# Petition — DiGilio v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 836

## Text

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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

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TABLE OF CONTENTS

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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

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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

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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:

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Contents
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United States Constitution Cited:
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Other Authority Cited:

The Constitutional Guarantee of a Speedy Trial, 8 Ind.
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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.

—

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'

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1199%3A1. Public record. Not legal advice.