U.S. v. Briola
| Citation | 660 F.2d 763 |
| Decision Date | 03 September 1981 |
| Docket Number | No. 80-2183,80-2183 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph Dean BRIOLA, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Charles H. Torres, Asst. U. S. Atty., Denver, Colo. (Joseph Dolan, U. S. Atty., Denver, Colo., with him on the brief), for plaintiff-appellee.
Dennis L. Blewitt, Boulder, Colo. and James R. Collins, Denver, Colo., for defendant-appellant.
Before DOYLE and McKAY, Circuit Judges, and CHILSON *, District Judge.
The appellant will be referred to herein as "defendant" or "Briola".
Briola was charged by indictment filed in the United States District Court for the District of Colorado with interstate transportation of stolen securities in violation of Title 18 U.S.C. § 2314.
Briola entered a plea of not guilty and waived a jury trial. Upon trial to the court, he was found guilty and after imposition of sentence, he appealed his conviction to this court.
Briola does not deny that he transported from Colorado to California the stolen securities set forth in the indictment.
The grounds for appeal are in essence the same as those argued to the trial court. They are:
1. The charges should have been dismissed on the ground of entrapment;
2. The trial court should have dismissed the charges in accordance with the court's inherent supervisory power on the ground that there was cumulative outrageous governmental conduct.
Upon the evidence, the trial court determined that under the decisions of the United States Supreme Court in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) and United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), neither the defense of outrageous conduct nor entrapment were sustained and that the government had proven the charge beyond a reasonable doubt.
There remains for this Court to examine the evidence and the applicable law and determine whether or not the trial court erred.
In 1971, Briola was convicted in federal court for "Bookmaking". After serving 32 months for this offense, he was released on parole.
Shortly thereafter, he was indicted in Federal Court for interstate transportation of counterfeit securities. Trial on this charge resulted in a hung jury. Thereafter, defendant pleaded guilty to the charge and was sentenced to three years imprisonment.
He was confined in the federal prison at El Reno, Oklahoma, and was later transferred to the Federal Correctional Institution at Englewood, Colorado. In August 1978, he was released on parole and returned to Denver.
At that time, F.B.I. agents, Kenneth Thompson and Donald Civitano, were engaged in the operation of a bar and restaurant, known as Cyrano's, in Glendale, Colorado, as an undercover operation for the investigation of criminal activities in that area. Glendale is a municipal enclave completely surrounded by the City and County of Denver. The agents employed Cathy Coffelt as the manager of the establishment.
Shortly after Briola's release on parole, his friend, Jesse Bridwell, took Briola to Cyrano's and introduced him to Cathy. Cathy and Briola soon formed a close relationship which resulted in Briola becoming a frequent visitor to Cyrano's and led to Briola's acquaintance with Thompson and Civitano.
Shortly thereafter, Civitano, knowing of Briola's criminal record, told Briola that he, Civitano, could get rid of any "paper" defendant might come across.
Shortly thereafter, and as a result of this conversation, Briola "tricked" Thompson and Civitano into paying him $2,000 for counterfeit money which Briola claimed he had for sale. In fact, Briola had no such counterfeit money. After some discussion, Briola agreed to pay back to the agents one-half of the $2,000 and no action was taken against Briola.
In late 1978, the defendant moved in with Cathy and lived with her in her apartment. Until Cathy quit working at Cyrano's in January 1979, Briola was a frequent visitor at Cyrano's and had frequent contacts with Thompson and Civitano.
In June 1979, Briola requested Thompson to meet with him at Briola's apartment. At this meeting, Briola showed Thompson a number of securities which he said had been stolen from a Dr. Padernos; informed Thompson that he, Briola, and an associate, Max Snyder, were attempting to negotiate a sale of the securities and sought Thompson's advice and assistance. Thompson agreed to assist in finding a buyer.
Thereafter, at various times, Thompson and Briola discussed the best way of negotiating a sale of the securities, the price that could be obtained from a sale, and the fact that Dr. Padernos' name would have to be forged in the sale of the securities.
In August 1979, Thompson informed the defendant he was still attempting to locate a buyer for the stolen securities. Shortly In the latter part of August 1979, Briola, Thompson, Civitano, and Brower met in Denver and discussed the sale of the securities.
thereafter, Thompson arranged a meeting with one Frances Brower, a California police officer, acting undercover as an interested buyer of the stolen securities.
On August 28, 1979, Briola met with Thompson and Brower in California and again discussed the sale of the securities, but the defendant did not have the securities with him and no sale was consummated.
On September 4, 1979, Briola called Thompson and asked if Brower was still interested in the securities. On the following day, Thompson advised Briola that Brower was still interested, but was not sure how to consummate the deal. Thompson also told Briola that he had informed Brower the securities were still available.
On October 16, 1979, Briola advised Thompson that he planned to travel to California and asked Thompson if Brower was okay to deal with. Thompson told Briola that he had known Brower for a long time and that as far as he knew, he was "okay". Briola also advised Thompson that he was going to California on a "backgammon deal".
On October 17, 1979, Briola called Brower from Las Vegas, Nevada, and told him he would be in California the following day. On October 18, 1979, Briola met with Brower in California and produced the securities. A sale price of $5700 was agreed upon. Brower paid Briola $5700 in marked bills and Briola delivered the securities to Brower.
On June 11, 1980, the indictment in this action was filed.
In support of his defenses, Briola produced three medical witnesses, Dr. Burr, Dr. Emrick, and Dr. Mason, who testified in effect that Briola was immature and impulsive and could easily be manipulated. They were critical of the agents' participation in the securities transaction and were also critical of the parole officer who had Mr. Briola under his supervision.
The trial court's finding that plaintiff was predisposed to commit the offense is supported by ample evidence.
In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), the Court reviewed and reaffirmed previous decisions of the Court holding that the defense of entrapment focuses on the intent or predisposition of the defendant to commit the crime and stated at pages 488 and 489, 96 S.Ct. at page 1649:
"We ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct, in a case such as this one, where the predisposition of the defendant to commit the crime was established."
Applying this rule to the facts of this case, the defense of entrapment is without merit.
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...2439, 65 L.Ed.2d 468 (1980). Lower courts have also, however, refused to exercise the supervisory power. See, e.g., United States v. Briola, 660 F.2d 763 (10th Cir.1981) (facts very similar to those in Payner );United States v. Maher, 645 F.2d 780 (9th Cir.1981) (cooperation between federal......