Delwright T. Dyman, Cosimo Mezzapella, Richard D. Spainhower and Joseph A. Valentino appeal from convictions for bank burglary, 18 U.S.C. §§ 2113(a) and 2, and conspiracy to commit bank burglary, 18 U.S.C. § 371, entered in the District of Connecticut, Emmet T. Clarie, J., on May 23, 1983, following a jury trial.
Lumbard, Oakes and Cardamone, Circuit Judges.
Thanks to information provided by an F.B.I. paid informant, the participants of a scheme to burglarize the Farmington Savings Bank in Farmington, Connecticut, were all captured. Three of the appellants, Cosimo Mezzapella, Richard D. Spainhower and Joseph A. Valentino, were caught inside the bank. The fourth appellant, Delwright T. Dyman, who acted as a lookout, was arrested a few days later. All four now appeal from convictions for bank burglary of a federally insured bank, 18 U.S.C. §§ 2113(a), (f) and 2, and conspiracy to commit bank burglary, 18 U.S.C. § 371, entered in the District of Connecticut, Emmet T. Clarie, J., on May 23, 1983, following jury verdicts of guilty on April 7, 1983.*fn1
Appellants present three major claims: (1) that the indictments against them should be dismissed because the government misled the grand jury; (2) that the level of government involvement in the scheme was so outrageous as to be a violation of their due process rights; and (3) that the district court's instructions to the jury on the entrapment defense advanced by Mezzapella and Valentino were erroneous. As we find no merit in these or any of the other claims raised by various appellants, we affirm the convictions.
The government's key witness was the F.B.I. informant, Frank Sprenz, an electronics expert with a criminal record which included numerous bank burglaries. Through Sprenz and others, the government introduced evidence supporting the following facts. In the fall of 1980, Sprenz, who had become a paid FBI informant a few months earlier, was introduced by a mutual friend to Mezzapella, also a long-time burglar with numerous convictions. Mezzapella gave Sprenz the address of Valentino, a welder and safecracker in Buffalo, previously unknown to Sprenz. Sprenz travelled to Buffalo to gauge Valentino's interest in participating in an as yet unplanned bank burglary scheme. Although Valentino told Sprenz he was willing to show those involved how to use safecracking equipment, he stated he was not, at the time, interested in participating in a burglary.
Sprenz didn't hear again from Mezzapella until April, 1982, when Mezzapella called him in Vermont, explained that he and a friend were interested in burglarizing a bank in Connecticut, and asked Sprenz to come to the Bronx. Sprenz met Mezzapella as requested, and they then drove to Glastonburg, Connecticut, where they met Delwright Dyman. Dyman told Mezzapella and Sprenz that he thought the Farmington Savings Bank in Farmington, Connecticut, was a good target for a burglary. The three men then dorve to Farmington. Late that night, Dyman and Sprenz entered the bank through a rear window which had been wired to the alarm system. After a brief visit, they returned to Glastonbury.
Mezzapella called Sprenz several times during April and May, 1982, and informed him of the problem of financing the equipment needed for the burglary. Menawhile, Valentino called Sprenz, and expressed his interest in participating in the scheme. On May 8, 1982, Sprenz met Dyman, Mezzapella, and Mezzapella's driver, "Willie," in Glastonbury, and again discussed the proposed burglary.
In early July, 1982, Mezzapella asked Sprenz to come to Farmington to see if he could bypass the alarm system of the bank. Mezzapella and Sprenz again entered the bank through the rear window, and inspected the alarm system. They talked by two-way radio with Dyman, who acted as a lookout and monitored the police frequency with an electronic scanner. When Sprenz told Mezzapella that he could neutralize the alarm, Mezzapella said that he could obtain equipment to burn through the concrete floor of a conference room and into the vault.
Some weeks later, at Mezzapella's request, Sprenz drove to Connecticut, picked up Dyman, and continued on to the Bronx. The three discussed specific roles of participants in the burglary: Sprenz and Dyman would enter the bank early one weekend night and neutralize the alarm system; they would then leave the bank and act as lookouts, while Mezzapella and Valentino would cut into the vault. When that was completed, they and the other participatins would empty the vault, which they estimated to contain about one thousand safe deposit boxes.
After repeated delays because of equipment problems, Mezappella finally telephoned Sprenz that the burglary would take place on Saturday to Sunday, October 9-10, 1982. All were to meet in Glastonbury. On Saturday, October 9, Sprenz drove down from Vermont and met Dyman. He and Dyman then stole a van that was to be used in the burglary, and parked it a mile from the bank. Although Mezzapella, Valentino, and the others were expected to arrive from New York with the equipment, further problems with the equipment forced a postponement.
The next day, Mezzapella called Sprenz, told him he could not find a place to repair the equipment in New York, and asked if he could bring it up to Sprenz's home. Sprenz agreed, and later that day, Valentino, Mezzapella and William Bender arrived in a rented van.Within a few days, Mezzapella and Valentino had completed the necessary repairs, and the burglary was rescheduled for the following weekend.
On Friday, October 15, Mezzapella returned to Sprenz's home with Bender and Richard Spainhower. Valentino arrived by bus from Buffalo the following morning, and he and Mezzapella checked the equipment.Later that day, Sprenz, Valentino, Mezzapella, and Bender drove to Glastonburg, where they met Dyman and William Strawsacker.
Upon arriving at Farmington, sometime after 8:00 P.M., Dymand and Sprenz entered the bank, while the rest waited in a nearby van with the equipment. After Sprenz installed an alarm bypass device, he and Dyman exited the bank through the back door with a key left by bank officials on instructions from the F.B.I. Sprenz then informed the others that all was clear, and he and Dyman took up positions across the street from the bank. They had been instructed by Mezzapella to carry guns. Sprenz did so, but he had loaded his gun with fake bullets.
Bender then drove the van to the rear of the bank. About 9:15 P.M. Mezzapella, Valentino, Strawsacker and Spainhower unloaded the equipment, and carried it into the bank. Bender then drove away, and waited in the parking lot of a nearby restaurant. Within a few minutes, F.B.I. agents and officers from the Connecticut State Police and the Farmington Police Department arrived and, using bullhorns, informed the four men inside of their presence. When the four did not leave the bank, the police made telephone contact with the burglars inside. After several hours of negotiation, all four surrendered. The equipment recovered from the bank included tanks of nitrogen, oxygen and acetylene gas torches which could easily cut through metal and concrete, and burning bars used to melt metal and disintegrate concrete. Dyman was arrested six days later, on October 21, in the parking lot outside his apartment in Manchester, Connecticut.
Three defendants testified at trial. Valentino and Mezzapella raised a defense of entrapment, claiming that were it not for the government's inducements, they would not have participated in the burglary. Spainhower's defense was that, at the time of the burglary, he was employed as a registered informant of the United States Customs Bureau in New York, and thought that his responsibility in that job was to participate in criminal activities, no matter where, so that he could pass along information to his agent; he, too, testified at trial. Dyman did not testify.
A. Presentation of Evidence to Grand Jury.
The appellants were tried on a second superseding indictment found on January 7, 1983, by a grand jury in Hartford, Connecticut.*fn2 Appellants argue that the indicments against them should be dismissed for two reasons: first, that the government misled the grand jury into thinking that F.B.I. Agent Jack Daulton could himself identify the two men who first entered the bank on the night of the burglary; and second, that by not revealing Sprenz's identity, Agent Daulton's testimony misled the grand jury and prevented it from investigating the issue of government inducement to commit the burglary. Although they did not raise these issues before the district court, they now contend that these actions were so egregious as to deny their due process rights. We disagree.
On October 27, 1982, when the government first sought a superseding indictment adding Dyman as a defendant, Daulton testified before the Hartford grand jury that on the night of the burglary, he and Agent Richard Farley were stationed in a shed near the rear of the bank. Daulton initially testified that "we observed two individuals approach the rear of the bank" and continued to observe their conduct. He then stated that Farley was wearing nighttime vision glasses, and that Farley was able to see at least one of the men and identify him as Dyman. Later, while being questioned about "the other man," Daulton stated that he "personally was not observing the rear of the bank, and I was not able to tell who that was, Agent Farley was. . . ." Thus, appellants argue that Daulton's first statement appeared to be eyewitness testimony, but was really hearsay.
The use of hearsay testimony before a grand jury raises questions about the validity of an indictment only when the prosecutor misleads the grand jury into thinking it is getting first-hand testimony when it really is receiving hearsay, United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir. 1972), or where there is a high probability that if eyewitness rather than hearsay testimony had been used, the defendant would not ...