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April 24, 1969

The UNITED STATES of America
Carmine G. DE SAPIO, Antonio Corallo and Henry Fired, Defendants

Metzner, District Judge.

The opinion of the court was delivered by: METZNER

METZNER, District Judge.

Defendants De Sapio, Corallo and Fried are charged with violations of law in a four-count indictment. Count 1 charges a conspiracy by the defendants and Itkin and Marcus, named as coconspirators but not as defendants, to obstruct commerce and affect movement in commerce by extortion (18 U.S.C. § 1951), to use facilities in interstate commerce with intent to carry on the unlawful activity of bribery (18 U.S.C. § 1952), and to use the mails to defraud (18 U.S.C. § 1341). Counts 2, 3 and 4 charge the defendants with substantive violations of § 1952.

 Each of the defendants has made various pretrial motions. They have also adopted one another's motions to the extent such were not contained in their own papers.

 Claimed Prejudice Resulting From Compelling Defendants to Assert Fifth Amendment Privilege Before Grand Jury

 Defendants move to dismiss the indictment on the ground that they were compelled to appear before the grand jury and invoke their constitutional privilege against self incrimination after the government was advised that they would refuse to testify.

 It is defendants' contention that this procedure could only have the effect of prejudicing them by permitting the grand jury to draw adverse inferences because of their refusal to testify. On a trial the government may not call a witness who it knows will invoke his constitutional privilege. United States v. Maloney, 262 F.2d 535 (2d Cir. 1959). This rule, however, does not extend to appearances before the grand jury even where the person is a target of the inquiry and may become a defendant. This has been made abundantly clear by numerous decisions by the Court of Appeals for this circuit. United States v. Wolfson, 405 F.2d 779 (2d Cir. 1968); United States v. Fortunato, 402 F.2d 79 (2d Cir. 1968); United States v. Capaldo, 402 F.2d 821 (2d Cir. 1968); United States v. Winter, 348 F.2d 204, 207-208 (2d Cir.), cert. denied, 382 U.S. 955, 86 S. Ct. 429, 15 L. Ed. 2d 360 (1965).

 A reading of the grand jury minutes discloses that each defendant was fully and adequately advised of his constitutional rights even to the point that he could consult with counsel during the interrogation if he so desired. While the minutes do not disclose that the prosecutor further advised the grand jurors that they could not draw inferences adverse to the defendants from their refusal to testify, I find that such failure does not warrant a dismissal of the indictment. The court is aware of the language on this point in the Wolfson case, supra, but does not consider that it was necessary to the holding in that case.

 De Sapio specifically claims that despite the prosecutor's knowledge of his counsel's advice, the "defendant was disarmed by the prosecutor into disregarding the instructions of counsel to invoke the privilege at the threshold of the questioning." He goes on to say that "knowing in advance what counsel's instructions were to De Sapio, the prosecutor commenced, and developed, a line of inquiry without any regard whatsoever to the instructions and directions supplied to De Sapio by his attorney." All of this is claimed to add up to a denial of the right to counsel.

 Counsel may not be present during the questioning of his client before the grand jury. However, he may be present outside the room for consultation if his client so desires. Counsel was available for such consultation, but defendant made no request to speak to him. If he answered questions despite counsel's advice, that was by his own choice. The charge that defendant was "disarmed by the prosecutor" is vague, indefinite and difficult to understand in this case.

 De Sapio also charges that the prosecutor deliberately smeared him before the grand jury "by depicting inferentially that his counsel is organized crime's legal brain bank." Since this defendant's testimony before the grand jury is being made available to him, he will readily ascertain that the charge is completely unfounded.

 Plea of Double Jeopardy

 Defendants Corallo and Fried raise a plea of double jeopardy in violation of their rights under the Fifth Amendment. They were previously indicted in this court on a charge of conspiracy to violate § 1952. United States v. Corallo et al., D.C., 281 F. Supp. 24. Their codefendants in that indictment were Marcus, Itkin, Motto, Rappaport and S. T. Grand, Inc. Marcus was the Commissioner of the Department of Water Supply, Gas and Electricity of the City of New York. It was the object of the conspiracy to bribe Marcus to award a contract without public bidding to Fried and his company, S. T. Grand, Inc., to clean the Jerome Park Reservoir in New York City Corallo, Fried, Motto, Rappaport and the corporation pleaded not guilty and all except Rappaport were convicted after trial. Itkin and Marcus pleaded not guilty and were granted a severance on application of the government. Subsequently, Marcus withdrew his plea of not guilty and pleaded guilty. Both Itkin and Marcus testified on behalf of the government in the trial of the remaining defendants. Itkin has not as yet been brought to trial.

 That indictment alleged that the conspiracy commenced on or about January 1, 1966 and continued to December 18, 1967, the date of filing the indictment. The contract was alleged to have been awarded to S. T. Grand, Inc. in November 1966 and payments of money were alleged to have been made by the corporation to Marcus, Itkin, Motto and Corallo as payments were received from the city during the course of performing the work on the contract. The last overt act was alleged to have taken place in June 1967.

 The present indictment charges that the conspiracy commenced on January 1, 1967 and continued up to December 20, 1968, the date the indictment was filed. The alleged objects of the conspiracy here are bribery of Marcus and extortion of Consolidated Edison in relation to the latter's business, which has no connection with the Jerome Park Reservoir contract. The overt acts alleged cover the period August 19, 1967 through January 5, 1968, which is subsequent to the last overt act alleged in the first indictment. The defendants and coconspirators are Corallo, Fried, De Sapio, Itkin and Marcus as compared with Corallo, Fried, Itkin, Marcus, Rappaport and Motto in the first trial. Thus, there are four persons common to both indictments and three who are not.

 The movants assert that only one conspiracy exists under the facts, and they cannot be subjected to multiple prosecutions for its several objects. In United States v. Cohen, 197 F.2d 26 at p. 29 (3d Cir. 1952), the court said:

"While a prosecution for one conspiracy is no bar to a prosecution for participation in another, a single conspiracy cannot be split up for the purpose of prosecution."

 Neither may a single conspiracy be split up to provide separate counts in one indictment because it has as its object the commission of several crimes. Cf. Braverman v. United States, 317 U.S. 49, 63 S. Ct. 99, 87 L. Ed. 23 (1942).

 The rule as to double jeopardy has been framed in United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961), in the following language:

"Offenses are not the same for purposes of the double jeopardy clause simply because they arise out of the same general course of criminal conduct; they are the 'same' only when 'the evidence required to support a conviction upon one of them [the indictments] would have been sufficient to warrant a conviction upon the other.' Morey v. Commonwealth, 1871, 108 Mass. 433, 434, quoted with approval in Ex parte Nielsen, 1889, 131 U.S. 176, 187-188, 9 S. Ct. 672, 676, 33 L. Ed. 118 and Gavieres v. United States, 1911, 220 U.S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489."

 That case dealt with a prior indictment for substantive offenses only, in which the defendant was acquitted. The second indictment contained various counts, three of which charged conspiracies to commit the acts which were the bases of the substantive counts in the first indictment. While the prosecution offered evidence of the conspiratorial agreement on the first trial, it was held not to be an essential element for conviction on that indictment. The court overruled the plea of double jeopardy.

 Following the Kramer case, the court was presented with the plea where both indictments were based on conspiracy. United States v. Friedland, 391 F.2d 378 (2d Cir. 1968). The court adopted the Kramer language on defendant's claim that the offense charged was another aspect of the conspiracy alleged in the first indictment. See also United States v. Edwards, 366 F.2d 853, 872 (2d Cir. 1966). In an earlier case in this circuit, the court said:

"The defendant may not later be tried again on that same fact situation, where no significant additional fact need be proved, even though he be charged under a different statute." United States v. Sabella, 272 F.2d 206, 212 (2d Cir. 1959).

 I have reviewed some 1100 pages of testimony from the first trial with these guidelines in mind. On the government's case, on direct examination, there was testimony that Motto, not a defendant or coconspirator here, asked if Marcus was amenable to taking care of deals and contracts with the city. Marcus agreed that he was. Subsequently, Itkin came to Marcus about the Jerome Park Reservoir contract on behalf of Motto, who was trying to get the contract for Fried's company. The necessary arrangements were concluded. About a year later, when the conspirators were carving up some of the proceeds of that "deal," Marcus was unhappy about his share and Itkin told Corallo and Motto that they ought to take better care of Marcus if he was going to play ball with them on other "deals."

 All of the other evidence in the record which could possibly relate to the present charge involving dealings with Consolidated Edison was brought out by defendants on cross-examination in an attempt to destroy the credibility of Marcus and Itkin. It covered a period subsequent to the events involved in the first trial. It indicates a separate and distinct conspiracy from that proven on the first trial. For example, Itkin testified that Fried told him that Itkin and Marcus were handling the city deals "terribly" and that they should use him and cut out Motto and Corallo. Fried mentioned Consolidated Edison to show that he knew what was going on, and later indicated that De Sapio was the one to handle that project. Thereafter Fried invited Itkin to his farm where he introduced him to De Sapio and told him that De Sapio would handle all deals from then on, and that "we should leave the others out of it."

 While the testimony brought out by the government might possibly tend to show the existence of a continuing conspiracy with multiple objects, such evidence was not necessary to convict these defendants of the conspiracy charged in the first indictment. That testimony could not convict these defendants of the present charge, especially since the testimony elicited by the defendants, referred to above, shows the probability of a different conspiracy with a different object.

 It may be, of course, that after a full trial, when the court can compare the evidence on both trials, a different conclusion may be reached as to the existence of separate conspiracies. Cf. United States v. Edwards, supra, 366 F.2d at 872. However, at this stage the test that different proof will be necessary to convict on this indictment has been met, and there is no justification for a pretrial hearing on this issue.

 Plea of Harassment, Res Judicata and Fed.R.Crim.P. 48(b)

 Aside from the claim that they have been placed in double jeopardy by this indictment, defendants Corallo and Fried urge that the indictment must be dismissed on nonconstitutional grounds of public policy, res judicata and unnecessary delay in presenting the charge to the grand jury.

 They contend that even if this indictment does not place them in double jeopardy it is apparent that the activities relied on arose out of a general course of conduct. Consequently, it is unfair to allow the government to indict and convict on one act involving the bribery of Marcus (the Jerome Park Reservoir contract) and then indict them in connection with the bribery of Marcus on another contract involving Consolidated Edison. They claim that the government had the necessary information regarding the crimes alleged in this indictment prior to the handing up of the first indictment.

 Reference is made to Petite v. United States, 361 U.S. 529, 530, 80 S. Ct. 450, 451, 4 L. Ed. 2d 490 (1960), in which the government stated that it was its general policy

"that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to ...

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