United States v. Joseph G. Houle and Victor Diodato
490 F.2d 167
2d Cir.
1973
Check Treatment

*1 entrap- exclusively have been about two views defendant’s turns which inception, its ment view ex- since crime —does predisposition to the solely predisposi- which focused on the ist. minority and tion defendant Russell, pointing out after solely view which focused either in or expanded tra- Appeals the of Court activity govern- addition on of the the entrapment “fo- which notion of ditional agents, mental and that the Court delib- de- predisposition the of the cuses erately rejects the second and view2 by focus- require dismissal fendant” may hews first. whatever it For governmental activity ing and upon disagreeing worth, be I am not here citing well degree it, Bueno as of siblings with Bueno and its at all. I court and district other circuit some as simply Supreme think does Court (on pointing out cases, and after and said has so. page) the thrust that in Sorrells same by recognized entrapment as defense predisposition was toward the Court minority fo- the defendant while government, activity cused Court observes: leave matter are content

We by in left the Court where it was . decisions . Several Sherman. America, UNITED STATES district courts the United Appellee, appeals undoubted- and courts of beyond opinion ly gone this Court’s Joseph Diodato, G. HOULE Victor to bar order Sorrells Sherman Appellants. they prosecutions of what because 424, 426, 445, 72-1492, Nos. Dockets thought for want of a better be 73-1583,73-1585. law term “overzealous enforcement.” Appeals, United States Court of entrapment enunci- But defense Second Circuit. opinions indi- [context ated those Argued 15, Nov. 1973. Supreme opinions cates Court’s in- Sherman 27, Sorrells] Decided Dec. 1973. give judiciary a tended to federal veto law en- “chancellor’s foot” over practices it of which did

forcement approve. ... government’s deception ac-

when design tually implants the criminal the de- mind of the defendant play, entrapment into

fense comes added)

(emphasis U.S., at 93 S.Ct. at

L.Ed.2d, at 375. plain

It seems to me that in its Rus- saying

sell the Court Except California, 2. for an anchor to windward concern- Rochin v. 342 72 S.Ct. ing agents government (1952), conduct of with which 96 L.Ed. which incrimi day presented “may nating the Court some be evidence was recovered from a hand outrageous process so that due cuffed defendant means of an emetic solu absolutely invoking government through against bar the from tion forced a tube his inserted judicial processes to obtain a conviction.” will into stomach. The Bueno situation L.Ed.2d, U.S., ready-to at and those other cases cited and analogous at 373. Cited as an situation liand were not instanced. *2 Buffalo, Murphy, N.Y. X. Francis Lackawanna, N.Y., of

(Peter Vinolus, A. counsel), Diodato. for Atty. Arcara, Asst. U.S. Richard J. N.Y., Atty., Elfvin, D.W. (John T. counsel), appellee. *3 KAUFMAN, Judge, and Chief Before Judges. OAKES, Circuit and SMITH Judge: SMITH, Circuit JOSEPH J. Joseph Victor Appellants and Houle on October were convicted Diodato by jury in the United a trial for the Western District Court Curtin, York, T. of New John District conspiracy Judge, one count of on stealing excess count of one moving in interstate a truck from $100 commerce, in of 18 violation U.S.C. §§ part and re- affirm 659. We part. verse February 6, Saturday, rail- a On trailer RIZ road discovered that checker missing the Bison from 507981 was Ramp Sloan, RIZ York. Trailer New ramp “piggy- had arrived at and Pacific via the Rock Island back” and the Norfolk and Western Railroad Oakland, from Iowa on Febru- Railroad ary shipment a 1971. It contained Pennsylvania Erie, destined for beef $17,990.- which had a wholesale inspection, Ramp is an 45. Bison storage point on the Nor- and transfer folk and Western Railroad. by

Appellant employed Houle po- Railroad as a Norfolk and Western Ramp lieutenant at the Bison lice Appellant Diodato time of the theft. trucking nearby North business trial, Collins, Norman New York. Keller, employee an Diodato’s truck- having ing concern, driven the admitted ramp question trailer from Dayton,' and then North Collins to South night February York on New prosecu- described 1971. “dupe,” tion as a testified to Diodato’s robbery. Ring, an role in the Edward accomplice witness, to Houle’s testified N.Y., Ross, Buffalo, testimo- Christopher involvement in the crime. This T. W. coupled ny, circum- with considerable Houle. strong argues evidence, Appellant stantial against made out case next that the discov- ery appellants both on counts. new evidence entitles him to a new trial. He he claims that after trial A. Houle discovered that Keller had been arrested prior charged driving to trial and arguments four makes resisting intoxicated, arrest, while First, appeal. contends that he degree criminal mischief in the third evidence from which was insufficient spoken and that Keller had to the As- could have found he knew Attorney sistant United States about that the stolen interstate were charges prior these to the trial below. commerce, and therefore his conviction Houle claims Assistant United count must be over Attorney told Keller that he actual turned. Because speak attorney to the district of the stolen interstate character Keller’s case and advise that Keller *4 goods required is to crimi count, not establish cooperating government was with the liability nal on the substantive prosecuting appellant. Appellant asserts Crimmins, United States F.2d v. 123 271 puts that this new evidence Keller’s tes- 1941); Tyers, (2d Cir. United v. timony light. below, in a new The court (2d 1973), argu 487 F.2d 828 this hearing matter, a on the did not only ment relates agree appellant. with count. Newly justifies discovered evidence a produced The evidence at trial only new trial if that evidence ap was more than sufficient to establish that, nature, “. . . of such as on a pellant’s knowledge interstate na newly trial, new discovered evidence shipment. Crimmins, In ture of this probably produce acquittal.” an court stated that a continued indiffer Tropiano States, F.Supp. v. United 323 goods ence to the source of the stolen 964, (D.Conn.1971); 966 United States coupled with a that in some cert, Lee, Cir.), v. On 201 F.2d 722 cases the outside had come from denied, 936, 798, 345 U.S. L. 73 S.Ct. 97 the state is to sufficient establish arguendo, (1953). Ed. Assuming, 1364 element of the offense. em Houle was appellant’s true, that claims are we are ployed Ramp, jury at Bison and the convinced that this evidence does not could infer from that fact that he knew Significantly, meet this standard. Kell- trans-shipment ramp point is a grand jury gave er testified to the for in interstate commerce. This police statements to the his ar- before might satisfy alone the Crimmins stand verify testimony rest which his at trial. also that ard. was shown Houle had unlikely damage any It is to that Kell- ramp records, access to the office credibility er’s which this evidence he that consulted those records to an might have worked would have been put questions swer concerning to him Diodato enough outweigh point- to the evidence shipment. the stolen The ing appellant’s guilt. to jury could conclude well that consult Finally, argues Houle that ing records, that discovered prosecutor’s failure to disclose to him RIZ Trailer 507981 was interstate the facts of Keller’s arrest and the con commerce. concerning pending prose versation Appellant’s upset second contention is cution must the verdict under the Judge ap Brady Maryland, 83, that that Curtin told rule v. 373 U.S. pellant charged aiding 1194, (1963). was with and 83 S.Ct. 10 L.Ed.2d 215 abetting, However, purposeful whereas the indictment did not this is case fact, argues prosecution state that offense. the indict nondisclosure. The liability ment ap did assert under U.S.C. 18 that it did not disclose these facts to 2, thereby notifying pellant duty so, that he it had § because do no to charged aiding abetting. public was with as the arrest was a matter

171 newly discovered evi- not ex trial because of the evidence was record and as that statements culpatory dence. claims the arrest was inadmissi since by Ring hearing Acarino, made Dioda- v. 408 ble United States under cert, (2d Cir.), denied, trial contradict 512, to’s motion for a new 395 F.2d 515 testimony Ring’s and that rever- at trial L.Ed.2d 746 89 S.Ct. U.S. by Giglio required v. (1969) innoc United conversation sal States, , and the prosecutor may L. cor be U.S. uous. While Ring trial, characterizations, (1972). testi- it is Ed.2d rect these Still, guilty pleaded judgments. to a lesser fied that he charge these for to make “ yet he de for which been instance of . . . this is not an sentenced, purpose ob he denied he had suppression to but liberate plea permitted in told is it! a been . . [nor struct the defense . against high testimony Dioda- return for his evidence whose failure to disclose nothing hearing, Ring stated not have es to. At defense could contrary. prosecution.” evidence caped the attention of the position supports appellant’s Bonanno, F.2d which United cert, government’s denied, (2d Cir.), in the brief 400 one sentence opposition new motion 27 L.Ed.2d 384 964, 91 S.Ct. government, to the effect that the (1970) must there trial This nondisclosure . trial, governed by the considera- the test before “furnished fore be Ring’s testimony.” awas tion for . . whether . “. *5 item, significant this added chance that appears the that “considera- developed by counsel skilled Ring expectation tion” known to was his in reasonable doubt have induced a could Ring leniency sentencing. in Since enough jurors avoid the to minds hoped at trial that he to receive testified Miller, v. conviction.” United States Ring’s leniency, mo- we think that such 1969). Un F.2d 411 832 jury squarely the tivation was before dissenting brother, our we conclude like no has and that demonstrated in above that of the factors noted view Ring’s testimony. untruthfulness such the could not have induced evidence objects Finally, appellant the to doubt. refusal of the court below to allow prosecuting attorney question the to B. Diodato hearing appellant’s motion the Appellant Diodato’s first conten court refused re new trial. The this ap appeal tion is the same as that of inability light appellant’s quest reject pellant Houle. We it because questioning other several witnesses evidence introduced was sufficient any an undisclosed to show evidence of jury infer below from which the could agreement prosecution the between knowledge goods that the were Diodato’s ruling. Ring. find no in this We error moving The in interstate commerce. stage process, ap this in the criminal jury could have concluded that Diodato pellant must demonstrate some sub Ramp knew that Bison is an interstate to claim he is entitled stance before facility from Diodato’s contacts Dirring a witness. to call someone as position Houle and from his in the Cir.), (1st States, F.2d United Moreover, jury trucking the business. cert, denied, could concluded that Diodato dis (1964). L.Ed.2d particular shipment covered that the from outside the when he asked state Charge C. shipment. of the for details The most troublesome issue argument Appellant’s next is the same appellants ease that is one do not point. as Houle’s second charge appeal. raise on the its to reject appellant’s jury, must the that We also court below failed state knowledge contention that he is entitled to a new that stolen were escaped interstate commerce is an element of the defense could not have the at- prosecution.” Defense counsel ex- offense. tention of the cepted chárge, knowledge to the If, believe, referring majority as I is charge, necessary, and the not objection but prosecutor’s to the omission to tell the solely apparently directed were witness, defense about the arrest of the count, to the as to which the substantive pending prosecution charge was correct. York, him in the state courts of I New charge agree opinion in the constitut- The omission course as far as the error,” 52(b), “plain goes, ed but Fed.R.Crim.P. as indicated below think it regardless question. If, which must notice we does not reach the critical clarify hand, of on majority opinion counsel’s failure basis the other objection referring pursue prosecutor’s and to the matter failure appeal. Alsondo, United States v. to disclose to the defense that Keller and (2d Cir., 1973). Attorney 486 F.2d 1339 While the Assistant United States jury are satisfied that a could we infer had had a discussion with reference to appellants’ knowledge shipment pending charges state as a result of inwas interstate commerce from the ev- which the Assistant United At- introduced, knowledge torney agreed idence was an es- tell District local conspir- Attorney sential element crime of cooperating that Keller was acy. The existence of that ele- essential with the Federal Government in its prosecution, ment the never determined. and that indeed the Assist- ant United Attorney carried out course, charge Of the defect regard, his commitment to Keller in this does disturb the verdict on the sub- disagree, then I must for reasons also count, stantive which set out below. the interstate nature of the stolen an element. If I am correct language quoted above ap- We affirm conviction of each referring at all to the Assistant pellant on the substantive count and re- *6 Attorney’s agreement United States appellant verse the conviction of each with subsequent call, helpful Keller count and remand for Attorney, local District new trial on that count. then the anywhere does not possible it is Since conviction on question consider the whether or not both counts influenced the determination this was an sup- instance of deliberate quantum of the concurrent sen- pression or failure to disclose evidence tences, open we leave it to the court to high value of which to the defense consider modification of sentence on was obvious. It seems to me that count, without, advised, substantive if so impeachment value of such information however, any intimation the sen- prosecution, obvious to the and in imposed any way tence as exces- light of the critical nature of Keller’s sive. testimony against Houle, to the case significant there was “a chance that this OAKES, Judge (concurring Circuit prosecutor’s agreement added item [the part dissenting part): with subsequent Keller and telephone call], developed by skilled counsel It is difficult to fathom from the ma- ., could induced a reasonable jority referring to what it enough doubt in jurors the minds of says, when it avoid a conviction.” United States v. Still, is not an instance Miller, 1969). 411 F.2d suppression “. . deliberate purpose to obstruct Therefore, the defense I would reverse and re- [nor failure to dis- it] mand for a new trial on the substantive high close evidence whose count also as to Houle.