United States v. Roett

• Decision Date: 26 January 1949
• Docket Number: No. 9836,9846.,9836
• Citation: 172 F.2d 379
• Parties: UNITED STATES v. ROETT.
• Court: U.S. Court of Appeals — Third Circuit

172 F.2d 379 (1949)

UNITED STATES v. ROETT.

Nos. 9836, 9846.

United States Court of Appeals Third Circuit.

Argued December 20, 1948.

Decided January 26, 1949.

Writ of Certiorari Denied April 25, 1949.

Frederic M. P. Pearse, of Newark, N. J., for appellant.

Grover C. Richman, Jr., Asst. U. S. Atty., of Camden, N. J. (Alfred E. Modarelli, U. S. Atty., and Samuel Cohen, Atty. in Charge Alcohol Tax Division, both of Newark, N. J., on the brief), for appellee.

Before BIGGS, Chief Judge, and McLAUGHLIN and KALODNER, Circuit Judges.

Writ of Certiorari Denied April 25, 1949. See 69 S.Ct. 889.

BIGGS, Chief Judge.

Only one point is presented by the instant appeals. The defendant, Roett, asserts that he was entrapped by federal officers into violations of laws of the United States.¹ We shall state only the facts necessary for a decision. Roett is a member of the bar of New Jersey. At some time in 1944 Roett, employing the name Johnson, had come to see Kell, a farmer, to ask him if he, Kell, would lease part of a farm, which Kell had just purchased at Allenwood, to him. Nothing came of this original meeting. About two years later, early in 1946, Roett again came to see Kell and again requested to rent a part of a farm. On this occasion Kell received the impression that Roett desired to lease part of a farm in order to operate a still. Kell refused the request on this occasion but Roett came to see him several times thereafter and urged Kell to rent to him part of the farm. Kell then got in touch with Casey, an investigator of the Federal Alcohol Tax Unit, and told Casey that he had been approached by a man with a suspicious proposition. Kell later talked to Gettel, the Investigator-in-Charge of the Alcohol Tax Unit at Newark, New Jersey. According to Kell's testimony Gettel stated to Kell that "* * * it would be perfectly all right for * * * him to let them start operations, to lease part of the farm". About the middle of February, 1946 Casey brought an undercover agent of the Alcohol Tax Unit, Nilsen, to the farm. Nilsen was instructed to act as a "dumb" farm hand and to report his observations from time to time to the Alcohol Tax Unit.

About the first of March, 1946 Kell wrote a letter to Roett informing him that Kell would rent to him. While negotiations for a lease between Kell and Roett were under way, Roett, accompanied by several other persons, including Ricciardelli and Trupiano,² came to Kell's farm three or four times and were present while Roett arranged to pay Kell $300 a month as rent. Nilsen was present at these meetings but took no part in the conversations. Kell knew that Nilsen was employed by the Alcohol Tax Unit. Late in March or early in April 1946 Roett gave Kell $150 to buy a scoop to dig an excavation for a building on the farm. Nilsen and Kell did the excavating. Roett drove a truck to bring cinder blocks and building materials to the farm for the new building and helped to build the walls. A local firm, hired by Roett, dug a well. The building was completed about May 1 and a still and other equipment were installed.

Legg, Chief of Police of the Borough of Brielle, situated within a few miles of the Kell farm, had known Roett since 1941. Roett and Legg had had several conversations over a period of four years. Roett had brought "mobs" to Legg with the thought that they might operate in or near the Borough of Brielle, Roett desiring to obtain the "protection" of Legg as Chief of Police for contemplated operations. From January to March 31, 1946 Legg was attending the Federal Bureau of Investigation school for police chiefs in Washington. On January 28 he received a telephone call from Roett who informed him that "* * * everything was all set", meaning that distilling operations were about to commence on the Kell farm. Legg told Roett not to commence distilling until he returned to Brielle. He then informed Casey of his conversation with Roett. On May 15 Legg received $50 protection money from Roett; on May 22 he received $75 and on June 1 another $50. When the still was raided this money was turned over by Legg to the Alcohol Tax Unit and was introduced in evidence at Roett's trial.

Gettel, according to his testimony, made it plain to Kell that Kell was not "* * * in any way, shape or form to entice * * * or encourage * * * Roett and his associates in setting up the distillery, that all of the original information and going forth of such a project should come from them." There is, however, some evidence that Kell participated to a limited degree in trying to find a well digger to dig a well to increase the water supply at the farm for the operation of the still. It is clear also that Nilsen took part in the actual operation of the still. But the record shows beyond any doubt that Roett was the "front" man for a well organized gang who were intent on proceeding with an illegal enterprise with skill and dispatch.

It is against the background of the foregoing facts that the defendant alleges that he was entrapped and that his motion for a directed judgment of acquittal should have been granted by the court below.

We cannot agree. Both the defendant and the United States rely upon Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77...