trial. ,

On this basis these petitioners asserted in the Court

below and now claim that their case is within that class of

cases invoking a policy whose vindication may involve

prevention of trial and therefore subject to pre-trial review

under Abney and Lee, supra.

In Abney, this Court cites with approval the Eighth

Circuit decision in United States v. Barkett, 530 F. 2d 181,

Cert. Denied, — U. S. — (1976) holding a collateral estop-

pel claim to be an appropriate subject of pre-trial review

under § 1291. The Fourth Circuit, in United States v.

MacDonald, 551 F. 2d 196 (4 Cir. 1976), Cert. Granted,

— U. S. — (June 20, 1977; No. 75-1892), held an Order re-

fusing to dismiss on speedy trial grounds a proper subject

of pre-trial review because of the implications of the

Speedy Trial policy. Prosecutorial misconduct has been

similarly so regarded. See, U. S. v. DiMarco, 401 F. Supp.

505 (D.C. Cal. 1975).

Petition for Writ of Certiorari 7

Petitioners also urged upon the Court of Appeals that

this Court’s decision in Lee v. United States, supra, makes

plain that in the double jeopardy context a mistrial brought

about by misconduct of the prosecution involving bad

faith or harrassment, will preclude retrial even though the

mistrial is requested by a defendant. It seems consistent

with that doctrine to say that prosecutorial misconduct

occurring pre-trial but having the same characteristics and

effect as the conduct mentioned in Lee would call for the

invocation of a remedy barring trial.

Finally, we observe that it makes no difference for

appealability purposes, of course, whether these appellants

win or lose on the merits. The issue urged by petitioners

here is only that the rights they assert are reviewable pre-

trial and the Order denying them is final within the mean-

ing of Abney and $1291. We respectfully suggest that

this Order fits the criteria of a collateral Order as described

by Professor Moore, quoted in Barkett, supra, namely, that

it is separable from rights asserted in the action itself, too

important to be denied review in the sense that it presents

a serious and unsettled question and that review, when

it comes, will be too late to be effective. Needless to say,

the assertive right not to be tried cannot be effectively re-

viewed post trial. “

CONCLUSION.

For the foregoing reasons petitioners respectfully re-

quest that a Writ of Certiorari be granted directed to the

Court of Appeals for the Third Circuit for review of the

instant decision.

JouN Rocers CARROLL,

Attorney for Petitioners.

en ES EE OE

APPENDIX A.

UNITED STATES COURT OF APPEALS

For THE TuHirp Crirculr

No. 77-1200

UNITED STATES OF AMERICA

v.

CERILLI, EDIGIO

BUFFONE, RALPH

YACKOVICH, MAYLAN

SHURINA, JOHN,

Appellants

On APPEAL FROM THE UNITED STATES Districr Court

For THE WESTERN DIsTRICT OF PENNSYLVANIA

Crim. Nos. 76-22-1, 2, 3 & 4

Submitted Under Third Circuit Rule 12(6)

June 17, 1977 es

Before: VAN Dusen, ADAMs and Grssons, Circuit Judges

Biam A. GRIFFITH Tuomas R, Ceraso

U. S. Attorney Invinc M. GREEN

DanieEL H. SHAPIRA Dominic CIARIMBOLI,

Asst. U. S. Attorney Greensburg, Pa. 15601

James J. WEsT Attorneys for Appellants

Asst. U. S. Attorney

Pittsburgh, Pa. 15219

Attorneys for Appellee

(Al)

A2 Appendix A

Opinion of the Court

(Filed July 15, 1977)

Per CuriAM:

This is an appeal primarily arising out of the declara-

tion of a mistrial in a criminal proceeding. The defendants

proffer three issues for our consideration: whether the

issuance of a second indictment against the defendants

violates the Double Jeopardy Clause; whether the prosecu-

tion engaged in misconduct which precludes the possibility

of a fair trial; and whether a trial under the second in-

dictment is barred by the statute of limitations. However,

as a threshold matter, we must first decide whether this

Court has jurisdiction, at the present time, to consider any

of the points pressed by the defendants.

I.

On February 25, 1976, defendants Cerilli, Buffone and

Yackovich were indicted for conspiracy and substantive

violations of the Hobbs Act. All three men are high-

ranking officials of the Pennsylvania Turnpike Commis-

sion, and it is alleged that they had demanded and ob-

tained money from persons who leased equipment to the

Commonwealth by the wrongful use of fear and under

color of official right.

A trial commenced in late April of 1976 and took place

over a three-week period. On May 17, 1976, the district

judge charged the jury, and the deliberations then were

initiated. Shortly thereafter, the judge was informed

that one of the jurors had taken ill. Such juror was ex-

amined first by a nurse and then by a physician at a nearby

hospital emergency room. The district court consulted

with the medical personnel, and the juror then was hos-

pitalized.

Appendix A A3

As a result of this development, the trial judge gave

defense counsel the choice of proceeding with eleven jurors

or moving for a mistrial. Also, the defense attorneys were

asked if they would stipulate that the ill juror could re-

join his colleagues if and when he sufficiently recovered.

But the defendants and their attorneys opted for a mis-

trial.

Immediately prior to and following the declaration of

the mistrial, the proceedings received extensive press cov-

erage in Pittsburgh and throughout Pennsylvania. Inter-

views were conducted with many of the principals in the

case, including an interview with one Assistant United

States Attorney who voiced his disappointment in the mis-

trial and who indicated that the case would be retried.

On May 21, 1976, the government filed a motion to

reconvene and poll the jury, claiming that “prior to the

separation of the ill juror, the jury had unanimously

agreed on a verdict as to several counts of the indictment.”

Such motion was asserted in anticipation that partial ver-

dicts might be entered. On May 25, however, the trial

court denied the motion to reconvene and poll the jury.

The press reported, in considerable depth, the events sur-

rounding the motion to reconvene.

Not content to leave all post-trial maneuvering to the

government, the defendants presented a motion for a judg-

ment of acquittal on May 24 and, in July of 1976, also

moved to dismiss the indictment or at least to secure a

change of venue because of the extensive publicity that

had been accorded the proceedings.

A “superseding” indictment was filed, on August 5,

1976, which named a new defendant (Shurina) and listed

six additional substantive counts. One admitted purpose

of this second indictment was to counter court rulings in

the original trial that had excluded evidence of similar

acts of alleged corruption on the part of the defendants,

A4 Appendix A

acts which the government had desired to introduce on

issues such as motive, intent and preparation. In the view

of the district judge, such similar acts should have been

set forth in the initial indictment, and he was unwilling to

permit a constructive amendment of the indictment by

admitting such evidence.

The defendants’ request for acquittal was denied on

August 13. But, on August 24, the defendants filed another

motion to dismiss the charges against them or to obtain a

change in venue. The motion to dismiss rested, in part, on

the premise that any proceedings based on the superseding

indictment would impermissibly expose the defendants to

double jeopardy. On January 25, 1977, and after a hear-

ing, the dismissal motion was rejected by the district judge.

However, he reserved decision respecting the venue issue

until the voir dire for the retrial was

On February 2, 1977, the defendants filed an appeal

from the denial of their motion to dismiss. At that junc-

ture, the government moved to quash the appeal on

grounds that there was no final appealable order. Such

motion and the case as a whole were referred to this panel

for disposition.

Il.

Our first responsibility is to decide whether the denial

of the defendants’ motion to dismiss the indictment on

double jeopardy grounds constitutes a “final decision”

within the meaning of 28 U. S. C. § 1291 so as to be im-

mediately appealable.

This jurisdictional issue recently was decided by the

Supreme Court in Abney v. United States.’ In that case,

in which the defendants challenged a retrial on double

jeopardy grounds, the Court ruled that an order rejecting

1. — U.S. —, 45 U.S. L. W. 4594 (June 9, 1977).

Appendix A

a motion to dismiss an indictment was a final decision for

m

jeopardy claims falls within the “collateral order” excep-

tion to the final judgment rule.* This is so since such an

order constitutes a complete, formal and final rejection of

the

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erally [will] not stand in the way of reprosecution.

if the underlying error was ‘motivated by bad faith or

A8& Appendix A

In the case at bar, it is clear that the defendants exer-

cised their choice to seek a mistrial. They decided upon

such a termination of their trial when the juror became ill

during the course of deliberations. In light of the precepts

articulated in Lee and its predecessors,’ such consent re-

ment, if it retains vitality, or else would secure another

indictment. Nonetheless, it has long been settled that the

Double Jeopardy Clause is not abridged there are

7. See, e.g., United States v. Dimitz, 424 U. S. 600 (1976).

8. See, e.g., United States v. White, 524 F. 2d 1249 (5th Cir.

1975); United States v. Ragano, 520 F. 2d 1191 (Sth Cir. 1975):

U. S. v. Bowles, 183 F. Supp. 237 (D. Me.

therein. See also De Marrias v. U ay A.

Cir. 1973); United States v. Wilsey, 458 F. 2d 11 (9th Cir. 1972);

and United States v. Garcia, 412 F. 2d 999 (10th Cir. 1969).

—

cc ae

Appendix A AY

In the present context, however, there is no indication that

the prosecution plans to move against the defendants on

both indictments. Accordingly, the Double Jeopardy

Clause does not preclude further proceedings against the

defendants, even under the “superseding” indictment that

has been returned against them.

V.

The order of the district court denying the motion to

dismiss the indictment on double jeopardy grounds will be

affirmed. In all other respects, “he appeal will be dismissed

for lack of jurisdiction.

Al0 Appendix B

APPENDIX B.

IN THE

UNITED STATES DISTRICT COURT

For THE WESTERN District OF PENNSYLVANIA

Criminal Action No. 76-22

UNITED STATES OF AMERICA

v.

EGIDIO CERILLL

RALPH BUFFONE,

MAYLAN YACKOVICH and

JOHN SHURINA

Opinion

RosEnBERG, District Judge

The matters now before me are on two motions, (1) a

Motion To Dismiss Indictment filed July 23, 1976 against

the defendants, Egidio Cerilli, Ralph Buffone and Maylan

Yakovich; and (2) a Motion To Dismiss Indictment filed

August 24, 1976 against the defendants, Egidio Cerilli,

Ralph Buffone, Maylan Yackovich and John Shurina, or in

the alternative for change of venue.

The original three defendants, Cerilli, Buffone and

Yakovich were charged in the first ten-count indictment

for violation of the Hobbs Act, 18 U. S. C. § 1951 and were

tried to a jury during a period of three weeks, commencing

on April 27, 1976. After counsel summations and a two

hour charge on instructions to the jury and after the alter-

nate jurors were excused, the jury were locked up for de-

Appendix B All

liberation shortly after noon. In the evening the jury was

sent to dinner and after dinner some of the jurors revealed

to the bailiffs that they had become disturbed during the

afternoon by the noticeably unusual condition of one of

their members. The bailiffs at approximately 8:00 p.m.

were informed, and in turn informed the court who also in

turn informed counsel, that this particular member of the

jury was ill.

The processing of the ill juror from 8:00 p.m. that

evening at 8:00 p.m. I invited, with the consent of counsel,

the United States Post Office nurse who examined the

juror and found him to be in a highly nervous state with a

blood pressure of 170/110. She declared that she was not

and would not administer drugs to the patient

(other than tylenol) without a doctor’s prescription and

that this man needed a doctor. He asserted that he had

no doctor. At 10:00 p.m., while the jury was still seques-

tered, and with the consent of counsel, I requested the

same United States Post Office nurse to look at the juror

again, before sending the jury to the hotel for the night.

On this occasion I, with the approval of counsel, was

present with the bailiffs who were previously present in

the courtroom, with the door of my chambers and the door

to the jury room open. All counsel with the court reporter

were gathered in my chambers. The nurse then found the

juror’s blood pressure to be 175/112. She again emphati-

cally declared that the juror was in need of a doctor and

that she would not and could not prescribe for this man

who was then in a worse nervous state than he had been

at 8 o'clock.

I then questioned the juror, in the presence of the

nurse and the bailiffs, and he advised that he had no doc-

tor. All of this was reported to the assembled counsel and

made a matter of record. Eventually, I believe it was on

Al2 Appendix B

the suggestion of counsel for the prosecution to the United

States Marshal, that the juror be sent to the nearby Central

Medical Pavilion Hospital emergency room, because the

Marshal had already contacted these authorities for a doc-

tor to be sent to the court. The answer by the hospital

representative was that the juror would have to be sent to

the hospital because equipment and staff would be needed

for testing; however, the hospital emergency crew would

receive and report on the juror immediately, if he were

brought to the hospital. All counsel agreed that he be sent

to the hospital and this was done. All counsel, the defend-

ants and the reporter waited in my chambers for the report

from the doctor. That came shortly before 1 o'clock a.m.

over the phone. With the consent of all counsel present, I

repeated the doctor's statements as he gave them to me,

after I had assured him that his confidentiality would be

protected, since in this instance it would serve the just

processing of the case. All of this is a matter of record

en camera and I shall not give the more confidential details

because of any possible reflections on any person.

In any event, after tests were made at the hospital by

the doctor and his staff with their equipment, the doctor

advised me, and I in turn repeated it to all those present in

my chambers, that it urgent that the juror be admitted to

the hospital at once for a specific reason. I repeated the

reason aloud to counsel and made it a part of the record.

Particularly, the doctor stated, that it would be hazardous

to send this one juror out with the other eleven for the

night. All this, I say, was divulged to counsel and made

a part of the record en camera. After the juror was ad-

mitted to the hospital, the eleven other jurors were sent to

a motel for the night.

Thereupon the three counsel for the defendants refus-

ing to proceed with eleven jurors moved for a mistrial,

without any objection on the part of the prosecuting at-

Appendix B Al3

torney. Orally I granted the motion, as reported on the

record sometime after midnight, but I requested defense

counsel to renew their motion on the next day in open

court.

On the next morning the Assistant United States At-

torney, without notice to opposing counsel, came to me

in chambers and told me that he had relented on his ap-

proval the night before and desired a re-examination by

another doctor. In any event, after giving the matter due

consideration and consultation with the Chief Judge, I

denied the request. Orally, he suggested that I await the

release of the ailing juror from the hospital and reunite

them for further deliberation. I denied the suggestion as

well, and later in open court granted the defendants’ mo-

tion of a mistrial. In the meantime and without my knowl-

edge, the prosecuting attorney instructed one of the bailiffs,

who had left the juror in the hospital on the night before,

to return to the hospital in the morning and stand watch

over the juror. This bailiff remained with the juror until

4:00 p.m. When the deputy marshal informed me of the

Assistant United States Attorney’s action, I instructed the

marshal that when a case is in process neither the prosecu-

tion nor the defense counsel has any right to direct the

marshal as to what he is to do with jurors, but such in-

structions must come from the trial judge. Accordingly,

the bailiff left the hospital at 4:00 o’clock p.m.

On the next day the marshal and the bailiff in attend-

ance at the hospital reported to me that on the previous

' day while the bailiff was yet at the hospital watching the

ailing juror, the hospital’s daytime doctor came on the floor

at about 3:00 o'clock p.m. and looked at the ailing juror

with the remark that he had seen this patient before under

similar circumstances. I thereafter summoned the jury

commissioner with the file on this particular juror and

learned that the juror’s answers to the jury commissioner

Al4 Appendix B

on information forms were similar to those given to the

nurse—that he had no doctor and that he had no attorney.

A day later one of the highly prominent and funda-

mentally reliable newspapers in the city carried the story

of its federal court reporter that I had excused the juror

without having consulted with his “family doctor”. This

was an absolute falsehood and one I am certain that this

highly reputable newspaper would never have published

had it not gotten that information from what it would call

a reliable source. I have attempted to fathom what that

source might have been and cannot be persuaded that it

could have been from the hospital nor the juror’s private

personal doctor, since he had none.

Some circumstantial persuasion might exist in what

followed. When I denied the oral motion of the prosecut-

ing trial counsel to hold the eleven jurors in abeyance until

such time as the one being treated at the Central Medical

Pavilion Hospital was released and to reunite them and

direct them to resume deliberation as if no separation had

occurred, the matter was publicized (by someone) and

that evening the United States Attorney himself, as I ob-

served him, appeared on television news broadcast and

criticized me, and set himself up as the superior judge by

stating that I was obliged to reunite the twelve separated

jurors and cause them to continue to deliberate. From

then on my staff was bombarded by news representatives

for my reply, but of course, as a federal judge I could not

and would not reply.

For a day or two the publicity subsided. Then on the

following Friday morning, May 21, 1976, at 10:42 a.m.,

the prosecution filed a Motion To Reconvene and Poll The

Jury. In the motion, the averment was that “the United

States Attorney for this District has reason to believe that

prior to the declaration of a mistrial at 12:30 A. M. on May

18, 1976, and prior to the separation of the ill juror, the

Appendix B Al5

jury had unanimously agreed on a verdict as to several

counts of the indictment.” (Emphasis added). The prose-

cution did not aver any facts as a basis by which the

United States Attorney was induced to “believe” that he

had “reason to believe” what he averred.

The motion also averred that the “Court had inherent

power to recall the jury and determine whether or not they

had reached a unanimous verdict .. .” A Certificate of

Service was enclosed to the effect that a true and correct

copy of the within motion “was served by mail on May 21,

1976 and orally transmitted by telephone to all counsel of

record.” Immediately thereafter my office staff was again

bombarded by the communications media personnel on

what and when my disposition of the motion would be.

If that motion was filed for its sparse contents and in the

manner in which it was done for the purpose of reawaken-

ing and procuring additional, but prosecution-sided pub-

licity, it served the purpose as it appeared in the news

media that afternoon. :

At the same time it was obvious that if the prosecu-

tion really wanted speedy action on such a motion it could

have easily notified all the defense counsel to come in at

a particular time that day before the court when it would

then present an emergency motion upon which I could

have acted without delay. The very fact that the prosecu-

tion “served by mail” the motion on a Friday morning to

the various defense counsel indicates essentially that it

would take at least twenty-four hours for the mail to ar-

rive from Pittsburgh into Westmoreland County, that is

into Greensburg or New Kensington where defense coun-

sel have their offices, and that this would be on a Saturday.

Under our law, computing the days when answers are re-

quired to be filed, we exclude both Saturday and Sunday,

and thus I would have concluded that the delivery of

copies of the motion would ordinarily have come to de-

Al6 Appendix B

fense counsel on Monday morning. And so counsel should

have had at least twenty-four hours to answer the motion.

As it turned out an answer was filed by defense counsel

on Tuesday afternoon.

However, I need not be concerned with that answer

because on Tuesday, May 25th, at 11:15 a.m., I filed a

Memorandum Opinion and denied the motion of the

United States Attorney to reconvene and poll the jury.

Therein I stated very briefly and cited authority that a

jury's verdict does not become effective until it is presented

in open court and until counsel have had the opportunity

to poll the jurors. I cited as authority United States v.

Taylor, 507 F. 2d 166, C. A. 5, 1975.

Three days had already elapsed when the motion was

filed on Friday morning and all eleven jurors whom I had

been asked to reconvene for their factual information had

been separated and had gone their own ways. Under

such circumstances the motion, too, would have been late.

In any event, the United States Attorney cited no law to

support him or to contradict any cited authority. Yet on

that evening the United States Attorney, again, personally

went before the public on a television broadcast, which I

personally observed, and officially stated that I was wrong

in denying his motion to reconvene and poll the eleven

members of the jury, that he could not appeal my deci-

sion, but that he could mandamus me to compel me to

change my decision, but would not do this and would

rather speed up the trial.

Judge Garth in United States of America v. DeKosa

et al., — F. 2d — , C. A. 3, No. 76-1642, 76-1643, in an

opinion filed January 11, 1977, at page 11 said:

“This Court has constantly and continuously empha-

sized that 3

Appendix B Al7

A United States Attorney in a criminal case has

an even greater responsibility than counsel for an

individual client. For the purpose of the indi-

vidual case he represents the great authority of

the United States and he must exercise that re-

sponsibility with the circumspection and dignity

the occasion calls for.

United States v. LeFevre, 483 F. 2d 477, 478 (3d Cir.

1973).”

This publicity action by a United States Attorney be-

knew that I would not respond to his broadcasts or enter

into public debate with him. His television demonstra-

tions could not have been for the purpose of fairly con-

victing the three defendants in the courtroom before a

jury of twelve, but could have been only for the purpose

of convicting the trial judge ex parte before the court of

public opinion and coercing a leaning towards the prose-

cution’s side. Such action by a powerful officer such

must

However, it is necessary that the trial judge, even if

critical of the action by counsel for one side or another,

i

|

roe eaten yo Manag a oe dog ge

trial

That all publicity did not leave some impact or bias

or even conviction in the minds of some persons of this

A20 Appendix B

District, may not be dismissed out of hand as being im-

probable because by our modern method of communica-

tion there can never be some likelihood of a recollected

and even biased carryover which would in some manner

be unfair in a trial of a defendant. Under such circum-

stances our courts have held that reason and judicial con-

cern must be left to the trial judge to see to it that defend-

v. Patricia Hearst, 412 F. Supp. 873 (D. C. Cal. 1976) and

United States of America v. Haldeman, et al., — F. 2d —,

C. A. D. C. 1976. And even in those cases, their trials

Appendix B A21

the defendants to waive their rights under the Speedy Trial

Act, 18 U. S. C. § 3161 et seq. The time delay has been of

benefit to both sides, because the furor raised by the indis-

creet and erroneous tactics of the prosecution have suffi-

ciently died down. A better atmosphere will have been

aE SY RED © Cnty Soy eae Gee a ie ay

Directing myself specifically to the defendants’ mo-

tions, I must base my decision on the law of the case. Any

other basis for a decision would only result in futility. In

; A.

4, 1974; United States o. Pfingst, 477 F. 2d 177, C. A. 2,

1973; United States v. Whiteside, 391 F. Supp. 1385

(D. C. Del. 1975); United States v. Archer, 355 F. Supp.

981 (D. C. N. Y. 1972). These cases all dealt with prose-

cutorial misconduct of a sort.

In United States v. Addonizio, 313 F. Supp. 486

(D. C. Pa. 1970), affd. 451 F. 2d 49, C. A. 3, 1972, the

District Court held that “Even, however, accepting that

characterization of the pre-trial publicity herein, this court

is not persuaded that the fact alone necessarily precludes

the possibility of selecting a fair and impartial jury for the

trial of the indictment. ... See Patriarca v. United States,

402 F. 2d 314, C. A. 1, 1968, cert. den. 393 U. S. 1022

(1969); United States v Corallo, 281 F. Supp. 24 (D. C.

N. Y. 1968).” (at page 493).

In United States v. Haldeman, supra, filed October

12, 1976, per curiam, the Court held at pages 26-27:

“We have carefully reviewed the “Watergate articles

submitted by appellants, and we find that pretrial

publicity in this case, although massive, was neither

as inherently prejudicial nor as unforgettable as the

spectacle of Rideau’s dramatically staged and broad-

A22 Appendix B

cast confession. It is true that some pieces contained

population of Washington, D. C. was so aroused

able

against appellants and so unlikely to be objec-

tively to judge their guilt or innocence on the basis

their due

process rights were violated by the District Court's

refusal to grant a lengthy continuance or a change

of venue prior to attempting selection of a jury.”

This case is somewhat different in one respect from what

the Court said in United States v. Haldeman, supra, at

pages 26-27, in that the proportion of publicity might vary

in our case from that in which the Court found was

“straightforward, unemotional factual accounts of events

and of progress of official and unofficial investigations.”

In tune with the current cases of this Circuit and others,

it is at least more expedient to wait until a thorough voir

dire before a motion to change venue should be enter-

tained. Although not the best way, it is the judicially ap-

proved way.

While the defendants argue that a second indictment

is premature, it is clearly true, nevertheless, that the gov-

ernment may have two or more indictments pending

against a defendant on the same or related charges adding

or subtracting pertinent counts. United States v. Ragano,

520 F. 2d 1191, C. A. 5, 1975; DeMarrias v. United States,

487 F. 2d 19, C. A. 8, 1973, cert. den. 415 U. S. 980

(1974); United States v. Wilsey, 458 F. 2d 11, C. A. 9,

Appendix B A23

1972; United States v. Garcia, 412 F. 2d 999, C. A. 10,

1969; United States v. Bowles, 183 F. Supp. 237 (D. C.

Me. 1968). A second indictment in this case, at this time,

5, 7, 8 and 9 are barred because they happened in April

and May 1971, it is no basis for argument. The

an indictment tolls the statute of limitations and

ond indictment is filed prior to the dismissal of

the counts in the second are timely because the original

statute was tolled by the first indictment. United States v.

:

ts, I

presiding judge in this case. I am therefore referring this

ee ee eee © a

action back to

other judge for further disposition of the case.

AQA Appendix B

IN THE

UNITED STATES DISTRICT COURT

For THE WESTERN District oF PENNSYLVANIA

Criminal Action No. 76-22.

UNITED STATES OF AMERICA

vo.

EGIDIO CERILLI,

RALPH BUFFONE,

MAYLAN YACKOVICH and,

JOHN SHURINA.

ORDER OF COURT.

Anp Now, To-Wrr, this 26th day of January 1977, the

above entitled case is hereby referred back to the Clerk of

Court for reassignment to another judge for further dis-

position of this case.

/s/ Louts RosENBERG,

United States District Judge.

ce:

Daniel Shapiro, Assistant

United States Attorney

633 U. S. P. O. & Courthouse

Irving M. Green, Esq.

1092 Fifth Ave.

New Kensington, Pa. 15069

Dominic Ciarimboli, Esq.

101 North Main St.

Greensburg, Pa. 15601

Thomas R. Ceraso, Esq.

First National Bank Building

Greensburg, Penna. 15601

Appendix C A25

APPENDIX C.

United States Court of Appeals

For THE Turep Circuit

No. 77-1200

UNITED STATES OF AMERICA

v.

EDIGIO CERILLI, et al.,

Appellants

Sur Petition for Rehearing.

Present: Serrz, Chief Judge, Van Dusen, ALDISERT,

Apams, Grpsons, RosENN, Hunter, WEIs and

Gartu, Circuit Judges

The petition for rehearing filed by Appellants in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all the

other available circuit judges of the circuit in regular ac-

tive service, and no judge who concurred in the decision

having asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition for

rehearing is denied.

By THE COURT,

/s/ Artin M. Apams,

Circuit Judge

Dated: August 12, 1977