U.S. v. Romano, s. 831

• Decision Date: 15 April 1983
• Docket Number: Nos. 831,839,D,s. 831
• Citation: 706 F.2d 370
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Matteo ROMANO and Armando Glorioso, Defendant-Appellants. ockets 82-1323, 82-1325.
• Court: U.S. Court of Appeals — Second Circuit

Page 370

706 F.2d 370

UNITED STATES of America, Plaintiff-Appellee, v. Matteo ROMANO and Armando Glorioso, Defendant-Appellants.

Nos. 831, 839, Dockets 82-1323, 82-1325.

United States Court of Appeals Second Circuit.

Argued Jan. 31, 1983.

Decided April 15, 1983.

Raymond J. Dearie, U.S. Atty., Mark Summers, Asst. U.S. Atty., Brooklyn, N.Y., for plaintiff-appellee.

Salvatore Quagliata, Ozone Park, N.Y., for Romano.

Guy L. Heinemann, New York City, for Glorioso.

Before FEINBERG, Chief Judge, LUMBARD, Circuit Judge, and RE, Chief Judge. ^*

RE, Chief Judge:

Appellants, Matteo Romano and Armando Glorioso, appeal from judgments of conviction entered against them on September 14, 1982, following a jury trial in the United States District Court for the Eastern District of New York. Both appellants were found guilty of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. Sec. 846, and were sentenced to ten years imprisonment.

Appellants contend that the District Court erred in denying their motion to dismiss their indictment, and raise several questions on this appeal. They allege that the government violated their fifth amendment right to due process, and that there was prosecutorial misconduct in the grand jury proceeding. Appellant Glorioso also contends that certain evidence presented to the grand jury was obtained in violation of international law, Italian Law, and United States-Italian treaty obligations. Since we find all contentions of appellants meritless, we affirm the judgments of conviction.

Nazir Nohra, an informant for the Drug Enforcement Administration who previously had heroin transactions with appellant Glorioso, telephoned Glorioso in Palermo, Italy, concerning a possible sale of heroin. Nohra made the calls from New York and permitted the government to tape them there. During the second telephone call, Glorioso introduced appellant Romano to Nohra as someone interested in purchasing the "merchandise" that Nohra had for sale. After a series of similar telephone calls, which dealt with the details of the proposed transaction pertaining to quality of the "merchandise," price and terms of payment, both Glorioso and Romano travelled to New York. At various times and places in New York they negotiated in person with Nohra and Anthony Wilson, a government undercover agent who posed as Nohra's American partner, for the purchase of kilogram quantities of heroin. After appellant Romano had taken samples of the government-supplied heroin, and left partial payment with Wilson and Nohra, appellants were arrested and charged with conspiracy to possess with intent to distribute heroin.

The first allegation, that the government failed to afford appellants their due process rights, is without merit. In view of the overwhelming evidence of their predisposition to commit the crime charged, appellants do not here contend that they were entrapped by the government. Indeed, appellants do not attack the sufficiency of the evidence against them. Although Romano argued that there was no valid evidence of his predisposition presented to the grand jury, he does not make that claim as to the proceedings before the petit jury. They acknowledge that the defense of entrapment is unavailable "where the predisposition of the defendant[s] to commit the crime was established." Hampton v. United States, 425 U.S. 484, 488-489, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976). Nevertheless, they maintain that the government's conduct in "inciting" them to come to New York, and in providing the heroin for the proposed sale, was conduct "so repugnant and excessive" as to shock the conscience and deny them due process of law. United States v. Alexandro, 675 F.2d 34, 39 (2d Cir.1982).

The government's conduct in this case falls far short of the "demonstrable level of outrageousness" necessary to bar a conviction. Hampton, supra, 425 U.S. at 495 N. 7, 96 S.Ct. at 1653 N. 7 (Powell, J., concurring). The fact that the drug transaction was initiated by the informant Nohra, and that the government supplied the drugs, is not "the kind of outrageous conduct which would violate the defendant's due process rights." United States v. Nunez-Rios, 622 F.2d 1093, 1097 (2d Cir.1980); Hampton, supra. The appellants were not "incited" to come to the United States. They came voluntarily, in order to complete in person a transaction which had been partially negotiated and arranged by their telephone conversations with Nohra. Furthermore, there is "not a scintilla of evidence" which suggests any coercion. Alexandro, supra, at 40.

Surely, nothing in this case evokes the outrage of United States v. Toscanino, 500 F.2d 267 (2d Cir.1974) in which the defendant, an Italian citizen, alleged that he had been kidnapped by American agents in Uruguay, brought to Brazil where he was tortured and drugged, and abducted from Brazil into the United States for the purpose of facing criminal charges here. In Toscanino, the allegations were so shocking to one's sense of justice that this court held that the defendant was entitled to a hearing on his allegations. Relying principally on the decisions of the Supreme Court in Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886) and Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), the district court had denied a motion to vacate the verdict and dismiss the indictment. Under the "Ker-Frisbie" rule which developed from those landmark cases, "due process was limited to the guarantee of a constitutionally fair trial, regardless of the method by which jurisdiction was obtained." Toscanino, 500 F.2d at 272. This court concluded that the "Ker-Frisbie" rule had been eroded, and had to yield to more recent decisions of the Supreme Court which reflected an expansion of the concept of due process. Hence, based upon more recent pronouncements of the Supreme Court which gave renewed vitality to the concept of due process, and "our supervisory power over the administration of criminal justice in the district courts within our jurisdiction," Toscanino held that if the defendant's allegations of government misconduct and kidnapping were true, he was entitled to relief. 500 F.2d at 275-276.

Many cases have dealt with "the doctrine that criminal jurisdiction is not impaired by the illegality of the method by which the court acquires in personam jurisdiction ...." Bassiouni, International Extradition in U.S. Law and Practice, Chapter V, Sec. 4-1, 283 (1983).

The alleged government misconduct or lawlessness in Toscanino was so outrageous that, if the allegations were true, the conduct violated due process and the district court would be required to divest itself of jurisdiction over the defendant. Since none of the flagrant and illegal law enforcement practices which were alleged in Toscanino exist here, the appellants cannot benefit from the holding and reasoning of that case.

The reach and applicability of Toscanino is clearly illustrated by United States v. Gengler, 510 F.2d 62 (2d Cir.1975). In Gengler, this court held that the allegation of abduction, even if true, was insufficient to preclude the court below from asserting jurisdiction. In discussing Toscanino, the court stated:

Yet in recognizing that Ker and Frisbie no longer provided a carte blanche to government agents bringing defendants from abroad to the United States by the use of torture, brutality and similar outrageous conduct, we did not intend to suggest that any irregularity in the circumstances of a defendant's arrival in the jurisdiction would vitiate the proceedings of the criminal court. 510 F.2d at 65 (emphasis in the original).

No allegation has been made in this case which can in any way compare to the alleged government misconduct of abduction which was deemed to be insufficient in Gengler. Appellants' references, therefore, to cases of "police brutality and lawlessness" are inapplicable and unavailing. United States v. Toscanino, 500 F.2d at 272. See, e.g., United States v. Cordero et al., 668 F.2d 32, 36-37 (1st Cir.1981); United States v. Lira, 515 F.2d 68, 70-71 (2d Cir.1975), cert. denied, 423 U.S. 847, 96 S.Ct. 87, 46 L.Ed.2d 69 (1975).

Appellants' reliance on United States v. Twigg, 588 F.2d 373 (3d Cir.1978) and United States v. Archer, 486 F.2d 670 (2d Cir.1973) is misplaced. Both cases are clearly distinguishable. In Twigg, the defendants were incapable of committing the crime charged, the operation of a "speed factory," without the active intervention and supervision of the government informant. The defendants in Twigg were not chemists and lacked the necessary knowledge and ability to build or operate such a factory. Appellants Romano and Glorioso, however, were clearly capable of conspiring to purchase and distribute heroin without the active aid and supervision of the government. In Archer, the government attempted to convert a state offense of bribery into a federal crime by discussing the bribe in an interstate telephone call initiated by an informant for the sole purpose of establishing the interstate activity necessary for a violation of the federal "Travel Act." The effort to manufacture jurisdiction in Archer is vastly different from an offer to sell heroin which resulted in appellants' voluntary travel to the United States to consummate the sale.

Appellants' second allegation of prosecutorial misconduct before the grand jury is likewise without merit, and clearly does not warrant or justify a dismissal of the indictment.

This court has termed a dismissal of the indictment "the most drastic remedy," and is most difficult to justify in cases involving allegations of failure to make known or properly instruct the grand jury on a potential defense. United States v. Brown, 602 F.2d 1073 at 1076 (2d Cir.1979), citing United States v. Fields, 592 F.2d 638 (2d Cir.1978), cert. denied, 442 U.S. 917, 99 S.Ct. 2838, 61 L.Ed.2d 284 (1979).

The basis for appellants' contention is that ...