Nos: 01-1168/02-1929 UNITED STATES OF AMERICA v. John Dufresne

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos: 01-1168/02-1929
UNITED STATES OF AMERICA
v.
JOHN DUFRESNE,
Appellant No. 01-1168
UNITED STATES OF AMERICA
v.
MARK LANZILOTTI
a/k/a
LANCE
Mark Lanzilotti,
Appellant No. 02-1929
Appeals from the United States District Court
for the Eastern District of Pennsylvania
(Crim. Nos. 99-573-02/99-573-06)
District Judge: Hon. Herbert J. Hutton
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 17, 2002
Before: NYGAARD, ALITO and
McKEE, Circuit Judges.
(Filed January 17, 2003)
OPINION
McKEE, Circuit Judge.
John Dufresne and Mark Lanzilotti appeal from their judgments of conviction and
sentence for offenses arising out of a methamphetamine manufacturing and distribution
scheme. Although the circumstances of this case are bizarre, we find no reversible error,
and we will affirm for the reasons set forth below.
I.
A federal grand jury returned a nine-count indictment charging ten men, including
Dufresne and Lanzilotti, with offenses arising out of a two-year scheme to manufacture
and distribute more than $1 million worth of methamphetamine. Dufresne was charged
only in count one with conspiracy to manufacture, distribute and possess with intent to
distribute methamphetamine, in violation of 21 U.S.C. 846. Lanzilotti was charged in
count one and in counts four and five with manufacturing methamphetamine, in violation
of 21 U.S.C. 841(a)(1). Of the ten defendants charged, only Dufresne and Lanzilotti
went to trial.
Following a seven-day jury trial, Dufresne and Lanzilotti were found guilty as
charged. The jury made a specific finding beyond a reasonable doubt than the relevant
offenses of Dufresne and Lanzilotti involved more that one kilogram of
methamphetamine. The jury also found Dufresne liable for forfeiture of $30,000 in drug

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proceeds and Lanzilotti liable for forfeiture of $66,000 in drug proceeds under 21 U.S.C.
853.
The district court sentenced Dufresne to 360 months in prison, ten years of
supervised release, a $10,000 fine, and a $100 special assessment. Shortly thereafter, the
district court sentenced Lanzilotti to life in prison, five years of supervised release and a
$300 special assessment.
Dufresne and Lanzilotti file timely appeals, at Nos. 01-1168 and 02-1929
respectively. Each is discussed separately.
II.
A. Dufresne’s Appeal (No. 01-1168).
Dufresne argues that the district court abused its discretion in precluding him
from arguing vindictive prosecution and related claims to the jury, and that these errors
entitle him to a new trial. The factual background to his argument is as follows.
On Friday evening, October 20, 2000 (three days before his trial was to begin), the
government learned that Dufresne’s counsel intended to call at trial various members of
the family of one of the prosecutors, Assistant United States Attorney ("AUSA") Robert
K. Gordon. Government counsel called this to the attention of the district court on
Monday, October 23rd, before the start of jury selection, and requested an offer of proof.
Dufresne’s counsel responded that he intended to call Francine and Robert Palladino, the
sister and brother-in-law of AUSA Gordon, not to suggest any impropriety but only to
testify that they were friends of Dufresne and had loaned him small amounts of money
during the time of the charged conspiracy. The purpose of the testimony, explained
counsel, was to establish that Dufresne had some means of financial support and,
therefore, was not likely to be involved in the methamphetamine conspiracy. Over the
government’s objection, the district court ruled that testimony for this purpose would be
relevant and admissible.
On October 26, 2000, toward the close of the government’s case, government
counsel inquired whether Dufresne’s counsel still intended to call Mr. and Mrs. Palladino
as witnesses. Dufresne’s counsel said that he did, and that the intended to call still
another relative of AUSA Gordon in order to demonstrate that the prosecution was
improperly motivated. However, when the expansion of Dufresne’s counsel’s proffer
was reported to the district court, counsel informed the court that he would not call the
additional witness, but would rely solely on Robert Palladino’s testimony. Defense
counsel admitted that the purpose of Robert Palladino’s testimony went beyond the
original proffered purpose and now suggested that there was "something fishy" in the
prosecution’s motives.
The district court ordered Dufresne to submit a written offer of proof, and asked
the government to respond with a motion in limine if it wished to exclude this testimony.
Dufresne’s counsel provided the following written offer of proof:
Defense intends to call Bobby Palladino, who will testify that
he is the owner proprietor of Babadino’s Pizza Shop in
Westmont, New Jersey and that he is married to Frances
(Franny) Palladino, formally (sic) Franny Gordon, the sister of
one of the assigned United States Attorneys in the prosecution
of this case, Robert Gordon.
Mr. Palladino will further testify that in the years 1996 and
1997, that he would, from time to time, lend the defendant,
John Dufresne, money in sums ranging from $50 to a couple
of hundred dollars.
Mr. Palladino will further testify that he and his wife received
phone calls from A.U.S.A. Robert Gordon after May of 1997
but prior to October of 1999, requesting that they use their
influence to persuade John Dufresne to cooperate with the
FBI.
Mr. Palladino will further testify that A.U.S.A. Robert
Gordon called him to inform him that John Dufresne was
going to be indicted which information Bobby Palladino

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passed on to John Dufresne prior to his arrest.
The defendant, through counsel, also intends to cross-examine
Joe Albanese to establish that A.U.S.A. Robert Gordon was
an Assistant United States Attorney who negotiated the plea
agreement with his attorney and helped prepare him and
examined [him] in both of his Grand Jury appearances.
The record in the trial already demonstrates that defendant,
John Dufresne, was neither arrested nor charged in the New
Jersey conspiracy to maintain a production facility, distribute
and possess with intent to distribute methamphetamine and
that Mr. Dufresne was first charged for this conspiracy in the
instant Federal indictment.
Dufresne’s counsel offered the following explanation of the relevance of this
evidence:
That evidence could result in a jury determination that due to
the fact that the defendant was not arrested nor charged in the
precursor New Jersey case, but was first charged in the
Federal case, and due to the facts that the assigned AUSA
who had handled the charges against the first cooperating
federal witness was related to a friend of Dufresne, that the
AUSA attempted to communicate with and request that those
family members use their influence with John Dufresne to
encourage him to cooperate, and that upon his failure to
cooperate was indicted, that the indictment of John Dufresne
was retaliatory.
In response to this written offer of proof and the government’s motion in limine in
response, the district court issued an order, dated October 27, 2000, providing:
1. Counsel for the Defendants are hereby precluded from
eliciting testimony intended to demonstrate vindictive
prosecution or to argue vindictive prosecution to the jury;
2. Counsel for the Defendants are hereby precluded from
referring to Assistant United States Attorney Robert K.
Gordon by name during the questioning of witnesses or
eliciting his name during the questioning of any witnesses;
3. Counsel for the Defendants shall not make further
references to the charging decisions by the State of New
Jersey; and
4. If counsel for Defendant Dufresne elicits testimony on
direct or cross-examination of any witness intended to
demonstrate that the Government prosecuted Defendant
Dufresne for an improper purpose, or that the Government
suborned perjury from its witnesses, the Government will be
permitted to elicit rebuttal testimony in order to fully set forth
its version of the facts concerning how Defendant Dufresne
became a target of investigation, notwithstanding any
previous rulings by this Court restricting the scope of
testimony by Government witnesses or the mention of Joseph
Merlino.
Dufresne argues that this order was an abuse of discretion for a number of
reasons, each of which we discuss separately.
(i). Vindictive Prosecution.
Dufresne claims that the district court’s order improperly precluded him from
proving vindictive prosecution to the jury. We disagree. First of all, a claim of vindictive

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prosecution is not permissible argument to a jury. It is properly raised in a pretrial motion
to dismiss the prosecution. United States v. Berrigan, 482 U.S. 171, 174-76 (3d Cir.
1973). In Berrigan, we affirmed the district court’s rejection of an attempt by the
defendants to introduce evidence of discriminatory prosecution to the jury, and explained:
[Defendants’] argument misconceives the proper division of
responsibility between judge and jury in a federal criminal
proceeding. By both tradition and constitutional mandate the
jury is given the responsibility of determining guilt or
innocence according to instructions of law delivered by the
court. The question of discriminatory prosecution relates not
to the guilt or innocence of [the defendants], but rather
addresses itself to a constitutional defect in the institution of
the prosecution. Rule 12(b)(2), F.R.Cr.P., provides:
"Defenses and objections based on defects in the institution of
the prosecution . . . may be raised only by motion before
trial."
Dufresne did raise the issue of vindictive prosecution before trial. Accordingly,
the district court did not abuse its discretion by precluding him from arguing vindictive
prosecution to the jury.
Moreover, Dufresne’s claim of vindictive prosecution, based on his belief that he
was indicted because he failed to cooperate, is meritless. Although the government may
not retaliate against a defendant for exercising legal rights, "in the ’give and take’ of plea
bargaining, there is no such element of punishment or retaliation so long as the accused is
free to accept or reject the prosecution’s offer." Bordenkircher v. Hayes, 434 U.S. 357,
363 (1978). In Borderkircher, the Supreme Court held that there was no vindictive
prosecution when the prosecutor, after the defendant refused to plead guilty to the original
charges carrying a sentence of two to ten years incarceration, indicted the defendant under
a recidivist statute carrying a mandatory life term. Id. at 358-59, 365. See also United
States v. Oliver, 787 F.2d 124, 125-26 (3d Cir. 1986) (no prosecutorial vindictiveness
where federal charges were brought because defendant failed to cooperate satisfactorily
with local authorities). Thus, even if it is assumed that Dufresne was indicted because he
failed to cooperate, the prosecution was not vindictive or in retaliation for refusing to
cooperate.
Finally, while Dufresne suggests that there is something improper about a
prosecutor approaching a suspect through the prosecutor’s brother-in-law (an allegation
that the government denies), Dufresne never explains what that impropriety is.
(ii). Violation of Sixth Amendment Confrontation Right.
Dufresne argues that he was denied his Sixth Amendment confrontation right by
the district court’s order because the testimony he sought to elicit had a bearing on the
credibility of the government’s witnesses. However, Dufresne never made an argument
about witness credibility to the district court. Dufresne’s written offer of proof, along
with his explanation of its relevance, made no mention of witness credibility. It is clear
from the offer of proof and his explanation of its relevance that the focus of the evidence
was his attempt to demonstrate to the jury that his indictment was retaliatory. It was on
the basis of the written offer of proof that the district court decided to exclude the
proffered evidence. Therefore, because Dufresne never made this argument to the
district court, he has waived it.
Moreover, even if the argument has not been waived, Dufresne’s new, post hoc,
Sixth Amendment argument is without merit. Dufresne claims that he intended to:
"buttress the defense theory [that] the informant-witness lied by pointing to evidence that
suggested a number of reasons for them to lie about appellant." Dufresne’s Br. at 35-36.
However, he proffered no evidence that witnesses "perceived that the government would
be particularly receptive to lies about appellant," or that government investigators and
counsel "simply induced them to include appellant in the conspiracy in retaliation for his
lack of cooperation." Id. In fact, as the government notes, the whole point of Dufresne’s
proffer that he was friends with the prosecutor’s family would seem to work in
Dufresne’s favor and not harm him.
Finally, it is clear from the record that Dufresne’s constitutional right of
confrontation was both protected and exercised at trial. Dufresne’s counsel aggressively

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cross-examined all of the government’s witnesses, argued against their credibility to the
jury, and made clear to the jury his theory that the government’s evidence was based
largely on the testimony of co-conspirators and was insufficient to convict beyond a
reasonable doubt. The fact that the jury rejected the defense does not mean that
Dufresne’s Sixth Amendment confrontation rights were violated.
(iii). References to AUSA Gordon.
Dufresne claims that the district court abused its discretion by precluding any
reference to AUSA Gordon by name during the questioning of witnesses or eliciting his
name from any witness. Dufresne’s counsel gave no legitimate purpose for eliciting
AUSA Gordon’s name other than to intimate that AUSA Gordon prosecuted Dufresne
because he refused to cooperate. However, as noted earlier, the proper way to raise a
claim of vindictive prosecution is in a motion to dismiss, which Dufresne failed to do.
Accordingly, this argument is without merit.
(iv). New Jersey Charges.
Dufresne’s counsel elicited testimony on cross-examination of government
witnesses that Dufresne had not been charged by New Jersey authorities in a related
indictment. On the government’s motion, the district court precluded counsel from
making further reference to charging decisions by New Jersey. Dufresne argues that the
fact that New Jersey authorities did not charge him in an indictment arising from the
methamphetamine manufacturing and distribution scheme was relevant at his trial.
Therefore, he contends that preclusion was improper. This argument approaches
frivolity.
Criminal charges, and by implication, the lack of them, are not evidence. See
United States v. McDade, 28 F.3d 283, 301 (3d Cir. 1994) (an indictment is not
evidence). In addition, the reasons for New Jersey’s decision to charge or not charge
defendants in a separate prosecution are not part of the record in this case, are
unreviewable and are irrelevant to the factual issues at trial, including the credibility of
witnesses. See United States v. Oliver, 787 F.2d 124, 126 (3d Cir. 1986) ("separate
sovereigns have the right to bring increased charges or simultaneous prosecution for
similar or identical offenses"); United States v. Berrigan, 482 F.2d at 180 ("[f]ew subjects
are less adapted to judicial review than the exercise by the Executive of his discretion in
deciding when and whether to institute criminal proceedings, or what precise charge shall
be made, or whether to dismiss a proceeding once brought").
(v). Conclusion.
For all of the above reasons, we will affirm the district court’s judgment of
conviction and sentence as to Dufresne.
B. Lanzilotti’s Appeal (No. 02-1929).
Lanzilotti makes a number of assignments of error, each of which is also
considered separately.
(I). Denial of Motion for New Trial.
Lanzilotti argues that the district court erred in denying his motion for a new trial.
Federal Rule of Criminal Procedure 33 requires that, except in the case of newly
discovered evidence (a claim not asserted here), a motion for a new trial "may be made
only within 7 days after the verdict or finding of guilty or within such further time as the
court may fix during the 7-day period." Fed.R.Crim.P. 33. Lanzilotti’s motion for a
new trial was not made within seven days of the guilty verdict or at any other time for
filing fixed by the district court. Rather, it was filed some seventeen months after the
guilty verdict and just six days before sentencing.
The time limit for filing Rule 13 motions is jurisdictional. United States v.
Coleman, 811 F.2d 804, 807 (3d Cir. 1987). "Thus, a district court is powerless to
entertain such motions out of time unless the court grants an appropriate extension within
seven days after its verdict." Id. (citations omitted). Because Lanzilotti’s motion was
filed out of time without a timely extension, the district court had no jurisdiction over the
motion and properly denied it.
Moreover, the claim asserted in Lanzilotti’s motion for a new trial was that his trial
counsel rendered ineffective assistance resulting from a potential or actual conflict of
interest allegedly between counsel’s representation of Lanzilotti and his representation of
a former client in a unrelated case. According to Lanzilotti, this other client was a
potential target in the investigation that led to this indictment. However, we do not
generally entertain ineffective assistance of counsel claims on direct appeal. United

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States v. Rieger, 942 F.2d 230, 235 (3d Cir. 1991). Any allegation of ineffective
assistance of counsel may appropriately be brought in a collateral proceeding under 28
U.S.C. 2255, at which time a proper record may be developed. See Government of
Virgin Islands v. Forte, 806 F.2d 73, 77 (3d Cir. 1986).
(ii). Cautionary Instructions Concerning the Admission
of Witnesses’ Guilty Plea Agreements.
Lanzilotti argues that the district court committed plain error by failing to give a
contemporaneous cautionary instruction concerning the admission of the government’s
cooperating witnesses’ guilty pleas. This argument has also been waived. At the trial,
the government specifically requested a contemporaneous instruction concerning the
limited admissibility of the cooperating witnesses’ guilty pleas. Counsel for Lanzilotti
and Dufresne objected to a contemporaneous cautionary instruction on the ground that
such an instruction would "draw undue attention" to the matter. See United States v.
Olano, 507 U.S. 725, 733 (1993) ( "[W]aiver is the intentional relinquishment of a known
right.").
(iii). Burden of Proof Instruction.
Lanzilotti argues that the district court’s final jury instruction concerning the
government’s burden of proof had the effect of lowering the required standard of proof.
The district court instructed the jury on the presumption of innocence and the
government’s burden of proof as follows:
the defendants are presumed by the law to be innocent and
therefore the law does not require a defendant to prove his
innocence or produce any evidence at all. The Government
bears the burden of proving the defendants guilty beyond a
reasonable doubt. If the Government has failed to do so you
must find the defendants not guilty.
The law presumes a defendant to be innocent of all crimes
charged. Thus a defendant, although accused, begins this trial
as any other with a clean slate, with no evidence against him.
The law permits nothing but legal evidence in support of any
charges against an accused. So, the presumption of innocence
also is sufficient to acquit a defendant unless you the jurors
are satisfied that the Government again has proven the
defendant’s guilt beyond a reasonable doubt after careful and
impartial consideration of all the evidence in the case.
It’s not required that the Government proved guilt beyond
all possible doubt. The test is one of reasonable doubt. A
reasonable doubt is one based upon reason and common-
sense, the kind of doubt that would make a reasonable person
hesitate to act. Proof beyond a reasonable doubt must
therefore be proof of such a convincing character that a
reasonable person would not hesitate to rely and act upon it in
the most important of his or her own affairs.
Members of the jury, please remember that a defendant is
never to be convicted on mere suspicion or conjecture. The
burden is always on the prosecution to prove guilt beyond a
reasonable doubt. This burden never shifts to a defendant for
the law never imposes on a defendant in a criminal case the
burden or duty of calling any witnesses or producing any
evidence. So, if you, members of the jury are after careful
and impartial consideration of all of the evidence in the case,
have a reasonable doubt that a defendant is guilty, you must
find the defendant not guilty. If, members of the jury you
view the evidence in the case as reasonably permitting either
of two conclusions, one of innocence, the other of guilt, then
you should of course adopt the conclusion of innocence.

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In Lanzilotti’s view, the district court’s use of the word "should" in the last sentence
quoted above "gave the jury the unlawful option of convicting on a lower standard of
proof." Lanzilotti’s Br. at 21. He argues that the use of the word "should" lessened the
government’s burden of proof, because a "reasonable juror could have taken the
instruction to mean that if such a circumstance existed [i.e., the evidence equally
supported either guilt or innocence] they were not required to find the defendant not
guilty." Id. at 24.
"[S]o long as the court instructs the jury on the necessity that the defendant’s guilt
be proved beyond a reasonable doubt, . . . the Constitution does not require that any
particular form of words be used in advising the jury of the government’s burden of
proof." Victor v. Nebraska, 511 U.S. 1, 5 (1994). Instead, the instructions "taken as a
whole" must correctly convey the concept of reasonable doubt to the jury. Id. In
examining the court’s instructions, the "proper inquiry is not whether the instruction
could have been applied in an unconstitutional manner, but whether there is a reasonable
likelihood that the jury did so apply it." Id. at 6 (citation and internal quotations omitted
Examining the instructions in their entirety, we find no reasonable probability that
the jury based its verdict on anything less than proof beyond a reasonable doubt. Twice
in the quoted instruction the district court told the jurors that if they have a reasonable
doubt about the defendant’s guilt, the "must" find him not guilty. It was only after twice
making this statement that the court instructed that, if the evidence equally supports guilt
or innocence, the jury "should . . . adopt the conclusion of innocence." Viewed in
context, the latter statement is merely an alternative way of saying that the jury must find
the defendant not guilty if the government does not meet its burden of proof. "Should"
was not permissive as the defendant argues, it was mandatory. In addition, later in the
final charge, when instructing on the specific elements of each offense, the district court
reminded the jury at least five additional times that the government "must" prove each of
the essential elements "beyond a reasonable doubt." Accordingly, the district court
correctly and adequately conveyed to the jury the government’s constitutionally required
burden of proof, and Lanzilotti’s argument to the contrary is without merit.
Moreover, since no objections were made to the jury instructions at trial, we may
reverse only for plain error. United States v. Thayer, 201 F.3d 214, 222-23 (3d Cir.
1999). Lanzilotti, claims "error" but he does not even begin to explain how the alleged
error was plain error.
(iv). Enhancement for Supervisory Role.
Lanzilotti claims that the district court erred at sentencing by adopting the
Presentence Report’s (PSR 62) assessment of a three-level enhancement pursuant to
U.S.S.G. 3B1.1(b) for Lanzilotti’s supervisory role in the methamphetamine operation.
The enhancement for supervisory/managerial role requires only that, at some time
during the commission of the offense, the defendant supervised or managed one or more
other participants. United States v. Fuentes, 954 F.2d 151, 153-54 (3d Cir. 1992). In
determining whether to increase a defendant’s offense level, the sentencing court need
only find the facts related to relevant conduct by a preponderance of the evidence. United
States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993).
The trial record here clearly established that of the approximately twenty
participants in the methamphetamine manufacturing and distribution operation, Lanzilotti
was one of the three or four most culpable. Dennis Virelli testified that, from the time
Lanzilotti joined the operation in the spring of 1996 through the final manufacturing
session in December 1996, Lanzilotti was his full partner. Lanzilotti provided the
required P2P, conducted the "cooks" with Virelli, and received at least half of the product
in return. Further, based on the trial testimony of Virelli and others, it was established
that Lanzilotti was in charge of the cooking process for the substantial periods of time
when Virelli was not present and he supervised the work of the others at the labs,
including Greisemer, DeCecco and David Ewing. Accordingly, the evidence established
that Lanzilotti was both a manager and supervisor, and the district court properly
enhanced Lanzilotti’s guideline calculation by three levels under U.S.S.G. 3B.1(b).
(v). Denial of Request for Downward Departure.
Finally, Lanzilotti claims that the district court denied his motion for a downward
departure at sentencing because the court erroneously believed that it lacked the authority
to depart downward.

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Lanzilotti moved for a downward departure on two separate grounds. First, he
claimed that, pursuant to United States v. Sally, 116 F.3d 76 (3d Cir. 1997), he was
entitled to a downward departure as a result of his post-offense rehabilitation. Second, he
contended that the seriousness of his offense was overstated, thereby justifying a
departure under United States v. Smith, 186 F.3d 290 (3d Cir. 1999).
The government opposed the departure motions, arguing that there was nothing
extraordinary about the factual circumstances of Lanzilotti’s case that would justify the
requested departures, but nonetheless acknowledged that the court had the authority to
grant such departures in an appropriate case.
The district court denied the departure motions. It explained that the Sally
departure was unwarranted because there was "nothing extraordinary about any of the
things that [Lanzilotti] brought to the Court’s attention." The court further explained
that its review of the evidence and its belief that the Sentencing Guidelines were properly
calculated, led it to conclude that the guidelines did not overstate the seriousness of the
offense. Moreover, the court issued a written order with respect to each requested
ground for departure acknowledging that it had the authority to depart downward for the
reasons suggested by Lanzilotti, but declining to depart downward in the exercise of its
discretion.
Because the district court acknowledged that it had the discretionary authority to
depart downward, but nonetheless determined that the departure was not warranted, we
have no jurisdiction to review a refusal to depart downward. United States v. Castano-
Vasquez, 266 F.3d 228, 231 (3d Cir. 2001).
(vi). Conclusion.
For all of the above reasons, we will affirm the district court’s judgment of
conviction and sentence as to Lanzilotti.
TO THE CLERK OF THE COURT:
Please file the foregoing Opinion.
/s/ Theodore A. McKee
Circuit Judge

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