United States v. Alberico

• Decision Date: 23 December 1977
• Docket Number: Crim. No. 77-CR-237 to 77-CR-240.
• Citation: 453 F. Supp. 178
• Parties: UNITED STATES of America, Plaintiff, v. Gregory ALBERICO, Defendant.
• Court: U.S. District Court — District of Colorado

453 F. Supp. 178

UNITED STATES of America, Plaintiff, v. Gregory ALBERICO, Defendant.

Crim. Nos. 77-CR-237 to 77-CR-240.

United States District Court, D. Colorado.

December 23, 1977.

Joseph F. Dolan, U. S. Atty., Rodney W. Snow, Asst. U. S. Atty., Denver, Colo., for plaintiff.

Walter L. Gerash, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

WINNER, Chief Judge.

These four cases were consolidated for trial and defendant was convicted by jury verdict of six of the seven felonies charged. The jury returned a not guilty verdict on the seventh charge. A motion to disqualify me has been filed, and it seems appropriate that preliminarily to ruling on that motion I talk at length about the troubled history of these cases. I choose 77-CR-240 to capsulize that history.

Defendant's bond was originally fixed at $50,000, but it was reduced to $15,000 by the magistrate. After further proceedings before the magistrate, the first thing I had to do with the case was raised by a motion seeking relief as to the preliminary hearing. The preliminary hearing became somewhat unimportant after the return of indictments on August 12, 1977. Defendant was arraigned and pleaded not guilty on August 16, 1977. Our local rules require the filing of motions within 10 days of arraignment, but to accommodate defendant and his lawyer, the time for motions was doubled which gave defendant 20 days for his motions. On August 18, 1977, trial was set for the week of November 7, 1977. Eleven motions were filed on September 2, 1977, and they were set for hearing on October 5, 1977. Then, on September 12, a superseding indictment was filed and the defendant again entered not guilty pleas on September 15, 1977. It was agreed that the motions theretofore filed should be deemed directed to the superseding indictment, and the hearing date of October 5, 1977, was confirmed. October 4, 1977, defendant asked to continue the hearing, but this request was denied, and the motions were heard on the scheduled date. Some motions were granted while some were denied. Defense counsel argued that the place of trial should be changed because of pretrial publicity. I thought that the publicity hadn't been all that bad, but, to be absolutely sure that the defendant was not prejudiced, I changed the place of trial to Grand Junction, Colorado, commencing November 7, 1977. This meant two trials, because the co-defendant wanted to be tried in Denver.

Not long thereafter, defense counsel informally advised me that he had a conflicting trial setting and asked that the trial start midweek instead of November 7th. I agreed to this. Later, at defense counsel's request, the trial was put over to November 14, 1977. There was another flurry of motions on November 8, 1977, and these were opposed in writing by the government. It was on November 8, 1977, that defense counsel first charged "governmental misconduct," because he alleged that certain material hadn't been furnished to him as part of the discovery process. With the trial firmly set to commence in less than a week, and with jurors from throughout the entire western slope of Colorado summoned to appear in Grand Junction on November 14, 1977, I heard the November 8th motions on Wednesday, November 9th. They were denied. On either November 10th or November 11th, I was advised by defense counsel that a plea bargain had been agreed to. I insisted that the plea be entered before November 14, 1977, the scheduled trial date.

Defense counsel made an ex parte visit to my chambers in which he proposed that I agree to accept a guilty plea and that I promise to continue sentencing until after January 1, 1978, to assist defendant in obtaining his Army pension. I told counsel in chambers, and later on the record in open court in defendant's presence that I would not be a party to any such agreement. Whether defendant gets or does not get his pension is something I will having nothing to do with — either in this case or in any later litigation which may ensue.

The guilty plea was entered without promises on my part. We have adopted the practice in this court of having a defendant who wants to plead guilty sign a statement intended to cover anything mandated by Rule 11, F.R.Cr.P. Defense counsel must also sign the statement, and a copy of the form statement signed by Alberico and his lawyer was filed in support of the plea of guilty to Count 2 in Case No. 77-CR-240. I was determined to make an adequate oral record to support the guilty plea, and, although an oral record in addition to the written statement is always made, I went into a bit more detail on Alberico's plea than is customary with me. I left the courtroom thinking these troublesome cases were done with, and by diligent use of the long distance telephone over the weekend, the Clerk's office was able to contact summoned jurors to keep them from needlessly reporting in Grand Junction the following Monday.

When the guilty plea was entered, sentencing was set for November 28, 1977, but on November 22, a motion was filed asking that the sentencing be continued until December 9th. The motion recited "that this motion is not made with any effort to delay or enhance any collateral administrative action on behalf of defendant," but, I was unpersuaded that the sentencing should be continued and I denied the motion. The day for sentencing under the guilty plea came, and when defendant appeared before the court, he and his counsel asked to withdraw the guilty plea. Despite the fact that I understand the law to be that requests to withdraw guilty pleas made before sentence is imposed should be treated liberally, I did not think that the showing made by defendant was sufficient to require that withdrawal of the plea be allowed. Nevertheless, I bent over backwards once more, and I let defendant withdraw his plea.

Trial was set to commence on December 5, 1977, in Grand Junction, and once more the Clerk's office went to work on the long distance telephone to round up sufficient jurors.

On Thursday, December 1, 1977, defendant filed a "Notice Pursuant to Rule 12.2" of an intent to offer psychiatric testimony in support of a possible defense of entrapment. It is to be remembered that Rule 12.2(b) provides:

"If a defendant intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate."

Of course, the extended time for filing pretrial motions had expired many months earlier, but I did not sustain the government's request to block off the defense. Instead, I said that I would receive the psychiatric testimony during the trial and out of the presence of the jury. I agreed to rule on the request to permit that testimony after I heard it. I did so, and, again, I resolved the serious doubts I had as to the admissibility of the testimony in defendant's favor and the jury heard all that I had heard out of the jury's presence plus a lot more that I hadn't heard. I shall say nothing further concerning this, because the circumstances are argued by defendant as a ground for a new trial.

Friday, December 2, 1977, still another motion for continuance was filed. It said that the psychiatrist would need a week to examine the so-called § 3500 material, and that the material had just been received. Of course, the material required to be furnished under 18 U.S.C. § 3500 can't be ordered furnished prior to completion of the testimony of the witness in question, and the early delivery of the material was a courtesy to defense counsel afforded by the United States Attorney. In this motion, counsel said as to his client, "The federal investigative material . . . reveals material indicating that the defendant is either the world's biggest liar and storyteller, or a man gone berserk." The December 2, 1977, motion for a continuance was denied, with the promise that if the government's case didn't take up all of the week of December 5, 1977, I would recess the trial to give the psychiatrist the time he said was needed to read over the statements. The government's case did take all week, the psychiatrist was ready to go when called, and I didn't have to recess.

The case was called for trial on December 5, 1977, as scheduled, and defendant opened with a final motion for a continuance. I denied it, and we got the trial started.

During the trial certain video tapes were received in evidence without objection, and the jury watched and listened to them. They were received commencing December 6, 1977, and custody of those tapes was carefully preserved at all times. Copies of the tapes are alleged to have been made available to Channel 4, KOA-TV by the prosecution, and excerpts were shown on the newscasts. Nothing was shown to the public the jury had not already seen, but a motion for a mistrial was made the following morning. The jury had not been sequestered, and inquiry was made of the jury as to whether any juror had seen the newscasts in question, whether any juror had talked to anyone about them or whether anyone had mentioned the newscasts to a juror. The jurors' unanimous response was negative and the mistrial motion was denied. The same thing happened the next day, and before inquiry was made of the jurors, defense counsel said that the jurors might be afraid to give honest answers because of fear of punishment. I took care of this by assuring the jurors that there would be no punishment if an affirmative answer were given by any juror, but once more the jurors' answers were...