Joost v. United States , 226 F. App'x 12 ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 04-2317
ROBERT M. JOOST,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Robert M. Joost on brief pro se.
Donald C. Lockhart, Kenneth P. Madden, Assistant U.S.
Attorneys, and Robert Clark Corrente, United States Attorney, on
brief for appellee.
April 9, 2007
Per Curiam. Petitioner Robert Joost appeals pro se
from a district court decision dismissing his 28 U.S.C. § 2255petition as untimely. See 336 F. Supp. 2d 185 (D.R.I. 2004).
He there sought to advance a single claim under Brady v.
Maryland, 373 U.S. 83 (1963), based on documents he obtained
through a post-judgment Freedom of Information Act request, see
5 U.S.C. § 552 (FOIA).
Joost received a certificate of appealability (COA)
to address the timeliness issue; but that issue turns out to
raise difficult questions which we are reluctant to resolve in
this pro se setting, and which might well require a remand for
further inquiries. Further, the substantive Brady claim, which
the parties have adequately briefed, proves to lack merit, so
we expand the scope of the COA sua sponte and affirm on that
basis alone. Villot v. Varner, 373 F.3d 327, 337 n.13 (3d Cir.
2004).
In separate trials, Joost was convicted of conspiring
to obstruct commerce by robbery of an armored car, 18 U.S.C. §
1951 (the Hobbs Act), and of being a felon in possession of a
firearm, id. § 922(g). This court affirmed the former
conviction, see 1996 WL 480215 (1st Cir. 1996) (unpublished),
but vacated the latter because of the lack of an entrapment
instruction, see 92 F.3d 7 (1st Cir. 1996). Joost was again
tried and again convicted of the firearms charge, and we
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affirmed. See 133 F.3d 125 (1st Cir. 1998). The Supreme Court
denied certiorari on April 20, 1998.
To establish a Brady violation, Joost would need to
demonstrate that the government suppressed exculpatory or
impeaching evidence valuable to him and that prejudice ensued.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Conley v.
United States, 415 F.3d 183, 188 (1st Cir. 2005). The
likelihood of a different result is the key issue in assessing
prejudice. United States v. Bagley, 473 U.S. 667, 682 (1985).
Joost relied on an entrapment defense at trial--a
defense that he now claims would have been significantly
bolstered by the FOIA material. The entrapment defense
requires proof of improper government inducement--usually undue
pressure--to commit the crime, and lack of predisposition by
the defendant to engage in criminal conduct. United States v.
Gendron, 18 F.3d 955, 961 (1st Cir. 1994).
The original investigation of Joost spanned four
months, from March 23 to July 24, 1994, and initially focused
on counterfeiting. Joost’s partner (Tracy) was caught passing
fake tokens at a nearby casino, agreed to cooperate with state
authorities and introduced Joost to detectives DelPrete and
O’Donnell, who pretended to be petty thieves; one claimed to
have a cousin employed in the casino’s cashier cage.
Joost was struggling financially at the time and
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readily accepted the detectives’ offer to pay him fifty cents
for each counterfeit dollar token. During April, the focus of
the investigation broadened as Joost began speaking of other
criminal ventures, both past and future. Joost mentioned
dozens of possibilities including robbery of an armored car in
Rhode Island and of a tractor trailer or warehouse in
Pennsylvania.
Joost later testified that he was just trying to
sustain the detectives' interest. And he did tell the
detectives (which one of them confirmed at trial) that he did
not perform armed robberies, noting that because of his past
convictions he would face severe penalties if caught with a
firearm. Nonetheless, it was Joost who first mentioned the
possible use of a gun, stating on April 24 that the armored-car
robbery would require a gun.
The detectives several times asked for a gun and
Joost stated he might be able to comply, but nothing was
forthcoming. The trio drove to Pennsylvania on May 28 with the
idea of robbing a tractor trailer or related warehouse, but--by
arrangement with the authorities--the scheme was aborted by a
police stop. O’Donnell later testified simply that: “We had a
meeting between the State Police and the FBI, and it was
determined that we couldn’t allow it to happen.”
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On July 21 the detectives told Joost that they would
need no more counterfeit coins. They knew at the time that he
was in financial difficulties and facing imminent foreclosure
on his home. The detectives proposed a plan to rob a Cape Cod
nightclub and asked Joost once again to procure a firearm.
After a lengthy discussion in which the need for a gun was
mentioned some six times, Joost agreed to obtain one. On July
24, the day of the supposed robbery, he handed the detectives
a 25-caliber Barretta, prompting his arrest.
This, with additional detail, was the gist of what
the jury learned at Joost's retrial. An entrapment instruction
was given but a guilty verdict was again returned. The main
question now before us is whether there is any reasonable
likelihood that the result would have been different if, at the
time of the trial, Joost had had available three FBI documents
he later received in response to his FOIA request.
These documents comprise two teletypes and one airtel
written in the second half of May 1994. They discuss possible
means by which the FBI, in coordination with local police,
could prevent the planned May 28 trailer theft in Pennsylvania
from occurring. A principal goal, the documents explain, was
to do so without arresting Joost so that he could continue
plotting the robbery of an armored car and thereby receive a
higher sentence.
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Based on conversations with the federal prosecutor,
the FBI noted in one report that Joost would likely receive
“only a 6 month sentence” for the counterfeiting charge and
“only a 10 to 16 month sentence” for the trailer theft, but
would get “at least a 15 year sentence” for an armored-car
robbery. “[I]t is therefore operationally desirable to
dissuade him from this [trailer theft] crime in lieu of a Hobbs
Act [offense].” Other comments to the same effect are as
follows:
C the undercover officers “have pressed Joost to
show them the armed courier target”;
C “[t]he second desirable result is that Joost
and the unsub [unidentified subject] not be
arrested, but indicted at a later date”;
C “As stated [i]n 5/19/94 teletype ..., the
purpose of the operation is to fully [material
deleted]. This should result in a fifteen year
sentence of Joost, a career criminal.”;
C any search warrant must not “expose the UCOs
[undercover officers] in order that Joost will
conspire with the UCOs to commit a Hobbs Act
armed courier robbery”;
C “The UCOs will encourage this abandonment of
the [Pennsylvania] theft.”
The only reference to firearms is the following:
Joost has clearly stated that no
weapons are to be used on this [trailer]
theft as he is fully aware of the
extensive jail time he would face for
possessing a weapon. UCOs are aware that
if Joost at any point in the ... operation
possesses a weapon he will be arrested
immediately. [The federal prosecutor] has
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advised that the possession of a weapon by
Joost, in light of his arrest record, will
sentence him to a fifteen (15) year jail
term.
It is clear from this material, as it was from the
court testimony, that the agents were seeking to direct Joost's
energies to a high-penalty armored-car robbery or firearms
crime rather than the other serious ventures which did not
involve firearms. But there is nothing in the details provided
by the FOIA material that alters the main thrust of what the
jury learned at the trial.
Postponing an arrest in the expectation that a more
serious offense might be attempted is ordinarily permissible.
United States v. Lovasco, 431 U.S. 783, 792 (1977); cf. United
States v. Winchenbach, 197 F.3d 548, 554 (1st Cir. 1999). It
is unclear why Joost thinks that the details as to the
authorities' efforts to frustrate the Pennsylvania robbery--
which was fictitious anyway--add anything to his case. It was
simply a part of the sting.
The FOIA material does confirm that Joost "clearly
stated that no weapons are to be used [during the Pennsylvania]
theft" because of his "aware[ness] of the extensive jail time
he would face for possessing a weapon." But this simply echoes
testimony provided at trial by DelPrete--describing Joost's
April 24 pronouncement that he did not perform armed robberies
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and that, because of prior convictions, he would face severe,
mandatory penalties if caught with a firearm.
If it had only been Joost who testified to his
reluctance to engage in a firearms crime, then independent
corroboration from FBI files might have been very valuable.
But here Joost's reluctance, and the reason for it, were
expressly acknowledged by one of the detectives testifying for
the government and were confirmed by the delays in getting the
firearm. Cf. United States v. Sanchez, 917 F.2d 607, 618 (1st
Cir. 1990) ("the unavailability of cumulative evidence does not
deprive the defendant of due process").
Joost had an entrapment defense minimally sufficient
to get to a jury, but it was far from powerful. He was the
first to raise the subject of firearms, proposed several
criminal ventures requiring their use, and offered to
personally transport any firearm used in a Fall River attack.
In the end he was readily able to obtain a handgun. The
additional detail derived from the FBI reports would not have
altered the result.
Separately, Joost argues that the FOIA material shows
that the detectives committed perjury at the firearms trial
(and at his Hobbs Act trial). We have examined the specific
allegations and transcripts with care and conclude that the
discrepancies do not show perjury but at best furnish minor
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points for cross examination in the firearms trial that would
not have undermined the detectives' basic testimony.
Affirmed.
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