Petition — Alberico v. United States

Iu the

Supreme Court of the Hnited States

APRIL TERM, 1980

No. . | 9 - ij 44

GREGORY ALBERICO, Petitioner

Vv.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS,

TENTH CIRCUIT

GERASH & RoBINSON, P.C.

Scott H. Robinson

and

Walter L Gerash

1439 Court Place

Denver, CO 80202

Telephone: (303) 825-5400

Counsel for Petitioner

November, 1979

—_j]—

INDEX

Page

Ee A ERE

EEE Eee 15a

umes neee Smeeereee 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED —..—__________..... a) 2

SP yp eg ee Beg. | So. Se 2

REASONS FOR GRANTING THE WRIT __ 5

I. WHETHER THE INTENTIONAL

WITHHOLDING BY THE PROSECU-

TOR OF MATERIAL EXCULPATORY

EVIDENCE BEARING ON THE

DEFENSE OF ENTRAPMENT, WHICH

MATERIAL EVIDENCE REFLECTED

THE DEFENDANT'S NON-PREDISPO-

SITION TO COMMIT THE CHARGED

OFFENSES, WARRANTS A NEW

TRIAL WHERE THE DISCLOSED

FACTS PREVIOUSLY WITHHELD

CAN BE FULLY UTILIZED BY

THE DEFENSE a ag 5

II. WHETHER THE EX PARTE AN

EXTRAJUDICIAL RELEASE BY THE

PROSECUTOR TO THE MEDIA OF

SELECTIVELY PRE-EDITED POR-

TIONS OF VIDEOTAPES OF ALLEGED

OFFENSES DENIED THE DEFENDANT

DUE PROCESS WHERE THE PRESS

RELEASE TOOK PLACE WITH THE

ACQUIESCENCE OF THE TRIAL

COURT AND RESULTED IN THE

BROADCAST OF HIGHLY INCRIMI-

NATING TELECASTS SHOWN

WITHIN THE COMMUNITY OF AN

UNSEQUESTERED JURY 9

IN ees ncaa dics tetra Sa oiidotinaalinmpoiinmambnea 14

Appendix:

Opinion of the United Sttaes Court of

Appeals for the Tenth Circuit —.._______ i

CITATIONS

Cases Page

Barbee v. Warden,

ee oe ee Cee Oe. Bee) 8

Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194,

ee 2 8 eee Cn eee 7,8

Bridges v. California,

314 U.S. 252, 62 S.Ct. 190,

4, | Se Reena nnnnee

Callahan v. Lash,

$81 F.Supp. 827 (N.D. Ind. 1974) _..______ 12

Central South Carolina Chapter, Society of

Professional Journalists, Sigma Delta Chi v.

Martin

250 7 .2uee. 1162 (D. 34. 1977) —___... 11

Coppedge v. United States,

are ae ee Gnas Ga. BOT) 13

Estes v. Texas,

381 U.S. 532, 85 SCt. 1628,

8 ee 10, 12, 13

Gannett Co. v. DePasquale,

. .US. —.., 99 $.Ct._.... 61 L.Ed.2d 608 (1979) __... 1]

Giglio v. United States,

405 U.S. 150, 92 S.Ct. 763,

Be NE IE ID aia centieserscnivcareinncsemenesnsctoonasnimtins 7

—ili—

Cases Page

Hampton v. United States,

eek See Ct

gs BL. | EER INT ry NCR nen enn 5

Holmes v. United States,

Pera eee. ee FF.

Krulewitch v. United States,

336 U.S. 440, 69 S.Ct. 716,

93 L.Ed. 790 (1949) - SEO ES OER OREN ES |

Levin v. Katzenbach,

See eae ae Cee Ge. Pee) C8

Lopez v. United States

373 U.S. 427, 83 S.Ct. 1381,

10 L.Ed.2d 462 (1963) _.......... es ee ae oe eek 8

Marshall v. United States,

258 F.2d 94 (10th Cir. 1958) ,

rvsd. on other grounds,

360 U.S. 310, 79 S.Ct. 1171,

> L.Ba2e 1250 (1959) —__.. EEE oomares or ere ae 9, 10, 14

Patterson v. Colorado,

205 U.S. 454, 27 S.Ct. 556,

ee ete oc.

People v. Murdock,

59 Ti.26 555, 237 N.E.2d 442 (1969) 7

People v. Ulrich,

576 I. 461, 54 N.E.24 995 (1941) _§_$___ 12

Rideau v. Louisiana,

373 U.S. 723, 83 S.Ct. 1417,

a ee ee I ot 10, 13

Sheppard v. Maxwell,

384 U.S. 532, 85 S.Ct. 1507,

1 Lee Cen (ieee) ...._.__.............. 16, I, 4

aliiies

Cases

Sollars v. State,

316 P.2d 917 (Nev. 1957)

United States v. Accardo,

297 F.2d 133 (7th Cir. 1962) _

United States v. Agurs,

96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)

Untted States v. Anderson,

356 F.Supp. 1311 (D. N.J. 1973)

United States v. Coast of Maine Lobster Company,

538 F.2d 899 (Ist Cir. 1976)

United States v. Gregorio,

497 F.2d 1253 (4th Cir. 1974)

United States v. Gurney,

558 F.2d 1202 (5th Cir. 1977)

United States v. Russell,

411 U.S. 423, 93 S.Ct. 1637,

36 L.Ed.2d 366 (1973)

United States ex rel. Meers v. Wilkins,

326 F.2d 135 (2d Cir. 1964)

OTHER AUTHORITIES:

Constitution of the United States:

Amendment V

United States Code:

18 U.S.C. §371 _.

18 U.S.C. §641

18 U.S.C. §1708

28 U.S.C. §1254(1) _..

Page

13, 14

nO

Jn the

Supreme Cot of the United States

APRIL TERM, 1980

RAL a

GREGORY ALBERICO, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS,

TENTH CIRCUIT

The petitioner, Gregory Alberico, prays that a writ of

certiorari issue to review the judgment and opinion of the

United States Court of Appeals, Tenth Circuit, entered

in this proceeding on August 24, 1979.

OPINION BELOW

The opinion of the Court of Appeals in this case, as

yet unreported, appears as Appendix A hereto, infra. No

opinions were issued by the trial court as are pertinent here.

JURISDICTION

The opinion of the Tenth Circuit Court was entered

August 24, 1979; the petitioner’s timely Petition for Re-

hearing was denied on October 10, 1979. This Petition for

Certiorari was timely filed within thirty (30) days from the

date of the denial of rehearing aforesaid. The jurisdiction

of this Court is invoked under 28 U.S.C. §1254(1).

-

QUESTIONS PRESENTED

The petitioner, Gregory Alberico, was convicted of

theft of government property, possession of stolen mail,

and conspiracy to convert government property. 18 U.S.C.

§§371, 641, 1708. The questions presented for review are:

1. Whether the intentional withholding by the prose-

cutor of material exculpatory evidence bearing on the de-

fense of entrapment, which material evidence reflected the

defendant’s non-predisposition to commit the charged of-

fenses, warrants a new trial where the disclosed facts previ-

ously withheld can be fully utilized by the defense?

2. Whether the release by the prosecutor to the media

of selectivity pre-edited portions of videotapes of alleged

offenses with the approval of the trial court and unbe-

knownst to the defense denied the defendant due process

where the press release took place with the acquiescence of

the trial court and resulted in the broadcast of highly in-

criminating telecasts shown within the community of an

unsequestered jury?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States, Amendment V:

“No person shall . . . be deprived of life, liberty,

or property, without due process of law...

STATEMENT OF THE CASE

In January 1977, Captain Gregory Alberico, a profes-

sional soldier and decorated Vietnam veteran who had en-

listed in the United States Army when he was 18, became

concerned about the financial future of his family as he

approached mandatory retirement, and began betting

heavily at Colorado Greyhound tracks. Despite his fervent

desire to provide financial security for his wife and two

daughters, Alberico’s success at wagering was less than spec-

tacular. By mid-February he was between $13,000 and

$15,000 in debt.

oer Ss

At one of the tracks, Alberico met Bill Martin, a self-

admitted con man and police informer who was also a

habitue of greyhound racing. Although Martin gave the

appearance of being a highly successful wealthy gambler,

eventually Martin became indebted to Alberico for over

$5,000 at a time when Alberico himself needed money des-

perately for his debts.

Martin discovered at this time that Alberico had three

vouchers he had found which memorialized transfers of

funds to the Rocky Mountain Arsenal. Martin convinced

Alberico the vouchers were valuable and arranged a meet-

ing at his apartment between Alberico and a person intro-

duced as “Dom”, who claimed to be a purchaser of stolen

goods. “Dom” offered $7,300 for the checks, but, although

Alberico needed money desperately, he refused to sell the

checks to “Dom”, despite repeated solicitation.

“Dom” was in reality, however, an undercover F.B.I.

agent who Martin was instructed to introduce to Alberico

by an agent investigating Martin. Later, however, Martin

gave Alberico a telephone number and the name “Mike”

and later still Alberico called the number and asked for

“Mike”. In so doing, he had called the number of a so-

called “storefront” undercover fencing operation staffed

by law enforcement agents.

“Mike”, too, was an F.B.I. agent. A meeting was ar-

ranged, to take place at the “storefront”.

At their meeting, “Mike”, fully aware of Alberico’s fi-

nancial plight, encouraged Alberico to sell the transfer

vouchers to him, indicating that the proposed transactions

would establish Alberico’s “retirement fund”. Eventually,

Alberico did sell the vouchers to “Mike”.

“Mike” began escalating his persuasion, in the mean-

time, encouraging Alberico to procure explosives for him.

“Mike” would display a pistol, which he kept in his desk

an” ac ink a a ea a aca aca

oe

at the “storefront” office. His enunciated purpose for dis-

playing the gun was to enhance his “role playing” as a

“tough guy”, an Italian gangster from Chicago. After con-

tinual urging, Alberico did deliver to “Mike” a quantity of

plastic explosives, but Alberico refused to deliver the nec-

essary military detonators along with the explosives.

No further transactions occurred even though the

enticements proffered included direct threats communi-

cated to Alberico and his wife, Elsa. Elsa Alberico de-

scribed her husband during this period as “a broken man.”

Small wonder she was actually relieved to find out upon

her husband’s arrest that “Mike” was not a gangster, but

rather was an F.B.I. agent intent on successful prosecution

of her spouse.

The trial was held in a rural: Western slope Colorado

town because of the obvious danger of inordinate publicity

as foreshadowed by extensive pretrial publicity. “Mike”

was the initial witness, and during his testimony, video-

tapes of the defendant and his initial conversations with

“Mike” were shown to the jury. That very evening, imme-

diately following the testimony, previously edited excerpts

of the videotapes released by the prosecution with full

knowledge of the trial judge were then broadcast. Defense

motions for mistrial were denied, the trial court refusing

even to hold an evidentiary hearing on the matter. The un-

sequestered jury was only briefly inquired of concerning

their viewing of the telecast, and trial proceeded forward

without the defendant having been given a chance to make

a record concerning claimed denial of due process through

prosecutorial misconduct.

News broadcasts of similar content were aired the fol-

lowing night, and renewed mistrial motions were denied.

During the course of argument on the renewed mistrial

motion, however, the trial court revealed that it had had

prior knowledge of the prosecutor’s intentions to unilat-

=

erally release the videotapes to the media for broadcast

during the trial.

Upon conviction, Alberico was sentenced to a combina-

tion of concurrent and consecutive sentences equaling

twenty years in duration. In addition, the court imposed

fines equaling an aggregate of $44,000.

REASONS FOR GRANTING THE WRIT

I. WHETHER THE INTENTIONAL WITH-

HOLDING BY THE PROSECUTOR OF MA-

TERIAL EXCULPATORY EVIDENCE BEAR-

ING ON THE DEFENSE OF ENTRAPMENT,

WHICH MATERIAL EVIDENCE REFLECT-

ED THE DEFENDANT'S NON-PREDISPOSI-

TION TO COMMIT THE CHARGED OF-

FENSES, WARRANTS A NEW TRIAL

WHERE THE DISCLOSED FACTS PRE-

VIOUSLY WITHHELD CAN BE FULLY

UTILIZED BY THE DEFENSE.

It was obvious, from the very outset of the prosecu-

tion, that the defense was that of entrapment. Despite this

fact, however, the prosecution at no time revealed to the

defendant the fact that ‘“‘Dom,” the individual Alberico had

refused to sell the checks to, was in fact an F.B.I. agent,

despite the obviously exculpatory character of such infor-

mation as it related to Alberico’s non-predisposition to

commit the crime of sale of government property. The key

question was that of predisposition. See United States v.

Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

See also Hampton v. United States, US. ,96 S.Ct.

, 48 L.Ed.2d 113 (1976).

Martin set up the meeting between Alberico and

“Dom”, and, knowing “Dom” to be an undercover agent,

Martin evidently arranged the meeting in hopes that it

would work to his advantage in the investigation then pend-

\

eee

oS

ing against him. Despite repeated attempts by “Dom”, Al-

berico steadfastly refused to sell the transfer vouchers.

But, at the time of trial, Alberico and his attorney had

no inkling whatsoever as to the true character of “Dom”.

Despite defense motions for exculpatory materials, the

defense thought because of what was provided on discovery

that the F.B.I.’s direct involvement began only with the

telephone call to “Mike” upon Martin’s encouragement,

and so it was decided, as a matter of strategy, to underplay

the prior meeting with “Dom”, for although that was com-

pelling evidence of non-predisposition on the part of the

defendant, the defense believed the jury might be preju-

diced against Alberico if it were to learn of this prior

meeting between him and a so-called “fence”.

As a consequence, the defendant’s opening statement

did not mention “Dom”, nor was there any reference to

specific evidence showing lack of pre-disposition. Then,

when the videotapes of the initial meeting between “Mike”

and Alberico were viewed by the jury, and the jury heard

Alberico assert that the checks could be sold for $7,000, the

jury at that time had not been supplied a complete factual

outline, via the defense opening statment, which would

enable it to put Alberica’s statement in proper context. It

simply did not know that “Dom” had previously told Al-

berico that the checks could be sold for approximately

$7,000, and the reason the jury was not told this during the

opening statement of the defendant was because the defense

did not know that “Dom” was an F.B.I. agent. The show-

ing of the videotape without this basic background, there-

fore, was devastating evidence of pre-disposition of incalcu-

lable prejudicial effect.

Without question, pretrial knowledge of the F.B.I’s

true full involvement would have drastically altered the

defendant's preparation for trial. This critical evidence on

the issue of predisposition would have been the focal point

of the opening statement, which in turn would have less-

= =

ened the devastating effect of Alberico’s apparent expertise

and willingness to sell the checks which appeared in the

videotape of his first meeting with “Mike.” Defense coun-

sel could then have presented the jury with the true pic-

ture, that of massive solicitation which eventually wore

down Alberico to the point that he was willing to engage

in “crimes” with F.B.I. agents. The intentional nondisclo-

sure of critical exculpatory evidence hindered Captain

Alberico in the presentation of his defense, denying him

due process and thus depriving him of the fair trial to

which he was constitutionally entitled.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963), this court declared as violative of

due process non-disclosure of favorable evidence material

to the issue of guilt. The petitioner would submit that here,

the undisclosed information is patently material and ex-

cv'patory.

In evaluating materiality, this Court has stated that it

is sufficient that the evidence be relevant to an important

issue in the case. See, e.g., Giglio v. United States, 405 U.S.

150, 92 S.Ct. 763, 31 L.Ed.2d 604 (1972) . Thus, in order

to assess materiality, the reviewing court must focus upon

the theory of the prosecution and the nature of the defense.

People v. Murdock, 39 I11.2d 553, 237 N.E.2d 442 (1969).

Here, the government’s theory was that Captain Al-

berico, a person predisposed to commit criminal acts, ini-

tiated a contact with a government agent and then com-

mitted a crime by selling government checks to the agent.

The defendant’s view was that he had not been previously

inclined to make the checks available to anyone illicitly,

but that governmental encouragement and enticement had

caused him to finally sell the checks.

The issue was thus whether Capitain Alberico was or

was not predisposed to engage in criminal activity prior to

government intervention; whether, by governmental ac-

—8—

tion, the commission of a crime was induced, or whether

it merely gave the accused an opportunity to continue on

a “course of criminal conduct upon which [the defendant]

had earlier embarked.” Lopez v. United States, 373 U.S.

427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). And here, just

as the existence of an eyewitness would be highly material

to a defense of alibi, see United States ex rel. Meers v.

Wilkins, 326 F.2d 135 (2d Cir. 1964), evidence of prior

unsuccessful governmental solicitation was highly material

to the issue of predisposition inherent in the defense of

‘entrapment.

Here, the undisclosed identity of “Dom” clearly satis-

fies the materiality requisites outlined in United States v.

Agurs, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), as the “‘sub-

stantial evidentiary significance” of ‘“‘Dom’s” identity can-

not be doubted. See Barbee v. Warden, 331 F.3d 842 (4th

Cir. 1964). The apparent willingness and expertise dis-

played by Captain Alberico with regard to the checks at

the first meeting with “Mike” was the factual “linchpin”

of the government’s case, and under these circumstances

it is sufficient that early disclosure might have affected

the eventual outcome of the case. Levin v. Katzenbach,

363 F.2d 287 (D.C. Cir. 1966). Clearly, timely disclosure

might well have affected the outcome of this prosecution.

The Court of Appeals found nondisclosure “troubl-

ing’, but concluded that Brady was not invoked because

of the fact that ‘“‘Dom’s” true identity was discovered dur-

ing the course of the trial. Petitioner would concede that

this suitation differs somewhat from that specifically dis-

cussed in Brady v. Maryland, but the focus and issues are

the same: whether intentional nondisclosure by agents of

the prosecution denies an accused due process. Here, just

as in Brady, the accused was denied fundamental fairness

in his preparation for trial, and his conviction should be

reversed.

a en

II. WHETHER THE EX PARTE AND EXTRA-

JUDICIAL RELEASE BY THE PROSECU-

TOR TO THE MEDIA OF SELECTIVELY

PRE-EDITED PORTIONS OF VIDEOTAPES

OF ALLEGED OFFENSES DENIED THE DE-

FENDANT DUE PROCESS WHERE THE

PRESS RELEASE TOOK PLACE WITH THE

ACQUIESCENCE OF THE TRIAL COURT

AND RESULTED IN THE BROADCAST OF

HIGHLY INCRIMINATING TELECASTS

SHOWN WITHIN THE COMMUNITY OF

AN UNSEQUESTERED JURY.

Trial was moved from the Denver area because of

extensive pretrial publicity. Despite this fact, however,

during the course of trial, and prior to introduction into

evidence, the prosecutor gave the broadcast media selec-

tively edited portions of videctapes, which were then

broadcast throughout Colorado.

Defense motions for mistrial were denied, despite the

fact that the videotapes in their highly edited form had

been shown throughout the community of the unseques-

tered jury. The Court even denied the defense an eviden-

tiary hearing on the apparent prosecutorial misconduct re-

vealed by the factual circumstances, and inquired only

briefly of the jurors whether or not they had seen the

broadcast.

Later comments by the Court made it apparent that

the “press release” of the prosecutor was done with the ac-

quiescence and approval of the trial court. And, the trial

court never permitted the defense to develop a record on

how the “press release” had occurred and its impact on the

petitioner's right for a fair trial.

The difficulty of maintaining an unprejudiced jury

was viewed as grave, even in times past when only news-

paper coverage threatened fair trials. See Marshall v. United

—_ =

States, 258 F.2d 94 (10th Cir. 1958) rusd. on other grounds,

360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959);

Holmes v. United States, 284 F.2d 716 (4th Cir. 1960).

The fear of external influences was reflected by the state-

ment of Mr. Justice Holmes in Patterson v. Colorado, 205

U.S. 454, 27 S.Ct. 556, 51 L.Ed.2d 879 (1907) ;

“The theory of our system is that the conclusions

to be reached in a case will be induced only by

the evidence and argument in open court, and

not by any outside influence, whether of private

talk or public print.”

The need for such judicial recognition was exacerbated

by the “onrush of an electronic age.” Rideau v. Louisiana,

373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). In

Rideau, this Court laid down the per se rule that the tele-

vising of a confession was an inherent denial of due process,

mandating reversal of a later conviction without the neces-

sity of a showing of actual prejudice.

The significance of Rideau was clearly established by

the court’s subsequent opinions in Estes v. Texas, 381 U.S.

532, 85 S.Ct. 1628, 14 L.Ed. 7543 (1965); and Sheppard

v. Maxwell, 384 U.S. 532, 85 S.Ct. 1507, 16 L.Ed.2d 600

(1966) . As Estes, supra, pointed out, in Rideau, supra, the

court:

. constructed a rule that the televising of

the defendant in the act of confessing to a crime

was inherently invalid under the due process

clause of the Fourteenth Amendment even with-

out a showing of prejudice or a demonstration of

the nexus between the televised confession and

the trial.”

Thus, the Rideau rule was extended in Estes and Sheppard

to include all circumstances where “‘a procedure employed

by the State involved such a probability that prejudice will

_

result that it is deemed inherently lacking in due process.”

(381 U.S. at 542-3).

The thrust of this due process guarantee is that all

possible precautions must be taken by trial courts to insure

that verdicts be based on evidence, not publicity. Sheppard

v. Maxwell, supra. Sheppard made a specific reference to

the use of a “doctored” picture which was published for

its sensational effect, much as the selectively edited video-

tapes aired in the present situation were broadcast in that

form for maximum impact.

Indeed, trial courts have a continuing affirmative duty

to insure that publicity and new broadcasts do not deny

accuseds a fair trial. See Gannett Co. v. De Pasquale,

US. » 99 S.C. , 61 L.Ed.2d 608 (1979). See also

Sheppard v. Maxwell, supra. And here, in striking similar-

ity to Sheppard, the constitutional deprivation was com-

pounded by the trial court’s conclusion that “it lacked

power to control the publicity about the trial.”’

Here, the trial court’s knowledge of the prosecutor’s

intentions left it with a number of means to safeguard

Alberico’s rights, including entry of an order prohibiting

extrajudicial statements by trial participants. See Sheppard

v. Maxwell, supra; United States v. Gurney, 558 F.2d 1202

(5th Cir. 1977) ; Central South Carolina Chapter, Society

of Professional Journalists, Sigma Delta Chi v. Martin,

431 F.Supp. 1182 (D. S.C. 1977) ; United States v. Ander-

son, 356 F.Supp. 1311 (D. N.J. 1973).

Hence, here, as in Sheppard, the deprivation of due

process was exacerbated by the trial court’s position that it

lacked power to do anything about the impending “press

release”’ countenanced by the prosecutor. The dereliction

of duty in the within case is painfully apparent. Here, al-

though the trial court had advance knowledge of the pro-

secutor’s intentions, the court did nothing, failing even to

notify the defense of the intended prosecutorial ploy. This

erry ve

_

total abdication of authority simply cannot be condoned,

nor can the consequences of such inaction on the defen-

dant’s rights be underestimated. As the Court in Estes made

clear, the rationale for the Rideau per se rule was based on

a number of considerations.

For example, extensive media attention overemphasizes

the importance of the particular prosecution. See Estes v.

Texas, supra; Callahan v. Lash, 381 F.Supp. 827 (N.D.

Ind. 1974) ; People v. Ulrich, 376 Ill. 461, 34 N.E.2d 393

(1941) . Indeed, the broadcast of accounts concerning par-

ticular items of evidence also serves to overemphasize the

significance thereof, often to the considerable disadvantage

of the accused. Estes v. Texas, supra; Callahan v. Lash,

supra; Sollars v. State, 316 P.2d 917 (Nev. 1957).

Furthermore, as this Court in Estes explicitly recog-

nized, there is a very real danger of influential community

peer pressure resultant upon the televising of judicial pro-

ceedings, the prejudicial potential of which is increased

where only selective incriminating portions are broadcast,

since the jurors “cannot help but feel the pressure of know-

ing that their friends and neighbors have their eyes upon

them.” Estes v. Texas, supra. Community or peer pressure

naturally generates reluctance to acquit because the jury

realizes that the community viewed selectively some of the

actual evidence of trial completely out of context.

Here, the Court of Appeals expressly disapproved the

prosecutor’s actions, but concluded that no constitutional

rights of the petitioner were violated. However, the mere

failure of the juors to acknowledge illicit influence is not

determinative of the absence of prejudice where the circum-

stances compel the conclusion that, through the actions of

the prosecutor, and the questions propounded by the Court,

the jury in this case knew precisely the nature of the pub-

licity. As numerous courts have pointed out, jurors are

naturally reluctant to volunteer information concerning

_ —

a

their failure to heed admonitions to avoid contact with the

publicity. See, e.g., United States v. Accardo, 297 F.2d 133

(7th Cir. 1962) ; Coppedge v. United States, 272 F.2d 504

(D.C. Cir. 1959) .

This was graphically illustrated in United States v.

Coast of Maine Lobster Company, 538 F.2d 899 (lst Cir.

1976), where only after repeated questioning and finally

one affirmative response by juror did the remaining mem-

bers of the panel admit to viewing certain publicity. In-

deed, the Court’s persistence in this regard resulted in the

discovery that seven or eight of the jurors had viewed the

publicity despite their initial refusals to admit it! Nor are

mere admonitions to disregard publicity sufficient under

these circumstances. As was pointed out by Mr. Justice

Jackson in his much-noted concurrence, Krulewitch v.

United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790

(1949).

“The naive assumption that prejudicial effects

can be overcome by instructions to the jury...

all practicing lawyers know to be unmitigated

fiction.”

Nor can the source of the prejudicial publicity be

ignored. This is not a case merely involving publication

or broadcast by the media of an account of the proceedings

taking place within a courtroom, for here, what is tanta-

mount to a confession was aired in a manner indistinguish-

able from the actual television coverage condemned in

Estes and Rideau, through the direct participation and

cooperation of the prosecutor. This was no less a subver-

sion of the judicial process than was the televising of the

confession in Rideau, and in some respects, it represents

an even more reprehensible denial of due process, inasmuch

as the circumstances reflect nothing short of an active in-

volvement of the prosecutor in the preparation and perpe-

tration of prejudicial publicity.

="

This factor of direct prosecutorial participation simply

cannot be ignored. As was pointed out in Sheppard, supra:

. . the fact that many of the prejudicial news

items can be traced to the prosecution . . . ag-

gravates the judge’s failure to take any action.”

Here, it is beyond question that the prosecutor vio-

lated his ethical duties in making available to the media

portions or all of the videotapes. See United States v. Gre-

gorio, 497 F.2d 1253 (4th Cir. 1974). Yet, this is not

merely a matter of ethics. Rather, it involves the funda-

mental entitlement to due process and effective represen-

tation of counsel. The ex parte and extrajudicial release

of the videotapes in the present case denied the petitioner

of his right to an untainted trial by jury, and petitioner

urges this Court to exercise its supervisory powers and set

aside his conviction. Marshall v. United States, supra;

United States v. Coast of Maine Lobster Co., supra.

CONCLUSION

This Petition for Certiorari presents issues of contem-

porary concern in criminal law. Both of the reasons pre-

sented for the issue in support of issuance of the writ in-

volve intentional prosecutorial conduct designed to hinder

the petitioner's efforts to defend himself on serious crim-

inal charges. The crucial character of fair criminal discov-

ery and criminal trials untainted by untoward publicity

support issuance of a writ of certiorari to review the present

convictions under this Court’s supervisory powers.

i

APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-A ppellee, Nos. 78-1053

VS. + Nos. 78-1062

GREGORY ALBERICO, Nos. 78-1063

Defendant-A ppellant.

j

APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. Case Nos. 77-00237, 77-00239, 77-00240)

Scott H. Robinson of Gerash & Springer, Denver, Colorado,

tor Defendant-Appellant.

Rod W. Snow, Assistant United States Attorney (with

Joseph F. Dolan, United States Attorney, on the brief),

Denver, Colorado, for Plaintiff-Appellee.

Before SETH, Chief Judge, MCWILLIAMS and McKAY,

Circuit Judges.

McKAY, Circuit Judge.

li

The defendant was convicted, following a jury trial, on

counts of theft of government property,’ possession of sto-

len mail,’ and conspiracy to convert government property.”

He was acquitted on one count of theft of government

property. His appeal raises issues of due process, fair trial,

evidentiary insufficiency, prosecutorial impropriety, and

cruel and unusual punishment.

The defendant was a United States Army captain as-

signed as the post administrator of the Rocky Mountain

Arsenal in Colorado. He planned to retire from the Army,

and was concerned about the economics of retirement. ‘This

concern was heightened by substantial gambling debts he

had incurred. Utilizing his essentially unchecked access to

facilities at the arsenal, the defendant sought to improve

his financial situation by selling government property. He

does not deny involvement in illicit transfers. His primary

defense at trial was one of entrapment.‘

At trial,° the defendant attempted to establish that a

network of government agents and informants had caused

him to commit crimes. His initial contact with the network

came through Bill Martin, an FBI informant who apparent-

ly was under investigation for illegal activities himself.

Martin participated with the defendant in his dismal

gambling endeavors. He also encouraged him to use his

Status at the arsenal for illicit gain. At the suggestion of

'18 U.S.C. § 641 (1976).

218 U.S.C. § 1708 (1976) .

°18 U.S.C. §§ 371, 641 (1976).

*He also challenged the allegations that some of the items

illicity transferred had been shown to have “value” and that other

items had been taken from the mail.

°Trial was originally scheduled for Denver, but defendant

successfully moved for a relocation to Grand Junction, Colorado.

The basis for defendant’s motion was the extensive pretrial pub-

licity generated in the Denver area.

lil

FBI agent Richard Castillo,° Martin introduced the defen-

dant to Dominic LaRocca, an undercover FBI agent,’ who

indicated that certain government checks in defendant's

possession were valuable. Indeed, LaRocca offered $7,300

for these checks. The defendant rejected this offer, but sub-

sequently contacted what later proved to be an FBI store-

front operation to inquire about the sale of government

property. [he telephone number of the storefront opera-

tion had been given to Martin. Martin had, in turn, ob-

tained it from Castillo.

The storefront operation was manned by Michael

Kazmier, an undercover FBI agent known to the defendant

as Mike Cairo. On several occasions Kazmier received gov-

ernment property from the defendant. The encounters

with Kazmier were recorded by hidden microphones and

videotape equipment. The defendant presented some evi-

dence—which was challenged— that Kazmier had engaged

in harsh threats to induce the defendant to turn over addi-

tional government property.© Although the defendant did

not rely on a defense of duress as such, he argued that the

threats were an integral psychological element of the suc-

cessful effort to entrap him.

The entrapment defense was not accepted by the jury.

Defendant's conviction on six of the seven counts charged

against him resulted in imposition of a twenty year term

of imprisonment and fines totaling $44,000.

I.

Defendant contends that his conviction should be re-

versed because certain exculpatory evidence was withheld

from him by the prosecution. Relying on Brady v. Mary-

°Casullo had been assigned to investigate Martin for fraud.

’LaRocca’s true name was Dominic Civitano. His status as

an FBI agent was not known to the defendant prior to trial.

*The government property actually transferred included plas-

tic explosives, a cash register, and three checks made out to the

Rocky Mountain Arsenal.

iv

land,’ 373 U.S. 83 (1963), defendant claims due process

was violated by the prosecution’s failure to advise him, in

advance of trial, that Dominic LaRocca was in fact an FBI

undercover agent. Defendant contends that the knowledge

of LaRocca’s true identity prior to trial would have as-

sisted him in establishing an entrapment defense. He also

claims it would have permitted more effective cross-exam-

ination and a stronger opening statement.

Although we find the nondisclosure troubling, we

have concluded that the rule of Brady v. Maryland was

not violated by the prosecution’s pretrial failure to disclose

LaRocca’s actual identity. The simple fact of the matter

is that the identity and involvement of LaRocca were un-

covered during the course of trial. Although defense coun-

sel’s trial tactics were no doubt affected by the late dis-

covery, he was able to put before the jury the involvement

of LaRocca in the alleged entrapment. The Supreme Court

has said that Brady applies in situations involving “the dis-

covery, after trial, of information which had been known

to the prosecution but unknown to the defense.” United

States v. Agurs, 427 U.S. 97, 103 (1976) (emphasis added).

Here, the information was discovered and presented at trial.

The difficulty with defendant’s position can be seen

from another perspective. Brady is implicated only when

*In Brady, the defendant had requested before trial to exam-

ine the extrajudicial statements of his co-perpetrator, who was

to be tried separately. A confession by the latter was withheld by

the prosecution and did not come to defendant’s attention until

after his conviction and sentence had been affirmed on appeal. The

Supreme Court held that

the suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad fatih of the prose-

cution.

373 U.S. at 87.

Vv

the evidence withheld is “material.’”’ It is noteworthy in

this connection that defendant’s basic argument is that non-

disclosure hampered his trial preparations and affected his

litigation strategy. But the Supreme Court has specifically

rejected the proposition that the applicable standard of

materiality should focus on the defendant's ability to pre-

pare for trial. United States v. Agurs, 427 U.S. at 112 n.20.

Rather, the inquiry is whether presentation of the evidence

would have created “a reasonable doubt of guilt that did

not otherwise exist.”'° Jd. at 112. Application of that stan-

dard here would be nonsensical, of course, because the

evidence was presented. Had it not been presented, we

would obviously have a much different question before us.

II.

Defendant's next contention is that his constitutional

right to a fair trial was denied by the prosecution’s release

to the press, with the trial court’s acquiescence, of certain

prejudicial evidence. Without apparent remorse, the prose-

cution concedes that it released copies of videotaped en-

counters between the defendant and Kazmier at the FBI

storefront.'' Selected, incriminating portions of these video-

tapes were publicly televised on at least two occasions dur-

ing the course of the trial. Defendant argues that this pub-

licity may have affected the result at trial, either because

the jurors viewed it or because acquaintances of the jurors

who observed it may have influenced the jurors.

'This is the standard that applies when the defense has, as

in this case, made a general request for Brady material. See United

States v. Agurs, 427 U.S. 97 (1976).

'''The government seems to believe that by releasing the video-

tapes it was merely furthering “the right of the people, through the

press, to be informed of the workings of the judicial process.”

Appellee’s Brief at 22. Salutary though this general goal may be,

any furtherance of it by the Justice Department would be best

left to the Department’s Office of Public Information, rather than

to individual assistant United States Attorneys in the context of

ongoing prosecutions.

vi

The standard for evaluating this issue was indicated

by the Supreme Court in Murphy v. Florida, 421 U.S. 794

(1975) . After referring to earlier cases in which due process

violations had been found, the Court in Murphy said of

those cases:

They cannot be made to stand for the proposition

that juror exposure to information about a state

defendant's’? prior convictions or to news ac-

counts of the crizne with which he is charged

alone presumptively deprives the defendant of

due process. To resolve this case, we must turn.

therefore, to any indications in the totality of cir-

cumstances that petitioner's trial was not funda-

mentally fair.

421 U.S. at 799. The focus, then. is on the totality of the

circumstances at trial.

Our review of the record in this case does not reveal

that fundamental fairness was lacking in the defendant's

trial. Several factors support our conclusion. First, the

videotapes fro: which the television broadcasts were drawn

had been shown previously to the jury as a part of the

governments case. Second, the defendant relied on the de-

fense of entrapment. In so doing, he admitted the acts

giving rise to the prosecution. Therefore, the videotapes

merely revealed the commission of acts which the defendant

acknowledged he committed. Third, there is no indication

that any jurors had been exposed to the broadcasts in any

event. The morning after the initial broadcast, the trial

*Since Murphy arose in the context of habeas corpus review

of a state conviction, the Court was limited to considering whether

the defendant had been so deprived of a fair trial as to violate

his federal due process right. It is what the due process clause

requires that we focus on now, and that minimum constitutional]

requirement is the same for federal and state defendants.

Vil

court was notified that it had occurred.'’ His response was

to ask the jurors whether any of them had either seen the

broadcast or discussed it with other individuals. None re-

sponded affirmatively. '*

Under the circumstances described, we cannot con-

clude that any constitutional right of the defendant was

violated by the broadcasts. This is not to say that we ap-

prove of the prosecutor’s conduct in releasing the video-

tapes to the press. Indeed, we do not. The prosecution is

commissioned to try cases in the courtroom, not in the air-

waves.'° Were the circumstances more egregious, we would

not hesitate to exercise our supervisory powers and reverse

the defendant’s conviction. See Marshall v. United States,

360 U.S. 310 (1959) ; United States v. Coast of Maine Lob-

ster Co., 538 F.2d 899 (1st Cir. 1976).

‘It later appeared that the trial court had prior knowledge

of, and had acquiesced in, release of the tapes to the press.

'*This procedure was repeated the following day, with the

same result. On this second occasion for inquiry, the court assured

the jurors that he was not asking about exposure to publicity “with

any thought of intimidation or threat.” Record, vol. 12, at 17.

In addition to making these inquiries, the court had warned

the jurors against discussing the case and had admonished them

to avoid television, radio and newspaper accounts of the case. These

warnings were repeatedly given throughout the trial.

'’The government argues that the court would have imposed

a prior restraint on the press if it had refused to permit the prose-

cution to release the videotapes. Although we need not reach this

question, we note that there are some difficulties with the govern-

ment’s contention.

First, it appears that copies of the videotapes may have been

released before their admission into evidence. Whatever right the

press may have to copies of evidentiary materials, that right does

not arise until after the materials become part of the public

record. See Nixon v. Warner Communications, Inc., 435 U.S. 589,

609-10 (1978) ; United States v. Gurney, 558 F.2d 1202, 1209-1210

(5th Cir. 1977), cert. denied, sub nom. Miami Herald Publishing

Co. v. Krentzman, 435 U.S. 968 (1978). Even after such materials

viii

Il.

The defendant argues that he was improperly con-

victed of stealing government property to the extent the

conviction was based on the sale to Agent Kazmier of three

government checks. He argues that the government failed

to prove the checks had any value.

The checks in question were United States Treasury

checks drawn on the Kelly Air Force Base, in Texas, and

made payable to the Rocky Mountain Arsenal. Each check

bore the. stamped signature of a United States Air Force

disbursing officer. None of the checks were endorsed. ‘The

respective face values of the checks were $13,932, $29,538

and $30,096.

Stressing the statutory definition of the offense, the

defendant argues that the government failed to prove that

the checks had any value, much less value of at least $100.

The applicable statute provides:

become part of the public record, the press is not entitled to abso-

lute access to them. See Nixon v. Warner Communications, Inc.,

435 U.S. 589, 598 (1978).

A second difficulty is with the government’s apparent percep-

tion that restraints on prosecutoria! releases of information are

equvalent to, or merge into, restraints on the press. We think there

is a difference between imposing limitations on the prosecution

and imposing limitations on the press. See, e.g., Central S.C. Chap-

ter, Soc’y of Prof. Journalists, Sigma Delta Chi v. United States

Dist. Court, 551 F.2d 559, 562-63 (4th Cir. 1977) ; Farr v. Pitchess,

522 F.2d 464, 468-69 (9th Cir. 1975), cert. denied, 427 U.S. 912

(1976) ; Central S.C. Chapter, Soc’y of Prof. Journalists, Sigma

Delta Chi v. Martin, 431 F. Supp. 1182. 1188-89 (D.S.C.), aff'd as

modified, 556 F.2d 706 (4th Cir. 1977), cert. denied, 434 U'S.

1022 (1978). The prosecution is not free to release or say what-

ever it wishes about pending cases. See, e.g., Code of Professional

Responsibility, DR 7-107 (D). Moreover, the court has a respon-

sibility to prevent those over whom it has control — including

prosecutors — from frustrating the functions of justice. See Ne-

braska Press Assn. v. Stuart, 427 U.S. 539, 553-54 (1976) ; Sheppard

v. Maxwell, 384 U.S. 333, 362-63 (1966) .

ix

Whoever embezzles, steals, purloins, or know-

ingly converts to his use or the use of another, or

without authority, sells, conveys or disposes of any

record, voucher, money, or thing of value of the

United States or of any department or agency

thereof, or any property made or being made un-

der contract for the United States or any depart-

ment or agency thereof; or

Whoever receives, conceals, or retains the

same with intent to convert it to his use or gain,

knowing it to have been embezzled, stolen, pur-

loined or converted—

Shall be fined not more than $10,000 or im-

prisoned not more than ten years, or both; but if

the value of such property does not exceed the

sum of $100, he shall be fined not more than

$1,000 or imprisoned not more than one year, or

both.

The word “value” means face, par, or market

value, or cost price, either wholesale or retail,

whichever is greater.

18 U.S.C. § 641 (1976). Correctly observing that the govern-

ment has the burden of proving the value element of the

offense,'® the defendant argues that the checks were not

“things of value” within the ambit of the statute. In par-

ticular, the defendant contends that the government failed

to show how an individual could cash checks made out to

the Rocky Mountain Arsenal. If they had any value, claims

the defendant, that could only be established with reference

to a thieves’ market, and the government failed to show

what that market price was.

De agree that the government adduced no evidence

regarding the checks’ value in a thieves’ market. We do not

"See Stevens v. United States, 297 F.2d 664 (10th Cir. 1961)

(per curiam) .

x

think the $7,000 paid by Kazmier for the checks and other

materials established such a market price. The storefront

price was artificial. Kazmier himself admitted he had no

idea what value the checks might have had in a true under-

world exchange. Nor do we believe other theories of value

advanced by the government, conjectural in nature, were

supported by the evidence."

We nonetheless affirm the defendant’s conviction. Evi-

dence of value in a thieves’ market is unnecessary when

face value is available. See, e.g., United States v. Sarkisian,

545 F.2d 1237 (9th Cir 1976); United States v. Lee, 454

F.2d 190, 192 (9th Cir. 1972) (per curiam). It is avail-

able here.

We are not persuaded by defendant’s additional argu-

ment that conviction was improper because the checks were

not shown to have had any intrinsic value to him. He com-

plains that more than face value must be shown, or an in-

dividual could be prosecuted for “stealing” an otherwise

conventional scrap of government paper on which had been

written “$25,000.” We concede that defendant makes a

plausible argument for requiring an independent intrinsic

value standard to be read into the statute, especially since

'7For example, the prosecution elicited speculative testimony

that with sufficient alteration the checks could have been cashed

by an individual. But if value were to be demonstrated on this

basis, it would be necessary to establish what price the unaltered

checks could have commanded in a thieves’ market. No such evi-

dence was adduced at trial. The use of rather strained value

theories resulted from a perception that the question was some-

what difficult, given testimony that the government was actually

“out” nothing as a result of the theft (payment had been stopped)

and that checks made out to a government entity could not be

cashed by private individuals. This confusion was unnecessary since

it was clear that at the time of taking, the checks were negotiable

instruments worth their stated face values to Rocky Mountain

Arsenal.

xl

the statutory definition of “value” can be seen as referring

to the penalty provisions of § 641, rather than to the earlier

reference to “thing of value.” But even if we were to adopt

defendant’s general contention, we would not go so far as to

require the government to prove intrinsic value to the thief.

This would be an unwarranted construction of the statute.

It is clear in this case that the checks were valuable to the

Rocky Mountain Arsenal at the time they were stolen. In-

deed, the face value of the checks defined their worth to

the arsenal. The checks were “things of value” for pur-

poses of § 641. Their face value was sufficient to engage the

more severe sanctions available under the statute. Defen-

dant’s conviction was proper.

IV.

Two additional issues are raised. First, defendant con-

tends that his convictions should be reversed because the

storefront operation was improperly funded by the Law En-

forcement Assistance Administration.'® Even if this is true,

we do not agree that dismissal of defendant's indictments

is the proper remedy for sanctioning unauthorized agency

spending.

Defendant's final contention is that the constitutional

prohibition against cruel and unusual punishment was

violated by the court's imposition of fines totaling $44,000

and consecutive sentences totaling 20 years. Defendant par-

ticularly complains about the imposition of a five year sen-

tence for conspiracy to steal explosives and imposition of

a ten year consecutive sentence for the theft of those same

explosives. In imposing these sanctions, the court empha-

sized the fact that defendant had supplied large quantities

of plastic explosives to individuals he believed to be crim-

inals:

'®Defendant argues that only local law enforcement opera-

tions — not those of the FBI — should be funded by the LEAA.

He refers to 42 U.S.C. §§ 3721, 3724, 3732, 3734 and 3766 (a).

xii

This is a case in which the defendant, for money,

stole from the United States government, from

the Army, enough explosives to kill countless

people. . . . He thought that he was selling the

explosives to persons who were going to use it

[sic] in acts of terrorism, and I am totally unable

to treat this case as a run-of-the-mill theft case.

Record, vol. 16, at 69. While the sentences imposed seem

severe, they are within the limits established by Congress.

Those limits are not “ ‘excessive’ in relation to the crime[s]

committed.” Coker v. Georgia, 433 U.S. 584, 592 (1977).

We therefore conclude the Eighth Amendment was not

violated.'®

AFFIRMED.

'?Although the defendant utilizes an Eighth Amendment rubric

in challenging his sentences, most of his argument focuses on the

appropriateness of the penalties imposed in light of the circum-

stances of his case. We are without power to review the soundness

of lawfully imposed sentences that are within the maximum limits

established by Congress, when those limits are constitutionally

valid. See e.g., Dorszynski v. United States, 418 U.S. 424, 440-41

(1974) ; United States v. Baer, 575 F.2d 1295, 1299 (10th Cir. 1978) .