APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before GIBBONS, HUNTER, and ROSENN, Circuit Judges
Appellant Thomas A. Dalfonso was tried by a jury and convicted in the United States District Court of the Western District of Pennsylvania of distributing and conspiring to distribute the narcotic dilaudid in violation of 21 U.S.C. §§ 841(a)(1) and 846. He appeals his conviction and sentence of five years imprisonment and fine, contending that the trial judge committed reversible error by (1) failing to recuse himself, and (2) permitting a government witness to invoke the fifth amendment on cross-examination. We see no merit in these contentions and therefore affirm.
The events leading to Dalfonso's conviction began in August 1981 when Joseph Carbone, a professional "confidence man," communicated with the Federal Bureau of Investigation (FBI) and offered his services as a government informant. In return, Carbone sought to have the Government report his cooperation to the state authorities so that he might effect a reduction of his sentences for two crimes of which he had already been convicted. Carbone and the Government were able to strike a bargain and Carbone became an informant.
Assuming his role as informant, Carbone described for the FBI his contacts with appellant Dalfonso and one Fred Kovalchuk. Dalfonso and Kovalchuk recently had boasted to Carbone of the money to be made in selling dilaudid, and offered to supply Carbone with the drug if he were interested in dealing. Carbone had turned down this offer at the time, but at the Government's behest, Carbone renewed his contacts with Dalfonso and told him that he was interested in purchasing a large quantity of dilaudid. Dalfonso made arrangements for the transaction through Kovalchuk. Dalfonso completed the sale at the Inn America, New Stanton, Pennsylvania, in the presence of an FBI agent posing as a friend of Carbone. Dalfonso and Carbone completed a second sale several days later and following an aborted third sale shortly thereafter, Dalfonso and Kovalchuk were indicted and charged with violating federal narcotics laws.
At the pretrial hearing a notable incident occurred forming the basis for one of Dalfonso's allegations of error. The Assistant United States Attorney assigned to the case apprised the court that an informant (not Carbone) had notified the FBI that the prosecutor and one of the defense attorneys were going to fix the case. This informant later changed his story and said that one of the defense attorneys was going to fix the case with the court.*fn1 The judge replied that he was friendly with defense counsel, as he was with many other lawyers at the bar of Western Pennsylvania, but was not going to fix the case.
This exchange apparently stimulated co-defense counsel to come forward with related information. According to him, a former client of the district judge when he was a practicing lawyer, one Henry Richitelli, who had since acquired a lengthy criminal record, had telephoned defendant Dalfonso's father, a former Mayor of Monessen, Pennsylvania, and told him that the case could be fixed through the judge's former preceptor and friend. Dalfonso's father responded that he was not interested. Richitelli later telephoned Dalfonso's father again, telling him that a sum of $100,000 had been made available for the benefit of his son's codefendant, Kovalchuk, for delivery to the judge through his former preceptor. Again, Dalfonso's father turned down the offer.
The tiral judge disclaimed having any contact with Richitelli since he represented him "years ago in a tax matter," denied an effort had been made by anyone to bribe him, and directed that an FBI investigation be made of the alleged improprieties. Next, following an off-the-record conversation with counsel, the judge announced that he was recusing himself from the case and would have it reassigned to another judge. The judge then held further off-the-record discussions with counsel in chambers. At the close of these discussions he announced that after further reflection, he had concluded that to recuse himself would set an undesirable precedent, and after conferring with the United States Attorney and defense counsel, he decided to vacate the recusal order and hear the case. Both counsel for the defendants assented without comment.
At trial Dalfonso did not deny that he had performed the criminal acts charged, but instead asserted the affirmative defense of entrapment. To prove that he was entrapped, Dalfonso sought to introduce evidence showing that Carbone was a professional confidence man who might easily frighten or persuade even a person of reasonable firmness to perform acts against his better judgment.
Prior to trial, the court had ruled that the defense would be permitted to introduce evidence of Carbone's prior convictions for impeachment purposes, but that the defense could not question Carbone about certain activities appearing on his rap sheet for which he had been convicted. Carbone's conviction record included three counts of theft, burglary, larceny, and receiving stolen goods, a firearms violation, making an illegal threat, and most recently, theft and conspiracy.
Subsequently, the prosecution at trial asked Carbone on direct examination to explain certain criminal activities to which he had referred in a taped conversation with Dalfonso. Specifically, government counsel inquired what Carbone meant by the terms "rip-off" and "scam," and whether he had not in fact engineered numerous "rip-offs" in the past. At this point, defense counsel asserted that the door had been opened and that the defendant should now be permitted to cross-examine Carbone concerning fraudulent activities with which he had been involved, but for which he had not been convicted. The court agreed and ruled ...