# Petition — Busic v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 398

## Text

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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

I
‘United States Constitution, Fifth Amendment

STATUTES
§1254(1)

UWNNNrF

CoOnnhm

NS OWWN NY

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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.

i
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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- |
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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

At

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."

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In the Supplemental Opinion Sur Rehearing, the Third Circuit

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

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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

i:

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

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

i|

‘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 —

i

MICHAEL M. BUSIC and
ANTHONY LaROCCA, JR.,

' of this district and were

ee ee

.
on

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
2/

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-

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-*

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.

3/
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 ~-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
i
' 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 '

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.

ZG
/ 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,
Ve
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

ee

* 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.

bE

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
1

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:
(c) Whoever --

(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

2/

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-
3/
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
(c) (1) did not violate the double jeopardy clause because each statute
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

Af
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
6/
(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

8/
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

to

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
9/

Shouid be granted.

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

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

be
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.

IV

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-
or

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:

Le

4.

6.

ro

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
of

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
in

Whether

the car

procens wh
coverable materiala,

Whether or
effeetive

wv)

m0

fuppre

clients.

Whether or

t¢

sustain

consplred
controlled
extated at

“eu

Brief,

c

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
t
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)
a)
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
Clerk 0) Frick | (iad
| P ~~ 4 Pittnt \\ Warns yivanta 9719
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

we

vacate Part Lieb of our epinton. We next address two ad

tlonal qv ations raised by Simpson: first, thether as to

La

to

Rocca, the government on resentencing Is permitted to ol

ly

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

=
r
e¢=

2/
th.

We are supported in this view by Justice Brennan's closing words

in

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-

Cc

cne-

is consistent with the Congresstonal purpose of section 924(c)

which, as we noted in our first opinion, was to control and

3/

severly penalize the use of firearns.

2/

ee

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,

M

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,

we

reiterate that it is impossible to ascertain on which of

felontes the jury relied, Seo Slip op., fn. %.

cone
e
under

ur

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0466%3A1. Public record. Not legal advice.