Not for Publication in West's Federal Reporter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
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Per Curiam. Petitioner Robert Joost appeals pro se

from a district court decision dismissing his 28 U.S.C. § 2255

petition 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conviction, see 1996 WL 480215 (1 Cir. 1996) (unpublished), st

but vacated the latter because of the lack of an entrapment

instruction, see 92 F.3d 7 (1 Cir. 1996). Joost was again st

tried and again convicted of the firearms charge, and we
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affirmed. See 133 F.3d 125 (1 Cir. 1998). The Supreme Court st

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 (1 Cir. 2005). The st

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 (1 Cir. 1994). st

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 (1 Cir. 1999). It st

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.