decided: January 5, 1978; As Amended February 15, 24, June 8, 1978.
APPEAL FROM THE JUDGMENT AND CONVICTION OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Before Van Dusen and Rosenn, Circuit Judges, and Stern,*fn* District judge.
On this appeal we must decide whether a defendant may receive consecutive sentences for the crime of assault with a dangerous weapon (18 U.S.C. § 111) and the crime of use of a firearm to commit that felony (18 U.S.C. § 924(c) (1)), where the dangerous weapon used in the assault is a firearm. We hold that such sentencing violates the double jeopardy clause and we remand La Rocca's case to the district court for re-sentencing.
Defendants also cite as error the trial court's refusal to sever for trial those counts of the indictment which required proof of defendants' prior felony convictions. We hold that, on the facts of this case, the refusal to sever those counts was harmless error. The other challenges raised by defendants, including the contention that the trial court erred in refusing to give a "missing witness" instruction, we find to be without merit and, thus, we affirm defendants' convictions in all other respects.
As the record at trial reveals, Michael Busic and Anthony La Rocca were involved in a conspiracy to distribute drugs which turned into an attempt to rob "front money" from an undercover agent. This attempted robbery culminated in a shootout with federal agents.
On this appeal, we must view the evidence in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). Thus viewed, the evidence might be summarized as follows. Charles D. Harvey, an agent of the Drug Enforcement Administration, first met Busic and La Rocca on May 7, 1976 at the home of Richard Hervaux, a government informant. At this time, defendants agreed with Harvey that Harvey would go to Florida to purchase drugs from one of the defendants' suppliers for re-distribution in the Pittsburgh area. (Tr. 21-22). Several days later, Harvey again met with the defendants and received samples of the marijuana and cocaine which he was to purchase from defendants' Florida source. (Tr. 29-30). The next day, after Harvey had arranged for his trip to Florida, La Rocca called him and insisted on seeing some "front money". A meeting was arranged for the following day in the parking lot of the Miracle Mile Shopping Center in Monroeville, Pennsylvania. (Tr. 32-33).
As agreed, but having arranged for surveillance, Harvey went to the shopping center with $30,000 in cash. (Tr. 34-35). There he saw Busic and La Rocca in La Rocca's car. (Tr. 36). La Rocca entered Harvey's car, and the two drove to the other side of the parking lot. (Tr. 39). As Harvey removed the money from the trunk, La Rocca reached for his gun. Harvey ran, but La Rocca caught him and pointed his gun at Harvey's chest. Harvey then gave a pre-arranged signal to the surveillance agents. As the agents began to converge on the scene, La Rocca fired at Harvey, and missed. La Rocca then fired two shots at the vehicle containing agents William Alfree and William Petraitis, and two shots at the vehicle containing agent John Macready. (Tr. 40). He was immediately arrested and disarmed.
Busic, who had been leaning on a nearby car during the shootout, was also arrested and disarmed, at which time he exclaimed, "Just remember that I didn't shoot at anybody and I didn't draw my gun." He was searched and a pistol was found in his belt; a search of La Rocca's car uncovered an attache case containing another pistol and a plastic box containing ammunition. (Tr. 41). When the car was further searched the following day, government agents found yet another pistol under the driver's seat and another box of ammunition in the glove compartment. (Tr. 44).
In addition to evidence regarding the conspiracy and subsequent shootout, the government also introduced in its case-in-chief evidence of defendants' prior convictions for the purpose of proving that defendants were convicted felons and, thus, had received firearms in violation of 18 U.S.C. § 922(h). Counsel for the defendants stipulated that Busic and La Rocca had been jointly convicted in 1973 for assault on two federal officers, theft of government property and use of a firearm to commit these felonies. These convictions were introduced through the testimony of Agent Petraitis and the actual certificates of conviction, although the government was not permitted to elicit the facts underlying these convictions. (Tr. 195).
Defendants raised the defense of entrapment. Busic took the stand on his own behalf, claiming that Hervaux had initiated the scheme to rob Harvey and further claiming that, despite his and La Rocca's efforts to back out of the scheme, Hervaux had urged them on. (Tr. 388-414). La Rocca did not himself testify, but called his common-law wife, Janna K. Sam, who testified that La Rocca avoided the repeated phone calls he received from Hervaux during the time period in question. (Tr. 470-472). In addition, defendants attempted to show the unavailability of Richard Hervaux, through the testimony of their court-appointed investigator, Fred Koerhner, who testified that he had twice attempted, unsuccessfully, to serve Hervaux. (Tr. 381). At this time, the government offered itself to serve Hervaux, but defense counsel declined the offer. (Tr. 385-386). Defendants requested, and were denied, a "missing witness instruction" which would have instructed the jury that it was entitled to draw an adverse inference based on the government's failure to call Hervaux to the stand.
The jury convicted defendants of conspiring to distribute drugs, unlawfully distributing narcotics, assaulting federal officers with a dangerous weapon, and receiving firearms while being convicted felons. In addition, each was convicted under a different subsection of 18 U.S.C. § 924: La Rocca for having Used a firearm to commit the drug conspiracy and assaults on federal officers, in violation of § 924(c)(1); Busic for having Carried a firearm unlawfully during the commission of these felonies, in violation of 18 U.S.C. § 924(c) (2). The sentencing judge imposed a five-year sentence on each defendant on the narcotics counts, five years on the assault with a dangerous weapon counts, and twenty years under the § 924 counts all to run consecutively to each other for a total of 30 years for each defendant.
Defendants' first and most formidable challenge is directed at 18 U.S.C. § 924. That statute ...