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UNITED STATES v. CALLAHAN

June 4, 1969

UNITED STATES of America
v.
Thomas CALLAHAN, Frank "Sonny" Campbell, Thomas Kapatos, John Pierce and Henry Speditz, Defendants



The opinion of the court was delivered by: MOTLEY

MEMORANDUM DECISION and ORDER

 MOTLEY, District Judge.

 Defendants Callahan and Kapatos have been charged in count one with conspiracy to violate 18 U.S.C. § 2113(a) (bank robbery) and § 2113(d) (use of dangerous weapon in connection therewith). It is alleged, inter alia, that as a part of said conspiracy defendants: 1) would take and attempt to take from the person and presence of another property and money belonging to and in the custody of the First National Bank of Passaic County in Paterson, New Jersey; 2) in doing so would assault persons and put the lives of other persons in jeopardy through the use of a dangerous weapon; and 3) in so doing would travel in and would employ stolen motor vehicles. In connection with these allegations, it is further alleged that certain overt acts were committed in this District and elsewhere.

 In count 2 it is alleged that an attempt to rob the New Jersey bank took place in the Southern District of New York and elsewhere on or about May 1, 1964 and in count 3 that in the course of this attempt persons were assaulted and the lives of other persons were put in jeopardy by the use of a dangerous weapon. Counts 4 and 5 charge similar offenses except that the alleged date is on or about June 1, 1964.

 Count 6 charges a successful robbery on December 21, 1964 with assaults and the jeopardizing of lives with a dangerous weapon in connection therewith in count 7.

 Counts 8 and 9 charge the knowing transportation of a stolen motor vehicle in interstate commerce on or about April 19, 1964 and December 21, 1964, respectively, in violation of 18 U.S.C. §§ 2312 and 2.

 1. Defendants' first challenge is to the venue of counts 2 through 7. Defendants seek an inspection of the grand jury minutes of this District and the District of New Jersey and a preliminary hearing to determine whether the prerequisites exist for a criminal prosecution of the foregoing counts in this District. *fn1" Defendants believe that they are entitled to an order of dismissal on the ground that as to counts 2 through 7 the venue is not properly laid in this District. Defendants correctly assert that there must be proper venue as to each of these substantive counts, United States v. Bozza, 365 F.2d 206 (2d Cir. 1966), and that there isn't any violation of 18 U.S.C. § 2 alleged in the indictment as to any of those counts which would form a basis for proof that certain accessorial acts were committed in this District.

 The government's position as to determination of the venue question is correct, i.e., that it should await the trial. The venue question as to each of the challenged counts is a question of fact so entwined with the merits of each count that a decision should not be made prior to trial but postponed until trial. Rule 12(b)(4), Fed.R.Crim.P., cf. United States v. Fargas, 267 F. Supp. 452 (S.D.N.Y.1967). The government in its answering affidavit alleges that the evidence will establish that both the planning and initial steps in the alleged crimes (counts 2-7) took place within this District and, consequently, the prosecution is properly brought here. United States v. Gillette, 189 F.2d 449 (2d Cir. 1951), cert. denied, 342 U.S. 827, 72 S. Ct. 49, 96 L. Ed. 625 (1951); 18 U.S.C. §§ 3237(a) and 2. The government also argues that its proof will show that counts 2 through 5 are attempts to culminate the conspiracy, which is properly laid according to the allegations in the indictment in this District, United States v. Valle, 16 F.R.D. 519 (S.D.N.Y.1955), and counts 6 and 7 are the actual culmination of the conspiracy, making the prosecution of all of the counts, 1 through 7, proper here. cf. Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1945); 18 U.S.C. § 3237. The fact that the indictment does not cite 18 U.S.C. § 2 in connection with counts 2 through 7 is of no legal consequence, United States v. Grosh, 342 F.2d 141 (2d Cir. 1965), cert. denied, 381 U.S. 936, 85 S. Ct. 1767, 14 L. Ed. 2d 700, because one charged as a principal, as defendants are with respect to counts 2-7, may be convicted as an aider and abettor, United States v. Ramsey, 374 F.2d 192 (2d Cir. 1967), and tried in the district in which his accessorial acts took place. United States v. Bozza, supra.

 Finally, says the government, the indictment is sufficient on its face to show proper venue in this District in that it charges that each of the offenses alleged in counts 2 through 7 took place in this District and elsewhere; and this theory is, of course, correct. United States v. Valle, supra. Defendants are not entitled to inspect the grand jury minutes in the absence of a showing that grounds may exist for a motion to dismiss because of matters occurring before the grand jury. Rule 6(e) Fed.R.Crim.P. Here we do not even have a naked allegation of defendants that there was no evidence before the grand jury to support venue in this District. Defendants' request is simply for inspection and a hearing to determine if the jurisdictional prerequisites exist.

 The cases in this Circuit, and elsewhere, have uniformly held that if the indictment is valid upon its face, and was returned by a legally constituted, unbiased grand jury, this court is not to review the sufficiency of the evidence before that grand jury. United States v. Ramsey, 315 F.2d 199 (2d Cir. 1963), cert. denied, 375 U.S. 883, 84 S. Ct. 153, 11 L. Ed. 2d 113 (1963); United States v. Marth, 42 F.R.D. 432 (S.D.N.Y.1967); United States v. Calise, 217 F. Supp. 705 (S.D.N.Y.1962). Once it appears that the indictment is valid on its face and was returned by a legally constituted and unbiased grand jury, the indictment is sufficient to call for a trial on the merits, and allegations by defendant that the grand jury had no competent evidence to connect him with the crime charged are insufficient, under Rule 6(e), Fed.R.Crim.P., to give defendant a right to grand jury minutes. United States v. Reyes, 280 F. Supp. 267, 269 (S.D.N.Y.1968); United States v. Wallace, 272 F. Supp. 838 (S.D.N.Y.1967); United States v. Garcia, 272 F. Supp. 286 (S.D.N.Y.1967); United States v. Barnes, 313 F.2d 325 (6th Cir. 1963). The Supreme Court expressly refused to establish such easy accessibility to grand jury minutes in Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956).

 If the proof should fail to establish venue in this District for each of the challenged counts, essential elements of the government's case, the motion to dismiss can always be renewed at the end of the government's case and must then be granted. See, United States v. Gross, 276 F.2d 816, 819 (2d Cir. 1960), cert. denied, 363 U.S. 831, 80 S. Ct. 1602, 4 L. Ed. 2d 1525.

 2. At this pretrial stage, defendants also seek a hearing upon another issue. Rule 12(b), Fed.R.Crim.P. Defendants claim that prior to the instant indictment they were subpoenaed to appear before a federal grand jury sitting in Newark, New Jersey at which time they were the targets of the investigation. Upon arriving at the Post Office Building in Newark, defendants were allegedly ushered into the grand jury anteroom where there were 10 or 15 other prospective grand jury witnesses. The assistant United States Attorney conducting the examination allegedly made a point of calling out defendants' names in the presence of these other witnesses (apparently victims of the alleged robbery) and "took great pains to make certain that each prospective witness had a good opportunity to view the defendants." Defendants further allege that they were also invited into a suite of rooms, under the pretext of the necessity to sign a voucher for their witness fees, where they were surreptitiously photographed. Defendants claim that this procedure which took place without notice to or the presence of counsel which they had retained was, in the totality of the circumstances which surrounded the confrontation here, so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification and violated their rights to due process of law. Defendants rely upon the due process rule of Stovall v. Denno, 388 U.S. 293, 299, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967) since this alleged confrontation took place in 1965 prior to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Gilbert v. State of California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). The government's reply is that determination of this issue should be delayed until such time as the purportedly tainted identification evidence becomes an issue at the trial. The court agrees. Rule 12(b)(4). The government points out that it does not now know what witnesses it will produce at trial.

 3. Defendants next move, pursuant to Rule 12, Fed.R.Crim.P. and the Sixth Amendment to the Constitution, for an order compelling the United States Attorney to make available to defendants for interrogation, pursuant to their "Right of Confrontation", any "secreted" witnesses against defendants, including one Charles Roberts. In addition, defendants seek an order directing the appropriate authorities at New York State penal institutions (including state prisons at Dannemora, Sing Sing, and Green Haven) to make available to defendants the prison records relating to the "criminal activities and state of mental health of the said Roberts." With respect to the production of Roberts, in an accompanying affidavit, defendant Kapatos alleges as follows:

 
"It is particularly necessary because I believe that my alleged involvement in this case has been accomplished largely at the hands of an agent-in-former - one Charles Roberts - who admittedly has a history of mental disorder and a long criminal record with confinement in State penal institutions whose records are not available to me in preparation and planning my defense. I am informed that Roberts has a strong motive to fabricate my complicity herein, having previously sworn either to kill or "frame" me. (Parenthetically it should be noted that upon the pretrial hearing requested herein, I intend to produce witnesses who will so testify.) In any event, the informer's unusual relationship to this case requires in the interest of ...

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