Petition for Writ of Certiorari — Angiulo v. United States

In the MICHAEL RUC A it CLERK |

Supreme Court of the Anited States

Octoser Term, 1973

No. 7 8- 1960

GENNARO J. ANGIULO,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

*ETITION FOR WRIT OF CERTIORARI TO

-~HE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

JOSEPH J. BALLIRO

65 East India Row, 30F

Boston, Massachusetts

Bianchard Press. Inc., Boston, Mass. — Law Printers

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TABLE OF CONTENTS

Page

Opinion of the Court Below....................... ae

ee ert aN ar tre 8 1

Questions Presented ................... Bites Saga ay 2

Federal Statutes Involved ........................ 2

Constitutional Provisions Involved ................. 3

Statement of the Case ............................. 3

Argument for Allowance of the Writ ............... 6

I. That the Transfer Be Upon the Defendant’s

Raia WSN Th dS i 7

I ra) ca acto te eels a 11

RT AA rs cinco a le nfm ne. 13

TaBLe or CrTaTions

Cases

Platt v. Minnesota Mining and Manufacturing Co.,

kann MRIS er ong Sea enemy RS 6, 10

Stevens v. Marks, 383 U.S. 234, 86 S.Ct. 788, 15 L.Ed.

NS cere a, entree ent 6, 10, 11

Travis v. United States, 364 U.S. 631, 81 S.Ct. 358,

Sek Sl ol i a 7

United States v. Johnson, 323 U.S. 273, 65 S.Ct. 249,

Bd eS an kt 7

United States v. Marcello, 423 F.2d 993 ........ 6, 10, 11

Constitutional Provisions

United States Constitution:

Article TIT, Section 2 .......................... 3,

Cs en re 3, 6

ETNA

RE EET PTO NNR RIO HEU eset tinea RE mong

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TIE HE

ii Table of Contents

Statutes

Page

BRITE Ft Bee RA Drie tical tek ek 2

SI I hg cr an Nae tee 1

ee aH: saORpEKED ITE EEME ER a are...

In the

Supreme Court of the United States

October Term, 1973

No.

GENNARO J. ANGIULO,

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Opinion of the Court Below

-

les ite ote Std

FONE SLOT RE Ty W SRN RENN ee RCH

oS FREE EE NEE Be ie it,

The Opinion and Judgment of the United States Court

of Appeals for the First Circuit entered on May 31, 1974

is unreported. A copy is attached as Appendix hereto.

Jurisdiction

The jurisdiction of this Court is invoked under the

provisions of 28 U.S.C. 1254(1).

SRA he RO RN

2

Questions Presented

Where a defendant moves, pursuant to Rule 21(a) of

the Federal Rules of Criminal Procedure, to transfer the

trial of his case to a district outside of the New England

States, claiming all of the New England States are in-

fected with prejudice, was it prejudicial for the Court to

direct a transfer to the District of New Hampshire even

though the defendant immediately and without delay re-

quesied permission to withdraw his motion rather than

giving up venue in the District of Massachusetts in favor

of the District of New Hampshire.

Federal Statutes Involved

The Federal Statutes involved in this Petition are as

follows:

18 U.S.C. § 111. Assauntine, Resistrnc, orn ImPEDING

Certain OrFicers ok EmMPpsoyeEs.

Whoever forcibly assaults, resists, opposes, im-

pedes, intimidates, or interferes with any person de-

signated in section 1114 of this title while engaged

in or on account of the performance of his official

duties, shall be fined not more than $5,000 or im-

prisoned not more than three years, or both.

Whoever, in the commission of any such acts uses

a deadly or dangerous weapon, shall be fined not more

than $10,000 or imprisoned not more than ten years,

or both.

Rule 21(a) Federal Rules of Criminal Procedure:

The Court upon motion of the defendant shall trans-

fer the proceeding as tc him to another district

whether or not such district is specified in the defen-

3

3

dant’s motion, if the Court is satisfied that there exists

in the district where the prosecution is pending so

great a prejudice against the defendant that he can-

not obtain a fair and impartial trial at any piace fixed

by law for holding Court in that district.

Constitutional Provisions Involved

Unirep States Constitution, Arr. ITI, Szorion 2

‘*The trial of all crimes . . . shall be held in the State

where the said crimes shal] have been committed...’?

Unitep States Constitution, AMENDMENT VI

‘*In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and District wherein the crime shall

have been committed.’’

Statement of the Case

Petitioner was indicted for a violation of Title 18,

United States Code 111, a single count, alleging an assault

on a Federal officer. He was convicted on December 19,

1973 and sentenced to serve a thirty-day term of imprison-

ment and to pay a fine of two thousand dollars.

The relevant facts to this petition begin at a time prior

to previous trial of this petitioner on the same indictment,

and first conviction having been reversed on grounds not

here in issue.

The indictment herein was returned by a grand jury

sitting in the District of Massachusetts on September 6,

1972. Shortly after the indictment, the petitioner moved

for a transfer from the District of Massachusetts, com-

PR a ae ge ee ae

PERSIE CPIG ED

CIS Peo ng opt Bi at SERS

a TT UNAS AO te %

plaining of prejudicial publicity ‘‘. .. in and about the

District of Massachusetts.’’ After hearing, the District

. Court found that the petitioner could not receive a fair

trial at that time (January 8, 1973), and that if the same

conditions existed at the time the case was ripe for trial,

the case should be transferred to the Southern District

of New York.

The case was called for its first trial on April 23, 1973,

and the petitioner renewed his motion for transfer from

the District of Massachusetts, contending that the pub-

licity was at least as prejudicial as it had been several

months previously, and requesting, in accordance with the

prior recommendation of the Court, that the case be trans-

ferred to the Southern District of New York. The renewed

motion was denied by visiting Justice Hon. Charles L.

Powell; the petitioner was tried, convicted, and on appeal

his conviction reversed for error in the supplemental

charge to the jury.

Upon the case —_ redrawn for trial before the Hon.

Andrew A. Caffrey, C.J., the petitioner on December 7,

1973 renewed his motion for transfer, incorporating pre-

vious materials submitted and appending additional media

coverage of the first trial, appeal and reversal and cover-

age of the petitioner on other matters not relevant to

his trial. In the body of his motion the petitioner directed

vas Court to his concern of .this publicity infecting the

. New England States.’’

On the same date of filing the renewed motion for

transfer, December 7, 1973, petitioner addressed a letter

to the Hon. Hugh H. Bownes, to whom the case had been

transferred, and enclosed a copy of the motion. In his

letter accompanying the motion, petitioner advised the

Court of his willingness to travel to any district outside of

New England, to which the Court might be assigned and

pointing out that if trial. was had in such other district,

meceneee bE oe

5

a saving of time would probably be effected in the jury

selection procedure.!

In reply, by letter dated December 11, 1973 Judge Bownes

informed petitioner that the case ‘‘was going to be

transferred to New Hampshire for trial, and set a date

. .. tentatively for the week of January 28, 1974.?

On December 12, 1973 notice was sent from the Clerk’s

Office in the District of Massachusetts, informing peti-

tioner that trial had been set for Tuesday, December 18,

1973 at Courtroom 1, 12th Floor, Federal Building, Boston,

Massachusetts.?

On December 14, 1972 Caffrey, Ch. J. held the hearing

on petitioner’s motion for transfer and explained part of

the confusion as to date and place of trial as resulting

from resch«duling of an antitrust case that J udge Bownes

had been assigned to try. Petitioner informed the Court

that consistently the petitioner had taken the position

that if transfer were ordered that it be outside of New

England.

After a colloquy which found the Court adopting the

Government's position (The unaided memory will remain

unaided) to the effect that the petitioner could receive a

fair trial in the District of Massachusetts, the Court de-

nied the petitioner’s motion for a change of venue to a

district outside of New England and allowed the motion

to the extent that the case be, and it hereby is transferred

to the District of New Hampshire. Petitioner immediately

informed the Court that if the transfer to New Hampshire

was in response to the petitioner’s renewed motion, then

the motion would be withdrawn and expressed strongly

Fe Teepe

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Ly Reh gR NR OSE RE oom GET EE LIE REET LTOL I LETS A LEONE SA nes ete Pe Sg

Tee Rete Snr rae Meme

1If such need arose as the result of petitioner’s request for a

change in trial dates.

? Petitioner received this letter on December 13, 1973. A hearing

on his motion for transfer was scheduled for December 14, 1974

before Caffrey, Ch. J.

3 This notice was also received on December 13, 1973.

tow

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BEESON ET ETE LEE, SOLERO LOL TER LEE LET IIE NIE LIT IG. I aa ey ee Re SAN eg Rarer ly

6

that the petitioner would be even more sorely prejudiced

trying this case in a small community than he would be

in the metropolis of the Boston area. Expressing uncer-

tainty as to whether the motion could be withdrawn, the

Court nonetheless let the order stand.

Argument for Allowance of the Writ

Petitioner contends that this Petition should be granted,

first, because the Court of Appeals has rendered a deci-

sion on a Federal question that is in conflict with this

Court’s opinion in Stevens v. Marks, 383 U.S. 234, 86

S. Ct. 788, 15 L. Ed.2d 724 and Platt v. Minnesota Mining

and Manufacturing Co., 376 U.S. 240, 245, 246; second,

is in conflict with the decision of the Court of Appeals

for the Fifth Circuit in United States v. Marcello, 423

F.2d 993, 1005; and third, deprives the petitioner of his

constitutional right to be tried in the district where the

crime was committed by cloaking the deprivation of this

right with a mantle of discretion — a discretion that

must be considered clouded by the declaration of the

District Court of uncertainty as to whether the motion

could be withdrawn but nonetheless ‘‘. . . let it stand.’’

The Sixth Amendment of the Constitution provides in

pertinent part as follows:

‘In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed.”’

Pursuant to Rule 21(a) of the Federal Rules of Criminal

Procedure, the petitioner filed a renewed motion to trans-

fer the trial of his case to a district outside of New En-

gland. In ordering the transfer of this trial to the District

—4

7

of New Hampshire, the District Court violated the two

necessary conditions precedent of Rule 21(a) :

1. That the transfer be upon the defendant’s mo-

tion.

2. That the Court be satisfied that there is ‘‘. . . so

great a prejudice against the defendant that he can-

not obtain a fair and impartial trial at any place

fixed by law for holding court in that district.

:

4

-

z

;

I. Tat tHe Transrer Be Upon THE Derenpant’s Motion.

The decision of whether to waive his constitutional right

to be tried within the district of the crime, or seek an

impartial jury elsewhere, is triggered by a motion made

only by the defendant pursuant to Rule 21(a). The venue

provisions contained in United States Constitution Article _

III Section 2 Clause 3 and Amendment Six cannot be

dispensed with as being merely technical or procedural.

Travis v. United States, 364 U.S. 631, 634, 81 S. Ct. 358,

5 L. Ed. 2d 340; United States v. Johnson, 323 U.S. 273,

276, 65 S. Ct. 249, 89 L. Ed. 236. Considering a question —

of venues in United States v. Johnson, supra, Justice

Frankfurter admonished:

PONTO INT ONEE BLEO EY,

Sa aa

‘*These are matters that touch closely the fair ad-

ministration of criminal justice and public confidence

in it, on which it ultimately rests. These are impor-

tant factors in any consideration of the effective en-

forcement of the criminal law. They have been ad-

verted to, from time to time, by eminent judges; and

Congress has not been unmindful of them. Questions

of venue in criminal cases, therefore, are not matters

of formal legal procedure. They raise deep issues of

public policy in the light of which legislation must

be construed.’’ 323 U.S. at p. 276.

LNG LIPS SS OAL PLE LEELA MIE AP a |

8

Chief Justice Burger, speaking for the dissent as a

circuit justice in Serio v. United States, 377 F.2d 936

commented on the requirement of proper venue by observ-

ing at p. 941:

‘‘In more concrete terms this is a reminder of the

long history of the repugnance of Englishmen and

Americans to being ‘transported for trial’ to a place

away from the scene of the charged events.’’

Assuming the Court finds great prejudice against a

defendant, it may transfer, in accordance with Rule 21(a)

‘*. . . to another district whether or not such district is

specified in the defendant’s motion . . .’’ In the instant

ease the motion filed by the defendant did not seek to

choose a particular forum. It did seek to exclude the New

England States on the basis of their all being infected with

the adverse publicity that centered in Massachusetts. In

colloquy with the hearing judge appellant reiterated con-

cern expressed to Powell, J. at the previous motion for

transfer over trying this case in a New England State

and made clear that he was insisting on a trial in this

district if the case were going to be transferred to a

community smaller than Boston within the New England

States.

In assaying the value of the position taken by petitioner

it may be well to note the following:

1. In all three motions for transfer the defendant

consistently took the position that there would be no

alleviation of prejudice if the case were transferred to

another State in New England and made pointed refer-

ences to Maine, New Hampshire and Vermont.

2. Within the same year (January 26, 1973), after

hearing and argument, United States Magistrate Princi’s

9

findings concerning prejudice and recommendation of

transfer to the Southern District of New York were

adopted by Garrity, J.

3. Between the conclusion of the first trial on May 10,

1973 and the hearing before Caffrey, Ch. J. on December

14, 1973 there was a considerable amount of publicity

adverse to the defendant.

4. The Government consistently maintained the de-

fendant could receive as fair a trial in the District of

Massachusetts as any place.

5. In ordering the transfer to the District of New

Hampshire, the Court below did not make a finding, di-

rectly or indirectly, as required by Rule 21(a) that there

existed in the District of Massachusetts ‘‘. . . where the

prosecution is pending so great a prejudice against the

defendant that he cannot obtain a fair and impartial

ae...

6. Apparently, the hearing of December 14, 1973 was

superfluous inasmuch as the transfer to New Hampshire

had been an accomplished fact as far back as December

11, 1973 (Hon. Hugh J. Bownes, letter dated December 11,

1973).

In its ‘‘Memorandum and Order’’ dated December 14,

1973, the Court acknowledged the defendant’s motion as

being ‘‘. . . for a change of venue to a district outside of

New England .. .’’ Although denying the motion, the

Court referred to allowing it ‘‘. . . to the extent that

the case be, and it is hereby, transferred to the United

States District Court for the District of New Hampshire

...’’ (Italics added). It may well be that the Court was

proper in denying the defendant’s motion, but the Court

had no authority to alter the motion by including or adding,

as the case be, a request that this case be transferred

a 2 EES OOS SEE DAES PR QC 7

10

to New Hampshire. The only motion before the Court was

for a transfer outside of New England — hardly forum

shopping in the light of the above listed circumstances

and hard to be misunderstood in the light of the defendant’s

promptly expressed desire to withdraw the motion.

In United States v. Marcello, 423 F.2d 993, 1005, the

Court of Appeals fer the Fifth Circuit, although denying

the defendant’s request to vacate an order for change of

venue, recognized the Court’s power to do so in avcord-

ance with its sound discretion. In Marcello, however, the

Court’s refusal to vacate was based upon it having been

made clear that the Court was going to transfer the case

as a result of the motion made by the defendant ‘‘and

proved by him’’ and that Marcello’s ‘‘silence was approval

of all that was going on’’ at p. 1005. More importantly

in Marcello it appeared that it would have been ‘‘impos-

sible’? for the defendant to have received a fair trial

in New Orleans, and although the Court recognized the

‘*Stevens v. Marks, 1966, 383 U.S. 234. 66 S. Ct. 788,

15 L. Ed. 2d 724, stands generally for the proposition that

a defendant ought to be allowed to withdraw a prior waiver

> of a Constitutional rigat when there is no justification

_ otherwise, there was strong justification here.”

In Platt v. Minnesota Minisg and Manufacturing Co.,

376 U.S. 244, 245, 84 S. Ct. 769, 772, this Court said:

‘As we said in United States v. Cores, ... : ‘The Consti-

tution makes it clear that determination of proper venue

in a criminal case requires determination of where the

crime was committed. ... The provision for trial in the

vicinity of the crime is a safeguard against the unfairness

and hardship involved when an accused is prosecuted in

a remote place.’ ”’

In Stevens v. Marks, 383 U.S. 244, 86 S. Ct. 788, this

+ Court concerned itself with the waiver of the petitioner’s

» Fifth Amendment right to not incriminate himself, and

1l

assuming that a state could ‘‘. . . constitutionally exact,

on pain of loss of employment and in absence of counsel,

the waiver of a constitutional right, .. .’’ the Court none-

theless was hard pressed to find ‘‘. . . any justification for

denying the right to withdraw it,’’ and held that the peti-

tioner’s prompt effort to withdraw his waiver was effec-

tive. 383 U.S. at 243, 244.

In its decision, the Court below stated its agreement

‘« . . with the Fifth Circuit’s formulation in Marcello,

supra at 1005: ‘A defendant ought to be allowed to with-

draw a prior waiver of a constitutional right when there

is no justification otherwise. ...’’ Opinion, page 4,

Appendix, p. 16. The Court below then sought to justify

the refusal to allow a withdrawal on the basis of the

refusal being a reasonable use of discretion by finding

adequate justification in a combination of (1) presuming

that the Court felt the petitioner could not get a fair trial

in Massachusetts and (2) a reluctance to hold that the

petitioner was entitled to what the Court described as

‘* . . two bites of the apple: a right to seek transfer, and

a right to withdraw is tae announced transferee court was

not to his liking.’’ Opinion, page 5, Appendix, p. 17.

In coming to this remarkable conclusion, the Court of

Appeals had to ignore both the consistency with which

the Petitioner had maintained his abhorrence at being

transferred to a district outside of Massachusetts but

within New England and, secondly, the expressed uncer-

tainty of the District Court Judge concerning the right to

withdraw—an uncertainty that is hardly compatible with a.

well reasoned exercise of discretion—if discretion there be.

Conclusion

For the foregoing reasons, it is ‘submitted that this

Petition for Writ of Certiorari should be granted.

*

hod

LS FO GRAS PSE RIL SAT RLS Eo Es LONI i ARBOR neces car

4

BOAT ET Le RORY

LTO LEN (SCRA ETO REC INS 08

HMOTALIE SE AMMEN Mae

12

Dated at Boston, Massachusetts this eighteenth day of

7 June, 1974.

Respectfully submitted,

JOsEPH J. BALLIRO

65 East India Row, 30F

Boston, Massachusetts

CRA LEN OREO OI GOOLE GLO DE PENTEL EI DIE DL GLE NAILIN LEI LOE EE ME OO LN a ORT

Pa Venn ET

13

APPENDIX

United States Court of Appeals

For the First Circuit

No. 74-1068

UNITED STATES OF AMERICA,

APPELLEE,

v.

GENNARO J. ANGIULO,

DEFENDANT, APPELLANT.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Before Corrin, Chief Judge,

McEntee and CaMPBELL, Circuit Judges.

Joseph J. Balliro, with whom Henry D. Katz was on brief, for

appellant.

Richard 8. Stolker, Attorney, Department of Justice, with whom

James N. Gabriel, United States Attorney, Gerald E. McDowell,

Special Attorney, Boston Strike Force, and Jerome M. Feit, At-

torney, Department of Justice, were on brief, for appellee.

May 31, 1974

Per Curiam. Prior to his first trial Angiulo moved for

transfer of venue on the ground that prejudicial publicity

had made it impossible for him to obtain a fair trial ‘‘in

and about the District of Massachusetts’’, His motion

was denied. He was subsequently tried and convicted for

assaulting a federal officer, in violation of 18 U.S.C. § 111.

For reasons not material on this appeal, we vacated the

_ Judgment and ordered a retrial, 485 F.2d 37 (1973). He

then renewed his motion for ‘‘transfer of the trial of this |

indictment from the District of Massachusetts to some

other less prejudicial district’’ saying in support thereof

:

:

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F

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80 A NRA BT

TE AERIS

A al re PARR aero Qe ER .s

14

that he had been the victim of ‘‘prejudicial publicity .. .

in and about the New England States’’.

Despite counsel’s request, made during the hearing on

the motion, that Angiulo be transferred to some jurisdic-

tion outside New England, the district court announced

that it was ordering the case transferred for trial in Con-

cord, New Hampshire. When the court so announced,

counsel stated that if the transfer to New Hampshire was

in response to the renewed motion, then ‘‘we would with-

draw that motion’’, since defendant would be more pre-

judiced trying the case in a small community than in the

Boston metropolis. The court let the order stand.’ Fol-

lowing a trial in New Hampshire, appellant was again

convicted.

Angiulo now contends that his Sixth Amendment right

to trial in the state and district ‘‘wherein the crime shall

have been committed’? was abridged because the district

court disregarded F. R. Crim. P. 21(a) by granting a

transfer other than ‘‘upon’’ his motion, and because it

did not truly find that appellant could not obtain a fair

and impartial trial in Massachusetts. We affirm the judg-

ment of the district court.

Rule 21(a) authorizes the court to transfer a criminal

case to a district other than the district where the prosecu-

tion is pending, ‘‘whether or not such district is specified

in the defendant’s motion’’ for transfer. Here, the oper-

ative words in the motion were for a transfer from Mas-

sachusetts to ‘‘some less prejudicial district’’. The motion

on its face did not preclude transfer within New En-

1 The order as entered was as follows: ‘‘. .. The motion for

change of venue, to the extent that it requests a transfer from this

district to a district outside the First Circuit, is denied. However,

the motion is allowed to the extent that the case be, and it hereby

is, transferred to the United States District Court for the District

of New Hampshire... .”’

PENAL OLN BGP PES PS MEME NON RT LISI EE RRR PEI NL OLY SOROS LAPEER RES B

15

gland,? and, vnder the Rule, Angiulo would have had .no

right to foreclose the court’s transfer options. Once ap-

pellant moved for transfer of venue, the decision about

where to transfer was within the discretion of the trial

court, United States v. Marcello, 280 F. Supp. 510, 520

(E.D. La. 1968), aff’d, 423 F.2d 993 (5th Cir.), cert.

denied, 383 U.S. 959 (1970); 1 Wright and Miller, Federal

Practice § 342 (1969 ed.); cf. United States v. Projansky,

465 F.2d 123 (2d Cir. 1972). Angiulo’s assertion, voiced

at the hearing on his motion, that New Hampshire was

not a district ‘‘less prejudicial’’ than Massachusetts need

not have controlled the court’s determination. The evi-

dence of possible prejudice within New England consisted

largely of clippings from Boston-area newspapers. We

cannot say that the trial court abused its discretion by

concluding that the same degree of prejudice would not

exist in New Hampshire.

We have little hesitancy in deciding, therefore, that

the court had before it a transfer motion suitable under

Rule 21(a), and that it had authority under the Rule to

select New Hampshire notwithstanding cvuusel’s oral ob-

jection. The more difficult question is whether, notwith-

standing the court’s compliance with Rule 21(a), Angiulo

sufficiently waived his constitutional right not to be tried

at ‘‘a place away from the scene of the charged events’’.

See Serio v. United States, 377 F.2d 936, 941 (D.C. Cir.

1967) (Burger, J., concurring and dissenting). Angiulo

properly reminds us that ‘‘Questions of venue in criminal

cases. . . are not matters of formal legal procedure. They

raise deep issues of public policy in the light of which

2 Counsel did state at the beginning of the hearing on the mo-

tion that his client did not want to be tried in any other New En-

gland jurisdiction. But whether this statement was meant to

‘*qualify’’ or ‘‘condition’’ the motion or was intended merely to

state a preference which the court could accept or ignore as it

chose, is less than clear.

16

legislation must be construed.’’ United States v. Johnson,

323 U.S. 273, 276 (1944). Here we must take account both of

his right to a trial in the viscinage and his potentially con-

flicting right to trial before an unprejudiced jury. And to

discourage forum shopping and unwarranted delay, we

must not be so perfectionistic as to thwart unduly the

resolution of such rights in the district court prior to trial.

We think Angiulo’s written motion was a waiver of his

constitutional right to a trial in the viscinage. As stated

ante, note 2, counsel’s oral requests prior to the court’s

ruling cannot be said to have changed or conditioned the

. relief sought. Angiulo’s skilled and conscientious counsel

had consistently taken the position, supported by an array

of newspaper clippings, that media publicity precluded

a fair trial in Massachusetts. Although presentation of

the merits at the first trial lasted less than a day, selection

of the Massachusetts jury had taken a full day. The dis-

trict court was entitled to conclude that Angiulo, after

deliberation and with competent advice, had determined

that a trial in the District of Massachusetts was not in

his interest. The case therefore bears little resemblance

to those where confused or poorly counselled individuals

have purported to surrender constitutional rights.

Nonetheless, there remains the question whether the

district court should have allowed Angiulo’s request, made

immediately after the court’s ruling, to withdraw the

transfer motion. This is a close question, and we do not

agree with the district court’s suggestion that it may

have lacked power to allow withdrawal. We agree with

the Fifth Circuit’s formulation in Marcello, supra at 1005:

‘“*A defendant ought to be allowed to withdraw a prior

waiver of a constitutional right when there is no justifica-

tion otherwise. . . .”” However, the issue before us is

‘not whether we agree with the district court’s refusal to

permit withdrawal but whether we believe its failure to

17

do so was an abuse of discretion. We find adequate justi-

fication. First, we are unwilling to presume, as appellant

would have us do, that the district court did not have

serious -and well-founded reservations about Angiulo’s

ability to have a fair trial in Massachusetts.* This being

80, it was entitied to weigh appellant’s due process rights

against withdrawal of the waiver. It could also deem it

preferable to hold the trial in a district where there was

less risk of reversible error from problems associated

with jury prejudice. The court also was entitled to con-

clude that the asserted basis for withdrawal — defendant’s

desire to be tried in a city rather than a smaller community

— had nothing to do with the historic reasons associated

with the constitutional protection against being “trans- ©

ported for trial’’. Serio, supra at 941. Finally, for us to

override the district court in these circumstances would

be to hold that defendant was entitled to two bites of the

apple:* a right to seek transfer, and a right to withdraw

if the announced transferee court was not to his liking.

We do not believe that a reasonable balancing of all the

interests involved, including the public’s interest in pre-

venting Rule 21{a) from being utilized as a forum shop-

ping device, necessitates so enlarging a defendant’s tactical

options as a matter of absolute right. While suggestions

in this direction have been made, see Note, Change of

Venue in Criminal Cases: the Defendant’s Right to Specify

the County of Transfer, 26 Stan. L. Rev, 131 (1973), we

3 We do not read the record as indicating a contrary view.

* Or, to mix metaphors,

‘*A litigant cannot experiment with the judge presiding

over the case. .. . We cannot permit a litigant to test the

mind of a trial judge like a boy testing the temperature of

the water in the pool with his toe, and if found to his liking,

decides to take a plunge.’’

State ee rel. Shufeldt v. Armigo, 39 N.M. 502, 506, 50 P.2d 852,

855 (1935), quoted in In Re United Shoe Machinery Corp., 276

F.2d 77, 79 (1st Cir. 1960).

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18

do not accent them. If specific circumstances in the trans-

feree district had thereafter threatened defendant’s right

to a fair and impartial trial, these might have been called

to the transferee court’s attention. Cf. United States v.

Holdsworth, 179 F.2d 933, 937 (1st Cir. 1950). Here there

is no complaint concerning the course of subsequent events

in New Hampshire. Having waived his right to be tried

in Massachusetts, defendant was tried in New Hampshire

before a fair and impartial jury. That is all he was en-

titled to expect.

Affirmed.

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