United States v. Marcello
| Decision Date | 04 May 1982 |
| Docket Number | No. Cr. EJD-81-720.,Cr. EJD-81-720. |
| Citation | 537 F. Supp. 402 |
| Parties | UNITED STATES of America, Plaintiff, v. Carlos MARCELLO, Samuel Orlando Sciortino, and Phillip Rizzuto, Defendants. |
| Court | U.S. District Court — Central District of California |
Andrea Sheridan Ordin, U. S. Atty., James D. Henderson, Bruce J. Kelton, Los Angeles Strike Force, Dept. of Justice, Los Angeles, Cal., for U. S Arthur A. Lemann, III, and Provino C. Mosca, New Orleans, La., for defendant Marcello.
Richard Caballero, Beverly Hills, Cal., for defendant Sciortino.
Thomas R. Dyson, Jr., Washington, D. C., for defendant Rizzuto.
MEMORANDUM & ORDER DENYING MOTION TO DISMISS FOR GOVERNMENT OVERREACHING
DEVITTSenior District Judge.
Defendants have moved to dismiss the indictment due to government overreaching. This motion was made prior to the trial; ruling was deferred until after trial. See Fed.R.Crim.P. 12(e); United States v. Kaplan, 554 F.2d 958, 970, n.7 (9th Cir. 1977), cert. denied sub nom. Vogt v. United States, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977); United States v. Marcello, 508 F.Supp. 586, 593-95 (E.D.La. 1981); United States v. Jannotti, 501 F.Supp. 1182 (E.D.Pa.1981), rev'd on other grounds, 673 F.2d 578 (3d Cir. 1982).
Defendants were charged in a three count indictment with a conspiracy to bribe United States District Judge Harry Pregerson of the Central District of California in order to obtain favorable treatment for defendant Sciortino and others in a criminal prosecution over which Judge Pregerson was presiding. Count 1 charged the defendants with conspiracy to bribe a public official in violation of 18 U.S.C. §§ 371 and 201(b); Count 2 charged them with corruptly endeavoring to influence an officer of the United States Courts and aiding and abetting in violation of 18 U.S.C. §§ 1503 and 2; and Count 3 charged the defendants with using the facilities of interstate commerce to carry on unlawful activity and aiding and abetting in violation of 18 U.S.C. §§ 1953 and 2. Defendant Marcello was found guilty by a jury on all counts; defendant Sciortino was found guilty on Count 2, with the jury unable to reach a verdict on Counts 1 and 3; and defendant Rizzuto was found guilty on Counts 1 and 2, and acquitted on Count 3.
Evidentiary hearings on this motion were held after trial on February 12 and April 5-7, 1982, at the conclusion of which the court orally denied defendants' motion to dismiss the indictment. In connection with this motion, the defendants moved the court to conduct an in camera inspection of the entire government case file concerning the "Brilab" investigation, and to turn over to defendants materials referring to Judge Pregerson and government instructions and guidelines relating to the conduct of undercover operations. A similar motion was made with regard to the files of the Federal Bureau of Investigation. The court inspected the files so produced, which the prosecutor and responsible FBI agent represented were the entire government and FBI files relating to these matters. Pertinent materials were turned over to the defendants pursuant to orders dated February 12, 1982 and February 26, 1982. All of the files produced have been sealed and marked as Court Exhibits 2 and 3.
Defendants contend that the indictment must be dismissed on the ground that the conduct of government agents in connection with the investigation and prosecution of this case was so outrageous that it violated the defendants' rights to due process as guaranteed by the Fifth Amendment. The basis for this motion as originally brought and briefed was that the government created and promoted the conspiracy to bribe Judge Pregerson in order to force the judge to recuse himself from presiding over a criminal prosecution in which defendant Sciortino was a defendant.1 After the hearings on this motion, the defendants conceded and this court agrees, that they failed to make such a showing. Defendants now contend, however, that the government's conduct in the investigation of this case constituted an outrageous and unprecedented attempt by the government to tamper with a defendant in a pending criminal case, and constituted outrageous and unwarranted interference with the province of the federal judicial branch.
In attempting to show the alleged outrageous conduct on the part of the government, the defense has focused on several conversations between government informant Hauser and the defendants which occurred in late 1979. Hauser was a key figure in the government's undercover inveigation commonly referred to as "Brilab," which involved investigation of alleged bribery of public officials in the State of Louisiana in order to obtain insurance contracts. See United States v. Marcello, 508 F.Supp. 586 (E.D.La.1981). In this connection, Hauser was in frequent contact with defendant Marcello during late 1979. The relevant conversations were recorded as the result of court-ordered and consensual interceptions.
On October 4, 1979, in a telephone conversation between Marcello and Rizzuto, Marcello inquired of Rizzuto, who is Sciortino's cousin, whether he had read an article in the local New Orleans newspaper regarding "this man" from California, and asked if that was the same person about whom Rizzuto had talked with Marcello the previous evening. Evidence at trial showed that Marcello was referring to a newspaper article regarding statements made by Judge Pregerson during Senate hearings regarding confirmation of his appointment to the Court of Appeals for the Ninth Circuit. Later that same day in a telephone conversation between Marcello and Hauser, Marcello told Hauser about the article in the paper, and a discussion about Judge Pregerson ensued. Marcello informed Hauser that he knew people scheduled to go to trial before Judge Pregerson the following Monday. Hauser, who was made aware of the earlier Marcello-Rizzuto conversations by the F. B. I., told Marcello he knew the judge, and that there were things he might be able to do. In another conversation the same day with Rizzuto, Marcello informed him that he knew someone who knew Judge Pregerson with whom Rizzuto would want to talk.
The evidence has shown that Hauser did not in fact know Judge Pregerson, but represented to Marcello that he did in order to determine why Marcello was interested in the judge. Hauser immediately informed the FBI undercover agents with whom he was working in New Orleans of the conversation regarding Judge Pregerson, who in turn informed Special Agents William Fleming and John Barron of the Los Angeles Field Office of the FBI, who had responsibility for supervising Hauser's activities. Agent Barron was also the supervising agent on the Brooklier case. Barron testified that he consulted with Strike Force Attorney Henderson regarding the matter. Agent Fleming instructed Hauser to inquire further of Marcello regarding his interest with the judge.
Between October 4 and October 11, 1979, Agents Fleming and Barron instructed Hauser to inform Marcello that Hauser had a good friend who was a very close friend of Judge Pregerson. Fleming and Barron invented a fictional person named George Ashley, who they instructed Hauser to represent was a millionaire art dealer who was a very close friend of Judge Pregerson. The decision to create the Ashley character was made by Fleming and Barron. Marcello was then informed by Hauser of his purported relationship with Ashley. To lend credence to Hauser's representations regarding Ashley's friendship with the judge, the FBI also furnished Hauser with background information on Judge Pregerson and his family that was obtained from FBI files of a routine background check of Judge Pregerson in connection with his appointment to the federal bench.
On October 25, 1979, Hauser attended a meeting at which Marcello, Rizzuto and Sciortino were present at the home of Marcello's brother in Louisiana. The FBI and Strike Force Attorney Henderson were aware of the planned meeting, but prior to Hauser's arrival at the meeting, neither he nor any of the government agents involved in this investigation knew that Sciortino would be present at that meeting. At that meeting, Hauser told the defendants that his friend Ashley (the fictional character) could talk with Judge Pregerson regarding Sciortino's upcoming trial in the Brooklier matter. A discussion ensued among all those present regarding the possibility of Ashley approaching the judge without causing him to disqualify himself from Sciortino's case, and what he should be told regarding Sciortino. At the October 25 meeting, Hauser and Sciortino met alone for a time, during which Sciortino stated to Hauser that he was innocent of the crimes with which he was charged in the pending case, and that he believed that Judge Pregerson was a fair and honest judge. He stated his concern that Judge Pregerson would have to leave the district court as a result of his appointment to the Court of Appeals, and would not preside over his trial.
The consensual tape of the October 25 meeting was then reviewed by the FBI agents, and Strike Force Attorney Henderson was informed about the meeting. Henderson testified that he may have listened to the tape of the meeting between then and October 29. Agent Barron discussed the October 25 meeting with Henderson in order to obtain legal advice on how to proceed with the investigation. A meeting was then held between Agents Fleming and Barron, and other FBI personnel and Hauser on October 29. Hauser was instructed to arrange a meeting with Sciortino, and was told to inform Sciortino that Judge Pregerson would accept an art object valued at $125,000 from Sciortino in exchange for a promise not to withdraw from the case and a guarantee of probation in the event he was convicted.
Hauser then arranged a meeting with Sciortino that took place on October 29, 1979 in West Covina, California. At that meeting he told Sciortino that Judge Pregerson did not trust Sciortino and that he...
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U.S. v. Marcello
...(C.D.Cal.1982), which pertains to the district court's denial of the defendants' pre-trial motion to suppress; (2) United States v. Marcello, 537 F.Supp. 399 (C.D.Cal.1982), which pertains to defendants' post-trial motions for judgments of acquittal and for new (3) United States v. Marcello......