United States v. Norman Archer

sеtting plan up a crime was FRIENDLY, and Before FEINBERG February meeting conceived at a Judges. MANSFIELD, Circuit Taylor, Region- by attended Thomas al Director of the Narcotics Bureau of FRIENDLY; Circuit HENRY J. Dangerous Drugs (BNDD); and several Judge: special agents including Bureau, the Gov case arises from what This Bario; Murano, one Sante A. Vincent a “part of an ernment characterizes police officer; City New York and two in and local combined Federal intensive Attorneys Assistant vestigation extent into the nature and York. Southern District New corruption York within New According plan, to the as- Bario would system.” justice tells criminal Its brief sume the name Salvatore Barone and investigation premised “was us that pose as a alien and member of resident attempts to combat on the belief the Las underworld. Murano justice sys corruption in the criminal Queens would then Bario “arrest” City’s wit, tem” —to New York — County charge phony on the of the un- “through uncovering past incidents possession pis- authorized of two loaded wrongdoing had It was essen failed.” tols, felony under 265.05 of the New arrange tial, insists, arraign- York Penal After Law. his ongoing penetration “undercover into ment, Bario make it known having corrupting fed “a activities” willing pay he would a considera- agent po the role of a eral assume ble sum to avoid trial or conviction on corruption.” tential consumer of We charge. bait, Bario as With do not at all share the Government’s planners hoped that some evidence causing pride its achievement corruption and some would surface bribery of a state assistant dis use of interstate facilities would occur attorney by trict in a scheme which arranged incident could be so that lying police to New York offi volved corruption into would be transformed perjury and York cers before New a violation of the Travel Act. grand judges jurors; to our minds gave attempt up scheme, Taylor participants’ fed Pursuant set pistols, eral defendants Bario fake crime which these two loaded Nevada immigration beyond any proper licensе, stand convicted went driver’s and a false needlessly Immigration prosecutorial injected role and card issued special prosecutor crime, 1. A itself a but a vio- has since been was not federal named New York to and 200.10 of the Governor of lation 200.00 §§ investigate McKinney’s precisely corrup kind of York Penal Law Con- City sol.Laws, violation became tion attorneys offices of New York district c. 40. That according prose offense, a federal at which the the Gov- theory, here ernment’s when interstate facili- cutor’s activities were aimed. committing bribery aid in it. The act of ties were used to formed prosecution basis for the federal here Washington “strong at Klein Naturalization Service connections” and that something” request of the he Director could “do for Bario. morning Wasserberger suggested ef next Murano When they BNDD. staged office, agreed. diner fected arrest at drive Klein’s Queens. enroute, Wasserberger Bario to then took While Murano told Bario complaint precinct filеd a “it grand house and was too bad the case went before the falsely charging him jury, affidavit arrest because it could have been possession of the unauthorized taken care of before the lower court.” weapons.2 Bario, turn, lied loaded Bario then said he “could not afford to address, name, his marital about his his be seen in a courtroom” and asked employment, produced and his “what status could be done.” “get immi try license and false Nevada driver’s answered that must gration card, then certified case kicked out before went fur- report had he the false correctness of ther.” pre police at the a officer made. When meeting Klein, On Bario first declined suspicious immi about cinct became proposal plead a that he to a misdemean- card, gration call Bario had Murano charge. Klein then echoed Wasser- arrange Taylor latter could that the so berger’s thing “the advice that then appropriate records for falsification grand jury left to do towas have the re- Immigration Naturalization in and arrange that, turn no indictment.” To Washington. Subsequent to in Service added, money Klein a cost lost Queens County arraignment Criminal —probably $10,000 $15,000 between and his lied about Court, Bario which at sought telephone in cash. He a number A identity, to bail. he admitted was where he could reach Bario in Las Ve- agent special the Bureau Narcot ;gas responded, truthfully Bario for father, ics, Bar- posing “C. Bario’s once, that he would out be of the coun- bail, posted one,” subsequently Bario’s try and he that would call Klein in- $5,000. After set at had been which promised to stead. Klein have “an an- adjournments, preliminary hear a three by April 25 at the Bario swer” latest. ing for the case was waived and was paid then Klein a “retainer” and $500 grand presentation to the warded Wasserberger. departed On the with jury. Wasserberger Manhattan, ride to back explained part payment that of the total figure DiStefano, not un- a Nicholas go to the assistant district would have court, see States United known attorney charge of would be who 1972), (2 DiStefano, 464 F.2d 845 grand jury. presentation When coop- who, us, “was the Government tells Wasserberger he reach asked how could erating in a limited manner with neces- if that became Bario in Las Office,” Attorney’s was sary, responded that he could Bario be April brought stage. upon On then by paging Hotel at Sahara contacted de- Bario introduced DiStefano succeed, leaving or, did not if that Wasserberger, associate fendant message opera- telephone the hotel with Wasserber- bail bondsman. Manhattan fact, had no tor. Bario contacts ger lat- he was aware told Bario the hotel. whatsoever with already spoken ato and had ter’s arrest connections,” “big gone Queens attorney Bario, April with who had On respond- genuine investiga- Bario wit, Klein. defendant narcotics on a France Paris, just in “not interested he Klein ed that any lawyer,” Klein from ar- tion, called opinion meeting April “under ranged but was his office at something could be time he sаid he would have more effective flew Bario then back. Ear- Wasserberger repeated news. some done.” of the two Assistant United on the instructions had done all this that he testified Murano Attorneys. States May morning April ly cash should be delivered on 8. On Bario and on the money date, Murano, from an Assist- Bario delivered the on instructions placed Attorney, bills, to a Klein in marked went and Klein ant United States admittedly J., Newark, deposit init box. N. his safe hotel having purpose Klein talk the sole After rehearsal a dress in Klein's of- telephone The calls call. interstate an began shortly May 9, fice noon on after Bario repeated A.M., were and before 8 grand jury went to the room with Klein every minutes. At around ten fifteen Wasserberger. While the three answered, A.M., Bario someone sitting waiting room, Klein call him that Klein return asked pointed said, out Archer and “That’s our morning, Klein in Newark. Later grand jury, man.” Murano Before did. testify the de- first called as to tails of the then told his arrest. Bario met and Klein tale, except day. contrived he did not lаter the latter’s office permit. mention the Archer reported in touch Nevada he had been Klein Queens elicited that fabrication led Bario as district attor- assistant grand jury, charge latter denied that the Ne- ney awareness permit carry latter, de- vada not entitle him to turned out to did who gun suggested plan Archer, York. threat- that' fendant grand miscarry juror story ened to when to afford fictitious Klein create a possession justification asked the Ne- Bario’s whether the existence of for some pistol verified, guns. vada men concocted a license had been but The three of the story whereby stepped by testify he Archer into the false- would breach Bario ly “junket asserting carrying a it as coordina- that had. Before was cash grand Vegas retired, jury hotel and was Archer made state- for a a tor” obliged Las minimizing carry pistol, he ment for to a Bario’s offense adding, license; untruthfully, Klein and Murano had Was- that a Nevada had expressed serberger Bario that some doubt obser- both whether his assurеd story guns adequate vation justify The of the had to one check the details. been would grand jury’ possession justify to Bario’s arrest. invented considerably Following pre- pistol more returned no true second bill. was scheme, explain posterous; he successful culmination of the Bario agents gun carrying for a friend over- observed encoun- was up- night ter could avoid Klein and a so that the friend between Archer. About setting young he with month tigation a whom later terminated their inves- woman conducting by searches, pursu- informed Bario a date. Klein then had grand hearing warrants, jury to sched- ant was home and Archer’s price May deposit total was Klein’s safe box. uled On the view cash, including case, $15,000 unnecessary the we take of the it is fixed at paid. already Klein treat that Bario had these events detail. $500 $14,500 deliver Bario insisted plan May 5. Bario’s II. him balance grand jury disclosed was to lie to the Mere recital of the facts in this case Attorneys States the Assistant United inevitably calls to mind the celebrated by them. sanctioned passage ground in the of Mr. alternative Justice Brandeis’ dissent in Olmstead May 5, made an intrastate On States, 438, 485, United 48 S. postpone deliv- call 564, 5.75, (1928): Ct. 72 L.Ed. Wasserberger said $14,500. ery of the Decency, security, liberty unsuccessfully alike trying to call been he had government officials demand that Hotel Las Bario at the Sahara grand jury subjected shall same rules to tell him that in order postponed from appearance conduct that are been commands to government May agreed laws, 9; In ex- May 8 that the citizen. a government (1973), istence of the im- year, will be decided this the Court perilled steadfastly gov if it fails to the law observe has rule refused to scrupulously. government participation Our ernmental in crime neces a potent, omnipresent sarily private teacher. For vitiates the conviction good ill, part committing it teaches whole individuals who took by people example. its Casey, Crime is con- the offense. In the Court af tagious. government If (per Holmes) becomes a firmed Mr. Justice con lawbreaker, contempt it breeds viction in a case where federal narcotics law; every prisoners request it invites man to become officers induced himself; anarchy. attorney law unto supply it invites their them nar with To prisoners paid declare that in the administration cotics for which the justifies the criminal law the end sums advanced the Government. gov- Only the means—to declare Justices Brandeis Butler dis may grounds ernment commit in order sented on crimes of the Govern private Casey, secure the conviction of a ment’s conduct. Yet like other bring entrapment criminal—would terrible retri- cases where the Government Against pernicious bution. prevailed, distinguishable doc- has resolutely trine this respects. Casey court should set case in several In jailer suspected face. federal crime being specific committed indi Justice Brandeis’ statement is elo vidual; here, appears, as far the in as quent view, but his taken- full stigators gen only of the scheme had breadth, sup has never commanded the something erаlized belief that was rotten port majority Supreme of a Queens County District Attor portion Court. Olmstead itself this ney’s Furthermore, Casey, office. joined of his dissent was Mr. in the more common cases where federal Justice Holmes and Mr. Justice Stone.3 agents undercover have induced sale ground dissent, While the first narcotics, activity criminal namely, wiretapping that warrantless vi agents partici which the Government Amendment, olates the Fourth 277 U.S. pated very activity was the for which 471-479, at 564, 48 S.Ct. has since been prosecuted. Finally, the defendant was vindicated, States, Katz v. United 389 sort, in cases of that the 347, Government 507, U.S. 88 S.Ct. 19 L.Ed.2d 576 agents actually have not committed a (1967), corresponding there no has been crime at all since no adoption have had crimi second, of the based the contrast, case, by nal intent.4 In this criminality of the acts of the Govern the Bario and Government “authorized” agents ment under the laws of the State engage Murano in crimes under New Washington, of 479-480, 277 U.S. at 48 law,5 prior York of them several S.Ct. Casey States, 564. From v. United discovery activity of criminal 413, 276 373, U.S. 48 S.Ct. 72 L.Ed. part quite of the in defendants (1928), 632 decided two months before dependent Olmstead, of the crimes the defendants States, to Russell v. United 423, 411 1637, U.S. 93 S.Ct. 36 L.Ed.2d ‍‌​‌‌​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌‌‌‌‌​​​​‌‌‌‌​‌​​‌​​‌‌​‌‍committed. Butler, joined 3. Mr. Justice who in in Murano since fact portion relating of the dissent liad been no actual violation of New Amendment, thought gun “dirty Fourth law, York’s Penal Law 265.05. properly distinguish business” issue was not before The would Government 486, agents the Court. 277 U.S. at from one 48 S.Ct. 564. case where federal deny a instructed to state crime that had are, course, 4. There cases where in fact been In committed. its view the agents keep intend to all some or police time of York waste officers, purchased a narcotics and make later judges jurors grand in con- sale, government obviously but is not sidering a was more than fictitious crime party a intent. by the achieved. counterbalanced results argues

5. The Government no one was hurt state crimes committed 676 heavily approve.” 434, on the Government relies 411 at 93 at S.Ct. U.S.

recent decision Russell v. United supra, States, Court where the reaf attempted The defendants have to dis- “subjective” firmed of the en view tinguish ground Russell on the trapment majority defense taken participation there the Government’s States, v. United Sorrells enterprise limited, the criminal 435, 210, (1932), 53 77 L.Ed. 413 S.Ct. They pervasive. point while here it was repeated v. United Sherman particularly Rehnquist’s to Mr. Justice States, 369, 819, U.S. 2 356 78 S.Ct. L. caveat, 431, 1643, 411 U.S. at 93 S.Ct. (1958). By vote, Ed.2d 848 5-4 might day the Court “some rejected Court the contention that the presented which the situation entrapment primar defense should focus agents so conduct of law enforcement ily propriety police on the behavior in outrageous process principles that due inducing the to commit defendant government absolutely bar crime. Ninth in Russell Circuit had invoking judicial processes to ob- reversed conviction for the defendant’s conviction, tain a cf. Rochin v. Califor- illegally manufacturing methampheta nia, 165, 205, 342 72 96 L.Ed. U.S. agent mine because Government had (1952) 183 . . .” The Government supplied with the chem Russell essential responds Rochin, the citation ingrеdient required producing ical Court, process where the under the due drug. behavior, This the court clause, aside set a state conviction be- wrote, degree constituted “an intolerable involving police cause of conduct governmental participation breaking “[¡Illegally privacy into enterprise.” criminal F.2d at 673. struggle petitioner, open his reversing, Rehnquist Mr. Justice there, mouth what was and remove wrote for the Court that at least con- forcible extraction his stomach’s drug-related offenses, “infiltration of tents,” 209, 342 U.S. at S.Ct. at drug rings participation and limited Rehnquist shows that Mr. Justice present practices” per their unlawful thinking of conduct directed at the de- missible, only practicable as it is “the which shocked the conscience fendants means detection. though did even not come Court Moreover, 5.Ct. at Court any “specific” within the Bill of pointed out that in Russell the Govern Rights. No such “direct and immediate agent independent ment violated rights infringement of the defend- right constitutional of the defendant herе, in- ant” occurred and, by merely ingredients providing the sists. illegal process, for the he did not violate how are not we would We sure any any federal statute or commit crime. question decide if were re this decision Finally, holding entrapment quired. intuition inclines us to the Our government’s only place takes when the appli for belief that this case call would deception “actually implants the criminal cation of Justice Brandéis’ observa Mr. design defendant,” in the mind of the though tion in Even that view Olmstead. the Court the admonished that defense incorporated entrap has not been in the ju give “was not intended to the federal defense, certainly ment there is to limit diciary veto over allowing governmental a ‘chancellor’s foot’ law involvement practice unthinkable, enforcement of which it did crime.6 It be for ex- not would passages strong- 6. for While in Russell means a defendant to contest some ly suggest police practices propriety utilized that courts abstain should overturning apprehend to him. the refer- сonvictions because Besides Rochin, ap- ence noted law do not to Court that law enforcement tactics that peal them, practices enforcement remain sub- to see 411 would ject statutory lim- it clear that to “constitutional and the Court made entrapment judicially to rules defense not be the itations and fashioned would agents substantially government sized, permit more offensive ample, it is govern- beatings merely instigate the common cases where than robberies and agents of narcotics gather mem- ment induce sale other evidence convict drug gang order to make arrests. of hoodlums. Govern- bers involving partici- “investigation” mental re- conclude reversal be Since we injury pation in activities that result ground, quired on we leave another rights is a course of its citizens to the question for resolution of this difficult extremely reluc- that courts should be however, hope, day. another We their Prosecutors tant sanction. may obviate the lesson of this ease assign great agents naturally tend to necessity on our for such decision. appre- weight interest to the societal part. convicting criminals; hending assign danger they little too will is that III. rights free from to be to the of citizens respect to We take a similar view criminality. government-induced prosecution question this whether the initia- should be dismissed because ar the Government In this case investigation infringe was founded tion of the gues, did conduct grossly conception any of the role rights inflated or of of the defendants either There is no of the federal criminal law. parties; Govern Yet the third see fn. that, arrogant at the time of the Febru- agents evidence displayed disre ment ary meeting, en- judicial the federal law gard sanctity state for any investigators information forcement police processes. officers supposed corruption of apparently permitted con their deserved Attorney’s Queens of- County practitioners District tempt corrupt in the Travel spill fice involved violations Queens justice system to сriminal 1952;7 hope participants 18 U.S.C. over into disdain for all playing the Bario- system including police, rather if the — corrupt grand induce courts, Murano scenario and the members foreign ele- subjected activity, interstate or some jury, were all whom might might or, not, be if ment occur While fabrications. Government’s Today widespread injected.8 may pattern deception less serious be law governmental partic the federal criminal concern whether forms of than some bounds; reasonable hypothe- has not outrun ipation in crime can be ployed fed- arrest the undercover I A. It those limitations.” enforce conceding although agent,” doubtful, however, eral constitution- investigation principles “all facets of the less in this area will al developed communicated “unmanageably subjective” later en- than the an un- is not trapment But court.” Rehn- decisions Mr. Justice determine concurring opin- official quist court named state Ms criticized. scope proper enforce- States, law iоn in Williamson v. United 1962), (5 ment. 441, 445 the cele- F.2d case, “contingent-fee informer” brated suggested the Government Counsel Judge gave vent to the frustra- Brown repeated argument the letter and in per- trying of to draw lines between tion any corruption in in mentioned fn. 7 that impermissible of forms un- missible and prosecutor’s provides a safe office local activity: hold is “What we dercover organized crime, al- harbor which that, recognized is the role of inform- inevitably lines. crosses state most laws, in enforcement of criminal er proper may so, be course While this enough more when is there comes time seem for federal officers would just enough much.” too ‍‌​‌‌​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌‌‌‌‌​​​​‌‌‌‌​‌​​‌​​‌‌​‌‍than —it investigation organized aim the argument, al- the Government Subsequent In this case crime. the Gov- to oral leges only of “the ex- it aware us letter ernment informed high places,” corruption in Attorney’s istence of had “ad- office United States engaged in it or wheth- high and not who was of- York State Court vised a activity any interstate investigation, er it involved need ficial teсhniques therefor, whatsoever. be em- and auxiliary jurisdic- “Federal power, Wechsler, criminal federal see Hart & spread point tion” has Sys- where The Federal Courts Federal practically (2d 1973). “[t]here no However, offense within tem 1287 ed. we purview unnecessary of local law that does not find it to decide whether we power become a if Federal crime some distinc- have such a or should it exercise happens here, tive Federal involvement to be since we hold these convictions present.” Abrams, although See N. Consultant’s another, must be reversed on Report Working Jurisdiction, unrelated, ground. Pa- not pers of the National Commission on Re- Laws, form of Federal Criminal IV. (1970). Although the Commis- determining whether the three in- Proposed Code, sion’s entitled “Discre- foreign telephone or terstate in calls this tionary Restraints Exercise Con- trigger application case sufficed to among Jurisdiction,” current includes the Travel it lan- is well to have the the cases where “a substantial guage us; of the statute before we have exists,” interest instance which reproduced pertinent portions or “state local law enforcement has been margin.9 corrupted so as to undermine its effec- substantially,” tiveness is not clear immediately One is struck ex- comprehends a case where fed- spread language of the cess of the investigators eral have no reason to sus- statute over the title. The title refers pect any violation of federal Even law. only foreign to interstate or travel proposed if the code section intend- transportation; yet the text also in- cases, ed to cover such we are not sure any facility cludes the use of in inter- agree we would the federal interest foreign state or commerce. The title re- should extend far. racketeering fers “in acts aid of enterprises”; yet the definition of “un- keeping responsibility While activity” displays lawful in the text investigations pros federal criminal legislative history such limitation. appropriate ecutions within the bounds Congressional affords little indication of assumptions on the inherent a federal awareness of the enormous reach the system rest, instance, should in the first literally interpret- statute could have if Attorneys under Indeed, ed. there is even some evidence guidance General, Attorney active Congressional inadvertence contrib- Friendly, see Federal A Jurisdiction: expansion scope uted to the (1973), General View 55-61 are not we through way Act as it Congres made prepared that, say absent committees, limitation, may sional House and Senate see fn. 10 a federal court prosecution never dismiss a as an abuse infra. Foreign subparagraphs (2), (3),

9. Interstate And (1), Travel Or shall Transportation Racketeering $10,000 In Aid than im- be fined not more prisoned or Of Enterprises. years, more than five (a) Whoever travels or interstate or both. any facility (b) commerce or uses As used in this section “unlawful foreign commerce, activity” any (1) or interstate includ business enter- means ing mail, involving prise gambling, liquor the (1) with intent to — on which any proсeeds paid, distribute has been the Federal excise tax narcotics, (as activity; unlawful or or controlled substances (2) any 102(6) commit crime violence to defined section the Con- activity; Act) prostitution further unlawful trolled Substances (3) promote, manage, es- otherwise offenses in violation of the laws tablish, carry pro- on, or facilitate the are committed or of State motion, establishment, extortion, States, (2) management, or or the United bribery, carrying on, activity, of in of the laws unlawful or arson violation performs attempts or of or committed and thereafter of the in which State specified perform any in of the acts the United States.

679 statute, The source of the use the which the of facilities of interstate adopted speed and little remarkable commerce racketeers and hoodlums discussion, illegal promote enterprises, was a bill forwarded Con- the to dis- gress by Attorney Kennedy proceeds among syndi- on General tribute the the April 6, illegal gambling, liquor, 1961. His letter of transmittal сate members urged narcotics, prostitution that: businesses and the use of the the com- facilities for many Because rackets are conducted mission crimes of further- violence organized by highly syndicates whose ance of the unlawful H.R. activities.” influence extends and Na- over State Cong. Rep.No.966, 2 Adm. U.S.Code & borders, tional Federal Govern- News, supra p. at he Yet the bill 2665. ment should come to aid of local submitted, literally, if read would cover enforcement ef- law authorities payment if ticket fix a traffic $10 activity. fort to stem such only person desiring fix walked Cong. Sess., p. S.Rep.No.644 1st at 87th police- pay across state line to off 4; H.R.Rep.No.966, reprinted U.S. in 2 man. Cong. pp. 2664, Code 2666 & Adm.News nothing did The Senate to narrow Judiciary (1961). He told the Senate language purpose. stated necessary Committee that the Act was Cong.Rec. (1961). 13942-44 The House aid local law enforcement officials by amending tried to do so is now what many ‘top men’ instances where “the 1952(b)(2) to or read “extortion brib- given operation сriminal resided in ery in connection with such offenses” illegal one conducted their ac State but gambling, (emphasis supplied), wit, Hearings in another.” tivities S. liquor, prostitution offenses narcotics 1653-1658, S.1665 before the Ju Senate “in violation the laws of the State diciary Attorney Committee Gen of the are committed or which Program Organized eral’s to Crush H.R.Rep.No.966, 2 U. States.” United Cong. Racketeering, Crime and 1st 87th Cong. supra p. Adm.News, at (1961) quoted S.Code & Sess. at 15-17 in United 286, Nardello, Senate, responsive ‍‌​‌‌​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌‌‌‌‌​​​​‌‌‌‌​‌​​‌​​‌‌​‌‍290- to an States v. But the 534, 291, 89 21 L.Ed.2d 487 objection -Department of Jus- from the said, (1969). target he The the House amendment tice “clearly organized The stat crime.” “offenses as ‘shakedown eliminate such sporadic, ute would not curtail cas “the ‘shylocking’ rackets’, extortion and labor offenses, involvement but ual these income were traditional sources rather a continuous of conduct course organized crime,” States United for it to be business sufficient termed a 292, Nardello, supra, 393 at 89 S. U.S. S.Rep.No.644, enterprise.” at 3. See agree 537, refused Ct. 808, Statеs, v. United Rewis Managers yielded, change; the House 1059, 6, n. L. 811-812 91 S.Ct. (1961), Cong.Rec. 18814-15 (1971). testimony be Ed.2d 493 In his substantially adopted its Attorney bill committee, fore the House present form.10 “cited numerous instances General Possibly passed through inadvertence, form. the bill in that Senate tidy up language substantially attempting scope House increased however, during pas- bill, ex the House Committee the Travel Act its rush toward Purport considerably. scope panded sage. original bill, as submitted merely Attorney General, ing sections to combine the two inter- covered section, single foreign urging bill into a the Senate state travel. At present Judiciary Keating, substituted House Committee of Senator the Senate extending coverage language covering the Act trans- added a Committee section portation commerce in interstate travels com- to “whoever interstate commerce, any facility in interstate uses also revised merce. Senate Committee ” including . The Com the mail . . . to its the title current form to reflect change, S.Reр. 1, 4, its unawareness and the mittee demonstrated No. 680 managing illegal go beyond proper It exer- activities located an- warnings “Congress power judicial that cise of for courts to con- other.” The recognize certainly expan- title, Fra- would that fine the Travel Act to see its (6 States, 189, sensitive Travel Act would alter ser 145 F.2d 142 sive v. United cert, 1944), relationships” denied, 849, and “could Cir. 324 65 federal-state U.S. - police 684, (1945), limited federal re- S.Ct. L.Ed. 1409 or even overextend 89 812, precise purpose sources,” at 91 at stated to 401 U.S. S.Ct. Con- gress Attorney 1059, here. None- are not without relevance General.

theless, question remains whether These observations reiterated Erlenbaugh facility States, have used v. 409 U.S. defendants here United 477, commerce, 21, 239, or 34 L.Ed.2d interstate n. 93 S.Ct. 247 (1972). purposes 1952(a)(3), listed in in a 446 § meaningful subject sufficiently way our own decisions under the Travel Of liability themselves to under the statute. illuminating present the most deciding issue, In limited arewe Corallo, purposes is v. 413 free, legisla- bound, indeed to look to the cert, denied, Cir.), (2 U.S. 1306 396 F.2d history, tive to cоnsider the demands of 958, 431, 422 90 24 L.Ed.2d S.Ct. federalism, and to heed venerable Although case, (1969). like this rule, Supreme reaffirmed Court one, corruption involved of a local offi- respect very statute, to this cial, disclosed numer- evidence “ambiguity concerning the ambit telephone ous calls from New York to criminal statutes should resolved in very purpose for the of ar- Connecticut lenity.” favor of Rewis v. United distributing ranging the bribe and States, 812, supra, 401 at 91 S.Ct. U.S. proceeds among conspirators, F. 413 at 1059. Judge that basis Medina 2d at 1315. On holding concluded, 1325, precise F.2d at that “the

While the of Rewis 413 proprietors in- extensive references the record to was that of a Florida gambling telephone did not terstate ly calls were actual- establishment violate merely justify the inference that Act some of made Travel because Georgia, telephone interstate calls was their customers came from a use of de- incidental occurrence but course of action foreseeable and even signed, a casual and integral part opinion fulfillment of an indicates that the conspiratorial In not to be stretched to the limits consensus.” United Act is language. (2 DeSapio, stated, F.2d 272 Cir. 401 v. 435 Court States 1970), cert, denied, 999, 811, 1059, 91 402 U.S. S. U.S. at 91 S.Ct. at legislative history 2170, (1971), the in- L.Ed.2d 166 revealed “that 1952 Ct. 29 § numerous, organized primarily less crime terstate acts were much was aimed at 275-276, and, persons 278, specifically, but one who F.2d at more at see 435 horsefarm, meeting them, operating Fried’s at reside one while State by reporting ly applied significance interstate Act the Travel of the alteration telephone interstate travel as well as made “no substantive calls the amendment See, g., transportation. change provisions e. United of the bill” (2 Cir.), Armiento, by retaining F.2d 445 869 the Senate’s more restrictive States cert, 853, 94, Cong. denied, H.R.Rep. 966, 92 30 2 title. No. U.S.Code ; (1971) Adm.News, supra p. Menendez v. United The con L.Ed.2d 93 & cert, (5 1968), States, F.2d 312 Cir. 393 ference committee failed to catch 639, 1029, change; agreed denied, 21 89 S.Ct. amend to the House’s (1969) ; McIntosh v. Unite L.Ed.2d because of the value of

ment cosmetic d 1967). (8 States, How adding single F.2d 274 to title streamlined section background the, cumbersome, largely ever, least legislative 18 rather than two regard Congress H.R.Rep. repetitive did indicates No. ones. purposes Cong.Rec. (1961). of interstate facilities use 1881A-15 con transportation perforce struing than travel other among the courts have targets statutory just language Act. the central read the to mean mean, what it seems to uniform have

681 by by mailings played travel was reached interstate the interstate was “a suggestion, happenstance” was the occasion matter of and his “minimal proof, when, operation on the Government’s and incidental” of the illegal conspiracy lottery. In in entire was hatched.11 The decision United 610, Lee, (7 Cassino, 604, F.2d 467 v. 448 607 Cir. United v. States F.2d States cert, 1972), denied, by (2 1971), Government, 410 cited indi- 613-614 Cir. contrary 928, 1363, view; 590 S.Ct. L.Ed.2d no in case em- U.S. 93 35 cates that gambling (1973), conspirators ployees en- of an several Indiana estab- gaged weekly regularly lines, in from York state travel New lishment crossed meetings Jersey distinguished in further- the court both Alto- conspiracy. by Finally, pointing in our bello to the “con- ance of the and Rewis by employees tinual interstate most recent encounter the Travel travel with illegal Act, Kahn, venture.” cases from v. F.2d Two United States 472 holding 272, (2 1973), other circuits the interstate there was as- 285 Cir. where pect insufficient are extensive interstate and use United States v. travel cert, distinguished (4 mails, Judge Hawthorne, Cir.), F.2d 740 Smith 356 denied, 908, 1344, 384 U.S. 86 16 the Seventh Circuit decisions S.Ct. Rems and ground (1966) [moving self and on the that in them L.Ed.2d 360 cited below Virginia family engaged in from Indiana to West “the defendants themselves illegal gambling activities, enterprise the to- was to interstate that where undertaken]; aspect tal enter- States v. travel United interstate (6 marginal Judkins, 1970) prises F.2d unfore- Cir. either 428 333 appellant’s from Arkansas [calls seen.” prostitution in house of Tennessee not Of has the other circuits the Seventh purpose]. shown to have business concerning say pur had how most poseful important enterprise background It is with this that we be. of interstate must use facilities telephone consider the three calls which Altobello, v. F.2d 310 442 brought claims to have Government enough (7 1971), ‍‌​‌‌​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌‌‌‌‌​​​​‌‌‌‌​‌​​‌​​‌‌​‌‍held it Cir. 1952(a)(3). this case within 18 U.S.C. § Philadelphian who was the victim discarding Chicago gave part begin by of extortion as We proceeds payment he Klein’s return Bario’s calls of a check morning April Philadelphia bank, on a which Newark cashed Congress through may meant have United Whatever cleared mails.12 316, 1952(a)(3), certainly McCormick, it did not intend 318 States v. 442 F.2d telephone lottery opera (7 1971), to include a call manufactured an Indiana Cir. precise pur newspaper for for the tor a local Government advertised bribery transforming pose salesmen, copies local of the news and some paper The into a crime. In view of out fense were mailed of the state. epi totally again applica permit fabricated nature of court refused to finding sode, Klein “the it is immaterial re tion of the Travel receiving engaged the call rather than defendant were turned activities plotted. essentially role lоcal” and knowledge cashing checks, out-of-state 11. Examination briefs through appeal DeSapio cleared the writer’s would be confirms concerning the was sufficient invoke the statute. that no mails issue recollection applicability raised. This followed earlier decision of the Travel Act was Wechsler, v. F.2d 344 v. States 392 was also true States United This United cert, cert, 932, 1971), (4 Cir.), denied, Pordum, (2 88 392 F.2d 1015 U.S. 451 Cir. (1968) 998, 1249, 2283, denied, 31 20 L.Ed.2d 1389 92 S.Ct. S.Ct. deposits check, (1972). (“When there would one L.Ed.2d 467 using little he is seem to be doubt facility Id. commerce.” interstate Fourth Circuit cases seem contra Salsbury, 3). point. F.2d at 347 n. States v. 392 on this United (4 1970), held F.2d 1045 Cir. 430 us to re considerations lead on United States Similar reliance Government’s 853, (2 ject Edwards, the Government’s reliance Was 867-868 366 F.2d cert, serberger’s attempts denied, unsuccessful 1966), Vegas. (1967), in Las Those calls reach Bario is mis- L.Ed.2d 782 plant by the also resulted from a Gov placed. court found that There this plant of participants them- this instance a considered ernment —in “never provoked by which inter York boundaries” misinformation limited selves Wasserbergеr suggested telephone stolen calls that that the state and indeed had An disposed of outside New would not otherwise have made.13 securities be ruling ground out York; moreover, the manu- additional the issue of Vegas jurisdiction not calls is had abortive Las of federal facture circumstances, and, not not under the It is a suffi- was been raised at trial. any not actual use of a if the issue here were could facility have been cient answer that simply jury entrapment, in interstate commerce which one of finding, etc., any promote, justified un- unlawful in fact have been would would Wasserberger activity. entirely instruction When Bario told der the correct given by judge, subject that he could be reached at the Sahara propensity crime, Hotel, attempt re- he knew that Klein had a encouragement quiring the fed- reach him at hotel would be frus no agents. holding is “in eral rather trated. refuse construe the Our We language Congress responded broadly Attor- 1952 so as when ney tent” § telephone request lend the aid of to an innоcent General’s to include a call operator idea to local officials had not the faintest federal law enforcement who pri- crimes, prosecution in the of certain of what was afoot.14 marily concern, par- where the local only with Bario’s call thus left We are engaging ticipants in interstate ac- were April That call was 25. from Paris not mean to include cases it did planted the Newark in the sense that not themselves- where the federal officers was; did not send call the Government supplied the interstate element and acted purpose of for the sole abroad Bario element to -ensure that an interstate making foreign But, apart from call. present. federal be Manufactured unresolved, question, we leave jurisdiction is more offensive even un- with an a communication whether proceedings, cf. 28 in civil criminal than agent re- ever meet the can dercover. Judge Freed- As the late U.S.C. 1359. 1952(a), call the Paris quirement of § respect actions mаn said civil with Judge precisely Medina’s fits rather 867, Weist, McSparran 873 402 F.2d v. Cor- in United States characterization cert, denied, 1968) banc), (3 (en 1325, allo, supra, of “a cas- F.2d at 413 1739, 903, L.Ed.2d 89 S.Ct. 23 Mr. occurrence” ual and incidental jurisdiction (1969), manufactured Rewis, 217 reference Marshall’s Justice judicial 1059, federal supra, “is a reflection on the at 91 happen- brings disrepute.” to “a matter system L.Ed.2d it into credibility Agent Bario to maintain 13. that Bario contends sup- Yegas nowhere gave Wasserberger mobster” is in- a Las Hotel as the Sahara record, ported “only great pressure need not decide in the we after formation mentioned Wasserberger the considerations Klein to furnish whether testimony, re- According to a different lead this footnote would to Bario’s number.” however, factually requested if sustained. a number sult Klein when Wasserberger call, Bario said foregoing him, get to be mean with do not touch We would know how indicating reach that we would asked for a taken and when readily spun reference number, with the tale a different conclusion out operator messages leaving if the calls the Las Sahara about simply Bario; need passed we on to them assertion Hotel. Since Government’s story “solely decide that issue. was invented the hotel Although purpose no The call served record does stance.” equally many now proof been served facts that would not have contain York; b,y most that the Govern a call from New our attention called defendants evidence said is that when the time as can be first ment agreement investigation, despicable background we made their might Bario, prose told he call question that the do not ing given than from across the Atlantic rather informa abundant cutors had been complete fixing widespread East matter cases River—a tion about Beyond Attorney’s Queens County to them. all this indifference District receipt question told, of an office,1 which, whether are now we some call, telephone violating interstate or may conduct have involved way defendant, readily initiated evеn We Travel U.S.C. § though him, expected more a indignation appreciate justified this the the re violation of the Travel Act than understand the conse and can aroused Georgia gamblers by ception Flor of the enforcement quent desire federal law of Rewis, operators supra,, Augean ida stables to clean these officials L.Ed.2d 493. has dis State. That Archer of the been controlling light principles de our of the post the as a result of missed his cision, at the con which we summarized “good” indeed efforts is a Government’s legisla of discussion of the clusion our result, repeatedly petition em as the Act, history hold of Travel we tive the this, however, rel phasizes. None of the call was insufficient that Paris namely, decided, to the issue evant sole sordid, federally pro transform this did show a that the evidence here not corruption into a incident of local voked reading of crime a fair federal under against the United States. crime the Travel Act. in- are reversed convictions its devotes much of Government sufficiency vi- the to show a evidence petition to felt issues which we desirable of, violate, conspiracy or a olation appellants’ to ventilate view of dismiss instructions to Travel with arguments pains but were neither the indictment. pronounce nor to dicta. decide Nine pages petition an are devoted to FOR REHEARING ON PETITION attempt to show that Government PER CURIAM: agents that committed crimes and descrip- “investigat- Beginning nine-page a what it chooses to call with background alleged ing technique” employed have en- tion of the here “was setting although justified up tirely proper,” expressly with the crime we charged, question which were Gov- left “resolution of this difficult defendants day,” ernment it character- another attacks both what 486 F.2d at 677. opinion pre- pages petition stoutly as The final izes dicta in our and holding the use of interstate that cise that maintain “The Government’s inves- tigation telephone corruption this facilities in local case this bring proper necessary did defend- case not suffice to was a of fed- use power.” ants within the Travel Act. eral The case for assertion part investigation principal This came in from a com dorsed” by Mayor County prosecutor’s office; Queens mission established Lindsay City Attorney “the of New York and chaired disclosed the Esq., judiciary Knapp, distinguished plan Whitman to member of the state lawyer judge responsibility become a who has since administrative over system for the Dis state court in Queens.” the District Court Southern While According trict New York. this lessens offensiveness the State issue, petition, Knapp Government’s of the conduct here at local invita Com expand sought tions cannot the assistance of the De constitutional mission partment City Justice; legislative York limitations on federal crim “thoroughly jurisdiction. en inal Police Commissioner stronger certainly if, money pur- would For be as bribe pose advance. now, get way Government advises us it did he as needed in touch argument, responded in its rea- with he brief there was Bario. Bario phone corruрtion son to the local had no he believe that in Las and that Queens great country would had involved some violations be out of the deal specifically But we added Was- the Travel Act. He near future. serberger could whether we to call to ensure declined to decide knew whom prosecution money should be on time. dismiss would power, people abuse 486 F.2d at 678. of federal “There who ex- are some know actly times,” consider Point I We thus need where I am at all Bario as- petition, the urges sured Klein. That answer seemed reading gave satisfy Klein, too narrow a in- we for he made no further quiries concerning Act. Travel Bario’s whereabouts. Bario and left then cases, copious Despite the citation of Klein’s office. The Government states including many orig- not included in its “Wasserberger agreed and Bario brief, inal Government’s one directly that Bario call Klein should application supports citations guarantee find out if Klein could Travel ele- Act where the sole “federal” the case fixed.” That char- telephone ments from or to an calls acterization, however, misleading. is grave agent. Despite undercover reser- Actually, independently proposed Bario foreign vations interstate whether or Klein, that he should call and made he transportation travel in- or or use no mention he of where would be the foreign telephone facilities terstate or by Contrary time he intended to call. distinguished agent, an undercover assertion, the Government’s Bario was crime, participants in the actual given no instructions call of- Klein’s jurisdiction- supply can federal ever April any date; on fice or other required we al basis the Travel fact, called, Klein when Bario could might open possibility left that this say that he would some have news sufficiently pervasive or suffice when day. him the next holding was the nar- functional. Our on not row these basis that conditions were The insists that Government it was petition here fulfilled. In re- its Wasserberger only after Klein and had hearing, argues that Government great pressure exerted on Bario he agree- there evidence was at least of an Vegas forced was to contrive a Lac “cov- calls, foreign ment to make interstate or pretended Yet er.” Nevada connec- justifying thus conviction on part tion had been the Government’s count, conspiracy legislative and that plan from the first. Bario testified at history prior require decisions tous trial that when Klein asked he where Vegas hold and Paris calls the Las lived, gave Vegas he Las address Act. to invoke the Travel were sufficient originally sup- that the had Government disagree. We pa- plied for identification him on his pers. Later, Bario and while Wasser- point, On the first Government berger Manhattan, driving were back Wasserberger “Klein and asserts that might that he mentioned had, any before actual travel or use someday Vegas. Las It to visit was want agreed facility, an such interstate to use Wasserberger’s response expres- promote the bribe.” How- facilities to ever, visiting him there sion intеrest greatly overstates Government Bario could be reach- he volunteered alleged agreement. the evidence as to the ed at the Sahara Hotel. recording transcript tape The Bario, the critical conversation between light evidence, no is Wasserberger and Klein the fol- agreed reveals indication defendants lowing: Klein said he must have the either to or to cause to be made make make, it foreign but telephone calls. “caused” Bario to any ants interstate meeting, outlined above Klein clear from evidence the conclusion At initi- call on Bario that Bario made the his own expected that he could reach great through places Wasserberger; Bario’s calling ative. The Government Wasserberger weight fabrication, subsequent on the fact that Bario legitimate thought on business and was he learned—that Paris learned—or juris- solely manufacture the Sahara sent there could be reached alone Hotel, plans for Was- in this But that fact nо diction case. but made qualify serberger call. Gov- Paris him The sufficient call there. holding permit Any Gov- points further evidence such ernment to no bribery any it agreement. local ernment to convert provoked offense a federal into insisting Besides defendants furnishing an out-of-state address agreed interstate or make sending agent out- him undercover disputes calls, con- our legitimate errand the state on a side in- clusion the calls themselves were having offense a call made before Act. invoke the Travel sufficient con- Act consummated. Travel wisely reli- it has abandoned While power ample enforce- law fers calls, contends ance the Newark to assist local officials ment officers from Paris that Bario’s call berger’s and Wasser- legisla- going Both the without so far. attempts unsuccessful to reach opinion history summarized our tive in Las meet the Bario jurisdictional sufficed to extracts relied on the additional requirements of § petition show Government’s disagree- We Nevada calls are overriding Congressional purpose towas Although significance. jurisdictional government permit to act the federal calls Government insists that those organized against crime members “suggest- “planted,” were not ed, but were activity when crossed state lines whose solely pressed accomplished for and un- local law enforcement officers any without encour- defendants unwilling extend or to do so—not to able agement by despite Bario’s corruption in power deal with federal actively discouraging calls,” such affording prosecutors’ offices local evidence summarized above shows corrupters opportunity in- use an story Bario volunteered the reach- about foreign telephone terstate facilities ing Hotel, him at the Sahara consistent dealing agent any undercover design present with the Government’s as such “casual and incidental” basis Vegas figure. him as a Las underworld Corallo, 413 here. See United States v. Moreover, while made cert, denied, 1306, (2 Cir.), F.2d convеy in an calls effort to information 958, 431, 24 L.Ed.2d 90 S.Ct. proposed to Bario about the at- bribe (1969). tempt, possibility there was no time that the calls could further professes While the Government enterprise go through or even in- to the precedential of our alarm effect recipient.2 tended decision, we in no further than fact went hold that element The Government when insists prosecution the Paris call under the Act was one defend- Travel that the 2. The Government cites their held Travel Act convictions even United States v. Hedge, relationshp (5 though 1972), 462 F.2d 220 direct was no contrary to the between the of the mails and the sub- result reached use here. Mississippi-based sequent gambling. case the defend- unlawful Unlike Vegas shipment here, ants ordered numerous sets calls the dice of dice from Las which, manufacturing operation company ‍‌​‌‌​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌‌‌‌‌​​​​‌‌‌‌​‌​​‌​​‌‌​‌‍a Las a bona fide until every delivery, which one of them worked as a the defendants refused prospect salesman. promoting gambling mail, The dice enter- arrived the de- but pay prise. fendants refused to for them and up- were returned unclaimed. The eourt solely by agents,

furnished undercover applicable stricter standard than

when the interstate activi-

ties are those of the defendants them-

selves and that this was met here. holding

We adhere to that and leave the line-drawing

task of further fu-

ture. petition rehearing is denied.

LEVITON COMPA- MANUFACTURING NY, INC., Petitioner,

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 73-1152. Appeals, Court of

First Circuit.

Argued Sept.

Decided Nov.

Case Details

Case Name: United States v. Norman Archer

Court Name: Court of Appeals for the Second Circuit

Date Published: Sep 26, 1973

Citation: 486 F.2d 670

Docket Number: 1039, 1040, 1041, Dockets 73-1527, 73-1528, 73-1711

Court Abbreviation: 2d Cir.