United States v. Rosner

Decision Date26 September 1973
Docket NumberNo. 1057,Docket 73-1511.,1057
Citation485 F.2d 1213
PartiesUNITED STATES of America, Appellee, v. Edmund ROSNER, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

Alan Dershowitz, Cambridge, Mass., for defendant-appellant.

Elliot G. Sagor, Kenneth R. Feinberg, John D. Gordan, III, John W. Nields, Asst. U. S. Attys., of counsel (Paul J. Curran, U. S. Atty., Southern District of New York), for appellee.

Paul G. Chevigny, New York City, Edwin J. Oppenheimer, of counsel (American Civil Liberties Union), as amicus curiae.

Before MOORE and OAKES, Circuit Judges, and GURFEIN,* District Judge.

GURFEIN, District Judge:

This is an appeal from a conviction of Edmund A. Rosner, a practicing lawyer, of the crimes of conspiracy, 18 U.S. C. § 371, obstruction of justice, 18 U.S. C. §§ 1503 and 2, and of three counts of bribery, 18 U.S.C. §§ 201(b) and 2, and 3237. The indictment was filed on July 5, 1972, naming appellant and Nicholas DeStefano, a private investigator, and Nicholas Lamattina, a New York City policeman, as co-defendants. Each of the co-defendants pleaded guilty in circumstances to be related. Neither testified at Rosner's trial which began on November 20, 1972 and ended on December 5, 1972. Judge Bauman sentenced appellant on March 20, 1973 to imprisonment for five years on each count to run concurrently. The basic issue raised is whether appellant was entrapped as a matter of law and whether, alternatively, the trial judge erred in his charge on entrapment. Rosner made two motions for a new trial on the basis of newly discovered evidence.1 The second motion, which was denied after an evidentiary hearing, raised the claim of governmental violation of appellant's Sixth Amendment right to privacy of communication with his counsel.

I.

The Evidence at the Trial.

We must view the evidence in the light most favorable to the Government after a conviction, see United States v. Smalls, 363 F.2d 417 (2 Cir. 1966), cert. denied, 385 U.S. 1027, 87 S. Ct. 755, 17 L.Ed.2d 675 (1967).

(a) The Rosner Subornation of Perjury Case (Rosner I).

In August 1971 Rosner was under indictment (70 Cr. 1030, hereinafter "Rosner I"), with DeStefano and two co-defendants on charges of suborning perjury and procuring false alibi testimony from one Pedro Hernandez and three others at a Federal narcotics trial that had been held in March 1967. The Rosner I indictment was ultimately dismissed on January 24, 1972 for failure of the Government to prosecute, due to the disappearance of its chief witness, Hernandez. The crimes here charged took place while the Rosner I indictment was still pending.2

(b) The Martinez-Marcone Situation.

In August 1971 the Grand Jury was also investigating the dismissal in February 1970 of a narcotics case against Felix Martinez in Queens Supreme Court. Targets included Dominick Marcone, a bail bondsman, the arresting police officers, and their associates. Detective Robert Leuci of the New York Police Department was asked by the United States Attorney's office to investigate the Martinez matter in an undercover capacity.3 Leuci agreed to hold himself out as a corruptible policeman.

(c) The Events that Followed.

On September 28, 1971 Leuci called co-defendant Lamattina, also a police detective, to arrange a meeting. Leuci knew that Lamattina had been connected with the Martinez case. On September 30 Leuci, wired with a recording device, met Lamattina and represented that he had a "contact" in the United States Attorney's office. His "contact" was, in fact, Special Assistant United States Attorney Scoppetta, Leuci's supervisor in the undercover investigation. Divulging to Lamattina that his "contact" was active in the Marcone situation under federal investigation, Lamattina, in turn, told Leuci that it was DeStefano who had "asked me to get in touch with the detectives who made the arrest in the case," and that the detectives had told Lamattina that for $25,000 they would see to it that Martinez went free.4 Lamattina arranged, at his own suggestion, for Leuci to meet with DeStefano and Marcone. At this meeting, there was a brief discussion of Marcone's case, during which Leuci revealed information purportedly relayed to him by his "contact." As Marcone left, he asked DeStefano to "get whatever you can get." Lamattina and DeStefano went into a "semi-huddle;" Leuci overheard DeStefano say "that Rosner thing is important to me, too." Talk shifted from the next meeting place to Marcone and from Marcone to drugs, before DeStefano said, "You know, you can help me with something else, something else I am interested in." Leuci replied that he knew that DeStefano meant "The Rosner situation." And DeStefano affirmed "Yes, that's right." DeStefano asked Leuci to approach his "contact" about the matter immediately, and said that a meeting would be arranged for the next day. When DeStefano told Leuci he would like to bring Rosner along, Leuci balked, telling DeStefano "I didn't think that bringing Rosner was such a good idea and I wasn't so crazy about Rosner. I said I didn't know him but from things I had heard about him I wasn't so crazy about the idea of him DeStefano bringing him Rosner." DeStefano reassured Leuci that Rosner was "a thousand per cent guy." A meeting was set for October 1, 1971.

Rosner did not attend the meeting on October 1. Instead Leuci again met with Lamattina and DeStefano. The Marcone case was discussed, and DeStefano told Leuci that Rosner had declined the invitation to attend the meeting because "he felt that he had the case beat" but that Rosner would be in touch "if the need ever arised" sic. Leuci did not press to meet Rosner, but replied "it's fine." Another meeting was arranged for October 4.

On October 4, Leuci met Lamattina and they entered a coffee shop, where Rosner and DeStefano were seated at a table. Leuci was frisked for a listening device which he was not wearing. Rosner asked Leuci about the Marcone case. After some discussion of the Marcone case, Rosner asked Leuci "Can your friend help us in our case?" Leuci said "I think he can. You ask me what you want and I will put it to my friend." Rosner said he wanted 3500 material. Rosner told Leuci that he understood that there were four witnesses in the case and that "two are good and two are bad," and that he "would like to find out what two are good and what two aren't good."

Leuci told Rosner that although his contact had not yet established a price for the information Rosner wanted, Leuci "would appreciate it if something were done" for his "contact" in the United States Attorney's office, "as soon as possible." Rosner and DeStefano stepped away from the table and Leuci saw Rosner pass DeStefano some money. When they returned to the table DeStefano passed Leuci $400 under the table. Rosner turned the conversation back to the Marcone investigation and then went to pay the check. DeStefano and Lamattina approached Leuci separately and counselled Leuci that if he wanted to get more money he would have to "put Rosner in deeper." Outside the restaurant Rosner told Leuci that if his "contact" could get what he had asked for "there would be a lot more for him the `contact' in the future."

On October 6, Leuci, DeStefano and Lamattina met again. DeStefano told Leuci that Rosner harbored suspicions that Leuci might be working for the Government because of newspaper revelations about the Marcone investigation. DeStefano warned Leuci that if he were an undercover agent "This world is not a big enough place for you to hide in." There was some discussion of the amount Leuci wanted for his "contact" and whether Leuci could obtain a copy of the Marcone indictment as well as information on Rosner I. DeStefano told Leuci that Rosner should be told that the asking price for both was $5,000. Thus, Rosner would pay $2,500, thinking that was half, but since DeStefano would pay only $1,000, Leuci and his "contact" would actually gross $3,500.

On October 8, 1971 Leuci met DeStefano, and Leuci told him that he had photocopies of the 3500 material in Rosner I and a draft copy of the Marcone indictment. DeStefano said he would call Rosner, and DeStefano gave Leuci $100 "for you and your friend." After Lamattina's arrival, Leuci showed DeStefano, in Lamattina's presence, a draft copy of the Marcone indictment and the statements of three witnesses. When Rosner appeared, DeStefano stood up and the two walked to the back of the restaurant. They returned and sat down. Rosner said "Everything is going to be all right." DeStefano explained to Leuci that Rosner meant that Leuci would get his money but not that night. When Leuci pressed the matter, Rosner promised he would get Leuci the money after the holiday weekend, but that he would give the money to DeStefano who would give it to Leuci.

After reading the 3500 statements at a nearby table Rosner stated, "No figure has been quoted to me . . . you will get $2,500." DeStefano and Rosner asked questions about a "list of witnesses" and whether they could get more statements. The meeting ended with Rosner asking "to study the Marcone indictment over the weekend." Leuci gave it to him.5

On October 12 Leuci, this time wearing recording equipment, met with DeStefano. DeStefano asked Leuci for the Grand Jury minutes in the Rosner I case. Leuci said that would cost extra. Leuci told DeStefano to charge Rosner $2,000 and to keep half himself. They haggled and agreed upon $1,500. Saying that the money came from Rosner, DeStefano gave Leuci money which Leuci had been promised on October 8. DeStefano withheld some, and gave Leuci $1,150 in a cigarette package. A meeting was arranged for the next day.

On the evening of October 13, Leuci approached the Royal Pub Restaurant wearing his recording equipment. Before Rosner's arrival, DeStefano asked whether Leuci knew if one George Stewart was cooperating with the Government....

To continue reading

Request your trial
131 cases
  • In re State Police Litigation
    • United States
    • U.S. District Court — District of Connecticut
    • 16 May 1995
    ...between an attorney and his or her client. See United States v. Noriega, 917 F.2d 1543, 1551 n. 9 (11th Cir.1990); United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir.1973) ("The essence of the Sixth Amendment right to counsel is, indeed, privacy of communication with counsel."); see also ......
  • United States v. Gregory
    • United States
    • U.S. District Court — Southern District of New York
    • 29 January 1985
    ...States, 176 F.2d 884, 887 (9th Cir.1949). 4 United States v. Rosner, 352 F.Supp. 915, 919 (S.D.N.Y.1972), mod. on other grounds, 485 F.2d 1213 (2d Cir.1973), cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974); United States v. Solow, 138 F.Supp. 812, 814 5 Marshall also assert......
  • U.S. v. Howard
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 23 March 1978
    ...Catrino v. United States, 176 F.2d 884, 887 (9th Cir. 1949); United States v. Rosner, 352 F.Supp. 915, 919 (S.D.N.Y.1972), aff'd, 485 F.2d 1213 (2d Cir. 1973), cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974) (holding attempt to obtain secret grand jury documents covered by ......
  • United States v. Crow Dog
    • United States
    • U.S. District Court — Northern District of Iowa
    • 4 August 1975
    ...by the Sixth Amendment. Hoffa v. United States, 385 U.S. 293, 306-308, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); United States v. Rosner, 485 F.2d 1213, 1224 (2nd Cir. 1973). See United States v. Zarzour, 432 F.2d 1, 3-4 (5th Cir. 1970). Since defense strategy was not passed on to the FBI or pro......
  • Request a trial to view additional results
7 books & journal articles
  • Obstruction of justice.
    • United States
    • American Criminal Law Review Vol. 45 No. 2, March 2008
    • 22 March 2008
    ...of obstructing justice where object of defendant's alleged attempted illegal influence was undercover agent); United States v. Rosner, 485 F.2d 1213, 1228 (2d Cir. 1973) (upholding conviction for obstruction of justice where defendant paid undercover agent money for material related to gran......
  • Obstruction of justice.
    • United States
    • American Criminal Law Review Vol. 43 No. 2, March 2006
    • 22 March 2006
    ...of obstructing justice, where object of defendant's alleged attempted illegal influence was undercover agent); United States v. Rosner, 485 F.2d 1213, 1228 (2d Cir. 1973) (upholding conviction for obstruction of justice where defendant paid undercover agent money for material related to gra......
  • Obstruction of justice.
    • United States
    • American Criminal Law Review Vol. 44 No. 2, March 2007
    • 22 March 2007
    ...of obstructing justice where object of defendant's alleged attempted illegal influence was undercover agent); United States v. Rosner, 485 F.2d 1213, 1228 (2d Cir. 1973) (upholding conviction for obstruction of justice where defendant paid undercover agent money for material related to gran......
  • Obstruction of justice.
    • United States
    • American Criminal Law Review Vol. 46 No. 2, March 2009
    • 22 March 2009
    ...of obstructing justice where object of defendant's alleged attempted illegal influence was undercover agent); United States v. Rosner, 485 F.2d 1213, 1228 (2d Cir. 1973) (upholding conviction for obstruction of justice where defendant paid undercover agent money for material related to gran......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT