Petition — DiGilio v. United States

wl

| om

|

In The

Supreme Court of the United States

+

October Term, 1977

No.

FRANK DI GILIO and EUGENE SANGILLO,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

ROBERT E. LEVY

LEVY. ROBERTSON & HERSON

Attorneys for Petitioners

1319 Memorial Drive

Post Otfice Box 901

Asbury Park, New Jersey 07712

(201) YS8-SO83

402 LUTZ APPELLATE PRINTERS, INC

law and Financial Printing

South River, N.1. New York, N.Y. Philadelphia, Pa. Washington, D.C

(201) 257-6850 (212) 840-9494 (215) 563-5587 (202) 783-7288

SE

TABLE OF CONTENTS

Page

I SIE cosas ccbneesdacccgaacded sanessandiossa !

SE Licatnsngasenenawhseudecheuekeewaseubnsess 2

Constitutional Provisions Involved .............00.00008s 2

ee ec adeenesusedéecebeensneenmen 2

PE occ cen cbekanceeeabanautececkueniadecabeacecn 3

es Tue GI GD TE. kn ccc cncccdcccsccsesices 7

1. Petitioners were deprived of their Sixth Amendment

See GR GO GUE GE. cc ccc cewscctnescesccuiss 7

Il. The conviction herein violated Petitioner Frank

DiGilio’s rights pursuant to the Fifth Amendment of

the United States Constitution barring double

SE. saranda sdleunnkedeass 460006 6ekn6ees Ps)

Py eR ORE ALT PI, Ae eR eer le a 22

TABLE OF CITATIONS

Cases Cited:

Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972) ......

Se a ae are ee a a ee 7,9, 10, 11, 12, 13, 14

Cornero v. United States. 48 F.2d 69 (9th Cir. 1931) ....... 19

Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564 (1970) ...... 9

ul

Contents

Page

Dillingham vy. United States, 423 U.S. 64, 96 S. Ct. 303

SD. « (hcedennedeeessnweseeavdsce.sccvesteann 8. &2.

Downum v. United States, 372 U.S. 734 (1963) ............ Fe

Greene v. United States, 355 U.S. 184 (1957) ..............

Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988

RIED nu¢acwneeshteebbene Chacdeusccekedeesaees 9, 11,

Moore v. Arizona, 414 U.S. 25, 94S. Ct. 188 .............

Oelke v. United States, 389 F.2d 668 (9th Cir. 1967) .......

Strunk v. United States, 412 U.S. 434, 93 S. Ct. 2260

Pt hier suns LEUeeunGbarulauneeekusle ke tounses 10,

United States v. Ewell, 383 U.S. 116, 86 S. Ct. 575 (1969) ..

United States v. Jorn, 400 U.S. 470 (1970) ........ 0c e eee. ¥

United States v. Mann, 291 F. Supp. 268 (S.D.N.Y. 1968) ..

United States v. Marion, 404 U.S. 307 ..............085. 13,

Statutes Cited:

kT ee FOTO TTT TT TEL TTT CT TT TURTLE TE

RE To. PAR APOTTTCECTTCTT Tire TET CTT Eien

ED hu-vevdncduuweneésecacescavieek6t-04s0K409%

OD Re, BROOD cece sects ceeieeeeresencedseseccesdeesnce

13

16

14

ee es EY

TT

Contents

Page

ee NY Wikia sb og Ad dn ae oce delete sade bees 2

United States Constitution Cited:

EE ST iy af

I Soe ch uuliduscvedecekecseus . ee 2k oD

Other Authority Cited:

The Constitutional Guarantee of a Speedy Trial, 8 Ind.

iE OE chon due Gus wae oh in 0ceensceconunes 10

APPENDIX

Appendix I -

ESE ESS i aL Ae et Mae a ee la

Appendix II — Portion of Transcript of September 23, 1974. 9a

In The

Supreme Court of the Hrited States

-o-——

October Term, 1977

No. -

FRANK DI GILIO and EUGENE SANGILLO,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

OPINIONS BELOW

The petitioners, Frank DiGilio and Eugene Sangillo were

found guilty on July 20, 1976 of the first, second and third

counts of the indictment (Appendix, infra at la). There were no

opimons in the District Court with respect to any of the motions

that were made therein. There was no opinion of the United

States Court of Appeals tor the Third Circuit. But rather the

appeals of the petitioners were denied by the United States

Court of Appeals tor the Third Circuit on April 25, 1978 which

was the same date that they were argued

2

JURISDICTION

The judgment of the United States Court of Appeals for the

Third Circuit was entered on April 25, 1978. A petition was filed

for a stay of the issuance of the mandate on May 3, 1978. This

petition is being filed within 30 days of the request for the stay

of the issuance of the mandate. This Court's jurisdiction is

invoked under 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United

States provides in pertinent part:

“No person shall. . . be subject for the same

offense to be twice put in jeopardy of life or

limb... .”

lhe Sixth Amendment to the United States Constitution

provides in pertinent part:

“In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial... .”

QUESTIONS PRESENTED

|. Whether petitioners were deprived of their Sixth

Amendment right to a speedy trial.

2. Whether the conviction herein violated Petitioner Frank

DiGilio’s rights pursuant to the Fifth Amendment of the United

States Constitution barring double jeopardy.

3

STATEMENT

In and about July 1973, the petitioners were indicted and

charged with four (4) separate counts alleging violations of 18

U.S.C. §2, 18 U.S.C. §371, 18 U.S.C. §495, and 18 U.S.C.

§2314. The indictment charged a conspiracy to falsely make and

forge and cause to be forged ceriain United States Savings

Bonds; forging United States Savings Bonds; uttering forged

United States Savings Bonds: and the transportation of forged

United States Savings Bonds. The petitioners pleaded not guilty

to the indictment. Thereafter, and during the trial of these

petitioners in July 1976, the indictment was redacted so as to

exclude the charges relative to 18 U.S.C. §2314. The events

complained of in both the original and the redacted indictment

allegedly occurred in September and October 1968.

On April 5, 1974 the trial court set forth that the cause

would be tried in September 1974. On or about May 9, 1974,

Petitioner DiGilio moved for a severance of his trial based upon

his assertion that vital witnesses for his defense were co-

defendants, and could not be expected to take the stand and to

testify while they themselves were in jeopardy. The motion for a

severance was contested by the Government and it was denied

by the court, and after its denial, the trial court set forth that the

trial would commence July 8, 1974.

lt must be taken into consideration by the Court that the

Government had to be ready to try the case against DiGilio in

September of 1974, when the matter was called for trial. It was

after the Government participated in the selection of the jury

that it first asserted that its needs could only be satisfied by a

severance of Petitioner DiGilio for the trial. The Government

failed to explain why it participated in the selection of a jury

with the participation of Petitioner DiGilio when it was not

prepared to conduct its trial against all of the co-defendants,

including Petitioner DiGilio. There is no question that the

application for a severance was made prior to the swearing of

4

the jury, but it is set forth herein that Petitioner DiGilio’s

constitutional! rights were violated despite the fact that his case

was severed prior to the swearing in of the impaneled jury.

Petitioner DiGilio was deprived of going to trial and having a

final determination made by the first jury which was impaneled

with respect to the charges against him. The Government

proceeded to the selection of the jury without setting forth either

that Mr. Wankmuller was unavailable, or by setting forth that

Mr. Wankmuller was missing because of a threat. It was not

until September 20, 1974 that the Government sets forth that it

discovered that it was unable to contact its witness. [n an

affidavit of Assistant U.S. Attorney Joseph Cranwell, Mr.

Cranwell set forth that ‘xe discovered on September 18, 1974,

that he discovered from Gerald Festa that Nicholas Valvano told

Festa that John DiGilio told Valvano to make sure that a

Government witness be taken care of. This conversation between

John DiGilio and Valvano was alleged to have taken place in

August 1973 (7B). Nothing further was set forth before the trial

court to in any way show that the statement contained in

Cranwell’s affidavit which reflects triple hearsay had any validity

or was accurate. Instead, the United States Government made a

statement to the court in an affirmative manner that they had

gathered evidence that one of the defendants had taken steps to

guarantee that an important Government witness would not

appear to testify. That statement made to the court was toially

inaccurate when considered in light of the content of the

affidavit of Cranwell sworn to on September 20, 1974. The

Government asked that the record be sealed, which request was

granted by the court so that defense counsel were not advised of

the balance of the statement made by the Government to the

court. At the time that the Government made the aforesaid

statement, the Government did not ask for a severance of the

trial against Petitioner DiGilio, but rather asked for sufficient

time so that they could produce the witness, Wankmuiler. The

court was fully cognizant of the problems of double jeopardy,

and expressed itself in that manner at that time. The court

further realizing the gravity of the situation created by the

request for an adjournment after the :mpaneling of the jury, set

forth that at no point would it grant an adjournment beyond the

following Monday. At that point, the attorneys for the

defendant were excused, and Cranwell remained with the trial

court. Cranwell then set forth a statement with respect to a

statement alleged to have been made in August of 1973 by

Valvano to Festa, and continues to basically repeat that which is

contained in Cranwell’s affidavit, except for one vital omission.

At no point during the conversation between the trial court and

Cranwell, outside of the presence of the attorneys for the

defendants does Cranwell ever mention that either Mr.

Wankmuller was in physical danger or that anyone had ever

threatened to take care of him. On the following Monday, a

hearing commenced before the trial court, at which point, the

United States Government made an application to Petitioner

DiGilio from the case. There were no basis set forth at that time

that would in any way support the application for such a

severance. The attorney for Petitioner DiGilio opposed such a

severance, and set forth Petitioner DiGilio was absolutely ready

to try the matter; that he had participated in the proceeding for

the selection of the jury; and that no reasons had been set forth

so that counsel could determine whether or not he was in a

position to oppose the application for a severance. Counsel set

forth that he was willing to listen to such reasons, if there be

any, even in camera. Counse! set forth that if the court granted

the motion for a severance, that counsel was requesting a firm

trial date. Mr. Cranwell responded by setting forth that his

application was based upon the same reasons that were put on

the record before the ccurt the prior week im camera. It is

respectfully submitted that ihe only reason that was submitted to

the court in camera was that one of the Government's witnesses

was missing. Nothing was set forth in that im camera proceeding

relative to any threats. Mr. Cranwell went further and set forth

that he would be happy if the trial court set a fixed trial date

sometime perhaps two or three weeks from now. This evidences

the tact that the only problem that the Government had was in

locating its witness and its certainty that the locating of the

6

witness was no problem at all. On nothing additional to set forth

any manifest necessity, the trial court proceeded to grant the

motion for a severance. In essence, the trial court denied

Petitioner DiGilio’s counsel's motion for the fixing of a firm trial

date by setting forth that the trial court would get around to that

after settling with the United States Circuit conference coming

up. The trial court said it would do the best it could, “and we

will set it for you as quick as we can.” The United States

Government failed to set forth any manifest necessity for the

granting of the severance after the jury had been impaneled and

the only basis upon which the application was made was that the

Government had failed to locate what it deemed to be a crucial

witness.

In September 1975 a letter was sent to the trial court with a

copy to the United States Attorney requesting that the cause be

set down for trial in December 1975. The letter set forth that

contact had been made with counsel for the various defendants

and that each of them would be available in December 1975.

The missing crucial witness, Frederick Wankmuller, was also

apprehended by the Government in September 1975. Had the

absence of Mr. Wankmuller been the reason for not only the

severance of the Petitioner DiGilio and for the failure to bring

the cause on for trial that defect had now been totally cured.

Due to the failure of either the Government and _ or the trial

court the matter was not placed on the trial calendar for

December 1975. In December 1975 an application was made to

the court for a dismissal of the charges based upon the denial to

the petitioners of a speedy tria!. That motion was heard by the

trial court and denied in January 1976 without any opinion.

The matter was not thereafter called for trial until July

1976. During the course of the trial a further application was

made on behalf of the petitioners for dismissal of the charges

based upon the failure of the Government to provide the

petitioners with a speedy trial. That motion was also denied by

the trial court.

5

The record fails to reveal that the trial court ever submitted

any Opinion in conjunction with its denial of the motions for

dismissal based upon the denial of a speedy trial.

REASONS FOR GRANTING THE WRIT

The denial by the trial court of the various motions for a

dismissal based upon the failure to provide the petitioners with a

speedy trial conflicts with this Court’s decision in Barker vy.

Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972) further, this Court

must decide whether or not the severance of the petitioner

DiGilio after a jury was impaneled but not sworn at the request

of the United States Government based upon its inability to

locate its witnesses constituted a violation of the Sixth

Amendment in that the petitioner was subjected to double

jeopardy and was deprived of his right to a trial by a jury that he

had selected pursuant io Downum v. United States, 372 U.S.

734 (1963) and United States v. Jorn, 400 U.S. 470 (1970).

Petitioners were deprived of their Sixth Amendment right

to a speedy trial.

Unless waived, once a demand for a speedy trial is made, as

was done in September 1974, it is deemed to be a continuing

demand for such speedy trial, and any delay is then to be

chargeable to the Government unless some reasons are set forth

which would justify the delay.

The Government participated in September 1974 with the

petitioner DiGilio in the selection of the jury without raising any

objection whatsoever to DiGilio’s participation. It must be

concluded that the failure to object was a tacit admission of the

fact that the Government was prepared to go to trial at least at

the time of the selection of the jury. Between the selection of the

jury and its swearing in but after ihe jury had been selected and

DiGilio had no further ability to exercise any challenges, and the

jury constituted a panel of Mr. DiGilio’s choice for the trial of

this matter, the Government then discovered that a witness upon

whom it was relying could not be located. There is nothing set

forth before the trial court that the Government made any

attempt whatsoever to locate its witnesses in order to determine

whether or not the Government was ready for inal. The

Government proceeded to trial to the extent of having the jury

selected before it voiced any distress signal with respect to its

failure to be able to present its case. In September 1974 some

fourteen months had transpired from the time of the indictment.

Certainly, this was a_ sufficient amount of time for the

Government to have determined whether or not it was prepared

to go to trial. It can hardly be said that the Government could

justify the reasons for its delay because of a crowded trial

calendar, or the failure of the petitioner DiGilio to assert his

right to a trial inasmuch as DiGilio was not only present, but

had participated in the selection of the jury. There can be no

question that the Government was aware of the request of

September 1974, by DiGilio when he was deprived of the trial by

the jury which he helped select, that DiGilio has asked for a firm

trial date. The Government equally had to be aware, no matter

how many times they changed their attorney, that Mr. Cranswell

had agreed that he could proceed to trial against DiGilio

sometime in a two to three week period after September 23,

1974. Lastly, the Government had to be aware of the fact that

the trial court set forth that it would do whatever it could

relative to the setting of such a trial date. Having made this

position felt, there is nothing further that the petitioner could do

in order to bring about a trial date. At the time of the severance,

the petitioner had dug his heels into the ground in protest

against being severed and not going to trial. When confronted

with the fact that the trial court was going to grant the motion

for a severance, the petitioner requested a firm trial date. This

was thwarted by the determination of the trial court to solely

grant the motion for a severance, and to hold in abeyance the

9

request for a firm trial date. Thereafter, the petitioner in further

pursuit of his request for an immediate trial date made a further

motion for dismissal based on failure to provide such a trial

date. The Government requested a deiay solely as a consequence

of their inability to locate the witness, who is someone whom

they should have had constant contact with and certainly, some

contact prior to entering into the process of the selection of the

jury.

Be that as it may, the petitioners made a further demand for

a speedy trial by mail in September 1975 and by a motion for a

speedy trial on January 20, 1976; that motion was denied and

the trial did not take place until July 1976. This constituted a

total of thirty-six (36) months between the return date of the

indictment and the trial herein, and encompassed three (3)

applications by the petitioners for a speedy trial, all of which

were denied. The Sixth Amendment to the United States

Constitution, in relevant part, provides:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public sria/, by an

impartial jury of the State and district wherein

the crime shall have been committed.” (Emphasis

provided.)

In 1967, this Court, in A/opfer v. North Carolina, 386 U.S.

213, 87 S. Ct. 988 (1967), held that the right to a speedy trial

secured by the Sixth Amendment of the United States

Constitution was fundamental. What was lacking, however, was

any definitive announcement of the standards by which this right

to a speedy trial was to be judged. See concurring opinion of

Brennan, J. in Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564

(1970). In 1972, this Court in Barker v. Wingo, 407 U.S. 514, 92

S. Ct. 2182 (1972) undertook to set out the dimensions of this

right. First, rejecting the suggestion that a fixed time period be

set, it held that the right to a speedy trial is relative and depends

upon circumstances. it also rejected the concept that the right to

10

a speedy trial was waived if not demanded. However, it held that

a defendant had some responsibility to assert a speedy trial

claim, and emphasized that failure to assert the right would

make it difficult for a defendant to prove that he was denied a

speedy trial. In Barker, this Court established guidelines for

determining «hether there had been an infringement of this

right. Pursuant to these guidelines, the court adopted a

“balancing test” which identified four factors the court

considered relevant to an assessment of the competing interest:

a) the length of the delay:

b) the reasons for the delay:

c) detendant’s assertion of his right; and

d) the prejudice suffered by the defendant.

Id.. 407 U.S. at $30, 92 S. Ct. at 2191. See generally Moore vy.

Arizona, 414 U.S. 25, 94S. Ct. 188; Strunk v. United States,

412 U.S. 434, 93 S. Ct. 2260 (1973): note. The Constitutional

Guarantee of a Speedy Trial, 8 Ind. L. Rev. 414 (1974). This

Court regarded none of the four factors as either a necessary or

sufficient condition to the finding of the deprivation of the nght

to a speedy trial. Rather, they were to be treated as related

factors to be considered with such other circumstances as may

be relevant. In the instant matter the delay between indictment

and trial was some thirty-six (36) months, the indictment being

returned in July 1973, and the petitioners being tried in July

1976. No reason has ever been set forth with respect to the delay.

There is some colloquy in September 1974, which is some

fourteen months after the return of the indictment, wherein the

United States Attorney sets forth difficulty he is having in

obtaining a witness. However, some five days later, the

Government set forth no objection to the scheduling of the trial

within two or three weeks for these petitioners. Thereafter, there

is no setting forth of any reason for the tailure to list this matter

for trial, even after a letter and a further motion for dismissal.

There is no question that the petitioners have asserted their right

to a speedy trial. [his was done in September 1974, September

1975 and in January 1976. Quite apart from the actual requests

for a speedy trial, the petitioners have been present on all

occasions when a trial was called, and at least the petitioner

DiGilio has been ready to proceed to trial on all occasions. The

fourth factor of preyudice should not even be considered in those

instances where demands for a speedy trial have been

affirmatively made, and should only be considered where there

has been a lengthy, unexplained delay with an absence of a

demand for a speedy trial. However, although demands for

speedy trial were made on a minimum of three occasions herein,

the petitioners have been prejudiced by the delay of thirty-six

(36) months from indictment and a delay of almost eight years

from the date of the alleged criminal acts. It is well settled that

even where petitioner is not subjected to lengthy pretrial

incarceration, he may nonetheless be severely prejudiced by an

unreasonable delay in his prosecution. For example, prejudice

may be manifested in terms of faded memories, lost evidence or

increased anxiety which the criminal defendant experiences as he

awaits disposition of his case. United States v. Mann, 291 F.

Supp. 268, 271 (S.D.N.Y. 1968); in addition, the defendant

automatically endures “restraints on his liberty” and lives “under

a cloud of anxiety, suspicion, and often hostility”, Barker v.

Wingo, supra, 407 U.S. at 533,92 S. Ct. at 2193. See also United

States v. Ewell, 383 U.S. 116, 120,86 S. Ct. 773, 776 (1966);

Smith v. Hooey, 393 U.S. 374, 380, 89'S. Ct. 575 (1969); Klopfer

v. North Carolina, supra, 386 U.S. at 221 and 222, 87 S. Ct. at

992 and 993 (1967). Finally, as this Court recently explained in

Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303 (1975):

“Arrest is a public act that may seriously interfere

with the defendant’s liberty, whether he is free on

bail or not, and that may disrupt his

employment, drain his financial resources, curtail

his associations, subject him to public obloquy,

12

and create anxiety in him, his family, and his

friends.” 423 U.S. at 65, 96 S. Ct. at 303.

While this form of prejudice may be de minimis is some cases,

clearly in this case, such prejudice is quite significant. Here, the

petitioners are individuals with families which consist, in the

case of DiGilio, of seven children, and in the case of Sangillo in

a marriage of thirty vears. At the time of their arrests, neither

had a prior record of criminal activity and were regarded as

exemplary citizens who were well respected in_ their

communities. Each of them worked steadily, and went from job

to job where advancement was a prospect. Under these

circumstances, their vulnerability to the prejudice mentioned

above is apparent. Finally, as this Court recognized in Barker:

“There is a societal! interest in providing a speedy

trial which exists separate from, and at times in

opposition to, the interests of the accused.”

[he instant case presents an exemplary situation for affirmative

enforcement of the aforementioned societal interest, Barker v.

Wingo, supra, 407 U.S. at 531,92 S. Ct. at 2192. This is a case

that was ready for trial in July of 1974. At about that time, the

Government resisted the motion for the petitioner DiGilio for a

severance, and either expressly or impliedly affirmed that the

Government was ready for trial. The trial date set for July 1974_

was continued at the request of the Government and the matter

came before the court in September of 1974. When the matter

was called for trial, the Government again asked for a

continuance based upon its setting forth that there was a witness

whom the Government had not been able to reach for some six

(6) weeks. A further continuance was granted until September

24, 1974, at which time the Government set forth that it required

a severance of Petitioner DiGilio. The Government set forth no

time period within which it would be ready, but did not object

and expressly joined in an application that the matter be set

down for trial for a date certain within two to three weeks.

13

There is no indication that any additional investigation was

either undertaken or required for presentation of the

Government's case. From September 1974, no discernible reason

has ever been set forth as to why the Government failed to

proceed expeditiously. All adjournments from July 1974 were

secured by the Government, and at every scheduled trial date, all

defense counsel appeared, ready to proceed with the trial. On

each occasion, when the petitioners appeared for the series of

scheduled trial dates, ready and eager for a trial of the charges

leveled against them, they were met by one excuse or another by

the Government as to why the case could not conveniently be

tried. As a result, they have lived unde: a humiliating penumbra

of suspicion and distress generated by the, at that time,

unresolved charges which questioned their professional and

personai integrity, and their general worth as individuals. In

short, the interests sought to be protected by the right to a

speedy trial, both theirs and of society, have been undermined.

It is not necessary that all of the grounds set forthin Barker

be present. With respect to DiGilio, we do have a valid assertion

of his right to a speedy trial, and his expectation that such would

be granted. Sangillo was aware of these proceedings, and could

well have determined that there was no point in his repeating

that which was being so effectively done by DiGilio. The

granting of a trial to DiGilio would have equally resulted in the

granting of a trial to Sangillo. It can hardly be asserted that the

Government deprived DiGilio of his constitutional rights and

did not deprive Sangillo of his where the Government failed to

follow through on the granting of a trial. As of September 23,

1974, both petitioners had been severed from the trial that

commenced at that time and were both awaiting trial thereafter.

The entire history of the subsequent proceedings show that all

that was done was done jointly for and on behalf and to Sangillo

and DiGilio. In United States v. Marion, 404 U.S. 307 and

Dillingham v. United States, 423 U.S. 64, this Court held that

the right to a speedy trial guaranteed by the Sixth Amendment is

activated by the formal accusation of a crime, either by

14

indictment. information or arrest. As was set forth in Marion,

supra.

“Arrest is a public act that may seriously interfere

with the defendant's liberty, whether he is free on

bail or not. and that may disrupt his

employment, drain his financial resources, curtail

his associations, subject him to public obloguy,

and create anxiety in him, his family, and his

friends. .. . So viewed, itis readily understandable

that it is either a formal Indictment or

information, or else the actual restraints imposed

by arrest and holding to answer a criminal charge

that engaged the particular protections of the

speedy trial provisions of the Sixth Amendment.”

In Barkerv. Wingo, supra, at page 532, the Court said:

“Prejudice, of course, should be assessed in the

light of the interests of defendants which the

speedy trial right was designed to protect. This

Court has identified three such interests: (i) to

prevent oppressive pretrial incarceration; (11) to

minimize anxiety and concern of the accused; and

(111) to limit the possibility that the defense can be

impaired.”

This Court specifically held in Alopfer v. North Carolina, that

oppressive pretrial confinement is not required for relief under

the speedy trial portion of the Constitution. There can be no

question that the ability of the defense was impaired by the delay

from 1968 to 1976, when the Court reviews the direct testimony

and cross-examination of Frank DiGilio. There can be no

question that Mr. DiGilio testified accurately to the fact of his

employment. Mr. DiGilio’s ability to accurately remember dates

and the times of such work was impaired however by the hiatus

of eight years. The best that could be hoped for after so much

15

time is testimony from memories “refreshed” by reference to

records wherever they might exist.

In support of this request for the issuance of a writ, the

attention of the Court is respectfully directed to Sirunk y.

United States, supra, where this Court ruled that when there has

been a denial of a speedy trial, the judgment must be set aside,

the sentence vacated, and the indictment dismissed.

The conviction herein violated Petitioner Frank DiGilio’s

rights pursuant to the Fifth Amendment of the United States

Constitution barring double jeopardy.

The attention of ine Court is respectfully directed to the

Appendix, infra at page Ya, which ts a transcript of a proceeding

of September 23, 1974, before the Honorable Clarkson S.

Fisher. The transcript evidences the fact that a jury had been

picked on the previous Thursday, but not sworn. The transcript

evidences the fact that the petitioner DiGilio is ready and

prepared to proceed to trial immediately. Despite the fact that a

jury had been impaneled and the petitioner DiGiho, was ready

to proceed to trial, the United States Government asked for a

severance of DiGilio. Without the court making any inquiry of

counsel for the Government as to whether or not there was any

truth to the allegations made by the Government in the previous

in camera hearing, and without making any inquiry as to

whether or not the Government was now in possession of any

further and additional information; and without inquiring as to

why the Government felt that it needed an immediate severance

and removal of DiGilio from the present trial, but would be

ready to try Mr. DiGilio in a separate trial within two to three

weeks, the court granted the motion for severance.

16

For the Government.to have determined that it did not have

the ability to proceed to trial after having participated in the

selection of the jury with DiGilio is tantamount to the

Government tampering with the jury selection proceeding and

depriving this petitioner of his right to a trial with the first jury

selected by him and the Government. DiGilio had a valued right

to the particular jury that had just been selected, a right of

constitutional dimensions. That right was thwarted by the

Government requesting a severance subsequent to the selection

of that jury. United States v. Jorn, 400 U.S. 470 (1970). In

Downum v. United States, 372 U.S. 734 (1963), a jury had been

sworn and trial was about to begin tor Raymond Downum, a

man charged with stealing from the mail and forging and

uttering checks so stolen. The Government was told to proceed

with its case, but instead of calling its first witness the prosecutor

asked that the jury be discharged because its key witness of two

of the seven counts charged had not been served with a

subpoena. The jury was discharged, and a new trial was had,

and a conviction resulted over a plea of double jeopardy. On

appeal, the Fifth Circuit confirmed. Downum v. United States,

300 F.2d 137 (Sth Cir. 1962). On writ of certiorari, this Court

reversed. The Court recognized the situation as one where the

prosecutor entered upon the trial of the case without sufficient

evidence to convict. As later set forth by the Ninth Circuit in

Oelke v. United States, 389 F.2d 668, 672 (9th Cir. 1967), the

reason why double jeopardy was attached to Downum was the

possibility of the unjustified harassment of citizens due to the

whims of the prosecuting officer. The same situation prevails

herein, even though the jury had not been sworn. Downum, is

most relevant based upon the fact that the granting of the

severance constituted a violation of basic, fundamental

constitutional rights in that DiGilio was deprived of his ability

to go totrial with the jury that he had selected as a consequence

of the tailure of the Government to be ready tortrial. United

States v. Jorn, supra.

17

In the event that events occur which impede the ability of

the Government to fairly present its case against a defendant,

then and in that event, the Government has the right to submit

such material to the trial court as to evidence “manifest

necessity” for the granting of a severance and or mistrial. In the

within matter, the severance of DiGilio is the equivalent of the

granting of a mistrial in that DiG:lio was deprived of the ability

to proceed to trial before the jury he had selected. At no time

did the Government set forth material that constituted the

necessary elements of manifest necessity. In the proceeding in

camera without the presence of the attorneys for the defendants,

the Government set forth that it had not been able to locate a

witness. That does not constitute manifest necessity. The

Goverament thereafter submitted an affidavit with some allusion

to a threat made upon the life of Frederick Wankmuller.

However, in the proceedings on September 23, 1974, which led

to the grant of the severance, no statement was made with

respect to a threat. At no time was the attorney for DiGilio

advised with respect to the alleged threat against the life of

Frederick Wankmuller. Had such been done, then DiGilio

would have been able to raise some question relative to the

validity of a statement allegedly made in 1973, and with respect

to the circuitous route of hearsay relative to the alleged threat.

The statements that were made were sealed so that the attorney

for the petitioner was never advised of their content at a time

when he could have raised valid objection, or have made his

record. If the Court will note, at the proceedings on September

23, 1974, counsel for DiGiiio set forth that he had not been

shown any reason, and that he awaited the presentation of such

reason. The trial court, without any further inquiry; without

making any attempt to determine if what the Government had

presented had any basis in fact; and without requiring the

detailing to show credibility, proceeded to grant a severance.

The granting of a severance was made in light of the fact that the

trial court recognized that by so doing, it was creating a double

jeopardy problem. DiGilio is aware of the precedents that set

forth that jeopardy is not attached until the jury has been both

impaneled and sworn. It is submitted to the Court that that

distinction should not bar the determination of double jeopardy

in the within matter inasmuch as the jury had been impaneled

through the participation of the defendant in its selection. No

reason is set forth in the transcripts as to why the jury was net

sworn from September 19, 1974, when it was impaneled, to

September 23, 1974, when it was sworn. The triai court

illustrated its concern with respect to a double jeopardy question

even though the trial court was aware that the jury had not been

sworn. The Government, advised of the fact that there were

double jeopardy questions, as a consequence of the impaneling

of the jury, persisted in its demand for a severance. The

Government did not provide any basis upon which a court could

conclude manifest necessity was present in the within matter.

The Government, by its constant requests for the granting of a

severance solely because of the Government's failure to produce

a witness, was exercising a power to interfere and tamper with

the judicial process and to prevent the defendant from being

tried by the jury of his selection. This is the same philosophy

that has determined that jeopardy has attached once the jury has

been impaneled and sworn. No distinction can be drawn in the

within matter, in light of the totality of circumstances, between

the situation where the jury is impaneled with the participation

of DiGilio and a situation where that same jury is impaneled

with the participation of DiGilio and is sworn. It makes no sense

to feel that a basic fundamental constitutional right would be

deprived by the added factor of solely swearing a jury and not

deny DiGilio the same right because the jury had not been sworn

prior to the time of the motion for a severance. The addition of

the swearing of a jury after it has been impaneled should have

no spontaneous effect on the defendant which can be said to

automatically charge him with an appreciavle degree of

insecurity once he has made preparations for trial and selected

those of his peers who will determine his fate. It is apparent

from the record that no consideration wes given to the

possibility of a trial continuance. The Government set forth that

it could be ready within two to three weeks of September 23,

19

1974, and it may well be that the jury could have been held over

for that length of time. Equally so, the Government might have

been put to the burden of being ready in a shorter time so that

the jury selected by DiGilio could have been retained for the

purposes of his trial. The trial judge might have acted abruptly

in granting the severance which was tantamount to discharging

the jury in the case of DiGilio had the prosecutor been disposed

to suggest a continuance. When one examines the circumstances

surrounding the granting of the severance, it seems abundantly

apparent that the trial judge was given no ability to exercise a

sound discretion to assure, that taking all the circumstances into

account, that there was manifest necessity for the granting of the

severance of DiGilio. In Cornero v. United States, 48 F.2d 69

(9th Cir. 1931), the United States Attorney failed to have his

witnesses present for the trial. The court dismissed the jury, and

a mew jury was later impaneled for trial. The defendant

thereupon pleaded that he was placed in double jeopardy. The

Ninth Circuit recognized that jeopardy attached when the jury ts

impaneled with certain exceptions. It denied the Government's

claim that this particular case fell within those exceptions. The

court, relying on the fact that the District Attorney had

suggested the impaneling of the jury knowing that his witnesses

were not present, said:

“We are dealing, however, with a fundamental

right of the person accused of crime, guaranteed

to him by the Constitution, and such right cannot

be frittered away or abridged by general rules

concerning the importance of advancing public

justice. ... No court has gone to the extent of

holding that, after the impanelment of the jury

for the trial of a criminal case, operates as a

protection against a retrial of the same cause.”

(Cornero at 71.)

[he grant of the motion for a severance put DiGilio in the

position of being retried even though no evidence had been

20

presented. The motion for a severance put DiGilio in the

position of being retried even though no evidence had been

adduced up to that time. The denial of the motion for a

severance would have prevented the prosecutor from subjecting

DiGilio to a second prosecution by discontinuing the trial when

it appeared to the prosecutor that he either had insufficient

evidence or that this jury would not convict. Greene v. United

States, 355 U.S. 184 (1957). To allow the Government to dismiss

the entire prosecution, which was the effect of the severance

herein, is to thwart the very policies that the Supreme Court has

chosen to protect by having jeopardy attached after the

impaneling of a jury. It is plain that the prosecutor committed a

particularly unpardonable fault in that he was unprepared on

September 23, 1974. Nothing that the petitioner did in any way

contributed to the inability of the prosecutor to proceed with the

trial after the impaneling of the jury. To deny DiGilio the

benefits of the double jeopardy clause of the Sixth Amendment

would then constitute a condoning of the negligence of the

prosecutor, and totally disregard any rights that DiGilio would

have relative to a speedy trial; the right to be tried by the jury

that he had selected; and to avoid the further impositions of

insecurity and anxiety by closing the doors of the courtroom to

the petitioner after he had fully prepared for trial.

If jeopardy were not to attach at the impaneling of the jury

there would exist a period of time, prior to the swearing of the

jury, during which a defendant's double jeopardy interests would

be arbitrarily foreclosed from consideration. “The defendants

valued right” to proceed would become subject to prosecutorial

manipulation. The prosecutor would have a period of time after

the impaneling of the jury (but before its being sworn), during

which he could dismiss the jury tn order to:

1. deprive the defendant of a favorably disposed

tribunal, or

2. correct a tactical set-back to the prosecutor, or

21

3. take advantage of knowledge gained from

defenses requested voir dire questions, and or

defense motions.

Unless jeopardy attaches upon the impaneling of the jury,

the defendant’s valued right to proceed before a particular

tribunal is afforded no protection; the defendant is subjected to

harassment as a consequence of continued prosecutions by the

Government and the Fifth Amendment double jeopardy clause

would thereby lose its substance. Although the swearing of the

jury normally follows shortly after its impanelment there still

remains a very crucial interim period. This period of time may

take only a few minutes or it may span a weekend recess, thus

taking days, as is the situation herein. Regardless of the length

of time involved, the fact remains that this is a period of time

during which the prosecution may contemplate the desirability

of the chosen jury panel. If the prosecutor does not like what he

sees or if he decides that the jury is defense oriented, he can

dismiss the entire prosecution without any showing of manifest

necessity or sound judicial administration, thus denying

defendant his valued right to have his trial completed by a

particular tribunal. In the matter herein the prosecution set forth

its inability to locate what it deemed to be a crucial witness. As a

consequence thereof the Government determined to abort the

trial with respect to DiGilio. There is no basis to conclude that

the Government was not aware that it did not have its important

witness before it even impaneled the jury. One must conclude

that the Government was dissatisfied with the jury that was

impaneled as far as DiGilio was concerned and thereupon

determined to move for a severance on a make-weight reason.

Allowing the prosecutor to sever a defendant is the equivalent of

a dismissal of a jury without any showing of extraordinary

circumstances or manifest necessity and constitutes a total denial

of the protection of the double jeopardy clause. In essence, the

procedure followed herein, gave the prosecution an infinite

number of peremptory challenges by allowing the prosecutor to

dismiss arbitrarily, an entire prosecution as far as DiGilio was

concerned: discharge all of the jurors as far as DiGilio was

22

concerned; place the matter on a trial calendar some twenty-two

(22) months later; and pick a new jury of twelve (12) men and

women. DiGilio had no corresponding privilege of aborting the

proceedings at his whim and picking a new jury more to his

liking. DiGilio was denied the privilege afforded the prosecutor

of examining the jury as a whole and the option of challenging

all twelve (12) jurors and starting anew.

CONCLUSION

For the foregoing reasons, it is respectfully submitted that

the petition for a writ of certiorari should be granted.

Respectfully submitted,

MuNE de

s Robert E. Levy

LEVY, ROBERTSON

& HERSON

Attorneys for Petitioners

May, 1978

la

APPENDIX I — INDICTMENT

(Filed July 23, 1973)

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA

VS.

NICHOLAS VALVANO, aka “Nicky Boy”; VINCENT J.

CRAPORATTA, aka “Jimmy Sinatra”; FRANK DI GILIO,

aka “Frankie D”; EUGENE SANGILLO. aka “Gino”; JOSEPH

CELSO, and LILLIAN GREAVES,

Defendants.

Criminal No. 472-73

I8 USC, §

Is USC, §

Is USC, §

Is USC, §

The Grand Jury, in and tor the District of New Jersey,

sitting at Newark, charges:

COUNT I

Fromon or about the 26th day of September, 1968, and

continuously thereafter, up to and including the date of the filing

of this Indictment, in the District of New Jersey,

NICHOLAS VALVANO. aka

“Nicky Boy”:

2a

Appendix |

VINCENT J. CRAPORATIA, aka

“Jimmy Sinatra”;

FRANK DI GILIO, aka

“Frankie D”;

LUGENE SANGiLLO, aka

“Gino”;

JOSEPH CELSO, and

L1LIAN GREAVES,

the defendants herein, willfully, and knowingly did combine,

conspire, confederate, and agree together, with each other, and

with Herbert Gross, Frank Newman, and Fred Wankmuller,

named as co-conspirators but not as defendants herein, and with

diverse other persons to the Grand Jury unknown, to commit

the following offenses against the United States:

|. to willfully and knowingly, and with intent to detraud the

United States, falsely make, forge and counterfeit and cause to

be falsely made, forged, and counterfeited, certain writings, that

is, the signature and endorsement of the registered owner of

twenty-four (24) United States Savings Bonds, Series E, to wit,

the words “Margaret E. Sharp” on the back thereof, for the

purpose of obtaining and receiving trom the United States and

from its officers and agents, a sum of money, the said United

States Savings Bonds being genuine obligations of the United

States.

In violation of Title I8, United States Code, Section 495;

and

2. to willfully and knowingly and with intent to detraud the

United States, utter and publish as true, and cause to be uttered

and published as true, certain writings, to wit, twenty-four (24)

United States Savings Bonds, Series E, containing thereon false,

forged, and counterfeit signatures and endorsements, the said

—EEEEEEE—EEeEEEeEeEeEeEy re,

3a

Appendix 1

NICHOLAS VALVANO, aka

“Nicky Boy”;

VINCENT J. CRAPORATTA, aka

“Jimmy Sinatra”;

FRANK DI GILIO, aka

“Frankie D”;

EUGENE SANGILLO, aka

“Gino”;

JOSEPH CELSO, and

LILLIAN GREAVES,

the defendants herein, knowing the said signatures and

endorsements to have been false, forged, and counterfeited.

In violation of Title 18, United States Code, Section 495;

and

3. to use and assume a false, fictitious and assumed name to

conduct, promote, and carry on by use of the Postal Service an

unlawful business, to wit, the forging and uttering of United

States Savings Bonds, Series E, in violation of Title 18, United

States Code, Section 495.

In violation of Title 18, United States Code, Section 1342.

it was a part of said conspiracy that FRANK DI GILIO

would receive stolen United States Series E Savings Bonds

registered to Margaret E. Sharp and Anna M. Sharp.

It was further pari of said conspiracy that FRANK DI

GILIO, EUGENE SANGILLO, and Fred Wankmuller would

discuss the forging and uttering of said stolen United States

Series E Savings Bonds with Herbert Gross and NICHOLAS

VALVANO.

4a

Appendix |

It was further part of said conspiracy that LILLIAN

GREAVES would forge the signature of Margaret E. Sharp on

said stolen United States Series E Savings Bonds at the Trust

Company of Ocean County in Lakewood, New Jersey.

It was further part of said conspiracy that NICHOLAS

VALVANO, VINCENT J. CRAPORATTA, and Herbert Gross

would derive proceeds from the forging and uttering of said

stolen United States Series E Savings Bonds.

It was further part of said conspiracy that FRANK DI

GILIO, JOSEPH CELSO, and EUGENE SANGILLO and

Fred Wankmuller would seek to recover proceeds from the

forging and uttering of the said stolen United States Series E

Savings Bonds.

OVERT ACTS

In furtherance of the conspiracy and to effect the objects

thereof, the defendants and co-conspirators performed the

following overt acts:

1. On or about October 16, 1968, LILLIAN GREAVES

checked into the Claridge Hotel in Lakewood, New Jersey.

2. Between October |, 1968, and October 16, 1968, FRANK

DI GILIO met with EUGENE SANGILLO and Fred

Wankmuller in Lakewood, New Jersey.

3. Between October |. 1968, and October 16, 1968,

VINCENT J. CRAPORATTA met with Herbert Gross in

Ocean County, New Jersey.

4. Between October 16, 1968, and October 20, 1968,

NICHOLAS VALVANO met with Herbert Gross at Lakewood,

New Jersey.

Sa

Appendix |

5. Between October 16, 1968, and December 31, 1968.

JOSEPH CELSO, EUGENE SANGILLO, and FRANK DI

GILIO met with Fred Wankmuller in Lakewood. New Jersev.

In violation of Title 18, United States Code. Section 371.

COUNT Il

On or about October 16, 1968, in the District of New

Jersey,

NICHOLAS VALVANO, aka

“Nicky Boy”:

VINCENT J. CRAPORATTA, aka

“Jimmy Sinatra”;

FRANK DI GILIO, aka

“Frankie D”;

EUGENE SANGILLO, aka

“Gino”, and

LILLIAN GREAVES,

the defendants herein, with intent to defraud the United States,

did falsely make, forge, and counterfeit, and cause to be falsely

made, forged, and counterfeited certain writings, that is, the

signature and endorsement of the registered owner of twenty-

four (24) United States Savings Bonds, Series E, to wit, the

words “Margaret E. Sharp” on the back thereof, for the purpose

of obtaining and receiving from the United States, and from its

officers and agents a sum of money, the said United States

Savings Bonds being genuine obligations of the United States.

In violation of Title 1&8. United States Code. Sections 495

and 2.

6a

Appendix 1

COUNT Ill

On or about October 16, 1968, in the District of New

Jersey,

NICHOLAS VALVANO, aka

“Nicky Boy”:

VINCENT J. CRAPORATTA, aka

“Jimmy Sinatra”;

FRANK DI GILIO, aka

“Frankie D”;

EUGENE SANGILLO, aka

“Gino”, and

LILLIAN GREAVES,

the defendants herein, with intent to defraud the United States,

did utter and publish as true, and cause to be uttered and

published as true certain writings, to wit, twenty-four (24)

United States Savings Bonds, Series E, containing thereon false,

forged, and counterfeit signatures and endorsements. The said

NICHOLAS VALVANO, aka

“Nicky Boy”;

VINCENT J. CRAPORATTA, aka

“Jimmy Sinatra”;

FRANK DI GILIO, aka

“Frankie D”,

EUGENE SANGILLO, aka

“Gino”, and

LILLIAN GREAVES,

the defendants herein, knowing the said signatures and

endorsements to have been false. forged, and counterfeited.

7a

Appendix |

In violation of Title 18, United States Code. Sections 495

and 2.

COUNT IV

31st

From on or about October 16,/ 1968, and continuously

thereafter, up to and including the date of the filing of this

Indictment, in the District of New Jersey,

NICHOLAS VALVANO, aka

“Nicky Boy”;

VINCENT J. CRAPORATTA, aka

“Jimmy Sinatra”,

FRANK DI GILIO, aka

“Frankie D”;

EUGENE SANGILLO, aka

“Gino”, and

LILLIAN GREAVES,

the defendants herein, for the purpose of conducting, promoting,

and carrying on by means of the United States Postal Service,

an unlawful business, to wit, forging and uttering of United

States Savings Bonds, Series E, in violation of Title 18, United

States Code, Section 495, did use and assume, and caused to be

used and assumed, a fictitious, false, and assumed name and

address, to wit, Margaret E. Sharp, Claridge Hotel, Lakewood,

New Jersey.

In violation of Title 18, United States Code, Sections 1342

and 2.

A IRUE BILL:

FOREMAN

Ra 9a

Appendix | APPENDIX Il — PORTION OF TRANSCRIPT OF

SEPTEMBER 23, 1974

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HERBERT J. STERN

United States Attorneys

District of New Jersey

UNITED STATES OF AMERICA

NICHOLAS VALVANO, VINCENT J. CRAPORATTA;

FRANK DI GILIO; EUGENE SANGILLO, JOSEPH CELSO,

LIAM S. COONAN

and LILLIAN GREAVES,

Acting Attorney in Charge

Newark Strike Force

Defendants.

Criminal No. 472-73

74-136

VOLUME I

Trenton, New Jersey

September 23, 1974

BEFORE:

HONORABLE CLARKSON S. FISHER, U.S.D.J.

and a Jury

APPEARANCES:

UNITED STATES DEPARTMENT OF

JUSTICE,

For the Government,

BY: JOSEPH L. CRANWELL, JR.,

ESQ.

Special Attorney.

10a

Appendix Il

CHARLES FRANKEL and ADOLPH

V. CARBONE, ESQS..

For the Defendant Vincent J. Craporatta.

NOONAN & FLYNN, ESQS.,

BY: JOHN W. NOONAN, ESQ..,

For the Defendant Frank Di Gilio.

MICHAEL A. QUERQUES, ESQ.,

For the Defendant Joseph Celso.

MORNING SESSION

(Hearing commenced at 10:25 a.m. jury not present.)

MR. CRANWELL: Good morning, your Honor.

1HE COURT: Good morning.

MR. CRANSWELL: At this point, Judge, | would ask the

Court to sever Mr. Frank DiGilio from the trial of this case.

THE COURT: Any remarks’

MR. NOONAN: Your Honor, in this matter, this is now

the fourth time that |, as third or fourth new counsel in this case,

have been here in Trenton. | came down two weeks ago not

having looked at the file, got myself ready for the following

Thursday to pick a jury. We did in fact pick a jury, carried over

to last Thursday when | appeared again ready.

We're ready to proceed today. This case is now fairly old.

Prior to its being moved at this point, it was my

understanding that it was going to be moved subsequent to

Appendix 11

another case in which Mr. Cranwell was involved, in which my

client is not involved.

The only purpose of these remakrs, your Honor, is, |

suppose, if the United States Government has cogent reasons for

moving to sever Mr. DiGilio, | as Mr. DiGilio’s counsel, have no

valid reasons to object to it. But, thus far, | haven't heard any

reasons as to why he should be severed and why his

constitutional right to a speedy trial at this point should be

impinged upon.

So that, therefore, until I hear some reasons, and if there

are any reasons that perhaps should be done in camera, I would

like to hear them. But my client is seated here in the courtroom.

| have an obligation to advise him as to just where we stand.

And going one step further, Judge, should your Honor

grant this motion, | would like a firm trial date set at this point,

at which time Mr. DiGilio’s case will be moved or dismissed.

MR. CRANSWELL: Your Honor, our application for a

severance in this case is based upon the same reasons that were

put on the record before you last week in camera. We would be

very happy if the Court set a fixed triai date sometime perhaps

two or three weeks from now.

THE COURT: All right. I'll grant the motion for a

severance. As far as a fixed trial date is concerned, | will get

right on that as soon as I get settled with the United States

Circuit Conference coming up. As a matter of fact the last two

weeks | haven't even been able to get a firm date for lunch. But

I'll do the best I can, Mr. Noonan. We will set it for vou as

quick as we can.

12a

Appendix Il

MR. NOONAN: All right, Judge, Thank you very much.

* * 7

CERTIFICATE

WE, LYNNE T. ATTARDI and THOMAS F.

BRAZAITIS, Official Court Reporters for the United States

District Court for the District of New Jersey, appointed

pursuant to the provisions of Title 28, United States Code,

Section 753, do hereby certify that the foregoing 1s a full, true

and correct transcript of proceedings had in the within-entitled

and numbered cause on the date hereinbefore set forth; and WE

DO FURTHER CERTIFY that the foregoing transcript has

been prepared by me or under my direction.

LYNNE T. ATTARDI

THOMAS F. BRAZAITIS

l3a

APPENDIX II] — JUDGMENT ORDER OF THE UNITED

STATES COURT OF APPEALS ©

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 77-1389

77-1618

UNITED STATES OF AMERICA

VS.

NICHOLAS VALVANO;, VINCENT J. CRAPORATTA;

FRANK DI GILIO; EUGENE SANGILLO; JOSEPH CELSO,

and LILLIAN GREAVES

Eugene Sangillo,

Appellant in No. 77-1389

UNITED STATES OF AMERICA

VS.

NICHOLAS VALVANO,; VINCENT J. CRAPORATTA;

FRANK DI GILIO; EUGENE SANGILLO; JOSEPH CELSO,

and LILLIAN GREAVES

Frank DiGilio,

Appellant in No. 77-1618

Appeal from the United States District Court for the District of

New Jersey

(D.C. Crim. No. 472-73)

l4a

Argued

April 25, 1978

Before: ALDISERT and ADAMS, Circuit Judges, and

HANNUM, District Judge.*

After considering the contentions raised by appellants, to-

wit, that (1) appellants should be granted a judgment of

acquittal based upon the deprivation of their Sixth Amendment

rights in that they were not afforded a speedy trial; (2) the

government failed to prove the conspiracy alleged in the

indictment; (3) the conviction sub judice violates appellant

DiGilio’s rights pursuant to the Fifth Amendment barring

double jeopardy; and (4) appellants were not aiders and

abettors; it is

ADJUDGED AND ORDERED that the judgment of the

district court be and is hereby affirmed.

BY THE COURT

s Aldisert

DATED: April 25, 1978 Circuit Judge

Attest:

s N. Elizabeth Ferguson

Chiet Deputy Clerk

Certified as a true copy and issued in

lieu of a formal mandate on May 26, 1978.

Test: THOMAS F. QUINN

Clerk, United States Court of

Appeals for the Third Circuit

* Honorable John B. Hannum, of the United States District Court for the

Eastern District of Pennsylvania, sitting by designation.

—

ee en Pee to Pe er ae

:

)

'