The opinion of the court was delivered by: CAROL E. HECKMAN
The defendant has moved to dismiss the indictment under Rule 12 on two grounds: (1) the extent of the government involvement in the crimes alleged was so overreaching as to bar prosecution of the defendant as a matter of due process; and (2) Count III must be dismissed because 18 U.S.C. § 924(2) is constitutionally defective for vagueness.
Oral argument was heard on October 6, 1993. For the reasons set forth below, it is recommended that defendant's motion be denied.
Defendants Coogan, Gugino, Scinta and Hoch were arrested on July 19, 1993 after the purchase of 20 lbs. of marijuana from Special Agent George Cast of the Federal Bureau of Investigation. As alleged in the affidavit in support of the criminal complaint in this case, Special Agent Cast has been working in an undercover capacity and had been in contact with defendant Gugino since the Spring of 1993. Gugino had expressed his interest in purchasing marijuana from Special Agent Cast. Initially, Gugino agreed to purchase 10 lbs. of marijuana from Special Agent Cast.
On July 18, 1993, Special Agent Cast called Gugino and the two agreed to meet at Max Hart's Diner in Amherst, New York on July 19, 1993 in order to complete the transaction. The following day, on July 19, 1993, agents of the FBI as well as other police officers established surveillance in the vicinity of Max Hart's Diner in Amherst, New York. Special Agent Cast arrived at approximately 4:30 p.m. Thereafter, Gugino, Coogan and Scinta approached Cast's vehicle and had a discussion with Special Agent Cast. During the discussion, Special Agent Cast learned that the three did not have the money to purchase the marijuana. According to the three, their "money guy" was nervous and they discussed changing the location of the transaction.
Special Agent Gast agreed with Gugino, Coogan and Scinta to proceed to the parking lot of the Marriott Hotel located at the corner of Millersport Highway and Flint Drive in Amherst, New York. Special Agent Cast was told that their "money guy" would arrive at the Marriott in a red van. Thereafter, Gugino, Coogan and Scinta, along with Special Agent Cast, went to the parking lot of the Marriott Hotel. Eventually, a red van driven by defendant Hoch appeared at the Marriott Hotel. Defendant Gugino told Special Agent Cast that the "money guy' wanted to see the stuff to be sure it was good. Thereafter, Special Agent Cast, carrying a bag containing 20 lbs. of marijuana, entered the van driven by Hoch. Inside the vehicle, defendants Gugino, Coogan and Scinta, along with Hoch, discussed the price of the purchase.
They agreed that Special Agent Cast was to receive $ 5,000 for 10 lbs. of the marijuana and the other 10 lbs. would be "fronted" to Gugino with an additional $ 6,000 to be paid to Special Agent Cast by Saturday, July 24, 1993. Special Agent Cast gleaned from the discussions that Gugino had told Coogan and Scinta that the marijuana would cost $ 6,000, and that Scinta and Coogan had told Hoch that the marijuana would cost $ 7,000. After inspecting the marijuana, defendant Hoch handed Special Agent Cast $ 7,000 in cash. Inside of Hoch's van, Special Agent Gast also observed an electronic scale.
Thereafter, Special Agent Cast left the van and arrested Gugino, Coogan, Scinta and Hoch. As part of a search incident to arrest, the law enforcement agents recovered a .22 caliber revolver from defendant Hoch's pocket.
Following indictment, defendants Coogan, Scinta and Gugino entered pleas of guilty, and Hoch is the only defendant who has filed a pretrial motion.
In support of his motion, Hoch submitted an affidavit from his attorney, who alleges that Special Agent Cast initially contacted Gugino to offer to sell him marijuana. He also alleges that Special Agent Cast maintained frequent and continuous contact with Gugino from the Spring of 1993 up through July 19, 1993, thereby providing the "impetus to keep the enterprise going until that point until July 19, 1993 when a sale of a large quantity of marijuana from Cast to Gugino and the other defendants was consummated." Defendant also alleges, and the government does not dispute, that the 20 lbs. of marijuana sold by Cast to the defendants was supplied by the government, and that the price which the FBI quoted for the marijuana was well below market price. He also alleges that the initial agreement was for the sale of 10 lbs. of marijuana, but that Cast offered to "front" an additional 10 lbs. of marijuana without advance payment as an additional inducement to the defendants to attract them into the criminal enterprise. Defense counsel alleges that Hoch is a user of marijuana but has had no prior involvement with the criminal justice system and would not now be involved but for the enterprise initiated by the government. Defense counsel also states that the defendant was legally licensed to carry the .22 caliber revolver referred to in Count 3 in the indictment, and that the pistol was not brandished or otherwise actively used during the events of July 19, 1993 and that no one other than the defendant knew of its existence until he was searched.
The defendant's two arguments against the indictment will be ...