Memorandum — Angiulo v. United States

PUBS NG BOK BE AA SIR TOO BE |

In the Supreme Court of the United States

OcToBER TERM, 1974

No. 73-1960

GENNARO J. ANGIULO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that the district court erred in

ordering a change of venue from the District of Massa-

chusetts to the District of New Hampshire and in declin-

ing to change its decision after the application for

transfer was withdrawn.

After a jury trial in the United States District Court

for the District of Massachusetts, petitioner was con-

victed of assaulting an officer of the United States

Coast Guard, in violation of 18 U.S.C. 111, and was sen-

tenced to one year’s imprisonment (the last nine months

of which was ordered suspended in favor of two years’

probation) and a fine of $2,000 (App. 6).' Prior to

trial, defense motions for a change of venue had been

denied (App. 1-4).

“App.” refers to the Appendix filed in the court of appeals.

(1)

SEL ADS VE UPI HRD aortas

PPL RT =

2

The court of appeals reversed because of errors in a

supplemental charge to the jury, 485 F. 2d 37, and

ordered a retrial (App. 7). Petitioner then renewed his

moiion for a transfer (App. 59), asserting that “prej-

udicial saturation-type publicity from all media of

communication in and about the New England States” war-

ranted the “transfer [of] the trial of this indict-

ment trom the District of Massachusetts to some other

less prejudicial district.” The motion was accompanied

by examples of newspaper articles printed in Boston; no

publicity in other New England states was adduced. Fol-

lowing a hearing, the court ordered the case trans-

ferred to the District of New Hampshire for trial (App.

87). Petitioner was again convicted of assault, and was

sentenced to imprisonment for thirty days and a fine of

$2,000.

We rely upon the analysis of the court of appeals (497

F. 2d 440; Pet. App. 13-18).

1. Fed. R. Crim. P. 21(a) and the decisions interpret-

ing it necessitate a two-stage analysis of defendant’s

motion for a change of venue on account of prejudical pub-

licity. First, the motion is a waiver of the constitu-

tional right to trial in the vicinage; once a defendant

has stated that he is willing to accept trial elsewhere,

he has surrendered his right under the Sixth Amendment

and Article III, Section 2. Second, once this right has

been surrendered the district court, so long as it does

not abuse its discretion, is entitled to transfer the case

for trial in any district in which the defendant can

receive a fair trial. The defendant cannot select a specific

district of transfer. United States v. Marcello, 280 F. Supp.

510, 520 (E.D. La.) (collecting cases), affirmed, 423

F. 2d 993 (C.A. 5), certiorari denied, 398 U.S. 959.

RAL HIRE ye

1,2 —

SY OES I

3

Petitioner does not question this rule, nor does he

assert that he was tried in New Hampshire before a bias-

ed jury. Had the New Hampshire venire been prejudiced,

the court below held, petitioner could have moved for a

retransfer (497 F. 2d at 442; Pet. App. 18).

2. Petitioner nevertheless argues that he is entitled

to different treatment because his motion sought not

merely transfer from Massachusetts but transfer outside

the “New England States.” To transfer the case to New

Hampshire, he argues, is equivalent to denying the mo-

tion made and therefore is in violation of Rule 21(a)

because not made “upon the defendant’s motion.” The

argument is not supported by the record. Petitioner moved

for “transfer [of] the trial of this indictment from the Dis-

trict of Massachusetts to some other less prejudicial

district” (App. 59; 497 F. 2d at 441; Pet. App. 13). As the

court of appeals found, the motion on its face did not

state that it was conditioned on transfer outside New

England. Although counsel did note orally at the hear-

ing on his motion that he sought transfer outside New

England, this statement was apparently precatory rather

than conditional. The court of appeals resolved against

a reading of petitioner’s motion as conditional (497

F. 2d at 441, n. 2; Pet. App. 14-15). That resolution

is not clearly erroneous, and there is no occasion to review

it here.

3. Petitioner finally argues that, however the motion

is read, it was error for the district court not to al-

low his motion, made immediately after the court had

transferred the case to New Hampshire, to withdraw the

i es ad ?

motion to transfer. Petitioner asserts that the deci- —

sion below is at variance with those cases recognizing —

a general right to withdraw waivers of constitutional —

OE RMI ARI REIL EOLA PAO AT BE BRE LS SEI LNG DAE ERT SINE BRIM BP ae NEL LIEGE A LOPLI ONAL LICE IVES LER

4

rights. There is no conflict; the court below followed

Stevens v. Marks, 383 U.S. 234, and United States

v. Marcello, supra, 423 F. 2d at 1005, by expressly

recognizing the right, under appropriate circumstances,

to withdraw a waiver (497 F. 2d at 442; Pet. App. 16-

17). However, the First Circuit, as had the Fifth Cir-

cuit in Marcello, ruled that the district court had

not overstepped its discretion in refusing to allow

withdrawal.

Two considerations support this outcome: (a) A motion

to transfer is usually based upon prejudice in the orig-

inal district. Although a defendant may seek to with-

draw his waiver, the court has an obligation to satisfy

itself that the trial in the original district will be

fair. Thus the very reasons that would lead a court to

grant defendant’s motion under Rule 21(a) to transfer

also militate against allowing him to withdraw unless

he can point to a change in circumstances between the

time when the motion is filed and the time when with-

drawal is sought. (b) The timing of the motion to with-

draw gave some indication that defendant’s counsel may

have been seeking “two bites of the apple” (497 F. 2d

at 442; Pet. App. 17): ie, he was willing to accept

the transferee district only if to his liking. In the

interest of proper judicial administration, the court

correctly declined to allow petitioner to make motions

the results of which he could accept or abandon at his

option. The situation plainly would have been different

if extrinsic factors explained the decision to withdraw

the motion for transfer. See Marcello, supra, 423 F.

2d at 1004.

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

SEPTEMBER 1974.

a