U.S. v. Salerno, 1574

• Citation: 66 F.3d 544
• Decision Date: 26 September 1995
• Docket Number: No. 1574,D,1574
• Parties: UNITED STATES of America, Appellee, v. Louis SALERNO, Defendant, Gaetano DiGirolamo, Sr., Defendant-Appellant. ocket 94-1640.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 544

66 F.3d 544

UNITED STATES of America, Appellee, v. Louis SALERNO, Defendant Gaetano DiGirolamo, Sr., Defendant-Appellant.

No. 1574, Docket 94-1640.

United States Court of Appeals Second Circuit.

Argued May 26, 1995.

Decided Sept. 26, 1995.

Lawrence F. Ruggiero, New York City, for appellant.

Douglas T. Burns, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., and Julie E. Katzman, Asst. U.S. Atty., on the brief), for appellee.

Before: KEARSE, CALABRESI and CABRANES, Circuit Judges.

CALABRESI, Circuit Judge:

In March of 1991, appellant Gaetano DiGirolamo, Sr., and his co-defendant, Louis Salerno, were arrested in a government sting operation targeting heroin distribution in Long Island, New York. After a jury trial, both DiGirolamo and Salerno were convicted of conspiracy to distribute heroin and conspiracy to possess more than one kilogram of heroin with intent to distribute, in violation of 21 U.S.C. Sec. 846, and of possession, with intent to distribute, of more than one kilogram of heroin, in violation of 21 U.S.C. Sec. 841(a)(1). On November 4, 1994, the district court (Johnson, J.) sentenced DiGirolamo to life imprisonment. DiGirolamo appeals his conviction and his sentence. We affirm both.

I. BACKGROUND

The government's evidence showed that in March of 1991, as part of a government effort to uncover Long Island distributors of heroin that originated in Pakistan, DiGirolamo was identified as a possible heroin dealer. The government obtained DiGirolamo's phone number from a source in Pakistan. At the government's request, a confidential informant ("the CI") contacted DiGirolamo on March 7, 1991. The CI told DiGirolamo that he had obtained DiGirolamo's number from Hizbullah Khan, a friend of DiGirolamo's in Pakistan. The CI and DiGirolamo then had a series of meetings and conversations in which they discussed importing 12 kilograms of heroin. During an early phone conversation, on March 19, DiGirolamo expressed reservations about dealing with the CI, but whatever qualms DiGirolamo may have had disappeared once DiGirolamo spoke to Khan by telephone.

After a number of other phone calls and encounters, DiGirolamo arranged for the CI to meet a buyer, defendant Louis Salerno. Subsequently, the CI and Salerno completed a transaction for 12 kilograms of heroin. Salerno and DiGirolamo were then arrested.

DiGirolamo claimed in defense that he was entrapped. He did not testify himself, but presented evidence that a friend who was an attorney had represented Khan and had posted a $25,000 bond for Khan in Khan's immigration proceedings. Khan had then fled the United States, causing the bond to be forfeited. DiGirolamo argued that his involvement with the CI was solely an effort to help the attorney find Khan in order to regain the $25,000 that had been forfeited, and that DiGirolamo had not been predisposed to commit a crime.

The jury found both DiGirolamo and Salerno guilty on January 27, 1993. In November 1994, DiGirolamo came before the district court for sentencing. The district court concluded that a life sentence was required by 21 U.S.C. Sec. 841(b)(1)(A) (1988 & Supp.1991), as it read at the time of DiGirolamo's offense, because DiGirolamo had two prior convictions for felony drug offenses. ¹ In the alternative the district court calculated a sentence for DiGirolamo under the Sentencing Guidelines. The district court determined that DiGirolamo was a career offender under the Guidelines because he had two or more prior convictions for crimes of violence or controlled substance offenses. See U.S.S.G. Sec. 4B1.1. The resulting criminal history category, combined with DiGirolamo's offense level, called for a sentence of 360 months to life. The district court decided that, even in the absence of the required sentence of life imprisonment under 21 U.S.C. Sec. 841(b)(1)(A) (1988), life imprisonment was appropriate. DiGirolamo, who is serving his sentence, appeals both the sentence and the underlying conviction.

II. DISCUSSION

Only two aspects of DiGirolamo's appeal require discussion. As to his conviction, DiGirolamo claims that the jury's rejection of his entrapment defense was based on erroneous instructions and erroneous factual findings. As to his sentence, he argues that the district court erred in treating his prior conviction under the Travel Act, 18 U.S.C. Sec. 1952 (1986) (as it read at the time applicable to DiGirolamo), ² as a "felony drug offense" which, in combination with another prior felony drug offense, mandated the imposition of a sentence of life imprisonment. We address these contentions in turn.

1. The Entrapment Defense

DiGirolamo first claims that he was entrapped as a matter of law. Entrapment has two elements: (1) government inducement of the crime, and (2) lack of predisposition on the defendant's part. Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). When a defendant presents credible evidence of inducement by a government agent, the government is required to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. Jacobson v. United States, 503 U.S. 540, 549, 112 S.Ct. 1535, 1540-41, 118 L.Ed.2d 174 (1992). On appeal, the government concedes that there was evidence of inducement. The question therefore is whether the government met its burden of proving beyond a reasonable doubt that DiGirolamo was predisposed to commit the crime. DiGirolamo's argument--that he was entrapped as a matter of law--is in substance an attack on the sufficiency of the government's evidence of predisposition. See United States v. Harvey, 991 F.2d 981, 992 (2d Cir.1993). Hence, that evidence must be viewed in the light most favorable to the government, and all reasonable inferences must be drawn in the government's favor. E.g., United States v. Aulicino, 44 F.3d 1102, 1114 (2d Cir.1995).

A defendant is predisposed to commit a crime if he is " 'ready and willing without persuasion' to commit the crime charged and 'awaiting any propitious opportunity' " to do so. Harvey, 991 F.2d at 992 (quoting United States v. Williams, 705 F.2d 603, 613 (2d Cir.), cert. denied, 464 U.S. 1007, 104 S.Ct. 524, 78 L.Ed.2d 708 (1983)). Predisposition may be shown by evidence of:

"(1) an existing course of criminal conduct similar to the crime for which [the defendant] is charged, (2) an already formed design on the part of the accused to commit the crime for which he is charged, or (3) a willingness to commit the crime for which he is charged as evidenced by the accused's ready response to the inducement."

United States v. Valencia, 645 F.2d 1158, 1167 (2d Cir.1980) (quoting United States v. Viviano, 437 F.2d 295, 299 (2d Cir.), cert. denied, 402 U.S. 983, 91 S.Ct. 1659, 29 L.Ed.2d 149 (1971)), amended, 669 F.2d 37 (2d Cir.1981).

The government introduced evidence that DiGirolamo readily agreed to the transaction. The government also introduced evidence that DiGirolamo was able to put together a deal involving 12 kilograms of heroin with little difficulty. Such evidence of capacity to organize a crime speedily supports an inference that DiGirolamo had an already-formed design and an existing course of criminal conduct. Cf. Valencia, 645 F.2d at 1167 (evidence that the defendants had a ready source for cocaine and were able to obtain a large amount of cocaine on credit on short notice supported an inference that they had an already-formed design and existing course of criminal conduct).

DiGirolamo, in contrast, emphasizes his reluctance to be involved in the deal. He points in particular to a phone call that he had with the CI on March 19, 1991, in which he told the CI that "there's no way there's anything can be done." There was evidence, however, that DiGirolamo displayed no such hesitation in his initial discussions with the CI, when the CI first proposed the deal. Moreover, whatever reluctance DiGirolamo displayed quickly evaporated after DiGirolamo was able to contact Khan, his friend in Pakistan. The jury therefore could reasonably view DiGirolamo's hesitance not as reluctance to engage in criminal activity, but rather as a transient manifestation of unease about dealing with someone he did not know. Viewing the evidence as a whole and in the light most favorable to the government, we conclude that there was sufficient evidence to support a jury finding that DiGirolamo was readily willing and predisposed to commit the crime proposed by the CI.

DiGirolamo also contends that the district court erred by failing to include certain requested language, discussed below, in its entrapment instruction to the jury. In particular, DiGirolamo challenges the district court's charge as to "government inducement." While the government conceded the existence of evidence of inducement on appeal, it did not do so at trial. Because we cannot be sure whether the jury's rejection of DiGirolamo's entrapment defense rested on a finding that DiGirolamo was predisposed or on a finding that there was no evidence that DiGirolamo was induced, we must consider the adequacy of the district court's inducement charge. ³

The judge instructed the jury as follows:

The defendant DiGirolamo asserts a defense that he was the victim of entrapment by an agent of the government. While the law permits government agents to trap an unwary criminally minded person, the law does not permit the government agents to entrap an unwary innocent. Thus a defendant may not be convicted of a crime if it was the government who also persuaded him to commit the crime, and if he was not ready and willing to commit the crime before the government officials or agents spoke with him.... On the other hand, if the defendant was ready and willing to violate the law and the government merely presented him with an opportunity to do so, that would not constitute entrapment.

Your inquiry on this issue should first be to determine if there is any evidence that a government agent took the...