Appendix — Ruggiero v. United States

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APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 73-1729

UNITED STATES OF AMERICA

Vv.

Rosert Patrick Fariey, Paun FLamMia, Wituiam Rr,

AncELo Ruceirro, Ancreio Ruccirro, A ppellant

(D. C. Criminal No. 14965)

Appeal from the United States District Court

for the Middle District of Pennsylvania

Argued February 12, 1974

Before Van Dusen and Apams, Circuit Judges,

and Hvyert, District Judge

Judgment Order

After considering the contentions raised by appellant

that (1) the Government failed to establish an essential

element of the offense charged in the indictment, namely,

stealing, taking, or carrying away from ‘“‘a station, station

house and depot’’;! (2) appellant was deprived of his

Fifth and Sixth Amendment rights in that the district court

amended the indictment and —— was prejudiced by

such amendment;* (3) the evidence|as to appellant was

insufficient to warrant the conclusion that he was criminally

involved ; (4) appellant was the victim of outrageously of-

fensive conduct on the part of the Government and was,

therefore, entrapped; and (5) the district court erred in

failing to take additional testimony offered by appellant,

it is

1 See United States y. Bryan, 483 F. 2d 88, 91-97 (3d Cir. 1973).

? United States v. Evans, 398 F. 2d 159, 166 (3d Cir. 1968).

PORERETRD BE > CR Sh) ILIAD

2a

ADTUDED AND OrpeErep that the July 26, 1973, judgment

and commitment of the district court be and is hereby

affirmed. *

Dated: F'2b. 20, 1974

By the Court:

/s/ Van Dusen

Van Dusen

- Cireuit Judge

3See United States vy. Farley, Opinion of 5/15/73 (Criminal

No. 14965, M. I. Pa.—636a), and Findings of Fact filed 1/23/73

(Document No. 68, Criminal No. 14965, M.D. Pa.—617a). We

believe that it ic not an unreasonable construction to conclude,

under the circumstances here, that there was a theft from a

“*station.’’

Sur Petition for Rehearing

Present: Serrz, Chief Judge, Van Dusen, ALpISERT,

Apams, Grspons, Rosenn, Hunter, Weis and Garru,

Circuit Judges.

The petition for rehearing filed by appellant in the

above-entitled case having been submitted to the judges

who participated in the decision of this court and to all

other available circuit judges of this circuit in regular ac-

tive service, and no judge who concurred in the decision

having asked for a rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court en banc, the petition for

rehearing is denied.

It is further ordered that appellant’s applications for

release on bail and to stay the mandate are denied.

By the Court:

Van Dusen

Dated: April 24, 1974. Circuit Judge

Nien Suddese beter

3a

UNITED STATES DISTRICT COURT

FOR THE Mippie District or PENNSYLVANIA

Criminal No. 14965

Unitep States or AMERICA

v.

Rosert Patrick Fariey, Pav Fiammia, Wituiam Rin1,

AncEeLo Rucciero

Memorandum Opinion and Order

Before the court are post-trial motions for judgment of

acquittal, in arrest of judgment, and in the alternative, for

a new trial, filed on behalf of Angelo Ruggiero. On

December 15, 1972 this court, sitting without a jury, ad-

judged the defendant guilty of the theft of goods from a

shipment of freight in interstate commerce, in violation

of 18 U.S.C. § 659 and § 2.

In support of his motion for judgment of acquittal and

in arrest of judgment, the defendant contends (1) the

government’s evidence is insufficient to sustain the verdict

and, coincidentally, that the findings of fact upon which

the verdict is based are clearly erroneous; (2) the offense,

if any shown by the evidence, is not an offense against the

United States because the government failed to establish

an essential element of the offense as charged in the in-

dictment; and, (3) the defendant was entrapped. In sup-

port of his motion for new trial the defendant contends

that the finding of guilty is contrary to the weight of the

evidence.

This court, after careful consideration of the contentions

raised in the aforementioned motions and briefs filed in

support thereof, concludes that the defendant’s conten-

tions do not compel the granting of the relief requested.

eg ee reed

Sait wa D eRe Ga ani:

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I. THe GovERNMENT’s Farture To Estasuish AN Essen-

TIAL ELEMENT OF CRIME CHARGED IN THE INDICTMENT.

The indictment, drawn under 18 U.S.C. § 659 and § 2,

charges in pertinent part:

‘‘That on or about the 21st day of June, 1971, at

North Lebanon Township, Lebanon County, Common-

wealth of Pennsylvania, . . . Angelo Ruggiero did

knowingly, wilfully and unlawfully and with intent to

convert to their own use, steal, take and carry away

from a station, station house and depot, chattels of a

value in excess of $100.00, that is 1426 cases of food-

stuffs, which were moving as, and constituted an inter-

state shipment of freight ....’’ In violation of Title

18 U.S.C. § 659 and § 2.

The defendant contends that the government did not

prove that the theft occurred from ‘‘a station, station house,

or depot’’ and consequently failed to establish an essen-

tial element of the crime charged in the indictment. In

support the defendant cites the case of United States v.

Manuszak, 234 F.2d 421 (3d Cir. 1956), in which the Third

Circuit Court of Appeals held that it is not a federal crime

to steal goods from an interstatement shipment of freight

unless the goods are taken from one of the places or facili-

ties specifically enumerated in 18 U.S.C. § 659; to wit,

‘‘any railroad car, wagon, motortruck, or other vehicle, or

from any station, station house, platform or depot or from

any steamboat, vessel, or wharf or from any aircraft, air

terminal, airport, aircraft terminal or air navigation fa-

cility.”” In Manuszak the court quashed an indictment

which did not specifically allege the place or facility from

which the goods were stolen.’

1The following Third Circuit cases are in accord with the hold-

ing in Manuszak: United States v. Olivo, 278 F.2d 415, 417 (3d

Cir. 1960) ; United States v. Allegrucci, 258 F.2d 70 (3d Cir. 1958) ;

United States v. Cohen, 274 F. 596 (3d Cir. 1921); United States

v. Moynihan, 258 F. 529 (3d Cir. 1919).

. Qs cron

5a

Supporting the decision to quash the indictment in

Manuszak was the court’s conclusion that the language of

18 U.S.C. § 659 was not broad enough to cover all thefts

from interstate commerce. Accordingly, it was held that

the government must allege and prove that the theft oc-

curred from one of the specifically enumerated facilities.

This position is not without support in other cireuits.?

However, a number of courts have taken a different view,

reasoning the language of 18 U.S.C. § 659 ‘‘evidences a

clear purpose to reach depredations affecting any conceiv-

able instrumentality by which the interstate transportation

of freight may be accomplished.’’ Dunson v. United States,

404 F.2d 447, 448-49 (9th Cir. 1968), cert. denied, 393 U.S.

1111. These cases hold that the involvement of one inter-

state freight facilitity rather than another is not an ele-

ment of the offense.*

Although this court is inclined to agree with the reason-

ing of the latter cases, the Third Circuit’s holding in

Manuszak must be applied in the instant case to the extent

relevant to the issues involved herein.

It is the government’s position that the situs of the truck

at the time of the theft was a ‘‘station”’ or ‘‘station house.”’

It would therefore follow that even applying the standards

of Manuszak the government has established that essen-

tial element of the offense as it was charged in the in-

dictment. ’

2 Wolkoff v. United States, 84 F.2d 17 (6th Cir. 1936), ef, United

States v. Knight, 451 F.2d 275 (5th Cir. 1971); United States v.

Prujansky, 415 F.2d 1045 (6th Cir. 1969) ; United States v. D’An-

tonio, 342 F.2d 667 (7th Cir. 1965).

3 United States v. Spivey, 448 F.2d 391 (4th Cir. 1971) ; Dunson

v. United States, 404 F.2d 447 (9th Cir. 1968), cert. denied, 393

U.S. 1111; United States v. Wora, 246 F.2d 283 (2d Cir. 1957) ;

See also, United States v. Hampton, 341 F.Supp. 481 (E.D. Wise.

1972).

SAL NAR ICRC A I Ml NR RST

6a

The government’s evidence can fairly be said to have

established the following facts concerning the location of

the goods at the time of the theft. The goods were con-

tained within the trailer of a motor truck which had been

parked at Lesher’s Mack Truck Sales and Service, in

Lebanon, Pennsylvania, by its driver who was en route

from Odessa, Delaware, to Buffalo, New York. The driver,

who lived near Lebanon, parked the truck at this location

on Friday, June 19, 1971, intending to pick up the truck

early Monday morning and continue to Buffalo. Although

Gioia Specialty Foods, Inc., the driver’s employer and

owner of the goods, presumably knew that the driver would

stop in Lebanon for the weekend there was no evidence

indicating that Gioia Foods knew that the truck would be

parked at Lesher’s Mack Truck Sales and Service or

authorized the driver to park there. The driver testified

that Lesher’s was a common parking area for drivers who

temporarily stopped in Lebanon while en route to destina-

tions elsewhere.

The theft occurred during the evening of Sunday, June

21, 1971, when the trailer and its contents were removed

from the lot by two of Ruggiero’s co-defendants. These

defendants proceeded for approximately two miles before

they were stopped and arrested. The goods were re-

moved from the trailer.

Upon these facts, the court concludes that Lesher’s Mack

Truck Sales and Service cannot be considered a ‘‘station’’

or ‘‘station house,’’ as those terms must be applied in the

context of the language of 18 U.S.C. § 659. The attorney

for the government cites the definition of ‘‘station’’ con-

tained in Webster’s New International Dictionary, 2d ed.,

Unabridged:

‘The spot or place where anything stands, especially

where a person or thing habitually stands, comes to

a stand or is appointed to remain for a time.”’

s ih pars ae ee

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The government contends because the driver parked the

truck at this location it was a place where the truck was

designated to stand and was, therefore, a ‘‘station.’? Al-

though some degree of significance is attached to the cus-

tomary use of Lesher’s as a parking area by other truck

drivers, the government asserts that a truck is ‘‘stationed”’

wherever it is parked and, accordingly, any place that the

driver would have parked the truck during the weekend of

June 19, 1971 would have constituted a “station.”

The court cannot agree with this proposition. It is

axiomatic that criminal statutes must be strictly construed.

While this does not require the court to give the words

of the statute the narrowest possible meaning, it does re-

quire that the words of the statute be interpreted in ac-

cordance with the evident intent of Congress. E..g., United

States v. Cook, 384 U.S. 257 (1966); United States v.

Padilla, 374 F.2d 782 (2d Cir. 1967).

The word ‘‘station’? was added to the facilities enu-

merated in the statute on recodification in 1948 (Act of

June 25, 1948 c. 645, 62 Stat. 729). However, there is noth-

ing in the act’s legislative history indicating Congress

attached any degree of significance to the modification.

The revisioner’s note, found in the 80th Congress House

Report, No. 304, refers only to ‘minor changes’’ in phrase-

ology. It is, therefore, reasonable to conclude that Con-

gress did not intend to make any change in the substantive

content of the existing law. Cf, United States v. Cook,

supra, at 260.

Although § 659 does not attempt to define the facilities

enumerated therein, its predecessor, 18 U.S.C. § 409 (1940

ed.) Act of January 28, 1925 c. 102, 43 Stat, 793, contained

the following definition:

‘“‘The words ... station house ... shall include...

any station house ... of any person, firm, association

or corporation having in his custody therein or thereon

PS ROL A APART Nha BOOKMATE OS in I VL AIOE A

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any freight, express, goods, chattels, shipments or

baggage moving as or; which are a part of or which

constitute an interstate or foreign shipment.’’ *

This definition has been interpreted to require that the

facility belong to the person who had custody of the goods.

United States v. Werner, 160 F.2d 438 (2d Cir. 1947). The

lot at Lesher’s Mack Truck was not the property of Gioia

Specialty Foods, Inc., the firm engaged in the interstate

transportation of the commodities in question. Gioia Foods

did not authorize its driver to park the truck at that

location, nor did it' arrange with Lesher’s Mack Truck to

utilize the lot to park its vehicles. While the truck and

its contents were parked at Lesher Macks they remained

within the custody of the Gioia Foods’ driver. Lesher

Mack had no control over or responsibility for the vehicle.

' The fact that Lesher Mack may allow trucks to be parked

at its garage as an accommodation to local drivers is of no

consequence. lLesher’s Mack Truck garage was not an

interstate transportation facility. The facility, in the

court’s opinion, at the least must be owned, leased or

authorized by the firm engaged in transportation in inter-

state commerce and used in the normal course of its

business.

The government cautions that to refuse to hold Lesher

Mack a facility of interstate commerce is tantamount to |

depriving’ small interstate carriers of the protection the

statute was intended to afford. However, the court has

not held § 659 inapplicable to the facts of the instant case.

When the truck and its contents were removed from the

parking lot at Lesher Mack an unlawful taking from a

‘¢motortruck’’ occurred, and thus a violation of 18 U.S.C.

§ 659 was committed. When the defendants removed the

trailer from the lot they likewise took control and dominion

4 This definition was omitted from 18 U.S.C. § 659 (Act of June

25, 1948 c. 645, 62 Stat. 729) as unnecessary. See, 80th —"

House Report No. 304,

i

Be opie ncatete

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over its contents. It was not necessary that the defendants

remove the goods from the vehicle.» The taking of the

truck evidences the intent to convert its contents to the

defendants’ own use. Therefore the government has proven

all three elements of the crime defined in 18 U.S.C. § 659:

(1) that the defendants took the foodstuffs with the intent

to convert to their own use; (2) that the goods taken were

part of an interstate shipment of freight; and, (3) that

the theft occurred from a facility enumerated in § 659.

The issue which remains is whether there is now a fatal

variance between the allegations contained in the indict-

ment and the government’s proof at trial. In the court’s

judgment the issue is controlled by Rule 52(a) of the

Federal Rules of Criminal Procedure which provides:

“Harmless Error. Any error, defect, irregularity or

variance which does not affect substantial rights shall

be disregurded.’’? (Emphasis added)

Under Rule 52(a) a variance such as the one in the instant

case is not fatal unless it has affected substantial rights of

the accused. The Supreme Court has held, in Berger v.

United States, 295 U.S. 78, 82 (1934), that two requirements

must be met:

‘“*(1) [T]he accused shall be definitely informed as

to the charges against him, so that he may be enabled

to present his defense and not be taken by surprise by

5 United States v. Dower, 472 F.2d 472 (9th Cir. 1973); United

States v. Green, 446 F.2d 1169, 1173 (5th Cir. 1971) ; United States

v. Fusco, 398 F.2d 32 (7th Cir. 1968) ; United States v. Padilla,

374 F.2d 782 (2d Cir. 1967), cf, United States v. De Normand,

149 F.2d 622 (2d Cir. 1945).

* See, United States v. Schrenzel, 462 F.2d 765 (8th Cir, 1972);

United States v. Petti, 459 F.2d 294 (3d Cir. 1972) ; Heisler v.

United States, 394 F.2d 692 (9th Cir. 1968), cert. denied, 393 U.S.

986; United States v. Fassoulis, 293 F.2d 243 (2d Cir. 1961);

United States v. Schwartz, 150 F.2d 627 (2d Cir. 1945).

Pidrnas + one

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the evidence offered at the trial; and (2) that he may

be protected against another prosecution for the same

offense.’’

Both of these requirements have been met here.

There has never been any question as to the circum-

stances surrounding the movement of the goods or their

location at the time of the theft. The indictment recites

the date and place of the offense and sufficiently identifies

the criminal act charged. The indictment has given the

defendant adequate notice of the crime charged and he

cannot be heard to say he was surprised by the evidence

offered at trial or misled by the presence of the words

**station,’’ ‘‘station house’’ or ‘‘platform”’ in the indict-

ment. The court also finds that the allegations contained

in the indictment in regard to the time and place of the

offense and description of the goods stolen, are sufficient

to protect the deefndant against being put twice in jeopardy

for the same offense."

There is a further requirement which must be considered

in determining whether the variance in question has affected

substantial rights of the accused. A variance may be of

such a nature that although meeting the requirements of

Berger v. United States, supra, it is equivalent to a con-

structive amendment to the indictment.

The fifth amendment prohibits the government from try-

ing a defendant on charges that are not made in the indict-

ment against him.* Accordingly, it has been held that any

7 Even if the indictment itself was not sufficient for purposes

of double jeopardy, resort to the transcript of the trial would

disclose the exact crime for which the defendant was tried. Russell

v. United States, 369 U.S. 749, 764 (1962).

8 Stirone v. United States, 361 U.S. 212, 216 (1960); Ex Parte

Bain, 121 U.S. 1 (1887) ; United States vy. De Cavalcante, 440 F.2d

1264 (3d Cir. 1971); United States v. Beard, 414 F.2d 1014 (3d

Cir. 1969).

Tate Le ee ered. Dee

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amendment to the indictment, whether actual or construc-

tive, is reversible error.

The purpose of the rule is to prohibit the indictment of

the grand jury from becoming the indictment of the prose-

cutor or the court, thereby subjecting the defendant to con-

viction ‘‘on the basis of facts not found by, and perhaps

not even presented to, the grand jury which indicted him.

United States v. Russell, supra; United States v. De Caval-

cante, supra. It must, therefore, be decided whether the

verdict is based upon theories and evidence that were not

fairly embraced in the charges made in the indictment.

United States v. Silverman, 430 F.2d 106, 110 (2d Cir. 1970).

The court does not find this abuse to have occurred in the

instant ease. As previously noted, there has never been a

dispute as to the location of the goods at the time of the

theft. Accordingly, there is no possibility that the defend-

ant’s conviction was based upon facts not presented to the

grand jury. Moreover, the government’s theory has re-

mained essentially the same. It has consistently contended

that a theft of goods from interstate commerce in violation

of 18 U.S.C. § 659 occurred when the defendants removed

the trailer and its contents from the lot at Lesher’s. Un-

like Stirone v. United States, supra, the defendant here has

been convicted for the same acts charged in the indictment.

In this case where the defendant has not been misled by the

indictment, the conviction will not be reversed merely be-

cause this court has been led to the conclusion that the

location of the truck containing the interstate shipment was

not a facility enumerated in the act, as charged in the in-

dictment, but that the truck itself was such a facility. Cf,

United States v. Petti, 459 F.2d 294 (3d Cir. 1972). The

conrt cannot hold that this is a modification in theory un-

embraced in the charges in the indictment and therefore

sufficient to violate the fifth amendment.

— etn : oS NEI MR cl A I i

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12a

IL. Surricrency or EvipEnce.

In regard to the motion for judgment of acquittal, the

court approaches the evidence from a standpoint most

favorable to the government, assuming the truth of the evi-

dence offered by the government. United States v. Stubin,

446 F.2d 457, 460 (3d Cir. 1971). Applying this standard,

the court must conclude that the government’s evidence is

sufficient to sustain the court’s verdict.

However, by moving for a new trial the defendant is

asking the court to reconsider its verdict and findings of

fact in support thereof, contending that the judgment of

conviction is not consistent with the weight of the evidence

adduced at trial. On such a motion the court must recon-

sider all of the testimony introduced by both the govern-

ment and the defendant and attempt to reassess the credi-

bility of the witnesses. 2 Wright, Federal Practice and

Procedure, Criminal § 553 (1969); United States v. Joines,

327 F.Supp. 253 (D.Del. 1971); United States v. Morris,

308 F.Supp. 1348 (E.D.Pa. 1970) ; United States v. Hurley,

281 F.Supp. 443 (D.Conn. 1968). The motion is addressed

to the sound discretion of the trial judge and should be

sparely granted only in those cases where ‘‘the evidence

preponderates heavily against the verdict.’’ United States

v. Leach, 427 F.2d 1107 (1st Cir. 1970); United States v.

Pepe, 209 F.Supp. 592 (D.Del. 1962), aff’d, 339 F.2d 264

(3d Cir. 1964).

As this case was tried before the court sitting without

a jury, the court has had prior occasion to carefully weigh

the evidence and consider the credibility of the witnesses.

Upon doing so this court adjudged the defendant guilty

beyond a reasonable doubt of aiding and abetting a viola-

tion of 18 U.S.C. § 659. Having reevaluated the record of

this proceeding, the court cannot conclude that ‘‘the evi-

dence preponderates heavily against the verdict’’ and

reaffirms its judgment of conviction.

13a

Ruggiero’s involvement in this criminal enterprise was,

admittedly, the subject of a serious factual dispute. The

defendant has denied any participation whatsoever in any

criminal acts. He testified that he drove to Lebanon,

Pennsylvania, with co-defendant Rini on Sunday, June 20,

1971. He allegedly met Rini, an acquaintance of some dura-

tion, in a New York City bar on the night before the

hijacking. He told Rini that he was having domestic prob-

lems and that his wife had left to stay with a relative in

the Poconos. Ruggiero wanted to travel to the Poconos

to persuade his wife to return to New York with him.

However, because Ruggiero was subject to New York State

probation and did not have a driver’s license, he was

hesitant to drive outside the State. Upon hearing this, Rini

told Ruggiero that he had to go to Lebanon, Pennsylvania,

the following day on personal business and suggested that

Ruggiero accompany him to Lebanon. Rini told Ruggiero

that Lebanon was only a short distance from his destina-

tion in the Poconos. Because Ruggiero was unfamiliar

with Pennsylvania and because he was afraid to drive out-

side the State of New York, Ruggiero agreed to accompany

Rini in an automobile borrowed by Ruggiero from Rug-

giero’s cousin. While in Lebanon Ruggiero asserts that

he was completely ignorant of what his co-defendants were

doing. He denied ever having seen defendants Farley and

Flammia before the day of the hijacking. Several times

Rini told Ruggiero that his business activity would be of

short duration and suggested that he might accompany

Ruggiero to the Poconos if Ruggiero would wait for him.

Finally, shortly after midnight, Ruggiero having become

impatient, decided to leave by himself. He, by coincidence

only, pulled out of the motel directly behind the stolen truck

driven by Rini. He had traveled several blocks when he

was stopped and arrested by the FBI.

The key factual dispute arises in regard to a conversa-

tion which allegedly occurred between the government’s

chief witness, Robert Bush, and Ruggiero. According to

SI ahr tei si ee eI GS =

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Bush, the conversation took place at Pushnik’s Motel in

Lebanon after defendant Farley’s futile attempts to start

the truck. Bush testified that he was escorted to a motel

room where he spoke to Ruggiero for the first and only

time that evening. Ruggiero told Bush that although he

wished to remain in the background, Farley’s inability to

start the truck made it necessary for the defendants to ask

for Bush’s assistance. Ruggiero labeled himself as the

‘*back-up man’’ who would follow the truck to New York.

He offered Bush extra money if he would help. Ruggiero

and Farley both testified that this conversation never

occurred. ;

In rendering its verdict, as apparent from the comurt’s

findings of fact, the court chose to believe the testimony

of Bush as it related to the occurrence of this conversation.

The issue now before the court, however, is whether the

‘‘evidence preponderates heavily’’ against the court’s de-

cision to believe Bush’s testimony and unless Bush’s testi-

mony in regard to the Ruggiero conversation is subject to

serious impeachment, the verdict must be sustained. If

the court’s finding as to the occurrence of this conversation

is sustained, Ruggiero’s guilt as an aider and abetter has

been established.

Initially, although not directly relevant to the issue of

whether the court could reasonably conclude that the con-

versation between Ruggiero and Bush in fact occurred, the

court finds Ruggiero and Bush in fact ocecurred, the court

finds Ruggiero’s explanation of his presence in Lebanon

unworthy of belief. Ruggiero’s asserted reason for travel-

ing to Lebanon, Pennsylvania, with Rini was that his parole

restrictions prohibited his driving outside of the State of

New York. Actually, the restrictions of his parole pro-

hibited his leaving the State of New York in any fashion,

so that by traveling with Rini to Lebanon, Pennsylvania,

he violated the conditions of his parole, irrespective of who

was driving the car. If it could reasonably be assumed that

Ruggiero was concerned about driving outside the State

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of New York, a cursory inspection of a road map would

have indicated that he would be farther from his destina-

tion in the Poconos when he arrived at Lebanon, Pennsy]-

vania, than prior to his departure from New York City.

Moreover, it is an incredible circumstance that Ruggiero

chose to depart Lebanon for the Poconos without the aid

of Rini, at the exact moment the stolen truck with Rini at

the wheel passed by Pushnik’s Motel. Ruggiero, allegedly

unaware that any of the prior events of the evening had

transpired, pulled out of the motel parking lot almost di-

rectly behind the truck and follow it for several blocks

before being arrested.

Other testimony of Bush linking Ruggiero to the theft

of the truck places Ruggiero in his Oldsmobile talking to

Rini and Flammia at the Lebanon Interchange of the Penn-

sylvania Turnpike before proceeding to Lesher Macks and

Pushnik’s; following in the Oldsmobile to Lesher Macks,

turning around and proceeding to Pushnik’s; entering

Pushnik’s Motel with Rini; driving past Lesher Macks

while Farley, Bush and Rini were attempting to get a new

truck to replace the burned out one; picking Bush up in the

Oldsmobile and taking him back to Pushnik’s after a new

truck was secured.

Additionally, FBI Agents Pape and Page testified to

seeing Ruggiero with Flammia, Bush, Rini and Farley

talking together in Pushnik’s lot. Another officer testified

to seeing Ruggiero parked in his Oldsmobile near Lesher

Macks, then going to Pushnik’s. FBI Special Agent Wald

saw Ruggiero in the Oldsmobile drive to and stop at Lesher

Macks and then move on.

Subsequent to oral argument on the within motions, de-

fense counsel has attempted to supplement the record with

a number of affidavits corroborating Ruggiero’s testimony

concerning the presence of his wife in the Poconos on the

date of the hijacking, and his attempts to obtain the use

of an automobile for the asserted purpose of bringing her

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Datrinenitetit ened rrcarrirrlsrtiintarietes en wit atin Ray dA ail sibs REG ABR INO REE AH SA GEL I 9 oh eS

16a

back to New York City. We have carefully considered the

content of these affidavits and assuming the propriety of

their presentation at this time, the court finds that they do

not warrant the receipt of further testimony and certainly

do not establish the invalidity of the court’s verdict. In

order to disbelieve the critical portion of Ruggiero’s testi-

mony it is not essential that we disbelieve its collateral

aspects. The affidavits submitted to this court fall far

short of establishing the credibility of Ruggiero’s denial

of involvement in the hijacking. The affidavits do not

affect the circumstances upon which the court has hereto-

fore concluded that Ruggiero’s testimony in relevant part

was not worthy of belief.

When initially testifying about his conversation with

Ruggiero, Bush stated that he could not distinguish Rug-

giero from William Rini, the defendant who was found to

be driving the truck. In ether words, Bush was confused

as to whether it was Ruggiero or Rini with whom he met in

the motel room. After a short recess during which the wit-

ness reflected upon the physical characteristics of Ruggiero,

he unequivocally identified Ruggiero as the individual

with whom he conversed in the motel room and Rini as the

driver of the truck. This subsequent identification re-

mained intact through vigorous cross-examination by de-

fense counsel.

Although going to the weight of Bush’s testimony this

initial equivocation does not seriously impeach the subse-

quent testimony. As the court interprets Bush’s testi-

mony, his initial confusion involved the respective roles of

Ruggiero and Rini. Bush never hesitated to state that this

conversation occurred with the individual who was driving

the Oldsmobile; he did hesitate to identify Ruggiero as the

driver of the Oldsmobile or the driver of the truck. Defense

counsel through cross-examination attempted to ascertain

whether this conversation could have occurred with Rini

even though Bush prior thereto identified Rini as the driver

ee ee ee 65-2 Se Rae

17a

of the truck. Bush throughout his testimony consistently

asserted that the conversation occurred with a fourth indi-

vidual, and after initial hesitancy identified that fourth

individual as Ruggiero.

The defendant also argues that Bush’s testimony was

seriously impeached by the testimony of the FBI agents and

local police officers who were sureilling Pushnik’s Motel on

the evening of June 20, 1971. None of these witnesses tes-

tified that they saw Bush enter the motel room during the

duration of their surveillance. The defendant contends, by

negative implication, that if no police officer saw Bush enter

the motel room, the alleged conversation did not occur.

This argument would be of considerable weight if the police

surveillance at the motel had been uninterrupted. How-

ever, there were sufficient interruptions in the surveillance

at the motel to create the likelihood that the conversation

took place without detection.

Bush testified that immediately after his conversation

with Ruggiero, he, Farley and Rini returned to Lesher

Macks where they proceeded to exchange tractors. Special

Agent Metcalf who was in charge of the surveillance at

Lesher Macks fixed this time as approximately 12:10 A.M.,

on June 21st. Special Agents Pape and Page testified that

they began their surveillance at Pushnik’s Motel at approxi-

mately 10:40 P.M., whereupon they observed Bush and the

four defendants standing in the motel parking lot. There-

after, Bush, Farley and Rini left in Bush’s automobile.

The agents remained about 25 minutes and then left to take

up further surveillance at Lesher Macks. Bush, Farley

and Rini did not return before Agents Pape and Page ad-

journed their surveillance at approximately 11:30 P.M.

Agent Metcalf testified that the defendants began to ex-

change tractors shortly after Midnight. Therefore, the

conversation between Ruggiero and Bush would have had to

occur after Agents Pape and Page adjourned their surveil-

lance at the motel.

asiesde

oe iB IS

LAT ID EAS BE RA ELE EO TE

Cesena Has A Mba LES

ha is et Oe se

18a

Officer Tompkins of a local police department had also

surveilled Pushnik’s Motel. His car was parked approxi-

mately one block away. Although he saw a number of indi-

viduals going into and out of one of the motel rooms, from

his vantage point he could only recognize an individual

wearing a bright orange shirt; later shown to be Rini. The

witness was unsure of the times involved and was too far

away from the motel to observe all of the activity which

occurred.

In the court’s estimation, the conflict between the testi-

mony of Bush and Ruggiero turned entirely on the credi-

bility of the witnesses, a function exclusively for the trier

of fact. The court does not find that Bush’s testimony was

impeached to the degree that a verdict based upon it could

not withstand a motion for a new trial on the ground that

the weight of the evidence does not support the judgment of

conviction.

TUT. EnrrapMent.

The Third Circuit Court of Appeals has not decided the

issue of whether a defendant may rely upon the defense of

entrapment if he has also unequivocally denied the commis-

sion of the criminal acts charged in the indictment. The

concensus of other circuits is that denial of the acts consti-

tuting the offense charged is inconsistent with the defense

of entrapment which is in the nature of a confession and

avoidance.® Accordingly, a defendant who denies his in-

® United States v. Rodrigues, 433 F.2d 760 (1st Cir. 1970), cert.

denied, 401 U.S. 948 (1971); Sylvia v. United States, 312 F.2d

145, 147 ‘1st Cir. 1963), cert. denied, 374 U.S. 809 (1963) ; United

States v. Pickle, 424 F.2d 528 (5th Cir. 1970); Harris v. United

States, 400 F.2d 264 (5th Cir. 1968) ; Marko v. United States, 314

F.2d 595 (5th Cir. 1965); McCarthy v. United States, 379 F.2d

285 (5th Cir. 1967); United States v. Shameia, 464 F.2d 629, 631

(6th Cir. 1972); Burris v. United States, 480 F.2d 399 (7th Cir.

1970), cert. denied, 401 U.S. 921; United States v. Johnston, 426

F.2d 112 (7th Cir. 1970); United States v. Rodriquez, 446 F.2d

ee eae

FN PALI TREN Map CLERC IR

19a

volvement in the crime is ordinarily precluded from also

alleging that if he did commit the crime he was entrapped.

In the instant case Ruggiero chose to testify that he was

not involved in the theft and was unaware of the reason

for his co-defendants’ presence in Lebanon, Pennsylvania,

on the evening of the offense. In the court’s opinion it is

clearly inconsistent for the defendant to now contend that

he was involved in the criminal enterprise but was imper-

missibly induced to participate by the overreaching of in-

dividuals acting on the part of the government.’° None-

theless, if, as Ruggiero contends, the government’s evidence

establishes the existence of entrapment as a matter of law,

859 (9th Cir. 1971), cert. denied, 404 U.S. 1021; United States v.

Meheiz, 437 F.2d 145 (9th Cir. 1971); Ortega v. United States,

348 F.2d 874 (9th Cir. 1965); United States v. Gibson, 446 F.2d

719 (10th Cir. 1971) ; Munroe v. United States, 424 F.2d 243 (10th

Cir. 1970) ; Martinez v. United States, 373 F.2d 810 (10th Cir.

1967) ; but see, United States v. Neuman, 436 F.2d 285 (D.C.Cir.

1970) ; Hansford v. United, 303 F.2d 219 (D.C.Cir. 1962).

1° The instant case in which the defendant has denied every act

necessary to constitute the offense must be distinguished from cases

in which the defendant admits only certain of the elements or

acts involved in the crime but contends that although his acts are

insufficient to sustain his guilt, he acted as a result of entrapment.

As to the latter situation, entrapment may be raised because proof

of one defense does not necessarily disprove the other. Accord-

ingly, it has been held that in conspiracy cases a defendant may

deny being a party to the conspiracy and still defend on the

ground that overt acts he committed were done as a consequence

of entrapment. See, Henderson vy. United States, 237 F.2d 169

(5th Cir. 1956); Sears v. United States, 343 F.2d 139 (5th Cir.

1965) ; United States v. Harrell, 436 F.2d 606 (5th Cir. 1970).

It is also consistent for a defendant to contend that he was

induced to deliver narcotics to governmental agents and also

contend that he acted solely as a procuring agent, or did not know

the nature of the substance delivered. See, United States v.

Rodrigues, 433 F.2d 760 (1st Cir. 1970) ; United States v. Baker,

373 F.2d 28 (6th Cir. 1967) ; United States v. Smith, 407 F.2d 202

(5th Cir. 1969).

sinmaat

20a

: this court believes that the defendant should be entitled to

3 raise that issue in support of a motion for judgment of

a acquittal. See, Sendejas v. United States, 428 F.2d 1040

AL ates,

(9th Cir. 1970), cert. denied, 400 U.S. 879; United States v.

Ward, 360 F.2d 909 (7th Cir. 1966) ; Sears v. United States,

343 F.2d 139 (5th Cir. 1965). The issue, however, must be

decided adversely to the defendant.

abate es ti WA BR

With the Supreme Court’s reversal of the Ninth Circuit

Court of Appeal’s decision in Russell v. United States, 459

F.2d 671 (9th Cir. 1972), rev’d, 411 U.S. 423, (No. 71-1585,

decided April 24, 1973), the defendant has lost his most

cogent argument.

In Russell the Ninth Cireuit extended the defense of

entrapment as previously defined by the Supreme Court in

Sherman v. United States, 356 U.S. 369 (1958), and Sorrells

v. United States, 287 U.S. 435 (1932) to preclude conviction

for criminal acts in which the government participated to

‘‘an intolerable degree’’ regardless of whether the defend-

ant entertained a predisposition to commit the crime. The

majority of the Supreme Court, however, in reversing the

Ninth Circuit has refused to extend the defense of entrap-

ment beyond its traditionally defined limitations, stating:

‘“We are content to leave the matter where it was left

by the Court in Sherman:

ey eee ‘ iy rik teeabatenst pridesiaia yulwcabaa terns pi gatesatias ERS A eT

‘The function of law enforcement is the prevention

of crime and the apprehension of criminals. Mani-

festly, that function does not include the manufac-

turing of crime. Criminal activity is such that

stealth and strategy are necessary weapons in the

arsenal of the police officer. However, ‘‘A different

question is presented when the criminal design origi-

nates with the officials of the government, and they

implant in the mind of an innocent person the dis-

position to commit the alleged offense and induce its

commission in order that they may prosecute.’’ 356

USS., at 372, quoting Sorrells v. United States, supra,

287 U.S., at 442.’ (411 U.S. at 434-435).

Se Fee

NESE ARMA sf te ’ ‘ bah nol SY Sen LLO ODOR 000 ZI Oe ES BO

45 SARTRE DOF ts

21a

It is thus clear to this court that the absence of criminal

predisposition on the part of the defendant continues to be

an essential element of the defense of entrapment. The de-

fense focuses not on the acts of the government or its agents

but on the intent or predisposition of the defendant to com-

mit the crime.”

The court does not find that Ruggiero or his co-defendants

were ‘‘entrapped’’ as the defense is defined in Sorrells,

Sherman and Russell."* Moreover, in addition to his denial

. of the crime charged, Ruggiero is faced with another seri- |

ous hurdle. There is nothing in the record indicating the

circumstances under which Ruggiero may have become in-

volved in this crime. Bush, the government informant,

testified that he had never seen nor spoken to Ruggiero

before June 20, 1971, the date of the hijacking. During the

planning stages of the theft all conversations occurred be-

tween Bush and Farley, Flammia and Rini. Not only does

the record reveal that Ruggiero did not have any direct

contact with Bush before the date of the hijacking, but the

court would have to surmise that Farley, Flammia or Rini

"The Third Circuit has never departed from the traditional

definition of entrapment. Most recently in Lemons v. United

States, 470 F.2d 135, 137 (3d Cir. 1972), it was held: ‘‘{A]n

illegal entrapment as a matter of law is not made out when the

evidence is ‘sufficient to establish that the defendant was ready,

willing and able to commit the crime and was not corrupted by

any overreaching activity of the agents.’ United States v. Crippen,

459 F.2d 1387, 1389 (3d Cir. 1972).’’

12 The government has raised the issue of whether Robert Bush

can be considered an agent of the government for the purpose of

raising the defense of entrapment. This court does not find it

necessary to decide that Bush has acted pursuant to a prearranged

agreement with the government and thus under its power and con-

trol. Bush’s status here is analogous to that of the informant in

Sherman, supra, who had been a prior informant and who although

acting in regard to Sherman without the knowledge or consent of

the government, did so with the intention of aiding the government

and not solely for private reasons.

4 SPST Y Cabell AREA CLE dos De NITE

i AIV SIMS RCH Be? D0”

22a

conveyed Bush’s remarks to Ruggiero before we could con-

clude that Ruggiero might have been indirectly induced by

the acts of Bush., Were such a conclusion warranted it is

still unclear whether Ruggiero can raise the defense of

entrapment without a record sufficient to establish that he

had any contact with the alleged government agent.”

In any event, the court can conclude with certainty that

the government’s evidence does not establish the defense

_of entrapment in favor of Ruggiero as a matter of law.

Assuming, arguendo, Ruggiero can raise the defense of en-

trapment even though he cannot contend to have been di-

rectly induced by Bush, under the present record it would

be incongruous to find that Ruggiero was entrapped with-

out first concluding that his co-defendants were entrapped.

If the defense fails as to the latter it must fail as to the

former.

The testimony of Bush clearly akslaidiie that the crimi-

nal design originated with Ruggiero’s co- defendants and not

with Bush. Bush’s first contact with defendant Farley oc-

curred when Farley approached Bush at a service station

on Long Island, New York, and inquired as to whether

Bush would allow Farley to steal a truckload of automobile

batteries assigned to Bush for delivery in New York.

Thereafter, Farley contacted Bush several times at Bush’s

13 The Ninth Circuit has promulgated a policy prohibiting de-

fendants from raisng the defense of entrapment unless they were

personally induced to commit the crime by a government agent.

Thus, one defendant cannot seek ‘shelter under the defense of

entrapment claimed by another. See, e.g., United States v. Gon-

zales, 461 F.2d 1000 (9th Cir. 1972); United States v. Azadian,

436 F.2d 81 (9th Cir. 1971) ; Carbajal-Portillo v. United States,

396 F.2d 944 (9th Cir. 1968). In these cases the defendants who

sought to invoke the defense of entrapment were aiders and

abetters who expressed a: willingness to go forward that was not

affected by the circumstances under which the principals were

entrapped. The court in each case concluded that the government

agent played no part in inducing the defendant’s crime. |

i Ur

SSW | eel eee waar

23a

home in Delaware, asking Bush if he could point out truck-

loads of commodities which could be stolen while in transit.

After several months of frequent requests by Farley, Bush

capitulated by telling Farley he would point out a truckload

of Bulova Acutron watches. Although the prospect of ob-

taining a large number of Acutron watches must have been

well received by the defendants, the court cannot conclude

that Bush’s false representations as to the nature of the

cargo were the source of the defendant’s criminal design or

needed to induce the criminal act. Compare, United States

v. Klosterman, 248 F.2d 191 (3d Cir. 1957). The defendants

had previously manifested an unsolicited predisposition to

steal cargo valued at much less than Acutron watches. The

only reason the defendants’ previous inquiries did not con-

summate in actual thefts was Bush’s inability or unwilling-

ness to acquire access to the requested commodities. The

defendants were ready and willing to engage in theft from

interstate commerce. In our estimation, Bush’s conduct

did nothing more than afford the defendants an opportunity

‘‘for the continuation of a course of criminal conduct upon

which they had earlier voluntarily embarked.’’ Lopez v.

United States, 373 U.S. 427, 436 (1963). That Bush’s in-

ducement may have seduced a hypothetical individual who

was not so predisposed is not a relevant consideration.

United States v. Russell, 411 U.S. at 434.

As the Supreme Court spoke in Sherman, supra, 356 U.S.,

at 372, ‘‘To determine whether entrapment has been estab-

lished, a line must be drawn between the trap for the un-

wary innocent and the trap for the unwary ¢riminal.’’ It

is an inescapable conclusion that these defendants were

‘“‘unwary’’. However, it is equally obvious that they were

not innocent persons corrupted by the overreaching of

governmental agents.

The Supreme Court, in Russell, did not rule out the possi-

bility that a case may arise in which the conduct of law

enforcement officers is so outrageous that considerations

of due process would preclude prosecution. In the instant

ease the record discloses that Bush played a more than

passive role in the commission of this crime. In addition

to disclosing the location of the truck, he provided aid to

the defendants in removing the trailer and its contents from

the parking lot. However, Bush’s actions do not consti-

tute “‘government involvement’’ to a degree greater than

that in Russell and certainly do not rise to the level of

violating ‘‘fundamental fairness, shocking to the universal

sense of justice,’’ mandated by the Due Process Clause of

the Fifth Amendment, Russell, supra, 411 U.S. at 432.

R. Drxon Herman

R. Dixon Herman

United States District Judge

Middle District of Pennsylvania

Dated: May 15, 1973.

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