*1
еx rel.
Warden,
v.
Goldberg
60,
622 F.2d
65
WEIS, Circuit Judge, concurring.
(3d Cir.),
denied,
cert.
449
871,
U.S.
101
join
210,
I
in parts
S.Ct.
I and II
66
L.Ed.2d 91
majority
(1980),
the record
opinion, but
did
write to explain
I
demonstrate
why
do not
individualized treatment,
join in portions
part
thereby
III.
negating “any argument
peti
tioner received nothing more than a me
application
post
the ex
facto
application
chanical
parole
guide
clause
parole
guidelines
an
issue the
lines.” Consequently, we concluded that
Supreme Court expressly reserved in Unit-
Geraghty1s concerns had been met in that
ed States Parole Commission v. Geraghty,
instance.
388,
445
1, 408,
390 n.
U.S.
1202,
100 S.Ct.
1,
1205
1214,
n.
(1980),
tion of that conflict.
In United
Ferri,
v.
States
the complicated evolution of the law in this *2 Higgins (argued), Higgins
Pamela W. & Madden, Simone, Philadelphia, Robert F. Pa., appellant. Vaira, Jr., F. Eastern Atty.,
Peter U.S. Pichini, Pennsylvania, District of Louis R. Justice, Sp. Atty., Dept, Philadelphia, Pa., Bryson (argued), Dept, William C. Justice, D.C., for Washington, appellee. ALDISERT, and HIG- Before GIBBONS GINBOTHAM, Judges. Circuit OPINION OF THE COURT violation 21 U.S.C. 841(a)(1).1 A. was tried HIGGINBOTHAM, LEON Jr., before a Circuit jury that found him guilty Judge. of the conspiracy and possession charges. The district court Appellant challenges his conviction for denied post-trial motions for possession of a substance, controlled phenyl- *3 acquittal and for a trial, new United States 2-propanone (P-2-P), with intent to distrib- v. Martorano, 541 1226, F.Supp. (E.D. ute it in violation of 21 841(a)(1). U.S.C. § Pa.1982), and sentenced him to consecutive Appellant contends the evidence at five-year terms of imprisonment followed trial was insufficient prove that he had by a three-year term of special parole. the P-2-P because Martorano does not contest his conspiracy never surrendered dominion conviction. He challenges only his convic- and control over it and appellant therefore tion under 21 U.S.C. 841(a)(1) § for never had the ability to actually or con- sion of a controlled substance with intent structively possess it. We reject appellant’s distribute it. contentions and will affirm the district court. II. I. The facts of this case are uncontested. Raymond Martorano and two co-conspira- In June 1981 Martorano initiated2 the pur- tors, John Berkery and Vadino, Frank were chase gallons of 52 of P-2-P from Ronald
indicted for
conspiring
distribute
to Raiton,
and
a large distributor of P-2-P in the
possess with intent
in
P-2-P
Philadelphia area. From October 1980 to
846;
violation оf 21 U.S.C.
they
were
1981,
also
June
Raiton sold
gallons
some 200
indicted for
of P-2-P with intent
P—2-P to Martorano’s co-conspirator, John
Berkery
1.
was
for
pos-
indicted
nine counts of
vehicle,”
not “for a
different
id. at
but
session of P-2-P
four
counts of
containing
P-2-P,
vehicle
and not for “a
methamphetamine.
He has not been
padlock,” id.,
tried
different
padlock
but
on this
fugitive.
indictment and is a
After his
Furthermore,
secured the P-2-P.
was adduced
no evidence
case
Martorano,
was severed from
Vadino was
during
at trial
argument
oral
jury
tried without a
guilty
was
suggested
found
that
inoperative
mechanically
the van was
possession. He
years
any
sentenced
five
way
as
specu-
the dissent
imprisonment.
might
lates
have been the case. Id. at 6 and fn.
1.
2.
obliquely
The dissent
characterizes this as a
Finally,
advocating
we are nоt
and we are
entrapment
case of
gives
impression
unfamiliar with a “doctrine of that Martorano was somehow “baited” into
criminality” to which the dissent refers. Typ-
purchasing
Typescript
the P-2-P.
at 1. The
escript at 8.
meaning
This case
concerns
record demonstrates that such a characteriza-
of constructive
related
tion is erroneous. The dissent makes
841(a)(1).
other
U.S.C. §
This
like all criminal
and,
addition,
factual misstatements
cases,
analyzed
focuses
must
light
be
applica-
on
example,
irrelevancies. For
it mentions that
ble
philo-
substantive statutes and cases. As a
long-term
Raiton
“a
professional
notorious
sophical proposition, there is merit in the dis-
criminal.” Id. at 1-2. Martorano had had oth-
sent’s concern
manipulative pyramid-
about the
illegal
er
deаlings
business
ing
with Raiton before
arising
specific
offenses
out of a
criminal
purchase
for which Martorano now
However,
stands
transaction.
it is
signifi-
without
convicted. Neither Martorano nor Raiton is a
cance that the dissent does not cite even one
saint,
notoriety
but their
is not an
issue
supports
case
law
American
which
its con-
determining possession of the P-2-P. The dis-
contrast, though
clusion of law.
not
perhaps
sent asserts that
transferring
the method of
elegantly,
attempted
analyze
we have
all
suggested by
P-2-P was
Typescript
Raiton.
at
of the relevant cases which establish the law
However,
plan, including
legal
method
and articulate the
conduct does or does not constitute
theories as to whether
transfer,
by
Appendix
devised Martorano.
disagree
40-42. We also
with the dissent’s
of a controlled substance with intent to distrib-
greater
assertion that Martorano had
stating
is,
ute it. We think we are
the law as it
over
“any
the P-2-P than
passerby
other
articulating
rather than
jurisprudential theory
Square,”
Rittenhouse
he
typescript at
supported by
because
not
law.
the relevant statutes and case
agents
and his
keys,
had
of the van.
guaranteed
DeTullio unlocked and entered
Berkery, for which
for 1 to
He sat
in the van
minutes
to Martorano and
payment. Unbeknown
IV2
F.B.I.
apprehended by
before he was
undercover in-
Berkery, Raiton became an
Philadelphia police
who were in the
Martorano met with
early
formant
in 1981.
the van to maintain surveillance of
area of
occasions,
July
19 and
Raiton on two
June
re-
prevent
They
it and to
its removal.
1,1981,
to discuss the details of
placed
the van and
moved DeTullio from
the P-2-P.
prospective purchase of
arrest,
van
they
him under
seized the
Marto-
agreed
plan
two men
to a
devised
P-2-P. Martorano and Vadino
and the
van,
rent a
rano under which Raiton would
scene,
they
from the
but
were
sped away
park
P-2-P in the van and
place the
apprehended.
later
Square.
Rittenhouse
Philadelphia’s
van near
was then to meet Martorano in the
Raiton
III.
August
1981 to turn
*4
Square
p.m.
It well
that when a de
is
settled
registration
over the
to the van in
keys
charged
possession
fendant
with
of a
paper bag containing
for a
exchange
pay-
with intent
to distrib
controlled substance
given
ment for the P-2-P which would be
841(a)(1),
it in violation of 21
ute
U.S.C. §
agent
to Raiton
an
Martorano.
possession can be either actuаl or construc
plan,
Raiton
Pursuant
841,
v.
F.2d
Raper,
tive. United States
676
28,1981. However,
van on
he
July
rented a
(D.C.Cir.1982);
Gray
847
United
v.
States
delivered the van to F.B.I.
who load-
son,
1225,
(9th Cir.),
597 F.2d
1229
cert.
P-2-P
gallons
acquired
ed it with 52
denied,
873, 875, 100
153, 157,
444 U.S.
S.Ct.
storage facility
from a federal
in Florida.
99,
(1979);
62 L.Ed.2d
102
United
v.
States
agents placed
specially pur-
The F.B.I.
F.2d 387,
Crippen,
(3d Cir.1972).
459
1388
padlock
chased
on the rear doors of the van.
possession may
Constructive
be shown
near Rit-
They drove the van to a location
through either direct or circumstantial evi
Square
they parked
tenhouse
where
Raper,
dence. United
v.
676 F.2d at
States
uninterrupted
maintained
surveillance of 847;
Grayson,
v.
597 F.2d at
States
the van.
1229;
Davis,
1026,
v.
461
United States
F.2d
Cir.1972).
(3d
1035
possession
Constructive
to the van and
agents gave
keys
may be found if the evidence shows that
the lock to Raiton and told him where the
knowingly
pоsition,
the defendant “was
in a
parked.
van was
Raiton then went to Rit-
right
or had the
to exercise ‘dominion and
Square
tenhouse
and met Martorano as
drug
personally
control’ of the
either
writing
scheduled. After
the location of
through
Raper,
others.” United
v.
piece
paper
the van on a
at Martorano’s
867
the evidence was sufficient for the jury to
reduce
to actual possession.
It argues
find that Martorano had constructive pos
that Martorano’s ability to reduce the P-
session
the P-2-P. Martorano insists
2-P to
can be shown in
that he did not have
constructive
two ways.
It therefore offers two theories
because the P-2-P remained at all times
on which Martorano’s constructive posses-
within
dominion and control of the
sion can be
First,
based.
the government
F.B.I. Martorano’s
predicated
claim is
on contends that
acquired
construc-
the theory that
en
tive
when Raiton gave him the
tails dominion and control giving the al
keys to the van and
padlock.
Second, it
leged constructive possessor
power
to contends that Martorano had constructive
dispose of the drug. United States v. Bati
possession of the P-2-P by virtue of DeTul-
mana,
1366,
623 F.2d
(9th
1369
Cir.), cert.
lio’s actual possession of the van and the
denied,
1038,
U.S.
101 S.Ct.
66 P-2-P that it contained. The government
L.Ed.2d 500 (1980); United States v. Bar
notes that Martorano gave the keys to his
nett,
(9th
F.2d
Cir.1972);
DeTullio;
agent,
that DeTullio actually en-
States,
Arellanes
tered the
in possession
van
of these keys;
(9th
Cir.1962). Although Martorano
that DeTullio
the key
inserted
in the igni-
and his co-conspirators expected DeTullio to
tion. DeTullio need only have started the
drive away in the van that contained the
engine and driven away to remove the van
P-2-P, Martorano claims that at no time
and the P-2-P from the place where the
did DeTullio possess
power
to do so
van
parked.
The ultimate legal issue
*5
because of the presence of the law enforce
thus becomes whether the evidence was suf-
ment officers who were determined not to
ficient for the jury to find that Martоrano
allow the van
be
to
driven away. Thus, the
had dominion and
the P-2-P
basis of Martorano’s
claim
the
con
though
even
DeTullio did not start the van
spirators did not exercise actual dominion
and drive it
out
its parking spot.
and control over the P-2-P
they
because
did
acquire
power
the
to dispose of it.
Therefore, Martorano contends that he did
IV.
not have constructive possession of the P-
interpretations
Judicial
nature
2-P.
“dominion and control” which constitutes
government,
The
on the
hand,
other
ar-
possession
constructive
are
conflicting.
gues the theory of
possession
constructive
Martorano relies on the Ninth Circuit’s defi-
adopted by the court below. Relying on
nition of constructive possession as “domin-
United States Moreno,
ion and control
...
as
give
so
to
power of
(5th Cir.1981) and United States v. Crippen,
disposal of
drug.”
Arellanes v. United
F.2d at
the district court held that
States,
606;
302 F.2d at
see also United
“[constructive
may be estab-
States v. Batimana,
1369;
623 F.2d at
Unit-
lished by a showing of ownership, dominion,
ed
Barnett,
States v.
convicted,
alia,
inter
on evidence that she
possession,”
not “actual
structive.
occupied an
apartment with her husband
Finally,
question
sion.”
in this сase is
which drugs
accompa-
were found and had
not whether Martorano had
knowl-
guilty
nied her husband
a
in which
trip
a car
edge
participated
of and
in a crime.
drugs
other
were discovered. The issue in
Barnett, supra,
can be
Arellanes was whether
pres-
defendant’s
distinguished
grounds.
on similar
ence
drugs
with her husband and the
question in Barnett was whether appellant’s
conclusively incriminating
“a
circum-
participation
drug
in a
sale was sufficient
stance,”
302 F.2d at
sufficient to “show
repealed
constitute a violation of the now
or control which the govern-
174. The court
U.S.C.
asserted
ment must
presump-
establish
raise the
that a finding
upon
turns
guilty knowledge.”
tion of
Id. at 606-07.
whether
(Emphasis
original.)
court
held
it was not because “Mrs
presence
Arellanes’
working relationship
‘One
or a
[has]
with both
husband and the
[her
narcotics]
sufficient association with
having
those
fully explained by
her attachment
to her
physical custody
drugs
so as to
might
husband as it
be
a control over the
enable him to assure their production,
drugs.” Id. at 606. The court defined do-
difficulty,
without
to a customer ....
minion and control as the ability
produce
sale,
But a casual facilitator of a
who
drug
for sale as a means of determining
given principal possesses
knows a
whether the defendant
guilty
had
knowl-
trades in narcotics but who lacks the
edge
drugs
participated
working relationship with that princi-
crime.
pal that enables an assurance of deliv-
Thus, even if we were
apply
theory
ery, may not be held to have dominion
in Arellanes to this
jury
still could
and control over the drug and cannot
have found that Martorano had construc-
be
sаid
have
of it.’
tive
P-2-P. Martorano
*6
Barnett,
1155,
v.
States
468 F.2d at
admits that
the “evidence
sufficient
[was]
States,
quoting
Hill v. United
to
attempt by
show an
through
Martorano
Cir.1967).
(9th
The court found that
possess
P2P,”
DeTullio to
the
Brief on be-
Barnett’s association with his co-defendants
half Appellants
of
partic-
and that he
give
was insufficient
to
him dominion and
ipated in the sale of the P-2-P. Martorano
over,
therefore, possession
control
and
of
acting
was not
as a philanthropist
to bene-
However,
case,
drug.
the
the instant
fit the
people
Rittenhouse Square. The
challenge
Martorano does not
the sufficien-
record establishes that Martorano handed
Indeed,
with
cy of his association
DeTullio.
$104,000
over
to Raiton with the intent to
successfully
he could not
raise such a chal-
possess the P-2-P for the рurpose of dis-
lenge because the record demonstrates that
Therefore,
tributing
facts,
it.
on these
agent
DeTullio was Martorano’s
and that he
presence
Martorano’s
at the scene of the
Therefore,
Martorano’s
was under
control.
transaction is “a conclusively incriminating
guilty
Martorano could have been found
circumstance,” Arellanes
States,
v. United
theory applied
the
in Barnett
under
because
302 F.2d at
satisfy
to
the test of “do-
”
to
he was able
assure customers that he
minion or control
required by the court in
the P-2-P
produce
barring
could
unfore-
Arellanes.
police interference.
seen
However,
clearly
Arellanes is
distinguish-
Batimana,
In United
the
supra,
able from the
States
Arellanes,
instant case.
relies,
the
on which
“pass[ing]
appel-
court was
third case
upon the meaning
of the word
lants acted as
their
‘possession’
co-conspira-
as used in
lookouts for
21 U.S.C.
174 and 176a.”
purchased
Id. at 606.
tor who
police
§§
This statute
heroin from a
has since been repealed and is
purpose
distributing
not relevant
informant for the
of
of 21
841(a)(1).
in violation
U.S.C.
Al-
today in interpreting
constructive posses-
though appellants
present
were
at the sale
Applying
sion.
this theory to the facts of
and the principal
stated that
this
appellants
we conclude that Martorano ac-
were
sell
day,
quired
to
the heroin the next
possession
the
constructive
of the P-2-P
court
appellants
acquired
concluded that the
did not when he
possession
actual
of the
keys
assert dominion and control over the
to the
heroin.
van аnd to
padlock.
He
possession
remained
constructive
after he
facts
Batimana are not inconsist-
keys
to his
who subse-
finding
ent with a
posses-
of constructive
quently took
actual
of the van.
sion in
Batimana,
this case. In
conspir-
Our conclusion finds
support
the follow-
ators were in a hotel room with the infor-
ing cases.
mant/seller;
delivered;
the heroin was
For
example,
informant/seller
Moreno,
took
of the
her-
oin,
control;
supra,
relinquished
appellant
but he never
DEA
directed eo-eonspirators in
plan
agents entered
to load
transport
the hotel room and
and
pounds
arrested
marijuana
the conspirators within
that was
minutes
their de-
owned
appellant’s
brother.
livering the heroin.
Before
The evidence shows
co-conspirators
reached
conspirators
destination,
none of the
their
they
took actual
were
stopped by
of the
border patrol agents
heroin. The record is also
who discov-
ered the marijuana.
devoid of evidence showing
purchase
Appellant
that a
the oth-
er co-conspirators
and sale of the heroin was effected
were indicted
conspir-
before
to
Moreover,
acy
possess marijuana
arrests.
appellants did not
with intent
it,
distribute
participate
possession marijua-
a conversation
between the
it,
na with
principal and the
intent
informant
in violation
might
841(a)(1).
have resulted in
purchase
U.S.C. §
and sale.
Therefore,
appellants,
possibly
even
They
convicted,
were
appellant
chal-
the principal, did not have dominion and lenged
his сonviction for
of mari-
might
have
enabled them
juana with
intent
distribute it on the
take active possession let alone
dispose
ground that
the evidence failed to prove
drug.
that he had
Batimana,
therefore,
sion of the marijuana.
The court
distinguishable
upheld
Here,
from the instant
Moreno’s conviction
case.
after
purchase
finding that he
played
completed;
“integral part
sale were
an
narcotics
agent was in
operation
sole
distribution
and ...
enjoyed
of the van and
close and
keys
working relationship
the van in
continuous
which the P-2-P
contained;
with
may
he was in
those ... who
have had actual
sole
physical possession
marijuana.”
the lock
that secured the P-2-P.
*7
short,
Moreno,
United
v.
government
the
States
torano’s Martinez, subse- domin- exercised DeTullio session under actions. Tullio’s virtue of DeTullio keys to P-2-P of the giving over the quent control ion and it which the van in actual taking his the latter’s the theo- Therefore, under con- such a P-2-P make containing contained. the was van Marto- find that Moreno, jury a could ry of compelling. more clusion P- the had constructive rano arguably distin- are and Martinez Moreno 2-P. the case because instant the from guishable in support finds additional conclusion Our the those cases had in agents appellants’ (5th 495 Martinez, v. States United that Martora- of dominion kind was one Harmon Cir.1979). In Martinez the facts have he did claims checkpoint patrol Texas border at a stopped However, recently case case. instant the the after questioning for detained the raised Circuit Eighth the decided marijuana ema- odor the detected agent Martorano, and as does issue exact same Harmon of the car trunk from nating the The court similar facts. strikingly involved However, did not Harmon driving. was us- conviction appellant’s the upheld there driving Appellant wаs key. the trunk have today. we theory as do same the ing at checkpoint the same through car another Jones, 676 was States He Appellant time. the same approximately - denied, appel- Cir.1982), cert. learned that agent (8th also. The 327 F.2d stopped Har- L.Ed.2d the trunk of key -, to 103 S.Ct. possessed lant U.S. two suitcas- keys to marijuana as the pounds car as well mon’s (1982), purchased found that were delivered agents two chests The es and agents. DEA from marijuana. contained trunk, which Ap all of cars. two unmarked marijuana indicted, and convicted tried Appellant alongside of van his parked pellant intentionally possessing knowingly the trunk agents gave cars. agents’ distrib- intent substance with controlled them paid he when appellant keys 841(a)(1). of 21 U.S.C. it in violation ute the mar transferred Appellant marijuana. van, challenge cars his the undercover rejected appellant’s ijuana court from appellant that grounds arrested on the then conviction to his that he had prove failed accomplices. evidence two It marijuana. concluded sion of his conviction challenged Appellant to re- ability is the “constructive with substance of a controlled Id. at possession.” to actual object an duce 21of violation intent reasoned The court 498. contended, 846. He 841(a)(1) and §§ U.S.C. nor neither owned appellant [although instant in the argues in which the contraband the car drove aas was insufficient evidence “that found, trunk possessed he be- law, ‘possession’ establish matter which possessed keys also car. He such all times at agent cause сontaining contra- chests two unlocked marijuana.” bales had control ear. the trunk of the found band Jones, F.2d The court concluded 498-99. Id. at *8 appeal appellant’s denied court con- shared dominion thus “[ajppellant held: marijuana.” the vehicle trol over that to show was sufficient evidence at 499. Id. obtained Jones case, keys Raiton the instant agent’s to the given he when At to Martorano. the lock to the van and actual obtained trunk car ability had the point Martorano that marijuana the bales he loaded when to actual P-2-P the van and the reduce van. into the the mere possession. While Appellants’ claims in a case of police entrapment. both cases are identical: Because of the Martorano initiated the transaction; he de- alleged impossibility of their escaping with vised the plan by which the transaction was the controlled substance they did not have executed; every act that had to be per- dominion and control over particular it. Of formed to complete the transaction and the importance to the instant therefore, is crime was accomplished. To require also the court’s conclusion in Jones that police “[t]he allow the criminals to escape fact the agents intended to arrest with the drugs would place an impossible Jones and recover control of the marijuana burden on police and on the courts does not negate fact, that for however seeking to enforce criminal statutes as well short period time, Jones inwas as cоntribute to the very evil that the stat- control of the marijuana.” Id. ute is intended to eliminate. This finding was made under circum- For the foregoing reasons, the decision of stances similar to those before us. While the district court will be affirmed. Jones not binding authority, it does sup- port the district court’s holding GIBBONS, in this case Circuit Judge, dissenting. The central issue presented by this appeal [receiving a key to the van in exchange is the extent to which the federal courts for $104,000, having that key in one’s will read into federal criminal statutes legal
possession, and then giving that key to an fictions thrice compounded for the purpose associate, agent, who enters and in- of facilitating government’s practice of spects the van with present ability to overcharging with respect to cases in which drive it away constitutes constructive it has provided the wherewithal of crime possession .... He was prevented from through its stables of criminal informants. doing so only because government agents In this instance the government’s chosen seized the van as his agent took actual instrument was Ronald Raiton, a notorious possession. This seizure terminated Mar- long-term professional criminal, who, when torano’s brief dominion over the contra- caught, signed on to bait the trap for oth- band but that does not mean such domin- ers. He successfully baited trap for the ion never existed. conspirators, Raymond Martorano, John United States v. Martorano, 541 Berkery F.Supp. at and Frank Vadino, by informing 1229-30. The district court noted them that that “it he could deliver a van containing was possession with intent gallons distribute, of P2P $100,000. and not the seрarate offense of distribution, A taped conversation establishes that of which Martorano was found guilty.” Id. Martorano, Berkery and Vadino, early as at 1230. The court correctly found that the June 1981, conspired, in violation of 21 conspirators were arrested after they had U.S.C. 846 (1976), to possess the 52 gal- completed all of the acts they were required lons found in the van. There is question to perform to commit this crime. That they that the conspiracy continued through July were arrested before they had the opportu- 28, 1981, when arrests were made. The nity dispose of the P-2-P does not ne- jury found Martorano guilty of conspiracy. gate their possession of it with the intent to He was sentenced to a year five term on distribute it. the conspiracy count to be followed three Martoranо’s petition thus reduces to his years special parole. Martorano does insistence that the agents afford him appeal the judgment of sentence on his co-conspirators an opportunity to dis- conspiracy count. He does appeal a consec- pose of the controlled substance before utive five year sentence imposed Martorano can be convicted of possession sion of the 52 gallons of P2P with intent to with the intent to distribute it. This con- distribute, contending that while from the tention defies common sense. It is particu- evidence the jury could find that he con- larly unmeritorious on the facts before us. *9 spired possess with intent to distribute, he of the van. Instead given possession that not could conclude person
no reasonablе padlock key and ignition the succeeded, given momentari- was even conspiracy the at a Martorano to meet and instructed key ly- Rittenhouse in rendezvous prearranged in zeal government’s for the The reason Square. and conspiracy charging both evident. quite with intent rendez- the completing was While Raiton at- who person that provides Section enforce- Martorano, eleven law vous with by punished be shall conspires or tempts under van locked had the ment officers maximum the not to exceed imprisonment in- These surveillance. constant and close which of commission the offense for the Drug Enforcement the agents cluded conspiracy. or attempt object was the Philadel- Administration, agents, F.B.I. substance, II controlled a Schedule P2P is Widman Agent F.B.I. оfficers. police phia sentence for maximum and the see if watching to the task assigned was years. is five distribute intent to of it with van, signal and to the approached anyone 1980). IV 841(b)(1)(B) (Supp. 21 U.S.C. § event. in that officers other ten the maximum received the has Thus Martorano in Rittenhouse spot rendezvous At the con- for the aborted permitted jail sentence to write Raiton asked patent Square the Martorano resorting to But spiracy. its van and description succeed- actually the conspiracy the down that fiction least, out. Raiton checked be metaphysical moment it could ed, some location so for doubling this information so, gave succeeded has Martorano government the did section 846 Raiton a gave the sentence then the maximum Martorano Yadinо. overzealous- the $100,000, I can understand Raiton containing offense. shoebox Administra- Drug Enforcement the key ness of padlock and the ignition the placed incarcera- to maximize attempting meanwhile, tion Vadino, bench. park the on notorious its use of the resulting from tions another van. He and the inspect went to ma- in the colleagues Why my Mr. Raiton. Ritten- DeTullio, returned to conspirator, that so overzealousness should share jority De- where Square, house it into a turning to rewrite section the returned DeTullio key. Tullio the statute, question is a attempt conspiracy pad- the open attempt not He did van. comprehension. my beyond method suggested lock, Raiton’s because in a fed- originated question driven P2P the van would be The that transfer was sub- facility controlled storagе govern- Obviously eral the location. another a mo- was never There in Florida. stances that perfectly confident were ment fraction the smallest ment —not to unload be made would attempt no P2P during which the was earth’s city. in center rotation — P2P on Pine Street gallons subject effectively completely and compart- driver’s approached DeTullio control of domination physical seat, door, sat in the ment, opened The government. agents of federal There ignition. key in put ignition be- was well advanced conspiracy offense he even started evidence 28, 1981, rented a van Raiton, July fore on immediately. was arrested He engine. rent- to be made. delivery was which to the prior an inch moved van The never acted, not on behalf Raiton ing van De- an inch. never moved The P2P arrest. princi- behalf of his conspirators, but it. even saw Tullio never Raiton government. United States pal, the that Martorano concedes F.B.I., which to the the van turned over It the P2P. never had property government’s federal placed the he had agrees, majority urges, and which the doors compartment, its rear dis- majority’s possession. constructive inaccessible and which padlocked were starts cussion of Phil- parked van from the cab. The interpre- “judicial with the observation Pine Street side of adelphia on south and con- ‘dominion the nature of tation of Raiton was 20th 19th and Streets. between *10 evidence that the ignition key was turned.1 sion are conflicting.” Typescript p. 8. Yet the majority fantasizes that “DeTullio isWhat noticeably missing in opinion, exercised dominion and control over the however, is any disclosure of which of the by P2P virtue his actual possession of the conflicting interpretations it purports van in which it was contained.” DeTullio adopt the test for this circuit. Instead had more van, there is a seriatim description of the hold- the sense that he had any realistic chance of ings in a series cases which are said to be moving it, than had it been locked in the either distinguishable or satisfied. But un- basement of the Federal Building. The less interpretation of criminal statutes is to surveilling agents never intended relin- degenerate into an exercise in fantasy, a quish and never relinquished effective total definition of the term “possession,” even if control over the large quantity govern- dressed up with adjectives like constructive, ment property contained in it. must have some relationship physical with The ultimate cynicism of the majority reality. position is disclosed in the last full para- The extent to which the majority has graph of its opinion, which reasons: journeyed into fantasy land is perhaps best Martorano’s petition thus reduces itself to illustrated by its reliance, typescript his insistence that the agents afford him on the fact that Martorano was attempting and his co-conspirators an opportunity to to possess the P2P. “Martorano was not dispose of the controlled substance before acting as a philanthropist to benefit the Martorano can be convicted of people of Rittenhouse Square.” Id. Of with intent to distribute it.... To re- course he wasn’t and he has been found quire also that the pоlice allow the crimi- guilty of a violation of section 841. But his nals to escape with the drugs would place “attempt” was no more successful than if an impossible burden on the police and on Raiton had handed him a key for a differ- the courts seeking to enforce criminal ent vehicle or a different padlock, or for a statutes as well as to contribute to the vehicle from which the distributor rotor had very evil that the statute is intended to been removed. That Martorano thought he eliminate. was obtaining constructive possession is Typescript, 17-18. One can accept this tor- simply irrelevant. When he gained posses- tured reasoning only if one accepts that the sion of the government still main- prevention of crime is not in itself worthy tained effective and total dominion аnd object of law enforcement. Thwarting a control over its 52 gallons of P2P. Marto- threatened homicide, rape or robbery while rano had simply been defrauded it is still in the attempt or conspiracy stage ingenious Mr. Raiton. He no gained more seems, to me least, a perfectly worthy any actual control over the P2P than did object of law enforcement. It would be any other passerby in Square. Rittenhouse weird, say least, to accept When the keys to DeTul- premise that killer, unsuccessful rapist lio, his actual control over the P2P in- or robber could nevertheless be convicted, creased not an iota. The van was still substantively, of murder, rape under surveillance by eleven or robbery. In this instance the govern- agents. All the participants understood ment took perfectly appropriate steps to the P2P was not to be unloaded on prevent Martorano and fellow his conspira- Pine Street. There is no evidence from tors from gaining of the P2P which a jury could find that govern- with intent to it, distribute by maintaining ment had any intention of permitting the governmental van to be moved. The arrest was almost throughout the entire transaction. instantaneous; so much so that there is no suggestion of the majority that if we refuse engine That the was not suggests started safety own and that of standersby as to possibility that the distributor rotor had been neglect elementary precaution in the cir- removed. Indeed it is hard to believe that the cumstances described. surveilling agents would be so reckless their *11 violation fact that plain recognize the successfully prevented 841 was оf section allow police ... “require will
we id. drugs,” with the escape the criminals insult- is also illogical. It completely is federal agents to those dedicated ing responsibility primary whose prevention.
crime one phony case is not this
The issue in how far majority of by constructed allowing must go
government’s far rather how It is crime to occur. relying Attorney go can been success- which have offenses
potential sen- pyramid in order prevented
fully attempt beyond conspiracy tences authorized. Congress has
sentences which into to read labored effort majority’s crimi- a doctrine
section pyramiding sentence justify as to nality so indefensible, reprehensi- morally logically precedent. dangerous
ble, potentially criminality should Doctrines of constructive of a free jurisprudence in the place
find
society. was effec- offense the section
Since main- government’s
tively prevented and control dominion complete
tenance substance, reverse would I of the controlled on that offense.
the conviction FRUMER, Joyce Caplan, Joan
Marshall
Johnston, Appellants, TOWNSHIP, Board
CHELTENHAM Town- of Cheltenham
Commissioners Melair, Jr. ship, D. Nicholas 82-1598.
No. Appeals, Court
United States
Third Circuit.
Argued June 1983. June
Decided