U.S. v. Gentile, s. 260

• Decision Date: 22 October 1975
• Docket Number: Nos. 260,261,D,s. 260
• Citation: 525 F.2d 252
• Parties: UNITED STATES of America, Appellee, v. Joseph GENTILE and Ernest LaPonzina, Defendants-Appellants. ockets 75-1248, 75-1249.
• Court: U.S. Court of Appeals — Second Circuit

Page 252

525 F.2d 252

UNITED STATES of America, Appellee, v. Joseph GENTILE and Ernest LaPonzina, Defendants-Appellants.

Nos. 260, 261, Dockets 75-1248, 75-1249.

United States Court of Appeals, Second Circuit.

Argued Sept. 19, 1975.

Decided Oct. 22, 1975.

Irwin Klein, New York City, for defendants-appellants.

Kirby Patterson, Dept. of Justice, Washington, D. C. (David G. Trager, U. S. Atty., Eastern District of New York, and Sidney M. Glazer, Dept. of Justice, Washington, D. C., of counsel), for appellee.

Before FRIENDLY, TIMBERS and GURFEIN, Circuit Judges.

FRIENDLY, Circuit Judge:

Joseph Gentile and Ernest LaPonzina appeal from convictions after a jury trial in the District Court for the Eastern District of New York. Gentile was convicted on two counts of offering a bribe of $3,000 and giving such a bribe to I.R.S. Special Agent Nicholas Tsotsos on June 14 and 15, 1972, respectively, in violation of 18 U.S.C. § 201(b). Both appellants were convicted on a count of offering a bribe of $1,000 and free golf lessons and giving such a bribe to Tsotsos between June 14 and August 9, 1972, also in violation of 18 U.S.C. § 201(b). Both appellants were convicted of conspiring to give the latter bribe, in violation of 18 U.S.C. § 371. Appellants' legal contentions can be understood without a detailed statement of the facts.

I.

The most serious contention is one raised and raisable solely by LaPonzina. Initially the judge had granted LaPonzina's motion for severance. Then, at his request, the ruling was reversed. Later he changed his mind again, but the judge refused a second request for severance.

After a jury had been selected, the prosecutor, Mr. Barlow, made an extended opening. Evidently thinking that some explanation of this was needed, he told the jury that they had heard the judge talk about a possible defense of entrapment; that they were going to hear a lot of argument about it; and that, as triers of the fact, under instructions from the judge on the law, they would have to decide whether Gentile and LaPonzina were forced into committing a crime or whether Agent Tsotsos merely afforded them an opportunity. Therefore, when hearing agent Tsotsos and particularly when listening to tapes of various conversations, they should attend "very, very carefully to the words that are used, the phrasing that is being used, the inflections of the people's voices . . . ."

The judge then inquired whether Gentile's attorney, Mr. Schettino, wished to open. Schettino asked permission to approach the sidebar. He objected to the prosecutor's having anticipated the defense of entrapment. The court agreed that the prosecutor "should not have made that statement." The prosecutor answered that the entrapment defense had been raised by preliminary motion of a previous counsel on behalf of Gentile and had been referred to in the voir dire of the jurors. Mr. Klein, attorney for LaPonzina, entered the fray in support of the argument that the opening had been improper, since "(y)our main case is only what you are supposed to tell them." The judge said that the argument "raises a problem. I do not know how serious it is. It may not be serious at all." After a further intervention by Mr. Klein, urging the impropriety of the opening, the judge declared a recess. When he returned, he excused the jury and told counsel that he thought the prosecutor's remark might prove prejudicial if in fact no entrapment defense was offered. He asked for briefs both on the question of prejudice and on the issue whether declaration of a mistrial "would involve a double jeopardy situation," adding that he thought it would not.

After an adjournment, without awaiting the briefs, the judge addressed counsel as follows:

I have given it a lot of thought as to the problem that faced the Court this morning as to the opening statement made as to the question of the defendants having a defense of entrapment and whether or not it would prejudice the jury. And I have also given a lot of thought, without having briefs, as to the motion made for a mistrial.

The motion is it being made by both defendants for a mistrial?

Mr. Klein: Mr. Schettino made the motion.

The Court: I want to know if you are making it too?

Mr. Klein: May I consult with my client for a moment, your Honor?

(Pause.)

Mr. Klein: Your Honor, I spoke to Mr. LaPonzina and we feel that the question of entrapment really affects Mr. Gentile and it is not our motion to make.

The Court: That's not the reason why I asked it, Mr. Klein. You know the reason I asked whether or not you join in the motion of the defendant Gentile for a mistrial, so that I have the consent of both the defendants to select a new jury tomorrow morning.

Mr. Klein: I do not join in the motion. I do not think it is mine to join in or not.

Normally you say you will go along with your brother attorney but Mr. LaPonzina is in a different position from Mr. Gentile.

The Court: Then if you do not join in the motion, you are part of the argument of the motion that the statement made by the prosecutor as to a defense of entrapment to the jury is prejudicial. You did join in the original motion.

Mr. Klein: I participated in it.

The Court: Since you participated in it, the Court would have the right to assume that you were joining in the motion.

It is this Court's opinion at this time that the better way to proceed would be to select a new jury rather than go through a ten-week trial and have this as one of the issues on appeal, where that could be cured immediately.

Secondly, it cannot be cured merely by asking the jury to disregard it, since a motion has been made for a mistrial and no double jeopardy would attach, we can start with a clean slate. The jury can be selected tomorrow morning.

A further discussion ensued. Gentile's counsel claimed that the granting of his motion for a mistrial would prevent a new prosecution under principles of double jeopardy. After the judge had dismissed this contention on the ground of consent by Gentile's counsel, the following colloquy took place:

Mr. Klein: On behalf of the defendant LaPonzina I do not join in the motion. I did not consent.

The Court: You discussed the motion this morning as to entrapment and I will take it as a consent that this jury should not hear the case an implied consent.

As long as you want to play with me, I will do it my way. It is an implied consent on your part and a motion by the defendant that there would be prejudice to both defendants because they are both involved in the same manner and on the same tapes.

Mr. Klein: May I add for the record that my participation in the argument was in assistance of Mr. Schettino's argument and certainly not intended as a consent by Mr. LaPonzina.

The Court: You represent your client and you represent him for all purposes. You cannot separate the discuss(ion) on one part from another.

After further discussion, the court delivered an oral opinion explaining why in its view the declaration of a mistrial would not prohibit a new trial of both defendants. Mr. Klein again endeavored to disassociate himself from the motion for a mistrial, saying that LaPonzina "really does not have a defense of entrapment," that his remarks in support of the motion for a mistrial had been made in the discharge of his "duty as an officer of the Court, where I can shed some light on the subject, to volunteer," and that he had thereafter apprised the court that he did not join in the motion. After telling Mr. Klein to "take a look at the minutes," the court denied his motion to dismiss the indictment against LaPonzina. A new trial began the next morning and resulted in the convictions here under appeal.

This case is another illustration of the wisdom of Mr. Justice Story's statement in the seminal case of United States v. Perez, 9 Wheat. (22 U.S.) 579, 580, 6 L.Ed. 165 (1824), that "it is impossible to define all the circumstances which would render it proper" for the trial court to abort a criminal trial without giving rise to a defense of double jeopardy, and Mr. Justice Black's remark in Wade v. Hunter, 336 U.S. 684, 690, 69 S.Ct. 834, 93 L.Ed. 974 (1949), concerning the impossibility of laying down a "rigid formula" on the subject. While LaPonzina's counsel may not have consented to the declaration of a mistrial, he had heavily contributed to it. His intervention at the initial conference at sidebar had served to stimulate the judge's concern. Nothing in his remarks at sidebar indicated that the prosecutor's reference to both defendants in regard of an entrapment defense would prejudice only Gentile; indeed, if LaPonzina had no entrapment defense, as Mr. Klein later said, the opening was more prejudicial to him than to Gentile, not less. If counsel felt it to be his duty as an officer of the court to "shed some light on the subject," the light should have included then, not later, an indication that LaPonzina did not regard the remark as prejudicial to him and wanted his trial to proceed, failing which he would claim double jeopardy. If the judge had realized from the start that compliance with the request of Gentile's counsel would require separate trials that would otherwise be quite needless or would create a serious double jeopardy claim by LaPonzina, he might well have given more consideration to the course not pressed by anyone, that admonishing the jury to disregard this part of the prosecutor's opening would suffice. ¹ By the time LaPonzina's counsel made his position clear, the addition of his initial remarks to those of Gentile's counsel had led the judge to become convinced that the prosecutor's error had been far more serious than it had first seemed to be.

Quite apart from the action of LaPonzina's counsel in helping to lead the judge to the precipice, LaPonzina's double jeopardy claim must fail under the principle of Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961). In that case, which came to the Supreme Court ...