U.S. v. Russo

• Decision Date: 03 May 1976
• Docket Number: No. 75-1362,75-1362
• Citation: 540 F.2d 1152
• Parties: UNITED STATES of America, Appellee, v. Ralph RUSSO, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1152

540 F.2d 1152

UNITED STATES of America, Appellee, v. Ralph RUSSO, Appellant.

No. 75-1362.

United States Court of Appeals,

First Circuit.

Heard May 3, 1976.

Decided Aug. 23, 1976.

George F. Gormley and Judith E. Diamond, Boston, Mass., with whom Harrington & Gormley, Boston, Mass., was on brief, for appellant.

William C. Brown, Atty., Dept. of Justice, Washington, D. C., with whom James N. Gabriel, U. S. Atty., and Mervyn Hamburg, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Appellant was convicted by a jury of selling, transferring and delivering 44 counterfeit $100,000 United States Treasury bills, in violation of 18 U.S.C. § 473.

A Secret Service agent testified that, having assumed the name Marino, he was introduced to appellant in August, 1974. The agent testified that over a period of several months he sought counterfeit Treasury bills from appellant, telling him that they were to be used as collateral for a bank loan, the intent being to withdraw them prior to their maturity date so that the fraud would never be discovered. In a series of phone calls between the agent and appellant, a deal seemed close in October, 1974, but failed to materialize. In November, however, appellant contacted the agent, a meeting was arranged, and appellant provided the agent with a sample bill. This being pronounced satisfactory, further calls were made to set up the transfer of the rest. A second agent went to pick those up; he testified to arresting appellant after that transfer took place. Photos of the delivery and arrest were introduced. A number of the October and November telephone calls which had been recorded by the Secret Service agent were played to the jury. Taken at face value, these tapes showed the negotiations for the sale, culminating in an agreement (with a price of nine per cent of face value), as well as considerable knowledge of the field on appellant's part. A government expert testified to the counterfeit nature of the bills.

Appellant took the stand and admitted the substance of the facts related by the agents, including the accuracy of the taped telephone conversations. He presented a defense of lack of intent, claiming that John Ellsworth, who had introduced him to the Secret Service agent (as Marino) in August, had put him up to a scheme to defraud Marino by selling him real $100,000 Treasury bills and pretending they were fakes. Thus, appellant testified, he thought the bills were genuine. Appellant explained the phone conversations and his other statements to Marino as part of Ellsworth's scheme to defraud Marino into thinking the bills were counterfeit. ¹ Moreover appellant charged that Ellsworth was a government informant who, by supplying him with the contraband, had made him a conduit in a sale from the government to the government.

The issue of entrapment was presented to the jury under instructions which reflected the teaching of United States v. Jett, 491 F.2d 1078 (1st Cir. 1974), that evidence of inducement can be disbelieved or that the government's burden on predisposition can be satisfied without independent evidence. The jury's finding against appellant on this score was more than justified in light of the ease with which he had managed the transactions, his obvious knowledge of the ins and outs of counterfeiting, the implausibility of the story which he professed to believe, and especially the absence of any evidence of unreadiness. See Kadis v. United States, 373 F.2d 370 (1st Cir. 1970). Indeed, appellant did not in fact present a defense of entrapment: he testified not that he was corrupted into selling counterfeit bills, but that he did not (through lack of intent) commit that crime at all. ²

The major argument on appeal is that fundamental fairness should bar appellant's prosecution as the conduit in a government-to-government sale. This contention falls under the intervening decision in Hampton v. United States, --- U.S. ----, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Justice Powell's determinative opinion in that case reaffirms the ruling in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), that the defense of entrapment is focused on predisposition. Moreover, while refusing to go so far as the Hampton plurality in ruling out a fundamental fairness argument in an outrageous case regardless of predisposition, Justice Powell agreed with the plurality that a government-to-government sale with the defendant as conduit did not per se require reversal. Nor can we say that there was any outrageous police conduct in this case. The government made an offer of proof that the informant was in fact merely an introductory device, and that the actual supplier was a real counterfeiter who had subsequently been arrested and charged in another indictment. Appellant's story was implausible at best; he was less than diligent in searching out the one person (Ellsworth) who could have completely corroborated it (if it was true); and he failed to call the agent (Marino) who could have testified concerning government knowledge of Ellsworth's activities. ³ Cf. Jett, supra, 491 F.2d at 1081. Moreover, by appellant's own account he needed no persuasion to join a scheme to "flim-flam" Marino for some $400,000. We are convinced that it was not unfair to prosecute this case.

Appellant also objects to the trial court's failure to grant a continuance (after all the testimony had been heard) to allow a deposition of Ellsworth. The objection trips on defendant's own inaction. If indeed Ellsworth told appellant the bills were real, Ellsworth's crucial role in appellant's defense must have been known from the arrest and indictment eight or nine months prior to trial. Ellsworth was a business associate of appellant's and well known to him. Appellant had Ellsworth's address and phone number, and the government asserted that Ellsworth had not been and was not currently in hiding. The defense stated vaguely that it tried to get in touch with Ellsworth about two months prior to the August, 1975, trial, but there is no indication of diligence. At no time did appellant attempt to subpoena Ellsworth.

The fact that Ellsworth may have been an informant does not help appellant here. The government asserted that the informant was only an introductory device; even by appellant's version he did not witness or participate in the actual crime. The government had no reason to expect even a burden of disclosure under Rovario v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). See United States v. Skeens, 145 U.S.App.D.C. 404, 449 F.2d 1066, 1071 (1971); Zaroogian v. United States, 367 F.2d 959 (1st Cir. 1966). Less than two weeks prior to trial appellant filed a conclusory boilerplate motion for disclosure, but the motion did not refer to any facts of the case at hand, and it was properly denied. ⁴ Appellant could gain nothing from this pro forma request; some specific indication of need is required. See United States v. Alvarez, 469 F.2d 1065 (9th Cir. 1972). Nor does it appear that the supposed entrapment defense (which failed to materialize) was raised prior to trial with any specificity. See United States v. Mehciz, 437 F.2d 145 (9th Cir. 1971).

Appellant appears to argue that his mid-trial request put a burden of production on the government, the necessity for a continuance being a fortiori when it turned out Ellsworth was incapacitated. ⁵ But there is no absolute rule of production. United States v. Davila Williams, 496 F.2d 378, 383 (1st Cir. 1974). Here, there was no indication that appellant, with some diligence, could not have located Ellsworth in advance of trial, either with the information available to him or by...