The opinion of the court was delivered by: VANARTSDALEN
The defendants were convicted of various federal offenses arising out of the destruction by an explosive fire of a building identified as Mr. Living Room, located in Marlton, New Jersey, on March 1, 1977. The convictions were all affirmed on appeal, but the case was remanded to the district court "for an evidentiary hearing" on the issue, first raised in the Court of Appeals, of whether the government had planted an informer in the defense camp who intruded into defense strategy and recorded conversations with defendants relative to this case.
The mandated evidentiary hearing has been held, requiring eight (8) trial days of testimony.
I conclude, on the basis of the record, that there was no violation of any of the defendants' rights, and that none of them is entitled to any relief from the conviction and judgment of sentence.
1. On March 1, 1977, a commercial building located in Marlton, New Jersey, known as "Mr. Living Room," was destroyed in a violent conflagration.
2. Following an extensive investigation, the present defendants and Samuel Kerns, the owner of the building, were jointly indicted by a federal grand jury on July 10, 1978 for alleged offenses arising out of the fire. In substance, the indictment charged the defendants with an interstate conspiracy to destroy the building for the insurance proceeds by arson and explosion (napalm). The charges were based on violations of the federal "Travel Act," 18 U.S.C. § 1952; "Racketeer Influenced and Corrupt Organizations Act" (RICO), 18 U.S.C. § 1962(c), conspiracy statute, 18 U.S.C. § 371, and related statutes.
3. Samuel Kerns pleaded guilty. He did not testify at the trial of the other defendants. The remaining five defendants were tried jointly, and all were convicted of certain of the counts. The trial commenced on November 1, 1978 and concluded with the verdict on November 21, 1978. Sentence was scheduled for January 3, 1979, but continued, at the government's request, until January 12, 1979.
4. Albert Augustine, a named, but unindicted co-conspirator, was one of the government's principal witnesses at the trial. None of the defendants testified at the trial, nor did Charles Allen, the informer whom defendants contend "intruded into the defense camp."
6. Agents of the FBI routinely utilize confidential informants in various investigations. The FBI defines a confidential informant as a person who provides confidential information to the FBI on a continuing basis, but without expectation of having his or her identity revealed and without expectation of being required to testify in court concerning the confidential information provided. Customarily, a confidential informant has direct contact and communication with only a single FBI agent to whom the informant is specially assigned. The informant's name and identity and status as an informant is ordinarily known only to that agent. The informant is assigned a number, and all FBI reports and records identify the informant only by the assigned number. A master list of confidential informants, their assigned numbers, names and identities is maintained by the FBI, but the list is available for inspection by FBI personnel only on a "need to know" basis. Thus the name and identity of a confidential informant is maintained in secrecy and strict confidentiality by the FBI.
7. At the time that Mr. Allen became a confidential informant, Special Agent Handy instructed him not to become involved in the defense strategy of any person in any matter that came to his attention. Such instruction was at that time routinely and expressly given to all confidential informants of the FBI who were reporting to FBI agents within the geographical area of the third judicial circuit. The instruction was instituted as a result of the decision of United States v. Rispo, 460 F.2d 965 (3d Cir. 1972).
8. Around November of 1977, Charles Allen reported to Special Agent Handy that he, Allen, had been "offered a piece of Mr. Living Room." This information was received about nine months after the fire. It does not appear that anything was done with this information other than to make and place report of it in a routine file. The federal agents who were investigating the fire were not advised of this information prior to the return of the indictment.
9. Through information obtained from Albert Augustine, the federal agents who were investigating the fire were advised that Charles Allen was present during a conference among certain of the co-conspirators at the law office of co-conspirator Malcolm Block. The government attorneys in charge of the Mr. Living Room fire investigation were of the opinion that there was insufficient evidence of involvement by Charles Allen to seek his indictment as a co-conspirator, and they were not then aware that Mr. Allen was an FBI informant and were not then informed of Mr. Allen's statement to Special Agent Handy.
10. Around July of 1978, Charles Allen was arrested and charged with violation of certain drug laws. Induced, at least in part, by that arrest, he revealed to law enforcement investigators outside of the FBI that he was an FBI informant. Having revealed his identity to another agency, under FBI procedures, he was no longer considered to be an FBI informant.
11. Around the middle of September, 1978, Charles Allen agreed to become a "cooperating witness" and to provide testimony before grand juries and trial juries and to assist in ongoing investigations being conducted by the FBI and other federal law enforcement agencies in a wide range of organized criminal activities as to which he claimed extensive personal knowledge by reason of past involvement in such activities.
13. Special Agent James Maher of the FBI, who had been assigned to investigate thefts from interstate shipments, conspiracies to commit murder, narcotics laws violations and loansharking activities, was placed in charge of coordinating Mr. Allen's activities as to ongoing investigations at the time Mr. Allen agreed to become a cooperating witness. Special Agent Maher's first contact with Mr. Allen was about September 19, 1978. Other FBI agents assigned to work with Agent Maher in directing Mr. Allen and working on various investigations as to which Mr. Allen would provide assistance and information were Special Agents Henry Handy, William McMullen and John Tamm. Agents Handy and McMullen were in Squad 4 under the supervision of Special Agent George Sherwood, and Agents Maher and Tamm were in Squad 1 under the supervision of Special Agent William Perry. In addition to these FBI agents, also assisting in various investigations involving Charles Allen, were Special Agents William Herbert and Harold Perlick of the Bureau of Alcohol, Tobacco and Firearms, Special Agent Bohden Mizak of the Drug Enforcement Agency and Philadelphia Police Officer William Hausman, specially assigned to the Drug Enforcement Agency.
14. The attorneys and government investigating agents who made up the team that investigated, prosecuted and tried the defendants for the Mr. Living Room arson case were the following: Special Attorneys from the Department of Justice "Strike Force" Louis Pichini and Molly Colburn; FBI Special Agent Paul Nolan, the supervisor of Squad 6 identified as the "business crimes squad"; FBI Special Agent David Seel, the "case agent" in charge and also a member of Squad 6; Special Agent James Donegan of the Secret Service; Special Agent William Herndon of the Camden, New Jersey office of the Bureau of Alcohol, Tobacco and Firearms. This group of attorneys and law enforcement officials is hereafter collectively referred to as the "prosecution team."
15. After the indictment was returned against the defendants, from July 10, 1978 through to the date of sentencing, January 12, 1979, no member of the prosecution team received any significant investigative lead or additional investigative information concerning the Mr. Living Room arson from any source whatsoever.
16. Sometime after the return of the indictment, but prior to September 19, 1978, Henry Handy obtained information from his then confidential informant, Charles Allen, concerning certain activities of several of the defendants, which information was reduced to writing and delivered to Special Agent Seel of the prosecution team. That information is contained in Exhibits G-5 and G-5A. The substance of the information insofar as it relates to the Mr. Living Room arson case is as follows:
a. On July 14, 1978, Ralph Natale left for Palm Springs, California, because his attorney was able to have the travel restrictions modified. (This information was a matter of public record, and available to, if not actually known by, the prosecution team's attorneys.).
b. Vincent Fardella left Philadelphia and might be in Florida. This again was information known or readily available to the prosecution team.
c. Francis McDonnell then thought that Samuel Kerns or Joseph Ranoia "may fold under pressure and testify for the government" and he believed that Leonard Kerns, Sam Kerns' son, and Joseph Ranoia had been immunized by the government. The basis for Mr. Allen's conclusions as to what Mr. McDonnell thought or believed is not apparent. Samuel Kerns entered a plea of guilty, but did not testify at the trial. Joseph Ranoia did testify.
d. Ralph Natale "had okayed a contract for $ 20,000 for a hit on Malcolm Block," but such a "contract" would have to be "cleared" with Angelo Bruno. The basis of this information is not disclosed. The balance of the information in Exhibits G-5 and G-5A has no relation to the Mr. Living Room arson.
17. With the exception of the information contained in Exhibits G-5 and G-5A, no member of the prosecution team ever received any information concerning the Mr. Living Room fire or any of the persons involved in the arson either directly or indirectly from Charles Allen until after the defendants were sentenced. No information received from Charles Allen or by reason of anything said or done by him, either directly or indirectly, resulted in or was used by the government in the prosecution of defendants at any stage of the proceedings.
18. All of the FBI and other investigating officials who had contact with Charles Allen while he was a confidential informant and later a cooperating witness testified at the hearing. None ever gave to any member of the prosecution team any information that was learned or obtained, either directly or indirectly, from Charles Allen, with the exception of contents of Exhibits G-5 and G-5A revealed to David Seel before Charles Allen became a cooperating witness. All members of the prosecution team testified at the hearing. No member of the prosecution team ever received any information or evidence either directly or indirectly from Charles Allen, with the exception of Exhibits G-5 and G-5A, concerning the Mr. Living Room arson or any of the defendants charged in connection with the arson until after the defendants were sentenced. No information or evidence derived by the government from anything Mr. Allen said or did, directly or indirectly, was utilized in any stage of the prosecution against any of the defendants.
19. None of the FBI agents who were assigned to work with or supervise the activities of Charles Allen ever were members of the squad supervised by Special Agent Paul Nolan, the FBI supervising agent in charge of the Mr. Living Room arson ...