U.S. v. Guillette, 1165
| Decision Date | 20 December 1976 |
| Docket Number | D,No. 1165,1165 |
| Citation | 547 F.2d 743 |
| Parties | 1 Fed. R. Evid. Serv. 486 UNITED STATES of America, Appellee, v. David GUILLETTE and Robert Joost, Appellants. ocket 76-1041. |
| Court | U.S. Court of Appeals — Second Circuit |
Peter C. Dorsey, U. S. Atty., New Haven, Conn., Paul E. Coffey, Sp. Atty., Robert J. Erickson, Atty., Dept. of Justice, Washington, D. C., for appellee.
Hubert J. Santos, Sp. Public Defender, Hartford, Conn., for appellant David Guillette.
James A. Wade, Sp. Public Defender, Hartford, Conn., for appellant Robert Joost.
Before VAN GRAAFEILAND, Circuit Judge, and KELLEHER * and GAGLIARDI, ** District Judges.
Following a jury trial in the District Court of Connecticut, appellants David Guillette and Robert Joost were convicted of conspiracy to deprive a citizen of his civil rights in violation of 18 U.S.C. § 241 (1970). The jury also found Guillette guilty of using force to influence a federal witness in violation of 18 U.S.C. § 1503 (1970). The convictions result from a concerted government effort, spanning several years and involving numerous trials, to prosecute those persons responsible for the death of Daniel LaPolla, who was scheduled to be a key prosecution witness in a federal firearms case.
The events leading to appellants' conviction began in November 1971 with the burglary of a National Guard Armory in Westerly, Rhode Island, in which thirty automatic rifles were stolen. Two months later LaPolla approached federal agents who had been investigating the burglary and offered information on those responsible for the theft and the whereabouts of the rifles. Based on this and additional information obtained with the help of LaPolla, a Hartford federal grand jury indicted Guillette and Joost, together with William Marrapese and Nicholas Zinni, for interstate transportation of stolen firearms. LaPolla, named as an unindicted co-conspirator by the grand jury, was expected to offer vital testimony incriminating the four defendants in the break-in and subsequent efforts to find a buyer for the rifles. However, on September 29, 1972, just weeks before the firearms trial was to begin, the government lost its key witness when LaPolla was killed as a bomb exploded in his home in Oneco, Connecticut. Following an investigation of the bombing, a federal grand jury in Connecticut returned a three count indictment against Guillette, Joost, Marrapese and Zinni, charging them with conspiracy to deprive LaPolla of his civil rights, viz. the right to testify in a federal prosecution (18 U.S.C. § 241), obstruction of justice by force and violence (18 U.S.C. § 1503), and use of an explosive device in the commission of a felony (18 U.S.C. § 844(h)(1)). Thereafter the prosecution effort went through a series of trials and mistrials, eventually culminating in the verdicts of guilty obtained against appellants in their third trial. Appellants' initial trial, which had been severed from that of the other defendants, resulted in guilty verdicts against both defendants on all counts, but the convictions were reversed and a new trial ordered after a key government witness, John Housand, recanted admittedly perjurious testimony he gave during the trial.
Prior to commencement of appellants' second trial, Marrapese, who had been convicted of all three counts in a separate trial, agreed to cooperate with the government and testify against his co-conspirators. 1 The second trial, however, resulted in no convictions; the jury acquitted Joost of counts 2 and 3 of the indictment and was unable to reach a verdict on the first count against him and on all three counts against Guillette. 2 At the third trial, with the aid of Marrapese's testimony, the government was successful in obtaining guilty verdicts against Guillette for conspiracy and obstruction of justice through use of force and a guilty verdict against Joost for conspiracy. Both defendants timely prosecuted this appeal of their respective convictions.
The evidence offered by Housand in the first trial and Marrapese in the second and third trials principally established the prosecution's version of the alleged conspiracy to silence LaPolla as a witness in the firearms prosecution. According to their testimony, the conspiracy commenced when Guillette and Joost, together with Marrapese, Bucci and Housand, met following their arrests for the theft of the automatic rifles to consider the upcoming prosecution (May 8 meeting). During the course of this meeting, Housand was offered $5,000 to kill LaPolla, who by this time had been earmarked by the group as an informant. Upon further reflection, however, the group thought it ill-advised to carry through with these plans until an assessment of the strengths of the government's case and defendants' chances for acquittal could be made. Thereafter the conspiracy evolved into a plan to find LaPolla and use bribery and physical coercion to dissuade him from testifying. Because LaPolla was being held in protective custody, however, Marrapese was unable to locate him for the purpose of effectuating the revised scheme.
After several months of futile searching had passed, according to Marrapese's testimony, Guillette informed him that unless LaPolla were found soon and persuaded to cooperate, they would have to "dump" him. Marrapese, Joost and Guillette subsequently intensified their search. They conducted continuous surveillance of LaPolla's home in Oneco, Connecticut, even to the point of hiring a pilot to fly aerial photo-reconnaissance over the house and surrounding area. To disguise the purpose of the flights, Guillette told the pilot that he was searching for a man in order to serve a summons on him. Later on Guillette and Joost, together with other members of the group, attended funeral services for LaPolla's brother in hopes of finding LaPolla present, but were turned away by federal agents. Finally, on September 29, the day of LaPolla's death, Guillette confided in Marrapese that he had "just left a package for your buddy up there." That afternoon LaPolla, ignoring instructions to stay away from his residence, drove home and leaving the car running in the driveway opened the front door of his house, touching off a massive explosion which killed LaPolla instantly. 3
Appellants set forth numerous grounds for reversal of their convictions, but we find it necessary to address in detail only the more substantial questions. Initially, we note that appellants' contention that the trial court did not have jurisdiction to entertain the prosecution under 18 U.S.C. § 241 is without merit. Section 241 makes it a crime for two or more persons to conspire to "injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution . . . ." This Court in United States v. Pacelli, 491 F.2d 1108, 1113-15 (2d Cir. 1974), cert. denied, 419 U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 49 (1974) held unequivocally that the right to be a witness in a federal trial is a civil right secured by the Constitution and protected from infringement or deprivation by § 241. Since appellants have presented nothing to this Court to indicate that Pacelli does not control the facts of the case at bar, we adhere to our holding in that decision and proceed to consider their other contentions.
Appellants interpose three grounds of error with respect to jury instructions which were and were not given during trial: (1) the trial court erred in refusing to instruct the jury that if it found that LaPolla's death resulted from his accidental detonation of a bomb that he himself planted, it could not find the defendants guilty of a § 241 conspiracy with death resulting; (2) supplemental instructions did not properly advise the jury of the requisite elements of culpable participation in a conspiracy; and (3) the trial court erred in failing to give defendants' requested alibi instruction.
At all three trials appellants argued that LaPolla was killed when he accidentally detonated a bomb which he himself installed as a booby trap aimed at defendants and others who were searching for him. Relying upon this theory, appellants requested a jury instruction that if the jury were to find that the death was accidental or if the jury was not persuaded beyond a reasonable doubt that death was deliberate, defendants could not be found guilty of conspiracy with death resulting. 4 Section 241 provides that a sentence of life imprisonment may be imposed "if death results" from a prohibited conspiracy, whereas a simple conspiracy not resulting in death is punishable by a maximum term of ten years. Because both appellants received sentences of 25 years on their conspiracy convictions, the denial of the requested jury charge on accidental death played a significant role in the determination of their punishment and raises a substantial question concerning the scope of criminal culpability imposed by § 241.
The trial judge instructed the jury that even if LaPolla died accidentally through his own actions, the defendants would nonetheless be guilty of conspiracy with death resulting if LaPolla's death was "induced or brought about by some act of a conspiracy in furtherance of the purposes of a conspiracy." The crucial portion of the Court's instruction on the effect of accidental death follows:
Death results from the conspiracy charged in the indictment if it was caused by an act of one or more of the conspirators in furtherance of the purpose of the conspiracy.
Death, whether accidental or intentional, does not result from the conspiracy if caused by LaPolla's own act, unrelated to the conspiracy or its purposes provided the death was not induced or brought about by some act of a conspirator in furtherance of the purposes of the conspiracy. Likewise, death, whether accidental or intentional, does not result from the conspiracy if...
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