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United States v. Rosa

argued: May 26, 1989.

THE UNITED STATES
v.
JOSEPH F. ROSA, WILLIAM A. KOSTRICK, MARTIN R. ANTONELLI, DANIEL J. CAMPBELL, PAUL F. CONNELLY, JR., WILLIAM ANTHONY DADAMO "MACHINE GUN TONY", VIVIAN DAVIS, JORGE DIAZ, WILLIAM EDGAR GATES "BUTCH", DONNA MARIE GEORGE, SUSAN FRANCIS GEORGE, SUSAN FRANCIS GEORGE, RAYMOND G. ILY, GARY FRANCIS JONES "SPANKY", LARRY H. LINN, JAMES LUKETIC "LUKEY", VICTOR E. MARCHITELLO, RICHARD WAYNE NAUGLE, MARK D. NICKLOW, ROBERT WILLIAM NOBLE, TIMOTHY O'CONNER, PERRY C. PERRINO, RONALD R. PLISCO "SAM CATALANO", "FAT SAM", CHARLES H. READEL, RICHARD RESHENBERG, DINO ROMANO, WILLIAM DUANE SMITH, RICHARD A. STEFANIK "WRINKLE", DIANIA LYNN GEORGE WERTZ "DEE DEE WERTZ", WILLIAM KOSTRICK, APPELLANT IN NO. 88-3692, DINO ROMANO, APPELLANT IN NO. 88-3717; THE UNITED STATES V. JOSEPH F. ROSA, WILLIAM A. KOSTRICK, MARTIN R. ANTONELLI, DANIEL J. CAMPBELL, PAUL F. CONNELLY, JR., WILLIAM ANTHONY DADAMO "MACHINE GUN TONY", VIVIAN DAVIS, JORGE DIAZ, WILLIAM EDGAR GATES "BUTCH", DONNA MARIE GEORGE, SUSAN FRANCIS GEORGE, SUSAN FRANCIS GEORGE, RAYMOND G. ILY, GARY FRANCIS JONES "SPANKY", LARRY H. LINN, JAMES LUKETIC "LUKEY", VICTOR E. MARCHITELLO, RICHARD WAYNE NAUGLE, MARK D. NICKLOW, ROBERT WILLIAM NOBLE, TIMOTHY O'CONNER, PERRY C. PERRINO, RONALD R. PLISCO "SAM CATALANO", "FAT SAM", CHARLES H. READEL, RICHARD RESHENBERG, DINO ROMANO, WILLIAM DUANE SMITH, RICHARD A. STEFANIK "WRINKLE", DIANIA LYNN GEORGE WERTZ "DEE DEE WERTZ", PERRY C. PERRINO, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh), D.C. Crim. Nos. 88-66-2 and 88-66-25. On Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh), D.C. Crim. No. 88-66-21.

Becker, Stapleton and Garth, Circuit Judges.

Author: Stapleton

Opinion OF THE COURT

STAPLETON, Circuit Judge:

I.

Defendants Kostrick, Romano, Perrino and twenty-five others were charged in a one hundred and thirteen count indictment with various offenses involving a large-scale conspiracy to distribute cocaine. All those indicted, with the exception of Kostrick and Romano, eventually pleaded guilty to cocaine-related offenses. In particular, defendant Perrino, who at the time of his offense was an assistant district attorney for the Commonwealth of Pennsylvania, pleaded guilty to one count of cocaine distribution.

Defendants Kostrick and Romano pleaded not guilty to all charges. In their ensuing jury trial, the government called twenty-two witnesses, twenty of whom testified that they observed the defendants participate in the purchase or sale of cocaine. In their defense, Kostrick and Romano focused exclusively on attempting to undermine the credibility of the government's witnesses. At the conclusion of the two-week trial, the jury returned guilty verdicts against both defendants. Kostrick was found guilty of one count of conspiracy to distribute cocaine, one count of a continuing criminal enterprise to distribute cocaine, seven counts of possession of cocaine with the intent to distribute, and six counts of tax-related offenses. Romano was found guilty of one count of conspiracy to distribute cocaine, one count of possession of cocaine with the intent to distribute and two counts of tax offenses. Following sentencing, Kostrick, Romano and Perrino appealed. We have jurisdiction under 28 U.S.C. § 1291.

The defendants tender six issues: (1) whether the district court erred by denying a request for a bill of particulars specifying the identities of the "controlled individuals" in the alleged continuing criminal enterprise; (2) whether the district court improperly admitted into evidence a government witness's plea agreement which contained the witness's promise to take a polygraph examination; (3) whether the district court improperly excluded cross-examination of a government witness concerning criminal conduct for which the witness had not been convicted; (4) whether Romano was correctly sentenced on his conspiracy conviction under the new sentencing guidelines despite his claim that he withdrew from the conspiracy before the effective date of the guidelines; (5) whether the district court violated Federal Rule of Criminal Procedure 32(c)(3)(D) by neither resolving nor expressly disavowing reliance upon the prosecutor's disputed version of the offense contained in Perrino's presentence report; and (6) if the district court did err in sentencing Perrino, whether we should direct that Perrino's case be assigned to a new judge for resentencing. We consider each of these issues in turn.

II.

A.

Among defendant Kostrick's alleged offenses was his involvement in a continuing criminal enterprise ("CCE") to possess cocaine with the intent to distribute in violation of 21 U.S.C. § 848. Under § 848(c), an individual participates in a CCE if he commits a predicate drug-related offense amounting to a felony and he undertakes that offense as "part of a continuing series of violations . . . in concert with five or more other persons with respect to whom [he] occupies a position of organizer, a supervisory position, or any other position of management. . . ." In response to this charge, Kostrick moved prior to trial for a bill of particulars under Rule 7(f), Fed.R.Crim.P., identifying the names and addresses of the individuals he had allegedly managed in the CCE. The district court denied the motion without explanation. Kostrick contends that the denial of that motion violated Rule 7(f) and requires a new trial.*fn1

Prior to 1966, Rule 7(f) limited bills of particulars to those situations in which the moving party demonstrated cause for his request. By amending the rule in 1966 to eliminate the cause requirement, the drafters expressly sought "to encourage a more liberal attitude by the courts toward bills of particulars without taking away the discretion which courts must have in dealing with such motions in individual cases." Fed.R.Crim.P. 7 advisory committee's note to 1966 amendment. Consistent with this shift, the case law now recognizes that motions for a bill of particulars should be granted whenever an indictment's failure to provide factual or legal information significantly impairs the defendant's ability to prepare his defense or is likely to lead to prejudicial surprise at trial. E.g., United States v. Addonizio, 451 F.2d 49, 62-63 (3d Cir. 1971), cert. denied, 405 U.S. 936, 30 L. Ed. 2d 812, 92 S. Ct. 949 (1972). At the same time, these decisions recognize that trial judges must be allowed to exercise broad discretion in order to strike a prudent balance between the defendant's legitimate interest in securing information concerning the government's case and numerous countervailing considerations ranging from the personal security of witnesses to the unfairness that can result from forcing the government to commit itself to a specific version of the facts before it is in a position to do so. See United States v. Tarvers, 833 F.2d 1068, 1076 (1st Cir. 1987); United States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985); United States v. Arenal, 768 F.2d 263, 268 (8th Cir. 1985).

While we have found only one CCE case reversing a conviction because of the government's failure to supply sufficient information regarding supervisees in response to a motion for a bill of particulars, United States v. Chavez, 845 F.2d 219 (9th Cir. 1988), all of the federal appellate cases addressing similar issues have explicitly or implicitly recognized that the defendant has a legitimate interest in knowing how the government intends to prove that he or she supervised the requisite number of persons. When convictions have been upheld despite the government's failure to provide the requested information, invariably it has been either because the information otherwise available to the defendant at the pretrial stage was found to give adequate notice of the identity of the supervised persons or because no prejudice or surprise was shown to have resulted from the denial of the information sought. United States v. Maull, 806 F.2d 1340 (8th Cir. 1986) (pretrial information sufficient); United States v. Burt, 765 F.2d 1364 (9th Cir. 1985) (pretrial information sufficient and no prejudice); United States v. Hawkins, 661 F.2d 436 (5th Cir. 1982) (same); United States v. Howard, 590 F.2d 564 (4th Cir. 1978) (no prejudice from allegedly insufficient bill of particulars).

The exercise of control and the requisite number of controlled parties are essential elements of a CCE offense and ones that normally play an important role in a CCE case. In the absence of important countervailing concerns, we believe that the defendant should be advised prior to trial of the individuals claimed by the government to be ...


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