Opinion
No. 332, Docket 28567.
Argued February 10, 1964.
Decided April 2, 1964.
Michael J. Gillen, Asst. U.S. Atty., Brooklyn, N.Y. (Joseph P. Hoey, U.S. Atty., for the Eastern District of New York, Brooklyn, N Y, on the brief), for appellee.
Seymour Friedman, Brooklyn, N.Y. (Philip Dinitz, Brooklyn, N Y, on the brief), for appellant.
Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.
Leonard Lanza appeals from a judgment of conviction for possession and sale of counterfeit money and a five-year sentence of imprisonment entered in the Eastern District of New York. Although Lanza relies almost exclusively upon matters raised for the first time at the hearing on a motion for a new trial, he has taken no appeal from the denial of that motion by Judge Mishler on August 26, 1963. Moreover, the record on appeal does not contain either proceedings at the trial or the proceedings on the motion for a new trial. At the request of the court the trial transcript was finally handed up at oral argument of this appeal.
As the facts and legal issues have been developed fully by both parties in oral argument, we proceed to consider the appeals as if they had been properly presented although we would be fully justified in dismissing the appeals. In a criminal case this course would seem to be in the interest of judicial economy as the same question in all likelihood would come before us later in some related proceeding.
On the appeal from the conviction, the sole issue presented is whether the defense of entrapment is available to Lanza. Finding no error in the conviction, we affirm the judgment of the district court.
On December 7, 1962, Lanza sold ten counterfeit $20.00 federal reserve notes to Secret Service Agent D'Amelio, who had been introduced to Lanza by one Torraco, a government special employee, or informer. On December 10, Lanza sold 15 counterfeit notes to Agent Vecchione, who had been introduced to Lanza by D'Amelio. Although the issue of entrapment was raised in the district court, Lanza did not take the stand and the defense offered no witnesses. There was no basis whatever for the defense of entrapment.
Lanza moved for a new trial on the ground that the government had prevented Torraco from testifying in Lanza's behalf. At the hearing on the motion Torraco testified that Lanza had refused to sell the counterfeit notes to D'Amelio at first but had succumbed only after D'Amelio had entreated him for twenty minutes. Torraco further testified that D'Amelio had advised Lanza on the proper treatment of counterfeit currency. He stated that he had agreed to testify at the trial for the defense but had absented himself from his place of business to avoid the appearance. Two probation officers, two Assistant United States Attorneys, and two special agents testified that Torraco had made statements to them indicating his fear of reprisals from Lanza or Lanza's friends. Judge Mishler denied the motion for a new trial.
As Judge Mishler found, it is clear that Torraco was available to the defense throughout the trial. Yet the defense never sought to subpoena him, or to have the government produce him, or to have the case adjourned until he could be located. There was no showing whatever that the government kept the witness from testifying or that anything said to Torraco by government representatives was not entirely proper or necessary under the circumstances, all of which indeed indicated that he had good reason to fear for his safety. The district court did not err in denying the motion for a new trial.
The judgment of the district court is affirmed.