# Petition for Writ of Certiorari — DiGilio v. New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1037

## Text

84 uF 1 28 : "| Office-Supreme Court, UR

FILED
No. JAN 8 1985

| ALEXANDER 4 STEVAS,
a CLERK

In The ‘.
Supreme Court of the United States

OCTOBER TERM, 1984

JOHN DI GILIO,
Petitioner,

-VS-

STATE OF NEW JERSEY,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF NEW JERSEY

ALAN DEXTER BOWMAN
Gateway One, Suite 300
Newark, New Jersey 07102
(201) 622-1846

Attorney for Petitioner

THE SUPERIOR APPELLATE PRINTING COMPANY

PO Box 363 ; Area Code 609
Cranbury. NJ 06512 443-4202

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

QUESTIONS PRESENTED

1. Whether misinstruction of a grand jury as to
the law in a fashion which misleads the grand jury into
the view that wholly lawful conduct is illegal requires
dismissal of the indict~ent and re-presentation of the

evidence under a correct legal analysis?

|

ii

TABLE OF CONTENTS

OPINION Ek errr ee ee ee ee ee ae ee ae ee
SERISDEGSE BOG 0 0 06 © 6 66 06 66-60 6 SOR HSE C HOO CeO eA

CONSTITUTIONAL, STATUTORY AND RULE
PROVISIONS LEV ORU EDs 66 bos 65 60466 6S Od bee eo eek

ORDER EXTENDING TIME TO FILE PETITION
FOR CERT COM 6 6 66 6 8 666 6566 SSH OS CE KO ORR OCE

STATEMENT OF THE CEGEs cto occesawessbedvesevedl
Le tia ge fe! | eo ee rae

a. Procedural Background... cccceeeeeed

be. Factual Background. cccccsccccccsese ce
- The TOES CCOOOE «cb. 0 ks 64h bo 666662 OH OOO

ii. The Facts As Adduced At The
Pacilio Ae eae eee ed Be ee ae ee ee

REASONS FOR GRANTING THE WRIT

CERTIORARI MUST BE GRANTED TO PERMIT
THIS COURT TO ESTABLISH A RULE
OF LAW RESPECTING REMEDY OF A
PROSECUTOR'S MISINSTRUCTION OF THE
GRAND JURY AS TO CONTROLJ.ING PRINCIPLES
‘ OF LAW IN A FASHION WHICH MISLEADS THE
GRAND JURORS INTO THE BELIEF THAT
WHOLLY LAWFUL CONDUCT IS CRIMINAL.......13

i. The Trial Court's Opinion.........15

ii. The Constitutional Right To
Cv TTS. | ee es ie

iii. Conspiracy Law Under 2A..........--18 :

iv. The Opinion in State v. Mazur.....19

le EE

v. The Misinstructions to the Grand
Jury Upon Which The Indictment Is

iii

Based Are Violative Of Due Process
And Mandate Dismissal Of The
eres os oe ic be ae ee

SE RE EE OR

CASES CITED

IN RE BUEHRER, 50 N.J. 501 (1967)........-.17

SEARS V. UNITED STATES, 343 F.2d 139 (5
Cif « Dele a 66 6a 6a 6 be seco ewescosececansceoesee

STATE V. BROWN, 188 N.J. Super. 656 (Law
Div. i 5} wT eee ee se ee a ae

STATE V. CHANDLER, 98 N.J. Super. 241
(Cty.Ct. BUOT Sc cbeeecoecesesesesctoaesneeeelel

STATE V. DORSEY, 65 N.J. 428 (1974)......-..217

STATE V. DRAYTON, 23 N.J.L. 49 (Sup.Ct.
1850) cccccccccccccccscccccccescccesceeselO

STATE V. FERRANTE, 111 N.J. Super. 299
(App. Div. Lay er a a ae ee ee ee ee |

STATE V. FUREY, 128 N.J. SUper. 12 (App.
Div. Le) ees ee ee es Ph ee a a ee a ee eS

STATE V. GROTHMAN, 13 N.J. 90 (1953).......18
STATE V. LAFERA, 35 N.J. 75 (1961)........ 17

STATE V. LAWRENCE, 142 N.J. SUper. 208
(App. Div. ot) ees ee ae ee ee ea ee

STATE V. LOUF, 126 N.J. SUper. 321 (App.

Div. 1973), aff'd inpart and rev'd in

part 64 N.Jo 1782 (C1973) wccccccccsccceee 19
STATE VY. MACUK, S37 Bede 1 (1l197TO) cccecccccecld
STATE V. MADDEN, 61 N.J. 377 (1972)....2...19
STATE V. MAZUR, 158 N.J. Super. 89 (App.

Div. 1978), certif. den. 78 N.J. 399
Pee tithe cee seb et eeneeececesee 33,239, 20,21

iv
STATE V. NEWELL, 152 N.J. SUper. 460 (App.

Div. G7 t 30-000 646-50 @ Oho 6eee absense ss oak Baas

STATE V. OWNES, 54 N.J. 153 (1969), cert.
den. 396 U.S. 1021 CL re eT ee ee eee FY

STATE V. ANTHONY PACILIO, Docket No.
A-1 SES “Bit Goce weve eee sees esveceersesvseceshd «ib

STATE V. PORRO, 153 N.J. Super. 179 (App.
Div. LIRA TRCTETCECOUU CTT eT CCR Tere

STATE V. PRICE, 108 N.J. Super. 272 (Law
Div. SOT ek eh bb0e6 446 68 CRRA O KER ObR OO e eat

STATE V. REYNOLDS, 166 N.J. Ssuper. 570
(Law Div. Lo) an eae oF

STATE V. SENNO, 79 N.J.w 216 (1979)........-17

STATE V. WAGNER, 180 N.J. Super. 565 (App.
Div. 1 b ® Fer ee ee eee ee

STATE V. WEIN, 80 N.J. 491 (1979).......17,18
STATE V. WELECK, 10 N.J. 355 (1952)........26

STATE V. WILSON, 183 N.J. Super. 86 (Law
Div. LP ae ae re eee ree ee ee eee

STATE V. WOLDEN, 153 N.J. Super. 57 (App.
Div. oe go ee ae er re re ee ene &

UNITED STATES V. BROWN, 555 F.2d 407 (5
Cites log eS Pe ee ere ee eer a ee eee eee

UNITED STATES V. CROCKER, 568 F.2d 1049....26

UNITED STATES V. CRYAN, 490 F.Supp. 1234
(DNJ 1980), aff'd 636 F.2d 1211 (3 Cir.
oof eee Terr ree See ee | ee LS ee ee ee eee

UNITED STATES V. DANSKER, 537 F.2d 40 (3
Cir. 1976), cert. den. 429 U.S. 1638
( 297 TP ie he she tees Oke ss CEOS EO 446608 OKO 0 KEO

UNITED STATES V. DECAVALCANTE, 440 F.2d
1266 (3 Cie « Lies Perwrrery ee eo Pee Pe ee eee 2

Vv

UNITED STATES V. GOLDSTEIN, 562 F.2d 526
(3 Cir. CP, SPEER TET OTE TEPC CTTET CCT eer f

UNITED STATES V. RADOWITZ, 507 F.2d 109
(3 Cit. OTS) 6 6000056 64600666464 600 OOO ORT

UNITED STATES V. SILVERMAN, 430 F.2d 106
(2 Cie o ROTO) 4 066 6684 CERO RES ECE Oe HEE ESCMOT

vi

TABLE OF CONTENTS

APPENDIX

SUPERIOR COURT OF NEW JERSEY OPINION

DATED NOVEMBER 7, 1983....... cc cccees

ORDER DENYING DEFENDANT'S PRETRIAL
MOTION TO RECONSIDER DENIAL OF A
MOTION TO DISMISS THE INDICTMENT

FILED FEBRUARY 21, 1984.....eeeeeeee

ORDER FILED MAY 1, 1984.....222ee eevee

ORDER EXTENDING TIME TO FILE
PETITION FOR WRIT OF CERTIORARI

DATED DECEMBER 13, 1984...-+e+eeeeeee-s

PAGE

10a

12a

l3a

14a

IN THE
SUPERIOR COURT OF THE UNITED STATES
OCTOBER TERM, 1984

JOHN DIGILIO, Petitioner
-vVs-

STATE OF NEW JERSEY

PETITION FOR A WRIT OF CERTIORARI
TO THE NEW JERSEY SUPREME COURT

Petitioner prays that a writ of certiorari issue to
review the judgment of the New Jersey Supreme Court

entered in this proceeding on October 16, 1984.

OPINION BELOW

The Judgrnrent Order of the New Jersey Supreme
Court and letter-opinion of the trial ourt are appended

to this Petition.

JURISDICTION

The jurisdiction of the Supreme Court to review
the Final Judgment of the New Jersey Supreme Court
is based on 28 U.S.C. Sec. 1257.

CONSTITUTIONAL, STATUTORY AND
RULE PROVISIONS INVOLVED

— or a —— ae — —

Petitioner seeks review of issues of law arising
under the Fifth, Sixth and Fourteenth Amendments to
the United States Constitution.

ORDER EXTENDING TIME TO FILE
PETITION FOR CERTIORARI

An application was made to Associate Justice
Williar Brennan, Jr. seeking an extension of tire
within which petitioner could timely file the within
petition for certiorari. Justice Brennan .ssued an order

extending the time until January 5, 1985.

STATEMENT OF THE CASE

I.
Introduction

The instant case presents an important issue which

has not been resolved by the State courts of New

Jersey nor this Court. Resolution of the issue is

, critical to the growth and developrent of the grand
jury process in jurisdictions where this procedure is

employed to determine probable cause. Specifically, the

issue presented herein is whether a prosecutor's

misinstruction of a grand jury as to the law requires

dismissal of an indict:nent in circurnstances where the
incorrect instructions clearly misled the grand jury into
the belief that wholly lawful conduct was criminal.

Abuse of the grand jury by virtue of
misinstructions as to the law’ essentially renders the
grand jury process a nullity. Guidelines ior review of
such misinstructions must be fashioned as well as a
fair remedy for any prejudice which stems therefrom.
The remedy of a new trial, in cases where the
misinstruction is repeated before the trial jury, is
wholly insufficient to preserve the soundness of the
grand jury process. The grand jury and indictrnent
process is the seed of a prosecution in most
parladactions. A poisoned seed can only bear poisoned
fruit. Modification of the indictment by a Court is also
an insufficient and iimpermissible remedy. The
substantive form of an indictirent is a grand jury
function exclusively.

Petitioner was indicted pursuant to New Jersey
State statutes for alleged entry into a conspiratorial
agree'rent with a government undercover operative.
The grand jury was misinstructed that an agreement to
commit an offense with an undercover police officer

constituted a crime within Title 2A. See, State v.

oe

Mazur, 158 N.J. Super. 89 (App. div. 1978), certif. den.
78 N.J. 399 (1978). Petitioner raised the grand jury
misinstruction issue as part of a motion to dismiss the
indictment. Notwithstanding clear evidence of
misinstruction of the grand jury, which is bolstered by
the concession of the State that it relied upon
incorrect law, the State courts refused to remedy this
infringement of the absolute right to an independent
grand jury assessment of probable cause.

Serious error or :nisconduct in the grand jury
process in our view has greater significance than errors
or omissions which occur at trial. A defendant and/or
his counsel are present at every stage of trial and may
act swiftly to rectify misconduct or omission. The
prosecutor is alone with the grand jury when the grand
jurors are educated as to the law. The prosecutor,
therefore, has great leverage. That leverage was
enhanced at the tire of the instant indictrrent because
the prosecutor's ‘anipulation of legal principles was not
transcribed. The exclusive rreans to judge the grand
jurors’ assessment of the law is by virtue of an
examination of the face of the indictrrent. The grand
jurors' misapprehension as to the law is clearly

manifested by the decision to nanie the undercover

- 4.

police operative as a co-conspirator in circumstances

where the law precluded such a finding. And, more

importantly, the State conceded that the grand jury

was reisinstructed.

Avoidance of an ill-founded indictment is the
prirrary interest of any individual whose conduct is
under review by a grand jury. And, all citizens are
entitled to absolute fairness in this process. Petitioner
was denied his right to indictment because the State
advised the grand jury that wholly lawful conduct was

crirrinal. That body night well have declined to indict

petitioner had it been correctly instructed. This Court

must disrriss the instant indictrrent and order the State
to re-present is evidence to the grand jury under a
correct assessment of applicable legal principles. Justice

de‘rands no less.

a. Procedural Background

On March 1. 1978 State Grand Jury
Indictrrent No. SGJ43-77-3 was filed. That indictment
charged petitioner John DiGilio, Anthony Pacilio and
Neil Pacilio with conspiring together with Robert
Weisert to engage in the business of making usurious

loans in violation of N.J.S.A. 2A:II9A-3. Trial

~~

commenced on May 18, 1981 before the Honorable
Jacques H. Gascoyne, J.S.C. and a jury. Petitioner, due
to a continuing health problem, was ruled physically
unfit to participate in the trial. Thus, only Anthony and
Neil Pacilio were tried. On June 24, 1981, following an
18-day trial, Anthony Pacilio was found guilty of
conspiracy. (T18.14-11 to 14). Codefendant Neil Pacilio
was acquitted. (Ti8-14-17 to 21). Thereafter, the
conviction of Anthony Pacilio was reversed by the
Appellate Division on July 13, 1983.

On March 25, 1983, petitioner moved before
the Honorable Donald G. Collester, J.J.D.R.C. t/a for
an order dismissing the indictment. On November 7,
1983 Judge Collester denied petitioner's motion.
Thereafter, petitioner moved for reconsideration of
Judge Collester's decision. On February 21, 1984, Judge
Collester denied petitioner's motion for reconsideration.
Thereafter, the Appellate Division and Suprere Court

“of New Jersey denied petitioner's Motions for Leave to

Appeal. This petition follows.

b. Factual Background

i.
The Indictment

*

The indict:rent charges that petitioner and
others conspired with an undercover police operative.
Specifically, the indictrrent alleges that Anthony
Pacilio, petitioner, Neil Pacilio "and Robert Weisert, a
detective in the New Jersey State Police acting in an
undercover capacity and using the name Bobby
Hesse...knowingly, willfully and unlawfully did
conspire..." Weisert was named as a conspirator in the
indict rent because the grand jury was misinstructed by
the prosecutor that he could legally be a party to the

alleged conspiracy.
ii.

The Facts As Adduced At The Pacilio Trial

Weisert has been employed by the New
Jersey State Police for approxirnately ten years.
(T3.21-7 to 13). During 1977, Weisert "was employed as
an undercover detective at a company called Alamo
Transportation." (T3.2I-17 to 18). The government
surreptitiously purchased an interest in the company in
order to create a front for an investigation. The
premises of the company were equipped with
sophisticated eavesdropping devices designed to record

conversations occurring at any pre-arranged meeting.

Utilizing the fictitious name "Robert Hesse,"
Weisert in his undercover capacity pretended to function
as the bookkeeper of the company. Anthony Pacilio had
an ownership interest in Alamo Transportation.
Anthony Pacilio was unaware that his business
associates were undercover police operative and made
no effort to involve those individuals in crime.

Contrarily, Weisert set out to tempt Pacilio into crime.

Weisert testified that discussions commenced on
July 5, 1977 wherein he instigated a conversation with
Anthony Pacilio concerning initiation of "a loan shark

operation." The conversation was taped. The discussions

centered upon Weisert's ability to finance the operation.

Anthony Pacilio's participation was to be limited to
supplying clients. Anthony Pacilio was completely
insolvent and unable to consider any such endeavor,
absent financing of it by Weisert. In an attempt to
fabricate an opportunity for Pacilio to contribute value
“to creation of the operation, Weisert stated that
"permission" from petitioner to conduct the business
would be a sufficient contribution by Pacilio.

Weisert continually pressed Anthony Pacilio to
arrange a rreeting with petitioner. Pacilio knew full

well that petitioner had no power to license a

otis

loansharking enterprise nor any interest in it. Due to
faulty intelligence informatio, petitioner was a prime
target of the investigation and Weisert was zealously
interested in constructing a scenario wherein it would
appear that petitioner had an interest in the scheme.
The loansharking operation which was instigated by
Weisert was to be fully capitalized by Weisert's
provision to Anthony Pacilio of $5,000.

Discussions involving only Weisert and Anthony

Pacilio continued on July 7, 1977. Weisert sought out
Anthony Pacilio to instigate further conversations
: concerning criminal activity. Weisert inquired whether
Anthony Pacilio remained interested in the "shylock
operation." Pacilio replied that such an operation would
cor wens in mediately upon the extension of financing
by Weisert. Pacilio was destitute and would make any
representation in order to gain access to Weisert's
money.

On August 2, 1977 Anthony Pacilio introduced

Weisert to Neil Pacilio at Alamo Trucking. Oddly, the

conversation was not recorded despite the fact that the

meeting was pre-arranged. Weisert testified that Neil

Pacilio "thought it would be a good idea and since

[Anthony] had tne clients he saw no problems in

i ee ee oe — - ee eee - - _——.. i — ——

establishing the business." Weisert further stated "[Neil
Pacilio] told us that we had his okay." Weisert testified
that he told Neil Pacilio that he would provide the

money on or about August 22. The jury at trial

disbelieved Weisert's account of his conversations and

acquitted Neil Pacilio.

On August 3, 1977 the private discussions of
Weisert and Anthony Pacilio continued. Anthony Pacilio
told Weisert that when Alamo Transportation closed, he
(Weisert) "would be working with Neil Pacilio and
Anthony Pacilio." Thereafter, conversations continued
between Anthony Pacilio and Weisert on August 15,
August 18 and August 25, 1977 respecting the
operation. In the August 25, 1977 conversation, Weisert
stated that he had not as yet secured the $5,000.
needed to finance the venture. The following day,
Anthony Pacilio inforr.ed Weisert that he (Weisert) was

"now with the...Pacilio group." The jury verdict

“acquitting Neil Pacilio indicates that the Pacilio group

consisted only of Weisert and Anthony Pacilio, if at all.

On August 30, 1977 Weisert and Anthony Pacilio
again met to discuss the operation. Weisert. continued
to press Anthony Pacilio for a meeting with petitioner.

Weisert indicated that he would not provide the money

-10-

unless Anthony Pacilio was able to stage such a

meeting. In his desperation to secure Weisert's money,
Anthony Pacilio stated to Weisert that he had managed
to arrange a meeting with petitioner.

On September 6, 1977 Weisert was introduced to
petitioner by Pacilio. The meeting was to be carefully
structured by Pacilio, who knew that petitioner had no

interest in the scheme. Prior to the meeting, Pacilio

told Weisert that he was noi to discuss loansharking

with petitioner. Weisert was equipped with a recording

device, which was attached to his body. A portion of
Weisert's conversation with petitioner was recorded and

played at the prior trial. Weisert claimed that the

conversation was not recorded in its entirety because

the recording device malfunctioned. The recorded

portions of the conversation were in no_ sense
inculpatory. Weisert testified as to the alleged
substance of the unrecorded portions of the
conversation. He stated:

DiGilio told me I should stay
close to [Anthony ]...where we could
earn some money properly...i told
Mr. DiGilio that from now on I
would be with [Anthony] and when I
told this to him, he said that if I
cared to be.

On September 7, 1977 Weisert again met with

Anthony Pacilio. Weisert subsequently gave Pacilio $40
to finance an extension of credit. The following day,
Weisert supplemented that amount with an additional
$2,460. Weisert had further discussions exclusively with
Anthony Pacilio on September 12, September 14,
September 15, September 16, September 18, September
20, September 21, September 23, September 26 and
September 28. Subsequent to the conversation on
September 28, the undercover operation ended and

Pacilio was placed under arrest.

at 2s

REASONS FOR GRANTING THE WRIT

CERTIORARI MUST BE GRANTED
TO PERMiT THIS COURT TO
ESTABLISH A RULE OF LAW
RESPECTING REMEDY OF A
PROSECUTOR'S MISINSTRUCTION
OF THE GRAND JURY AS TO
CONTROLLING PRINCIPLES OF
LAW IN A_ FASHION WHICH
MISLEADS THE GRAND JURORS
INTO THE BELIEF THAT WHOLLY
LAWFUL CONDUCT IS CRIMINAL.

The issue presented to this Court is the
appropriate remedy where a clearly misinstructed grand
jury has returned an indictment. Specifically, the grand
jury herein was misinstructed that title 2A mandated
indictment of petitioner upon a prima facie showing
that he entered into an agreement with Weisert to
commit a crime. Weisert was at all times acting in the
capacity of an undercover police operative and had no
intent to cornmit any crime. See State v. Porro, 153
N.J. Super. 179, 184 (App. Div. 1977); State v. Wilson,
183 N.J. Super. 86, 94 (Law Div. 1981). It is conceded
by all parties that this instruction was incorrect and
misstated applicable law. When this matter was
presented to the grand jury, it was the law in New
Jersey that an individual could not legally conspire with

an undercover police operative, who merely feigned

agree'-ent. See State v. Mazur, 158 N.J. Super. 89

13.

(App. Div. 1978), certif.den. 78 N.J. 399 (1978). On the

basis of the prosecutor's misinstructions as to the law,
the grand jury returned an indictment charging that
petitioner conspired with the undercover police

operative. The indictment to that extent does not

charge an offense. It cannot now be deterinined

whether the grand jury would have returned any
indictment had it been informed that neither petitioner
nor Anthony or Neil Pacilio could legally be charged
with entering into a conspiratorial agreement with
Weisert.

The indictment is palpably defective and as a
matter of law must be dismissed. The State courts
erred in denying petitioner's motions for dismissal on
this ground. See State v. Ferrante, 111 N.J. Super. 299,
304 (App. Div. 1970). The error of the State stervis
from the absence of any staternent of law within New
Jersey jurisprudence respecting the proper analysis and
femedy for misinstruction of a grand jury. This Court
must act to ensure that both State and federal courts
are provided an analytical framework for review of this
issue. A proper analysis below would have resulted in
dismissal of the indictrnent. Courts must effectuate the

absolute right to a grand jury finding of probable

«ti.

cause. The grand jury is interposed between a putative

defendant and the State. It has a duty to guard against
unsupported indictrents. A court nay not negage that
function by resort to wholesale substantive :nodification
of an indictinent. Such a modification, like a
prosecutor's rnisinstructions, precludes a grand jury frorn
serving its tirne-honored function. Stated somewhat
differently, just as a court may not dismiss an
indictment supported by adequate evidence on the
ground that it disputes the quality of the evidence, it
may not sustain an indictrent which is predicated upon
a well-defined misinstruction which led the grand jury

to believe that wholly lawful conduct was crirninal.

i.
The Trial Court's Opinion

The lower court's first opinion was rendered in
this matter on November 7, 1983, eight tronths after
petitioner filed his motion to dismiss. The Court was
awaiting a decision in State v. Anthony Pacilio, Docket
No. A-15-05-81T4. The Appeilate Division reversed
Anthony Pacilio's conviction. That Court did not address
the grand jury irisinstruction issue. It reversed due to
repetition of the misinstruction to the petit jury. In
denying petitioner's motion, the trial court stated:

my

[Petitioner] argues based upon
Mazur and Pacilio that’ the
indictment in the present case is
fatally defective and must be
dismissed...1 do not agree...The
Appellate Division in Pacilio did not
dismiss the indictment but rather
reversed the conviction and
remanded the case back for a new
trial. At no point is the conclusion
reached that the indictment is
fatally defective. Rather, the
interpretation I draw from Pacilio is
that with proper instructions, the
indictment could be submitted to a
petit jury.

In its consideration of this issue, the trial court

did not perceive that the issue as to grand jury

misinstruction was not before the Pacilio Court.

Accordingly, we sought a rehearing because the trial
court erred in its reading of the Pacilio opinion. The
trial court had also failed to offer any guidance of its
own as to resolution of the grand jury misinstruction
issue. In denying our motion for a rehearing, the trial
court stated:

The argument that the Grand Jury

: may have been instructed
(incorrectly) with regard to whether
or not there could be conspiracy
with an undercover police officer to
any mind misses the
mark...Regardless as to the principle
of law which could be considered -
which was governing at that time -
I find that defendants are not
prejudiced, that their cases can be
fairly heard by a jury upon proper
instructions...

‘tithe

Thus, the trial court ruled that a criminal defendant

has no right to a correctly instructed grand jury.

ii.
The Constitutional Right To Indictment
The purpose of an indictment is to provide the
defendant with notice of charges against him in order
that he may prepare a defense, to effectuate the Fifth
Amendment's double jeopardy provision and to shield an
accused from unwarranted and unfounded charges of

involvement in serious crirres by interposing the

independent judgrent of the grand jury. United States

v. Radowitz, 507 F.2d 109 (3 Cir. 1974); State v. Wein,
80 N.J. 491, 497 (1979). No man may be brought to
trial for crime unless a grand jury shall first find
sufficient cause for a charge. And, the indictr-ent must
allege all essential facts of the crime. State v. LaFera,
35 N.J. 75 (1961); See, State v. Senno, 79 N.J. 216, 233
(1979); State v. Dorsey, 65 N.J. 428, 434 (1974); Stae v.
Macuk, 57 N.J. 1, 8 (1970); State v. Ownes, 54 N.J. 153,
161 (1969), cert. den. 396 U.S. 1021 (1969); In re Buehrer,
50 N.J. 501, 512 (1967). Simply put, it is the duty of the
grand jury to determine whether a crime has been
committed. State v. Reynolds, 166 N.J. SUper. 570, 575
(Law div. 1979); State v. Price, 108 N.J. SUper. 272,

+ a

276-2777 (Law Div. 1979). Further, it should be
emphasized that an indictment is not amendable by a
court to charge an offense not found by the grand jury,
either by substitution of offenses or to supply
substantive oissions. State v. Grothman, 13 N.J. 90,
95 (1953).

In State v. Wein, supra at 501, the New Jersey
Supreme Court emphasized that "a person criminally
accused is entitled...to be charged with crime only by a
grand jury." In Wein, in a concurring opinion, Justice
Pashman stated that "no doubt [should] exist...as
to...whether the grand jury found probable cause as to
each...offense [in the indictment]." 80 N.J. supra at
502. See State v. Wagner, 180 N.J. Super. 5€5, 568
(App. Div. 1981); State v. Lawrence, 142 N.J. Super.
208, 215 (App. Div. 1976). Similarly, in State v. Wolden,
153 N.J. Super. 57, 60 (App. Div. 1977), the Court
stated that a defendant may not be tried “on proof of
a different offense from that charged and purported to
have occurred by the State's indictment and proffer of

proof [to the grand jury ]."

iii.
Conspiracy Law Under 2A
«4@e

The gist of the critne of conspiracy under Title
2A is an unlawful agreement between two or more
persons. State v. Furey, 128 N.J. Super. 12, 23 (App.
Div. 1974). The crime of conspiracy requires an actual
agreement to commit the substantive crime. State v.
Madden, 61 N.J. 377, 394 (1972) (emphasis added). Even
where the object of the conspiracy is unattainable, the
fact that parties agreed to cornmit a crime renders
thern subject to prosecution for conspiracy. State v.
Mazur, 158 N.J. Super. 89, 99 (App. Div. 1978). It is
not necessary that there be direct contact between all
the parties to the conspiracy, nor need they all enter
into it at one time. It is not even required that
members of a conspiracy have even heard of each
other. State v. Louf, 126 N.J. SUper. 321, 339 (App.
div. 1973), aff'd in part and rev'd in part 64 N.J. 1782
(1973). The commission of an overt act is an essential
element of the crime of conspiracy under Title 2A and
an integral part of a conspiracy indictrent. State v.
Wein, supra. The overt act required to establish liability
must represent a substantive element of the crime and
is not a mere evidential requirement. State v Newell,

152 N.J. Super. 460 (App. Div. 1977).

iv.

-19-

The Opinion In State v. Mazur

In State v. Mazur, supra, the Appellate Division
considered whether an individual may properly be
convicted of conspiracy with an undercover police
operative. In Mazur, the court failed to instruct the
petit jury that it could not find the defendant guilty
under Title 2A of conspiring with an undercover police
operative. The Mazur Court stated that such a failure
was plain error and established the appropriate remedy
as reversal of the conviction. In Mazur, as part of its
instructions to the jury, the court read the substance
of an indictment which was structured in the sare
fashion as that in the instant case. 158 N.J. Super. at
94 The defendant in Mazur did not challenge the
misinstructions provided to the grand jury and sought no
pre-trial relief. Accordingly, that defendant was tried
on the basis of an indictment which was founded upon
the legal misconception that the law of conspiracy
enconipassed imaginery agreements with undercover
police. Just as in the instant case, the indictrnent in
Mazur stated that the defendants and an undercover
opertive conspired to commit a Title 2A crine. Id.
Thus, the grand jury therein clearly was misinstructed

as to the law. The trial court's instructions, issued to

-20-

the petit jury subsequent to the reading of the
indictrrent, consistent with the misinstruction of the
grand jury, stated "the State must only prove that the
defendant conspired with someone else to commit that
crime." Id. The defendant in Mazur also failed to
object at trial to the charge given to the petit jury.
id. On appeal, the defendant therein challenged the
instruction on the ground that "the...misinstructions
permitted the jury to find [him] guilty of conspiracy if
it found that [he] agreed with [the undercover
operative] to commit the substantive offense." Id. The
Mazur Court framed the issue as:

whether defendant could be found

guilty of conspiracy with [the

undercover operative] who was a

government agent at the time and

thus never formed an intent on his

part to enter a conspiratorial

relationship and never agreed on his

part to embark on a criminal

enterprise." [158 N.J. Super. supra

at 96)
The Court in Mazur ruled that "in New Jersey one inay
not be convicted of conspiracy where the co-conspirator

is a police agent who never intended to enter into a

crin-inal agree nent." 158 N.J. Suer. supra at 97.

21.

In concluding that the error mandated reversal of
the conviction, the Mazur Court focused upon whether
there existed a possibility that the jury believed that it
could convict the defendant upon a finding that he
conspired with the undercover operative. The Court
stated:

While it is true that the jury might
have held defendant guilty of
conspiracy with Nicastro alone, it is
impossible to know whether the
conspiracy conviction was, in fact,
so founded. The point is that under
the court's charge the jury could
have found that he conspired with
[the agent] alone. Further, the
great preponderance of the evidence
adduced below relates exclusively to
conversations between Cohn and
defendant. Thus, it seems quite
likely that the jury found that
defendant conspired with Cohn. [158
N.J. Super. supra at 102]

Having found that the instruction permitted a finding of
guilt of conspiracy with the agent, the court ruled it to
be plain error "since the court's charge would permit
defendant's conviction with a person with whom he
could not, under our present statutes and governing
decisions, be cnvicted." 158 N.J. Super. supra at
102-103. Cf. Sears v. United States, 343 F.2d 139, 142
(5 Cir. 1965).

ve

22.

The Misinstructions To The Grand
Jury Upon Which The Indictment Is
Based Are Violative Of Due Process
And Mandate Dismissal Of The
Indictment.

Title 2A required that any finding as to the
existence of a conspiracy be based upon a
demonstration of a "shared objective" among all the
alleged conspirators. State v. Mazur, supra at 99. That
rule of law precluded indictment or conviction on the
basis that an individual conspired with an undercover
police operative, who merely feigned an agreement. Id.
at 101. In the instant case, the grand jury was
misinstructed as to the law and led to believe that it

was required to indict petitioner if it found that he

agreed with Weisert to comrmit a crime. That

risinstruction, in effect, required that the grand jury

indict petitioner for wholly innocent conduct.

In State v. Newell, 152 N.J. Super. 461, 464 (App.
Div. 1977), the Appellate Division considered an
indictrrent which did not allege sufficient facts to
indicate that the grand jury was properly informed as
to all of the elements of the offense. In this case, the
indictrnent alleges sufficient facts to indicate that the
grand jury was clearly misled into charging a

non-offense, viz. a conspiracy with Weisert. The Newell

o23~

Court stated that an indictment must allege all the
essential fcts of the crime charged. Id. at 466. And,

the omission of an essential elernent cannot be supplied

by inference or implication, or left to intendment. Id.

The State argued in Newell that the conspiracy count
could be coupled with a substantive count for analytical
purposes as part of the determination as to whether the
grand jury found all of the elerents of the conspiracy.
The Newell Court disagreed stating that an accusation
may not "be in part made by the court, and in part by

the grand jury." Id. at 467. An indictment must be

exclusively returned by the grand jury. Id.

In the instant matter, in order to correct the
error in the face of the indictment, the court would
have to subtract as opposed to add facts. Specifically,
the court would be required to remove Weisert as a
conspirator thereby altering the offense (actually a
non-offense) found by the grand jury. Such would
constitute a blatant violation of due process and equal
protection, in addition to a violation of the general
right to indictment. A court may not supplant itself for
the grand jury by substantively amending an indictment.
In this context, the Newell Court stated:

It is fundamental in the
constitutiorial limitation that an

indictment is not amendable by the
oft.

court to charge an offense not
found by the grand jury, either by
substitution of offense or to supply
substantive omissions. [152 N.J.
Super. supra at 467]

As is reflected by the overt acts set forth in the
indictment, the exclusive evidence proffered to the
grand jury as to petitioner's liability was a conversation
in which he engaged with the undercover agent. This
Court rust fashion a remedy for the obvious prejudice
stemming from the fact that the grand jury was
misinstructed that it was required to indict »retitioner
upon a finding that a conspiratorial! agreement was
struck between he and Weisert. The conduct of
petitioner was wholly innocent and the indictment
therefore is palpably defective and should have been
dismissed by the trial court. See United States v.
Dansker, 537 F.2d 40 (3 Cir. 1976), cert. den. 429 U.S.
1038 (1977); United States v. Brown, 555 F.2d 407 (5
Cir. 1977). The basis of the trial court's opinion is that

"with proper instructions the indictment can be

presented to a petit jury.” That rationale bears no

relationship to denial of due process and equal

protection at the grand jury stage. The court ruled that

the grand jury process, in effect, is a mere forrrality.

High regard is accorded to a "defendant's valuable right

i . e

not to be held to answer for a criminal offense unless
on presentment or indictment of an [independent] grand
jury." State v. Chandler, 98 N.J. Super. 241, 245 (Cty.
Ct. 1967); See State v. Brown, 188 N.J. Super. 656, 671
(Law Div. 1983); Cf. State v. Weleck, 10 N.J. 355
(1952); State v. Drayton, 23 N.J.L. 49 (Sup.Ct. 1850).
Thus, an indictment is null and void where the grand
jury by virtue of misinstruction has been deprived of
its independence. If a prosecutor is permitted to frame
the law in any fashion which he chooses, he may
completely dominate the grand jury. and render it a
nugatory process. The sole means to avoid such
prosecutorial abuse is by formulation of a rule that a
tainted indictrrent voids a prosecution ab initio.

So too, we stress that if courts are permitted to
amend indictments to charge offenses not found by the
grand jury, the court becomes the grand jury. The

grand jury herein found a conspiracy in which Weisert

was the common link. Therefore, the grand jury did not

charge an offense due to the _ prosecutor's
misinstructions. No new charge may be constructed by a
court or prosecutor. See, United States v. Cryan, 490
F.Supp. 1234 (D.N.J. 1980), aff'd 636 F.2d 1211 (3 Cir.
1980). Cf. United States v. Crocker, 568 F.2d 1049,

« 260

NN 2 RN tee COE Net ented a

1059-1060 (3 Cir. 1977) (Court and prosecutor may not
usurp the constitutionally guaranteed role of the grand
jury); United States v. Goldstein, 562 F.2d 526, 531 (3
Cir. 1974) (Only grand jury may amend charges); United
States v. DeCavalcante, 440 F.2d 1266, 1271, 1272 (3
Cir. 1971) (Indictment must remain the same one as
brught by grand jury and tnay not become through
interpretation, the indictment of the prosecutor or the
court); United States v. Silverman, 430 F.2d 106, 110 (2
Cir. 1970) (Indictment may not be amended without
re-submission to grand jury). This Court must grant
certiooari to facilitate formulation of a just and fair

rule.

es

CONCLUSION

For the foregoing reasons, we respetfully request

that this Court grant certiorari.

Respectfully submitted,

‘ee

ALAN DEXTER BOWMAN
ATTORNEY FOR PETITIONER

ALAN DEXTER BOWMAN
OF COUNSEL AND ON THE PETITION
MICHAEL A. QUERQUES

OF COUNSEL

«2a.

APPENDIX

la

NOT FOR PUBLICATION WITHOUT THE APPROVAL

SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION

November 7, 1983

John J. Sheehy, Esq.

Deputy Attorney General
Departiment of Law & Public Safety
Division of Criminal Justice

25 Market St.

CNo86

Trenton, New Jersey 08625

Alan Dexter Bowman, Esq.
| Palmer Square
Princeton, New Jersey 08540

Michael A. Querques, Esq.
433 Central Ave.
Orange, New Jersey 07050

Re: State of New Jersey v. John DiGilio
Docket No. SGJ-43-77-3

Gentle-nen:

The defendant was indicted by State Grand Jury
Indictinent No. SGJ43-77-3 charging that he together
with a Neil Pacilio and Anthony Pacilio, Jr, ‘as
defendants together with Robert Weisert, a state police
detective acting in an undercover capacity, conspired to
engage in the crime of loansharking. The indictment
indicates that Weisert, pursuant to the demands or the
requests of Anthony and Neil Pacilio, provided money

to Anthony Pacilio to facilitate the loansharking

2a

operation. Prior to that time Anthony Pacilio and
Weisert conversed with regard to the operations to be
conducted and whether or not Pacilio had "the okay" to
go into the business. The "okay" was allegedly to be
given by the defendant DiGilio. Thereafter, at a
subsequent meeting Anthony Pacilio told Weisert that
he had permission from “Johnny” (ostensibly the
defendant) to go into the business and that $300 a
week would have to be paid to DiGilio in order to
operate.

Eventually, at the pressuring of Weisert, Pacilio
arranged a rreeting with DiGilio at Certo's Tailor Shop
in Secaucus, New Jersey. Allegedly, at that meeting
DiGilio made certain incriminating statements.
Thereafter, monies were paid and still more demanded
prior to the arrest of all defendants.

The defendant's first and rost forceful point is
his contention that the indictment must be dismissed
because the Grand Jury was misinformed as to the law
of conspiracy.

The indictrent sets forth that,

ANTHONY PACILIO, JR., JOHN J.
DI GILIO a/k/a THE OTHER GUY
and NEIL PACILIO. herein named as
defendants, and Robert Weisert, a
detective in the New Jersey State
Police acting in an undercover

capacity and using the name Bobby
Hesse, between on or about the sth

AE nt a ete

3a

day of July, lo77 and on or about
the 28th day of September,
1977...within the jurisdiction of this
Court, knowingly. willfully and
unlawfully did conspire, confederate
and agree to engage in the business
and making loans and forbearances
of money at a rate of interest
exceeding 50% per annum and at
the equivalent rate for longer and
shorter periods while not being
—" or permitted by law to
© $0...

It was further part of the said
conspiracy that JOHN DI GILIO
would permit ANTHONY PACILIO,
JR., NEIL PACILIO and Det. Robert
Weisert to engage in the business of
raking loans and charging interest
at a rate exceeding 50% per annum
and at the equivalent rate for
longer and shorter periods;

It was further part of the said
conspiracy that after the business of
making loans at a rate of interest
exceeding 50% per annum and at
the equivalent rate for longer and
shorter periods, was established and
underway, JOHN DI GILIO, NEIL
PACILIO, ANTHONY PACILIO, JR.
and Det. Robert Weisert would
divide any profits from said business
airong themselves.

Among the seven overt acts listed, the only one
involving the defendant stated the following:

3) On or about September 6, 1977, in an
autorobile travelling in the town of
Secaucus and in the City of
Bayonne, in the County of Hudson,
JOHN DI GILIO, ANTHONY
PACILIO, JR., and Det. Robert
Weisert did meet and have a
conversation.

4a

The indictment against defendant, Anthony Pacilio,
Jr. and Neil Pacilio, was returned on March Il, 1978.
Later the same ‘month, specifically, March 29, 1978, the
Appellate Division decided State v. Mazur, I58 NJ.
Super. 92 (App. Div. 1978), certif. den. 78 N.J. 399
(1978) which held that an individual could not legally
conspire with an undercover police operative. In Mazur,
the Appellate Division followed the majority rule on
the subject including State v. Collins, lzo N.J. Super.
48 (Law Div. 1972) and declined to follow State v.
Lavarty, Is2 N.J. Super. 413 (Law Div. 1977). Indeed,
Mazur held that to instruct the jury that it could
convict the defendant of conspiracy if it found that he
agreed with a governrent informer to engage in a
crime was plain error.

Defendant DiGilio remains untried by virtue of his
contentions that he is physically unfit to participate in
a trial. However, defendant Anthony Pacilio, Jr. and
Neil Pacilio were tried by a jury , the result being that
Neil Pacilio was acquitted and defendant Anthony
Pacilio, Jr. was convicted. However, on appeal
defendant Anthony Pacilio, Jr. argued that it was plain
error for the Court to fail to instruct the jury that the
defendants could not be convicted on a finding that he

is, ices, Anthony Pacilio, Jr., conspired with Det.

5a

Weisert. The Appellate division re-affir~ed State v.
Mazur, supra, and decided that the plain error rule was
to be invoked, thereby mandating a reversal of Anthony
Pacilio, Jr.'s conviction. State v. Pacilio, | N.J. Super.
__ (App. Div. 1983) (Decided July 20, 1983), certif. den.,
__N.J. __ (October 31, 1983).

Defendant argues based upon Mazur and Pacilio
that the indictment in the present case is fatally
defective and must be dismissed. That is, the argurent
is that the Grand Jury, just as the Petit Jury, was
misinstructed that a defendant could be charged with
conspiring with Weisert. However, I do not agree.

An analysis of Pacilio does not yield the result
sought by defendant. In explaining its rationale for its
finding of error by the trial court, the Appellate
Division stated that,

The trial judge failed to caution the
jury that it could not convict the
defendant merely on the basis of his
agreement with Det. Weisert. The
evidence was compounded by the
fact that most of the evidence
adduced during the trial related
solely to conversations between the
defendant [Anthony Pacilio. Jr.} and
Weisert. In failing to instruct the
jury that the defendant could not be
convicted of conspiring with
Weisert, who not only had no
intention to commit the crime of
loansharking but intended _ to
frustrate the commission of such a

crime, the trial judge committed the
type of error which could lead to

6a
an unjust result and therefore
constitutes plain error. (Emphasis
added). }

The Appellate Division in Pacilio did not dismiss
the indictrrent but rather reversed the conviction and
remanded the case back for a new trial. At no point is
the conclusion reached that the indictment is fatally
defective. Rather, the interpretation | draw from
Pacilio is that with proper instructions the indictrent
could be submitted to a Petit Jury. Indeed, a
reasonable jury could find that there was conspiracy
between Anthony Pacilio, Jr. and defendant wherein
defendant gave his "approval" to the establishment of a
loansharking operation, an act which in itself would
constitute a conspiracy. Therefore, the application of
the defendant to dismiss the indictment on the basis
asserted is denied.

The second argument submitted by defendant is
that the investigative methodology utilized by the State
violated the defendant's rights of due process. | find
absolutely no basis in these contentions for disrrissal of
the indictment. Even assuring the argunents made by
defendant, | find that there was not entrapment under

existing law. See, e.g., State v. Talbot, 7] N.J. l60,

7a

167-68, 176; State v. Molnar, 81 N.J. 475, 484 (l980).
See also, Hampton v. United States, 425 U.S. 484
(1976).

The next contention of the defendant is that the
prosecution committed rank misconduct and corrupted
the Grand Jury process by procuring Grand Jury
minutes respecting the testirony of Anthony Pacilio by
an exparte order to enable the prosecution to prep
Robert Weisert as a rebuttal witness. | see no basis in
law or in fact that this be an appropriate reason for
dismissal of the indictrent. Moreover, reliance upon In
Re Isth Essex County Grand Jury, Ill N.J. Super. 564,
568 (App. Div. 1970) is misplaced since that case does
not hold that it is misconduct for a prosecutor to
permit an investigating officer as a rebuttal witness to
inspect Grand Jury minutes. Moreover, the holding does
not even require the prosecutor to give notice when
transcripts are ordered during Grand Jury proceedings
and retained by the prosecutor.

The defendant argues that he should be permitted
to cross-examine Det. Weisert at trial with regard to
his involvement in an unrelated civil matter on the
basis of his bias and interest in the outcome of this
litigation. I find this application to be premature. It is

more properly to be made at trial. Similarly, the

-_—- oe + ww -

8a

application to strike Neil Pacilio fror the indictrent
due to his prior acquittal is a matter to be handled by
the trial court at the time of trial.

The defendant further moves under R.|I:l2 that |
disqualify ryself from this case on the basis that I
previously served as Prosecutor of Morris County.
However, I terminated my service in that position in
April, 1977, approximately one year prior to the
indictrent against defendant. Moreover, both the
investigation and preparation of the case was by the
Attorney General. In no way did my office participate
to my knowledge. I see absolutely no basis upon which
I cannot sit on pre-trial applications or as trial judge
if | ar: called upon to do so.

Various miscellaneous motions are made by
defendant that rust be treated. First, he contends that
evidence should be admitted that he suffered froim a
mental disease or defect so as to negate the mens rea
attendant to the offense charged in the indictment.
This is a matter which should properly be addressed to
the trial court. This court has had absolutely no
showing sufficient to decide the point. Defendant then
claims that his right to a fair trial and to counsel were

violated due to the seizure of certain materials by

9a

federal agents. This matter was previously dealt with.
and in any event it is unsupported by the papers
attendant to this motion.

Defendant next argues that absent evidence as to
the extension of a loan there is an insufficiency of
evidence to support the proposition that he conspired to
engage in the business of loansharking. I find that this
argurent has no basis in law. It is hornbook law that
the crime of conspiracy is distinct from the substance
of offense corimitted pursuant to that conspiracy. See,
e.g. State v. Cormier, 46 N.J. 494, 501 (1966).
Furthermore, if the State's proof is indeed accepted,
there would be a basis upon which to find the crive of
conspiracy although no loans in fact were committed.
See, e.g., State v. Travis, 133 N.J. Super. 326, 322
(App. Div. 1975).

In summary, the applications to dismiss the
indictment are all denied. The other points raised by
defendant are to await presentation at the time of

trial.

Very truly yours,

Donald G. Collester, Jr.
P.J.JD.R.C. t/a

DGC:jh

10a

ORIGINAL FILED ON FEBRUARY 21, 1984

IRWIN I. KIMMELMAN
ATTORNEY GENERAL OF NEW JERSEY
ATTORNEY FOR PLAINTIFF
BY: THOMAS J. CHIRICHELLA, JR.

DEPUTY ATTORNEY GENERAL

DIVISION OF CRIMINAL JUSTICE

STATE GRAND JURY LITIGATION SECTION

CN 085

TRENTON, NEW JERSEY 08625

(609) 984-4461

SUPERIOR COURT OF NEW
JERSEY,

MORRIS COUNTY - LAW
DIVISION

INDICTMENT NO. SGIJ43-77-3

Criminal Action

ORDER DENYING
DEFENDANT'S
PRETRIAL MOTION TO
RECONSIDER DENIAL
. OF A MOTION TO
DISMISS THE
INDICTMENT.

STATE OF NEW JERSEY,
Plaintiff,
Ve
JOHN J. DIGILIO, et al.

Defendants.

This matter having been presented to the court on

January 27, 1984, by Michael Querques, Esq., and Alan

lla

D. Bowman, Esq., attorneys for defendant John J.
DiGilio, and Philip B. Papier, Jr., Esq., attorney for
defendant Anthony Pacilio, with Thomas J. Chirichella,
Jr., Deputy Attorney General, appearing on behalf of
the State of New Jersey, Irwin I. Kimmelman, Attorney
General, and the court having reviewed the subrritted
papers and listened to the argurrents of counsel;

It is on this 2lst day of February 1984

ORDERED that defendants' motion for
reconsideration of this court's denial of a motion to
disroiss Indictment No. $GJ43-77-3 is denied for the
reasons set forth in the court's oral opinion of January

27, 1984.

Donald G. Collester, Jr. P.J.F.P.

Papers Considered

x Notice of Motion

Movant's Brief

Movant's Affidvits

Answering Brief

Answering Affidavits

Cross Motion

Movant's Reply

Other - oral arguyent and post ‘notion papers

Pad

~<

12a

ORDER ON MOTIONS/PETITIONS

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION

DOCKET NO. AM-633-83T5
MOTION NO. M-3020-83

BEFORE PART G

JUDGES: COLEMEN

GAULKIN
SHEBELL
STATE OF NEW JERSEY
vs
JOHN DIGILIO
MOVING PAPERS FILED MARCH 19, 1984

ANSWERING PAPERS FILED

DATE SUBMITTED TO COURT APRIL 25, 1984
DATE ARGUED

DATE DECIDED APRIL 30, 1984

ORDER

THIS MATTER HAVING BEEN DULY PRESENTED
TO THE COURT, IT IS HEREBY ORDERED AS FOLLOWS:

MOTION FOR LEAVE GRANTED DENIED OTHER
TO APPEAL x
SUPPLEMENTAL:

FOR THE COURT,

s/ J.H.C., JR.
JAMES H. COLEMAN, JR.,
J.A.D.

WITNESS, THE HONORABLE JAMES H. COLEMAN, JR.,
JUDGE OF PART G, SUPERIOR COURT OF NEW JERSEY,
APPELLATE DIVISION, THIS 30 DAY OF APRIL, 1984.

ELIZABETH MCLAUGHLIN
CLERK OF THE APPELLATE
DIVISION

13a

ORIGINAL FILED IN SUPREME COURT ON OCTOBER I8, 1984

SUPREME COURT OF NEW JERSEY
M-lol7 SEPTEMBER TERM 1983
22,684
STATE OF NEW JERSEY,
Plaintiff-Respondent, : ORDER
vs.

JOHN DIGILIO,

Nefendant-Movant.

This matter having been duly presented to
the Court. it is ORDERED that the motion for
reconsideration is granted; and it is further

ORDERED that the motion for leave to

appeal is denied.

WITNESS, the Honorable Robert L. Clifford,
Presiding Justice, at Trenton, this l6th day of October,

1984.

STEPHEN TOWNSEND, Clerk

—_— - — —_

14a

ORIGINAL FILED DECEMBER 13, 1984
SUPREME COURT OF THE UNITED STATES
NO. A-460
JOHN DIGILIO, Petitioner
Vv.

NEW JERSEY

ORDER EXTENDING TIME TO FILE PETITION
FOR WRIT OF CERTIORARI

Upon consideration of the application of counsel
for petitioner,

IT 1S ORDERED that the time for filing a
petition for writ of certiorari in the above-entitled
cause be, and the same is hereby, extended to and
including January 5, 1985.

/s/ William J. Brennan, Jr.
Associate Justice of the

Supreme Court of the United
States

Dated this 13th
day of December, 1984.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1992%3A1. Public record. Not legal advice.