Petition — Busic v. United States

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IN THE 1} (JAN

SUPREME COURT OF THE UNITED STATES ||

MICHAEL M. BUSIC,

Petitioner,

vs.

UNITED STATES OF AMERICA,

2espondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

GEFSKY, REICH AND REICH

Samuel J. Reich

1321 Frick Building,

Pittsburgh, PA 15219

U. Ye

INDEX

' Opinions Below .

| Jurisdiction .

Questions Presented .......-+ ++ ++ +s -

Constitutional and Statutory Provisions Involved .

Statement of the Case ‘ore

- Argument

}

Appendix mano Opinion and Order dated February 17, 1977

denying Motion for Judgment of Acquittal and New Trial

Appendix "B" - Judgment of the United States Court of

Appeals for the Third Circuit dated January 5, 1978

Appendix "c" - Supplemental Opinion Sur Rehearing dated

December 12, 1978

CITATIONS

ases

‘Simpson, et al. v. United States, 435 U.S. 6, 55 L.Ed.

‘United States v. Eagle, 539 F.2d 1166 (1976)

‘United States v. Nelson, 574 F.2d 277 (1978)

CONSTITUTION

‘United States Constitution, Fifth Amendment

STATUTES

§1254(1)

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CoOnnhm

NS OWWN NY

| j

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 19

No.

MICHAEL M. BUSIC,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner, Michael M. Busic, vrays that a Writ of

Certiorari issue to review the Judgment on Rehearing of the United

Staes Court of Appeals for the Third Circuit entered in this case

on December 12, 1978 (Appendix "C").

Opinions Below

The Opinion and Order of the Trial Court (Appendix "A")

is dated February 17, 1977 and, to the best of petitioner's know-

ledge, has not been printed by any official or unofficial reporter.

‘The United States Court of Appeals for the Third Circuit filed an

Opinion and Judgment on January 5, 1978 (Anpendix ''B"); and then

on December 12, 1979, the United States Court of Appeals for the

Third Circuit filed a Supplemental Opinion Sur Rehearing and

Judgment (Anpendix "C"). To the best of petitioner's knowledge,

neither of the above Opinions of the Third Circuit Court of

Appeals has been printed by any official or unofficial reporter.

Between the first and second Opinions filed by the

Third Circuit, this Honorable Court decided the case of

Simpson, et al. v. United States, 435 U.S. 6, 55 L.Ed. 2770, 98

909 (1978).

A oy Because Simpson addressed itself to the same

question as the instant case, the Government netitioned for re-

hearing before the Lower Court, and after rehearing, the Lower

‘Court again affirmed its original decision. Therefore, petitioner,

' Michael M. Busic, files this Petition.

Jurisdiction

_ The Supplemental Opinion Sur Rehearing and Judgment of

the United States Court of Appeals for the Third Circuit was |

entered on December 12, 1978 (Appendix "C''). This Petition for

Writ of Certiorari was filed within thirty days. |!

| Jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

| |

| Questions Presented

1. Did Congress authorize the additional penalty of

(18 U.S.C. §924(c) for commission of an assault on federal officers

{

when the underlying violationwith firearms was already subject to

an enhanced venalty under 18 U.S.C. §111?

2. As a matter of Double Jeonardy, are the offenses of

‘ing of firearms for an assault on federal officers sufficiently

distinguishable to permit the imposition of cumulative punishment?

‘

Constitutional and Statutory Provisions Involved

ia assault on federal officers with firearms and the use or carry- |

1. The United States Constitution, Fifth Amendment

"No person shall be subject for the same

tt offense to be twice put in jeopardy of life or

limb; nor be deprived of life, liberty,

or property, without due process of law; Re

2. 18 U.S.C. §924(c)

{i "(c) Whoever

H (1) uses a firearm to commit any felony

for which he may be prosecuted in a court of

the United States, or

“Appeals for the Third Circuit (Apnvendix "'R").

(2) carries a firearm unlawfully during the

commission of any felony for which he may be

prosecuted in a court of the United States,

shall, in addition to the punishment provided for

the commission of such felony, be sentenced to a

term of imprisonment for not less than one year

nor more than ten years. In the case of his second

or subsequent conviction under this subsection,

such person shall be sentenced to a term of

imprisonment for not less than two nor more than twenty-

five years and, notwithstanding any other provision

of law, the court shall not suspend the sentence in

the case of a second or subsequent conviction of

such person or give him a probationary sentence, nor

shall the term of imprisonment imposed under this

subsection run concurrently with any term of

imprisonment imposed for the commission of such

felony."

3. 180U.8.C. §111

"Whoever forcibly assaults, resists, opposes, im-

pedes, intimidates, or interfers with any person

designated in section 1114 of this title while

engaged in or on account of the performance of

his official duties, shall be fined not more than

$5,000 or imprisoned not more than three years,

or both

Whoever, in the commission of any such acts uses

a deadly or dangerous weapon, shall be fined not

more than $10,090 or imprisoned not more than

ten years, or both."

Statement of the Case

For simplicity, petitioner incorporates the summary of

evidence contained in the Opinion of the United States Court of

Those vortions of

the Opinion discussing matters not material to the issues raised

herein are omitted.

"Michael Busic and Anthony La Rocca were

involved in a conspiracy to distribute drugs

which turned into an attempt to rob ‘front money'

from an undercover agent. This attempted

robbery culminated in a shootout with federal

agents.

"Charles D. Harvey, an agent of the Drug,

Enforcement Administration, first met Busic and

La Rocca on May 7, 1976 at the home of

Richard Hervaux, a government informant.

this time, defendants agreed with Harvey

that Harvey would go to Florida to purchase

drugs from one of the defendants' supvliers

for re-distribution in the Pittsburgh area.

(Tr. 21-22). Several days later, Harvey again

met with the defendants and received samples

of the marijuana and cocaine which he was

to purchase from defendants' Florida source.

(Tr. 29-30.) The next day, after Harvey had

arranged for his trip to Florida, La Rocca

called him and insisted on seeing some ‘front

money'. A meeting was arranged for the following

day in the parking lot of the Miracle Mile Shopping

Center in Monroeville, Pennsylvania. (Tr. 32-33).

"As agreed, but having arranged for surveillance,

Harvey went to the shopping center with $30,000

in cash. (Tr. 34-35). There he saw Busic and

La Rocca in La Rocca's car. (Tr. 36). La Rocca

entered Harvey's car, and the two drove to the

other side of the parking lot. (Tr. 39). As

Harvey removed the money from the trunk, La Rocca

reached for his gun. Harvey ran, but La Rocca

i! caught him and pointed his gun at Harvey's chest.

i! Harvey then gave a pre-arranged signal to the

H surveillance agents. As the agents began to

converge on the scene, La Rocca fired at Harvey,

and missed. La Rocca then fired two shots at

the vehicle containing agents William Alfree

and William Petraitis, and two shots at the

vehicle containing agent John Macready. (Tr. 40).

| He was immediately arrested and disarmed.

car during the shootout, was also arrested and

disarmed, at which time he exclaimed, "Just

remember that I didn't shoot at anybody and I

didn't draw my gun." He was searched and a

tj pistol was found in his belt; a search of

il La Rocca's car uncovered an attache case

containing another pistol and a plastic

box containing ammunition. (Tr. 41). When

iy the car was further searched the following day,

government agents found yet another pistol under

the driver's seat and another box of ammunition

in the glove compartment.

| "Busic, who had been leaning on a nearby

"The jury convicted defendants of conspiring to

distribute drugs, unlawfully distributing narcotics,

| assaulting federal officers with a dangerous

weapon, and receiving firearms while being

convicted felons. In addition, each was convicted

under a different subsection of 18 U.S.C. §924:

La Rocca for having used (emphasis in the original)

a firearm to commit the drug conspiracy and

assaults on federal officers in violation of

§924(c)(1); Busic for having carried (emphasis in

the original) a firearm unlawfully during the

commission of these felonies, in violation of 18

U.S.C. §924(c)(2). The sentencing judge imposed

a five-year sentence on each defendant on the

narcotics counts, five years on the assault with

a dangerous weapon counts, and twenty years under

the §924 counts -- all to run consecutively to

each other -- for a total of 30 years for each

defendant."

| ket

In the Supplemental Opinion Sur Rehearing, the Third Circuit

rejected petition Busic's contention that, as a matter of

statutory construction, 18 U.S.C. §924(c) did not apply in those

cases where the penalty for the underlying felony was ‘already

enhanced for use of a dangerous weapon. The Lower Court held

that Simpson does not proscribe the imposition of consecutive

sentences under 18 U.S.C. §111 and 18 U.S.C. §924(c)(2). The

judgment of sentence as to petitioner Busic was affirmed

(Appendix "C").

As to defendant La Rocca, the Third Circuit, on the

basis of this Court's decision in Simpson, remanded for resen-

tencing. On remand, the Government may elect to proceed under

either 18 U.S.C. §924(c)(1) or 18 U.S.C. $111, but not beth.

Argument

There are three separate reasons why this Court should

grant a Writ of Certiorari and review petitioner's case. First,

the Third Circuit misinterprets and misapplies Simpson v. United

States, and petitiorer is subjected to an additional penalty. *

Secondly, Simpson may not have gone far enough to resolve con-

flicts between the Circuit Courts. There is still ambiguity

concerning the overlap between 18 U.S.C. §924(c) and other

criminal offenses. This ambiguity relates to whether an addi-

tional sentence can be imvosed under 18 U.S.C. §924(c) after a

defendant has already been convicted of an underlying felony

‘%

which carries an enhanced penalty. This Court can clarify Simpson

‘and provide uniformity. Finally, in Simpson, this Court left

open an unresolved issue of great importance. Resolution of this

Double Jeopardy issue is necessary, if petitioner is not entitled

to relief on other grounds of statutory construction. Simpson

* In Counts 17 and 18 of the indictment under §924(c), vetitioner

was charged with carrying a firearm in connection with assaults on

federal officers and drug conspiracies. However, the trial judge

charged the jury that they could. convict on this charge if the

firearm was carried in connection with either offense. The

Opinions of the Third Circuit correctly note that it is impossible

to determine whether or not the jury concluded that Busic carried

a firearm in connection with both felonies. (Appendix "B", foot-

note 5; Appendix "C", vape 2) For examole, the drup, conspiracies

could have terminated by the time of the "shootout". Since the

jury verdict could have been based on the conclusion that the

firearm was carried in connection with the assaults alone, it is

necessary to determine whether such a conviction and sentence

under §924(c) can stand.

‘holds that where a defendant has been convicted of bank robbery

‘with firearms under 18 U.S.C. §2113(d), which carries an enhanced

penalty, and also convicted of using a firearm to commit a felony

| under 18 U.S.C. §924(c), such defendant may not be sentenced

‘under both. The rationale of Simpson relied upon the legislative

history and the language of the bill's sponsor, Representative

Poff, as follows:

"For the sake of legislative history, it should

be noted that my substitute is not intended to

apply to title 18, sections 111, 112 or 113,

which already define the penalties for the use

of a firearm in assaulting officials, with sec-

tions 2113 or 2114 concerning armed robberies

of the mail or banks, with section 2231 concern-

ing armed assaults upon process servers or with

chapter 44 which defines other firearm felonies."

| 114 Cong. Rec. 22232 (1968).

The language states that 18 U.S.C. §924(c) is inapplicable to

‘violations under statutes which already carry an enhanced penalty.

' Although Simpson involves a bank robbery under 18 U.S.C. §2113(d),

|, the sponsor's language specifically includes assaults on federal

| officers under 18 U.S.C. §111.

! The Supplemental Opinion Sur Rehearing of the Third

|| Circuit (Appendix "C") creates an illogical and unreasonabl dis-

i tinction of 18 U.S.C. §924(c), which could result in obvious

| inequities. The Third Circuit reaches a different result in co-

| defendant La Rocca's case and petitioner Busic's case. La Rocca's.

| case is remanded for resentencing under §924(c) or §111, but not

li both; petitioner Busic's case is affirmed. The Lower Court

‘reached this result by distinguishing between subsections

.§924(c)(1) and (2), the distinction between "carrying" and "using"

a firearm. The cited language of Representative Poff speaks of

| the statute as a whole, not divided into subparagraphs. There is

i no rational basis for treating these two subsections separately,

‘nor does it appear that this Court in Simpson intended such a

distinction.

If permitted. the distinction would lead to an absurd

and illogical result. "Users" may receive one sentence; "carriers"

may receive consecutive sentences. This is the impact as to the

,co-defendant in the instant case. There is no dispute that the

goal behind the law is to discourage the use of firearms; the

, interpretation of the Third Circuit imparts a decided lack

of reason to Congress in its statutory scheme when a wholly logi-

‘cal alternative interpretation is available. Representative Poff

‘violations. Obviously, the Lower Court misinterpreted Simpson,

‘and this Court should issue a Writ of Certiorari.

It is still necessary to resolve conflicts between the

said his substitute did not apply to specific violations; §924(c)

is completely logical if interpreted as not to apply to such

lcixoutt Courts either created or left unresolved by Simpson. iu

| The Simpson rationale appears similar but not identical to the

‘Sixth Circuit's decision in United States v. Eagle, 539 F.2d 1166

/(1976). In Eagle, defendant, an Indian, was convicted of assault-

‘ing another Indian on a reservation in violation of 18 U.S.C.

$1153, which carried an enhanced penalty, and using a firearm to

| commit the underlying felony under 18 U.S.C. §924(c). The Eagle

! Ceuee held defendant could not be sentenced or prosecuted for the

1 §924(c) violation. In several places, Simpson appears to agree

{

with the Eagle rationale. In Simpson, the Court states as

‘follows:

"We believe that several tools of statutory

construction applied to the statutes in a case

like the present one -- where the Government

relied on the same proof to support the con-

victions under both statutes -- require the

conclus‘on that Congress cannot be said to

have authorized the imposition of the addi-

tional penalty of §924(c) for comaission of

bank robbery with firearms already subject to

enhanced puots eat onder %7113(d) 2..."

(Citations ommitted) Simpson supra 435 U.S. at

ee. 32, 33

Again the Court states:

". . . to construe the statute to allow the

additional sentence authorized by §924(c) to

be pyramided upon a sentence already enhanced

quoted above, is consistent with Eagle.

comes clouded by Simpson's instructions to the Lower Court on

remand.

under §2113(d) would violate the established

rule of construction that "ambiguity concerning

the ambit of criminal statutes should be re-

solved in favor or lenity." . The legista-

tive history of §924(c) is of course sparse, yet

what there is -- particularly Representaive Poff's

statement and the Committee rejection of the

Dominick amendment -- points in the direction of

a congressional view that the section was intended

to be unavailable in prosecutions for violations

of §2113(d). ..

(Citation ommitted) Simpson supra 435 U.S. at pp. 14, 15

Finally,

x“ - our result is supported by the principle

that gives precedence to the terms of the more

specific statute where a general statute and a

specific statute speak to the same concern,

even if the general provision was enacted later

(Citation ommitted) Simpson supra 435 U.S. at pp. 15, 16

Thus, the rationale of Simpson, especially the language

However, the matter be-

The instructions are as follows:

. Accordingly, we hold that in a prosecu-

tion growing out of a single transaction of bank

robbery with firearms, a defendant may not be

sentenced under both §2113(d) and §924(c). The

cases are remanded to the Court of Appeals for :

proceedings consistent with this oninion . . ."

(Citation ommitted) Simpson supra 435 U.S. at p. 16

The Third Circuit in the instant case says Simnson rejects Eagle.

Petitioner contends that Simonson adopts Eagle.

further clarification.

There is need for

The Fifth Circuit, in United States v. Nelson, 574 F.2d )

|277 (1978), decided after Simpson, attempts to interpret Simpson.

,In Nelson, defendant was convicted of bank robbery under 16 U.S.C.

}§2113(d) and using a firearm to commit a felony under 18 U.S.C.

1, §924(c), and concurrent sentences were imposed.

Simpson consecutive sentences had been imposed,

Because in

the Government

‘attempted to argue that the differences in sentencing, precluded

“Simpson's application.

The Fifth Circuit disagreed and held that

because Simvoson made no reference to the distinction between con-

secutive and concurrent sentences,

Nelson was entitled to have his

§924(c) conviction vacated.

In Simpson, this Court declined to review the Constitu-

tional question based on the applicability of the Double Jeopardy

clause of the Fifth Amendment of the United States Constitution

to the instant case. The holding and rationale instead was based

exclusively on the statutory interpretation and legislative his-

tory of 18 U.S.C. §924(c). As argued in the two preceding argu-

ments, relief can be granted to petitioner based on a statutory

interpretation alone; but if this Court does not grant relief on

this ground, then it can and should reach the the Constitutional

question. Here, petitioner Busic has been sublected to multiple

punishment based on two statutes which are not sufficiently dis-

tinguishable to permit the imposition of cumulative punishment.

Michael M. Busic, respectfully requests

Therefore, petitioner,

that this Honorable Court grant a Writ of Certiorari.

Resvectfully submitted:

GEFSKY, REICH AND REICH

Lees

Samuel J i Reich

1321 Frick Building

Pittsburgh, PA 15219

Attorney for Petitioner

(412) 391-6222

By _-

P —

MICHAEL M. BUSIC and

ANTHONY LaROCCA, JR.,

' of this district and were

ee ee

IN THE UNLTED STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

vs. : Criminal Action No. 76-137

Defendants :

_ OPINION

BARRON P. McCUNE, District Judge

February 4 » Sor?

On July 1, 1976, a 19-count indictment was returned

by the Federal Grand Jury of this district charging the defendants,

Michael M. Busic and Anthony LaRocca, Jr., with various offenses:

conspiracy to possess and distribute about fifty pounds of mari-

juana (Count 1) and one pound of cocaine (Count 2); the distribvu-

tion of 0.3 grams of marijuana (Count 3) and 0.1681 grams of

cocaine (Count 4); using a communication facility (a telephone)

to facilitate the distribution of the above substances (Count 5);

and various weapons offenses and gun possession violations (Courts

6-19). —

subsequent shoot-out with federal agents at the Miracle Mile

These charges arose out of a drug conspiracy and

Shopping Center, Monroeville, Pennsylvania, which took place on

May 13, 1976.

The defendants were tried on these charges before a jury

found guilty —

on September 15, 1976.

eo ee ee | ee ee a ET

ce eo . e e

1/ OF these counts, 7 (Counts 6-11, 13) applied to both defendants,

2 Counts 12 and 19) applicd to LaRocca only, and 5 (Counts 14-18)

applied to Busic only.

2/ The defendant, Lakocea, was found guilty on all 14 charges an

brought against him. The defendant, Busic, was found puilty on 16

of 17 charges breught against him. Busie was found not guilty as

to Count 1/ of the indictment which charged a violation of 18 U.S.C

Sec. 924 (ec).

ee ee ee oe

i —, —_____,_ I, _ >, --___,

SSS Se. S-

Present.y before the court are the defendant's motions

for Judgment of Acquittal and New Trial, After a thorough con-

sideration of the briefs subwitted by the respective parties, and

following, oral argument, we will deny the motions.

The evidence presented by the Governnent during the

trial consisted of the testimony of those federal agents who were

involved in an investigation into the defendants' alleged drug

dealings and who were also present at the May 13, 1974 shoot-out.

The Government's chief witness was Charles D. Harvey, an undercove

agent with the Drug Enforcement Administration, Joint Narcotics

Task Force.

Agent Harvey testified ~ that he first met with the

defendants in the late afternoon of May 7, 1976, at the Monroevill

apartment of Richard Hervaux, a government informant, During that

meeting, it was agreed that Harvey would serve as a driver and woul

transport a quantity of marijuana from Florida to Pittsburgh for

an intended distribution in this area, The next evening, May 8,

1976, a second meeting took place in Hervaux's apartment at which

time the defendant, Busic, did not appear. At this meeting variou

prices for bales of marijuana and a pound of cocaine were discusse

between Harvey and LaRoc a,

Harvey did not mect with the defendants again until the

evening of May 11, 1976, at which time Harvey was given samples

of cocaine and marijuana which he took to the Allegheny County

Crime Lab for analysis,

On May 12, 1976, Leakocca telephoned Harvey on two

occasions, During one of the calls LaRocea supplied Uarvey with

a phone number in Florida so that Harvey could check the final

se ee ore we ne eee © ee ee ee eee re ne. ee ee ee ee eee <ceene c-—

3/ Portions of Harvey's testinony were substantiated by apents

William J, Petraitis, Williaa FL Alfvee and John J, Macready, all

of whom were present at the scene of the shoot-out on May 13, 1976

communicated this to LaRocca.

arrangements for closing the deal. By the time of the second call,

Harvey had booked a flight to Florida under a fictitious name and

Later that day, at 5:30 P.M., Harvey

called Lakocca and was informed by Laocca that he wanted to see

the “purchase money" prior to Harvey's trip. lHarvey agreed to mect

LaRocca the next day and show him the money.

Further, LaRocca instructed Harvey to call one, “Lewis",

in Florida later that evening who would tell Harvey if all arrange-

ments were in readiness, Harvey placed the call at 10:05 P.M. that

night and the arrangements were confirmed,

On May 13, 1976, pursuant to Lanocca's request, Harvey

y P y

called LaRocca at approximately 11:39 A.M., and informed LaRocca

that he had acquired the money and would show LaRocca the money.

They arranged to meet in the Miracle ‘tile Shopping Center in

Monroeville, Pennsylvania, that afternoon, Pursuant to this arrang,

ment, Harvey drove there alone (with surveillance units in support)

and arrived at the designated location around 1:09 P.M. He had

$30,000 of government moncy with him in a brown paper bag locked

in his trunk, LaRocca and Busic arrived in LaRocea's car.

Harvey parked his car in the parking, lot of the shopping,

center and the defendants pulled beside him and parked. Harvey

then drove his car away from LaRocea's to a distance of "one-half

block" away. Harvey then left LaRocea's car, as did LaRocca, and

they met approximately half-way between the two cars, Torether they

walked to Harvey's car and entered it and Harvey drove to the far

end of the parking, lot. During, this time, LaXocca, upon llarvey's

request, took of f his jacket and laid it on the front seat between

them. After they stopped, both Harvey and Latocea got out of the

car, Harvey opened the trunk and the bas, and showed the money to

Lakocea, They then re-entered Harvey's car and proceeded toward

LaNocea's car, At this point, Harvey stated that he glanced down

———S

————S—_—e—eoar

at the seat and noticed "a revolver or a pistol" sticking out from

under LaRocea's jacket, | Harvey again parked about one-half block

away from Lakocca's car for "safety" reasons. LaRocca then went

for his weapon which caused Harvey to junp from his car and walk

rapidly away from it, JaRocca chased him with his coat wrapped

around the gun which he held, caught Harvey, cocked tne gun, stuck

it “in (Harvey's) chest" and demanded the money. La Rocca took

» "oe » , aa 2 } r ; i

Harvey's keys, opened the trunk, took the bag containing the money

and backed away from ilarvey intending to return to his car

At iy point, Harvey gave a pre-arranged signal to the

other agents serving, as surveillance units in this area who bega

to close in on LaRocca. Five shots were fired by LaRocca: one at

Harvey, three at Macready and Ferrara's vehicle, two of which stru¢

the passenger door; and one at Petraitis and Alfree's vehicle

‘hicle,

which skimmed off the hood of the car and struck the windshield

- : ere

head high." Within moments, LaRocca was arrested,

During, this time, Busic was not involved in the gun

fire. He testifiex : » he en 4 F

He testified that he ae’ ep n in the shopping center pur-

chasing, a pack of cigarettes, —- He was arrested in the parking

lot. A Beretta was found in his possession, Prior to his arrest

. -] natecd: I) . vr . £

he stated: "Just remember that I didn't shoot at anybody and I

didn't draw iny gun."

. — es oer

4/ The other agents were: Petraiti

; ng, s : ‘traitis and Alfree; Morgan and Tate;

Macready and Ferrara, . "an

5/ The gun which LaRocea was using, was a 330 caliber Beretta whict

had a capacity of seven rounds, Upon analysis, it was determined

that five rounds were fired, two rounds remained in the gun and it

remained cocked and ready to fire, Three sinell casings ere also

found in the parking let. One round was removed froma Lincoln

Continental parked nearby. oir

6/ This aspect of the evidence was not conclusively proven through

the test imony of Mary Lou Caliyuri, a cashier at the Thrift Drag)

Store, Miracle Nile Shopping, Center, Moaroeville, Penasylvania ss

(TT. 378-380), although Busic so testified (TT. 410-411).

After the arrests were made, agent Petraitis looxed into

LaRocea's car and observed a black briefcase, which was open, on

the floor in front of the passenger's seat. Upon an inspection of

the briefcase, he discovered a seni-automatic Ruger pistol with

a large cylinder (silencer) attached to the muzzle, Also found

in the briefcase were two full magazines and a plastic box con-

taining ammunition, ‘The next day, an inventory search of the

automobile was conducted, A box of 83 caliber amnunition was

found in the glove compartment, and blackjacks and "noon choca"

sticks were found in the trunk, Another Ruger, with a silencer

attached, was found on the floor of tie autonobile under tne

driver's seat.

The defendant, Busic, testified on his own behalf to the

effect that Richard Hervaux initiated tne narcotics deal wita

the sole purpose of stealing the "front money" from Harvey, and

represented to agent Harvey that the defendants were representative

of a drug dealer in Florida, Further, Busic testified that by

May 12, 1976, he and LaRocca had decided to back out of the deal

but Hervaux was persistent about them going to the shopping center

on the 13th in order to take the money from Harvey. In effect,

Busic attempted by his testimony to show that he and LaXocca were

victims of the Government's entrapment perpetrated ‘by agent Harvey

and the informer, Hervaux.

This entrapment defense was contradicted by the Govern~

ment's rebuttal witness, Curwood Masters, a special agent for the

Bureau of Alcohol, Tobacco and Firearms, United States Treasury

Department, who testified that from 8:10 P.M. until 9:15 Pad. oa

May 5, 1976, two days prior to Harvey's initial meeting, with the

SE TT — a ees ——— EE TT

7/ Nervaux was not called by cither the governnent or the defendant

Fred C. Koertner, the court-appointed private invest igator for Busi

stated that he knew Hervaux's address, bad been to his apartment

twice, that Hervausx had tried to call Koerhuer without success and

Koerbner had been unable to serve a subpoena, lMowever, although he

had been appointed during, the first week of August, 1976, he had ne

tried to serve a subpoena until Friday, September 10, 1976, after

trial was underway. Trial beyxan September 3, 1970. Xoverhner tries

again Sunday night, September 12, 1976.

ee ON ee ee me mee ee meee ee Oe

—«

defendants, he was forced to hide in the closet of Hervaux's

apartment (when he happened to be there when LaRocca unexpectedly

dropped in) and wnile so located, overheard a conversation between

LaYocca and Hervaux. He testified that LaRocca, and not Hervaux,

initiated a conversation concerning narcotics and tnat LaRocca

approached Hervaux about buying marijuana at that time,

With this factual background established, we turn to a

consideration of the various argwnents advanced by the respective

defendants.

Pretrial Rulings

With regard to this court's pretrial rulings, ?* rendant:

advance three contentions. First, both defendants allege that

this court's refusal to sever the trials of the defendants

consituted error. Second, they allege error in this court's

refusal to sever their trial on firearms charges from the other

counts of the indictment, thereby permitting, the Government to

prove both defendants’ prior criminal convictions. Thirdly, they

contend that this court erred in refusing, to grant a continuance

to them when the court-appointed investigator required additional

time to track down recently discovered leads bearing on their

entrapment defense. We disagrec with all of the above contentior

The tests for joinder of counts and defendants are

found in Rule 8(b) of the Federal Rules of Cr iminal Procedure.

See, United States v. 496 F.2d 723, 729, fn. 3 (3d Cir.

Somers,

1974), cert den, 419 U.S. 832, 95S. CL. 55, a2: 4.. Bd, 28 So (27,

Kule &(b) provides:

"(b). Joinder of Defendants, Two or

more defendants may be charged in the save in-

dictment or informition if they are alleged to

have participated in the samo act or transact ion

or in the sane series of acts or transactions

constituting an offense or offenses. Such defen

dants may be charged in one or more counts toe

eether or separately and all of the defendaats

necd not be charged in each count."

~6-

“= oe

——— we

~-« ‘

The severance of offenses or defendants is a matter

committed to the discretion of the trial court and will not be

indictment We disapree , , ; ‘ P :

ae ictment. We disagree. As to Counts 1 and 2, a review of the

' disturbed absent a clear showing that this court abused that a Agee

| 5 a7 & ; : i record reveals that the evidence presented was more than’ sufficie

iseretion. United States v. Armocida, 515 F.2d 29, 46 i : , ;

\ simmers See , ihe (3d Cir. to establish that a conspiracy to distribute drugs existed Agent

1975), cert. den., 423 U.S. 358, 96 S. Ct. 111, 46 L. Ed. 2d 34 . aa " } :

) es ’ " Harvey's testimony, as substantially summarized, supra, clearly

il c n none

| (1975). reveals that the defendants did mect and conspire together, from

t , ‘

. . Ae May 7, 197 Mz 76 Yee as ee

| In the instant case, the various criminal acts, including y 7, 1976, to May 13, 1976, for the purpose of ultimately posses

. : m : Tpag ae oh ing and distributing certai es for ~ ' ms

\ the firearms violations, charged in tne indictment which were 4 6 tain drugs for their own profit.

supported by the evidence, revealed a common criminal scheme in As to Count 5, defendants contend that since the d

- > ~-k « » . € ne rug

which the defendants jointly participated. Thus, this Sourt transactions were never completed, 21 U.S.C. Sec. 843(b) was not

properly exercised its discretion in permitting the counts and violated, In support they cite United States v. Leslie, 411 F

\ the defendants to be tried together. Sec, United States v. Stringi bia — '

& = | Supp. 215 (D. Del.. 1976). Our research indicates that this is

378 F. 2d 896 (3d Cir. 1967), cert. den, 389 U.S. 846, 88 S. Ct. ri ame . Mn .

: | the only case to date which has discussed this particular issue.

100, 19 L. Ed. 2d 113 (1967). 4 However, we cannot agree with the decision of that court. In

: . . . . ‘ : Count 5, certain violations of S ' RY,

Defendants’ third contention 1s likewise without merit 4 lations of 21 U.S.C. Sec. 3846 were alleged.

, 3 These violations of Se 346 are fe eee : ,

for two reasons. First, Fred C. Koerhner, the court-appointed c. 846 are felonies within the meaning of

> 4,7 Ss o . ,eTry +374;

private investigator for the defendant, Busic, had all of a month Sec. 843(b). Thus, although actual distribution never took place,

, , , , wae P , the evidence was sufficient » shor ee on

to investigate and was permitted to continue his investigation sient to show that certain acts proscribed

| by Sec. 846 and punishable under Sec. 843(b), took place, and,

| therefore, Sec. 843(b) was violated. See United States v. Turner

during, the defendants' trial (TT.6). Although he was unsuccessful

in serving Richard Hervaux, he did not try to serve him until

SS SS SS Se or=

528 F.2d 14: 5 45, oe te a ia e

trial was underway. Second, the entrapment defense was sufficient] 143, 165 (9th Cir, 1975). We, therefore, find no merit

in def Ge -s' eMwme > 2c “ha on tena 7 M4 P *

raised by Busic's testimony without Koerhner's investigatory sigienaas arguments as to the charges contained in Counts 1,

‘ ae : 2 end 5.

assistance. HWervaux was an inrormant but he was well known to

Ja/

both defendants. Further, we were required to try defendants

' speedily. Firearms Violations

The Conspiracy Counts ‘ , Y

' ee her a> ee ae a Both defendant Ss, an their post -trial mot ions for

: : : ; ; Judgment of Acquittal nte his he evidence 7 ie

Both defendants, in their post-trial motions for | f i 11, contend that the evidence presented by the

Judgment of Acquittal, contend that the evidence presented by the an cn rn ne orn — SE Te EN aT IE

8/ Section 343(b) of Title 2) F t} : Ces. . .

3 ‘Y ’ Sere IAS ere Las ficient t ablis ' <i ily , eeiiade ) ELELO '¢ of the United States Code provides

Government at. tri Ll was le gally jnsufficient to establish tne in pert inent part: ae | \

| oan eee Os "it shall be unlawful for any person knowingly or inten-

existence of a conspiracy as Canny d in Counts 1 and 2 of the | tionally to use any pacarclea ny Se F racility papel pe pet

7 ae tne eet or’ in causing, or facilitatine the coruission of any net

Ja/ Wervaux is a motoreyele dealer. Incidentally, Curwood Masters or acts constituting a felony under any provision of (rite

had gone to Hervaux's apartment to discuss a motorcycle. 21, respecting Drug, Abuse Prevention and Control)

Kach separate use of a communication facility shall be a

separate oftense under this section, . . .(TYyhe term “cone

poral nedear Facility”. » « dncludes. . .(the) telephone. . nn

auphasis supplied),

Government at trial was legally insufficient to establish their

guilt on the firearms violations as charged in Counts 13-16 of

the indictment. They contend that, as to all of these counts,

—<—— eee

the evidence failed to establish a sufficient nexus with foreign

and/or interstate commerce. Further, with regard to Count 13,

they contend that the evidence failed to establish (1) that LaRocca

was aided and abetted by Busic in receiving a firearm, and (2)

the time and venue of LaRocca's receipt of the firearm. We must

disagree with the above contentions.

10/

and 924(a), arising out of LaRocca's receipt (aided and abetted

by Busic) of a .22 caliber long rifle, Strum-Ruger Standard, semi-

automatic pistol, serial number 11-87863, which had been trans-

ported in interstate commerce, His receipt of this pistol occurred

subsequent to two convictions of March 16, 1970 and December 12,

1973, and his release from prison on January 12, 1976.

The record reveals that Busic purchased this pistol on

April 5, 1973, from Gerald Braverman, Vice-President of Braverian

Arms Company, Wilkinsburg, Pennsylvania (TT. 98), and that this

pistol was manufactured in Southport, Connecticut (TT. 99). Sudse-

quent to Busic's purchase of this pistol, this weapon was found in

LaRocca's possession, The evidence thus revealed that

LaRocca received this weapon after its interstate shipment and

‘roms the Western District of Pennsylvania. We believe that this

9/ Section 922(h) provides, in pertinent part:

a "(h) It shall be unlawful for any person ~~

(1) who is under indictment for, or who has been con-

victed in any court of, a crime punishable by imprisonment

for a term exceeding, one year;. . . to receive any

firearm or ammunition which has been shipped or trans-

ported in interstate or fereign commerce,"

10/ Section 924(a) provides, in pertinent part:

— ~~ "(a) Whoever violates any provision of this chapter. ..

shall be finetnot more than $5,000, or imprisoned not

more than five years, or both. . . ."

«>

Count 13 charged violations of 18 U.S.C. Sections 922(h)

a —

SSS Se eee occ

——SS oa eee

evidence was sufficient to show the time and venue of receipt by

LaRocca of this weapon,

Counts 14 through 16 applied to Busic only and charged

violations of 18 U.S.C. Sec. 1202(a)(1). AL Count 14 concerned

Busic's possession of a Beretta which he was carrying at the time

of his arrest. Counts 15 and 16 concern his possession of two

Strum-Rugger pistols, As to these three counts, Busic contends th

there was no showing of a recent interstate nexus as to the offens

of possessing as required by United States v. Bass, 404 U.S. 336

92 S. Ct. 515, 30 L. Ed. 2d 488 (1971).

It is clear that with regard to Counts 14 - 16, Busic's

conviction cannot stand unless an interstate nexus is shown,

United States v. Bass, supra. Our research of the law reveals

that the Third Circuit has not (to date) discussed or ruled upon

the "possession" offense of Sec, 1202(a)(1). However, on two

occasions courts of this district have addressed this issue. Unit

States v. Graves, 394 F. Supp. 429, 434 (W.D. Pa. 1975); United

States v. Letky, 371 F. Supp. 1286, 1289-90 (W.D. Pa. 1974). Ia

both cases it was noted, citing, Bass, that as to the offense of

possessing, the interstate commerce requirenent is satisfied if

it is shown that at the time of the possession, the firearin was

moving, interstate, or on an interstate facility, or if the posses

sion affected commerce. Further, both of these cases held that

this interstate comnerce requirement was met by proof that at any

time prior to possession the firearm hac traveled in interstate

11/ Section 1202(a)(1) provides:

"(a) Any person who - -

(1) has becn convicted by a court of the United States

or of a State or any political subdivision thereof of a

felony, . . . and who receives, possesses or transports

in cowaerce or affecting, cownerce, after the date of enact-

ment of this Act, any firearm shall be fined not more than

$19,000 or imprisoned for not wrethan two yetrs, or both.”

-)0-

SaaS ee

commerce. We believe that the evidence presented by the Governmen:

at trial was sufficient to satisfy the interstate comnerce requires

ment enunciated in Bass, and set forth in cases within this Dis-

trict.

Assault Charges

Busic contends in his motion for Judgment of Acquittal

that the evidence was legally insufficient to establish his parti-

cipation with LaRocca in the assaults on the federal officers

who were involved in the shoot-out of May 13, 1976, as charged

in Counts 6 and 7 of the indictment, in violation of 18 U.S.C.

Sections 2, lil, 1114.

Busic argues that when the defendants went to the shoppii

center on May 13, 1976, for the purpose of robbing Harvey, only

| LaRocca perpetrated the actual assault on Harvey and the other

supporting agents; and that Busic never participated in these

actions, nor did he draw or fire his weapon. Thus, he argues that

' although the evidence supports a finding of|a conspiracy by Laocce:

and Busic to rob and assault ilarvey, it does not support a finding

that he conspired with LaRocca to assault the other officers prese:

at the scene. Therefore, he asserts that it was error for this

court to charge the jury under Pinkerton v. United States, 328

U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), that these “addi-

tional" assaults were in furtherance of their original conspiracy

to possess and distribute drugs. We disagree.

We believe that ‘LaRoeca's acts are attributable to Busic.

The evidence is clear that the defendants conspired and made

arrangements with certain individuals in Florida to obtain a

certain quantity of marijuana and cocaine for the purpose of

distributing these drags in the Pittsburgh area, Agent tlarvey was

-)]-

eae eee ae SS SSS SS SS ee

originally asked to transport these narcotics for them from Flori

to Pittsburgh. After Harvey showed an interest in possibly obtai

ing, a quantity of these drugs and offered a sum of money for thei

purchase, the defendants conceived of a scheme to rob ilarvey on M

13, 1976.

To say that their assault on the federal officers was n

in furtherance of their original conspiracy relating to tne obtai

ing and distributing of drugs is completely contrary to the evi-

dence presented, Harvey was present at the shopping center only

the purpose of showing them the "front money" for the purchase of

the discussed drugs. The arrangements for the sale, the Florida

tripand the notice of the trip to the defendants' drug connectior

in Florida had been made. All that was left to be performed was

the trip itself and the payment by Harvey. At any rate, the cas!

which Harvey brought with him that day was to be used for the

intended purpose of purchasing the drugs previously discussed,

Harvey, himself, was not certain that a robbery was to occur, but

was required to protect himself and the government money. Clear

the evidence presented a continuing conspiracy, and the intended

robbery of Harvey by the defendants on May 13, 1976, was in furt

ance of their original drug conspiracy. ‘Therefore, although Bus

did not physically participate in the shoot-out and assaults, he

was and remained as much a part of the original conspiracy as we

LaRocca, and is, thus, just as responsible for

the actions of

LaRocca in the assaults on the other federal officers involved =<

LoRocca is. The jury was entitled to infer that if defendants |

stolen the money they could have uscd it to buy the drugs for

themselves.

For these reasons, we likewise find no merit in Busiec

argument that the evidence wes insufficient to establish that h

unlavfully possessed a firearm and part icipated in the various

SS SSS

felonics, including the assaults on the federal officers, as

charged in Count 18 of the indictment, which charged a violation

of 18 U.S.C. Sec. 924(c), a separate offense which forbids the

carrying of a firearm during the commission of any felony prose-

cutable in federal court.

Entrapment

The defendants’ arguments in support of this defense

revolve around the actions of the government's informant, Richard

Hervaux, prior to May 13, 1976. During the various meetings

involving the defendants and agent Harvey, which took place in

Hervaux's apartment, Hervaux was always present.

In support of an entrapment defense, Busic advances the

following, argument: that he testified that it was Hervaux that

conceived the plan to rob Harvey on May 13th under the pretext

of selling him drugs, and that Hervaux, not the defendants, pro-

vided the quantities of marijuana and cocaine which were given

to Harvey; moreover, although Busic readily admitted a plan to

rob Harvey, he continually denied that he was involved in a scheme

to transport and sell large quantities of cocaine and marijuana

from Florida. We find no merit in these arguments.

The most recent pronouncement by the Supreme Court con-

cerning the defense of entrapment is found in Hampton v. United

States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976),

wherein the following is stated:

"If the result of the governmental activity

is to ‘implant in the mind of an innocent person

the disposition to comuit the allesed offense and

induce its commission. . . ,* the defendant is

protected by the defense of entrapment."

425 U.S. 490, 96S. Cr. 1650. This court properly charged on

«13.

SSeS as

entrapment ia the manner set forth in 1 E. Devitt & C. Blackmar,

Federal Jury Practice and Instructions, Sec. 13.13 (2d Ed. 1970,

1975 Supplement) which was cited with apparent approval by this

Circuit in United States v. Silver, 457 F.2d 1217, 1220 (3d Cir.

1972), and later expressly approved in Government of Virgin Isla

v. Cruz, 478 F. 2d 712, 717, n.5 (3d Cir. 1973), and United State

| v. Watson, 489 F.2d 504, 506 (3d Cir. 1973).

The jury had ample evidence before it that the defendai

LaRocca, initially approached Hervaux on May 5, 1976, concerning

a possible purchase of marijuana. When Busic entered into nego-

tiations and discussions which began on May 7, 1976, and lasted

through May 12, 1976 their contact in Florida had been establis!

and all plans had been made for Harvey's trip to Florida to obta

quantities of marijuana and cocaine and distribution of these dr

in this area. Although Busic testified that Hervaux initiated

the discussions conerning, the drugs, the testimony of Curwood

Masters sufficiently rebutted this line of testimony and the jur

was justified in believing that the defendants had the predis-

position to devise the scheme for the drug purchase and carry ou

plans to that end. Therefore, the defendants’ entrapment argu-

ments are without merit.

Jury Charge

Both defendants advance three essential arguments on

their post-trial motions. First, they contend that the court

incorrectly charged the jury regarding the firearms charges

involving, their movement in interstate commerce by stating, that

this element was satisfied if the evidence showed movement in

forcign or interstate commerce at any time. Second, they conten

that the court erred in refusing to charge the jury regarding, th

Government's failure to eall Richard Vervaus, a government in-

formant and essential witness, who was peculiarly under the

Government's control. ‘Thirdly, Busic contends that with regard to

the assault charges, this court erroneously charged the jury to

the effect that he was guilty of the assaults if he went to the

shopping center as part of a conspiracy to rob Harvey and did not

withdraw. LaRocca advanced a similar argument with regard to the

i conspiracy charges against him, namely that this court erroneously

charged the jury that a conspiracy to rob Harvey was merely a

continuation of an ongoing conspiracy to distribute drugs. We

are compelled to reject the first and third arguments for the

reasons stated earlier in this opinion.

Only the second argument deserves a brief comment here.

Hervaux would have indeed been an important witness in this case.

However, he was not, as defendants contend, peculiarly under the

Government's control. He was available to be called by either

party. In fact, the defendants knew his address and, through

Koerhner, attempted to subpoena him without success. We do not

believe that the Government's failure to call Hervaux as a witness,

therefore, justified a charge to the effect that Hervaux's testimon

would have been adverse to the Government if he had been called.

We thus find no merit in this argument by defendants.

We likewise find no merit in the defendants’ remaining,

contentions, and therefore dismiss their motions for Judgment of

Acquittal and New Trial.

An appropriate order follows.

y Df fife ppp

"YD py py Vfl EY fill

__ LYE MMMOCEMEE

BARRON P, McCUNE

UNITED STATES DISTRICT JUDGE

ee: Counsel of record.

tts

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF PENNSYLVANTA

UNITED STATES OF AMERICA

vs. : Criminal Action No. 76-137

MICHAEL M. BUSIC, and

ANTHONY LaROCCA, JR.,

Defendants

ORDER

AND NOW, February 17, 1977, the defendants’ Motion for

Judgment of Acquittal and New Trial are hereby denied. Imposition

of sentence is fixed for March 11, 1977, at 3:00 P.M. in Court

Room No. 10.

/ be0 19 WHET th

| BARRON P. McCUNE

| UNITED STATES DISTRICT JUDGE

cc: Thomas A. Crawford, A.U.S.A.

633 United States Courthouse

Pittsburgh, Pa. 15219

Samuel J. Reich, Esq.

Suite 1322, Frick Building

Pittsburgh, Pa. 15219

Michael A. Litman, Esq.

Hickton, Dean, Litman, Tighe & Lilly

308 Frick Building,

Pittsburgh, Pa. 15219

UNITED STATES COURT OF APPEALS

FOR THE THLERD CIRCUIT

Nos. 77-1375

77-1376

UNITED STATES OF AMERICA,

Appellee,

MICHAEL BUSIC,

Appellant.

UNITED STATES OF AMERICA,

Appellee,

Vv.

ANTHONY LA ROCCA, JR.,

Appellant.

Appeal from the Judgment and Conviction

of the United States District Court

for the Western District of Pennsylvania.

Argued October 21, 1977

Before Van Dusen and Rosenn, Circuit Judges,

and Stern,” District Judge

Samuel J. Reich,

1322 Frick Building

Pittsburgh, Pennsylvania 15219

Attorney for Appellant Busic

OPTNION OF THE COURT

pore (Filed WAN 5 1973 )

STERN, District Judge

On this appeal we must decide whether a defendant may receive

consecutive sentences for the crime of assault with a dangerous

weapon [18 U.S.C. §111]) and the crime of use of a firearm to commit

that felony [18 U.S.C. §924(c)(1)], where the dangerous weapon used

in the assault is a firearm. We hold that such sentencing violates

the double jeopardy clause and we remand La Rocca's case to the dis-

trict court for re-sentencing.

Defendants also cite as error the trial court's refusal to sever

for trial those counts of the indictment which required proof of de-

fendants' prior felony convictions. We hold that, on the facts of

this é¢ase, the refusal to sever those counts was harmless error. The

other challenges raised by defendants, including the contention that

the trial court erred in refusing to give a “missing witness" instruc-

tion, we find to be without merit and, thus, we affirm defendants'

convictions in all other respects.

As the record at trial reveals, Michael Busic and Anthony

La Rocca were involved in a conspiracy to distribute drugs which

turned into an attempt to rob "front money" from an undercover agent.

This attempted robbery culminated in a shootout with Federal agents.

On this appeal, we must view the evidence in the light most

Michacl] A. Litman, Esquire favorable to the government. See Glasser v. United States, 315 U.S.

308 Frick Building

Pittsburgh, Pennsylvania 15219 60 (1942). Thus viewed, the evidence might be summarized as follows.

Attorney for Appellant La Rocca

Charles D. Harvey, an agent of the Drug Enforcement Administration,

Blair A. Griffith

United States Attorney first met Busic and La Rocea on May 7, 1976 at the home of Richard

Western District of Pennsylvanla

By: Thomas A. Crawford, Jr., Esquire llervaux, a government informant. At this time, defendants agreed

Assistant U.S. Attorney

633 U.S. Post Office & Courthouse

Pittsburgh, Pennsylvania 15219

Attorney for Appellees

with Harvey that Harvey would go to Florida to purchase drugs from

one of the defendants’ suppliers for re-distribution in the Pittsburg

area. (Tr. 21-22). Several days later, Harvey again met with the

* Herbert J. Stern, United States District Judge for che District

of New Jersey, sitting by designatton,.

APPENDIX “Q:

De, OOOO TT

defendants and received samples of the marijuana and cocaine which

he was to purchase from defendants" Florida source. (Tr. 29-30).

The next day, after Harvey had arranged for his trip to Florida,

La Rocca called him and insisted on seeing some “front money". A

meeting was arranged for the following day in the parking lot of

the Miracle Mile Shopping Center in Monroeville, Pennsylvania. (Tr.

32-33). !

/ As agreed, but having arranged for surveillance, Harvey went to

the shopping center with $30,000 in cash. (Tr. 34-35). There he

saw Busic and La Rocca in La Rocca's car. (Tr. 36). La Rocca entered

Harvey's car, and the two drove to the other side of the parking lot.

(Tr. 39). As Harvey removed the money from the trunk, La Rocca reached

for his gun. Harvey ran, but La Rocca caught him and pointed his gun

at Harvey's chest. Harvey then gave a pre-arranged signal to the

surveillance agents. As the agents began to converge on the scene,

La Rocca fired at Harvey, and missed. La Rocca then fired two shots” -

at the vehicle containing agents William Alfree and William Petraitis, and two shots

at the vehicle containing agent John Macready. (Tr. 40). He was immediately

arrested and disarmed,

Busic, who had been leaning on a nearby car during the shootout,

was also arrested and disarmed, at which time he exclaimed, "Just

remember that I didn't shoot at anybody and I didn't draw my gun."

He was searched and a pistol was found in his belt; a search of

La Rocca's car uncovered an attache case containing another pistol

and a plastic box containing ammunition. (Tr. 41). When the car

was further searched the following day, government agents found yet

another pistol under the driver's seat and another box of ammunition

in the glove compartment. ) (Tr. 44).

In addition to evidence regarding the conspiracy and subsequent

shootout, the government also introduced in its case-in-chief evidence

of defendants’ prior convictions for the purpose of proving that de-

fendants were convicted felons and, thus, had received firearms in

violation of 18 U.S.C. §922(h). Counsel for the defendants stipu-

lated that Busic and La Rocca had been jotntly convicted in 1973

for assault on two federal. officers, theft of government property

and use of a firearm to commit these felonies. These convictions

were introduced through the testimony of agent Petraitis and the

actual certificates of conviction, although the government was not

permitted to elicit the facts underlying these convictions. (Tr. 195).

/ Defendants raised the defense of entrapment. Busic took the

staud on his own behalf, claiming that Hervaux had initiated the scheme

to rob Harvey and further claiming that, déspite his and La Rocca's

efforts to back out of the scheme, Hervaux had urged them on. (Tr.

388-414). La Rocca did not himself testify, but called his common-

law wife, Janna K. Sam, who testified that La Rocca avoided the re-

peated phone calls he received from Hervaux during the time period

in question. (Tr. 470-472) In addition, defendants attempted to

show the unavailability of Richard Hervaux, through the testimony

of their court-appointed investigator, Fred Koerhner, who testified

that he had twice attempted, unsuccessfully, to serve Hervaux. (Tr.

381). At this time, the government offered itself to serve Hervaux,

but defense counsel declined the offer. (Tr. 385-386). Defendants

requested, and were denied, a "missing witness instruction" which

would have instructed the jury that it was entitled to draw an adverse

inference based on the government's failure to call Hervaux to the

shnod.j

[the jury convicted defendants of conspiring to distribute drugs,

unlawfully distributing narcotics, assaulting federal officers with

a dangerous weapon, and receiving firearms while being convicted

felons. In addition, each was convicted under a different subsection

of 18 U.S.C. §924: La Rocca for having used a firearm to commit

the drug conspiracy and as#aults on federal officers, in violation

of §924(c)(1); Busic for having carried a firearm unlawfully during

the commission of these felonies, in violation of 18 U.S.C. §924(c) (2).

The sentencing judye imposed a five-year sentence on each defendant

on the narcotics counts, five years on the assault with a dangerous

weapon counts, and twenty years under the §924 counts -- all to run

consecutively to each other -- for a total of 30 years for each

defendant.

Defendants' first and most formidable challenge is directed

ot 18 U.S.C. §924. That statute penalizes a person who either:

(1) uses a firearm to commit any felony

for which he may be prosecuted in a court of

the United States, or

(2) carries a firearm unlawfully during

the commission of any felony for which he may

be prosecuted in a court of the United States.

18 U.S.C. §924(c) (Emphasis supplied). The statute further provides

for a mandatory sentence of one-to-ten years for — offenders, and

two-to-twenty-five years for subsequent offenders.

Busic was indicted, convicted and sentenced under subsection (2)

of this statute for having carried a firearm unlawfully during the

commission of two federal felonies: drug conspiracy and assault on

federal officers; La Rocca was indicted, convicted and sentenced

under subsection (1) for having used a firearm to commit these same

owes os

felonies. In addition, each defendant received consecutive sentences

1/ The full text of 18 U.S.C. §924(c) provides as follows:

(1) uses a firearm to commit any felony

for which he may be prosecuted in a court of

the United States, or

(2) carries a firearm unlawfully during

the commission of any felony for which he may

be prosecuted in a court of the United States,

shall, in addition to the punishment provided for the com-

mission of such felony, be sentenced to a tern of imprison-

ment for not less than one year nor more than ten years.

In the case of his second or subsequent conviction under

this subsection, such person shall be sentenced to a tern

of imprisonment for not less than two nor more than twenty-

five years and, notwithstanding any other provision of law,

the court shall not suspend the sentence in the case of a

second or subsequent conviction of such person or give him

a probationary sentence, nor shall the term of imprisonnent

imposed uncer this subsection run concucrently with any tern

of inprisonment imposed tor the commission of such felony.

under the enhanced penalty provision of 18 U.S.C. §111 for having

assaulted federal officers with a "dangerous or deadly weapon."

Defendants argue that conspiracies to commit drug offenses

(21 U.S.C. §846) and assaults on federal officers (18 U.S.C. §111)

are net "felonies" within the unenian of 18 U.S.C. §924(c). We

disagree.

Section 924, Title 18, is part of the Gun Control Act of 1968,

enacted in the wake of the political assassinations of that decade.

The purpose of that legislation was "to strengthen Federal controls

over Saterstate and foreign commerce in firearms and to assist the

states effectively to regulate firearms traffic within their borders."

H. Rep. No. 1577, 90th Cong. 2d Sess., reprinted in (1968) U.S. Code

Cong. and Ad. News 4410, 4411. Toward that end, Congress enacted —-

18 U.S.C. §924(c)(2) which makes it a federal crime to possess an

unregistered firearm, federal jurisdiction being predicated upon

commission of a federal felony while in possession of such a weapon.

The statutory scheme shows that Congress was concerned not only about

persons who possess unregistered firearms, but also about persons who,

although in lawful possession of a firearm, use it to commit a federal

felony. See 114 Cong. Rec. 22235-7 (1968). Thus, in subsection (1)

2/ Title 18 U.S.C. §111 provides for a sentence of up to three years

for simple assault; up to ten years where an assault is committed with

a "deadly or dangerous weapon":

Whoever forcibly assaults, resists, opposes,

impedes, intimidates, or interferes with any per-

son designated in section 1114 of this title while

engaged in or on account of the performance of his

official duties, shall be fined not more than

$5,000 or imprisoned not more than three years,

or both.

Whoever, in the commission of any such acts

uses a deadly or dangerous weapon, shall be fined

not more than $10,000 or imprisoned not more than

ten years, or both.

of the statute, Congress created a crime separate from that created

in subsection (2), making it a federal crime to use a firearm --

whether registered or unregistered -- to commit a federal felony.

In view of the broad objectives of the legislation, we cannot

agree with defendants that the term "felony" in §924(c)(1) should be

narrowly construed so as to exclude narcotics conspiracies and as-

saults on federal officers. The construction urged by defendants

would limit the ambit of subsection (2) whose purpose was to reach

the unlawful possession of all firearms, with commission of a federal

felony being merely a jurisdictional linchpin. Accordingly, we hold

that §924 emcompasses the federal felonies with which defendants were

charged.

A different question is posed, however, as to whether the double

jeopardy clause protects a defendant from being convicted both of the

3/ That Congress intended the term "felony" to be broadly construed

finds support in the legislative history of §924. During the House

debates on the bill, Representative Casey proposed a version that

would have limited the operation of the statute to certain enumerated

violent crimes. See 114 Cong. Rec. 21061-3; 21765-5. The rejection

of this version suggests that Congress did not wish to thus limit the

statute. Indeed, in keeping with the ambitious purposes of the statute,

$924 has been applied to a broad range of felonies. See, e.g., United

States v. Howard, 504 F.2d 1281 (8th Cir. 1974) (counterfeiting);

United States v. Ramirez, 482 F.2d 807 (2nd Cir.), cert. denied, 414

U.S. 1070 (1973) (narcotics of feg@pes conspiracy); United States v.

Sudduth, 457 F.2d 1198 (10th Cir. 1972) (sale of heroin).

The only suggestion to the contrary is the remarks of Represen-

tative Poff, the bill's sponsor, that:

For the sake of legislative history, it should be

noted that my substitute is not intended to apply

to Title 18, Sections 111, 412, or 113 which al-

ready define the penalties for use of firearms

in assaulting officers, with Sections 2113 or 2114

concerning armed robberies of the mail or banks,

with Section 223] concerning armed assaults upon

process servers or with Chapter 44 which defines

other felonies.

114 Cong. Rec. 23904-5 (1968). Although a strong statement by the spon-

sor of a bill made expressly for the sake of legislative history carrics

great weight, it is not necessarily dispositive and we need not narrowly

construe this statute -- which by its language and legislative history was

obviously intended to be broad in its reach -- on the basis of this state-

ment.

crime of use of a dangerous weapon to assault a federal officer

(1S U.S.C. §111) and use of a firearm to commit that felony [18 U.S.C.

§924(c)(1)). On this, there appears to be some disagreement anong

the circuits.

In United States v. Eagle, 539 F.2d 1166 (8th Cir. 1976), cert.

denied, 97 S.Ct. 1146 (1977), defendant, an Indian, was convicted of

assault with a dangerous weapon upon the person of another Indian on

a reservation, in violation of 18 U.S.C. §1153. The defendant was

also convicted for use of a firearm to commit the offense, as pro-

scribed by 18 U.S.C. §924(c) (1). The Eighth Circuit avoided the

double jeopardy issue, holding as a matter of statutory construction

that Congress did not intend Section 924 to encompass statutes that

already provide for added penalties where weapons are used. In so

holding, it relied on the remarks of Representative Poff, the bill's

sponsor, that §924 should not be construed to encompass felonies for

which there is already an added penalty for the use of a weapon. See,

114 Cong. Rec. 23904-5 (1968).

In United States v. Crew, 538 F.2d 575 (4th Cir. 1976), cert.

denied, 97 S.Ct. 144 (1977), defendant was convicted under 18 U.S.C.

§2113, the federal bank robbery statute which, like 18 U.S.C. §111,

provides for an enhanced penalty where a “dangerous weapon" is used.

He was also convicted under §924(c)(1) for using a firearm to commit

that felony, and under §924(c)(2) for carrying a firearm unlawfully

during the commission of that felony. He received consecutive sen-

tences under each of these three counts. The Fourth Circuit held

that conviction and consecutive sentences under both §2113 and §924

requires proof of different elements: -

In order to sustain a conviction under

Section 2113(d) the government must establish

that the perpetrator assaulted a person, or

jeopardized the life of a person, by using a

dangerous weapon oc device during the commis-

sion of the robbery. In comparison, in order

to sustain a conviction under Section 924(c)

the government must establish that the perpe-

trator used or carried a firearm during the

commission of a felony. The appellants would

have us equate “ustug a dangerous weapon or

device" with “used or carried a firearw" and

find that the prohibition against double jeo-

pardy has been violated. However, it is clear

that Congress never intended to equate these

terms,

The passage of Section 924(c) was a

Congressional reaction to demands for "gun

control" in the wake of political assassina-

tions. It is a narrowly drawn statute intend-

ing to discourage a felon from using or car-

rying a firearm, and does not encompass the

use of any weapon or device during the course

of a bank robbery which jeopardized the lives

of others. Therefore, the offenses are not

identical in law and fact, and the separate

sentences under Sections 2113(d) and 924(c)

are affirmed.

Id., at 477-478.

A somewhat different approach was taken by a district court

in United States v. Hearst, 412 F.Supp. 877 (N.D.Cal. 1976) in ruling

on a motion to dismiss an indictment charging both armed bank robbery

and use of a firearm to commit that felony. Although it denied the

motion, the court indicated that consecutive sentences under both

counts might contravene the constitutional guarantee against double

jeopardy:

--+ [IJt is a settled principle of law that

two separate offenses arising out of the same

act or transaction may be charged where “each ~

[statutory] provision requires proof of an

additional fact which the other does not."

Blockburger v. United States, 284 U.S. 299

304 ... (1932). This standard is satisfied

by the two offenses charged here, for the

reason that the first requires the use of

any dangerous weapon in the robbery of a

bank, whereas the second specifically re-

quires the use of a firearm in the commis-

sion of any felony.

It is, of course, an altogether different

question whether the defendant may or should

be punished twice through consecutive senten-

ces for the conviction of two offenses aris-

ing out of a single act. In denying the

motion to dismiss either indictment for. vio-

lation of the double jeopardy clause the

Court does not intend to foreclose the de-

fendant from raising the question of double

punishment should she be convicted under

both counts of the indictment and the Court

be required to pass sentence. In that even-

tuality the Court will be open to any argu-

ments the defendant may have against com-

pounding sentences for these alleged offenses.

Id., at 878-879. (Emphasis in original).

We agree that an indictment charging violation of both sections

111 and 924(c)(1) does not on its face implicate the double jeopardy

clause: §111 punishes assault with a dcadly or dangerous weapon --

which could be a knife or an explOsive as well as a Firearm; §924(c) (1)

punishes the use of a firearm to commit a felony -- which could be any

felony. However, where the deadly weapon used in a §111 charge is a

fircarm and the felony charged in a §924(c)(1) count is an assault and we

the government does not prove additional elements for either offense,

it is clear that a defendant will be twice punished for the identical

offenses if he is sentenced under both counts.

Multiple punishment for the same offense at a single trial is

forbidden by the double jeopardy clause. Ex Parte Lange, 85 U.S.

(18 Wall.) 163, 173 (1873). See generally, Note, Twice in Jeopardy,

75 Yale L.J. 262 (1965). Ina line of cases, the Supreme Court has

continued to assume the validity of this principle, but has generally

found the misconduct at issue to constitute distinct offenses. See, e.g.,

Gore v. United States, 357 U.S. 386 (1958), reh. denied, 358 U.S. 858

(1958); Blockburger v. United States, 284 U.S. 299 (1932); Morgan v.

Devine, 237 U.S. 632 (1915); Gavieres v. United States, 220 U.S. 238 -

(1911); Burton v. United States, 202 U.S. 344 (1906). The test enun-

ciated by the Court is whether "each provision requires proof of a

fact which the other does not." Blockburger v. United States, supra,

at 304. See also, United States v. Kenny, 462 F.2d 1205 (3rd Cir.),

cert. denied, 409 U.S. 914 (1972); United States v. Johnson, 462 F.2d

423 (3rd Cir. 1972), cert. denied, 410 U.S. 932 (1973).

ee ee me ee ee ee

4/ For the sake of clarity, we would note that the principles of

double jeopardy relied on herein are distinguishable from the prin-

ciples relied on by the Supreme Court in ruling on the propriety of

consecutive sentencing under the subsections of the bank robbery statute,

18 U.S.C. §2113. In Prince v. United States, 352 U.S. 322 (1957), the

Court held as a matter of statutory construction that consecutive sen-

tences could not be imposed under the subsections of that statute.

tence on all counts not to exceed the maximum permissible sentence which

carries the greatest maximum sentence. See generally, Note, The Federal

Vm. & Mary L.Rev. 101 (1976). Also distinguishable is the "merger"

theory wherein a lesser included misdemeanor is said to merge into a felon

thus permitting a sentence on only the latter. See generally, 22 C.J.S.

Criminal Law §10, at 42-6.

On the facts of this case, it is clear that the elements proven

under the §111 counts (Counts 6 and 7) and the §924(c)(1) count

(Count 19) were identical: under Counts 6 and 7 the government proved

assault on federal officers with a dangerous weapon which was a firearm.

Under Count 19, the government proved use of the ident ical firearm to

comnit a felony which was the assault on the identical federal officers.

Accordingly, we hold that when La Rocca was sentenced under Count 19

consecutively to Counts 6 and 7, he was twice punished for the same

conduct. We remand this case to the district court at which point the

government must move for resentencing under either Count 19 or Counts

6 and 2! The trial court may not impose a more severe sentence under

either count. To do so would ignore the clear intent of this opinion

and punish the defendant twice for the same offense. In future cases,

where conviction is obtained under both §111 and §924(c)(1), and it is

determined that the “deadly weapon" charged in the §111 count is the

firearm charged in the §924(c)(1) count, and that the “felony” charged

in the §924(c)(1) count is the assault charged in the §111 count, the

court may sentence the defendant under one of the sections or the

other, but may not sentence under both sections.

While prosecution under the use provision of §924(c)(1) may, as

in this case, create double jeopardy problems when coupled with a

§111 count, prosecution under the carrying provisiosn of §924(c)(1)

will not. The latter subsection contains an element not required to

‘be proved under §111: the government must prove that the firearm was

-——eee ee eee eee ee

5/ While we recognize that La Rocca was charged in the §924 count

with using a firearm to commit both assault and conspiracy,jwe cannot

sustain his §924 sentence based on commission of conspiracy. It is a

fair inference from the record that the conspiracy to distribute drugs

terminated as of the time that defendants decided to rob Harvey. Nor

are the convictions on the conspiracy counts conclusive, for the jury

was entitled to convict defendants on these counts even if tt found

that the conspiracy was shorter in duration than was charged in the

indictment. Sce, e-g-, United States v. Somers, 496 F.2d 723 (3rd Cir.),

cert. denied, “h19 U.S. 832 (1974). In any event, since both conspiracy

and ossault were charged as the underlying felontes in Counts 6 and 7,

we cannot tell on which the jury relted.

a eo : : .

carried “unlawfully.” As we read it, the tern “unlawfully” re-

quires the government to prove that the defeudant's possession of

the firearm violated federal, state or local registration laws.

See, United States v. Rivero, 532 F.2¢ 450 (5th Cir. 1976); United

States v. Howard, 504 F.2d 1261 (8th Cir. 1974); United States v.

Ramirez, 482 F.2d 807 (2nd Cir.), cert. denied, 414 U.S. 1070 (1973).

Therefore, as to Busic, consecutive sentences under §111 and 5924

(c)(2) were premissibie.

Ill

Defendants also cite as error the refusal of the district court

to sever those counts of the indictment which charge them with re-

ceiving sie ama being convicted felons in violation of 18

U.S.C. §922(h). The indictment actually set forth in these counts

that both defendants had been convicted in 1973 for assaulting two ~-

federal officers, theft of government property, and use of a firearn

6/ We are mindful of the potential injustice caused by our decision

today: La Rocca, who actually shot at the federal agents, may receive

a lesser sentence than Busic, who was only vicariously liable for these

assaults. However, the district court has authority to cure this dis-

parity on a motion under Fed.R.Crim.P. 35.

7/ 18 U.S.C. §922(h) provides in pertinent part:

(h) It shall be unlawful for any person -

(1) who is under indictment for, or who

has been convicted in any court of, a crime

punishable by imprisonment for a term exceed-

ing one year;

to receive any firearm or ammunition which

has been shipped or transported in interstate

or foreign conmerce.

to commit these felonies and, in additioa, that La Rocca had

also been convicted in 1970 of trafficking in machine guns, assault

and battery, pointing a deadly weapon and possession of narcotics.

On oral argument in this Court, however, it was agreed that the

indictment was never shown to the jury.

Defendants argue that the district court's refusal to sever

the §922 counts resulted in admission into evidence of their prior

convictions in the government's case-in-chief which prejudiced

them in the trial of the other offenses charged.

The question of severing for trial counts requiring proof of

prior convictions from other counts which do not permit such proofs

has received little attention in the circuits. In United States v.

Park, 531 F.2d 754 (5th Cir. 1976), the defendant had been charged

in a two-count indictment with a substantive narcotics offense and

with receiving firearms while being a convicted felon. On appeal,

he contended that he had been prejudiced at trial by joinder of these

' ie

counts because it enabled the government to bring to the jury's at

tention the fact that he was a convicted felon. The Fifth Circuit

an : use

held that the trial court's refusal to sever was not error beca

defendant's prior conviction for having knowingly manufactured drugs wou

in any event, have been admissible on the other count. See also, United

States v. Abshire, 471 F.2d 116 (5th Cir. 1972). A novel approach to

this problem was adopted by the district court in United States v.

Franke, 331 F.Supp. 136 (D.Minn. 1971). There, on a motion for sever-

ance, the district court granted defendant a two-stage trial, whereby

the jury, having reached a verdict on the other counts, would then

proceed to consider the counts requiring proof of prior convictions.

—— ee eee ee ee

8/ Although little appellate attention has been directed to this

issue, it appears that it has been the practice of some district -

courts to sever such counts. See e.g., United States v. Napier, 51

F.2d 316 (9th Cir.), cert. dented, 423 U.S. 895 (1975); United States

v. Roberts, 503 F.2d 453 (8th Cir. 1974).

The defendancs urge that the district court erred in refusing

sever the counts alleging violation of 18 U.S.C. §922(h), inasmuch

as at the outset of the trial the district court had no way of knowing

that the prior convictions alleged in the §922(h) counts night other-

wice have been admissible on the other counts. On the facts of this

case we find that the district court did not commit reversible error

Since the defendants raised the defense of entrapment at trial and the

evidence of their prior convictions was admissible under Rule 404(b),

Federal Rules of Evidence, to rebut this defense by proving predis-

position. In addition, prejudice was minimized in this case: the

jury was never shown the indictment, and the f0vernment was not per-

mitted to clicit the factual basis of these convictions. For these

reasons, we hold that the refusal to sever was harmless error.

Nevercheless, we think that in ruling on a pre-trial motion to

sever the district court should determine whether evidence of the

prior convictions would be independently admissible on the other

counts. If it is determined that the convictions would not be

admissible on the other counts -- that were these counts to be

triec alone the jury would not hear this evidence -- then

Shouid be granted.

severance

In addition, we think that, in framing an in-

dictment, the better practice dictates that the f0vernnent should

not set forth the details of defendants' actual convictions, but

merely allege that the defendant is a convicted felon.

9/ Of course, we do recognize the difficulties Inherent in such f

pre-trial determinations. Nevertheless, if the governnent chooses

to join such counts, it must be prepared to justify the joinder to

the trial judge by sone Showing that the prior convictions would

adnissible even absent joinder. By the same token,

severance of these

in moving for

counts, a defendant may be required to reveal

sone of his trial Strategy, as to an entrapnent defense or the like,

in the resolution of his motion for severance,

-14- .

If Defendant desires the particulars, he may, of course, so move ior

them. See Fed.k.Crim.P. 7.

Defendants further contend that the trial court committed rever-

Sible error in refusing to instruct the jury that it might draw an

adverse inference from the government's failure to call its informer,

Richard Hervaux. Despite the fact that the government actually of-

fered to serve Hervaux, defendants contend that the burden of calling

him rested on the government, and that the government's failure to

do so entitled defendants to a "missing witness" instruction. We

agree with the district court that defendants were not entitled to

the requested charge.

The basis of the "missing witness" inference is that, where a

party fails to call an available witness whose testimony could be ~--

expected to favor him, a natural inference arises that that witness

would have exposed facts unfavorable to that party. See, Graves v.

United States, 150 U.S. 118, 121 (1893); Burgess v. United States,

440 F.2d 226 (D.C.Cir. 1970); 2 Wigmore, Evidence, 162, §289 (3d Ed.

1940). This Court has on several occastons addressed the applic-

ability of this inference. Thus, in United States v. Jackson, 257

F.2d 4) (3rd Cir. 1958), we reversed a conviction based on the trial

court's refusal to permit defense counsel co comment on the government's

failure to produce its key informant, a man known only as "Sarge".

In United States v. Restaino, 369 F.2d 544 (3rd Cir. 1966), however,

we held that the government's failure to produce defendant's co-defen-

dants who had pleaded guilty, and were known to and available to both

sides, did not give rise to any inference as to whom their testimony

could be expected to favor. More recently, in United States v. Hines

470 F.2d 225 (3rd Cir. 1972), cert. denied, 410 U.S. 968 (1973), we

held that the government's failure to call an identification witness

would also not give rise to any inference. There, after stating that

its application requires the witness to have special, non-cunulative

information relevant to the case, we went on to note the weakness of

the missing witness inference:

Clearly, every absent but producible witness

possessing some knowledge of the facts need

not be made the subject of the inference.

Often all that can be inferred is that the

witness’ testimony would not have been help-

ful to a party, not that the testimony would

have been adverse.

avO F.2d at. 230, (Emphasis in original).

As we noted in Hines, a party's failure to call a witness does not

necessarily imply that the witness's testimony would have been unfavor-

able to that party. Although Hervaux may have had special knowledge

relevant to this case, we think other considerations outweigh this

reason for giving the missing witness instruction. Every experienced

trial lawyer knows that the decision to call a witness often turns on

factors which have little to do with the actual content of his testi-

mony. Considerations of cumulation and jury fatigue may preclude calling

a witness who is entirely helpful; calculations that a witness may help

a lot but hurt a little may compel restraing when counsel believes that

his burden is already met. Then, too, questions of demeanor and cre-

dibility, hostility, and the like may influence the government not to

produce a witness whose testimony might be entirely harmful to the

10/

defendant. And, of course, as we noted in Hines, in many instances,

a witness's testimony might have been neither helpful nor adverse to

the party who failed to call him. Indeed, cases such as this one --

where both parties fail to call an available witness -- shatter the

myth that an absent witness's testimony might be expected to be par-

ticularly favorable to either side.

Accordingly, we hold that where neither the government nor the

defendant call a witness who is available to both, the “misstng wit-

ness" instruction does not properly lie. See, United States v. Kenney,

10/ We cannot help but note that the defendant who in summartion asks

the question, "Why dida't the government call 'x'?" relics on the in-

ability of the government to respond by advising the jury of any of

these considcrat Loft all of which are outside the record and some of

which stem from the subjective judgment of the prosecutor.

{ : -16-" : ; ,

500 F.2d 39 (4th Cir. 1974); United States v. Chase, 372 F.2d 453 (4th

Cir.), cert. denied, 387 U.S. 907 (1967); United States v. Higginbothan,

Al/

aS Y.24 2263 €6th Cir. i972). Under these circumstances, no in-

ference as to the content of the missing testimony is possible since

both sides may be presumed to wish to call a favorable witness, while

both would not wish to call one who was adverse. This is not to say

that the defendant does not have the absolute right to stand mute or

to rest on the government's failure to produce affirmative evidence to

substantiate any necessary elements of the offense charged. But it is

one thing to rely on the government's failure of proof, and quite

another to argue the existence of affirmative evidence, which the jury

did not hear, inferred from the mouth of a witness who was not called.

Thus, we agree with the district court that, under the circumstances of

this case, defendants were not entitled to the missing witness instruc-

tion.

Defendants also challenge the trial court's refusal to sever

their cases for trial, the admission into evidence of the rebuttal testi-

mony of Special Agent Masters, and the sufficiency of the evidence to

12/

sustain Busic's conviction for assault. We find these challenges

i1/ The basis for denying an instruction under these circumstances was

perhaps best stated by Judge Robb in his concurring opinion in Burgess v.

United States, supra, at 239: "Having deliberately rejected an opportuni

to produce a witness a defendant should not be permitted to complain that

the witness is missing."

12/ Defendant Busic concedes that he aided and abetted the assault on

Harvey, who was not a federal officer. However, he challenges the suf-

ficiency of the evidence to sustain his conviction for assaulting federa!

officers Alfree, Petraitis and John Macready. We find this contention to

be without merit since the evidence overwhelmingly supports his convictioc

under both a conspiracy and an aiding and abetting theory. See Nye & Nis

v. United States, 336 U.S. 613 (1949); Pinkerton v. United States, 328 U.

640 (1946).

to be without

morit,.

pects. La Rocca's

tercing on elther

the count alleging violation of

To the Clerk:

Please file the foregoing opinion.

(Appellants'

13/

case is

Thus,

remanded to the

el7-

we affirm

Nhuaie'a

adtat

conviettion in

rict court for

oll rene

resen-

the counts alleging violation of 18 U.S.G. $6111

hk ee ee |

13/ We have also considered and rejected the following challenges

raised by defendants in thetr pro se briefs:

Whether the

the

trial

inflammatory,

tive of du

Whether or

a fair tri

then a

prejudice

dnevitable,

Vhether th

the extent

fair and impartial

Whether

e process

not

remarks

prosecutor wan

18 U.&.C.

§924(c¢)(1).

actions and

so fla

conduct of

gZrant and

or so prejudtetal and viola-

to justify a new trial.

appellants were deprived of

the trial cou

al when

to o

a- se

feveranec;s

ned

fu Light

efendant

of ¢t

or t

judge wan pre

depriving appellants of a

trial,

rt denied

he extrene

he other

judletal to

appellants were deprived of due pro-

cen when they were deprived of a prompt poate

arrese

Whether

process wh

duce the k

Whether

the car

procens wh

coverable materiala,

Whether or

effeetive

wv)

fuppre

clients.

Whether or

t¢

sustain

consplred

controlled

extated at

“eu

Brief,

nee

saed

not

the

arralyament,

he government fal

ey government al

Rie

hey

leged

hard Jervaux,

the appellants were dep

were dented J

the detendantsa were deprived of due

led to pro-

informant

rived of due

enka Act dinge

appellants were deprived of

annintance of counsel, and counsel

denee favorable to hia

evi

the

fovernnent

ceouvietions

to obtain, dlati

nubutaneesy, or

all

“at

1).

that

lbute

t hat

met dite burden

appellants

and sell

any conaplracy

Winited States Court of Appeals

for the Third Circuit

UNTVTED STATES COURT QF APPLALS

fo the VYhird Clrewel

Now. 77-1375/77+1376

No 7814795

UNITED STATES OF AMERICA DP VVG

va.

BUSIC, MICHAEL UNITED STATES OF AMERTCA,

PS ues ods eee

Michael M. Busic, Appellant in No. 77-1375 , Appellee,

UNITED STATES OF AMERICA f ae

va. i NIGHAEL BUSTC,

LA ROCCA, ANTHONY

' : Appellant.

Anthony La Rocca, Jr., Appellant in No. 77-1376

6 UNTYED STATES OF AMERICA,

(D. C. Criminal Nos. 16<137=1 and 76-1372)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTHONY LA ROCCA, dhe,

Present: VAN DUSEN and ROSENN, Cireuit Judges and STERN, District Judge" "

Appe aul.

JUDGMENT

a Se ae eee ee OO

Apy i) from the Judgment and Convietion @f the

his cause came on to be heard on the record from the United States Distyici United States Dinstriet Court for th

{ Wentern Diatriet of Ponnnylvanta.

Court for the Western District of Pennsylvanta i

and was argued by counsel on October a1, A977. r SUPELEMNENTALI OPINION SUR REHEARTS

“

On consideration whereof, it is now here ordered and adjudged by this Ce. (Reargued dune 7, 1978)

that the judgment of the said District Court , entered March 15, 1977, : tofore Van Dusen and Ronsenty Cireult Judgen,

\ and Stern, HLRET SC I Pirclyce

be, and the same is hereby affirmed as to appeal No. 77-1375. The appeal at

No. 77-1376 ia remanded for proceedings In ae cordance with the opinion of this "

Court. Gamuel J. Retell, Kuquare

rrp e 19°99 Prilehk Hublding

ATTEST Piteteburueh, Peonu yivanta 19219

| Attorney bot Appollant We le

: ' { hiael A Lhdtuan, bhequds

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January 5, 1978 ‘ Atvorn tor Appellant La Rocea

Nia Grifrite

‘llerbert J. Stern, United States Nintr fet Judge for the Diatriet of New Jersey, - prea tarts : ye? an :

( tel mt tv “' ennnryey iv bal

sitting by designatton,. 1 "be enanan A Ceawlords Je, Kuquire

Pe a ee) A | t nt 4 oT Attoruey

G44 U ' ho ( id iees : (tourtlauee

Vittolue , Pewee Ivan eree

Attorue for Appellee

\ ARENA... C

Herbert J. Stern, Uotbed staten Dinter tet Judge for ehe Pietevet

i ava sean in @ Eiaoth.

SUPPLEMENTAL OP INTON SUR REHEARING

(riled )

DEC . a

STERN,*® Distrlet Judge —

On the government's petition for rehearing, Wwe reconsider

our opinion in Untted States v. Buste, Now. 77-1375 and 77-1376

(3rd Cir., January 5, 1978) to light of the Suprene Court's sub}

nequont deciaion in Simpson v, United States, U.S. 4

46 U.S.L.W. 4159 (February 28, 1978). Although we reach the

sane conclusion, we do #0 on somewhat different grounds,

In Simpson v. United Staten, the Court held that a defendant

may not receive consecutive sentences under section 924(c) and

under the subsection of the Bank Robbery Statute, 18 U.S.C.

§2113(d), which provides for an enhanced penalty where a "dane

gerous weapon or device" in used. The Court noted that "[c]lases

in which the Government is able to prove violations of two separ=

ate eriminal statutes wlth preeisely the same factual showing

... raise the prospect of double jeopardy,” but declined

to reach the constitutional question, Instead, it based its

deciaton on the legislative history of section 924(e), on the

"polley of lenity" whieh in clone cases counsels against the

imposition of additional penalties, and on the principle of

wtatutory construction which gives "precedence to the terms of

the more specific statute where a general statute and a specific

Atatute speak to the same coneern ..." U.S. at i

_- -

oe ne 6 ee ee ee

vi Nerbert J. Stern, United States District Judge for the Disn-

triet of New Jersey, sitting by designation,

1/18 U.S.C, §2119(d) providen thats

(d) Whoever, in committing, or in

attempting to coumit, any of fonse defined

in subsections (a) and (b) of this section,

ansoulta any person, or puts in Jeopardy

the life of any person by the use of a dane

Koroun weapon or device, shall be Cined not

more than $10,000 or imprisoned not more.

than twentyefive yearn, or both,

In light of Simpson, we conclude that we need not have

reached the constitutional question in Buste, and according

vacate Part Lieb of our epinton. We next address two ad

tlonal qv ations raised by Simpson: first, thether as to

Rocca, the government on resentencing Is permitted to ol

di-

cet

proceed under either seetion 924(¢) (1) or section 1113 sen

cond, whether as to Busic, the Simpson decision prohibits the

consecutive sentences under section 111 and seetion 924(c) ¢

We believe that the Simpson decision did not adopt the

2).

approach of the EKighth Circuit in United States v. Kagle, 539

F.2d 1166 (8th Gir. 1976), cert. dented, 479 U.S. 1110 (197

7),

which held that a erime for which the penalty is enhanced by

use of a dangerous weapon cannot form the basis of a prosec

tion under section 924(c) (1). Rather, we belfeve that unde

Simpson, the government is free to prosecute under either 8

tion, provided that the defendant is not sentenced under bo

e¢=

th.

We are supported in this view by Justice Brennan's closing words

Sinpron: “in a prosecution growing out of a single tran

action of bank robbery with firearms, a defendant may not b

sentenced under both §21)43(4) and §924(e)." | U.S. | (

phasis supplied). Moreover, we believe that this conclusto

“u-

cne-

is consistent with the Congresstonal purpose of section 924(c)

which, as we noted in our first opinion, was to control and

severly penalize the use of firearns.

Thus, sinee La Rocea's section 11) sentence was to run

currently with his sentences on the other counts, should th

government cleet to proceed under section 924 rather than u

neetion Ill, he way reecive the tdentical sentence which he

carlier received, This would be entirely conststent with o

reading of the Simpson opinton,

On reargument, the government agatn asks that we sustal

section 924(¢) (1) sentence using as a predicate ha Rocea's

tlon for narcotics conspiracy. Although we note that the J

charged that it could convict La Rocca for having used a fi

during conmissten of either the assault or the narcottes conspirecy,

reiterate that it is impossible to ascertain on which of

felontes the jury relied, Seo Slip op., fn. %.

cone

under

n the

convie

ury was

rearh

these

—

-3 Wi vo Staies Court of Appeals

for the Thiud Circuit .

We alno believe that the Stupson eptnion docs not pro

i 1 |

neribe the imposttion of consceulive sentences undor seer

NO, 77-1375/77-1376

tion lll and seetion 9274 (c¢) (2). We adhere te the view which , UNITED STATES OF ANERTCA

we expressed in our earlier opinton, that subsection (2) of ' va.

section 924 creates an entirely separate offense from that BUSIC, MICHAEL

punishable under section LLI, since it requires that the \ Michael M. Busic, Appellant in No, 77-1375

oF LA ROCCA, ANTHONY

government prove the weapon was carried “unlawfully”. The Anthony La Rocea, Jr., Appellant in No. 27-1371

Court in Simpson, faced only with the imposition of consecu- \ *

tive sentences under the bank robbery statute and seetion }

924(c) (1), had no occasion to differentiate between the two |

subsections of section 924(c). In view of our reading of

i 4 (D.C. Criminal No, 76-137-1 and 2)

the different Congressional purposes underlying the two sub.» i

\ . Al ‘ ’ . sy" ‘

sections of section 924(c), we believe that Simpson applies ' ON APPEAL FROM THE UNITED STATES DISTRICT COURT

only to subsection (1) of section 924(c). i FOR THE WESTERN DISTRICT OF PENNSYLVANIA

According! as to Busic, we ain affirm the tmpositton

wi ee sa “s ’ Present: ROSENN and VAN DUSEN, Circuit Judges and STERN, District Judger

of consecutive sentences under section 924(c)(2) and section

lll. La Rocca's case is remanded for resentencing, at which JUDGMENT ON_ REHEARING

time the government may elect to proceed under either sectton bo This cause came on to be heard on the record from the United States District

924(c) (1) or section 111, but not both. Ht Court for the Western District of Pennsylvania 7”

and was {"Grued by counsel on June 7, 1978.

TO THE CLERK: On consideration whereof, it is now here ordered and adjudged by this Cou."

Please file the foregoing supplemental opinion, that the judgmentsof the said District Court, filed March 15, 1977,

be, and the same ix horeby are hereby affirmed with respect to appellant Busic and

; E ; remanded for the resentencing of appellant La Rocea, at which time the government

HERBERT J. STERN

Diutrict Judge may elect to proceed under section 924 (c) (1) or seetion 111, but not both, all

in accordance with the opinion of this Court, ‘

1 | ATTEST: a

! na Ge :

te Aj Y 7 Lérpecece cK Deve ed oe at

| ° / a

Chief Deputy Clerk . r

December 12, 1978

4/) We are buttressed in this view by the fact that the weapon oe a

which Buste was convicted for having “carried unlawfully", was Ailorbert J. Stern, United States District Judge tor the District of New Jersey,

a different weapon from that weed by La Rocea In committing the sitting by designation.

underlying assault, charged to Buste purseant toe 1B Ui8.C. Fas

Thus, on the facts of this case, it da clear that Buste's con

viction under seetion 924(c) (2) was for a crime coupletely seper

ate from his conviction for ansault with a dangerous weapon,

PET BSR OI Me et

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