United States v. Acosta, 75-1301.

• Decision Date: 23 February 1976
• Docket Number: No. 75-1301.,75-1301.
• Citation: 526 F.2d 670
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Victor ACOSTA, Louis Llerandi, Joseph Bedami, Jr., and Anthony Crapero, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 670

UNITED STATES of America, Plaintiff-Appellant, v. Victor ACOSTA, Louis Llerandi, Joseph Bedami, Jr., and Anthony Crapero, Defendants-Appellees.

No. 75-1301.

United States Court of Appeals, Fifth Circuit.

January 29, 1976.

Rehearing Denied February 23, 1976.

Robert W. Rust, U.S. Atty., Miami, Fla., Mervyn Hamburg, Atty., App. Section, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Henry Gonzalez, Tampa, Fla., for defendants-appellees.

Before COLEMAN, CLARK and INGRAHAM, Circuit Judges.

COLEMAN, Circuit Judge.

A jury convicted Victor Acosta, Louis Llerandi, Joseph Bedami, Jr., and Anthony Crapero of conspiracy to import controlled substances into the United States, 21 U.S.C. § 952. After the verdict was returned, the District Court dismissed the indictment for prosecutorial misconduct, United States v. Acosta, 386 F.Supp. 1072 (S.D.Fla., 1974). Judge Fay was of the opinion that the conduct in question was so outrageous that due process principles absolutely barred the prosecution from invoking judicial processes to obtain a conviction. The government appeals, seeking reinstatement of the verdict.

The government contends that district courts have no authority to dismiss an indictment after a guilty verdict has been returned; but assuming such authority arguendo it further contends that dismissal was inappropriate here. We find it unnecessary to reach or decide the first point but we do agree that this dismissal was inappropriate.

FACTS

The importation conspiracy of which appellees were convicted began on or about December 1, 1972, for the purpose of importing cocaine and marijuana from Colombia into the United States.

The star witness for the prosecution, an oft convicted felon named Rudy Limauro, was a paid informer who had played the role of a co-conspirator. At the trial the defense adduced virtually no evidence bearing upon the intrinsic merits of the case. Rather, the strategy was to discredit Limauro, coupled with the delivery of a withering attack upon the investigative and prosecutorial methods utilized by the government. This approach developed the following:

In November of 1972 Limauro had been convicted before Judge Fay of an unrelated crime. He was ordered to report in December for incarceration.

In the interim, Limauro gained favor with the authorities by disclosing the whereabouts of the perpetrator of a recent robbery-murder. At the request of federal agents and because of this cooperation, Judge Fay modified the sentence previously imposed on Limauro, placing him on three years probation.

Thereafter, Limauro began working as an informer for the federal Drug Enforcement Administration. This was done without probationary clearance for that activity, which did not come until March, 1973.

Based on the information compiled from Limauro, appellees and five others were indicted in June, 1974, for the drug conspiracy involved in this appeal.

Following indictment, appellees filed motions to compel disclosure of any promises of immunity and any preferential treatment to prosecution witnesses. In response, the government disclosed the following considerations accorded Limauro: (1) the aforementioned probationary sentence, (2) the pay Limauro received for his services, (3) a reward Limauro had received for another case he worked on, and (4) reimbursement for expenses he had incurred. The government denied any further promises of immunity, including a specific denial of any promises of favorable tax treatment.

Upon direct examination, while the government was putting on its case, Limauro testified that he had been given no promises from the prosecution except those above enumerated, plus the additional assurance that it would provide Limauro with a new identity following the trial. He admitted six prior felony convictions and swore that those were all the convictions he could recall.

On cross examination this testimony about the convictions was thoroughly exploded. Limauro was compelled to admit not six but twenty prior convictions, as well as several illegal activities for which he had not been convicted. He admitted violating probation while serving as an informer between December, 1972, and March, 1973; he admitted neglecting to report as income the $27,500 earned as an informer; he admitted using and distributing illegal drugs; and he admitted that his knowledge of where the jewelry robber could be captured stemmed from complicity in the fugitive's escape.

Limauro testified that he continued to receive payment for information even after the indictment was returned, payments that had the appearance of being given in return for testimony, although Limauro denied this aspect of the matter.

Limauro further admitted that state charges had been lodged against him in Dade County, but no indictments had been returned. When asked whether he expected those charges to be dropped because of his testimony, he said he had no idea how they would be resolved. Later testimony by a state officer tended to refute this assertion. In fact, Limauro knew that following the trial the state officer intended to ask the state's attorney to drop the charges. Of course, Limauro did not know whether the state's attorney would comply, but he did have reason to believe the charges would be resolved favorably.

With regard to these Dade County charges, Limauro stood by his testimony in an earlier case to the effect that he did not then know of the charges. However, the defense produced a witness who, nine months prior to the earlier trial, had informed the Drug Enforcement Administration of the charges against Limauro. Therefore, the least damaging assumption is that in this case and the earlier trial the Drug Enforcement Administration allowed the government to let false prosecution testimony go unchallenged; the most damaging inference is that the Drug Enforcement Administration passed its information on to Limauro, and he perjured himself in the earlier trial and again in this case. Again, however, the jury in the instant case was made aware of the discrepancy.

Cross examination also disclosed Limauro had lied in his direct testimony regarding a meeting he had with appellee Acosta and his attorney.

The most damaging attack on Limauro's credibility concerned his role in the jewelry store robbery-murder. Despite the prosecution objection as to relevance, Judge Fay allowed lengthy cross examination about the robbery. Limauro testified that one of the perpetrators, Greer, approached him after the robbery, seeking help to escape. In response to the request, Limauro hid the jewels in his girl friend's home, discussed their value with a fence, and helped Greer escape in a camper. He did contact the police the night after the daytime robbery, a fact corroborated by the policeman to whom he reported. As a reward for Greer's capture, Limauro received $10,000.

When the defense called Greer as a witness he told a markedly different story. He testified that Limauro was more than the accessory after the fact; he accused Limauro of having planned the robbery, of having financially profited from it, and, in effect, of having betrayed Greer to gain a favorable reconsideration of his 1972 sentence.

On cross examination, Limauro reasserted three times that he had received no undisclosed promises of immunity. The trial court expressed incredulity at this testimony; aware of its obligation to reveal all such promises to the jury, the government agreed to a remedial instruction, which was read to the jury in the midst of the trial, as follows: "The Federal Government does not intend to prosecute Mr. Limauro for any illegal activity he testified to in his direct or cross examination."

In addition to the collateral assault on Limauro's credibility, and the related failures of the government to disclose promises to witnesses and to correct false testimony, three other governmental indiscretions were cited by the District Court as requiring dismissal.

First, defense witnesses testified that James Charles Gore, Jr., a state parolee, was used as an informer although Florida law prohibits it. To gain consent from Gore's parole officer, a federal agent had falsely asserted that permission had been obtained from his the officer's superiors.

Second, the government was slow in producing requested pay vouchers indicating moneys paid to an agent in South America. Copies of the vouchers did not arrive until the prosecution had completed its closing argument, too late for the defense to use them in cross examination. Nevertheless, the defense had already been apprised of the amounts of money involved, and they did not question the accuracy of those amounts.

Third, the government conspicuously dropped its prosecution a...