15a means, his presence in Pittsburgh on the days in question.' Even if we assume then that the Plan and Act were violated and weigh such violation in our analysis of DiFrancesco's claim, the balance tips strongly against his contention that his right to a speedy trial was violated. DiFrancesco next argues that the court should have severed or declared a mistrial as to Count II of the indictment because of an error that was not discovered until the conclusion of the presentation of the government's case. At that time it was learned that the language contained in Count II of the copies of the indictment possessed by counsel for both the government and the defendants differed from that in the copy filed with the court. The prosecutor mistakenly had distributed copies of an earlier draft of the indictment, rather than the final, filed version. The earlier draft, which all counsel had assumed to be the actual indictment, named Valenti as the person who caused the damage to the old Federal Building and named the other defendants, including Di 7 The absence of evidence to support the claim of prejudice perhaps is explained by Valenti's subsequent plea of guilty, entered on February 15, 1979 before Judge Curtin, to one count of the indictment in this case. Valenti entered his plea after the attorney for the Department of Justice had recited a summary of the testimony which the government would have offered if the case against Valenti had gone to trial. This included testimony placing Valenti in Rochester on October 11 and 12. Valenti offered no objection or comment in response to this summary. 16a 8 Francesco, as aiders and abettors. The actual indicment named all the defendants as principals and, in addition, merely cited 18 U.S.C. § 2, the aiding and abetting statute." 8 Count II of the draft of the indictment charged: THAT, on or about October 11 and 12, 1970, in the Western District of New York, the Defendant herein, FRANK J. VALENTI, unlawfully did wilfully cause the wilful injury to and commission of depredations against the property of the United States of America and the departments and agencies thereof-namely the premises known as the (old) Federal Building located at Church and Fitzhugh Streets in the City of Rochester, New York —the damages to the said premises having exceeded the sum of $100: AND, at the time and place aforesaid, RENE J. PICCARRETO, SALVATORE GINGELLO, THOMAS DIDIO, DOMINIC CELESTINO, EUGENE DI FRANCESCO, ANGELO VACCARA and ANTHONY GINGELLO, the Defendants herein, unlawfully did aid, abet, counsel, command, induce and procure the commission of the aforesaid offense, all of which was in violation of the provisions of Section 1361 and 2 of Title 18 of the United States Code. Count II of the filed indictment charged: THAT, on or about October 11 and 12, 1970, in the Western District of New York, the Defendants herein, FRANK J. VALENTI, RENE J. PICCARRETO, SALVATORE GINGELLO, THOMAS DIDIO, DOMINIC CELESTINO, EUGENE DI FRANCESCO, ANGELO VACCARO and ANTHONY GINGELLO unlawfully and wilfully did injure and cause injury to and the commission of depredations against the property of the United States of America and the departments and agencies thereof namely, the premises known as the (old) Federal Building located at Church and Fitzhugh Streets in the City of Rochester, New York-the damages to the 54-193 0 - 79 - 15 15a means, his presence in Pittsburgh on the days in question." Even if we assume then that the Plan and Act were violated and weigh such violation in our analysis of DiFrancesco's claim, the balance tips strongly against his contention that his right to a speedy trial was violated. DiFrancesco next argues that the court should have severed or declared a mistrial as to Count II of the indictment because of an error that was not discovered until the conclusion of the presentation of the government's case. At that time it was learned that the language contained in Count II of the copies of the indictment possessed by counsel for both the government and the defendants differed from that in the copy filed with the court. The prosecutor mistakenly had distributed copies of an earlier draft of the indictment, rather than the final, filed version. The earlier draft, which all counsel had assumed to be the actual indictment, named Valenti as the person who caused the damage to the old Federal Building and named the other defendants, including Di 7 The absence of evidence to support the claim of prejudice perhaps is explained by Valenti's subsequent plea of guilty, entered on February 15, 1979 before Judge Curtin, to one count of the indictment in this case. Valenti entered his plea after the attorney for the Department of Justice had recited a summary of the testimony which the government would have offered if the case against Valenti had gone to trial. This included testimony placing Valenti in Rochester on October 11 and 12. Valenti offered no objection or comment in response to this summary. 16a 8 Francesco, as aiders and abettors. The actual indicment named all the defendants as principals and, in addition, merely cited 18 U.S.C. § 2, the aiding and abetting statute." 8 Count II of the draft of the indictment charged: THAT, on or about October 11 and 12, 1970, in the Western District of New York, the Defendant herein, FRANK J. VALENTI, unlawfully did wilfully cause the wilful injury to and commission of depredations against the property of the United States of America and the departments and agencies thereof-namely the premises known as the (old) Federal Building located at Church and Fitzhugh Streets in the City of Rochester, New York -the damages to the said premises having exceeded the sum of $100: AND, at the time and place aforesaid, RENE J. PICCARRETO, SALVATORE GINGELLO, THOMAS DIDIO, DOMINIC CELESTINO, EUGENE DI FRANCESCO, ANGELO VACCARA and ANTHONY GINGELLO, the Defendants herein, unlawfully did aid, abet, counsel, command, induce and procure the commission of the aforesaid offense, all of which was in violation of the provisions of Section 1361 and 2 of Title 18 of the United States Code. 9 Count II of the filed indictment charged: THAT, on or about October 11 and 12, 1970, in the Western District of New York, the Defendants herein, FRANK J. VALENTI, RENE J. PICCARRETO, SALVATORE GINGELLO, THOMAS DIDIO, DOMINIC CELESTINO, EUGENE DI FRANCESCO, ANGELO VACCARO and ANTHONY GINGELLO unlawfully and wilfully did injure and cause injury to and the commission of depredations against the property of the United States of America and the departments and agencies thereof-namely, the premises known as the (old) Federal Building located at Church and Fitzhugh Streets in the City of Rochester, New York-the damages to the 15a means, his presence in Pittsburgh on the days in Even if we assume then that the Plan and Act were violated and weigh such violation in our analysis of DiFrancesco's claim, the balance tips strongly against his contention that his right to a speedy trial was violated. DiFrancesco next argues that the court should have severed or declared a mistrial as to Count II of the indictment because of an error that was not discovered until the conclusion of the presentation of the government's case. At that time it was learned that the language contained in Count II of the copies of the indictment possessed by counsel for both the government and the defendants differed from that in the copy filed with the court. The prosecutor mistakenly had distributed copies of an earlier draft of the indictment, rather than the final, filed version. The earlier draft, which all counsel had assumed to be the actual indictment, named Valenti as the person who caused the damage to the old Federal Building and named the other defendants, including Di 7 The absence of evidence to support the claim of prejudice perhaps is explained by Valenti's subsequent plea of guilty, entered on February 15, 1979 before Judge Curtin, to one count of the indictment in this case. Valenti entered his plea after the attorney for the Department of Justice had recited a summary of the testimony which the government would have offered if the case against Valenti had gone to trial. This included testimony placing Valenti in Rochester on October 11 and 12. Valenti offered no objection or comment in response to this summary. |