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United States v. Rosa

filed: December 8, 1989.

THE UNITED STATES, APPELLEE
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, 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", RONALD R. PLISCO, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Crim. No. 88-66-22.

Becker, Stapleton and Garth, Circuit Judges.

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge:

The central issue presented by this appeal is whether the Jencks Act, 18 U.S.C. § 3500, which by its terms is limited to providing the defendant with government witnesses' statements only after the witness has testified on direct examination in the trial of the case, should be extended to providing government witnesses' statements at sentencing hearings.

I.

Appellant Ronald L. Plisco was one of 28 individuals indicted in a 113 count indictment which charges narcotics, firearms and tax offenses. He was charged in Count 1 with conspiracy to possess cocaine with intent to distribute more than 5 kilograms of cocaine; and in Count 11 with possession of a "multi-kilogram quantity of cocaine with intent to distribute," all in violation of 21 U.S.C. §§ 846 and 841(a)(1) respectively.

On August 1, 1988, as a result of a plea agreement, the government dismissed Count 1 and Plisco pled guilty to Count 11. On December 29, 1988, Plisco's motion to withdraw his guilty plea, or, in the alternative, to enforce the plea agreement was denied, and a sentencing hearing was held.

At the sentencing hearing, Marvin Droznek, a government witness who was also charged in the indictment and who had also entered a plea of guilty, testified that: 1) he had known Plisco for many years; 2) during 1984 he had sold cocaine and had wanted to sell increased quantities of that substance; 3) to finance such an operation, he asked Plisco for funds and received $80,000 from Plisco who, Droznek testified knew the money was to be used to purchase cocaine; and 4) Plisco received some cocaine from Droznek at cost.

Plisco's testimony conflicted with Droznek's as to the source and ownership of the $80,000. Plisco contended that he had been entrusted with some $300,000 to hold for Droznek. Plisco's wife, Faith, then testified that the money given to Droznek was a return of Droznek's money that they had been holding.

Plisco argued that the government did not live up to its plea agreement which required the government to submit an application to the Witness Protection Program on his behalf. Faith Plisco stated that an officer from the U.S. Attorney's Office informed her on or about September 18, 1988 that an application for the program had been mailed and that they were waiting for "D.C." and that there would be no problem.

On the other hand, the government contended that Plisco did not live up to the plea agreement and did not fully cooperate with the government as he had promised. The government also contended that Plisco was not truthful. In addition, a U.S. Attorney testified that he had no recall of Faith Plisco's conversation concerning the witness program, and that no application had ever been submitted.

Plisco was sentenced to 15 years and a fine of $50,000 and is presently incarcerated. At the sentencing hearing, Droznek testified as a government witness. At the outset of cross-examination, Plisco's counsel moved for Jencks material. (A233-234). The district court reserved its decision until later in the hearing. When Plisco again pressed for the production of Jencks material in order to continue his cross-examination of Droznek, the district court denied Plisco's request stating:

THE COURT: Mr. Hirschhorn, the Third Circuit dealt with this exact question in the case of the United States versus Murphy, which is cited at 569 F.2d 771, in which it held that Jencks material was only applicable to trial; and trial in this context means a proceeding being conducted for the purpose of determining guilt or innocence.

They cited also a Fifth Circuit case; but, of course, we're governed by the Third Circuit decisions. This is not a proceeding to determine guilt or innocence; and, therefore, you are not entitled to Jencks material.

(A244-245).

On appeal, Plisco argued that the district court erred in holding that: 1) his plea of guilty was constitutionally valid; 2) the government had not breached its plea agreement; 3) Plisco could not withdraw his guilty plea, or in the alternative, enforce the plea agreement; and 4) it was not necessary for the government to provide Jencks Act material to Plisco pursuant to 18 U.S.C. § 3500. We will vacate Plisco's sentence and remand for resentencing.

II.

We need not deal at length with three of the four points of error assigned by Plisco on this appeal because our independent review of the record satisfies us that the district court did not err in upholding Plisco's guilty plea; in holding that the government did not breach its plea agreement with Plisco; and in holding that Plisco could not withdraw or enforce his plea agreement. However, the district court's ruling which deprived Plisco of ...


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