# Petition for a Writ of Certiorari — Iannelli v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 980

## Text

JUL 21 1972

) y In The

s for
Supreme Court of the Hnited

October Term 1972

ICHAEL RCD.-K, JR.,CLER

No. 72 —

2-117

JOHN IANNELLI,

Petitioner,

v8.
UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

IRVING ANOLIK
Attomey for Petitioner
225 Broadway
New York, New York 10007
732 - 3050

(5233) LUTZ APPELLATE PRINTERS, INC.
Lew and Financie! Printing

South River, N.J. New York, N.Y. Philadelphie, Pe. Washington, D.C.
257-6850 (212) 565-6377 (215) 563-5587 (202) 783-7288

TABLE OF CONTENTS
Page
Statement ee ee es ee ee

Opinion Below e e . J e e o e ° e . . s . as . 2
Jurisdiction e 7 e . e _ e e . J e o o . e J 2
Questions Presented cee ene es @ ean 2

Constitutional and Statutory Provisions
Involved e eo o eo e e e e e . e es = e e & e 2

Statement of the Case ‘ttt eteececnes *
Argument:

Point I. Since the main Government
witness, Michaels, exonerated peti-
tioner and no other testimony in-
culpated him, it is submitted that the
Court should have directed an acquit-
tal as requested by counsel. ... cece 10

Point II. The petitioner was prejudiced
as a matter of law by the unexplained
delay of almost five years between
the time the Government learned of
the facts constituting the crime, and
the indictment. Both the Fifth and
Sixth Amendments were thus offended
and prejudice should be presumed. ... 13

Conc lusion oro eee ew ewe we ee soeee fe @ @ 23

tt

Contents
Page
Table ef Citations

CASES CITED:
Baker v. Wingo, _ U.S. ___, (decided
June 22, 1972) 11 Cr. L. 3174 ...... 19

Dickey v. Florida, 398 U.S. 30, 50-52
(1970) * . e . . e a . co e * e a e e e s o 14

Godfrey v. United States, 358 F.2d 850,
852 (D.C. Cir., 1966) = e * * * e J e * - 16

Hanrahan v. United States, 348 F.2d 363
(D.C. Cir. 1965) ee 6 e ee o € e eee 18

Hodges v. United States, 408 F.2d 543
(8 Cir. 1969) e = e o e as e e e e o e e 19

Johnson v. Zerbst, 304 U.S. 458, 464
(1938) e e e 2 e e e o e o © . . _ e e e e 14

Klopfer v. North Carolina, 386 U.S. 213

(1967) o e e e se e = e . s ow e e = — e - e 13
Lelles v. United States, 241 F.2d (9 Cir.

1957), cert. denied 353 -U.S. 974 oeeee ll

Lewis v. United States, 420 F.2d 1089 (10
Cir. 1970) e e ° e e e e e e * e es e 7 s e 1l

Lustman v. United States, (2 Cir. 1958),
258 F.2d 475 . . 2 . e s e e oa e e e e e * o 18

Mann v. United States, 304 F.2d 394, 396-
397 (D.C. Cir. 1962) .......--+- 13,16

ttt

Contents

Page
McMillan v. United States, 399 F.2d 478,

479 (5 Cir, 1968) * ee e*eee * * * 2 e* ¢@ 11

Montoya v. United States, 402 F.2d 847
(5 Cir. 1968) a _ . e . e e - - e a —_ — @ a 1l

Nickens v. United States, 323 F.2d 807
(D.C. Cir. 1943) e eeeeee e ee * eee 16

People v. Minicone, 28 N.Y.2d 279, cert.
denied a U.S, jm 1971 e aa a o e e e e 14

People v. Winfrey, 20 N.Y.2d 138, 141. . 14,17

Picciurro v. United States, 250 F.2d 585
(8 Cir. 1958) @ . e 3 J ” ee - e . ee os _ _ 11

Pollard v. United States, 352 U.S. 354,
361-362 (1957) eee eeeee ee 13, 15, 16

Regina v. Robbins, 1 CoxC.C.114 ... e- 15

Rodgers v. United States, 402 F.2d 830,
834, n, 2 (9 Cir. 1968) ......... 211

Ross v. United States, 349 F.2d 210 (D.C.
Cir. 1965) 7 a 2 o e o 7. e 7 eo o . e .

Simmons vy, United States, 406 F.2d 456 ©
(5 Cir, 1969) o e . _ - e e . + 7

Taylor v. United States, 238 F.2d 259
(D.C. Cir, 1956) e 7 eo e o - a e e e +

LPO ET PINE BI IE LB IT Co

£6 IEA GOIN PR OS BOS

ag eat

Contents

Page

Tomley v. United States, 250 F.2d 549
(5 Cir. 1958), cert. denied 356 U.S.

928 eeeeeeeee#eee# @ @ @ @© @ @ @ @ @ @ ll

United States v. Blanca Perez, (D.C. N.Y.
1970) 310 F. Supp. 550 ecoevseseseoe &

United States v. Carabbia, 381 F.2d 133,
138 (6 Cir. 1967) eeeeeeeoe«5uoeeeee#ee# 10

United States v. Dallago, (D.C.N.Y.1970),
311 F. Supp. 227, 231, 233 ........ 19

United States v. De Leo, 422 F.2d 487,
495 (lst Cir. 1970), cert. denied 397
U.S. 1037 eeeeeee#esrtsree#e#este#teteee @ 19

United States v. Godfrey, 243 F. Supp.
830, 831 (U.S. D.C., D.C. 1966) ...... 17

United States v. Mann, D.C.N.Y. 1968,
291 F. Supp. 268, 270-271 ........ 14

United States v. Manuel-Baca, 421 F.2d
781 (9 Cir. 1970), cert. denied 399 U.S.
933 e . e e ° e e e e - e e as e e e e e e e 1l

United States v. Marion, 40 U.S. L.W. 4092
(December 1971) eeoetovvvseses &

United States v. Marion, 404 U.S. 307
(1971) eee eeeteeaeeese « Oe

Contents

Page
United States v. Mark II Electronics of

La., Inc., (D.C. La. 1969), 305 F. Supp.

1280 J o e es ~ e * - e —_ o e e * e 7 * e e * 19

United States v. Provoo, 350 U.S. 857
(1955) i ee ne 13, 15, 16

United States v. Richardson, D.C. N.Y.
1968, 291 F. Supp. 441, 444-445 . cease

United States v. Rosengarten, 357 F.2d
263, 266 (2 Cir. 1966) .......... 10

United States v. Skinner, D.C. N.Y. 1969,
308 F, Supp. 122i eee e*eee ee ee . 14

United States v. Vuitch, 402 U.S. 61 .... 21
UNITED STATES CONSTITUTION CITED:
Fifth Amendment ...... 2, 13, 17, 20, 22
Sixth Amendment .... . 2,13, 16, 18, 19, 20, 22
RULES AND STATUTES CITED:

Fed. Rules of Crim. Proc.:

ES Se eae este ke a 2, 18, 19, 20, 21

Rule 29 + + 2 4606 e 8 ene eee
18 U.S.C. $371 cA 6 e 6-8 oe ole ee

A ee) ae . pai a Stata he
mee SEDO NGS IO 2

ERAN, SSN

Contents

18 VAL. §656 eo @6€ 6 4 6 66 6 8 @ ©

18 U.S.C. $3282 ee |

28 U.S.C. §1254(1) eee ee e e ze » e *

OTHER AUTHORITIES CITED:

2 Pomeroy,

Equity Jurisprudence, §§418,

419 (5 Ed. 1941) oeoe eee @ © © ©

2 Story, Equity Jurispurdence, §1526 (13

Ed. 1886)
5 Stan. L.

Rev. 95, 104, 1952 “Justice

Overdue — Speedy Trial for the Pre-
Trial Defendant” e e a o e * e e ° e e

APPENDIX

Judgment of Affirmance of the United
States Court of Appeals .......

Order
Opinion

a s,

In the

UNITED STATES SUPREME COURT
October Term 1972
No, 72-

JOHN IANNELLI,

Petitioner,
-vs-
UNITED STATES OF AMERICA,
Respondent,

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

Statement

Petitioner prays that a Writ of Certiorari
issue to review an order of the United States
Court of Appeals affirming the judgment of the
United States District Court for the Southern
District of New York convicting him of misappli-
cation of federally insured bank funds (18 U.S.C.
§656) and conspiracy to misapply such funds (18
U.S.C. $371).

a - Ne ta ae ee]
SNPS ZEST NIN es eT LET TS
— QOL
ROE TRIM . .
fa phat .

Opinion Belew

The opinion of the United States Court of
Appeals rendered the 22nd day of May, 1972,
appears as an appendix to this petition.

The jurisdiction of this Court is invoked under
28 U.S.C. $1254(1). The Court of Appeals for the
Second Circuit denied a petition for rehearing on
the 19th day of June, 1972. a

Questions Presented

1. Whether a deliberate delay in proceeding
to indictment of almost five years after the
Government learned of the facts relevant to the in-
dictment, constituted a violation of petitioner’s
rights to a speedy trial and to due process under
the Fifth and Sixth Amendments of the United
States Constitution?

2. Whether there was sufficient evidence as a
matter of law to have warranted a conviction in
view of the fact that the main Government witness
exonerated the petitioner?

Constitutional and Statutery
Provisions invelved

The Fifth and Sixth Amendments of the United
States Constitution and 18 U.S.C. §§371 and 656,
and Rule 48(b) F.R. Cr. P. are involved herein.

3

Statement ef the Case

The petitioner was indicted along with John
Tortora and Frank Squires, charged with the
aforesaid crimes. The case originates in 1965, at
which time petitioner, John lannelli, had a per-
sonal checking account and certain commercial!
loans Outstanding with the County Trust Company
in Yonkers, New York.

Walter J. Michaels, an Assistant Treasurer of
the bank, handled these loans on behalf of the bank.

The witnesses at trial, called by the prosecution,
failed completely to establish that petitioner, John
lannelli, had committed the crimes charged in this
case.

The main witness of the Government was Walter
J. Michaels, who was the Acting Manager of the
County Trust Company branch from which the
alleged misappropriation of moneys had occurred.
This witness, we submit, for the most part testi-
fied truthfully.

Since he was the main Government witness, it
is submitted that the prosecution necessarily
vouched for his credibility.

By dint of the testimony of Michaels, it is
manifest that Iannelli was exonerated rather than
inculpated. Paradoxically as this may appear to
be, it is nevertheless obvious from the record
that Michaels conceded that he was never asked
to misappropriate funds by Iannelli and that the
juggling of loans and accounts (taking from Peter
to pay Paul) was his own idea and not the sugges-
tion or solicitation of Iannelli.

4
Statement of the Case

The Court itself was hard pressed to deter-
mine whether or not it should grant a motion to
dismiss before submission to the jury. We main-
tain that the only fair result should have been to
dismiss the charges as being insufficient in law.

The substance of the case involves the alleged
manipulation by Michaels of certain loans and
deposits on behalf of Sioux Realty Corp., Iannelli,
and others. There were overdrawings and other
problems which arose in large measure because
of the arbitrary adjustments of various accounts
at the County Trust Company by Michaels.

It appears that Michaels was motivated by
legitimate desires to prevent loss of interest to
the bank and to satisfy customers of that insti-
tution. In doing so however, he arrogated to
himself the authority to debit and credit various

accounts without the prior knowledge or approval
of the depositors. If any crime was committed
therefore, it would appear that the only one who
was involved was the co-defendant, Michaels, who
quite frankly admitted his guilt prior to the trial

by pleading guilty.

If there were any conspiratorial arrangements,
they existed among Michaels and persons other
than Iannelli, since lannelli, under any view of the
facts, cannot be deemed involved either in the
conspiracy or in the substantive violations.

No one in the entire trial offered any incrim-
inating evidence against the petitioner but, on the
contrary, he was exonerated from any culpability.

ee

5
Statement of the Case

At most it would appear that the bank officer,
Michaels, who was the main Government witness,
was juggling accounts for purposes of his own and
perhaps with good motivation but, unfortunately,
the petitioner became involved with the author-
ities after the facts of this juggling became known.

The quintessence of Michaels’ position is
epitomized by the colloquy between himself and
lannelli’s attorney (155a, 156a):

“Q. Would you attribute this, sir, to
the fact that on your own you were juggling
these various accounts. I use that term. If
you don’t understand, then just tell me that.
I will withdraw the question.

“Q. Is it not a fact, Mr. Michaels,
from your testimony, that it was your de-
cision at times to take money which might
have been credited to one account and in-
stead credit it to another account? A. Yes.

“Q. Because that account was a little
down; isn’t that so? A. Yes.

“Q. Mr. Iannelli never told you to do
this, did he? A. No.

“Q. You did this upon yourown? A. Yes.

“Q. And you did it as you had done it
for years gone by; isn’t that so? I am not
speaking only of Mr. Iannelli, but of other
accounts in the bank. A. I would not say
it was years. It was not years.

“Q. I will withdraw that portion of the
question. You had done it for other accounts?

6
Statement of the Case

“Q. It was your opinion that this was a
service you were doing both for the customer
and also for your employer? A. Yes, be-
cause I felt that I would be paid eventually
for the amounts that were involved.

“Q. In about March, Mr. Iannelli, up to
this point had some personal accounts, he
came in and made an application or opened
up the Sioux Construction account; is that
correct? A. Yes.

“Q. Of course, this came as no surprise
to you because you knew him to be a general
contractor; is that correct? A. Correct,

“Q. When a particular check came back
with insufficient funds from the First Nation-
al Bank, you decided upon your own when
some funds did come in, to misapply those
funds using — rather, apply those funds to
one account rather than the account to which
he had deposited it; isn’t thatso? A. Yes,
I decided to debit the account of Sioux Con-
struction Company.

“Q. Shortly thereafter, you spoke with
Mr. Iannelli in connection with this and he
in effect told you he did not want that to be
done; right? A. Yes.

“Q. Despite that admonishment, you con-
tinued to do this; isn’t that so? A. Yes.”

Moreover, Michaels declared that he never
believed that he was doing anything wrong and that
he never intended to defraud the bank. Asa
matter of fact, Michaels asserted that everything
he did in connection with the Iannelli matter, he

7

Statement of the Case

believed to be “perfectly legitimate.” Thus, at
page 158a of the record, Michaels responded as
follows:

“Q. These people qualified, did they not?
A. Yes.

“Q. And you gave them a loan; right?
A. Yes.

“Q. Was it ever your intention to defraud
the bank? A. No, sir.

“Q. In fact, you never discussed defraud-
ing the bank with anyone, did you? A, No.

“Q. In fact, you would not have defrauded
the bank? A, No, sir.

“Q. You never agreed with anyone to
defraud the bank? A, No.

“Q. And in fact if anyone had asked you,
you would not have done so; isn’t that so?
A. That’s correct.

“Q. So, therefore, all of the negotiations
which you have discussed with us this morn-
ing were in your estimation, your opinion,
purely legitimate; isn’t that so? A. Yes.

“Q. However, you took it upon yourself
to take monies which were given to you as
cash from these negotiations and place them
into accounts which you felt were short; is
that correct? A, Yes.

“Q. Because you wanted to protect the
customer and it was your desire to protect
your employer; true? A, Yes.

“Q. In fact, in dealing with Mrs. Bove,
there you did that entirely upon your own;
isn’t that true? A. Yes.

— LOIRE LOTR
MF FO OY PED xe
tne his

4
Statement of the Case

“Q. I believe you testified that you ap-
prised Mr. Iannelli at some later time of
this Bove transaction; is that so? A.I
told him that I had gotten a loan, but I didn’t
mention any names.

“Q. And you told him after the entire
transaction was completed; isn’t that so?
A. Yes.”

The remainder of the colloquy is also extremely
revealing (159a-164a).

The conclusion of Michaels’ testimony on cross-
examination by Iannelli’s lawyer reveals that he
felt that he was acting perfectly properly at all
times (162a-163a):

“Q. Aside from the people we have dis-
cussed here this morning, and as you have
already testified when Mr. Hartmann was
examining you, there were many other ac-
counts that you in effect did the same
courtesy for; isn’t that so? A. Yes.

“Q. And if those accounts were short,
you in effect — and I am using this term
loosely — you would take from Peter to
pay Paul, so to speak; is that correct?
A. Yes. ;

“Q. But it was always your intent that
the accounts would be balanced, you would
service these clients or customers whom you
considered to be good customers in the
community; correct? A. Yes.

“Q. And, of course, you felt that you
were servicing your employer, correct?
A. Yes.

Statement of the Case

“Q. It was never their intent to defraud
the bank as far as you knew; correct?
A. Yes,

“Q. They never suggested you defraud
the bank; is that correct? A. That’s
correct,

“Q. And you never and would never have
permitted the bank to be defrauded; isn’t
that so? A. Yes.”

To analyze the testimony of Michaels, there-
fore, is to recognize that he exonerated Iannelli

completely. His testimony precludes the finding
of wilfullness or criminal intent.

Even Anthony Cucciarre, the auditor for County
Trust Company, stated that his analysis of what
Michaels had done clearly revealed that Michaels
had borrowed from Paul to pay Peter (228a-231a),

One Joseph Aiello indicated that he had no con-
nection with Iannelli and yet, through Michaels’
juggling, he was able to obtain a loan and that

loan had absolutely nothing to do with petitioner
(253a-256a).

10

Argumest
Polat |,

SINCE THE MAIN GOVERNMENT WITNESS,
MICHAELS, EXONERATED PETITIONER AND NO
OTHER TESTIMONY INCULPATED HIM, IT IS
SUBMITTED THAT THE COURT SHOULD HAVE
DIRECTED AN ACQUITTAL AS REQUESTED BY
COUNSEL.

This is a strange case indeed since the evi-
dence was exculpatory rather than incriminating.
The main Government witness, a bank officer by
the name of Walter Michaels, had allegedly made
loans to certain people, including Iannelli. He
frankly admitted however, that he had juggled
accounts thinking he was acting in the interests
of his employer, the County Trust Company, but
actually he was misapplying Federally insured
funds. Admittedly, Iannelli never authorized any

juggling.

As is quoted in the facts of this petition,
Michaels exonerated petitioner completely, The
proof was therefore insufficient as a matter of
law.

In the case at bar, lannelli did not take the
stand and thus it could not be said that he supplied
the necessary evidence to inculpate him (United

States v. Carabbia, 381 F.2d 133, 138 [6 Cir.
1967]).

We maintain that thus a review of all the
evidence in the case leaves no doubt but that there
was insufficient evidence adduced to warrant a

conviction (United States v. Rosengarten, 357 F.2d
263, 266 (2 Cir. 1966)).

11

Argument

We recognize, of course, that a motion for
judgment of acquittal pursuant to Rule 29 of the
Federal Rules of Criminal Procedure is similar
to a motion for directed verdict (Lelles v. United
States, 241 F.2d 21 [9 Cir. 1957], cert. denied
353 U.S, 974),

The fact that the circumstances create sus-
Picion is not sufficient to warrant a conviction
(Montoya v. United States, 402 F.2d 847 {5 Cir.
1968]; Lewis v. United States, 420 F.2d 1089
[10 Cir. 1970}; McMillian vy, United States, 399
F.2d 478, 479 [5 Cir. 1968}; rs v. United
States, 402 F.2d 830, 834, n. 2 [9 Cir, 1968}),

We are not merely arguing that the Court
might draw contrary conclusions, but, rather,
the petitioner maintains that there was insufficient
evidence upon which a conclusion of guilt could be
predicated (United pr aies v. Manuel-Baca, 421
F.2d 781 [9 Cir, 1970], cert. denied 399 U.S, 933),
Nor are we asking the Court to view the verdict
in an extraordinary manner since we recognize
that it must be applied in a manner most favorable
to the Government, Even with this standard, how-
ever, Iannelli contends that the case is insufficient

(Simmons v. United States, 406 F.2d 456 [5 Cir.

1969}),

Moreover, the prerequisite that a motion under
Rule 29 be made in the Court below was complied
with in the case at bar (Picciurro v, United States,

250 F.2d 585 [8 Cir, 1958]; Tomley v. United

States, 250 F.2d 549 [5 Cir. 1958], cert. denied
356 U.S, 928),

ie dl ae te ia ei ih a ee

12
Argument

The Court will recall that the main witness
for the prosecution was Walter Michaels, the Act-
ing Manager who apparently controlled loans at the
County Trust Company branch involved herein. He
testified quite forthrightly and conceded that he had
pled guilty prior to the trial because he was guilty.

In the colloquies and cross-examination,
Michaels frankly admitted that Iannelli never asked
him to do anything illegal or improper; that he
had done nothing knowingly illegal or improper
and that the juggling of loans and accounts had
been his own idea. He stated further that not only
did Iannelli lack knowledge of what he was doing,
but when he found out that Michaels was “borrow-
ing from Peter to pay Paul” by juggling loans
and accounts, he forbade Michaels from doing it.
Michaels testified, however, that he ignored this
admonition and continued anyway (156a-158a).

There is thus nothing in the record to suggest
that Iannelli was guilty within the purview of the
statute which, of course, requires that the in-
dividual act wilfully, It can be inferred that under
the circumstances of this case Iannelli not only
did not act wilfully, but was unaware of the mis-
application of funds by Michaels, Certainly he
was not acting as a co-conspirator with Michaels
in this regard. Conspiracy also requires criminal
intent.

13

Argument
Point Il.

FACTS CONSTITUTING THE CRIME, AND THE
INDICTMENT. BOTH THE FIFTH AND SIXTH
AMENDMENTS WERE THUS OFFENDED AND
PREJUDICE SHOULD BE PRESUMED.

The indictment herein was returned almost
five years following the discovery of the events
which constituted the predicate for the true bill.

for lack of speedy prosecution and denied them on
the merits.

The Statute of Limitations here is only five
years and there does not appear to have been any
Plausible reason advanced by the prosecution as
to why the delay occurred. There can be no doubt
but that the petitioner was lulled into a false
sense of security, lost contact with possible wit-
nesses, suffered a dimming or loss of memory
and possibly failed to preserve documents or
memoranda which could have been helpful (Poll

- United States, 352 U.S. 354, 361-362 (1957);
United States v, Provoo, 350 U.S, 857 (1955);
Mann v. 304 F.2d 394, 396-397
[D.C. Cir, 1962); Klopfer v. North Carolina, 386
U.S. 213 [1967]; and United States v. Marion, 40
U.S. L.W. 4092 [December 1971)).

In United States vy, Richardson, D.C.N.Y. 1968,
291 F. Supp. 441, 444-445, the Court ordered dis-

EEE LOO LN ONE RL DONT
. PLLA LOL TLE HI =
CINE SSE ETOS IRATE NETO

a

14

Argument |

missal where the Government offered no explana-
tion for the delay of four years and failed to rebut

the assertion that the indictment must have lain |
dormant in the back of someone’s desk drawer.
See also, United States v. Mann, D.C.N.Y. 1968,
291 F. Supp. 268, 270-271.

Accord: United States v. Skinner, D.C.N.Y. 1969,
308 F. Supp. 1221. See also, concurring
opinion of Justice Brennan in Dickey v.
Florida, 398 U.S. 30, 50-52 (1970).

See also, People v. Winfrey, 20 N.Y.2d 138, 141;
and People v. Minicone, 28 N.Y.2d 279, cert.
denied __—aU«S. __, 1971.

In Dickey v. Florida, supra, Justice Brennan
cogently noted:

“... the equation of silence or inaction
with waiver is a fiction that has been cate-
gorically rejected by this Court when other
fundamental rights are at stake. Over 30
years ago in Johnson v. Zerbst, 304 U.S.
458, 464 ...(1938), we defined ‘waiver’ as
‘an intentional relinquishment of a known
right or privilege.’ We have made clear
that courts should ‘indulge every reasonable
presumption against waiver,’ and that they
should ‘not presume acquiescence in the
loss of fundamental rights.’...

“A negligent failure by the government to
ensure speedy trial is virtually as damaging
to the interests protected by the right as a
purposeful failure....”

15

Argument

In 1844, an English Judge dealing with a
problem similar to that presented herein, opined
very aptly (Regina v. Robbins, 1 Cox C.C. 114):

“I ought not to allow the case to go further.
It is monstrous to put a man on on his trial
after such a lapse of time. How can he
account for his conduct so far back?...
[I]f the charge be not preferred for a year
or more, how can he clear himself? No
man’s life would if such a prosecu-
tion were permitted. It would be very un-
just to put him on trial.” (Emphasis sup-
plied.)

See,

5 Stan. L. Rev. 95, 104, 1952 “Justice Over-
due — Speedy Trial for the Pre-Trial
Defendant.”

Moreover, there is no way a suspect cancompel
or insist that the Government commence a prose-
cution; nor can a defendant determine when or if
the Government may decide to prosecute. The
“Sword of Damocles” may hang for the whole
period of limitations!

In Pollard v. United States, 352 U.S. 354,
361-362 (1957), the Supreme Court notonly equated
“purposeful” delays with the “oppressive” ones
forbidden by the Sixth Amendment, but also inter-
preted United States _v. Provoo, 350 U.S. 857
(1955), affirming Petition of Provoo, D. Md., 17
F.R.D. 183 (1955), as condemning delay “caused
by the deliberate act of the Government.”

CNR AA SNE IN IC NI MI A NEE TI em

Ss

16
Argument

It is apparent from Pollard v. United States,
supra, at 352 U.S. at 361, that the Supreme Court

indicates that even an indictment within the limita-
tion period may come too late to square with the
Sixth Amendment. (See Mann v. United States,
supra, 304 F.2d at 396-397, n. 4; Taylor v. United
States, 238 F.2d 259 [D.C. Cir. 1956}; Nickens v.
United States, 323 F.2d 807 (D.C. Cir. 1963];

v. Proyoo, supra.) See 18 U.S.C.
$3282.

In Godfrey v. United States, 358 F.2d 850,
852 (D.C. Cir., 1966), the Court of Appeals ob-
served:

“We note that although the total lapse of
time from offense to arrest was about four
months, two months of that period was not
protected, in terms of reasonableness, by any
purpose to advance the public interest in
effective law enforcement. The District
Court appears to have been of the view that,
where delay to serve the purpose of the
public occurs, with inevitable impact upon
the interests of the accused, there is an
obligation on the police to be as diligent
as possible in making the arrest, to the
end that the accused may know as soon as
possible of the charge against him. We
agree. The disadvantage to the accused in-
herent in the deliberate preference accorded
the public interest in the one period should
not be compounded by a failure to exercise
appropriate diligence in the other.”

17

Argument

In United States v. Godfrey, 243 F. Supp. 830,
831 (U.S.D.C., D.C. 1966), the District Court
received the case on a remand from the United
States Court of Appeals for the District of Colum-

bia, for the purpose of determining,

See also Ross v. 349 F.2d 210
(D.C. Cir. 1965). In Ross, the Court of Appeals
(249 F.2d at 211) proclaimed:

cee We think a record of this kind more

Supra, the Court was not merely articulating its
supervisory power over district courts in Wash-

ington, D.C.

In Hanrahan v.
(D.C. Cir. 1965), the

delay.’
under these provisions
indictment is returned, but when the prose-
cution is begun.”
See also 2 Pomeroy, Equity Jurisprudence,

§$418, 419 (5 Ed. 1941); 2 Story, Equity Juris-
prudence, §1526 (13 Ed. 1886).

In Lustman v. United States, (2 Cir. 1958),
258 F.2d 475 this Court held that where the delay
is long, prejudice may be implied (id. at 477-8):
«_..A showing of prejudice is not required
when a criminal defendant is asserting 4
constitutional right” (citing cases).

The Court continued:

“Thus we assume that the unexcused delay

that it prejudiced him in the prosecution of
his defense.” (Emphasis ours.)

It is therefore submitted that the indictment
herein should be dismissed despite the fact that

19

Argument

actual prejudice was not conclusively demonstrated.
We submit that a delay as long as this cannot be
deemed inadvertent but, of necessity, has to be
considered “purposeful.” The rules of the Court
leave no doubt that such a delay is unconscionable.

It should also be noted that Rule 48(b) of the
Federal Rules of Criminal Procedure imposes

Amendment (United States v. De Leo, 422 F.2d
487, 495 [lst Cir. 1970], cert. denied 397 U.S.
1037; United States v. Dallago, [D.C. N.Y. 1970],
311 F. Supp, 227, 231, 233).

A four-year delay, for example, was deemed
conclusively unnecessary and warranted dismissal

(United States v. Bianca Perez, (D.C. N.Y. 1970],
310 F. Supp. 550).

The duty appears to be upon the United States
Attorney to prosecute without delay and not de-
pendent in all cases upon demands of the de-
fendants (Hodges v, United States, 408 F.2d 543
[8 Cir. 1969]; United States v. M 1
of La., Inc., [D.C. La. 1969], 305 F. Supp. 1280).

United States v. Marion, 404 U.S. 307 (1971)
was apparently the basis upon which the Circuit

Court decided to affirm. Since then, of course,
this Court has had occasion to consider a later
case, namely Baker v. Wingo, __US.___, (de-
cided June 22, 1972), 11 Cr. L. 3174.

In Baker v. Wingo, supra, this Court affirmed
but held that a defendant's Constitutional right

gs . a
ee te De ™ — ,
NT

20

Argument

to speedy trial cannot be established by any in-
flexible rule but can be determined only on an
ad hoc balancing basis, in which the conduct of
the prosecution and of the defendant are weighed.
The Court should assess such factors as the
length of and the reason for the delay, the de-
fendant’s assertion of his right, and prejudice to
the defendant.

It is submitted that in the case at bar the prose-
cution virtually conceded that it had no specific
reason for the delay except that perhaps it was
remiss in bringing it before the Grand Jury.

We do not believe that Marion can be read as
permitting an arbitrary delay by the prosecution
in violation of Rule 48(b) F.R. Cr. P. and the Fifth
and Sixth Amendments.

We ask the Court rhetorically, of course,
whether it would agree that a person’s memory
of past events is likely to be more accurate
several months after the event or five years
after the event? We of course believe the answer
is obvious and, therefore, submit that this fact
in itself warrants a conclusion that prejudice
occurred in this case.

It is difficult to pinpoint actual “prejudice”
because events may have occurred which were
forgotten or which were not given significance
owing to the ignorance on the part of the petitioner
that an indictment would eventually be sought. As
was stated in the brief below in this case, the

| 21

Argument

delay is even more virulent where a defendant
is unaware that charges are pending than where
he is aware of those charges. In the former case,
he has no reason to preserve papers or keep in
touch with persons who may be of help and, in
general, lapses into a feeling of complacency.
In the latter situation, at least the defendant is

preserve his records, keep in touch with possible
witnesses and prepare todefend himself eventually.

We would ask the Court to consider the recent
case of United States v. Vuitch, 402 U.S. 61,

Even where there may be an affirmative defense,
the Government must disprove its existence,

In essence, the ruling of the Court below means
that despite the fact that a defendant raises the
issue of speedy trial under the Constitution and
asserts a denial of Rule 48(b) F.R. Cr. P., the
burden rests upon the defendant to prove that the
Government denied him a speedy trial to his
prejudice and it is not enough that he prove that
speedy justice was simply denied.

In other words, although in the case at bar
there is a classic Situation of an unconscionable
delay without justification in bringing a case to
trial, the Court below reasons that because the
petitioner failed to prove he was actually
prejudiced, that no violation has occurred,

We would ask what is the significance of the
Fifth and Sixth Amendments if this is the way the
speedy trial provision is to be interpreted! What
the Marion case has accomplished is an actual
repeal of the Sixth Amendment right to speedy
trial without the necessity of going through the
elaborate procedures necessary to amend or change
the Constitution.

The Circuit Court decision herein perhaps
presages a calculated design to delay indictments
until the eve of the expiration of the Statute of
Limitations since it is manifest that such delays
ordinarily work to the benefit of the Government
and seldom, if ever, benefit the defense. Since
memories cannot possibly be as_ fresh after
several years as they are after several months,
that fact alone should be deemed prejudicial under
the circumstances of this case.

We would also respectfully point out that
placing the burden of proof of denial of speedy
justice with prejudice upon the defendant, may
violate the self-incrimination clause of the Fifth
Amendment since such proof oft-times can be
adduced only through the testimony of the defendant
and where a defendant elects not to testify under
the Fifth Amendment, he may find himself in the
dilemma of having to waive his Sixth Amendment
rights. No person accused of a crime should be
placed in such a predicament.

—

23
Conclusion

The Petition for Certiorari should be granted.

Respectfully submitted,

IRVING ANOLIK
Attomey for Petitioner

=_—_

Judgment of Affirmance of the United
States Court of Appeals

UNITED STATES COURT OF APPEALS
For the SecondCircuit

the United States Courthouse in the City of New

Present:

Hon. Sterry R. Waterman,
Hon, Paul R. Hays
Hon. Wilfred Feinberg,
Circuit Judges.

UNITED STATES OF AMERICA,
PlaintiffAppellee,
Vv.
JOHN IANNELLI, JOHN TORTORA a/k/a ;
JOHNNY T., and FRANK SQUIRES a/k/a
FRANK SPEARS,

Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of New York.

—_— aia 5k. Bice eee een Se ieee

Judgment of Affirmance of the United
States Court of Appeals
This cause came on to be heard on the tran-
script of record from the United States District
Court for the Southern 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.

R. DANIEL FUSARO
Clerk

Order
71-2123

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
United States of America,
Plaintiff-Appellee,

ve

John Iannelli, John Tortora, Frank
Squires, a/k/a Frank Spears, Walter

J. Michaels,
Defendants, $

John Iannelli, John Tortora, Frank
Squires, a/k/a Frank Spears,
Defendants-Appellants.

3a

Order

Upon consideration thereof, it is

Ordered that said petition be and it hereby is
denied,

s/ Sterry R. Waterman
STERRY R. WATERMAN

s/ Paul R. Hays
PAUL R. HAYS

s/ Wilfred Feinberg
WILFRED FEINBERG

June 19, 1972

Opinion
UNITED STATES COURT OF APPEALS

For the Second Circuit

Nos. 725, 726, 727—September Term, 1971,
(Argued April 20, 1972 Decided May 22, 1972.)
Docket Nos, 71-2123, 71-2126, 72-1108

Ai BATE Yok SIRT OPIN GEN EIEIO HOE
LOA AEN. OLA LEMAR AIDE LOA STIS
m4 PMVPY
oso wien)

UNITED STATES OF AMERICA,
Appellee,
-against-
JOHN IANNELLI, JOHN TORTORA, a/k/a
Johnny T., and FRANK SQUIRES, a/k/a $
Frank Spears,

Defendants-Appellants.

Before:

WATERMAN, HAYS and FEINBERG,
Circuit Judges.

Appeals from judgments of conviction, entered
September 16, 1971 in the United States District
Court for the Southern District of New York,
Lawrence W. Pierce, J., for conspiracy to mis-
apply the funds of a federally insured bank, 18
U.S.C. $8656 and 371, and for aiding and abetting
the misapplication of such funds, 18 U.S.C. 88656
and 2,

Judgments of conviction affirmed.

5a

Opinion

Irving Anolik, New York, N.Y. (Lanna, Coppola
& Rosato, on the brief), for Defendant-
Appellant Iannelli,

David A. Pravda, New York, N -Y., for Defendant-
Appellant Tortora.

Phylis Skloot Bamberger, New York, N.Y.
(Robert Kasanof, The Legal Aid Society, on
the brief), for Defendant-Appellant Squires.

Robert T. Hartmann, Assistant United States
Attorney (Whitney North Seymour, Jr.,
United States Attorney for the Southern
District of New York; John W. Nields, Jr.,
Assistant United States Attorney, on the
brief), for Appellee.

FEINBERG, Circuit Judge:

John Iannelli, John Tortora and Frank Squires
appeal from judgments of conviction entered on
September 16, 1971 in the United States District
Court for the Southern District of New York after
a four day jury trial before Lawrence W. Pierce,

- Appellants were each found guilty on one
count of conspiring to misapply the funds of a
federally insured bank, 18 U.S.C. §§656 and 371,
and on five counts of aiding and abetting the mis-

a oa au Cee caine teat
Oe ee anor ay

RPO LIND SP re

Ta ennciaitcit CN

6a
Opinion

application of such funds, 18 U.S.C. §§656 and 2.1
We affirm the convictions.

The origins of this case date back to 1965.
At that time, appellant John Iannelli had both a
personal checking account and outstanding com-
mercial loans with the County Trust Company in
Yonkers, New York. Walter J. Michaels, an
assistant treasurer at the bank, had handied these
loans on the bank’s behalf. In April 1965, Michaels
met with the bank’s regional vice president to
discuss lannelli’s indebtedness. The vice president
instructed Michaels not to loan any further money
to Iannelli. That instruction, however, proved
futile; several schemes, including the one charged
as unlawful here, were devised to circumvent the
rule. The details of those schemes were pro-
vided by Michaels himself, who was named as a
defendant in the indictment but pleaded guilty prior
to the commencement of the trial and agreed to
testify for the Government.

At first, Michaels manipulated the bank’s
records so that Iannelli’s personal account would
not show substantial overdrafts. Michaels’ efforts
were helped in March 1966 when Iannelli opened
another account with the bank under the name

and that Squires was “Field Manager” of the
company. In any event, Michaels used the Sioux
account to protect Iannelli’s personal

juggling .
The latter two mee re Squires,
who phoned Michaste wsiee Go aim “ieee

On April 6, 1966, Squires again called Michaels
to arrange another meeting at the offices of Sioux
Realty. Present at the meeting were lannelli,

there but left shortly after Michaels arrived,
During the course of the ensuing discussion a new
plan

was

to

the proceeds and credit the Sioux
account, It was this scheme that formed the
basis of the indictment.

The following day Squires appeared at the bank
to take out a loan under the pseudynom “Spears.”
Michaels filled in the amount ($2,500) and the

and Michaels knew it. When Michaels gave
Squires a check for $2,500, Squires immediately

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9a
Ovini

by the summary of the Government’s case given
in Part I of this opinion, With regard to the claim
of appellants are foreclosed
by United States v. Marion, 404 U.S, 307 (1971),

from resting their argument on either the Sixth
Amendment or Rule 48(b). And to succeed under

;
:

v. Briggs, slip op. 2459, 2463 F.2d

vNolates int Petitioner’s claim that the pre-indictment delay

ower appellnanally delayed to gain some tactical advantage
over appellees or to harass them.” United States v. Marion,
Gre. 404 U.S. at 325. It is unclear from the opinion whether
lish bone ntl claim under the due process clause must esta.

actual prejudice and intentional on the of
the Government or whether a showing of the faerie
would be sufficient. In any event, neither appellant has made
* —-~— claim that there was prosecutorial games-

10a
Opinion

claims only that he might have found witnesses
among those present at a bar during one of the
meetings between Iannelli, Michaels and himself
who would have contradicted Michael’s version of
that event. Under the facts of this case, appellants’
claims of prejudice are too speculative for us to
say that they have been deprived of a fair trial.
We also note that the Government explained in an
affidavit submitted to the trial court that the
reason for the delay was “that the events in this
indictment were but a small part of an investiga-
tion into allegations against these defendants of
extortion activities in Yonkers, New York, from
1966 through 1970.” Such a reason is certainly
a “legitimate consideration in law enforcement.”

United States v. Briggs, supra at slip op. 2464.

The remaining arguments of these appellants
are that Iannelli’s motion for acquittal should
have been granted because Michaels’ testimony
“substantially exonerated” him and that Tortora
was prejudiced by one of the prosecutor’s re-
marks during summation and by the judge’s charge
regarding it. These claims are simply without
merit.

Squires’ arguments in this court, on the other
hand, are more substantial. His principal claim
is that the Government failed to satisfy its burden
of showing that he knowingly joined with Michaels
in wilfully misapplying the bank’s funds with intent
to injure or defraud the bank. See United States
v. 402 F.2d 79, 80 (2d Cir. 1968), cert,
denied, 394 U.S. 933 (1969); Benchwick v. United

lla

Opinion

ence that he knew that Michaels would apply the
loan proceeds to Iannelli’s benefit or that such
application would violate the bank’s policies, Thus,
Squires concludes, the trial court improperly re-
fused to grant his motion for entry of a judgment

We are unpersuaded by these arguments. The
inference is very strong that Squires went to the

fore it that Squires knew the loan proceeds were
to be used for Iannelli’s benefit. Squires had
arranged meetings between Iannelli and Michaels

lent loan application and then immediately transfer
the funds to Michaels Suggests at least that Squires

*. We need not decide here whether the proper standard of
review in this case is, as appellant contends, the one stated

in v. Glasser, 443 F.2d 1006 (24 Cir),
ee — eS U.S. 854 (1971) (whether “there is ‘rele-

‘
J
:

:

—

12a

Opinion

knew lIannelli was to be a beneficiary of this
charade. It could hardly be said that Squires
expected Michaels to keep the money Squires had
just transferred to him. We also think that there
was sufficient support for the jury’s conclusion
that Squires knew at the time that Michael’s
actions were contrary to the bank’s rules. The
Government, of course, was not required to show
that Squires knew that Michaels was violating a
specific directive from the bank’s regional vice
president. It was sufficient to show only that
Squires knew that Michaels’ actions in trans-
ferring the money to Iannelli somehow constituted
a breach of the bank’s rules. See Benchwick v.
United States, supra, 297 F.2d at 332-33. Again,
Squires’ unquestioning participation in the obvious-
ly fraudulent loan transaction supports an inference
of knowledge of irregularity. Thus, we think that
the record in this case, when considered as a
whole, supports the inference that Squires shared
the intent of Michaels to injure or defraud the
bank and to get money improperly into the hands
of Iannelli. The evidence of guilty knowledge in
this case, in our view, is much greater than was
true in those decisions relied on by appellant.
Dee ener United States, 360 U.S. 672 (1959);
United States v. Stromberg, 268 F.2d 256 (2dCir.),
cert, denied, 361 U.S. 863 (1959); Morei v. United
States, 127 F.2d 827 (6th Cir. 1942).

One further question remains: whether the
evidence was sufficient to establish that Squires
was aware that the scheme to misapply the bank’s
funds went beyond his one loan transaction and

Oa waar:

Opinion

involved other similar illegal acts. The question
is important because Squires was convicted of
being a conspirator in a scheme involving four
other instances of misapplication similar to his
own and of being an aider and abetter in each of
those misapplications. To be sure, a person
shown to have joined a conspiracy can be held
liable not only for the conspiracy but also for all
substantive offenses committed by his fellow co-
conspirators in furtherance of the conspiratorial
objectives. See Pinkerton v. United States, 328
U.S. 640, 646-47 (1946). The applicability of that
rule to a given case, however, depends upon the
Government’s showing that the defendant had some
reason to believe that the conspiracy was broad
enough to encompass those acts.

Although the question in this case is close,
we think the evidence was sufficient on this issue.
Squires maintains that he was, in effect, a minor
employee ignorant of the schemes of Iannelli and
Tortora, but there was evidence to the contrary.
The loan application listed Squires as “Field
Manager” of Sioux Realty. As already indicated,
Squires obtained $2,500 in a false transaction to
obtain money for Iannelli’s use. Moreover, Squires
knew that the conspiracy included not Only Iannelli
and Michaels but also Tortora. Indeed, on one
occasion Squires called Michaels to arrange a
meeting between Michaels and Tortora at a cafe
and to say that Tortora had a check he wanted
deposited in the Sioux account. Thus, Squires
had reason to believe that something peculiar was
going on involving the bank and Tortora, as well

ere
- e Do WSO Ser ee Cee. S ae er ital «
ST VE ’
= ee

l4a
Opinion

as the bank and Iannelli. It is not ordinarily
necessary for a depositor to meet a bank official
in a cafe to make a deposit. Also of significance
is the fact that Squires arranged further meetings
between Iannelli and Tortora and Michaels after
his April 7 loan, supporting the inference that
Squires knew he was part of a continuing con-
spiracy. It is true that considered alone each
of these bits of evidence might be insufficient to
prove the requisite knowledge. But we need not
consider them in isolation, and together they
were enough to put the issue to the jury.

The judgments of conviction are affirmed.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1256%3A1. Public record. Not legal advice.