U.S. v. Alberico

Decision Date10 September 1979
Docket NumberNos. 78-1053,78-1062 and 78-1063,s. 78-1053
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gregory ALBERICO, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Scott H. Robinson of Gerash & Springer, Denver, Colo., for defendant-appellant.

Rod W. Snow, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., on brief), for plaintiff-appellee.

Before SETH, Chief Judge, and McWILLIAMS and McKAY, Circuit Judges.

McKAY, Circuit Judge.

The defendant was convicted, following a jury trial, on counts of theft of government property, 1 possession of stolen mail, 2 and conspiracy to convert government property. 3 He was acquitted on one count of theft of government property. His appeal raises issues of due process, fair trial, evidentiary insufficiency, prosecutorial impropriety, and cruel and unusual punishment.

The defendant was a United States Army captain assigned as the post administrator of the Rocky Mountain Arsenal in Colorado. He planned to retire from the Army, and was concerned about the economics of retirement. This concern was heightened by substantial gambling debts he had incurred. Utilizing his essentially unchecked access to facilities at the arsenal, the defendant sought to improve his financial situation by selling government property. He does not deny involvement in illicit transfers. His primary defense at trial was one of entrapment. 4

At trial, 5 the defendant attempted to establish that a network of government agents and informants had caused him to commit crimes. His initial contact with the network came through Bill Martin, an FBI informant who apparently was under investigation for illegal activities himself. Martin participated with the defendant in his dismal gambling endeavors. He also encouraged him to use his status at the arsenal for illicit gain. At the suggestion of FBI agent Richard Castillo, 6 Martin introduced the defendant to Dominic LaRocca, an undercover FBI agent, 7 who indicated that certain government checks in defendant's possession were valuable. Indeed, LaRocca offered $7,300 for these checks. The defendant rejected this offer, but subsequently contacted what later proved to be an FBI storefront operation to inquire about the sale of government property. The telephone number of the storefront operation had been given to defendant by Martin. Martin had, in turn, obtained it from Castillo.

The storefront operation was manned by Michael Kazmier, an undercover FBI agent known to the defendant as Mike Cairo. On several occasions Kazmier received government property from the defendant. The encounters with Kazmier were recorded by hidden microphones and videotape equipment. The defendant presented some evidence which was challenged that Kazmier had engaged in harsh threats to induce the defendant to turn over additional government property. 8 Although the defendant did not rely on a defense of duress as such, he argued that the threats were an integral psychological element of the successful effort to entrap him.

The entrapment defense was not accepted by the jury. Defendant's conviction on six of the seven counts charged against him resulted in imposition of a twenty year term of imprisonment and fines totaling $44,000.

I.

Defendant contends that his conviction should be reversed because certain exculpatory evidence was withheld from him by the prosecution. Relying on Brady v. Maryland, 9 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), defendant claims due process was violated by the prosecution's failure to advise him, in advance of trial, that Dominic LaRocca was in fact an FBI undercover agent. Defendant contends that the knowledge of LaRocca's true identity prior to trial would have assisted him in establishing an entrapment defense. He also claims it would have permitted more effective cross-examination and a stronger opening statement.

Although we find the nondisclosure troubling, we have concluded that the rule of Brady v. Maryland was not violated by the prosecution's pretrial failure to disclose LaRocca's actual identity. The simple fact of the matter is that the identity and involvement of LaRocca were uncovered during the course of trial. Although defense counsel's trial tactics were no doubt affected by the late discovery, he was able to put before the jury the involvement of LaRocca in the alleged entrapment. The Supreme Court has said that Brady applies in situations involving "the discovery, After trial, of information which had been known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976) (emphasis added). Here, the information was discovered and presented at trial.

The difficulty with defendant's position can be seen from another perspective. Brady is implicated only when the evidence withheld is "material." It is noteworthy in this connection that defendant's basic argument is that nondisclosure hampered his trial preparations and affected his litigation strategy. But the Supreme Court has specifically rejected the proposition that the applicable standard of materiality should focus on the defendant's ability to prepare for trial. United States v. Agurs, 427 U.S. at 112 n.20, 96 S.Ct. 2392. Rather, the inquiry is whether presentation of the evidence would have created "a reasonable doubt of guilt that did not otherwise exist." 10 Id. at 112, 96 S.Ct. at 2402. Application of that standard here would be nonsensical, of course, because the evidence Was presented. Had it not been presented, we would obviously have a much different question before us.

II.

Defendant's next contention is that his constitutional right to a fair trial was denied by the prosecution's release to the press, with the trial court's acquiescence, of certain prejudicial evidence. Without apparent remorse, the prosecution concedes that it released copies of videotaped encounters between the defendant and Kazmier at the FBI storefront. 11 Selected, incriminating portions of these videotapes were publicly televised on at least two occasions during the course of the trial. Defendant argues that this publicity may have affected the result at trial, either because the jurors viewed it or because acquaintances of the jurors who observed it may have influenced the jurors.

The standard for evaluating this issue was indicated by the Supreme Court in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). After referring to earlier cases in which due process violations had been found, the Court in Murphy said of those cases:

They cannot be made to stand for the proposition that juror exposure to information about a state defendant's 12 prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process. To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner's trial was not fundamentally fair.

421 U.S. at 799, 95 S.Ct. at 2036. The focus, then, is on the totality of the circumstances at trial.

Our review of the record in this case does not reveal that fundamental fairness was lacking in the defendant's trial. Several factors support our conclusion. First, the videotapes from which the television broadcasts were drawn had been shown previously to the jury as a part of the government's case. Second, the defendant relied on the defense of entrapment. In so doing, he admitted the acts giving rise to the prosecution. Therefore, the videotapes merely revealed the commission of acts which the defendant acknowledged he committed. Third, there is no indication that any jurors had been exposed to the broadcasts in any event. The morning after the initial broadcast, the trial court was notified that it had occurred. 13 His response was to ask the jurors whether any of them had either seen the broadcast or discussed it with other individuals. None responded affirmatively. 14

Under the circumstances described, we cannot conclude that any constitutional right of the defendant was violated by the broadcasts. This is not to say that we approve of the prosecutor's conduct in releasing the videotapes to the press. Indeed, we do not. The prosecution is commissioned to try cases in the courtroom, not in the airwaves. 15 Were the circumstances more egregious, we would not hesitate to exercise our supervisory powers and reverse the defendant's conviction. See Marshall v. United States,360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); United States v. Coast of Maine Lobster Co., 538 F.2d 899 (1st Cir. 1976).

III.

The defendant argues that he was improperly convicted of stealing government property to the extent the conviction was based on the sale to Agent Kazmier of three government checks. He argues that the government failed to prove the checks had any value.

The checks in question were United States Treasury checks drawn on the Kelly Air Force Base, in Texas, and made payable to the Rocky Mountain Arsenal. Each check bore the stamped signature of a United States Air Force disbursing officer. None of the checks were endorsed. The respective face values of the checks were $13,932, $29,538 and $30,096.

Stressing the statutory definition of the offense, the defendant argues that the government failed to prove that the checks had any value, much less value of at least $100. The applicable statute provides:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to...

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