712 F.2d 757 (2nd Cir. 1983), 881, United States v. Hogan
|Docket Nº:||881, 882, Dockets 82-1243, 82-1287.|
|Citation:||712 F.2d 757|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Lawrence A. HOGAN and Leonard J. Patricelli, Defendants-Appellants.|
|Case Date:||June 28, 1983|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Feb. 7, 1983.
As Amended Sept. 12, 1983.
David S. Golub, Stamford, Conn. (Leora Herrmann, Susann E. Gill, Silver, Golub & Sandak, Stamford, Conn., of counsel), for defendant-appellant Hogan.
John R. Williams, New Haven, Conn. (Williams & Wise, New Haven, Conn.), for defendant-appellant Patricelli.
Jeremiah F. Donovan, Asst. U.S. Atty., New Haven, Conn. (Alan H. Nevas, U.S. Atty. for the Dist. of Conn., New Haven, Conn., of counsel), for plaintiff-appellee.
Before LUMBARD and CARDAMONE, Circuit Judges, and ZAMPANO, District Judge. [*]
CARDAMONE, Circuit Judge:
On this appeal our principal concern is directed not at the jury trial where the accused were found guilty, but at earlier events--those that transpired before the grand jury which indicted the appellants. More than in other cases, the minutes of the grand jury proceedings in this case reveal what can happen when the prosecutor is too determined to obtain an indictment. The
temptations to cut corners, to ignore the rights of an accused, and to toss fair play to the winds gain ascendancy. Prosecutors presenting cases to grand juries are firmly subject to due process limitations and bound by ethical considerations. While we fully recognize that a court's power to dismiss an indictment following a conviction at trial rarely is exercised, the prosecution so violated these limitations and obligations as to mandate this indictment's dismissal. Here prosecutorial zeal only illuminates anew the insight of the old adage that the ends cannot justify the means.
On July 24, 1981 appellants, Lawrence A. Hogan and Leonard J. Patricelli, were indicted by a grand jury sitting in the District of Connecticut for conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846. Hogan was also charged with five counts of using a telephone to facilitate an attempt to possess with intent to distribute heroin, in violation of 21 U.S.C. § 843(b). One of the § 843(b) counts was dismissed prior to trial.
After a nine-day trial held before then Chief Judge T. Emmet Clarie and a jury in the United States District Court for the District of Connecticut, the jury returned guilty verdicts as to both appellants on the conspiracy count and as to Hogan alone on three of the telephone facilitation counts, acquitting him on the remaining one. Although the appellants had moved before trial to dismiss the indictment on the basis of prosecutorial misconduct before the grand jury, that motion was denied. Both appellants were sentenced to five-year terms for the conspiracy conviction. Hogan also received three one-year terms on the telephone facilitation convictions, all of his sentences to run concurrently.
This case arose from a Federal Drug Enforcement Administration (DEA) undercover investigation of Hogan, a retired Stamford Connecticut Police Lieutenant with 22 years service, who had formerly served as head of the Southwestern Connecticut Regional Narcotics Crime Squad, and Patricelli, an associate of Hogan's with alleged ties to organized crime. Playing a central role in this investigation was Martin "Yogi" Ruggieri, a businessman who had allegedly borrowed $20,000 from Hogan. The record discloses that in late January 1981 Yogi persuaded Hogan and Patricelli to travel to the Hilton Hotel in Rye, New York for the purpose of obtaining repayment of the debt. While the government contends that the contemplated medium of repayment was narcotics, appellants assert that it was cash. In any event, upon arriving at the Hilton, Hogan and Patricelli were stopped by Rye Police Detective John Carlucci who was acting upon a request he had received from the DEA. Carlucci told Hogan and Patricelli that DEA agents were investigating a narcotics transaction and requested appellants to accompany him to Rye police headquarters for questioning. When it became clear at police headquarters that there was no basis to hold appellants, they were permitted to leave. We will return to this incident later.
On February 4, 1981 Yogi informed DEA Agent Paul Salute that Patricelli wanted to meet Yogi that evening to discuss the Rye, New York incident and Yogi's loan. Agent Salute, posing as Yogi's cousin from New Jersey, called Patricelli and had that meeting postponed. In the ensuing weeks a series of four meetings were held. At the first meeting, on February 11, Yogi, Hogan and DEA Agent Alleva, posing as a business partner of Yogi's cousin, met to discuss the money Yogi owed Hogan. During this meeting Alleva offered to sell to Hogan heroin at a discount price in exchange for forgiveness of Yogi's debt. The other meetings, between Hogan, Alleva, and on two occasions Patricelli, occurred on February 19, March 2 and March 11 at various area bars and restaurants. A number of telephone calls (perhaps nine or ten) between Hogan and Alleva also were made during February and March. The subject of these...
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