United States v. Robert George Paduano, United States of America v. Anthony Ferro

Appellants Paduano and Ferro were charged in a three-count indictment with participation in a scheme to sell cocaine. Count 1 charged conspiracy to distribute cocaine, 21 U.S.C. § 846 , Count 2 charged possession of cocaine with intent to distribute, 21 U.S.C. § 841 (a)(1), and Count 3 charged distribution of cocaine, 21 U.S.C. § 841 (a)(1). During the trial, the District Court judge dismissed the charges against Ferro contained in Counts 2 and 3. The jury then found Paduano guilty on all three charges and Ferro guilty of the charge in Count 1. We affirm.

Appeal of Paduano

I. Judge’s note to the jury re recommendation of leniency.

The jury deliberated approximately two days before rendering its final verdict. At the end of the first day, a codefendant was found not guilty. At the end of the first day, the beginning of the second day, and at noon the second day, the jury asked to have the instructions on entrapment reread to them. Finally, at 3:30 p. m. on the afternoon of the second day, the jury sent out a note asking: “Can a verdict of Guilty With Leniency be given by the jury?” The trial judge’s full reply was:

The last sentence was included over the objection of…

concurring and dissenting:

I concur in the affirmance of Ferro’s conviction. I dissent from the affirmance of Paduano’s conviction because the majority opinion fails to follow United States v. Demma (9th Cir. en banc 1975) 523 F.2d 981 . In Demma , the codefendants both took the stand and admitted that they had agreed to import heroin and to distribute it to an undercover agent. The district court, relying on the Eastman line of cases, refused to instruct the jury on entrapment because the defendants denied having the intent necessary to commit the crimes with which they were charged. Demma specifically requested an entrapment instruction; Brulay did not do so. The majority in Demma overruled Eastman and its ill assorted progeny and reversed both convictions. Judge Wright, concurring with Judge Wollenberg in this case, is reiterating the views of the dissent in Demma , in which Judge Wright joined. The dissenters in Demma disagreed with the majority that reliance upon the Eastman line of cases was plain error and that retroactivity concepts were irrelevant. 1 The dissenters therefore concluded that Brulay’s conviction should not be reversed because he had not properly preserved…

549 F.2d 145 UNITED STATES of America, Appellee, v. Robert George PADUANO, Appellant. UNITED STATES of America, Appellee, v. Anthony FERRO, Appellant. Nos. 75-1216, 75-1217. United States Court of Appeals, Ninth Circuit. Jan. 25, 1977. Rehearing Denied Feb. 23, 1977 in No. 75-1216. 1 Joe Reichmann (argued), Los Angeles, Cal., for Paduano, in 75-1216. 2 Robert M. Talcott (argued), Los Angeles, Cal., for Ferro in 75-1217. 3 Terrance Michael Brown, Dept. of Justice (argued), Washington, D.C., for United States. 4 Before HUFSTEDLER and WRIGHT, Circuit Judges, and WOLLENBERG, * District Judge. WOLLENBERG, District Judge: 5 Appellants Paduano and Ferro were charged in a three-count indictment with participation in a scheme to sell cocaine. Count 1 charged conspiracy to distribute cocaine, 21 U.S.C. § 846 , Count 2 charged possession of cocaine with intent to distribute, 21 U.S.C. § 841 (a)(1), and Count 3 charged distribution of cocaine, 21 U.S.C. § 841 (a)(1). During the trial, the District Court judge dismissed the charges against Ferro contained in Counts 2 and 3. The jury then found Paduano guilty on all three charges and Ferro guilty of the charge in Count 1. We…