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United States v. Pasquale

filed: December 23, 1988.

UNITED STATES OF AMERICA
v.
VINCENT DI PASQUALE, APPELLANT IN 86-5810; UNITED STATES OF AMERICA V. DI NORSCIO, GIACOMO, APPELLANT IN 86-5835 & 87-5284; UNITED STATES OF AMERICA V. COHEN, GERALD, APPELLANT IN 86-5841 & 87-5285; UNITED STATES OF AMERICA V. DELUCA, GERALD, APPELLANT IN 86-5836 & 87-5286; UNITED STATES OF AMERICA V. SINICO, JOHN, APPELLANT IN 86-5875 & 87-5288; UNITED STATES OF AMERICA V. TRUGLIA, ANTHONY, APPELLANT IN 86-5886 & 87-5317



On Appeal from the United States District Court for the District of New Jersey - Newark, D.C. Criminal Nos. 86-223-9, 86-223-01, 86-223-02, 86-223-05, 86-223, 86-223-10

Author: Higginbotham

Higginbotham and Becker, Circuit Judges and Shapiro, District Judge.*fn*

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

These consolidated appeals are brought by six co-defendants from judgments of conviction and sentence on charges arising from a conspiracy to distribute narcotics. Appellants Giacomo Di Norscio, Gerald Cohen, Gerald Deluca, John Sinico, Anthony Truglia and Vincent Di Pasquale, assert several and various contentions of error in the district court's conduct of their trial and imposition of sentence. They assert, inter ali, that the district court erred by refusing to grant a motion for an evidentiary hearing to determine whether the government had impermissibly utilized its peremptory challenges during voir dire to exclude a cognizable ethnic group; that the district court erred by refusing to grant a motion for recusal; that the district court erred by its imposition of an enhanced sentence pursuant to the federal statute that provides for increased penalties for persons convicted of an offense committed while on bail for a separate offense; and finally, that the district court erred by refusing to dismiss the indictment because the charging grand jury did not fairly represent a cross-section of the community.*fn1 We find each of these contentions without merit and, accordingly, we will affirm the district court's judgments of conviction and sentence.*fn2

I.

Background

Appellants were charged, in a six-count indictment returned in June 1986, with participation in a conspiracy to distribute cocaine between several states during the period between September 1985 and June 1986. Specifically, the indictment alleged that the appellants, together with five co-defendants*fn3, conspired to distribute cocaine from a base in Florida to New Jersey and several other states; possessed and aided and abetted the possession of cocaine with the intent to distribute it; and that, in pursuit of the conspiracy, two of the appellants -- Di Norscio and Cohen -- engaged in a continuing criminal enterprise as the principal administrators and organizers of the illicit conspiracy. The principal evidence of the conspiracy was presented through the testimony of three witnesses: William Hawley, Gregory Hamilton, and Robert Fisher, each of whom observed and participated in some aspects of the illegal transactions.*fn4

The trial of these charges commenced in September 1986 and resulted in the conviction of each appellant for participation in the conspiracy and for possession with the intent to distribute cocaine in violation of 21 U.S.C. § 846 (1982).*fn5 Additionally, the jury found Di Norscio and Cohen guilty of the continuing criminal enterprise charge, which involved felony violations of subchapters I and II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 848 (Supp. IV 1986)*fn6, and found Di Norscio and De Luca guilty of possession with the intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1)(1982).*fn7

Pursuant to these verdicts, the district court sentenced Di Norscio to two concurrent twenty-five year prison terms, a six year special parole term, and a $5,000 fine. It also imposed a consecutive five year term pursuant to 18 U.S.C. § 3147 (Supp. IV 1986)("§ 3147").*fn8 The district court sentenced Cohen to a twenty-five year prison term and to a consecutive five year term under § 3147. DeLuca was sentenced to concurrent terms of seventeen and ten years and to a three year special parole term. He was also sentenced to a consecutive term, under § 3147, of three years. The district court sentenced Sinico to a seven year prison term, Truglia to a ten year prison term and DiPasquale to a fifteen year prison term, to be served concurrently with a term that he was serving as the result of a prior conviction.

Following the entry of judgments of convictions and sentences, the appellants timely filed notices of appeal alleging error in the conduct of their trial. They assert: (1) that the government improperly exercised its peremptory challenges to exclude Italian-Americans from the petit jury in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986); (2) that the district court erred by failing to grant a motion for recusal pursuant to 28 U.S.C. § 455(a), (b)(1), and (b)(3)(1982); (3) that the district court improperly enhanced their sentences under § 3147; and (4) that the grand jury selection process systematically excluded Blacks, Hispanic-Americans and persons with less than high school educations, in violation of the sixth and fourteenth amendments and the Jury Selection and Service Act of 1968, ("Jury Selection Act"), 28 U.S.C. § 1861 et seq. (1982). We have reviewed these contentions and find none of them sufficient to warrant intrusion upon the judgments of the district court. We will, therefore, affirm.

II.

Exclusion of Italian-Americans From the Petit Jury

Di Norscio contends that, during the selection of the jury, the government exercised five peremptory challenges against venire persons with Italian surnames for the purpose of excluding Italian-Americans from the jury. Di Norscio argues that the government's use of peremptory challenges in that manner violated his right to equal protection, as set forth in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Di Norscio moved for a hearing under Batson to require the government to put forward a "neutral explanation," id. at 97, for challenging the jurors and the district court reserved judgment on the motion pending the completion of the voir dire. The jury selection process was completed resulting in the selection of two jurors who had Italian surnames.

Immediately following the jury selection, the district court denied Di Norscio's application for a Batson hearing. It concluded that the Batson rule is explicitly limited to racial discrimination against blacks and, thus, did not extend to Italian-Americans. United States v. Dinorscio, et al., 661 F. Supp. 1041 (D.N.J. Sept. 11, 1986), reprinted in Appellants' App. at 271. Significantly, however, it found regarding two of the challenged jurors, that permissible grounds for exclusion existed, and concluded that even if it read Batson to extend beyond black Americans, Di Norscio had not made the requisite factual showing of the cognizability of the group that he alleges to have been excluded, or that any group was actually excluded. The district court stated its finding that "[Di Norscio's] application [for a Batson hearing] is bottomed on nothing -- on utterly nothing either factual or legal." Id. at 274.

We need not consider the correctness of the district court's determination that the rule of Batson is not applicable to cognizable racial or ethnic groups other than black Americans under any circumstances because we conclude that the district court's decision not to exercise its discretion and order a Batson hearing -- on the facts of this case -- did not constitute reversible error.*fn9 Accordingly, we will not disturb the district court's judgment.*fn10

Under Batson, to establish a prima facie case of purposeful discrimination in the selection of the petit jury, a

defendant must first show that he [or she] is a member of a cognizable racial group, Castaneda v. Partida,. . . [430 U.S.] at 494, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate. Avery v. Georgia, 345 U.S., at 562. Finally, the defendant must show that these facts and any other relevant ...


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