Petition — Iannone v. United States
Supreme Court brief1978
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Supreme Court, U. S,
FILED
JAN 3 1978
MICHAEL RODAK, JR., CLERK
IN THE
Supreme Court of the United States
October Term, 1977
No. 7U"-946
JOHN LANNONE and IRVING ALBAHARI,
Petitioners,
against
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Second Circuit.
Irvine ANOLIK
Attorney for Petitioners
225 Broadway
New York, N. Y. 10007
(212) 732-3050
TABLE OF CONTENTS.
Page
Petition for a Writ of
Certiorari to the United
States Court of Appeals
for the Second Circuit ‘ ° 1
Opinion Below . . . ° ° . 2
Jurisdiction . ° ° ‘ . ° 3
Constitutional and Statutory
Provisions Involved . ° ° 3
Adoption of Petitions of Yarmosh,
Botta and Messina , ° ° 4
Questions Presented , ° ° ° 4
Statement of the Case. ° ° ° 6
Point I. The Court below erred in
not suppressing the electronic
recordings of telephone conver-
sations since the Government
failed to seal them “immediately”
upon the achievement of the
object for which the order was
granted. Ergo, the letter and
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and spirit of Title III of
the Omnibus Crime Control Act
(18 U.S.C. 2510-2520) was
violated . ° ° ° . . 10
Point II. The statute involved
herein, 18 U.S.C. 1955,
involves the necessity of
finding that five or more
persons unlawfully, wilfully,
and knowingly did “conduct,
finance, manage, supervise,
direct and own an illegal
gambling business * * *,"
The jury, however, was not
specifically told which five
persons were directly attribu-
table to the respective
appellants herein and, con-
sequently, there may well have
been a defective verdict since
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iii.
the jurors could have been
less than unanimous, not only
with respect to this count,
but with regard to the con-
spiracy charge as well,
wherein the same problem
exists except that two or
more people need be involved.
Only four were on trial . .
Point III. Appellant Albahari
was never arraigned on his
indictment, nor was he given
an opportunity to address
motions thereto. Accordingly,
the judgment as to him is
void since the Court acquired
no jurisdiction . . ° .
Point TV. There were at least
four separate conspiracies
proved and thus, the case
Page
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22
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suffered from fatal variance
and the indictment should
have been dismissed . ° ; 26
Conclusion ° ° ° ° ° ° 28
Appendix . . . : . ° . 29
Decision (United States v.
Esposito) . : . ‘ . 29
Order Denying Rehearing . . . 32
Order Denying Rehearing
En Bane . : ° ° " . 35
TABLE OF CASES.
CASES CITED.
Anderson v. United States, D.C.
Cir. 1965, 352 F. 2d 945,
946 . : . ° ° ° ° 23
Bynum v. United States, 423 U.S.
952 (1975), denying cert. to
513 F. 2d 533 (C.A. 2, 1975) . 10
.
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Crain v. United States,
162
U.S. 625, 644, 645 (1896)
Hamilton v. Alabama, 368 U.S.
52, 54, n- 4. .
Hopt v. Utah, 110 U.S.
547
Kotteakos v. United States,
U.S. 750, 773-774
328
McCarthy v. United States, 394
U.S. 459 (1969) .
McConnell v United States (5th
Cir. 1967), 375 F.
909 . : ; °
People v. Nicoletti, 35
2a 249 ° ; °
People v. Sher, 38 N.Y.
Scott v. United States,
917 (1976) : :
Street v. New York, 394
585-86 (1969) .
2d 905,
N.Y.
2d 600
425 U.S.
U.S.
576,
Page
26
23
26
27
26
23
ll
11
1l
21
vi.
Stromberg v. California, 283
: U.S. 359, 367-68 (1930) .
Sweeney v. United States, 9th Cir.
1969, 408 F. 2d 121 . °
United N.Y. & N.J. Sandy Hook
Pilots Assn. v. Halecki,
358 U.S. 613, 619 (1959) .
United States v. Bertolli, 529 F.
2a 149 (2d Cir. 1975) °
United States v. Bryant, 461 F.
2a 912 (2d Cir. 1972) °
‘united “States v. Byrd, 352 F. 2d
570 (2d Cir. 1965) ° .
United States v. Chavez, 416 U.S.
562 (1974) . ° ° ;
United States v. Donovan 429 U.S.
413, 50 L. Ed. 2d 661
(1977) : : ° . :
United States v. Driscoll, 449 F.
2d 894, 898 (lst Cir. 1971)
Page
, 21
; 23
° 22
26, 27
; 20
; 20
10, 12
6, 10
° 22
vii.
United States v. Esposito, 423 F.
Supp. 908 (SDNY) . . .
United States v. Falcone, 505 F.
2d 478, cert. den. 420 U.S.
965 °. ° ° ; ° °
United States v. Garguilo, 310 F.
2d 249 (2d Cir. 1962) °
United States v. Gigante (2d Cir.
1976), 538 F. 2a 502 . °
United States v. Giordano, 416
U.S. 505 (1974) . ; ;
United States v. Guterma, 281 F.
2a 742, 747 (2d Cir. 1960)
United States v. Kahn, 415 U.S.
143 (1974) ; ° ° °
United States v. Natelli, 527 F.
2d 311 (2d Cir. 1975), cert.
den. U.S. . .
United States v. Terrell, 474 F.
2d 872 (2d Cir. 1973) °
Page
19,
ll
20
17
12
21
10
21
20
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Page
Yates v. United States, 354 U.S.
298, 312 (1957) . , ; ; 20
STATUTES. °
18 U.S.C. §371 . . . . . 6
18 U.S.C. §1955 ° ; 2, 3, 5, 6, 18
18 U.S.C. §§2510-2520 . - 3, 4, 10, Ill
. . . 3
28 U.S.C. §1254(i)
18 U.S.C. §2518(1)(c) . ‘ , ‘ 5
OTHER AUTHORITIES.
Amendments to the U.S. Constitution:
Fourth . . . ° . - 3, 4
Fifth ° ; ° , ° - 3, §
Sicth . ; ° ; ° ° 3
Federal Rules Criminal Procedure;
Rule 6 ° ° ° ° , 3, 23
Rule 7 ° ° ° ° ° 3, 23
Rule 10 . ° ° ‘ ° 3, 23
Rule ll. ‘ ° , ° 3, 23
ix.
Rule 12. ; ; ° ; 3, 5
Rule 52 . . ° ° ; 3
Rules of the Supreme Court,
Rule 22 (2) . . ° . . 3
In the
SUPREME COURT OF THE UNITED STATES
October Term 1977
No.
JOHN IANNONE and IRVING ALBAHARI,
Petitioners,
against
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT.
Petitioners, JOHN IANNONE and
IRVING ALBAHARI, jointly and severally,
respectfully pray that this Court issue
a writ of certiorari to review the
order of the United States Court of
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Appeals for the Second Circuit made in
the above case on the 24th day of June,
1977, affirming their convictions in the
United States District Court for the
Southern District of New York, for the
crime of violating 18 U.S.C. §1955 (one
count) and a conspiracy to do so, after
trial before Weinfeld, D.J., and a jury.
OPINION BELOW.
The United States Court of Appeals
for the Second Circuit affirmed the
Sutgnent of the District Court without
formal opinion. The order of affirmance
is annexed hereto as part of the appen-
dix. The decision of opinion of Honor-
able Edward Weinfeld in the District
Court is reported at 423 F. Supp. 908
(SDNY) [United States v. Esposito, et
al.].
3
JURISDICTION.
The jurisdiction of this Court is
predicated upon 28 U.S.C. §1254(i) and
the Rules of the Supreme Court, Rule
22(2). The order of affirmance of the
Second Circuit was dated June 24, 1977,
and a petition for rehearing on behalf
of IANNONE and ALBAHARI was denied on
December 5, 1977, a copy of which is
annexed and made part of the appendix.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED.
The Fourth, Fifth and Sixth Amend-
ments of the United States Constitution,
as well as 18 U.S.C. §§1955; 2510-2520;
and Rules 6, 7, 10, 11, 12, and 52 of
the Federal Rules of Criminal Procedure,
are involved.
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ADOPTION OF PETITIONS OF YARMOSH,
BOTTA AND MESSINA.
The petitioners herein adopt the
petitions and arguments heretofore filed
by their co-defendants at trial, namely
JOHN YARMOSH, NICHOLAS BOTTA, and
LAWRENCE MESSINA.
QUESTIONS PRESENTED.
1. Whether the Circuit Court and
the Trial Court below erred with respect
to the Trial Judge's failure to suppress
electronic recordings of telephone con-
versations obtained by Court order, since
the Government failed to sea] them
“immediately” upon achievement of the
object of the wiretap order? (Fourth
Amendment; 18 U.S.C. §§2510-2520).
2. Whether petitioner ALBAHARI was
denied due process of law because the
Trial Court never arraigned him on the
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indictment, nor was he given an oppor-
tunity to address motions with respect
thereto? (Fifth Amendment and Rule 12,
F.R.Cr.P.).
3. Whether the instructions to
the jury were defective and violative
of due process since they were never
informed which group of five persons
were allegedly involved in the violation
of 18 U.S.C. §1955? (Fifth Amendment).
4. Petitioners herein adopted the
motions of co-defendants, with respect
to wiretapping. Whether an application
in support of an electronic surveillance
order sought in order to investigate
illegal gambling operations sufficiently
establishes the inadequacy of other
investigative techniques, pursuant to
18 U.S.C. §2518(1)(c), where its alle-
gations of inadequacy substantially
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consist of statements as to the diffi-
culties of investigating gambling opera-
tions in general? [See Petition of
Yarmosh. |]
5. Whether United States v. Donovan,
429 U.S. 413, 50 L. Ed. 2d 661 (1977)
should have been applied with reference
to the motion made before the Trial
Judge?
STATEMENT OF THE CASE.
Petitioners herein were indicted
along with several others, including
Yarmosh, Botta and Messina, with two
counts, one charging participation in
illegal gambling business in violation
of 18 U.S.C. 1955, and the second, a
conspiracy under 18 U.S.C. 371, to do so.
Yarmosh, Botta and Messina, after moving
to suppress certain electronic surveill-
ance, pled guilty to the conspiracy
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count. Their right to appeal was pre-
served with respect to all pretrial
rulings, and as to Yarmosh, a ruling
denying his application of January 26,
1977, for leave to move to suppress
wiretap evidence.
This case involved a so-called
gambling syndicate operating in East
Harlem. A co-conspirator named Robert
Breindel, who testified for the Govern-
ment, was perhaps the most important
witness against petitioners herein.
There were no recorded telephone con-
versations admitted into evidence con-
taining the voice of ALBAHARI. IANNONE
was subject to electronic surveillance
of extremely short duration.
In the original indictment ALBAHARI
was referred to as "Brooklyn". IANNONE
was called "Kodak". A superseding
8
indictment was returned, giving ALBAHARI's
nickname as "AC" but ALBAHARI was never
arraigned on this indictment, although
the conviction rests upon it.
The prosecution admitted that there
really were four groups, distinct each
from the other, running the operations
and therefore, petitioners maintain
multiple conspiracies existed and the
indictment, charging only one conspiracy,
was never proved.
Originally, F.B.I. Agent Robert
Walsh testified that when he debriefed
Breindel, the latter had identified
"Brooklyn" as being petitioner ALBAHARI.
Breindel was not clear as to who
IANNONE was and whether he was nicknamed
"Kodak". Breindel referred to him as
"Johnny" (240-242; 249-252)*
* Numerals in parentheses refer to pages of the
official court reporter's minutes of trial,
unless otherwise indicated.
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A tape recording, supposedly con-
taining the voice of IANNONE, contained
Only 28 words and was far from over-
powering.
The Government offered no logical
explanation as to why the tapes were not
promptly sealed immediately after the
determination was made that the location
being tapped was no longer operational.
The prosecutor hinted that he wanted to
make sure the bugged wire room was really
closed. (H- 94-96) **
** Numerals preceded with the letter "H" refer
to pages of the suppression hearing.
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POINT I.
THE COURT BELOW ERRED IN NOT SUPPRESS-
ING THE ELECTRONIC RECORDINGS OF
TELEPHONE CONVERSATIONS SINCE THE
GOVERNMENT FAILED TO SEAL THEM
“IMMEDIATELY” UPON THE ACHIEVEMENT
OF THE OBJECT FOR WHICH THE ORDER
‘WAS GRANTED. ERGO, THE LETTER AND
SPIRIT OF TITLE III OF THE OMNIBUS
CRIME CONTROL ACT (18 U.S.C. 2510-
2520) WAS VIOLATED.
There appears to be no rational
basis for the prosecutor failing to
comply with the strict provisions of the
Omnibus Crime Control Act Title III
(18 U.S.C. 2510-2520).
The Supreme Court has interpreted
the statute, but until United States v.
Donovan, supra, did not reach any specific
conclusions. See United States v. Kahn,
415 U.S. 143 (1974); United States v.
Giordano, 416 U.S. 505 (1974); United
States v. Chavez, 416 U.S. 562 (1974);
see also, Bynum v. United States, 423
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U.S. 952 (1975) [Justice Brennan dissent-
ing], denying cert. to 513 F. 2d 533
(C.A. 2, 1975); Seott v. United States,
425 U.S. 917 (1976).
The Circuit Court has passed on the
issue preliminarily and ruled in another
case, United States v. Gigante (2d Cir.
1976), 538 F. 2d 502, that a failure to
comply strictly with the immediacy
requirements of 18 U.S.C. 2510-2520, was
fatal and required suppression.
Consistent with this approach is
People v. Sher, 38 N. ¥. 2d 600, and
People v. Nicoletti, 35 N. Y. 2d 249.
The Court, in Gigante, specifically
distinguished the Third Circuit's
opinion in United States v. Falcone,
505 F. 2d 478, cert. den. 420 U.S. 955.*
* There seems to be a split among the Circuits
on this matter.
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See also, the dissent in United
States v. Gtordano, 416 U.S. 505, and
United States v. Chavez, 416 U.S. 562.
The requirements of Section 2518 (8)
(a) were not met and this is unquestion-
ably a basis for suppression of the
recorded evidence.
In United States v. Gigante, supra,
the Court explained:
"We recently had occasion to
observe that Congress, in enacting
Title III's sharply detailed
restrictions on electronic sur-
veillance, intended to ‘ensure
careful judicial scrutiny through-
out' the process of intercepting
and utilization of such evidence.
United States v. Marton, No.
75-1408 (2d Cir. May 7, 1976),
pp. 3567, 3568.
13
"The immediate sealing and
storage of recordings of intercepted
conversations, under the supervision
of a judge, is an integral part of
this statutory scheme. Seccion
2518(8) (a) was intended ‘to insure
that accurate records wili be kept
of intercepted communications.'
S. Rep. 1097, 90th Cong., 2d Sess.,
quoted tn 2 U.S. Code Cong. & Ad.
News, 2193 (1968). Clearly all of
the carefully planned strictures
on the conduct of electronic sur-
veillance, e.g., the ‘minimization'
requirement of §2518 (5), would be
unavailing if no reliable records
existed of the conversations which
were, in fact, overheard. Main-
tenance of the integrity of such
evidence is part and parcel of the
Congressional plan to ‘limit the
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use of intercept procedures to those
situations clearly calling for the
employment of this extraordinary
investigative device.' United
States v. Giordano, 416 U.S. 505,
527 (1974). Moreover, it plays
a ‘central role in the statutory
scheme.' Id. at 528. See also,
United States v. Chavez, 416 U.S.
562 (1974).
"The Government has conceded
that the requirements of §2518(8)
(a) have not been met. Nor is it
disputed that failure to comply
with that subsection is a ground
for suppression of recorded evid-
ence. > Rather, the Government
5. In light of our holding today that §2518(8)
(a) offers an independent basis for exclud-
ing the evidence from trial, we need not
consider whether the tapes are also rendered
inadmissible by §2518(10) (a), the general
provision of the Act.
15
argues that this is not a case where
the 'Draconian' sanction of suppres-
sion is warranted, since the
appellees have been unable to pre-
sent any evidence of actual tamper-
ing with the tapes.
"To demand such an extraordin-
ary showing, however, would vitiate
the Congressional purpose in
requiring judicial supervision of
the sealing process. Tape recorded
evidence is uniquely susceptible
to manipulation and alteration.
Portions of a conversation may be
deleted, substituted, or’ rearranged.
Yet, if the editing is skillful,
such modifications can rarely,
if ever, be detected. The judi-
cial sealing requirement, there-
fore, provides an external safe-
guard against tampering with or
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manipulation of recorded evidence.
The sealed tapes become 'confiden-
tial court records'® and cannot be
unsealed in the absence of a sub-
sequent order. When these safe-
guards are compared with the
haphazard procedures employed in
this case, the wisdom of Congress
becomes manifest.
"Moreover, the plain language
of the statute requires that this
evidence be suppressed. Section
2518 (8) (a) states, inter alia, that:
"'The presence of the seal
provided for by this sub-
section, or a satisfactory
explanation for the absence
thereof, shall be a pre-
6. S. Rep. 1097, 90th Cong., 2nd Sess., quoted
at 2 U.S. Code Cong. & Ad. News p. 2193 (1968).
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requtsite for the use or
disclosure of the contents
of any wire or oral communi-
cation or evidence derived
therefrom * * *.'" (Emphasis
supplied. )
The further argument that the order
by its terms did not expire until July
lst, is also not cogent because in the
area of electronic surveillance wherein
the strictest standards are required,
as Gigante points out, it is not
enough that the prosecutor argued that
the order expires on July lst -- He
must recognize that the order requires
an tmmediate secession of interception
followed by immediate sealing of the
tapes acquired when the object of the
tapping has been achieved or when the
wiretap itself can no longer serve a
purpose.
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Under the circumstances, for this
reason alone a reversal is warranted.
POINT II.
THE STATUTE INVOLVED HEREIN, 18 U. S. C.
1955, INVOLVES THE NECESSITY OF FIND-
ING THAT FIVE OR MORE PERSONS UN-
LAWFULLY, WILFULLY, AND KNOWINGLY
DID "CONDUCT, FINANCE, MANAGE,
SUPERVISE, DIRECT AND OWN AN ILLE-
GAL GAMBLING BUSINESS * * *,."
THE JURY, HOWEVER, WAS NOT SPECI-
FICALLY TOLD WHICH FIVE PERSONS
WERE DIRECTLY ATTRIBUTABLE TO THE
RESPECTIVE APPELLANTS HEREIN AND,
CONSEQUENTLY, THERE MAY WELL HAVE
BEEN A DEFECTIVE VERDICT SINCE THE
JURORS COULD HAVE BEEN LESS THAN
UNANIMOUS, NOT ONLY WITH RESPECT
TO THIS COUNT, BUT WITH REGARD TO
THE CONSPIRACY CHARGE AS WELL,
WHEREIN THE SAME PROBLEM EXISTS
EXCEPT THAT TWO OR MORE PEOPLE
NEED BE INVOLVED. ONLY FOUR WERE
ON TRIAL.
In the case at bar, the statute,
18 U.S.C. 1955, requires that five or
more people conjoin to violate the
statute. Neither the charge of the
Court nor the verdict of jury specifi-
cally indicates that the jurors had to
19
find any specific five persons necessary
to satisfy the requirements of the
statute with respect to each of the
appellants herein.
Since less than five people were
involved in the trial of the case, it
may well be that the jurors found
different sets of five people and,
consequently, were not unanimous in
their verdict. Thus, in United States
v. Natelli, 527 F. 2d 311, (2d Cir.
1975), cert. den. _—_—U.S._—___, this
Court held that where specifications
in a single count might relate to more
than one fact pattern unless supported
in all possible ways, the conviction
cannot stand.
Time and again the Courts held
reversed convictions for failure to
define adequately the legal principles
involved, particularly where people are
20
allegedly acting in some joint enter-
prise (United States v. Terrell, 474 F.
24 872 [2d Cir. 1973]; United Statee v.
Byrd, 352 F. 2d 570 [2d Cir. 1965];
United States v. Gagruilo, 310 F. 2d
249 (2d Cir. 1962]). See, also, United
States v. Bryant, 461 F. 2d 912 (6th
Cir. 1972).
Where a jury may have convicted on
an unproved specification, a new trial
should be granted, as held in Yatee v.
United States, 354 U.S. 298, 312 (1957),
where the Court stated:
"We think the proper rule to
be applied is that which requires
a verdict to be set aside in
cases where the verdict is
supportable on one ground, but
not on another, and it is import-
ant to tell which ground the
jury selected."
21
See also, Stromberg v. California,
283 U.S. 359, 367-68 (1930), and Street
v. New York, 394 U.S. 576, 585-86 (1969).
This principle has not been limited
to cases involving constitutionally
invalid statutes, as the Government
had suggested in its unsuccessful
argument in United Statee v. Natelli,
supra.
In United States v. Guterma, 281
F. 2d 742, 747 (2d Cir. 1960), this
Court reasoned:
"The two prosecutions were
submitted to the jury together
and we cannot know whether their
verdict was based solely on the
UFITEC transaction or in part or
solely on the Judson Commercial
sale."
22
See, also, United N. Y. & WN. Jd.
Sandy Hook Pilots Assen. v. Halecki, 358
U.S. 613, 619 (1959), and United States
v. Driscoll, 449 F. 2d 894, 898 (lst
Cir. 1971).
Thus basic error was perpetrated.
POINT III.
APPELLANT ALBAHARI WAS NEVER ARRAIGNED
ON HIS INDICTMENT, NOR WAS HE GIVEN
AN OPPORTUNITY TO ADDRESS MOTIONS
THERETO. ACCORDINGLY, THE JUDGMENT
AS TO HIM IS VOID SINCE THE COURT
ACQUIRED NO JURISDICTION.
, At 464 and 465 of the record it
becomes obvious that Albahari was not
aware that there had been a material
change in the allegations against him
by a superceding indictment.
Albahari's attorney moved to
dismiss the indictment at the end of
the government's case and for the
first time learned that it had been
23
superceded,* and in the new true bill,
the appellation "Brooklyn" as to Albahari
had been eliminated. The trial court
declared that it had ordered a plea of
"not guilty” to be entered, but defense
counsel and Albahari were unaware of it.
They were never told of an arraignment
and no opportunity to make motions was
afforded (F. R. Crim. Pro. Rules 6, 7,
10, 11).
An arraignment must taxe place in
open Court and is an important step in
a federal case (Rule 10, F. R. Crim.
Pro.; Hamilton v. Alabama, 368 U.S.
52, 54, n. 4; McConnell v. United
States, 5th Cir. 1967, 375 F. 2d 905,
909; Anderaon v. United States, D. C.
Cir. 1965, 352 F. 2d 945, 946; Sweeney
v. United States, 9th Cir. 1969, 408
F. 2d 121).
* Defense counsel had learned of a contemplated
superceder but no one ever told him it had
come down.
24
The entire thrust of the defense may
have been affected by this incredible
error by the Court and prosecutor. It
is obvious that the defense thought that
it must shake the prosecution on the
identity of "Brooklyn."
The whole thrust of the defense
would possibly have been changed if he
knew of the new indictment. The attack
in cross was on the identity of "Brooklyn."
This was clearly not so, since the
new indictment eliminated that appellation,
but this fact was kept from Albahari.
It is also manifest that a copy of the
indictment was not served on him or his
lawyer.
No opportunity to make motions was
afforded and thus due process was denied
on that score as well. We maintain that
the court did not acquire jurisdiction
of Albahari since he did not waive
25
arraignment and no effort was made to
apprise him of it.
A plea to an indictment is an
essential ingredient to the formation
of an issue.
It is true that the Constitution
does not, in terms, declare that a
person accused of crime cannot be tried
until it be demanded of him that he
plead, or unless he pleads, to the
indictment. But it does forbid the
deprivation of liberty without due
process of law; and due process of
law requires that the accused plead,
or be ordered to plead, or, in a proper
case, that a plea of not guilty be
filed for him, before his trial can
rightfully proceed; and the record of
his conviction should show distinctly,
and not by inference merely, that every
step involved in due process of law,
26
and essential to a valid trial, was taken
in the trial court; otherwise, the judg-
ment will be erroneous." So if the def-
endant be in custody he must be person-
ally present at every stage of the trial
where his substantial rights may be
affected by the proceedings against him.
A lawyer cannot waive arraignment.
See Crain v. United States, 162 U.S.
625, 644, 645 (1896); Hopt v. Utah, 110
U.S. 547; and McCarthy v. United States,
394 U.S. 459 (1969).
POIN™ IV.
THERE WERE AT LEAST FOUR SEPARATE CON-
SPIRACIES PROVED AND THUS, THE CASE
SUFFERED FROM FATAL VARIANCE AND
THE INDICTMENT SHOULD HAVE BEEN
DISMISSED.
In United States v. Bertolottt, 529
F. 2d 149 (2d Cir. 1975), this Court
reversed the District Court because of
the fact that in a conspiracy case more
than one conspiracy had been established.
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27
In the case at bar there were obvi-
ously several conspiracies and groups of
conspirators. This included not only
Breindel's group, but the "Mr. White"
operation; the “Commander"™ operation,
and the "National" operation. There was
also “Esposito" and "Dixon."
The evidence adduced at trial reveals
that these operations conducted separate
gambling enterprises and while they may
have laid off bets from time to time,
there was certainly no cohesive conspiracy
that linked them together.
In United States v. Bertolottt, 529
F. 2d at 155, this Court explained that
the coincidence of certain common factors
running through several disjointed con-
spiracies does not suffice under the
Kotteakos rule (Kotteakose v. United States,
328 U.S. 750, 773-774). This Court
explained, id.:
28
“Indeed, the only common
factor linking the transactions
was the presence of Rossi and
Coraluzzo. This type of a nexus
has never been held to be suffi-
cient. Kotteakos v. United
States, * * *,"
The petitioners asked for a sever-
ance so they could call each other as
witnesses, but this was denied, too.
CONCLUSION.
The petition for certiorari should
be granted.
Respectfully submitted,
IRVING ANOLIK,
A Member of the Bar
of this Court,
Attorney for
Petitioners.
29
APPENDIX.
DECISION (UNITED STATES V. ESPOSITO).
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a stated Term of the United
States Court of Appea.s for
the Second Circuit, held at
the United States Courthouse
in the City of New York, on
the twenty-fourth day of June,
one thousand nine hundred and
seventy-seven.
PRESENT: HON. WILLIAM H. MULLIGAN,
HON. MURRAY I. GURFEIN,
HON. ELLSWORTH A. VAN
GRAAFEILAND,
Circuit Judges.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD ESPOSITO, RICHARD RIZZO,
NICHOLAS BOTTA, LAWRENCE MESSINA,
JOHN YARMOSH, JOHN IANNONE, IRVING
ALBAHARI, JOSEPH FALCO, NICHOLAS
RENNA, DAVID STEINBERG, LOUIS
MAGGIO,
Defendants,
NICHOLAS BOTTA, LAWRENCE MESSINA,
JOHN YARMOSH, JOHN IANNONE,
IRVING ALBAHARI, JOSEPH FALCO,
DAVID STEINBERG,
Defendants-Appellante.
77-1147, 77-1149, 77-1184, 77-1185,
77-1227, 77-1228.
Appeal from the United States
District Court for the Southern District
of New York.
This cause came on to be heard on
the transcript of record from the United
States District Court for the Southern
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District of New York, and was argued by
counsel.
ON CONSIDERATION WHEREOF, it is now
hereby ordered, adjudged, and decreed
that the judgments of said District Court
be and they hereby are affirmed as to all
defendants-appellants, except remanded
for consideration of resentencing as to
defendant-appellant John Yarmosh.
A. DANIEL FUSARO,
Clerk
by
Arthur Heller
Deputy Clerk
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32
ORDER DENYING REHEARING,
UNITED STATES COURT OF APPEALS.
SECOND CIRCUIT.
At a Stated Term of the United
PRESENT:
States Court of Appeals, in
and for the Second Circuit,
held at the United States
Court House, in the City of
New York, on the fifth day
of December, one thousand
nine hundred and seventy-
seven.
HON. WILLIAM H. MULLIGAN,
HON. MURRAY I. GURFEIN,
HON. ELLSWORTH A. VAN
GRAAFEILAND,
Circuit Judges.
Fa: Sea riseiille
- ni
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ee a en ee en ee ee en en en | > 4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD ESPOSITO, RICHARD RIZZO,
NICHOLAS BOTTA, LAWRENCE MESSINA,
JOUN YARMOSH, JOHN IANNONE, IRVING
ALBAHARI, JOSEPH FALCO, NICHOLAS
RENNA, DAVID STEINBERG, LOUIS
MAGGIO,
Defendants,
NICHOLAS BOTTA, LAWRENCE MESSINA,
JOHN YARMOSH, JOHN IANNONE,
IRVING ALBAHARI, JOSEPH FALCO,
DAVID STEINBERG,
Defendantse-Appellante.
77-1147.
A petition for a rehearing having
been filed herein by counsel for the
appellants John Iannone and Irving
Albahari
Upon consideration thereof, it is
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Ordered that said petition be and
it hereby is DENIED.
A. DANIEL FUSARO,
Clerk.
35
ORDER DENYING REHEARING EW BANC.
UNITED STATES COURT OF APPEALS,
SECOND CIRCUIT.
At a stated term of the United States
Court of Appeals, in and for the
Second Circuit, held at the
United States Court House, in
the City of New York, on the
fifth day of December, one thou-
sand nine hundred and seventy-seven.
-—- = = lc elm -“—-9-8 - = we we weer = = =X
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
“RICHARD ESPOSITO, RICHARD RIZZO,
NICHOLAS BOTTA, LAWRENCE MESSINA,
JOHN YARMOSH, JOHN IANNONE, IRVING
ALBAHARI, JOSEPH FALCO, NICHOLAS
RENNA, DAVID STEINBERG, LOUIS
MAGGIO,
Defendants,
NICHOLAS BOTTA, LAWRENCE MESSINA,
JOHN YARMOSH, JOHN IANNONE,
IRVING ALBAHARI, JOSEPH FALCO,
DAVID STEINBERG,
Defendants-Appellants.
77-1147.
36
A petition for rehearing containing
a suggestion that the action be reheard
in banc having been filed herein by
counsel for the appellants John Iannone
and Irving Albahari, and no active judge
Or judge who was a member of the panel
having requested that a vote be taken on
said suggestion,
Upon consideration thereof, it is
Ordered that said petition be and
it hereby is DENIED.
IRVING R. KAUFMAN,
Chief Judge.
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