Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 857 F.2d 1479 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Dominic SPINALE, Edward De Leo, Donato Anguilo, ThomasAndrew Palladino, Jr., and Matthew Bamonte,Defendants-Appellants.

Nos. 88-1006, 88-1007, 88-1008, 88-1009, 88-1010.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 8, 1988.Decided Sept. 2, 1988.

Before WALLACE, TANG, and NELSON, Circuit Judges.


Two different appeals are before us. Angiulo appeals from a ruling denying his motion to dismiss his indictment based upon an alleged violation of the double jeopardy clause. We have jurisdiction pursuant to 28 U.S.C. § 1291; see Abney v. United States, 431 U.S. 651, 659 (1977).

Spinale, De Leo, Palladino, and Bamonte (defendants) also appeal the denial of a motion to dismiss their indictments based on alleged prosecutorial misconduct and abuse of the grand jury process. We have jurisdiction pursuant to 28 U.S.C. § 1291; see United States v. Benjamin, 812 F.2d 548, 551-54 (9th Cir. 1987).

Angiulo argues that he was already indicted and convicted under the same statute for the same type of activity in the District Court in Massachusetts. The government argues that the indictment at issue on this appeal covers different time periods, different localities, and different illegal businesses than at issue in the indictment and trial in Massachusetts. The district judge denied the motion to dismiss without prejudice. Essentially for the reasons stated by the district judge in his order dated November 24, 1987, we affirm.

The defendants argue that the government misused the grand jury by continuing its investigation of the defendants after indicting them in order to prepare for trial. They claim that the government had been aware of Bamonte for some time and did not need post-indictment use of the grand jury to link "Mario" to Bamonte. The government contends it was endeavoring to match "Mario," who was unidentified in the initial indictment, with Bamonte, who was subsequently indicted in a superseding indictment that included the defendants, by means of voice exemplars. The government used the voice exemplars to identify Bamonte as "Mario."

In re Grand Jury Proceedings (Pressman), 586 F.2d 724 (9th Cir. 1978) (per curiam), controls. The government is not forbidden from continuing its investigation by reason of the indictment. Id. at 725. "While it may be improper to call a grand jury witness solely to prepare a previously indicted case for trial, the government has every right to interrogate witnesses on subjects relevant to a pending indictment." Id. (citation omitted). The government may have known of Bamonte, but to indict him it needed evidence that he was the "Mario" identified in the first indictment. Pressman permits the government's use of the grand jury in this case.