UNITED STATES DISTRICT COURT, EASTERN DISTRICT NEW YORK.
March 22, 1977.
UNITED STATES of America
Zvonko BUSIC, Julienne Busic, Petar Matanic, Frank Pesut, Defendants.
The opinion of the court was delivered by: BARTELS
MEMORANDUM-DECISION and ORDER
BARTELS, District Judge.
The defendants have moved to dismiss the indictment on the ground that the Grand Jury was not properly instructed with respect to the offense of air piracy from the commission of which a death resulted (49 U.S.C. § 1472(i)), and that therefore Count 1 of the indictment should be dismissed or, in the alternative, that the Court examine the Grand Jury minutes at least to ascertain whether the prosecutor's charge was fair.
The motion is denied on the authority of United States v. Linetsky, 533 F.2d 192 (5th Cir. 1976), and United States v. Slepicoff, 524 F.2d 1244 (5th Cir.), cert. denied, 425 U.S. 998, 96 S. Ct. 2215, 48 L. Ed. 2d 824 (1976), two obscenity cases where a claim was made that the Grand Jury had been instructed under the old, invalid standards of Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), and Memoris v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966), instead of under the newer standard of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). In Slepicoff and Linetsky the United States Court of Appeals for the Fifth Circuit rejected the contention that the indictments dictments were invalid because of assertedly improper instructions to the Grand July.
The motions with respect to the claim that Count 1 should be dismissed, because the Grand Jury was not properly instructed, are denied on the authority of Slepicoff and Linetsky . Therefore it is not necessary for the Court to examine the Grand Jury minutes under the circumstances.
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