Petition for Writ of Certiorari — Scappatone v. United States

In The

i.

Supreme Court of the United States

Ociober Term 1973

a.

we

No. 73-

JOSEPH SCAPPATONE,

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

IRVING ANOLIK

Attorney for Petitioner

225 Broadway.

New York, New York 10007

(212) 732-3050

(6890) LUTZ APPELLATE PRINTERS, INC.

Lew and Financia! Printing

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

(201) 257-6850 (212) 565-6377 (215) 563-5587 (202) 783-7288

iP Geer

PEER TEIRIENER

|

TABLE OF CONTENTS

ee oe kt ee a ee ee 60 ee

Opinion Below ......-----2eeeeeereeees

NS oe es Ae ee ot ee ae ae

Questions Presented .....-- +++ eee eee eee

Statutory and Constitutional Provisions Involved

The Factual Background of the Case ......-----

I.

_ Reasons for Granting the Writ .......--+-++++:

| ;

The indictment hérein fails to reveal from which

depot, station or other location the merchandise

involved was stolen. The indictment is vague and

speaks only in generalities and therefore does

not indicate that the transaction involved

interstate commerce. It is submitted that an

essential allegation of the indictment was to

specifically indicate from where the alleged

stolen items were actually taken. This deprived

the petitioner of due process of law and also

revealed a dearth of jurisdiction under the

ae 6 6 be ee 9 ee

ii

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Clyatt v. United States, 197 U.S. 207, 219-20 ....-- 9

Ex parte Bain, 121 U.S. 1 (1887) .--------+ °° 7, 8,9

Ford v. United States, 273 U.S. 593,602 ...----- 10

Goto v. Lane, 265 U.S. 393,402 ..------s++°°° 10

Russell v. United States, 369 U.S.749 ..-------> 5

Stirone v. United States, 361 U.S. 212, 217. . . 5,6, 7,9, 10

United States v. Cohen, 3 Cir. 1921, 274F.596 .... &

United States v. DeCavalcante, 440 F.2d 1264 (3 Cir.

SE © etcgincach © eat +ihh > SESH. HR OT * 5

United States v. Manuszak, 234 F.2d 421, 423 (3 Cir

NR 5 hate + ed 4a ee saree * 6

United States v. McCulloch, D.C. Ind. 1947, 6 F.R.D

I i.e ne Sinn et re OT GSE Nit 4 IRA * 6

United States v. Norris, 281 U.S. 619, GMB oneness 9

Wolkoff v. United States, 6 Cir. 1936,84F.2d17 ..-.- 6

TOS ATER IK Be eee pag OS Reo

seas

iit

Contents

Page

Statutes Cited:

28 U.S.C. Section 1254(1) ..--- +s seer rrr 2

ay ee ere ae 2,3

United States Constitution Cited:

Commerce Clause, Article I, Section D2 cleat wee 2,3, 5

Fifth Amendment ....-.---:-*c***° °° 2,3, 5

Sixth Amendment ....----+ss*err*** °° 2,3, 5

Rule Cited:

PR.ce. P.. Rule GBla) . we tee te mere 9

APPENDIX

Order of the United States Court of Appeals for the

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—

In The

Supreme Court of the Hnited States

October Term 1973

—?e

No. 73-

JOSEPH SCAPPATONE,

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

STATEMENT

Petitioner respectfully prays that this Court will grant

a Writ of Certiorari to review the order of the United

States Court of Appeals for the Second Circuit rendered |

the 15th day of March, 1974, affirming the judgment of

the United States District Court for the Southern District

of New York rendered the 2nd day of November, 1973,

convicting Scappatone and a co-defendant, Perry Maurino,

of the crimes of conspiracy to possess property stolen

from an interstate shipment and a substantive charge of

possession of property stolen from an interstate shipment,

after crial before Tenney, J., and a jury.

i

_ OPINION BELOW

The Court of Appeals rendered no opinion in affirming

the judgment of conviction.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1254(1). The Court of Appeals for the

Second Circuit affirmed the judgment of conviction here

on the 15th day of March, 1974. :

QUESTIONS PRESENTED

1. Whether petitioner , was properly convicted of

violating Section 659 of Title 18 United States Code,

inview of the fact that the vehicle from which the property

allegedly stolen was taken was not moving in interstate

commerce at the time of, the alleged theft?

2. Whether the indictment charging a violation of

Section 659 of Title 18 United States Code is

constitutionally valid in view of the fact that it does not

state where the alleged motor truck or platform or depot

was located, at the time of the alleged theft or

misappropriation of property, (Article I, Section 8 —

Commerce Clause, United States Constitution; Fifth

Amendment, United States Constitution)?

3. Whether petitioner was denied a Sixth Amendment

‘right requiring proper notification of the accusations

against him by virtue of the vagueness of the indictment

herein which failed to disclose specifically what aspects of

interstate commerce were actually involved?

i ah i te ae ah ne ite

3

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

The United States Constitution Commerce Clause,

Article I, Section 8, Sixth Amendment and the Fifth

Amendment Due Process Clause are involved herein. In

addition, Section 659 of Title 18 United States Code is

also involved.

THE FACTUAL BACKGROUND OF THE CASE

The defendants were indicted quite some time after a

certain electronic microscope was stolen from the alleged

owner thereof, the Phillips Electronic Corporation, which

had an office in New York State.

Originally three individuals were arrested and charged

with the crime and each of them ultimately pleaded guilty.

Subsequently, the petitioner Scappatone and the

co-defendant Perry Maurino, were indicted for the

aforesaid crimes, namely possession of material stolen

from an interstate shipment. The indictment does not

indicate where the shipment was located at the time of the

theft. In other words, there is no indication whatsoever

revealing from where the items were stolen and, therefore,

it cannot be determined whether or not the produce was in

interstate commerce.

Count Two of the indictment reads:

“COUNT TWO

The Grand Jury further charges:

From on or about the 16th day of June, 1970,

to on or about the 13th day of August, 1970,

REAR RP IN SF SAN IN RR SL TEI, Feet :

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Perry Maurino and Joseph Scappatone the

defendants, unlawfully, wilfully and knowingly did

have in their possession certain goods and chattels

to wit, cartons containing parts of electron

microscopes valued at approximately $120,000

which goods and chattels had been stolen,

embezzled, taken, carried away and obtained by

fraud and deception from motor trucks and from

platforms and depots while such goods and chattels

were moving as and constituted an interstate

shipment of property, knowing those goods and

chattels to have been embezzled and stolen.

(Title 18, United States Code, Sections 659

and 2.)”

It was alleged that Scappatone who, with his family,

operated a private refuse collection corporation, had, at

one time, housed the truck from which the electronic

microscope was allegedly stolen. This was apparently the

only link that Scappatone had, other than testimony from

the accomplices who had already pleaded guilty, stating

that he had also shared to some extent in the proceeds of

the theft. -

The crucial fact, however, is that the indictment does

not indicate the interstate character of the shipment and,

consequently, it is therefore defective.

It is submitted that it constituted a denial of due

process of law and does not conform with the Commerce

Clause of Article I, Section 8 of the United States

Constitution, since jurisdiction in this case must be based

upon interstate commerce.

5

REASONS FOR GRANTING THE WRIT

I.

The indictment herein fails to reveal from which

depot, station or other location the merchandise involved

was stolen. The indictment is vague and speaks only in

generalities and therefore does not indicate that the

transaction involved interstate commerce. It is submitted

that an essential allegation —/e the indictment was to

specifically indicate from where the alleged stolen items

were actually taken. This deprived the petitioner of due

process of law and also revealed a dearth of jurisdiction

under the Commerce Clause.

There are constitutional rights so basic to a fair trial

that their infraction can never be treated as harmless error,

and reversal is required without regard to a showing of

prejudice and without regard to the strength of the

evidence. The pertinent constitutional provisions of the

Sixth Amendment, requiring notice of the accusation, and

the Fifth Amendment guarantee that no person shall be

prosecuted for a felony except by indictment. (Russell v.

United States, 369 U.S. 749; Stirone v. United States, 361

U.S. 212, 217, wherein a material variance between the

allegations of the indictment and the proof was held to be

constitutionally defective; United States v. DeCavalcante,

440 F.2d 1264 (3 Cir. 1971).

It is elementary that unless the Government was able

to establish that the goods involved had been travelling in

interstate commerce at the time of their theft, that no

jurisdiction lay in this case. The count of the indictment

which is quoted supra, reveals that there is only a vague

reference to the fact that the electronic microscopes were

stolen from “‘trucks”’ and stations and depots. Actually

only one truck was involved herein and therefore the

indictment is completely vague and inaccurate.

Additionally, it does not say where these particular

trucks, stations or depots were located. We submit that the

location of these items were extremely important.

See United States v. Manuszak, 234 F.2d 421, 423 (3

Cir. 1956); Stirone v. United States, supra.

In United States v. Manuszak, supra, the Circuit Court

aptly explains:

“Under this statute, it is not a federal crime to

steal goods from an interstate shipment of freight

unless the goods are taken from one of the

specifically enumerated places or facilities. Other

thefts, although of goods which are part of an

interstate shipment, are not federal crimes. That

being so, an indictment which only charges a theft

of goods from an interstate shipment of freight

without alleging that the goods were taken from

one of the specifically enumerated places or

facilities does not charge all the essential

ingredients of a crime so far as the federal

government is concerned. Wolkoff v. United States,

6 Cir., 1936, 84 F.2d 17; United States v. Cohen, 3

Cir. 1921, 274 F. 596; United States v. McCulloch,

D.C. Ind. 1947, 6 F.R.D. 559.”

In Stirone v. United States, the Supreme Court also

considered an appeal from a judgment of conviction of the

Third Circuit (262 F.2d 571). In Stirone, the petitioner

there was indicted and convicted in the federal District

Court for interfering with interstate commerce by

extortion in violation of the Hobbs Act. The only

interstate commerce mentioned in the indictment

however, was the importation into Pennsylvania of sand to

be used in building a steel plant there; but the trial judge,

however, permitted the introduction of evidence to show

interference also with the exportation from Pennsylvania

of steel to be manufactured in the new plant, and he

instructed the jury that it could base a conviction upon

interference with either the importation of sand or the

exportation of steel. This was considered a material

deviation between the pleading and the proof and the

United States Supreme Court held that the conviction

therefore had to be reversed.

In essence, the Supreme Court of the United States

stated that the variance between the pleading and proof

was not insignificant and could not be dismissed as

harmless error [as was done in the case at bar] because it

deprived the petitioner of his substantial nght to be tried

for a felony only on the charges presented in an

indictment returned by a Grand Jury.

In Stirone v. United States, supra, the Supreme Court

aptly explained (361 U.S. at 215, 216) the following:

“Eyer since Ex parte Bain, 121 U.S. 1, was decided

in 1887 it has been the rule that after an

indictment has been returned its charges may not

be broadened through amendment except by the

grand jury itself. In that case, the court ordered

that some specific and relevant allegations the

grand jury had charged be stricken from the

FE EEE ORI IS.

indictment so that Bain might be convicted

without proof of those particular allegations. 2 In

holding that this could not’be done, Mr. Justice

Miller, speaking for the Court, said:

‘If it lies within the province of a court to

change the charging part of an indictment to suit

its own notions of what it ought to have been, or

what the grand jury would probably have made it

if their attention had been called to suggested

changes, the great importance which the common

law attaches to an indictment by a grand jury, as a

prerequisite to a prisoner’s trial for a crime, and

without which the Constitution says “no person

shall be held to answer.” may be frittered away

until its value is almost destroyed.’ 121 U.S. 1, 10.

The Court went on to hold in Bain:

‘that after the indictment was changed it was

no longer the indictment of the grand jury who

presented it. Any other doctrine would place the

rights of the citizen, which were intended to be

protected by the constitutional provision, at the

mercy or control of the court or prosecuting

attomey ....’121 US. 1, 13.

2. Bain was indicted for making a false statement ‘with

intent to decieve the Comptroller of the Currency and the

agent appointed to examine the affairs of said

association ....’ After sustaining demurrers of Bain to the

indictment, the trial court went on to say that ‘thereupon,

on motion of the United States, by counsel, the court orders

that the indictment be amended by striking out the words

“the Comptroller of the Currency and” therein contained.’

By this amendment it was intended to permit conviction of

Bain without proof that he had deceived the Comptroller as

the grand jury had charged.”

LILLE IT LILY LLIB LAGE EO ISL SE CILIIO

9

It would appear that there is no greater stretching of

the imagination to make the alteration of the indictment

in Stirone as there was in the case at bar. As a matter of

fact, the Stirone case which reversed a Third Circuit

determination, is certainly apt authority for the

proposition that this Court should not deviate from the

long-established rule in this Court that a District Judge

may not at his whim amend the allegations of an

indictment to conform to the proof.

Rule 52(a) F.R.Cr. P. cannot be interpreted as meaning

that it is de minimus to permit the amendment of an

indictment.

In Stirone v. United States, supra, 361 U.S. at 217, the

Supreme Court continued showing that there has been a

consistent line of authority which has forbidden the very

activities which the Panel below has apparently now

approved:

“The Bain case, which has never been disapproved,

stands for the rule that a court cannot permit a

defendant to be tried on charges that are not made

in the indictment against him. See also United

States v. Norris, 281 U.S. 619, 622. Cf. Clyatt v.

United States, 197 U.S. 207, 219, 220. Yet the

court did permit that in this case. The indictment

here cannot fairly be read as charging interference

with movements of steel from Pennsylvania to

other States nor does the Court of Appeals appear

to have so read it. The grand jury which found this

indictment was satisfied to charge that Stirone’s

conduct interfered with interstate importation of

sand. But neither this nor any other court can

know that the grand jury would have been willing

eed

PR LEO RATAE TIER EL ERE EINE BE RES OP SI ORG ELT

10

~ to charge that Stirone’s conduct would interfere

with interstate exportation of steel from a mill

later to be built with Rider’s concrete. And it

cannot be said with certainty that with a new basis

fer conviction added, Stirone was convicted solely

on the charge made in the indictment the grand

jury returned. Although the trial court did not

permit a formal amendment of the indictment, the

effect of what it did was the same. And the

addition charging interference with steel exports

here is neither trivial, useless, nor innocuous.

Compare Ford v. United States, 273 U.S. 593, 602;

Goto.v. Lane, 265 U.S. 393, 402. While there was a

variance in the sense of a variation between

pleading and proof, that variation here destroyed

the defendant’s substantial right to be tried only

on charges presented in an indictment returned by

a grand jury. Deprivation of such a basic right is far

too serious to be treated as nothing more than a

variance and then dismissed as harmless error.”

The United States Supreme Court did not consider for

one moment that the deviation in the Stirone case was

something minor. At another juncture of the opinion the

Supreme Court explained further that it was essential that

if a conviction occur at all that it be predicated upon the

allegations of the-indictment and not the amendments to

those allegations as engrafted by some judge or prosecutor

without knowledge or approval of the Grand Jury. Thus,

at 361 U.S. 218, the Court finally explained:

“The very purpose of the requirement that a man

be indicted by grand jury is to limit his jeopardy to

offenses charged by a group of his fellow citizens

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11

acting independently of either prosecuting

attorney or judge. Thus the basic protection the

grand jury was designed to afford is defeated by a

device or method which subjects the defendant to

prosecution for interference with interstate

commerce which the grand jury did not charge.”

It is therefore respectfully submitted that there was no

indication that the truck carrying the microscopes was

located at any particular place from looking at the

indictment itself. Additionally, there certainly was no

evidence that the truck was moving in interstate

commerce. In any event, there was an insufficient detailing

of the accusations against petitioner to apprise him of the

specific charges involved.

For the foregoing reasons, it is respectfully submitted

that certiorari should be granted.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

IRVING ANOLIK

Attorney for Petitioner

LOE AR IIE ING 5 SS SORTA ARIE EPL S TIES PEE PR

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APPENDIX

ORDER OF THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse in the City of New York, on the fifteenth day

of March one thousand nine hundred and seventy-four.

Present: HON. PAUL R. HAYS

HON. WILLIAM H. TIMBERS

Circuit Judges

HON. OSCAR H. DAVIS

Court of Claims

Circuit Judges.

United States of America,

Plaintiff-Appelles,

73-2673

2a

Order

Perry Maurino and

Joseph Scappatone,

Defendants-Appellants.

Appeal from the United States District Court for the

Southern District of New York. -

This cause came on to be heard on the transcript 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 judgments of said

District Court be and they hereby are affirmed.

A. DANIEL FUSARO,

Clerk

* By VINCENT A. CARLIN,

Chief Deputy Clerk

4

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