# Memorandum — Angiulo v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_2170%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum - **Published:** January 1, 1974 - **Citation:** 419 U.S. 896 ## Text 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to the District of New Hampshire and in declin- ing to change its decision after the application for transfer was withdrawn.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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_2170%3A2. Public record. Not legal advice.