United States v. Lusterino

• Decision Date: 30 November 1971
• Docket Number: No. 136,Docket 71-1541.,136
• Citation: 450 F.2d 572
• Parties: UNITED STATES of America, Appellee, v. John LUSTERINO, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

450 F.2d 572 (1971)

UNITED STATES of America, Appellee, v. John LUSTERINO, Appellant.

No. 136, Docket 71-1541.

United States Court of Appeals, Second Circuit.

Argued October 5, 1971.

Decided November 30, 1971.

Jerome Lewis, New York City (Jerome C. Ditore, New York City, of counsel), for appellant.

Edward R. Korman, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E.D.N.Y., David G. Trager and George G. Bashian, Jr., Asst. U. S. Attys., of counsel), for appellee.

Before MURRAH^*, WATERMAN and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

John Lusterino appeals from a judgment of conviction on the first four counts of a five-count indictment after a jury trial in the United States District Court for the Eastern District of New York, Anthony J. Travia, Judge; the first three counts charged Lusterino and Grillo, his co-defendant who testified for the government and whose case was severed prior to trial on Lusterino's motion, with passing, attempting to sell and possession of counterfeit money (18 U.S.C. § 472). Count four charged Lusterino with possession and concealment of counterfeit money. He was sentenced to five years imprisonment on each count to run concurrently. The trial court's denial of bail was reversed by this court and appellant is presently at liberty pending appeal. We find error and reverse and remand.

There is no doubt that Lusterino participated in the transaction which underlies the indictment. His principal defense was entrapment. The basic questions on appeal are: (1) whether he was prejudiced in presenting his defense of entrapment to the jury either by the government's improperly holding out Grillo, an informant, as a co-defendant, or by an erroneous charge on specific intent, and (2) whether procedural due process was violated either by the government's alleged failure to establish probable cause for a warrantless arrest and search at the suppression hearing or by the use of Grillo to obtain information from appellant after his arrest and indictment.

There was evidence, largely from Grillo's testimony, that the transaction of July 16, 1968 which formed the basis of the indictment, transpired as follows:

(1) 6 p. m. —Lusterino called Grillo seeking a buyer for counterfeit money; Grillo agreed to call back at 9 p. m. (this is the only important particular in which Lusterino\'s version of the facts differs from the government\'s: he stated that Grillo had called him pleading with him to obtain counterfeit money in order that Grillo could pay off a shylock who was threatening to kill him; he refused Grillo at that time, yielding to his importuning only at the later call.)

(3) 7 p. m. —Secret Service agents, acting on a New York Police Department tip, arrived at Grillo\'s apartment, took him to their headquarters in Manhattan, and obtained disclosure of the prospective transaction with Lusterino.

(3) 9 p. m. —Grillo called Lusterino at the Secret Service\'s behest and advised him a buyer was available; a rendezvous was arranged for midnight at a Queens bar.

(4) 10 p. m. —Grillo with $300 in marked bills provided by the agents arrived at the bar accompanied by Agent D\'Amelio.

(5) 11:30 p. m. —Lusterino arrived; shortly thereafter he and Grillo met in Lusterino\'s car, observed not by Agent D\'Amelio but by two other federal agents, Bothe and Sweeney, who could not, however, see what happened inside the car, namely the exchange of the counterfeit for the marked bills; Lusterino then returned to the bar and Grillo to Agent D\'Amelio\'s car; D\'Amelio inspected a package given him by Grillo, determined it contained counterfeit money and ordered Lusterino\'s arrest; Lusterino was immediately searched, revealing the marked money and additional counterfeit money.

Grillo was taken back to the office of the Secret Service where he was fingerprinted and signed a statement. He talked with Lusterino at a lawyer's office on July 24, 1968, eight days after the arrest and testified on trial to Lusterino's effort to have Grillo take the blame for the offense in exchange for a promise by Lusterino to take care of Grillo's family while Grillo should be in jail, an offer repeated, according to Grillo, on two occasions, some six months later. Grillo was indicted with Lusterino July 31, 1968. At one time following indictment, when Lusterino consulted with Grillo at Grillo's apartment in the absence of counsel, a government agent was concealed in a closet to overhear their conversation. The court did not allow the agent to testify as to the conversation.

Grillo's case was severed at Lusterino's request, and subsequent to his testimony at Lusterino's trial the indictment against Grillo was dismissed on motion of the government.

On cross-examination, Grillo testified that he had received no promises from the government, that he had not pleaded guilty, but that he was just as much an accomplice as Lusterino, and that he was just as guilty as Lusterino.

Appellant urges that holding out Grillo, an informant controlled by the Secret Service, as a co-defendant prejudiced him before...