Appendix — Busic v. United States
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APPENDIX
In the Supreme Court of the United States
OCTOBER TERM, 1978
No. 78-6020
MICHAEL M. BUSIC,
Petitioner,
— I ,—
UNITED STATES OF AMERICA
No. 78-6029
ANTHONY LAROCCA, JR.,
Petitioner,
_—
UNITED STATES OF AMERICA
ON WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
PETITION FOR CERTIORARI IN NO. 78-6020 FILED JANUARY 10,
1979; AND NO. 78-6029 FILED JANUARY 11, 1979
CERTIORARI GRANTED JUNE 4, 1979
IR, CLERK |
TABLE OF CONTENTS
Page
RELEVANT DOCKET ENTRIES ................ CE BE tl RERE eee 1
filly | ty Fasc Ae AON A taht nd a 5
COMMITMENT ORDER—MICHAEL M. BUSIC .... / 17
COMMITMENT ORDER—ANTHONY LaROCCA, JR. . 19
DISTRICT COURT OPINION, FEBRUARY 17, 1977. BAR-
RON P. McCUNE, J. . See em Ce Sed ce ae 21
DISTRICT COURT ORDER, FEBRUARY 17, 1977. BAR-
RON P. McCUNE, J. aoe saeaats 35
COURT OF APPEALS FOR THE THIRD CIRCUIT OPIN-
ION, JANUARY 5, 1978, STERN, J. 36
COURT OF APPEALS FOR THE THIRD CIRCUIT JUDG-
MENT OF JANUARY 5, 1978, VAN DUSEN, STERN,
ROSENN, J. bases ania 55
COURT OF APPEALS FOR THE THIRD CIRCUIT, SUP-
PLEMENTAL OPINION SUR REHEARING, DECEM-
BER 12, 1978, STERN, J. 57
J. scdpebussthacesesinbenanenentbest secbcsudesbaecsieonsstudeunebacsonceanersered nas 61
ORDERS GRANTING LEAVE TO PROCEED IN FORMA
PAUPERIS AND GRANTING CERTIORARI, JUNE 4,
1979 62, 63
1
RELEVANT DOCKET ENTRIES
DATE PROCEEDINGS
1976
July 1 Indictment filed.
July 18 Plea of not guilty entered at arraignment.
* * * & &
Aug. 16 Hearing held on pretrial motions.
Aug. 17 Order entered directing motion for severance of
counts 12-16 denied; motion for severance of defendants
denied; motion for change of venue held in abeyance
pending voir dire of jurors.
* * ke & & |
Sept. 8 Hearing held on pretrial motion for suppression.
Sept. 9 Order entered denying suppression motion.
Jury selection begins for both defendants.
Jury trial begins for both defendants.
Sept. 15 Jury trial concludes.
Sept. 16 Jury returns verdict on 9/15 GUILTY on counts
1-13 and count 19 as to LaRocca. GUILTY on counts
1-16 and count 18 as to Busic, NOT GUILTY on count 17.
Sept. 22 Post-trial motions for judgment of acquittal and
for a new trial filed by defendant LaRocca.
*s*k* * & &
Oct. 28 Hearing on post-trial motions.
**e & & &
1977
Feb. 18 Opinion filed and order entered 2/17 denying post-
triz! motions.
** *£ & &
March 11 NOTICE OF APPEAL FILED from sentence
dated 3/11 by defendant Busic.
DATE PROCEEDINGS
1977
Marchl15 SENTENCE 0n3/11:
Count 1—imprisonment 5 years; at completion of in-
carceration, mandatory term of 2 years special parole.
Count 2—imprisonment 5 years, with 3 years special
parole supervision.
Count 83—imprisonment 5 years, with 2 years special
parole.
Count 4—imprisonment 5 years, with 3 years special
parole.
Count 5—imprisonment 4 years, and to run concurrently
with 1, 2, 3, and 4.
Count 6—imprisonment 5 years, and to be consecutive
with 1, 2, 3, 4, and 5.
Count 7—imprisonment 5 years.
Count 8—imprisonment 5 years.
Count 9—imprisonment 5 years.
Count 10—imprisonment 5 years.
Count 11—imprisonment 5 years.
Count 13—imprisonment 5 years with counts 7, 8, 9, 10,
11, 12, and 13 to run concurrently with count 6 and to be
consecutive with counts 1, 2, 3, 4, and 5.
Count 14—imprisonment 2 years.
Count 15—imprisonment 2 years.
Count 16—imprisonment 2 years, with counts 14, 15, 16,
to run concurrently with counts 6, 7, 8, 9, 10, 11, and 13.
Count 18—imprisonment 20 years under 18, 4205 (b) (2)
and to run consecutive with 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,
13 i.e. to be consecutive to all other counts of indictment,
time of 30 yrs. total. No fine; no costs.
8
DATE =—_ PROCEEDINGS
see _ Se ee re ~
March 28 Cases docketed at court of appeals for Busic at
77-1875 and for LaRocca at 77-1876.
*_* ee #
April 21 Final commitment of defendant Busic, (Lewisburg)
ev eh * #
1978
Jan. 30 Opinion from court of appeals (1-5-78) affirming
conviction of Busic and remanding LaRocca’s case for
resentencing on certain counts.
oe ee
March 20 Letter from court of appeals advising rehearing
is set for May 4 at 2 p.m.
ee om
Dec. 18 Slip opinion from U.S. Court of Appeals dated
12-12-78 affirming decision of District Court as to de-
fendant Busic and remanding case for resentencing for
defendant LaRocca (Related to opinion from court of
appeals dated 1/5/78 in that opinion was reargued on
June 7, 1978.)
1979
Jan. 5 Certified copy of judgment on rehearing with copy
of opinion issued in lieu of formal mandate rec’d from
U.S. Court of Appeals dated 12/12/78 affirming district
court rulings as to defendant Busic and remanding the
case for resentencing of defendant LaRocca. Opinion in
slip opinion form. J. Stern.
Form DJ-195
(Ed. 2+7-66)
67138 Torintnas
UNITED STATES District
Western
COURT
District of Pennsylvania
Criminal Division
THE UNITED STATES OF AMERICA
v8,
Michael M. Busic
Anthony LaRocca, Jr,
; ee ee ee ee
‘ INDICTMENT
Mlk 2 (Both defendants) Conspiracy to distribute
jiema and cocaine (21 USC 846)
AW 4 (Both Se TTTEN TER Distributing marijuana
Birerine (21 USC 841(a)(1))
$$ (doth defendants) Using a communication facility
4 ra a
Ooo wus 0a, ee ae
‘i q (both defendants ) ae
% 8 silencer made
ma mAion of the Nationefe , 4. D. 10.
M Act (26 USC 5861(c)
NB wc 2)
hkl (both defendants) Clerk,
Bets sazeris®
lid
WSC 2) Sih as ORIFFITH
United States Attorney
GPO OC 2-482
Count 12 (LaRocca) Receiving a firearm by a
convicted felon (18 USC 22th), 924 (a)
Count 13(Both defendants JReceying a firearm
by a convicted felon (18 USC 922(h) and 924 (a))
Count 14 - 16 (Busic)Possession of a firearm by
a convicted felon (18 USC Appendix 1202(a)(1))
Count 17 - 19 (Ct. 17 & 18 Busic) (Count 19 LaRocca )
Using a firearm while committing a felony
(18 USC 924(c))
PLEA ) yi
Defendant Michael M, voase (MO ay:
arraigned, pleads Mhor- Curd. ny. —
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5
IN THE UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
No. 76-137 Criminal
(18 USC §§ 2, 111, 1114, 924 (a), 922(h), 924(c),
1202(a) (1) Appendix, 21 USC §$§ 846, 841 (a) (1),
843(b), 26 USC §§ 5861(¢), 5861(d) 5871)
UNITED STATES OF AMERICA
v.
MICHAEL M. Busic
ANTHONY La Rocca, Jr.
INDICTMENT—Filed July 1, 1976
COUNT ONE
The grand jury charges:
1, That from on or about the 7th day of May, 1976,
and continuously thereafter up to and including the
13th day of May, 1976, in the Western District of Penn-
sylvania and elsewhere, MICHAEL M. BUSIC, AN-
THONY LA ROCCA, JR., the defendants herein, will-
fully and knowingly did combine, conspire, confederate,
and agree together, and with each other, and with divers
other persons whose names are to the grand jury un-
known, to possess with the intent to distribute and to
distribute about fifty (50) pounds of marijuana (Can-
nabis Sativa L.), a schedule I controlled substance, in
violation of Title 21, United States Code, Section 841
(a) (1).
2. It was a part of the said conspiracy that the de-
fendants and their co-conspirators would obtain a large
quantity of marijuana in the State of Florida.
3. It was a further part of the said conspiracy that
the defendants and Charles “Chuck” Harvey—a prospec-
6
tive customer—would travel to Fort Lauderdale, Florida,
to obtain the marijuana.
4. It was a further part of the said conspiracy that
in return for $15,000.00 cash, Charles “Chuck” Harvey
would receive (50) pounds of marijuana from the de-
fendants and their co-conspirators.
5. It was a further part of the said conspiracy that
the defendants and Charles “Chuck” Harvey would re-
turn to Pittsburgh, Pennsylvania, with the marijuana
in order to redistribute the marijuana to BUSIC’s and
Harvey’s customers.
OVERT ACTS
In furtherance of the conspiracy and to effect the
objects thereof, the defendants performed and caused
to be performed, in the Western District of Pennsylvania,
and elsewhere, the following overt acts:
1. On or about the 7th day of May, 1976, in Monroe-
ville, in the Commonwealth of Pennsylvania, MICHAEL
M. BUSIC and ANTHONY LA ROCCA, JR. met with
Charles “Chuck” Harvey.
2. On or about the 8th day of May, 1976, in Monroe-
ville, in the Commonwealth of Pennsylvania, ANTHONY
LA ROCCA, JR. met with Charles “Chuck” Harvey.
3. On or about the 11th day of May, 1976, in Monroe-
ville, in the Commonwealth of Pennsylvania, MICHAEL
M. BUSIC and ANTHONY LA ROCCA, JR. met with
Charles “Chuck” Harvey.
4. On or about the 13th day of May, 1976, in Monroe-
ville, in the Commonwealth of Pennsylvania, MICHAEL
M. BUSIC and ANTHONY LA ROCCA, JR. met with
Charles “Chuck” Harvey.
In violation of Title 21, United States Code, Section
846.
COUNT TWO
The grand jury further charges:
1. That from on or about the 8th day of May, 1976,
and continuously thereafter up to and including the
18th day of May, 1976, in the Western District of
T
Pennsylvania and elsewhere, MICHAEL M. BUSIC, AN-
THONY LA ROCCA, JR., the defendants herein, wil-
fully and knowingly did combine, conspire, confederate,
and agree together, and with each other, and with divers
other persons whose names are to the grand jury un-
known, to possess with the intent to distribute and to
distribute about one (1) pound of cocaine (cocaine hydro-
chloride), a schedule II narcotic drug controlled sub-
stance, in violation of Title 21, United States Code, Sec-
tion 841 (a) (1).
2. It was a part of the said conspiracy that the de-
fendants and their co-conspirators would obtain a
quantity of cocaine in the State of Florida.
3. It was a further part of the said conspiracy that
the defendants and Charles “Chuck” Harvey—a prospec-
tive customer—would travel to Fort Lauderdale, Florida,
to obtain the cocaine.
4. It was a further part of the said conspiracy that
in return for $20,000.00 cash, Charles “Chuck” Harvey
would receive one (1) pound of eighty percent (80%)
cocaine from the defendants and their co-conspirators.
5. It was a further part of the said conspiracy that
the defendants and Charles “Chuck” Harvey would re-
turn to Pittsburgh, Pennsylvania, with the cocaine in
order to redistribute the cocaine to BUSIC’s and Har-
vey’s customers.
OVERT ACTS
In furtherance of the conspiracy and to effect the
objects thereof, the defendants performed and caused
to be performed, in the Western District of Pennsyl-
vania, and elsewhere, the following overt acts:
1. On or about the 8th day of May, 1976, in Monroe-
ville, in the Commonwealth of Pennsylvania, ANTHONY
LA ROCCA, JR. met with Charles “Chuck” Harvey.
2. On or about the 11th day of May, 1976, in Monroe-
ville, in the Commonwealth of Pennsylvania, MICHAEL
M. BUSIC and ANTHONY LAROCCA, JR. met with
Charles “Chuck” Harvey.
3. On or about the 13th day of May, 1976, in Monroe-
ville, in the Commonwealth of Pennsylvania, MICHAEL
8
M. BUSIC and ANTHONY LA ROCCA, JR. met with
Charles “Chuck” Harvey.
In violation of Title 21, United States Code, Section
846.
COUNT THREE
The grand jury further charges:
1. That on or about the 11th day of May, 1976, in
the Western District of Pennsylvania, MICHAEL M.
BUSIC and ANTHONY LA ROCCA, JR. knowingly and
intentionally did unlawfully distribute about 0.3 grams of
marijuana (Cannabis Sativa L.), a schedule I controlled
substance.
In violation of Title 21, United States Code, Section
841 (a) (1).
COUNT FOUR
The grand jury further charges:
1. That on or about the 11th day of May, 1976, in
the Western District of Pennsylvania, MICHAEL M.
BUSIC and ANTHONY LA ROCCA, JR. knowingly and
intentionally did unlawfully distribute about 0.1681 grams
of cocaine (cocaine hydrocloride), a schedule II narcotic
drug controlled substance.
In violation of Title 21, United States Code, Section
841 (a) (1).
COUNT FIVE
The grand jury further charges:
1. That on or about the 12th day of May, 1976, in the
Western District of Pennsylvania, MICHAEL M. BUSIC
and ANTHONY LA ROCCA, JR., the defendants, know-
ingly and intentionally did use and cause to be used a
communication facility, that is a telephone, in facilitating
conspiracies to possess with the intent to distribute and
to distribute about fifty (50) pounds of marijuana (Can-
nabis Sativa L.), a schedule I controlled substance and
one (1) pound of cocaine (cocaine hydrochloride) a sched-
ule II narcotic drug controlled substance, felonies under
9
Title 21, United States Code, Section 846, in that
ANTHONY LA ROCCA, JR. used said telephone to trans-
mit to charles “Chuck” Harvey certain arrangements
for the distribution of and payment for the above de-
scribed marijuana and cocaine during three (3) telephonic
communications.
In violation of Title 21, United States Code, Section
843(b) and Title 18, United States Code, Section 2.
COUNT SIX
The grand jury further charges:
1. That on or about the 13th day of May, 1976, in the
Western District of Pennsylvania, MICHAEL M. BUSIC
and ANTHONY LA ROCCA, JR. wilfully and by means
and use of a dangerous weapon, that is a semi-automatic
pistol, did forcibly assault, resist, oppose, impede, in-
timidate and interfere with Special Agents William Al-
free and William Petraitis, special agents of the Bureau
of Alcohol, Tobacco, and Firearms while Special Agents
Alfree and Petraitis were engaged in the performance
of their official duties.
In violation of Title 18, United States Code, Sections
2, 111, 1114.
COUNT SEVEN
The grand jury further charges:
1. That on or about the 13th day of May, 1976, in the
Western District of Pennsylvania, MICHAEL M. BUSIC
and ANTHONY LA ROCCA, JR. wilfully and by means
and use of a dangerous weapon, that is a semi-automati¢
pistol, did forcibly assault, resist, oppose, impede, in-
timidate and interfere with Special Agent John J.
Macready, a special agent of the Drug Enforcement Ad-
ministration, while Special Agent Macready was engaged
in the performance of his official duties.
In violation of Title 18, United States Code, Sections
2,111, 1114.
10
COUNT EIGHT
The grand jury further charges:
1. That on or about the 18th day of May, 1976, in the
Western District of Pennsylvania, MICHAEL M. BUSIC
and ANTHONY LA ROCCA, JR. wilfully and knowingly
possessed a firearm, that is a silencer attached to a .22
Caliber long rifle, Strum-Ruger Standard, semi-automatic
pistol, bearing serial number 11-88304, made without
the payment of a making tax as required by Section 5821,
Title 26, United States Code, and made without the filing
of a written application form with the Secretary of the
Treasury or his delegate as required by Section 5822,
Title 26, United States Code.
In violation of Title 26, United States Code, Sections
5861(c) and 5871, and Title 18, United States Code,
Section 2.
COUNT NINE
The grand jury further charges:
1. That on or about the 13th day of May, 1976, in the
Western District of Pennsylvania, MICHAEL M. BUSIC
and ANTHONY LA ROCCA, JR. wilfully and knowingly
possessed a firearm, that is a silencer attached to a .22
Caliber long rifle, Strum-Ruger Standard, semi-automatic
pistol, bearing serial number 11-88304, which had not
been registered to him in the National Firearms Regis-
tration and Transfer Record as required by Chapter 53,
Title 26, United States Code.
In violation of Title 26, United States Code, Sections
5861(d) and 5871, and Title 18, United States Code,
Section 2.
COUNT TEN
The grand jury further charges:
1. That on or about the 13th day of May, 1976, in the
Western District of Pennsylvania, MICHAEL M. BUSIC
and ANTHONY LA ROCCA, JR. wiltully and knowingly
possessed a firearm, that is a silencer attached to a .22
11
Caliber long rifle, Strum-Ruger Standard, semi-automatic
pistol, bearing serial number 11-87863, made without the
payment of a making tax as required by Section 5821,
Title 26, United States Code, and made without the filing
of a written application form with the Secretary of the
Treasury or his delegate as required by Section 5822,
Title 26, United States Code.
In violation of Title 26, United States Code, Sections
5861(c) and 5871, and Title 18, United States Code,
Section 2.
COUNT ELEVEN
The grand jury further charges:
1. That on or about the 18th day of May, 1976, in the
Western District of Pennsylvania, MICHAEL M. BUSIC
and ANTHONY LA ROCCA, JR. wilfully and knowingly
possessed a firearm, that is a silencer attached to a .22
Caliber long rifle, Strum-Ruger Standard, semi-automatic
pistol, bearing serial number 11-87863, which had not
been registered to him in the National Firearms Registra-
tion and Transfer Record as required by Chapter 53,
Title 26, United States Code.
In violation of Title 26, United States Code, Sections
5861(d) and 5871, and Title 18, United States Code,
Section 2.
COUNT TWELVE
The grand jury further charges:
1. That during the period of time between the 12th
day of January, 1976, and the 13th day of May, 1976,
in the Western Disirict of Pennsylvania, ANTHONY
LA ROCCA, JR., having been convicted on the 16th day
of March, 1970, by a Court of the Commonwealth of
Pennsylvania of felonies, each punishable by imprisonment
for a term exceeding one year, to wit: Traffic in Machine
Guns; Assault and Battery; Pointing a Deadly Weapon;
and Possession of Narcotics, and on the 12th day of
December, 1973, by the United States District Court for
the Western District of Pennsylvania of assaulting two
(2) federal officers, stealing property of the United States
12
of America of a value of in excess of $100.00, and using
a firearm to commit felonies prosecutable in a Court of
the United States each punishable by imprisonment for a
term exceeding one (1) year, did knowingly receive a
firearm, that is a .380 Caliber (9mm Corto) Beretta,
semi-automatic pistol bearing serial number 780-332
which had been transported in foreign commerce from
Italy to the United States of America.
In violation of Title 18, United States Code, Sections
922(c) and 924(a).
COUNT THIRTEEN
The grand jury further charges:
1. That during the period of time between the 12th
day of January, 1976, and the 13th day of May, 1976,
in the Western District of Pennsylvania, ANTHONY
LA ROCCA, JR., aided and abetted by MICHAEL M.
BUSIC, having been convicted on the 16th day of March,
1970, by a Court of the Commonwealth of Pennsylvania
of felonies, each punishable by imprisonment for a term
exceeding one year, to wit: Traffic in Machine Guns;
Assault and Battery; Pointing a Deadly Weapon; and
Possession of Narcotics, and on the 12th day of December,
1973, by the United States District Court for the Western
District of Pennsylvania of assaulting two (2) federal
officers, stealing property of the United States of America
of a value of in excess of $100.00, and using a firearm
to commit felonies prosecuted in a Court of the United
States, each punishable by imprisonment for a term ex-
ceeding one (1) year, did knowingly receive a firearm,
that is a .22 Caliber long rifle, Strum-Ruger Standard,
semi-automatic, bearing serial number 11-87863 which
had been transported in interstate commerce from
Southport in the State of Connecticut to New York City
in the State of New York to Pittsburgh in the Common-
wealth of Pennsylvania.
In violation of Title 18, United States Code, Sections
922(h) and 924(a).
13
COUNT FOURTEEN
The grant jury further charges:
1. That on or about the 18th. day of May, 1976, in the
Western District of Pennsylvania, MICHAEL M. BUSIC,
having been convicted on the 12th day of December,
1973, by the United States Court for the Western District
of Pennsylvania of assaulting two (2) federal officers,
stealing property of the United States of America of a
value of in excess of $104.00, and using a firearm to
commit felonies prosecutable in a Court of the United
States, each punishable by imprisonment for a term ex-
ceeding one (1) year, did knowingly possess a firearm,
that is a .380 Caliber (9mm Corto), Beretta, semi-auto-
matic pistol, bearing serial number G11613, which had
been transported in foreign commerce from Italy to the
United States of America.
In violation of Title 18, United States Code, Appendix,
Section 1202(a) (1).
COUNT FIFTEEN
The grand jury further charges:
1. That on or about the 18th day of May, 1976, in the
Western District of Pennsylvania, MICHAEL M. BUSIC,
having been convicted on the 12th day of December, 1973,
by the United States District Court for the Western Dis-
trict of Pensylvania of assaulting two (2) federal officers,
stealing property of the United States of America of a
value of in excess of $100.00, and using a firearm to
commit felonies prosecutable in a Court of the United
States, each punishable by imprisonment for a term
exceeding one (1) year, did knowingly possess a firearm,
that is a .22 Caliber long rifle, Strum-Ruger Standard,
semi-automatic pistol, bearing serial number 11-88304
which had been transported in interstate commerce from
Southport in the State of Connecticut to New York City
in the State of New York to Pittsburgh in the Common-
wealth of Pennsylvania.
In violation of Title 18, United States Code, Appendix,
Section 1202 (a) (1).
14
COUNT SIXTEEN
The grand jury further charges:
1. That on or about the 18th day of May, 1976, in
the Western District of Pennsylvania, MICHAEL M.
BUSIC, having been convicted on the 12th day of De-
cember, 1973, by the United States District Court for
the Western District of Pennsylvania of assaulting two
(2) federal officers, stealing property of the United
States of America of a value of in excess of $100.00,
and using a firearm to commit felonies prosecutable
in a Court of the United States, each punishable by im-
prisonment for a term exceeding one (1) year, did
knowingly possess a firearm, that is a .22 Caliber long
rifle, Strum-Ruger Standard, semi-automatic pistol, bear-
ing serial number 11-87863 which had been transported
in interstate commerce from Southport in the State of
Connecticut to New York City in the State of New York
to Pittsburgh in the Commonwealth of Pennsylvania.
In violation of Title 18, United States Code, Ap-
pendix, Section 1202(a) (1).
COUNT SEVENTEEN
The grand jury further charges:
1, That on or about the 7th day of May, 1976, in
the Western District of Pennsylvania, MICHAEL M.
BUSIC wilfully and knowingly carried a firearm un-
lawfully during the commission of felonies prosecutable
in a Court of the United States, that is: the distribution
of marijuana in violation of Title 21, United States
Code, Section 841(a) (1); a conspiracy to possess with
the intent to distribute and to distribute marijuana, in
violation of Title 21, United States Code, Section 846.
In violation of Title 18, United States Code, Section
924(c).
COUNT EIGHTEEN
The grand jury further charges:
1. That on or about the 13th day of May, 1976, in
the Western District of Pennsylvania, MICHAEL M.
BUSIC wilfully and knowingly carried a firearm unlaw-
15
fully during the commission of felonies prosecutable in a
Court of the United States, that is: conspiracies to pos-
sess with the intent to distribute and to distribute mari-
juana and cocaine, in violation of Title 21, United States
Code, Section 846; assaulting federal officers, in viola-
tion of Title 18, United States Code, Section 111.
In violation of Title 18, United States Code, Section
924(c).
COUNT NINETEEN
The grand jury further charges:
1. That on or about the 13th day of May, 1976, in
the Western District of Pennsylvania, ANTHONY LA
ROCCA, JR., wilfully and knowingly used a firearm
to commit felonies prosecutable in a Court of the United
States, that is: conspiracies to possess with the intent
to distribute and to distribute marijuana and cocaine, in
violation of Title 21, United States Code, Section 846;
assaulting federal officers, in violation of Title 18, United
States Code, Section 111.
In violation of Title 18, United States Code, Section
924(c).
A True Bill,
/s/ Charles Pascoe
Foreman
/s/ Blair A. Griffith
BLAIR A. GRIFFITH
United States Attorney
/s/ Thomas A. Crawford, Jr.
THOMAS A. CRAWFORD, JR.
Special Attorney
United States Department of Justice
16
I certify that I have been advised by the magistrate
that all pretrial motions must be filed within ten days
of arraignment unless the Court extends the time upon
written application made within the said ten day period.
/s/ [Illegible]
Attorney for Defendant Busic
/s/ [Illegible]
Attorney for Defendant
LaRocca
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IN THE UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
Criminal Action No. 76-137
UNITED STATES OF AMERICA
v8.
MICHAEL M. BusIc and
ANTHONY LARA, JR., DEFENDANTS
OPINION
BARRON P. McCUNE, District Judge
February 17, 1977.
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 marijuana (Count 1)
and one pound of cocaine (Count 2); the distribution 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 sub-
stances (Count 5); and various weapons offenses and
gun possession violations (Counts 6-19).' These charges
arose out of a drug conspiracy and subsequent shoot-out
with federal agents at the Miracle Mile Shopping Center,
Monroeville, Pennsylvania, which took place on May 13,
1976.
The defendants were tried on these charges before a
jury of this district and were found guilty ? on September
15, 1976.
1 Of these counts, 7 (Counts 6-11, 183) applied to both defendants
2 (Counts 12 and 19) applied to LaRocca only, and 5 (Counts 14-18)
applied to Busic only.
The defendant, LaRocca, was found guilty on all 14 charges
brought against him. The defendant, Busic, was found guilty on 16
of 17 charges brought against him. Busic was found not guilty as to
Count 17 of the indictment which charged a violation of 18 U.S.C.
Sec. 924(c).
22
Presently before the court are the defendant’s motions
for Judgment of Acquittal and New Trial. After a
thorough consideration of the briefs submitted by the
respective parties, and following oral argument, we will
deny the motions.
The evidence presented by the Government during the
trial consisted of the testimony of those federal agents
who were involved in an investigation into the defend-
ants’ alleged drug dealings and who were also present
at the May 13, 1976 shoot-out. The Government’s chief
witness was Charles D. Harvey, an undercover agent
with the Drug Enforcement Administration, Joint Nar-
cotics Task Force.
Agent Harvey testified* that he first met with the
defendants in the late afternoon of May 7, 1976, at the
Monroeville apartment of Richard Hervaux, a govern-
ment informant. During that meeting it was agreed
that Harvey would serve as a driver and would 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 various prices for bales of
marijuana and a pound of cocaine were discussed be-
tween Harvey and LaRoccea.
Harvey did not meet 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, LaRocca telephoned Harvey on two
occasions. During one of the calls LaRocca supplied
Harvey with a phone number in Florida so that Harvey
could check the final arrangements for closing the deal.
By the time of the second call, Harvey had booked a
flight to Florida under a fictitious name and communi-
3 Portions of Harvey’s testimony were substantiated by agents
Wiiliam J. Petraitis, William F. Alfree and John J. Macready, all of
whom were present at the scene of the shoot-out on May 13, 1976.
23
cated this to LaRocca. Later that day, at 5:30 P.M.,
Harvey called LaRocca and was informed by LaRocca
that he wanted to see the “purchase money” prior to
Harvey’s trip. Harvey agreed to meet 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 arrangements were in readiness. Harvey
placed the call at 10:05 P.M. that night and the ar-
rangements were confirmed.
On May 18, 1976, pursuant to LaRocca’s request, Har-
vey called LaRocca at approximately 11:30 A.M., and
informed LaRocca that he had acquired the money and
would show LaRocca the money. They arranged to meet
in the Miracle Mile Shopping Center in Monroeville,
Pennsylvania, that afternoon. Pursuant to this arrange-
meri, Harvey drove there alone (with surveillance units
in support) and arrived at the designated location around
1:00 P.M. He had $30,000 of government money with
him in a brown paper bag locked in his trunk. LaRocca
and Busic arrived in LaRocca’s car.
Harvey parked his car in the parking lot of the shop-
ping center and the defendants pulled beside him and
parked. Harvey then drove his car away from La-
Rocca’s to a distance of “one-half block” away. Harvey
then left LaRocca’s car, as did LaRocea, and they met
approximately half-way between the two cars. Together
they walked to Harvey’s car and entered it and Harvey
drove to the far end of the parking lot. During this
time, LaRocca, upon Harvey’s request, took off his jacket
and laid it on the front seat between them. After they
stopped, both Harvey and LaRocca got out of the car.
Harvey opened the trunk and the bag, and showed the
money to LaRocca. They then re-entered Harvey’s car
and proceeded toward LaRocca’s car. At this point,
Harvey stated that he glanced down at the seat and
noticed ‘“‘a revolver or a pistol” sticking out from under
LaRocca’s jacket. Harvey again parked about one-half
block away from LaRocca’s car for “safety” reasons. La-
Rocca then went for his weapon which caused Harvey to
ESE EE ORE RT SE NTE ETT ES eet OEE eee eee
24
jump from his car and walk rapidly away from it. La-
Rocea chased him with his coat wrapped around the gun
which he held, caught Harvey, cocked the gun, stuck it
“in (Harvey’s) chest” and demanded the money. La
Rocca took Harvey’s keys, opened the trunk, took the
bag containing the money and backed away from Harvey
intending to return to his car.
At that point, Harvey gave a pre-arranged signal to
the other agents‘ serving as surveillance units in this
area who began to close in on LaRocca. Five shots were
fired by LaRocca: one at Harvey, three at Macready
and Ferrara’s vehicle, two of which struck the pas-
senger door; and one at Petraitis and Alfree’s vehicle,
which skimmed off the hood of the car and struck the
windshild “head high.” Within moments, LaRocca was
arrested.°®
During this time, Busic was not involved in the gun
fire. He testified that he had been in the shopping center
purchasing a pack of cigarettes.° He was arrested in
the parking lot. A Beretta was found in his possession.
Prior to his arrest he stated: “Just remember that I
didn’t shoot at anybody and I didn’t draw my gun.”
After the arrests were made, agent Petraitis looked
into LaRocca’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
semi-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
*The other agents were: Petraitis and Alfree; Morgan and
Tate; and Macready and Ferrara.
5 The gun which LaRocca was using was a .330 caliber Beretta
which had a capacity of seven rounds. Upon analysis, it was deter-
mined that five rounds were fired, two rounds remained in the gun,
and it remained cocked and ready to fire. Three shell casings were
also found in the parking lot. One round was removed from a
Lincoln Continental parked nearby.
* This aspect of the evidence was not conclusively proven through
the testimony of Mary Lou Caliguri, a cashier at the Thrift Drug
Store, Miracle Mile Shopping Center, Monroeville, Pennsyivania
(TT. 378-380), although Busic so testified (TT. 410-411).
25
containing ammunition. The next day, an inventory
search of the automobile was conducted. A box of .83
caliber ammunition 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 the automobile under the driver’s
seat.
The defendant, Busic, testified on his own behalf to
the effect that Richard Hervaux’ initiated the narcotics
deal with the sole purpose of stealing the “front money”
from Harvey, and represented to agent Harvey that the
defendants were representatives 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 shop-
ping center on the 13th in order to take the money from
Harvey. In effect, Busic attempted by his testimony to
show that he and LaRocca were victims of the Govern-
ment’s entrapment perpetrated by agent Harvey and the
informer, Hervaux.
This entrapment defense was contradicted by the Gov-
ernment’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 P.M. on May 5, 1976, two
days prior to Harvey’s initial meeting with the defend-
ants, he was forced to hide in the closet of Hervaux’s
apartment (when he happened to be there when LaRocca
unexpectedly dropped in) and while so located, overheard
a conversation between LaRocca and Hervaux. He tes-
tified that LaRocca, and not Hervaux, initiated a con-
versation concerning narcotics and that LaRocca ap-
7 Hervaux was not called by either the government or the de-
fendant. Fred C. Koerhner, the court-appointed private investigator
for Busic stated that he knew Hervaux’s address, had been to his
apartment twice, that Hervaux had tried to cal! Koerhner without
success and Koerhner had been unable to serve a subpoena. How-
ever, although he had been appointed during the first week of Au-
gust, 1976, he had not tried to serve a subpoena until Friday,
September 10, 1976, after trial was underway. Trial began Sep-
tember 3, 1976. Koerhner tried again Sunday night, September 12,
1976.
26
proached Hervaux about buying marijuana at that time.
With this factual background established, we turn to
a consideration of the various arguments advanced by the
respective defendants.
Pretrial Rulings
With regard to this court’s pretrial rulings, defend-
ants advance three contentions. First, both defendants
allege that this court’s refusal to sever the trials of the
defendants constituted error. Second, they allege error
in this court’s refusal to sever their trial on firearms
charges from the other counts of the indictment, there-
by 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 ad-
ditional time to track down recently discovered leads
bearing on their entrapment defense. We disagree with
all of the above contentions.
The tests for joinder of counts and defendants are
found in Rule 8(b) of the Federal Rules of Criminal
Procedure. See, United States v. Somers, 496 F.2d 723,
729, fn. 8 (3d Cir. 1974), cert. den. 419 U.S. 832, 95
S. Ct. 56, 42 L. Ed. 2d 58 (1974) Rule 8(b) provides:
“(b). Joinder of Defendants. Two or more de-
fendants may be charged in the same indictment or
information if they are alleged to have participated
in the same act or transaction or in the same series
of acts or transactions constituting an offense or of-
fenses. Such defendants may be charged in one or
more counts together or separately and all of the
defendants need not be charged in each count.”
The severance of offenses or defendants is a matter
committed to the discretion of the trial court and will
not be distributed absent a clear showing that this court
abused that discretion. United States v. Armocida, 515
F.2d 29, 46 (3d Cir. 1975), cert. den., 423 U.S. 858, 96
S. Ct. 111, 46 L. Ed. 2d 84 (1975).
In the instant case, the various criminal acts. includ-
ing the firearms violations, charged in the iudictment
27
which were supported by the evidence, revealed a common
criminal scheme in which the defendants jointly par-
ticipated. Thus, this court properly exercised its discre-
tion in permitting the counts and the defendants to be
tried together. See, United States v. Stringi???, 378 F.
2d 896 (3d Cir. 1967), cert. den. 389 U.S. 846, 88 S.
Ct. 100, 19 L. Ed. 2d 113 (1967).
Defendants’ third contention is likewise without merit
for two reasons. First, Fred C. Koerhner, the court-
appointed private investigator for the defendant, Busic,
had all of a month to investigate and was permitted to
continue his investigation during the defendants’ trial
(TT.6). Although he was unsuccessful in serving Rich-
ard Hervaux, he did not try to serve him until trial was
underway. Second, the entrapment defense was suf-
ficiently raised by Busic’s testimony without Koerhner’s
investigatory assistance. Hervaux was an informant but
he was well known to both defendants.“ Further, we
were required to try defendants speedily.
The Conspiracy Counts
Both defendants, in their post-trial motions for Judg-
ment of Acquittal, contend that the evidence presented
by the Government at trial was legally insufficient to
establish the existence of a conspiracy as charged in
Counts 1 and 2 of the indictment. We disagree. As to
Counts 1 and 2, a review of the record reveals that the
evidence presented was more than sufficient to establish
that a conspiracy to distribute drugs existed. Agent
Harvey’s testimony, as substantially summarized, supra,
clearly reveals that the defendants did meet and con-
spire together, from May 7, 1976, to May 13, 1976, for
the purpose of ultimately possessing and distributing
certain drugs for their own profit.
As to Count 5, defendants contend that since the drug
transactions were never completed, 21 U.S.C. Sec. 843
7a Hervaux is a motorcycle dealer. Incidentally, Curwood Masters
had gone to Hervaux’s apartment to discuss a motorcycle.
28
(b)* was not violated. In support they cite United States
v. Leslie, 411 F.Supp. 215 (D. Del., 1976). Our re-
search indicates that this is the only case to date which
has discussed this particular issue. However, we can-
not agree with the decision of that court. In Count 5,
certain violations of 21 U.S.C. Sec. 846 were alleged.
These violations of Sec. 846 are felonies within the mean-
ing of Sec. 843(b). Thus, although actual distribution
never took place, the evidence was sufficient 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, 528 F.2d 1438,
165 (9th Cir. 1975). We, therefore, find no merit in
defendants’ arguments as to the charges contained in
Counts 1, 2 and 5.
Firearms Violations
Both defendants, in their post-trial motions for Judg-
ment of Acquitta!, contend that the evidence presented
by the 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, the evidence failed to establish
a sufficient nexus with foreign and/or interstate com-
merce. 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.
8 Section 843(b) of Title 21 of the United States Code provides
in pertinent part:
“It shall be unlawful for any person knowingly or intentionally
to use any communication facility in committing or in causing
or facilitating the commission of any act or acts constituting
a felony under any provision of (Title 21, respecting Drug
Abuse Prevention and Control). . . . Each separate use of a
communication facility shall be a separate offense under this
section. ... (T)he term “communication facility” ... includes
... (the) telephone .. .” (Emphasis supplied).
29
Count 13 charged violations of 18 U.S.C. Sections
922(h)* 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, seria}
number 11-87863, which had been transported in inter-
state commerce. His receipt of this pistol occurred sub-
sequent to two convictions of March 16, 1970 and De-
cember 12, 1973, and his release from prison on Jan-
uary 12, 1976.
The record reveals that Busie purchased this pistol
on April 5, 1973, from Gerald Braverman, Vice-Presi-
dent of Braverman Arms Company, Wilkinsburg, Penn-
sylvania (TT. 98), and that this pistol was manufactured
in Southport, Connecticut (TT. 99). Subsequent 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 ship-
ment and within the Western District of Pennsylvania.
We believe that this 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)."" Count
14 concerned Busic’s possession of a Beretta which he
® Section 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
exceeding one year; .. . to receive any firearm or ammunition
which has been shipped or transported interstate or foreign
commerce.”
10 Section 924(a) provides, in pertinent part:
“(a) Whoever violates any provision of this chapter .. . shall
be fined not more than $5,000, or imprisoned not more than
five years, or both... .”
11 Section 1202(a)(1) provides:
“(a) Any person who—
(1) has been 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 commerce or affect-
ing commerce, after the date of enactment of this Act, any
firearm shall be fined not more than $10,000 or imprisoned for
not more than two years, or both.” gt
30
was carrying at the time of his arrest. Counts 15 and
16 concern his possession of two Strum-Ruger pistols.
As to these three counts, Busic contends that there was
no showing of a recent interstate nexus as to the offense
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 oceasions courts of this
district has addressed this issue. United States v. Graves,
394 F. Supp. 429, 434 (W.D. Pa. 1975); United States
v. Letky, 371 F. Supp. 1236, 1289-90 (W.D. Pa. 1974).
In both cases it was noted, citing Bass, that as to the
offense of possessing, the interstate commerce require-
ment is satisfied if it is shown that at the time of the
possession, the firearm was moving interstate, or on an
interstate facility, or if the possession affected com-
merce. Further, both of these cases held that this inter-
state commerce requirement was met by proof that at
anytime prior to possession the firearm had traveled in
interstate commerce. We believe that the evidence pre-
sented by the Government at trial was sufficient to satisfy
the interstate commerce requirement enunciated in Bass,
and set forth in cases within this District.
Assault Charges
Busic contends in his motion for Judgment of Ac-
quittal that the evidence was legally insufficient to estab-
lish his participation 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 in-
dictment, in violation of 18 U.S.C. Sections 2, 111, 1114.
Busic argues that when the defendants went to the
shopping 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 al-
31
though the evidence supports a finding of a conspiracy
by LaRocca and Busic to rob and assault Harvey, it
does not support a finding that he conspired with La-
Rocca to assault the other officers present 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 “additional” assaults were in furtherance of their
original conspiracy to possess and distribute drugs. We
disagree.
We believe that LaRocca’s acts are attributable to
Busic. The evidence is clear that the defendants con-
spired and made arrangements with certain individuals
in Florida to obtain a certain quantity of marijuana and
cocaine for the purpose of distributing these drugs in the
Pittsburgh area. Agent Harvey was originally asked to
transport these narcotics for them from Florida to Pitts-
burgh. After Harvey showed an interest in possibly
obtaining a quantity of these drugs and offered a sum
of money for their purchase, the defendants conceived
of a scheme to rob Harvey on May 13, 1976.
To say that their assault on the federal officers was
not in furtherance of their original conspiracy relating
to the obtaining and distributing of drugs is completely
contrary to the evidence presented. Harvey was present
at the shopping center only for the purpose of showing
them the “front money” for the purchase of the dis-
cussed drugs. The arrangements for the sale, the Florida
trip and the notice of the trip to the defendants’ drug
connection 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 cash which Harvey brought
with him that day was to be used for the intended pur-
pose of purchasing the drugs previously discussed. Har-
vey, himself, was not certain that a robbery was to
occur, but he was required to protect himself and the
government money. Clearly, the evidence presented a
continuing conspiracy, and the intended robbery of Har-
vey by the defendants on May 18, 1976, was in further-
ance of their original drug conspiracy. Therefore, al-
though Busie did not physically participate in the shoot-
out and assaults, he was and remained as much a part
—_ oe
32
of the original conspiracy as was LaRocca, and is, thus,
just as responsible for the actions of LaRocca in the
assaults on the other federal officers involved as LaRocca
is. The jury was entitled to infer that if defendants
had stolen the money they could have used it to buy
the drugs for themseives.
For these reasons, we likewise find no merit in Bu-
sic’s argument that the evidence was insufficient to estab-
lish that he unlawfully possessed a firearm and par-
ticipated in the various felonies, 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 18, 1976. During the
various meetings involving the defendants and agent Har-
vey, 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, provided 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
concerning the defense of entrapment is found in Hamp-
ton 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 dis-
33
position to commit the alleged offense and induce its
commission . . . ,’ the defendant is protected by
the defense of entrapment.”
425 U.S. 490, 96 S. Ct. 1650. This court properly charged
on entrapment in 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
Islands v. Cruz, 478 F.2d 712, 717, n.5 (8d Cir. 1973),
and United States v. Watson, 489 F.2d 504, 506 (8d
Cir. 1973).
The jury had ample evidence before it that the de-
fendant, LaRocca, initially approached Hervaux on May
5, 1976, concerning a possible purchase of marijuana.
When Busic entered into negotiations and discussions
which began on May 7, 1976, and lated through May 12,
1976, their contract in Florida had been established and
all plans had been made for Harvey’s trip to Florida
to obtain quantities of marijuana and cocaine and dis-
tribution of these drugs in this area. Although Busic
testified that Hervaux initiated the discussions concern-
ing the drugs, the testimony of Curwood Masters suf-
ficiently rebutted this line of testimony and the jury
was justified in believing that the defendants had the
predisposition to devise the scheme for the drug pur-
chase and carry out plans to that end. Therefore, the
defendants’ entrapment arguments 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 foreign or interstate commerce at
any time. Second, they contend that the court erred in
refusing to charge the jury regarding the Government’s
failure to call Richard Hervaux, a government inform-
34
ant 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. La-
Rocca advanced a similar argument with regard to the
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 con-
spiracy 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, at-
tempted 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 testimony 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’ remain-
ing contentions, and therefore dismiss their motions for
Judgment of Acquittal and New Trial.
An appropriate order follows.
/s/ Barron P. McCune
BARRON P. MCCUNE
United States District Judge
ee: Counsel of record.
35
IN THE UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
Criminal Action No. 76-137
UNITED STATES OF AMERICA
Ss.
MICHAEL M. BUSIC, and
ANTHONY LAROCCA, JR., DEFENDANTS
ORDER
AND NOW, February 17, 1977, the defendants’ Mo-
tion 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.
/s/ Barron P. McCune
BARRON P. MCCUNE
United States District Judge
ce: 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 \
36
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 77-1375
77-1376
UNITED STATES OF AMERICA, APPELLEE
Vv.
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
* Herbert J. Stern, United States District Judge for the District
of New Jersey, sitting by designation.
37
Samuel J. Reich, Esquire
1322 Frick Building
Pittsburgh, Pennsylvania 15219
Attorney for Appellant Busic
Michael A. Litman, Esquire
308 Frick Building
Pittsburgh, Pennsylvania 15219
Attorney for Appellant LaRocca
Blair A. Griffith
United States Attorney
Western District of Pennsylvania
By: Thomas A. Crawford, Jr.,
Esquire
Assistant U.S. Attorney
633 U.S. Post Office & Courthouse
Pittsburgh, Pennsylvania 15219
Attorney for Appellees
OPINION OF THE COURT
(Filed Jan. 5, 1978)
STERN, District Judge
On this appeal we must decide whether a defendant
may receive consecutive sentences for the crime of as-
sault with a dangerous weapon [18 U.S.C. § 111] and
the crime of use of a firearms 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 sen-
tencing violates the double jeopardy clause and we re-
mand La Rocca’s case to the district court for re-
sentencing.
Defendants also cite as error the trial court’s refusal to
sever for trial those counts of the indictment which re-
quired proof of defendants’ prior felony convictions. We
hold that, on the facts of this case, 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”
38
instruction, 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 dis-
tribute drugs which turned into an attempt to rob “front
money” from an undercover agent. This attempted rob-
bery culminated in a shootout with federal agents.
On this appeal, we must view the evidence in the light
most favorable to the government. See Glasser v. United
States, 315 U.S. 60 (1942). Thus viewed, the evidence
might be summarized as follows. 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. At this
time, defendants agreed with Harvey that Harvey would
go to Florida to purchase drugs from one of the de-
fendants’ suppliers 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, Har-
vey 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. Har-
vey 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
a Oh LO EN
39
Alfree and William Petraitis, and two shots at the vehicle
containing agent John Macready. (Tr. 40). He was im-
mediately 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, govern-
ment agents found yet another pistol under the driver’s
seat and another box of ammunition in the glove com-
partment. (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 defendants 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 jointly convicted
in 1973 for assault on two federal officers, theft of gov-
ernment 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, althouh the government was not permitted
to elicit the facts underlying these convictions. (Tr. 195).
Defendants raised the defense of entrapment. Busic
took the stand on his own behalf, claiming that Hervaux
had initiated the scheme to rob Harvey and further claim-
ing that, despite 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
commonlaw wife, Janna K. Sam, who testified that La
Rocca avoided the repeated 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 testi-
mony of their court-appointed investigator, Fred Koerh-
ner, who testified that he had twice attempted, unsuccess-
fully, to serve Hervaux. (Tr. 881). At this time, the
40
government offered itself to serve Hervaux, but defense
counsel declined the offer. (Tr. 385-386). Defendants
requested, and were denied, a “missing witness instruc-
tion” which would have instruced the jury that it was
entitled to draw an adverse inference based on the govern-
ment’s failure to call Hervaux to the stand.
The jury convicted defendants of conspiring to distrib-
ute 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 assaults on federal officers, in vio-
lation of § 924(c) (1); Busic for having carried a fire-
arm 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.
Defendants’ first and most formidable challenge is di-
rected at 18 U.S.C. § 924. That statute penalizes a per-
son 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 com-
mission 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 first offenders, and two-to-twenty-five years for
subsequent offenders.'
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
41
Busic was indicted, convicted and sentenced under sub-
section (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 fel-
onies. In addition, each defendant received consecutive
sentences under the enhanced penalty provision of 18
U.S.C. § 111 for having assaulted federal officers with a
“dangerous or deadly weapon.” *
A
Defendants argue that conspiracies to commit drug
offenses (21 U.S.C. § 846) and assaults on federal offi-
cers (18 U.S.C. §111) are not “felonies” within the
meaning 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 assassina-
tions of that decade. The purpose of that legislation was
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 pro-
bationary sentence, nor shall the term of imprisonment imposed
under this subsection run concurrently with any term of imprison-
ment for the commission of such felony.
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 com-
mitted with a “deadly or dangerous weapon”:
Whoever forcibly assaults, resists, opposes, impedes, intimi-
dates, or interferes 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 $10,000 or
imprisoned not more than ten years, or both.
42
“to strengthen Federal controls over interstate and for-
eign commerce in firearms and to assist the states effec-
tively 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(¢e) (2)
which makes it a federal crime to possess an unregistered
firearm, federal jurisdiction being predicated upon com-
mission 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) 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 unregis-
tered—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 ex-
clude narcotics conspiracies and assaults on federal offi-
cers.’ The construction urged by defendants would limit
3 That Congress intended the term “felony” to be broadly con-
strued 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 offenses
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 Repre-
sentative 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,
112, or 113 which already define the penalties for use of fire-
arms in assaulting officers, with Sections 2113 or 2114 concern-
ing armed robberies of the mail or banks, with Section 2231
43
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 encompasses the federal
felonies with which defendants were charged.
B.
A different question is posed, however, as to whether
the double jeopardy clause protects a defendant from be-
ing convicted both of the crime of use of a dangerous
weapon to assault a federal officer (18 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 disagree-
ment among the circuits.
In United States v. Eagle, 5389 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 vio-
lation of 18 U.S.C. § 1153. The defendant was also con-
victed 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 Sec-
tion 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, 5388 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 rob-
bery statute which, like 18 U.S.C. § 111, provides for an
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
sponsor of a bill made expressly for the sake of legislative history
carries great weight, it is not necessarily dispositive and we need
not narrowly construe this statute—which by its language and legis-
lative history was obviously intended to be broad in its reach—on
the basis of this statement.
44
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 sentences un-
der 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 jeop-
ardy clause because each statute requires proof of dif-
ferent 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 or
device during the commission of the robbery. In
comparison, in order to sustain a conviction under
Section 924(c) the government must establish that
the perpetrator used or carried a firearm during
the commission of a felony. The appellants would
have us equate “using a dangerous weapon or de-
vice” with “used or carried a firearm” and find that
the prohibition against double jeopardy has been vio-
lated. However, it is clear that Congress never in-
tended to equate these terms.
The passage of Section 924(c) was a Congres-
sional reaction to demands for “gun control” in
the wake of political assassinations. It is a nar-
rowly drawn statute intending to discourage a felon
from using or carrying a firearm, and does not en-
compass 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 iden-
tical 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
ee ke eR Se
45
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:
. [I]t is a settled principle of law that two
Separate offenses arising out of the same act or
transaction may be charged where “each [statu-
tory] 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 danger-
ous weapon in the robbery of a bank, whereas the
second specifically requires the use of a firearm in
the commission of any felony.
It is, of course, an altogether different question
whether the defendant may or should be punished
twice through consecutive sentences for the convic-
tion of two offenses arising out of a single act. In
denying the motion to dismiss either indictment for
violation of the double jeopardy clause the Court
does not intend to foreclose the defendant from rais-
ing 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 arguments the
defendant may have against compounding 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
deadly or dangerous weapon—which could be a knife
or an explosive as well as a firearm; § 924(c) (1) pun-
ishes 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 firearm and the felony charged
in a § 924(c)(1) count is an assault and the govern-
ment does not prove additional elements for either of- -
fense, it is clear that a defendant will be twice punished
46
for the identical offense 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). In a line of cases, the Supreme Court has con-
tinued to assume the validity of this principle, but has
generally found the misconduct at issue to constitute
distinet 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 enunciated 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 (8rd Cir.), cert. denied, 409 U.S. 914
(1972) ; United States v. Johnson, 462 F.2d 423 (3rd
Cir. 1972), cert. denied, 410 U.S. 982. (1973) .*
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 fed-
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 sentences could not be imposed under the subsections of
that statute. Following Prince, we held in United States v. Corson,
449 F.2d 544 (3rd Cir. 1971) (en banc), that where a defendant is
convicted under more than one subsection of § 2113 the sentencing
judge should impose 2 general sentence on all counts not to exceed
the maximum permissible sentence which carries the greatest maxi-
mum sentence. See generally, Note, The Federal Bank Robbery Act
—The Problem of Separately Punishable Offenses, 18 Wm & 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.
ae a ae
Ae ON ne ate a at TI
47
eral officers with a dangerous weapon which was a fire-
arm. Under Count 19, the government proved use of
the identical firearm to commit 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 dis-
trict court at which point the government must move
for resentencing under either Count 19 or Counts 6 and
7.° The trial court may not impose a more severe sen-
tence 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 con-
viction 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.
C.
While prosecution under the use provision of § 924
(c) (1) may, as in this case, create double jeopardy prob-
lems when coupled with a § 11* count, prosecution under
the carrying provision of § 924(c) (1) will not. The lat-
ter subsection contains an element not required to be
proved under § 111: the government must prove that the
firearm was carried “unlawfully.” As we read it, the
5 While we recognize that La Rocca was charged in the § 924
count with using a firearm to commit both assault and conspiracy,
we cannot sustain his § 924 sentence based on commission of con-
spiracy. It is a fair inference from the record that the conspiracy
to distribute drugs terminated as of the time that defendants de-
cided 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 it found that the conspiracy was shorter in
duration than was charged in the indictment. See, e.g., United
States v. Somers, 496 F.2d 723 (3rd Cir.), cert. denied, 419 U.S.
832 (1974). In any event, since both conspiracy and assault were
charged as the underlying felonies in Counts 6 and 7, we cannot tell
on which the jury relied.
48
term “unlawfully” requires the government to prove that
the defendant’s possession of the firearm violated fed-
eral, state or local registration laws. See, United States
v. Rivero, 582 F.2d 450 (5th Cir. 1976) ; United States
v. Howard, 504 F.2d 1281 (8th Cir. 1974); United
States v. Ramirez, 482 F.2d 807 (2nd Cir.), cert. denied,
414 U.S. 1070 (1973). Therefore, as to Busic, consecu-
tive sentences under $111 and § 924(c) (2) were per-
missible.®
III
Defendants also cite as error the refusal of the district
court to sever those counts of the indictment which
charge them with receiving firearms while being con-
victed 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 firearm to commit these felonies and, in addition,
that La Rocca had also been convicted in 1970 of traf-
ficking in machine guns, assault and battery, pointing a
deadly weapon and possession of narcotics. On oral argu-
ment in this Court, however, it was agreed that the in-
dictment was never shown to the jury.
Defendants argue that the district court’s refusal to
sever the $922 counts resulted in admission into evi-
dence of their prior convictions in the government S case-
in-chief which prejudiced them in the trial of the other
offenses charged.
6 We are mindful of the potential injustice caused by our decision
today: La Rocca, who actually shot at the federal agents, may re-
ceive a lesser sentence than Busic, who was only vicariously liable
for these assaults. However, the district court has authority to cure
this disparity on a motion under Fed.R.Crim.P. 35.
718 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 exceeding one year;
* * *% % -
to receive any firearm or ammunition which has been shipped
or transported in interstate or foreign commerce.
ick ee
49
The question of severing for trial counts requiring
proof of prior convictions from other counts which do
not permit such proofts has received little attention in
the circuits.* In United States v. Park, 581 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 counts because it enabled the
government to bring to the jury’s attention the fact that
he was a convicted felon. The Fifth Circuit held that
the trial court’s refusal to sever was not error because
defendant’s prior conviction for having knowingly manu-
factured drugs would, in any event, have been admis-
sible on the other count. See also, United States v.
Abshire, 471 F.2d 116 (5th Cir. 1972). A novel ap-
proach 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 severance, 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.
The defendants 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 might other-
wise 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 prov-
ing predisposition. In addition, prejudice was minimized
in this case: the jury was never shown the indictment,
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, 518 F.2d 316
(9th Cir.), cert. denied, 423 U.S. 895 (1975); United States v.
Roberts, 503 F.2d 453 (8th Cir. 1974).
50
and the government was not permitted to elicit the factual
basis of these convictions. For these reasons, we hold
that the refusal to sever was harmless error.
Nevertheless, 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 in-
dependently admissible on the other counts. If it is de-
termined that the convictions would not be admissible
on the other counts—that were these counts to be tried
alone the jury would not hear this evidence—then sever-
ance should be granted.® In addition, we think that, in
framing an indictment, the better practice dictates that
the government should not set forth the details of de-
fendants’ actual convictions, but merely allege that the
defendant is a convicted felon. If Defendant desires the
particulars, he may, of course, so move for them. See
Fed.R.Crim.P. 7.
IV
Defendants further contend that the trial court com-
mitted reversible error in refusing to instruct the jury
that it might draw an adverse inference from the govern-
ment’s failure to call its informer, Richard Hervaux.
Despite the fact that the government actually offered to
serve Hervaux, defendants contend that the burden of
calling him rested on the government, and that the gov-
ernment’s failure to do so entitled defendants to a “miss-
ing 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 in-
ference arises that that witness would have exposed facts
unfavorable to that party. See, Graves v. United States,
® Of course, we do recognize the difficulties inherent in such pre-
trial determinations. Nevertheless, if the government chooses to
join such counts, it must be prepared to justify the joinder to the
trial judge by some showing that the prior convictions would be ad-
missible even absent joinder. By the same token, in moving for
severance of these counts, a defendant may be required to reveal
some of his trial strategy, as to an entrapment defense or the like,
in the resolution of his motion for severance.
hn ke See 5 en te 08 ee oe
eS Ce i es eee ee
Dn, eel dees te Ng ede DS BR ee (OE CN ee ewe
51
150 U.S. 118, 121 (1898); 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 occasions
addressed the applicability of this inference. Thus, in
United States v. Jackson, 257 F.2d 41 (8rd Cir. 1958),
we reverse a conviction based on the trial court’s refusal
vo permit defense counsel to comment on the govern-
ment’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-defendants
who had pleaded guilty, and were known to and avail-
able to both sides, did not give rise to any inference
as to whom their testimony could be expected to fave.
More recently, in United States v. Hines, 470 F.2d 225
(38rd Cir. 1972), cert. denied, 410 U.S. 968 (1973), we
held that the government’s failure to call an identifica-
tion witness would also not give rise to any inference.
There, after stating that its application requires the wit-
ness to have special, non-cumulative information relevant
to the case, we went on to note the weakness of the
missing witness inference:
Clearly, every absent but producible witness posses-
sing 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 helpful to a party, not that the testimony
would have been adverse.
470 F.2d at 230. (Emphasis in original).
As we noted in Hines, a party’s failure to call a wit-
ness does not necessarily imply that the witness’s testi-
mony would have been unfavorable to that party. Al-
though Hervaux may have had special knowledge rele-
vant 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 this testimony. Con-
siderations of cumulation and jury fatigue may pre-
clude calling a witness who is entirely helpful; calcula-
52
i a witness may help a lot but hurt a little may
protien a counsel believes that his burden
is already met. Then, too, questions of demeanor and
credibility, hostility, and the like may influence the gov-
ernment not to produce a witness whose testimony might
be entirely harmful to the 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 testi-
mony might be expected to be particularly favorable to
La, we hold that where neither the govern-
ment nor the defendant call a witness who is available
to both, the “missing witness” instruction does not prop-
erly lie. See, United States v. Kenney, 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. Higginbotham, 451 F.2d 1283 (8th Cir. 1971). Un-
der these circumstances, no inference 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 governments failure
to produce affirmative evidence to substantiate any neces-
sary 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
10 t help but note that the defendant who in summar-
tion pe tien poise “Why didn’t the government call ».4 a relies
on the inability of the government to respond by advising the __
of any of these considerations, all of which are outside the recor
and some of which stem from the subjective judgment of the prose-
cutor.
. ‘ : . : iaesate
11 The basis for denying an instruction under these circumstanc
was seein best stated by Judge Robb in his concurring opinion
in Burgess Vv. United States, supra, at 239: “Having deliberately
rejected an opportunity to produce a witness a defendant should not
be permitted to complain that the witness is missing.
Ls 5 cl tes tees aS al IIE id at I
et a an. Sins Oona aot?
53
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 in-
struction.
V
Defendants also challenge the trial court’s refusal to
sever their cases for trial, the admission into evidence
of the rebuttal testimony of Special Agent Masters, and
the sufficiency of the evidence to sustain Busic’s con-
viction for assault.’ We find these challenges to be with-
out merit."* Thus, we affirm Busic’s conviction in all
12 Defendant Busic concedes that he aided and abetted the assault
on Harvey, who was not a federal officer. However, he challenges
the sufficiency of the evidence to sustain his conviction for assault-
ing federal officers Alfree, Petraitis and John Macready. We find
this contention to be without merit since the evidence overwhelm-
ingly supports his conviction 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.S. 640 (1946).
8 We have also considered and rejected the following challenges
raised by defendants in their pro se briefs:
“1. Whether the remarks actions and conduct of the trial
prosecutor was so flagrant and inflammatory, or so prej-
udicial and violative of due process to justify a new trial.
2. Whether or not appellants were deprived of a fair trial
when the trial court denied them a severance; in light of
the extreme prejudice to one defendant or the other in-
evitable.
3. Whether the trial judge was prejudicial to the extent of
depriving appellants of a fair and impartial trial.
4. Whether appellants were deprived of due process when
they were deprived of a prompt post-arrest arraignment.
5. Whether the defendants were deprived of due process when
the government failed to produce the key government al-
leged informant in the case—Richard Jervaux.
6. Whether the appellants were deprived of due process when
they were denied Jenks Act discoverable materials.
7. Whether or not appellants were deprived of effective assist-
ance of counsel, and counsel who suppressed evidence favor-
able to his clients.
8. Whether or not the government met its burden to sustain
the convictions that appellants conspired to obtain, dis-
54
respects. La Rocca’s case is remanded to the district
court for resentencing on either the counts alleging viola-
tion of 18 U.S.C. $111 or the count alleging violation of
18 U.S.C. § 924(¢) (1).
To the Clerk:
Please file the foregoing opinion.
/s/ Herbert J. Stern
HERBERT J. STERN
U.S.D.J.
tribute and sell controlled substances; or that any con-
spiracy existed at all.”
(Appellants’ Pro Se Brief, at 7).
ee ae ee
Nemes Lite es
eet 2
Bas = A i NT i tt din
55
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 77-1375/77-1376
UNITED STATES OF AMERICA
vs.
BusIc, MICHAEL
Michael M. Busic, Appellant in No. 77-1375
UNITED STATES OF AMERICA
vs.
LA Rocca, ANTHONY
Anthony La Rocca, Jr., Appellant in No. 77-1376
(D.C. Criminal Nos. 76-137-1 and 76-137-2)
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
Present: VAN DUSEN and ROSENN, Circuit Judges
and STERN, District Judge *
JUDGMENT
This cause came on to be heard on the record from
the United States District Court for the Western Dis-
trict of Pennsylvania and was argued by counsel on Oc-
tober 21, 1977.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said
* Herbert J. Stern, United States District Judge for the District
of New Jersey, sitting by designation.
56
District Court, entered March 15, 1977, be, and the same
is hereby affirmed as to appeal No. 77-1375. The appeal
at No. 77-1376 is remanded for proceedings in accord-
ance with the opinion of this Court.
ATTEST:
/s/ [Illegible]
Clerk
January 5, 1978
57
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 77-1375
77-1376
UNITED STATES OF AMERICA, APPELLEE
Vv.
MICHAEL BUSIC, APPELLANT
UNITED STATES OF AMERICA, APPELLEE
v.
ANTHONY LA Rocca, JR., APPELLANT
Appeal from the Judgment and Conviction of the
United States District Court for the
Western District of Pennsylvania
SUPPLEMENTAL OPINION SUR REHEARING—
Filed Dec. 12, 1978
(Reargued June 7, 1978)
Before Van Dusen and Rosenn, Circuit Judges,
and Stern,” District Judge
58
Samuel J. Reich, Esquire
1322 Frick Building
Pittsburgh, Pennsylvania 15219
Attorney for Appellant Busic
Michael A. Litman, Esquire
308 Frick Building
Pittsburgh, Pennsylvania 15219
Attorney for Appellant La Rocca
Blair A. Griffith
United States Attorney
Western District of Pennsylvania
By: Thomas A. Crawford, Jr.,
Esquire
Assistant U.S. Attorney
633 U.S. Post Office & Courthouse
Pittsburgh, Pennsylvania 15219
Attorney for Appellees
STERN,” District Judge
On the government’s petition for rehearing, we recon-
sider our opinion in United States v. Busic, Nos. 77-1375
and 77-1376 (3rd Cir., January 5, 1978) in light of the
Supreme Court’s subsequent decision in Simpson v. United
States, U.S. ——, 46 U.S.L.W. 4159 (February 28,
1978). Although we reach the same conclusion, we do
so on somewhat different grounds.
In Simpson v. United States, the Court held that a de-
fendant may not receive consecutive sentences under
section 924(c) and under the subsection of the Bank Rob-
bery Statute, 18 U.S.C. § 2113(d), which provides for an
enhanced penalty where a “dangerous weapon or device”
is used.! The Court noted that “[c]ases in which the Gov-
* Herbert J. Stern, United States District Judge for the District
of New Jersey, sitting by designation.
118 U.S.C. § 2113(d) provides that:
(d) Whoever, in committing, or in attempting to commit,
any offense defined in subsections (a) and (b) of this section,
assaults any person, or puts in jeopardy the life of any person
by the use of a dangerous weapon or device, shall be fined not
more than $10,000 or imprisoned not more than twenty-five
years, or both.
ey
59
ernment is able to prove violations of two separate crim-
inal statutes with precisely the same factual showing. . .
raise the prospect of double jeopardy,” but declined to
reach the constitutional question. Instead, it based its
decision on the legislative history of section 924(c), on
the “policy of lenity” which in close cases counsels against
the imposition of additional penalties, and on the principal
of statutory construction which gives “precedence to the
terms of the more specific statute where a general stat-
ute ry) a Statute speak to the same concern... .”
— US. at ——.
In light of Simpson, we conclude that we need not have
reached the constitutional question in Busic, and accord-
ingly we vacate Part II-B of our opinion. We next ad-
dress two additional questions raised by Simpson: first
whether as to La Rocca, the government on resentenc-
ing is permitted to elect to proceed under either section
924 (c) (1) or section 111; second, whether as to Busic
the Simpson decision prohibits the consecutive sentences
under section 111 and section 924 (c) (2).
We believe that the Simpson decision did not adopt the
approach of the Eighth Circuit in United States v. Eagle
539 F.2d 1166 (8th Cir. 1976), cert. denied, 429 U.S. 1110
(1977), which held that a crime for which the penalty
is enhanced by use of a dangerous weapon cannot form
the basis of a prosecution under section 924(c) (1)
Rather, we believe that under Simpson, the government is
free to prosecute under either section, provided that the
defendant is not sentenced under both.? We are supported
in this view by Justice Brennan’s closing words in Simp-
son: “in a prosecution growing out of a single trans-
action of bank robbery with firearms, a defendant may
not be sentenced under both § 2113(d) and § 924(c).”
——~ US. —— (emphasis supplied). Moreover, we be-
lieve that this conclusion is consistent with the Congres-
sional purpose of section 924(c) which, as we noted in
2 Thus, since La Rocca’s section 111 sentence was to
run concur-
rently with his sentences on the other counts, should the csmeunmaae
elect to proceed under section 924 rather than under section 111, he
ny ag a Hagges sentence which he earlier received This
wou entirely consistent with o i 7’
pie se oly ur reading of the Simpson
60
our first opinion, was to control and severely penalize
the use of firearms.* td
We also believe that the Simpson opinion does not pro-
scribe the imposition of consecutive sentences under sec-
tion 111 and section 924(c) (2). We adhere to the view
which we expressed in our earlier opinion, that subsection
(2) of section 924 creates an entirely separate offense
from that punishable under section 111, since it requires
that the government prove the weapon was carried un-
lawfully”.* The Court in Simpson, faced only with the im-
position of consecutive sentences under the bank robbery
statute and section 924(c) (1), had no accasion to dif-
ferentiate between the two subsections of section 924(c).
In view of our reading of the different Congressional pur-
poses underlying the two subsections of section 924 (c),
we believe that Simpson applies only to subsection (1) of
section -924(c).
Accordingly, as to Busic, we again affirm the imposi-
tion of consecutive sentences under section 924(c) (2) and
section 111. La Rocca’s case is remanded for resentenc-
ing, at which time the government may elect to proceed
under either section 924(c) (1) or section 111, but not
both.
TO THE CLERK:
Please file the foregoing supplemental opinion.
HERBERT J. STERN
District Judge
3 On reargument, the government again asks that we sustain the
section 924(c)(1) sentence using as a predicate La Rocca’s convic-
tion for narcotics conspiracy. Although we note that the jury was
charged that it could convict La Rocca for having used a firearm
during commission of either the assault or the narcotics conspiracy,
we reiterate that it is impossible to ascertain on which of these
felonies the jury relied. See Slip op., fn. 5.
4We are buttressed in this view by the fact that the weapon
which Busic was convicted for having “carried unlawfully”, was
a different weapon from that used by La Rocca in committing the
underlying assault, charged to Busic pursuant to 18 U.S.C. § 2.
Thus, on the facts of this case, it is clear that Busic’s conviction
under section 929(c) (2) was for a crime completely separate from
his conviction for assault with a dangerous weapon.
A ee a ee i eat Mme Nar wt
tar a hla
aA As te
St arn.
cn nee Ha sien cies sli
61
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 77-1375/77-1376
UNITED STATES OF AMERICA
vs.
Busic, MICHAEL
Michael M. Busic, Appellant in No. 77-1875
LA Rocca, ANTHONY
Anthony La Rocca, Jr., Appellant in No. 77-1376
(D.C. Criminal No. 76-137-1 and 2)
ON APPEAL
FROM THE UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
Present: ROSENN and VAN DUSEN, Circuit Judges
and STERN, District Judge*
JUDGMENT ON REHEARING
This cause came on to be heard on the record from
the United States District Court for the Western District
of Pennsylvania and was reargued by counsel on June
7, 1978.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgments of the said
District Court, filed March 15, 1977, be, and the same
are hereby affirmed with respect to appellant Busic and
remanded for the resentencing of appellant La Rocca,
at which time the government may elect to proceed under
section 924 (c)(1) or section 111, but not both, all in
accordance with the opinion of this Court.
ATTEST:
M. Elizabeth Ferguson
Chief Deputy Clerk
December 12, 1978
* Herbert J. Stern, United States District Judge for the District
of New Jersey, sitting by designation.
62
SUPREME COURT OF THE UNITED STATES
No. 78-6020
MICHAEL M. BUSIC, PETITIONER,
Vv.
UNITED STATES
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Third Circuit.
On consideration of the motion for leave to proceed
herein in forma pauperis and of the petition for writ
of certiorari, it is ordered by this Court that the motion
to proceed in forma pauperis be, and the same is hereby,
granted; and that the petition for writ of certiorari be,
and the same is hereby, granted. The case is consolidated
with No. 78-6029 and a total of one and one half hours
are allotted for oral argument.
June 4, 1979
ea ee a:
63
SUPREME COURT OF THE UNITED STATES
\ No. 78-6029
ANTHONY LAROCCA ,PETITIONER
Vv.
UNITED STATES
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Third Circuit.
On consideration of the motion for leave to proceed
herein in forma pauperis and of the petition for writ
of certiorari, it is ordered by this Court that the motion
to proceed in forma pauperis be, and the same is hereby,
granted; and that the petition for writ of certiorari be,
and the same is hereby, granted. The case is consolidated
with No. 78-6020 and a total of one and one half hours
are allotted for oral argument.
June 4, 1979
W ov. S. GOVERNMENT PRINTING OFFice; 1979 300119 64
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