James Martin v. Mario Merola, District Attorney, Bronx County

532 F.2d 191

• Court: Court of Appeals for the Second Circuit
• Decided: February 5, 1976
• Docket: 1024, Docket 75-7113
• Status: Published

Opinions

PER CURIAM:

This appeal raises important questions as to the scope of a prosecutor’s immunity to suit. The six plaintiffs, all of whom were indicted in Bronx County in August 1974, on one or more felony charges arising out of an alleged loan-sharking operation,¹ instituted this damage action under 42 U.S.C. § 1983 alleging, inter alia, that their constitutionally guaranteed right to a fair trial had been infringed by the action of the defendants, Mario Merola, District Attorney of Bronx County, and two of his assistants, in announcing to the press the arrest of the plaintiffs and asserting that they were “linked directly to Mafia Crime Families,” and “vultures” . . . “tied . strongly . . . with Tramunti Crime Families.” Plaintiffs appeal from a January 23, 1975 order of the Southern District granting defendants’ motion for summary judgment.²

Each of the six plaintiffs was arrested on August 7, 1974, after warrants had issued on the sealed indictments returned by the Bronx County grand jury in July and August, 1974. Their complaint sets out in considerable detail the circumstances of the arrest and confinement of Carmine Apuzzo and Angelo Leonardi, alleged to be oppressive in view of police knowledge that each of these individuals suffered from serious and debilitating diseases.³ We find it unnecessary to deal with these allegations in the absence of any indication that the three appellees were personally involved in the conduct complained of.⁴ Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973).

Appellants, however, further assert that appellees issued press releases to various news media regarding plaintiffs’ arrest—a fact not denied by the appellees—and that these press releases violated appellants’ 4th, 5th, 6th, 8th, 13th, and 14th Amendment rights. Newspaper clippings, annexed to an affidavit submitted by plaintiffs’ counsel in response to defendants’ motion for summary judgment, reveal the tenor of the news stories engendered by the district attorney’s remarks. On August 9,1974, the New York Times reported that:

Mr. Merola said yesterday that the operation’s ringleader was James Darienzo, 64 years old, of 2720 Seymour Ave., the Bronx. The District Attorney said he was “strongly connected with the Tra-munti crime family.”

Another man indicted, Carmine Lavia, 43, of 2231 Treman Avenue, the Bronx, was said by Mr. Merola to be tied to the reputed crime family of Joseph S. Colum-bo, Sr.

The New York Post article included Mero-la’s characterization of appellants as “vultures” and his comment that “[mjembers of this ring have been linked directly to the Tramunti and Columbo crime families.” Similar accounts appeared in the New York Daily News and the Times Herald Record. Judge Brieant described these stories as “of a somewhat lurid and sensational nature.”

In granting appellees’ motion for summary judgment, Judge Brieant held that the doctrine of prosecutorial immunity barred the appellants from vindicating any possible violation of fair trial rights resulting from the alleged acts of the prosecutors. While recognizing that disclosure of the plaintiffs’ purported criminal affiliations with “crime families” was arguably a failure to comply with the Fair Trial and Free Press Criminal Justice Standards of the American Bar Association,⁵ and that it may have been a breach of the Code of Professional Responsibility adopted by the New York State Bar Association,⁶ he concluded that such a “breach of prosecutorial responsibility does not amount to a ‘deprivation of . rights, privileges, or immunities secured by the Constitution and laws,’ 42 U.S.C. 1983.” Judge Brieant added: “Apart from the right of the public to know, it would seem that the prosecutor should enjoy some right of free speech so as to permit him to account through the media to the voting public for his stewardship of his important public trust.”

In view of our disposition of the appeal which results in a dismissal of the action without prejudice, we need not consider whether such a complaint, if and when ■ it is again filed after the termination of the criminal proceedings, would state a claim for relief. Indeed, the dismissal of the complaint deprives the district court and this court of jurisdiction since there is no longer a pending case or controversy for the district court to manage. Hawkins v. Town of Shaw, 461 F.2d 1171, 1173 (5th Cir. 1972) (en banc).

Until the state prosecutions have been concluded, it is simply impossible to make any reasoned evaluation of plaintiffs’ claim that they have been deprived of the opportunity to secure a fair trial by reason of the defendants’ actions. Such a claim requires more than the mere speculation of damages contained in plaintiffs’ complaint; it requires a showing that plaintiffs have in fact been denied their due process rights. Rosenberg v. Martin, 478 F.2d 520, 525 (2d Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90 (1973). We do not know, nor can the parties now illuminate, whether an impartial jury may be selected. Cf. Tunnell v. Wiley, 514 F.2d 971 (3d Cir. 1975). Similarly, we can only guess as to the desirability of a change in venue or the feasibility of a continuance.

Moreover, even if such determinations were possible, it would offend the principle of comity for a federal district court to inquire into plaintiffs’ ability to secure a fair trial in a pending state prosecution. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). That appellants herein have requested such an inquiry in the context of an action for damages rather than a suit directly to enjoin a state criminal proceeding is not determinative. See Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir. 1974). In implementing the policy of non-interference, federal courts must focus upon the practical impact of any potential ruling. See Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). In addition, such parallel proceedings represent a drain on already overextended judicial and prosecutorial resources.

We believe the requirement that defendants wait until criminal proceedings have terminated before asking a federal court for damages against the prosecutor will tend to eliminate those suits which might be brought for purposes of harassment.

Accordingly, we agree that plaintiffs’ complaint must be dismissed on the basis that it is now premature. We do so without prejudice to its renewal at the conclusion of state criminal proceedings when the district court will be better able to assess the merits of plaintiffs’ claims.⁷

Vacated and remanded to the district court with directions to dismiss the complaint without prejudice.

1 . Carmine Apuzzo was indicted, with three others on July 19, 1974, for third degree conspiracy and criminal usury.

James Darienzo, a/k/a James Martin, Angelo Leonardi, and Carmine Lavia were indicted, also' on July 19, for fourth degree conspiracy and tampering with a witness.

James Darienzo (James Martin) was further indicted on July 31 for felonious possession of a weapon.

James Darienzo (James Martin), Angelo Leo-nardi, Ronald Darienzo, Bruce Doak, Carmine Lavia, and one other, were indicted on August 2 for third degree conspiracy and thirteen counts of criminal usury.

2 . The district court’s summary judgment decision-was restricted to defendants Merola, Darcy and Chesler, all prosecutors in Bronx County. It did not affect plaintiffs action against six police officers, also named as defendants in the complaint. On January 23, 1975, Judge Brieant granted, without prejudice, a motion to dismiss filed by the police officer defendants for failure of the complaint

to set forth separately and with sufficient specificity to permit an informed responsive pleading, the facts relied on to show personal involvement by each defendant, stated separately, in order that the Court may ascertain what each such defendant did, and whether or not such conduct was within the limited immunity available to these movants.

Plaintiffs have since filed an amended complaint.

3 . Apuzzo suffered from diabetes and terminal cancer. He has since died. Leonardi had undergone open heart surgery nine months prior to his arrest.

4 . See note 2, supra.

5 . The ABA Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press, Part II, § 2.1(1), proscribe the release by law enforcement officers, of information relating to a defendant’s prior criminal record, character or reputation.

6 . Judiciary Law, McKinney’s Supp. 1975.

7 . We note that, in the absence of any federal statute of limitations, § 1983 actions brought in New York State are governed by the three year period provided in CPLR § 214 for suits based on a statute. Swan v. Board of Education, 319 F.2d 56, 59 (2d Cir. 1963); Romer v. Leary, 425 F.2d 186 (2d Cir. 1970). The question of when a claim for relief accrues, however, remains one of federal law. Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974). As a corollary to today’s decision that plaintiffs’ complaint is presently premature, we hold that the statute of limitations should not begin to run until the completion of their criminal trial. In this manner, plaintiffs’ claim that they have been deprived of the opportunity to secure a fair trial will be preserved until such time as the extent of their injury, if any, is capable of determination. Id.