U.S. v. Marcello

• Decision Date: 18 April 1984
• Docket Number: 83-5218,82-1275,83-5217,82-1274 and 83-5219,Nos. 82-1276,s. 82-1276
• Citation: 731 F.2d 1354
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Carlos MARCELLO, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Samuel Orlando SCIORTINO, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Phillip RIZZUTO, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1354

731 F.2d 1354

83 A.L.R.Fed. 611

UNITED STATES of America, Plaintiff/Appellee, v. Carlos MARCELLO, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. Samuel Orlando SCIORTINO, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. Phillip RIZZUTO, Defendant/Appellant.

Nos. 82-1276, 83-5217, 82-1275, 83-5218, 82-1274 and 83-5219.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 19, 1983.

Decided April 18, 1984.

Dept. of Justice, James D. Henderson, Los Angeles, Cal., for plaintiff/appellee.

Arthur A. Lemann, III, New Orleans, La., for Marcello.

Donald B. Marks, Anthony P. Brooklier, Marks & Brooklier, Beverly Hills, Cal., for Sciortino.

Thomas R. Dyson, Jr., Washington, D.C., for Rizzuto.

Appeal from the United States District Court for the Central District of California.

Before McWILLIAMS ^* and McKAY, ^* Circuit Judges, and CHRISTENSEN, ^** District Judge.

McWILLIAMS, Circuit Judge:

Nos. 82-1274, 82-1275, and 82-1276

Carlos Marcello, Samuel Orlando Sciortino, and Phillip Rizzuto were jointly charged in a three-count indictment with conspiring to bribe and influence a federal judge. Specifically, count one of the indictment charged the three defendants with conspiring to bribe a public official in violation of 18 U.S.C. Sec. 371 and 18 U.S.C. Sec. 201. Count two charged that they corruptly endeavored to influence an officer of a court in violation of 18 U.S.C. Sec. 1503. Count three charged them with interstate travel in aid of racketeering in violation of 18 U.S.C. Sec. 1952. The three defendants were jointly tried, and the jury found Marcello guilty on all three counts. Sciortino was convicted only on count two, endeavoring to influence an officer of a court and obstructing justice, the jury being unable to agree on a verdict on counts one and three. Rizzuto was convicted on counts one and two, conspiracy to bribe and obstructing justice, and acquitted on count three, interstate travel in aid of racketeering. All three appealed their respective convictions and the sentences imposed thereon. We affirm.

The government's theory of the case was that the three defendants participated in a conspiracy to bribe a federal judge who was presiding over a criminal trial in which one of the defendants, Sciortino, was a defendant. ¹ Marcello and Sciortino asserted the defense of entrapment. Rizzuto's defense was that he was only an innocent bystander to any scheme, and was not a knowing participant therein.

As stated, trial of this case was to a jury, sitting in the United States District Court for the Central District of California, the Honorable Edward J. Devitt, Senior Judge of the United States District Court for the District of Minnesota, presiding. In connection with pre-trial and post-trial matters, Judge Devitt authored four memorandum opinions and orders which now appear in Federal Supplement. In chronological order those memoranda are as follows:

(1) United States v. Marcello, 531 F.Supp. 1113 (C.D.Cal.1982), which pertains to the district court's denial of the defendants' pre-trial motion to suppress;

(2) United States v. Marcello, 537 F.Supp. 399 (C.D.Cal.1982), which pertains to defendants' post-trial motions for judgments of acquittal and for new trials;

(3) United States v. Marcello, 537 F.Supp. 402 (C.D.Cal.1982), which pertains to defendants' pre-trial motion to dismiss the indictment for governmental overreaching, ruling on which was deferred until after trial; and

(4) United States v. Marcello, 568 F.Supp. 738 (C.D.Cal.1983), which pertains to defendants' post-trial motion for a new trial based on newly discovered evidence.

In resolving the present appeals, we propose to rely on the published memorandum opinions and orders of the trial court where possible, to the end that we shall not repeat here that which is already fully set forth in the district court's memoranda. Accordingly, we shall not summarize in any great detail the evidence adduced at trial. The reader of this opinion is referred to the several memorandum opinions of the trial court for such material, particularly, United States v. Marcello, 537 F.Supp. 402, 404-06 (C.D.Cal.1982).

The matters urged on appeal by the defendants as ground for reversal will be considered on an individual basis.

Marcello

I.

The primary ground urged for reversal by Marcello is that the government's investigatory conduct amounted to entrapment as a matter of law, and, alternatively, that the government's conduct during the investigatory process was so outrageous and overreaching that his Fifth Amendment right to due process was violated. The district court, after a post-trial evidentiary hearing, rejected these arguments. Marcello, 537 F.Supp. 402. We agree with the district court's analysis of the matter.

Application of the entrapment defense is determined by well established legal principles. The Supreme Court has defined the parameters of the entrapment defense in four leading cases. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). These cases establish guidelines which govern our review of the evidence which the defendant argues establishes entrapment as a matter of law.

"It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution." Sorrells, 287 U.S. at 441, 53 S.Ct. at 212. Entrapment occurs when a defendant who was not predisposed to commit the crime does so as a result of the government's inducement. The entrapment defense thus focuses on "the intent or predisposition of the defendant to commit the crime." Russell, 411 U.S. at 429, 93 S.Ct. at 1641.

In the instant case, the district court, based on the record made at trial, refused to hold that there was entrapment as a matter of law, and submitted the matter to the jury under appropriate instructions. Although there may be instances where the undisputed facts establish the entrapment defense as a matter of law, as in Sherman, 356 U.S. at 373, 78 S.Ct. at 821, or where the evidence is simply insufficient to submit the issue to the jury, see, e.g. United States v. Payseur, 501 F.2d 966 (9th Cir.1974), entrapment is generally a jury question. See United States v. Lentz, 624 F.2d 1280 (5th Cir.1980), cert. denied, 450 U.S. 995, 101 S.Ct. 1696, 68 L.Ed.2d 194 (1981). In this case, the district court properly determined that the undisputed facts did not establish entrapment as a matter of law and that the evidence was sufficient to submit the issue to the jury.

Regardless of whether there was entrapment, Marcello argues alternatively that the conduct of government agents during the investigatory stages was so overreaching and outrageous in nature that his due process rights under the Fifth Amendment were violated. Such is not our view of the matter. We agree with the district court's analysis of the conduct of the two undercover FBI agents and their informant, Joseph Hauser. Marcello, 537 F.Supp. 402.

The Supreme Court has observed that due process may bar a conviction where the government's involvement in a criminal enterprise has become sufficiently outrageous and shocking to the universal sense of justice. Hampton, 425 U.S. at 488-91, 96 S.Ct. at 1649-50; Russell, 411 U.S. 431-32, 93 S.Ct. 1642-43. The Ninth Circuit has also recognized that a criminal defendant may have a due process defense when the government's involvement has been sufficiently outrageous. United States v. McQuin, 612 F.2d 1193 (9th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1608, 63 L.Ed.2d 791 (1980); United States v. Prairie, 572 F.2d 1316 (9th Cir.1978); United States v. Gonzales, 539 F.2d 1238 (9th Cir.1976).

The Ninth Circuit has previously held that it is not improper to infiltrate criminal rings and gain the confidence of the participants. Gonzales, 529 F.2d at 1239. The government may employ undercover tactics to infiltrate criminal ranks and may rely on paid informants in order to locate and arrest criminals. McQuin, 612 F.2d at 1195-96; Prairie, 572 F.2d at 1319. The informant and the undercover agent must be permitted, within reason, to assume identities that will be convincing to the criminal elements they have to deal with. McQuin, 612 F.2d 1195-96.

In their brief, counsel for Marcello virtually concede that the conduct of the government's agents through the October 25th meeting involving Hauser and all three defendants probably did not constitute overreaching or outrageous conduct, but assert that the conduct of Hauser at the October 29th meeting between himself and the one defendant, Sciortino, went way beyond the permissible and constituted a violation of due process. Such is not our understanding of the October 29th meeting between Hauser and Sciortino. According to defense counsel, Hauser, on that occasion, violated the defendants' due process rights by explicitly informing Sciortino that unless Sciortino offered a bribe to the judge who was presiding over his case the judge would, in effect, "throw the book at him."

Such may be counsel's interpretation of the October 29th meeting, but our reading of the record does not indicate that such a threat, even a veiled one, was made. Hauser did say that the judge in question did not trust Sciortino, that the judge had accepted a bribe in another case, and that if the judge received an art object or a painting, Sciortino would not go to jail, which statements were, of course, untrue and a part of the fictional scenario. The testimony concerning the October 29th meeting between Hauser and Sciortino cannot be read in isolation, and must be considered in the light of what went before, and after, that...