The opinion of the court was delivered by: BARLOW
This case involves thirteen defendants (originally there were fifteen; two have since died) charged with violations of the Hobbs Act, 18 U.S.C. § 1951, in a sixty-six count indictment, Cr. No. 548-69, returned by a United States Grand Jury on December 17th, 1969. Specifically, Count I charges the defendants with "wilfully, unlawfully and feloniously" conspiring to "obstruct, delay and affect interstate commerce" by extortion "induced both by fear of financial injury and under color of official right" in connection with certain municipal construction projects undertaken by the City of Newark.
In Counts II through LXVI, all of the defendants are charged with substantive violations of 18 U.S.C. § 1951 in furtherance of the conspiracy and, additionally, in Counts XI through LXVI, various defendants are specially named.
The defendants filed a plethora of pre-trial motions in this case. Arguments thereon were heard on March 16th through March 19th, 1970. For the purposes of exposition and decision, these motions have been grouped in several categories.
Defendant Boiardo moves to strike the alias "Tony Boy" from the caption and from all counts of the indictment, on the ground that its inclusion can serve only to inspire jury prejudice.
During oral argument, the United States represented that its proofs at trial will necessitate the use of the alias to identify this defendant in connection with the acts charged in the indictment. The cases hold that, where relevant, the use of an alias in an indictment is permissible, and a pre-trial motion to strike should not be granted. United States v. Johnson, 298 F. Supp. 58, 65-66 (N.D. Ill., 1969); United States v. Miller, 381 F.2d 529 (2d Cir., 1967), cert. denied, 392 U.S. 929, 88 S. Ct. 2273, 20 L. Ed. 2d 1387 (1968). If, however, the United States fails to offer proof relating to the alias, this motion may be renewed, the alias struck, and an appropriate precautionary instruction given to the jury. See United States v. Brandt, 139 F. Supp. 367 (N.D. Ohio, 1955); United States v. Valenti, 74 F. Supp. 718 (W.D. Pa., 1947). Thus this motion must now be denied.
MOTIONS TO PERMIT CONFERENCES
Defendant H. Addonizio seeks an order permitting the defendants to interview any witnesses held by the United States in any form of protective custody. The United States represented to the court that it holds no witnesses in such custody and has no objections to the defendants interviewing any prospective witnesses who are willing to be so interviewed.
Additionally, the defendant H. Addonizio requests the entry of an order authorizing the defendants' attorneys to confer among themselves with respect to this indictment. Such an order is necessary, it is suggested, because the alleged "chilling effect" resulting from the pretrial publicity accorded this indictment may have inhibited defense counsel. All defendants herein are represented by experienced and knowledgeable counsel who are entirely aware of their complete freedom to communicate among themselves if they deem it advisable. Accordingly, any orders of the court with respect to either of these motions would be meaningless, and the motions therefore are denied.
Motion for pre-trial conferences
Defendants Boiardo and Biancone move for the scheduling of a pre-trial conference of all parties to (1) set a time and place for trial, and (2) order counsel to refrain from making public statements relating to the indictment.
It is the announced intention of the court to schedule a pre-trial conference, as provided for by Fed. R. Crim. P. 17.1, for the purpose of resolving numerous matters relating to the conduct of the trial. The date of that conference and the specific subject matter thereof will be determined at a later date. Therefore, that portion of the motion is granted.
All counsel are hereby admonished to adhere to the guidelines concerning publicity as set forth in General Rule 36 of the United States District Court for this district. Accordingly, at this time, no preventive order is necessary, and that portion of the motion is denied.
Defendants Krusch and Schiff move for a speedy trial. The court recognizing that the interests of justice require that the trial be held at the earliest practicable time, has heretofore advised all counsel that trial will commence on June 2nd, 1970. The relief sought has, accordingly, been granted.
Motions to suppress evidence obtained by the united states by means of electronic surveillance
The United States represented, during the course of oral argument, that it has never picked up the voice of the defendant H. Addonizio in any electronic surveillance. Counsel for defendant H. Addonizio stated, on the record, that he was satisfied by that representation. See Transcript, March 16th, 1970, p. 61. In addition, the United States represented that it had never picked up the voice of defendant Biancone in any electronic surveillance.
As to the defendants Boiardo and Vicaro, the United States represented that the only information concerning these defendants which was acquired through electronic surveillance is contained in the so-called DeCarlo and DeCavalcante tapes, which are available for inspection as public records, filed with the Clerk of the United States District Court in Newark.
Defendants Boiardo, Biancone and Vicaro refuse to accept such representations of the United States for the reason that there may be additional information resulting from electronic surveillance which reposes in government files unknown to the United States Attorney. They seek a pre-trial hearing to test the accuracy of the United States' representations as to the extent of any electronic surveillance of them or their premises.
It is the position of the United States that (1) existing law establishes that the representation of the United States in such circumstances is to be believed, and (2) in any event, it has made a full inquiry as to the extent of electronic surveillance regarding these defendants and has made full disclosure thereof.
This court has examined the transcript of the oral argument, the briefs filed, the relevant case law and the affidavit filed by the United States, at the direction of this court, outlining the scope of the inquiry underlying its representation. The court is satisfied that the United States has done all that could be reasonably required of it to assure that any information resulting from electronic surveillance involving the defendants in this ...