Petition — Giacalone v. United States

Gupreme Court, U. hy

FILED

m The HEC 29 879

Supreme Court of the Bite, States.

e

October Term, 1979

M.S 29-1016

ANTHONY GIACALONE,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

IRVING ANOLIK

Attorney for Petitioner

225 Broadway

New York, New York 10007

(212) 732-3050

he

2369 LUTZ APPELLATE PRINTERS, INC.

Law and Financial Printing /

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C. : K

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4

a

TABLE OF CONTENTS

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Constitutional and Statutory Provisions Involved ......... 3

Foal Mablwredas 2250 foi ea 3

Summary of Argument cette eee eee eee eteeeeeeeeee ences -

Reasons for Granting the Writ: in

I. The crime herein was essentially local in nature and

should have been prosecuted by state authorities.

Any interstate aspect was, contrived by federal

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Il. Assuming that a federal crime occurred, venue

should have been placed in the District of New

Jersey where all of the events occurred, and not in

the Northern District of New York, which happened

to be the residence of the undercover agents. .... 7

III. Evidence of petitioner’s alleged prior involvement in

criminal acts which antedated the conspiracy were

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Conclusion eeeeeeeeeteeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 8

ii

Contents

Page

TABLE OF CITATIONS

Cases Cited:

eavers Vv, Hentiel, 194 05: 13-6 <0 6 dass Sia vse newest 7

Brower Ne UE; ZAP ROC SUE hie es eucesde csv eccsivecety 8

Caty ¥. Curtis, 3 Mite. 236 TIGA). noc ieee csieeececeees 7

Chisholm + Georgie, eR EP ATS 5 oo 6a vos vee dg eee 6

General Inv. Co. v. N.Y. Central R.R., 271 U.S. 228 (1926)

gE KAS 0 6 4.0 Ed CANES CTE CEOMECAD RR ee CRO VEU UE deeb eee 6

Haasv, Henkel, 216 U.S, 462 2.00. c cece cece emcees 8

Hyde v. United ‘States, 225°US; 347 ..-,.cssssecsseeeeee- 8

Kentucky v. Dennison, 24 How. 66 (1861) ............ soe 6

Kline v. Burke Constr. Co., 260 U.S.'226 (1922) .J...ev0se. “pa

Muskrat v. United States, 219 U.S. 346 (1911) ............ 6

Salinger ¥: 1omel; 265: U5: 228 oi ii cen iene ieew nts ns's 7

Shelden v. Sill, 8 How. 441 (1850) ............. eee e eee 7

The Mayor v. Cooper, 6 Wall. 247 (1868) ................ 7

United States v. Archer, 486 F. 2d 670 (2d Cir. 1973) ....... pA

_ United States v. Arredondo, 6 Pet. 691 (1832) ............. 6

ii

Contents

Page

United States v. Beasley, 412 F. Supp. 447 (D.C. Pa. 1975),

amr G, S58: B26 SAS Cae TOTS) oaieed on 7

United States v. Busic, 549 F. 2d 252 (2 Cir. 1977) ......... 8

United States v Rosenberg, 195 F. 2d 583, cert. denied,

344 US. 838 Car. 1OSRP: 5S seein ee eel ee 7

United States v. Sisson, 399 U.S. 267, 26 L. Ed. 608 (1970)

Chea ented CONN GSS CUPELPASS US CANS S Lele ee ee avs Caves 5

United States v. Smith, 410 F. Supp. 1256 (D.C. Pa. 1976)

FAKEAMRE NS CADE REAdRA NAEP abe U SORT AMD CHS Famed es S408 7

United States v. Sobell, 142 F. Supp. 575 (S.D.N.Y. 1956),

aff'd, 244 F. 2d 520, cert. denied, 355 U.S. 873 (1957) ... 7

Williams v. United States, 289 U.S. 553 (1933) ............ 6

Yakus v. United States, 321 U.S. 414 (1974) ...........4.. 6

Statutes Cited:

SD: Sins Me Pay RC APED Cle ks 0 kA eka cca vecvne , ‘Seay

MR a, URE, bigs SAERTAN SAYS Reh ein Che dck cannes 2

United States Constitution Cited:

Re ee eebi emake see bea ee 3

Sixth Amendment 6 RIERA HA OE LEROLL URS he Ka OR aE 3

PO TE enc 6 0 iG oh od eOb eo wee cued dhboncceees Be

Rule Cited:

iv

Contents

Federal Rules of Criminal Procedure, Rule 35 ............

Other Authority Cited:

Miller, On the Constitution, 314 (1891) .......... cc cee ees

Order Affirming Judgment of Conviction Dated October

4, 1979

Order Denying Motion for Rehearing Dated November

28, 1979

APPENDIX

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Page

In The

Supreme Court of the United States

—e

October Term 1979

No,

ANTHONY GIACALONE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO. THE

UNITED. STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

STATEMENT

Petitioner, Anthony Giacalone, petitions this Court for a

writ of certiorari to the United States Court of Appeals for the

Second Circuit, to review its affirmance of the judgment of the

United States District Court for the Northern District of New

York rendered the 20th day of April, 1979, convicting him of

violating 18 U.S.C. §§2, 371, 2314 and 2315 (causing stolen

goods to be transported in interstate commerce; sale of property

stolen from foreign commerce; and conspiracy), after trial before

MacMahon and a jury, as a@ result of which petitioner was

sentenced to five years imprisonment.

2

OPINION BELOW

No opinion was rendered by the court below,

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C,

§1254(1). The court below affirmed the judgment of conviction

on October 4, 1979, and denied a motion for rehearing on

November 28, 1979. The aforesaid orders are annexed as an

appendix.

QUESTIONS PRESENTED

1. Whether a larceny which takes place totally within the

State of New Jersey can support a conviction under 18 U.S.C,

§$§2, 371, 2314 and 2315, where the merchandise was delivered

there and would not be moved from New Jersey unless and until

purchase orders were received, and where the interstate elernents

of the crime are supplied by federal undercover agents who

transport the merchandise from New Jersey to Syracuse?

2. Assuming, arguendo, that such facts do state a violation

of 18 U.S.C, §§2, 371, 2314 and 2315, whether the indictment

could be properly tried in the Northern District of New York,

the district to which the agents transported the merchandise,

consistent with appellant's constitutional right to be tried in the

district in which the crime was allegedly committed?

3, Whether the trial judge properly received into evidence

testimony, much of it hearsay, which concerned an alleged

conspiracy antedating the indictment?

4, Whether the prosecution was guilty of “district

shopping” by contriving to bring this case in the Northern

District of New York, when all of the events occurred in New

Jersey?

3

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fifth and Sixth Amen ments of the United States

Constitution, as well as Article III §2 thereof are involved. In

addition, 18 U.S.C, §§2, 371, 2314 and 2315 are also involved.

FACTUAL BACKGROUND

Judge Munsen denied a pretrial motion for a dismissal of

the indictment on the grounds of improper venue.

The charges themselves stemmed from the alleged sale of

certain stoneware products (Jepcor) which had been reported

stolen from a dock in New Jersey. On March 9, 1978, a load of

stoneware was delivered to Jepcor’s plant in Edison, New

Jersey (11).* The container was brought into the warehouse

where it was photographed, its doors opened, the customs seals

removed, and was then put into a trailer and a pin lock affixed

(14-15).

On March 19, 1978, the stoneware was reported stolen (13).

On March 19, 1978, defendant DePasqua, who had

pleaded guilty to the charges involved in this indictment (417),

placed a telephone call to Special Agent Donald Stenham,

whom he believed to be a fence known as “Lucky Cataldo”, and

offered to sell the stoneware to him for $25,000 (118),

Further telephonic communication between the two ensued

(123) and Stenham was told to bring a tractor-trailer to New

Jersey, where the merchandise could be picked up (124),

Stenham and Special Agent Richard Dorton, the latter

acting in his undercover capacity as “Dick Adams”, drove to

* Numerals in parentheses refer to pages of the official court reporter's

transcript of trial,

4

New Jersey with the tractor-trailer and met appellant and the

other defendants at the Gold Star Diner in Clifton (32-33, 136). |

DePasqua handed Stenham a brochure (34, 143). A sample

of the stoneware was exhibited and a price discussed (36-37).

The undercover agents were directed to the Martha’s

Vineyard restaurant, also in Clifton, to await a telephone call

confirming the price (39). DePasqua was given the keys to the

tractor-trailer (40). They all waited at the restaurant for several

hours while the truck was loaded (41).

At about ten o’clock, DePasqua told Dorton to go out and

meet the tractor-trailer (42). The price was again discussed —

there being a shortage — and Stenham paid DePasqua $20,000

in cash (46-47, 182-184).

DePasqua supplied the agents with the most expeditious

route to Syracuse (47, 184) and the agents departed for Syracuse

with the tractor-trailer load of stolen stoneware (48, 184).

The merchandise involved was “just sitting in [the]

warehouse” (29) as no shipping had been received with respect to

any of the items in the container (28).

SUMMARY OF ARGUMENT

In the present case, all the alleged criminal acts took place

in the State of New Jersey. The goods were “just sitting in [the]

warehouse” when they were stolen; they were transported to

Syracuse by undercover FBI agents. On these facts, appellant

urges that the federal offenses were manufactured: the crimes

charged are loca! in nature and should be prosecuted by local

law enforcement officials. Moreover, on these facts, the

Constitution mandates that the trial be had in New Jersey,

where the acts attributed to appellant took place.

<< <a

5

During the course of the trial, the court permitted the

Government to introduce evidence, much of it hearsay,

concerning a conspiracy between the defendant and a co-

defendant, which antedated the indictment. This testimony,

which was highly prejudicial, should not have been received.

REASONS FOR GRANTING THE WRIT

I.

The crime herein was essentially local in nature and should

have been prosecuted by state authorities. Any interstate aspect

was contrived by federal agents.

The petitioner had been indicted along with Anthony

DePasqua and Matty Vicaro, in a three-count indictment, as

aforesaid. Both DePasqua and Vicaro pleaded guilty, and

Giacalone was convicted on all three counts.

All of the aspects of the crime herein took place within the

State of New Jersey, with the single exception that the

undercover FBI agents came from Syracuse, New York.

The fact that these agents said they were transporting the

stolen merchandise to Syracuse was not part of the crime

allegedly committed by petitioner, since once the stoneware was ©

delivered in New Jersey to the undercover FBI agents,

Giacalone’s and his co-defendants’ participation ceased [see

United States v. Archer, 486 F. 2d 670, 682 (2. Cir. 1973)].

By way of background, we would ask this Court to review

the decision of the United States Supreme Court in United

States v. Sisson, 399 U.S. 267, 26 L. Ed. 608 (1970).

Judicial power, as defined by Justice Miller in 1891, is the

power “. . . of a court to decide and pronounce a judgment and

carry it into effect between persons and parties who bring a case

6

before it for decision...” [Miller, On the Constitution, 314

(1891)], or, in the words of the U.S. Supreme Court in Muskrat

v. United States, 219 U.S. 346 (1911), it is the “righ: to.

determine actual controversies arising between adverse litigants,

duly instituted in courts of proper jurisdiction.” (Ibid. 361.)

Although the terms “judicial power” and “jurisdiction” are

frequently used interchangeably and jurisdiction is defined as the

power to hear and determine the subject matter in controversy

between parties to a suit [United States v. Arredondo, 6 Pet. 691

(1832)],.or the “power to entertain the suit, consider the merits

and render a binding decision thereon,” [General Inv. Co. v.

N.Y. Central R.R., 271 U.S. 228, 230 (1926)], the cases and

commentaries support and, for that matter, necessitate a

distinction between the two concepts.

Jurisdiction is the authority of a court to exercise judicial

power in a specific case and is, of course, a prerequisite to the

exercise of judicial power, which is the totality of powers a court

exercises when it assumes jurisdiction and hears and decides a

case. [Williams v. United States, 289 U.S. 553, 566 (1933); and

the dissent of Justice Rutledge in Yakus v. United States, 321

U.S. 414, 467-468 (1974).]

The distinction between judicial power and jurisdiction is

especially pertinent to the meaning of the words “shali be

vested.” Whereas all of the judicial power of the United States is

vested in the Supreme Court and the lower federal judiciary,

neither has ever been vested with all the jurisdiction they are

capable of receiving under Article III.

Except for the origina! jurisdiction of the Supreme Court,

which flows directly from the Constitution [Chisholm v.

Georgia, 2 Dall. 419 (1793); Kentucky v. Dennison, 24 How. 66,

98 (1861)], two prerequisites to jurisdiction must be present.

' First, the Constitution must have given the courts the capacity

to receive it; and second, an act of Congress must have

7

conferred it. [The Mayor v. Cooper, 6 Wall. 247, 252 (1868);

Cary v. Curtis, 3 How. 236 (1845); Shelden v. Sill, 8 How. 441

(1850); and, Kline v. Burke Constr. Co., 260 U.S. 226 (1922).]

Jurisdiction of the subject matter was timely raised in the

case at bar. See Rule 35 of the Federal Rules of Criminal

Procedure. See also, United States v. Rosenberg, 195 F. 2d 583,

cert. denied, 344 U.S. 838 (2 Cir. 1952); see later opinion, United

States v. Sobell, 142 F. Supp. 575 (S.D.N.Y. 1956), aff'd, 244 F.

2d 520, cert. denied, 355 U.S. 873 (1957).

The vast increase in the caseload of the federal courts, we

submit has in no short measure been due to the fact that the

federal prosecutors have been arrogating to themselves

jurisdiction over cases that are clearly within the purview of the

states and not the federal government. (See United States v.

Archer, supra.) See also, United States v. Smith, 410 F. Supp.

1256, 1258 (D.C. Pa. 1976) and United States v. Beasley, 412 F.

Supp. 447, 449 (D.C. Pa. 1975), affd, 538 F. 2d 321 (3 Cir.

1976).

Assuming that a federal crime occurred, venue should have

been placed in the District of New Jersey where all of the events

occurred, and not in the Northern District of New York, which

happened to be the residence of the undercover agents.

Article III §2 of the United States Constitution mandates

that a federal trial must be held in the state in which the offense

was committed. An accused cannot be tried in one district under

an indictment showing that the offense was committed in

another (Salinger v. Loisel, 265 U.S. 224).

The place where the offense is charged to have been

committed determines the location of the trial (Beavers v.

Henkel, 194 U.S. 73, 83).

Even in a conspiracy case, the accused must be tried where

an overt act was performed, which in this case was limited to

New Jersey (Brown v. Elliott, 225 U.S. 392; Hyde v. United

States, 225 U.S. 347; and Haas v. Henkel, 216 U.S. 462).

See also, United States v. Busic, 549 F. 2d 252 (2 Cir. 1977).

iil.

Evidence of petitioner’s alleged prior involvement in

criminal acts which antedated the conspiracy were erroneously

received.

During the trial, the court permitted the Government to

introduce evidence concerning a meeting between the undercover

agents and a co-defendant which antedated the conspiracy. We

maintain this was error, but we leave it to a review of the briefs

in the court below, which are incorporated by reference to

expand upon this point.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

s/ Irving Anolik

Attorney for Petitioner

APPENDIX

ORDER AFFIRMING JUDGMENT OF CONVICTION

DATED OCTOBER 4, 1979

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse in the

City of New York, on the 4th day of October, one thousand nine

hundred and seventy-nine.

Present:

J. EDWARD LUMBARD,

HENRY J. FRIENDLY,

MURRAY I. GURFEIN,

Circuit Judges,

79-1173

UNITED STATES OF AMERICA,

Appellee,

-V-

ANTHONY GIACALONE,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of New York.

2a

Order Dated October 4, 1979

This cause came on to be heard on the transcript of record

from the United States District Court for the Northern District

of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgment of said

District Court be and it hereby is AFFIRMED.

s/ J. Edward Lumbard

J. EDWARD LUMBARD

s/ Henry J. Friendly

HENRY J. FRIENDLY

s/ Murray I. Gurfein

MURRAY I. GURFEIN

Circuit Judges

3a

ORDER DENYING MOTION FOR REHEARING DATED

. NOVEMBER 28, 1979

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the 28th day of November,

one thousand nine hundred and seventy-nine.

Present:

HONORABLE MURRAY I. GURFEIN

HONORABLE HENRY J. FRIENDLY

HONORABLE J. EDWARD LUMBARD

Circuit Judges.

79-1173

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY GIACALONE,

Defendant-Appellant.

4a

Order “Dated November 28, 1979

A petition for a rehearing having been filed herein by

counsel for the Appellant.

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

A. DANIEL FUSARO

Clerk

Bers ‘ eS eRe Sra ae

RSG Ly eer RAED Ea a bes Aho a OF La

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