Petition for Writ of Certiorari — Marino v. United States

No.: __ ; es CLERK

IN THE

Supreme Court of the United States

October Term, 1988

NICHOLAS MARINO,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MICHAELS. WASHOR

950 Third Avenue

New York, New York 10022

(212) 980-6110

JUDD BURSTEIN

950 Third Avenue

New York, New York 10022

(212) 826-1200

Attorneys for Petitioner

On the Petition

JUDD BURSTEIN

1

QUESTIONS PRESENTED

1. Whether this Court should resolve a split among

the Circuit Courts of Appeal with respect to the quantum of

evidence needed to entitle a criminal defendant to a jury

instruction on entrapment?

LIST OF PARTIES

Petitioner was indicted and tried alone.

1

TABLE OF CONTENTS

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OPINIONS BELOW ........ <4, Re ee eee 2

JURISDICTION .... es bbe a en ee 2

SIATEMENT UF THE CASE... «6. 2S eee 2

STATEMENT OF THE FACTS ......... 4

REASON FOR GRANTING THE WRIT

THIS COURT SHOULD RESOLVE A SPLIT

AMONG THE CIRCUIT COURTS OF

APPEALS ON THE QUESTION OF WHAT

EVIDENCE A DEFENDANT MUST OFFER TO

SECURE AN ENTRAPMENT CHARGE. ..... 5

CAO RAPOMUMS 5 cee a wont meres 8

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TABLE OF AUTHORITIES

CASES

Marino v. United States, ____ US.

I 2

United States v. Burkley, 591 F.2d 903

(D.C. Cir. 1978), cert. denied,

i, ea 6

United States v. DeVore, 423 F.2d 1069

(4th Cir. 1970), cert. denied,

Ne 6

United States v. Dunn, 779 F.2d 157

ek ee et et 4, 3. 7

United States v. Marino, 838 F.2d 463

ES ar fs

United States v. Matthews, 485 U.S. ___,

CE UM kw le eee yap

United States v. Polito, 856 F.2d 414

i 6

United States v. Riley, 363 F.2d 955

Ny kts eee we ew 4 2

United States v. Rodriguez, 858 F.2d 809

Nt kk kk ee ee ee 6

United States v. Watson, 489 F.2d 504

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1V

STATUTES

18 U.S.C. § 37]

iS US6. 3 20> =:

28 U.S.C. §1254(1)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

NICHOLAS MARINO,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

INTRODUCTION

Petitioner Nicholas Marino respectfully prays that a

writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Third Circuit, entered on

February 23, 1989, affirming petitioner’s conviction for

violating 18 U.S.C. § 2315 (receipt, sale and disposition of

stolen securities) and for conspiring to violate that statute

(18 U.S.C. § 371)

OPINIONS BELOW

The opinion of the Court of Appeals 1s reprinted in

the Appendix at pages la-19a. The order of the Court of

Appeals denying petitioner's petition for rehearing appears

in the Appendix at pages 20a-2la

JURISDICTION

The Judgment of the Court of Appeals for the Third

Circuit was entered on February 23, 1989. A timely

petition for rehearing was denied on March 13, 1989. This

Court’s jurisdiction is invoked under 28 U.S.C. §1254(1).

STATEMENT OF THE CASE

This is the second time that this case has been before

this Court. On December 23, 1987, the United States Court

of Appeals for the Third Circuit affirmed petitioner's

conviction. The Court held that petitioner had not been

entitled to an entrapment charge because he had not

admitted all the elements of the offenses with which he had

been charged. United States v. Marino, 838 F.2d 463

(Table) (3rd Cir. 1987). Thereafter, in light of its decision

in United States v. Matthews, 485 U.S. ___, 108 S.Ct. 883

(1988). this Court vacated the order of the Third Circuit,

and remanded the case for reconsideration. Marino v. United

States, __ U.S. ___, 108 S.Ct. 1590 (1988).

On remand, the Third Circuit again affirmed, by a

split decision, petitioner’s conviction on the ground that he

th

had failed to submit sufficient evidence of government

inducement.' This case, then, requires the Court to resolve

a significant dispute among the Circuit Courts of Appeal.

In the Second Circuit, a defendant is entitled to a jury

charge on entrapment so long as there is some proof that

the government "initiated" the criminal transaction in issue.

United States v. Riley, 363 F.2d 955, 957-59 (2d Cir. 1966):

accord United States v. Dunn, 779 F.2d 157, 158 (2d Cir.

1985). Prior to petitioner’s case, the Third Circuit agreed

with this view of the law. See United States v. Watson, 489

F.2d 504 (3rd Cir. 1973). However, in this case, the Court,

by a vote of two to one, abandoned its previous rule of law,

and held that a defendant must provide something more in

the way of evidence of government inducement. Finding

that the evidence showed only that a government agent had

solicited Marino, the Court found that no entrapment charge

had been warranted. In contrast, Judge Higginbotham,

writing in dissent, stated his view that no proof beyond

solicitation was necessary, and that Marino had offered such

proof.

Hence, this is a clear case where a defendant’s right

to appellate relief hinged solely upon the Court’s location.

The Third Circuit’s majority and dissenting opinions make

clear that Marino would have been entitled to a new trial

had his case been decided by the Second Circuit.

Based upon this finding, the Court found it unnecessary to

consider whether Marino produced sufficient evidence of "his non-

predisposition to sell stolen securities.” (6a, n.3). However. it is clear

that there was more than sufficient evidence on this score. As Judge

Higginbotham’s minority opinion notes, Marino "offered evidence of his

good] character and testimony conceming his attempts to verify the

legitimacy of the bonds and securities." (16a)

STATEMENT OF THE FACTS

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REASON FOR GRANTING THE WRIT

THIS COURT SHOULD RESOLVE A SPLIT

AMONG THE CIRCUIT COURTS OF

APPEALS ON THE QUESTION OF WHAT

EVIDENCE A DEFENDANT MUST OFFER

TO SECURE AN ENTRAPMENT CHARGE.

The issue here is a very simple one. In order to

secure an entrapment charge a defendant must offer

“evidence sufficient for a reasonable jury to find

government inducement of the crime, and a lack of

predisposition on the part of the defendant to engage in the

criminal conduct." United States v. Matthews, supra, i08

S.Ct. at 886-87. As noted, this petition, deals only with the

question of inducement. Presumably, if we prevail, the case

will have to be remanded for consideration of the proof of

non-predisposition. As evidenced by Judge Higginbotham’s

dissenting opinion,_we are confident that we can meet this

second issue. We thus now tum to the question of

“inducement.”

In United States vy. Riley, supra, the Court

unequivocally held that a defendant’s burden with respect to

“inducement” is met solely upon proof that the government

"initiatled] the crime.” 363 F.2d at 958. As the Court

stated there, the question of "inducement" "goes simply to

the Government’s initiation of the crime and not to the

degree of pressure exerted.” /d. More recently, in United

States v. Dunn, supra, the Court reaffirmed Riley, stating

that government initiation of the crime "does constitute

inducement..., and there is no need to show something more

on that issue." 779 F.2d at 158.

Applying the Riley/Dunn rule, Marino’s conviction

must be reversed because both the majority and the minority

opinions in this case agreed that the evidence showed that

the government initiated Marino’s crime. However, the

majority opinion, rejecting the Court’s prior ruling in United

States v. Watson, supra, held that something more than mere

solicitation must be shown by the defendant. Exactly what

that “something more" must be was left unanswered by the

Third Circuit. Obviously, though, the Court here found that

Marino did not offer it.

In overruling Watson, the Third Circuit was not alone

in its view that "’suticitation by itself is not the kind of

conduct that would persuade an otherwise innocent person to

commit a crime.’” United States v. Burkley, 591 F.2d 903,

912 (D.C. Cir. 1978), cert. denied, 440 U.S. 966 (1979)

(quoting United States v. DeVore, 423 F.2d 1069, 1071 (4th

Cir. 1970), cert. denied, 402 U.S. 950 (1971)); accord, e.g.,

United States v. Rodriguez, 858 F.2d 809 (1st Cir. 1988).

It is thus plain that a defendant’s right to an

entrapment instruction is solely dependent upon where he is

tried. If he is prosecuted in the Second Circuit, he need

only show government initiation of the crime. If prosecuted

in another Circuit, he must show "something more.” This

variety of judicial opinion on such a significant issue does

not promote uniformity in our criminal justice system.

Granting review in this case will resolve — this

controversy. Moreover, it will afford this Court an

opportunity to mandate uniform application of the Second

Circuit approach to this issue. The problem with the Third

Circuit’s approach is its fundamental vagueness. As _ the

First Circuit noted in United States v. Rodriguez, supra, “the

precise dimensions of this burden of production remain

inexact; we have established ‘no bright-line rule...."" 858

F.2d at 812-13 (quoting United States v. Polito, 856 F.2d

414, 416 (Ist Cir. 1988)). Hence, adoption of the

0

“something more" approach to this issue will result in

endless litigation over what constitutes "something more."

In contrast, the Second Circuit approach promises

great ease of application because the test is such a clear

one. Moreover, as demonstrated by the Second Circuit’s

continued adherence to its position, see United States v.

Dunn, supra, it has not undermined the fact-finding process.

This is especially. so because the Second Circuit

appropriately bars an entrapment defense when the

government offers uncontradicted evidence of predisposition.

United States v. Dunn, supra, 779 F.2d at 159.

In the end, it is important to recognize that we are

only talking about a jury charge here, not a complete

defense to a crime. Plainly, government initiation of a

crime permits an inference of inducement which the jury

may or may not choose to accept. A defendant should have

the right to pursue such an argument because the risk of

error in any other approach is greater than the risk brought

on by the Second Circuit’s rule. Obviously if the evidence

of inducement is so weak as to only constitute proof of

mere solicitation, it is highly unlikely that a jury will find

entrapment. On the other hand, if we impose a greater

"something more" burden on a defendant, we are faced with

the risk that a court will erroneously prohibit the jury from

making an inference that it might choose, rationally, to

make.

The only way to avoid this unfortunate situation is to

adopt the Second Circuit’s position on this issue. At the

same time, the Court would be preempting what

undoubtedly will be endless litigation over the boundaries of

an entrapment defense. Accordingly, in light of the clear

split among the Circuit Courts of Appeals, review in this

Court should be granted.

For the foregoing reasons, a writ of certiorari should

issue to review the judgment of the United States Court of

CONCLUSION

Appeals for the Third Circuit.

On the Petition

Judd Burstein

Respectfully submitted,

MICHAEL S. WASHOR

950 Third Avenue

New York, New York 10022

(212) 980-6110

JUDD BURSTEIN

950 Third Avenue

New York, New York 10022

(212)826-1200

Attorneys for Nicholas Marino

QQ

(

APPENDICES

la

Appendix A

Opinion of the United States Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-5339

UNITED STATES OF AMERICA

Vi.

NICHOLAS MARINO,

Appellant

Argued October 21, 1987

Decided December 23, 1987

Certiorari Granted May 2, 1988

Vacated and On Remand from the Supreme Court

of the United States May 2, 1988

Submitted Under Rule 12(6) September 9, 1988

Before: HIGGINBOTHAM, SCIRICA and GARTH,

Circuit Judges

(Filed February 23, 1989)

MICHAELS. WASHOR, ESQ. (ARGUED)

Washor, Greenberg and Washor

291 Broadway, Suite 1502

New York, New York 10007

Attorney for Appellant

2a

Appendix A

Opinion of the United States Court of Appeals

DANIEL GIBBONS, ESQ. (ARGUED)

SAMUEL P. MOULTHROP, ESQ.

Chief, Appeals Division

U.S. Attorney’s Office

970 Broad Street

Newark, New Jersey 07102

Attorneys for Appellee

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This case is before us on remand from the United

States Supreme Court for further consideration in light

of United States v. Mathews, 108 S. Ct. 883 (1988). We

will affirm Marino’s conviction because (1) given the

evidence of entrapment Marino presented at trial, he is

not entitled to an instruction on entrapment under the

standard enunciated in Mathews, and (2) Marino has

asserted unequivocally that he has no additional evidence

of entrapment to present that would justify remand for a

proffer hearing, United States v. Bay, 852 F.2d 702 (3d

Cir. 1988).

;

Nicholas Marino, a practicing tax attorney, was

convicted of conspiring to transport stolen securities in

interstate commerce and of receiving, selling, and dis-

posing of stolen securities moving in interstate commerce

in violation of 18 U.S.C. §§ 2315, 2 and 371. Central to the

government’s case was the testimony of Morton Swirsky,

who had participated in the bond transactions that led

to Marino’s conviction. Unknown to Marino, Swirsky

was acting as a government informant at the time that

he arranged to buy stolen securities from Marino.

3a

Appendix A

Opinion of the United States Court of Appeals

Morton Swirsky had been arrested for possession of

stolen securities and agreed to cooperate with the govern-

ment by working undercover for the Federal Bureau of

Investigation. The FBI instructed Swirsky to attempt to

purchase additional stolen bonds. To comply, Swirsky

sought aid in finding stolen securities from a stock

broker, Paul North. Swirsky told North that he was

interested in buying “deep discount” bonds, which

Swirsky described at trial as bonds sold at a substantial

discount of their original price. App. at 755a. North then

introduced Swirsky to Marino. Swirsky asked Marino to

help him buy “deep discount” bonds for clients with

large amounts of cash to invest. Swirsky specified that

he only wanted to buy bonds that were “usable” and that

had not been reported stolen. App. at 763a. Marino told

Swirsky that he “might be able to help [Swirsky] out

with what [he] wanted.” App. at 758a-59a.

Shortly thereafter, in a telephone conversation taped

by the FBI, Swirsky told Marino that he had $340,000 to

invest for one million dollars worth of bonds. App. at

764a. During the conversation, Swirsky referred to

himself as ‘““Mr. Blake,” an alias that Swirsky said was

suggested by Marino “to keep the transaction as nebulous

as possible.” App. at 763a. Swirsky and Marino then

arranged to meet at a hotel, where they discussed the

proposed transaction. When Swirsky asked whether

Marino had brought any securities, Marino told Swirsky

to follow him to his law office. According to Swirsky,

upon arriving at Marino’s office, Marino asked Swirsky

to remove his clothes, presumably to check him for body

wires. After Swirsky removed his jacket and shirt, Marino

left the room briefly to speak with someone, then told

Swirsky to get dressed, and informed him that he would

find “what [he] wanted” under the seat of his car.

Swirsky returned to his car and discovered eight $25,000

4a

Appendix A

Opinion of the United States Court of Appeals

municipal bonds under the front seat. App. at 769a-

70a. !

Swirsky delivered the municipal bonds to FBI agents

who examined the bonds and questioned whether they

were authentic. App. at 772a. Consequently, Swirsky

returned the bonds to Marino and told him they were

unacceptable. A few days later, Marino called Swirsky to

tell him that he had something for him and requested

that they meet. App. at 780a-8la. They again met at a

hotel, where Marino offered Swirsky ten Federal Home

Loan Bonds with a face value of $100,000 each.” The two

worked out a sale price of $350,000 for the bonds, payment

of which Marino requested in small denomination, non-

sequential bills. App. at 795a. According to Swirsky,

Marino gave him one of the Federal Home Loan Bonds

to take with him in order to “check it out to see whether it

was reported stolen or not.” App. at 78la. Swirsky took

the bond and the next day met Marino to obtain delivery

of the other nine bonds. Marino produced four bonds for

Swirsky. When Swirsky inquired as to the other five

bonds, Marino gave Swirsky the keys to his car and told

him that the bonds were in the glove compartment.

Swirsky retrieved the bonds and delivered them to the

FBI. App. at 799a. When Swirsky met Marino the fol-

lowing day to pay for the bonds, Marino was arrested. At

trial, Marino requested an entrapment instruction. Fol-

lowing the close of evidence, the district court rejected

this request on the ground that Marino had denied

knowing that the bonds were stolen and therefore could

not properly claim that he had been entrapped.

' Marino was able to provide bonds to Swirsky because an

individual named Jack Sliker, who owed Marino and his law partner

$110,000, offered Marino securities for resale in order to pay his debt.

Specifically, Sliker had offered Marino $975,000 in municipal bearer

bonds that Marino could sell.

- Marino had also obtained these bonds from Sliker.

_

oa

Appendix A

Opinion of the United States Court of Appeals

Marino was convicted by a jury and appealed. We

affirmed Marino’s conviction, relying on ‘‘well settled

federal law in this circuit that a defendant may not

contest an essential element of an offense and still claim

the defense of entrapment.” United States v. Marino, No.

87-5339, memo-op. at 5 (3d Cir. Dec. 23, 1987) (unpub-

lished). Because Marino did not admit knowing the

bonds were stolen, an essential element of the offense,

we affirmed the district court’s refusal to instruct the

jury on entrapment.

Marino petitioned for writ of certiorari. On May 2,

1988, the Supreme Court granted the writ, vacated the

judgment, and remanded the case to this court for further

consideration in light of Mathews v. United States, 108

S. Ct. 883 (1988). On remand, we requested supplemental

briefing in light of Mathews and United States v. Bay,

852 F.2d 702 (3d Cir. 1988). In his supplemental brief,

Marino stated that he had presented all his evidence on

entrapment at trial and that remand was not required as

Bay was inapplicable.

IT.

Before the Supreme Court’s decision in United States

v. Mathews, 108 S. Ct. 883 (1988), the prevailing law

required the defendant to admit all the elements of the

offense before he was entitled to a charge on entrapment.

See, e.g., United States v. Hill, 655 F.2d 512 (3d Cir.

1981). In Mathews, the Supreme Court held that a

defendant could assert inconsistent defenses and could

properly request a jury instruction on entrapment without

admitting all the elements of the crime. 108 S. Ct. at 887.

“{A] valid entrapment defense has two related

elements: government inducement of the crime, and a

lack of predisposition on the part of the defendant to

engage in criminal conduct.” Jd. at 886. We held in

6a

Appendix A

Opinion of the United States Court of Appeals

United States v. El-Gawli, 837 F.2d 142 (3d Cir.), cert.

denied, 109 S. Ct. 55 (1988), that “[e]ntrapment occurs

when a defendant who was not predisposed to commit

the crime does so as a result of the government's

inducement.” Jd. at 156 (quoting United States v.

Jannotti, 637 F.2d 578, 597 (3d Cir.), cert. denied, 457

U.S. 1106 (1982) ). In this case, we must decide whether

Marino has produced sufficient evidence of inducement

to require a jury charge on entrapment. '

In El-Gawli, we approved the trial judge’s instruction

that “|a] solicitation, request or approach by law enforce-

ment officials to engage in criminal activity, standing

alone, is not an inducement.” Jd. at 149. We also approved

the trial court’s definition of inducement to include the

following: “‘persuasion, fraudulent representation,

threats, coercive tactics, harassment, promises of reward

or pleas based on need, sympathy or friendship.” ! Jd.

Thus, El-Gawli defined inducement to mean more than

mere solicitation. This standard is mirrored in Mathews,

in which the Supreme Court stated:

To make an entrapment defense, Marino must produce evidence

of both inducement and non-predisposition to commit the crime. F/

Gawli, 837 F.2d at 145. Consequently, if the defendant does not

produce sufficient evidence of inducement, his evidence of non-

predisposition alone would not warrant an entrapment charge. Cf. td.

at 147. Given our holding that Marino did not produce sufficient

evidence of inducement, we therefore need not consider his evidence

of non-predisposition to sell stolen securities. See also United States

uv. Rodriguez, 858 F.2d 809, 812 (1st Cir. 1988) (initial showing on

entrapment necessitates some evidence on each of two prongs of

defense).

' We noted in El-Gawli that this list was exemplary, and not

presented to the jury as a “finite group of possibilities.” 837 F.2d at

150.

7a

Appendix A

Opinion of the United States Court of Appeals

The Government contends as an alternative basis

for affirming the judgment below that the evidence

at trial was insufficient to support an instruction

on the defense of entrapment. Of course evidence

that government agents merely afforded an oppor-

tunity or facilities for the commission of the crime

would be insufficient to warrant such an instruc-

tion.

108 S. Ct. at 888. In Bay, we noted that the Supreme

Court in Mathews held that a defendant is entitled to an

entrapment defense when sufficient evidence exists from

which a reasonable jury could find entrapment. 852 F.2d

at 704. A reasonable jury, however, could not find induce-

ment under the standards set forth in Mathews and El.

Gawli from mere evidence of solicitation by government

agents.”

In Mathews, the Court decided the question whether a criminal

defendant could avail himself of inconsistent defenses. The Court

was not required to decide the quantum of evidence sufficient to

warrant a jury charge on entrapment. Nevertheless, we believe we

must follow the Mathews Court's suggestion as to what constitutes

sufficient evidence for an entrapment charge.

' Marino cites this court’s decision in United States v. Watson,

189 F.2d 504 (3d Cir. 1973), for the proposition that mere evidence of

government initiation is sufficient to take the entrapment defense to

the jury. Watson adopted this “workable test” from the Second

Circuit, 489 F.2d at 509 (citing United States v. Riley, 363 F.2d 955,

958-29 (2d Cir. 1966) ). In Riley, the Second Circuit stated that

inducement “goes simply to the Government’s initiation of the crime

and not to the degree of pressure exerted.” Riley, 363 F.2d at 958.

Under the “bifurcated approach” -- the split burden of proof on

entrapment adopted in Riley -- this standard might well have been

justified because the defendant bore the burden of proof on induce-

ment. However, under the unitary approach enunciated in United

States v. Jannotti, 729 F.2d 213, 224 (3d Cir.), cert. denied, 469 U.S.

880 (1984), and El-Gawli, the defendant only carries the burden of

production on the defense. In El-Gawlt, we held:

8a

Appendix A

Opinion of the United States Court of Appeals

Other courts of appeals require something more

than mere solicitation before they find a defendant

entitled to an entrapment charge. For example, in United

States v. Rodriguez, 858 F.2d 809 (1st Cir. 1988), the

Court of Appeals for the First Circuit noted that, although

no bright-line rule existed as to the quantum of proof

necessary to warrant an entrapment charge, the thres-

hold is not overcome by a showing of mere solicitation or

Under our jurisprudence, to make an entrapment defense a

defendant must come forward with some evidence as to both

inducement and non-predisposition. After the defendant has

made this showing, which is a burden of production, the

government then has the burden of proving beyond a reason-

able doubt that it did not entrap the defendant. This court

thus follows the so-called unitary approach, whereby after

the defendant has made his original showing, the burden

falls on the prosecution to prove beyond a reasonable doubt

that the defendant was not entrapped.

$37 F.2d at 145. Indeed, in El-Gawli, we pointed out that our approach

was “distinct from the ‘bifurcated approach’ adopted by .. . the

Second Circuit,” a standard which we rejected because of “our

disapproval of the fact that it required the defendant to shoulder a

substantial burden in making this defense.” /d. at 145-46. As we have

noted, EL-Gawli approved the trial court’s jury instruction that “[a]

solicitation, request, or approach by law enforcement officials to

engage in criminal activity, standing alone, is not an entrapment.”

id. at 149, and stated the following:

{W]e hold that this statement accurately summarizes the

definition of inducement. We note that at least two juris-

dictions besides the Court of Appeals for the District of

Columbia, which authored part of the charge, employ similar

principles. See United States v. Barry, 814 F.2d 1400, 1402

n.2 (9th Cir. 1987) (“‘Inducement requires more than mere

suggestion of solicitation by a government agent.) (citation

omitted); United States v. Velasquez, 802 F.2d 104, 106 (4th

Cir. 1986) (evidence of mere solicitation insufficient to meet

even minimal burden of coming forth with more than a

scintilla of evidence of inducement)... .

837 F.2d at 149 (footnote omitted).

9a

Appendix A

Opinion of the United States Court of Appeals

by a defendant’s conclusory or self-serving statements.

Id. at 812-13. See also United States v. Luce, 726 F.2d 47,

49 (1st Cir. 1984) (evidence must show that defendant

was “unready” to commit the offense or that he was

“corrupted” by government agents before entrapment

defense may be submitted to jury); United States v.

Velasquez, 802 F.2d 104, 106 (4th Cir. 1986) (evidence of

solicitation not enough to show inducement and thus

Whatever the content of the term “solicitation,” it is evident that

in the entrapment context, evidence of mere solicitation standing

alone cannot constitute inducement. This being so, evidence of

solicitation, without more, cannot support a jury instruction on the

Issue of entrapment. Thus, whatever the precedential viability of

Watson where the evidence has been introduced that the Government

initiated the crime (however the term “initiated” may be construed),

El-Gawlt has now decreed that in this Court, as in others, evidence of

mere solicitation, as a matter of law, is not germane to the jury’s

determination of entrapment.

Indeed, many courts have rejected the Riley definition of induce-

ment based on the view that “solicitation by itself is not the kind of

conduct that would persuade an otherwise innocent person to commit

acrime.” United States v. Burkley, 591 F.2d 903, 912 (D.C. Cir. 1979)

(quoting United Staies v. DeVore, 423 F.2d 1069, 1071 (4th Cir. 1976)).

For a comprehensive critique of the Riley standard, see Burkley, 591

I2d at 9LO-1A.

Finally, we note that the dissent challenges the “broad meaning”

we have attributed to the language in Mathews, in which the Court

stated that “evidence that agents merely afforded an opportunity or

facilities for the commission of a crime would be insufficient to

warrant /an entrapment] instruction.” 108 S. Ct. at 888. We think that

the distinction drawn by the dissent between the government “facil-

itating” the crime by providing the means to violate the law, and the

government “initiating” the crime by providing the initial opportunity

for criminal behavior, see Dissent, typescript at 7 n.3, is a distinction

without a difference. Although both may develop into “inducement,”

neither alone constitutes inducement. Consequently, we believe that

the standard enunciated in El-Gawli and the language in Mathews

suggesting the amount of evidence necessary for an entrapment

charge controls in this case.

|

10a

Appendix A

Opinion of the United States Court of Appeals

make entrapment question for jury); United States v.

Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986) (trial judge did

not err in refusing to give entrapment instruction when

evidence revealed only that government agent solicited,

requested, or approached the defendant to engage in

criminal conduct); United States v. Andrews, 765 F.2d

1491, 1499 (11th Cir. 1985) (defendant seeking to raise

entrapment defense must show that “the government's

conduct created a substantial risk that the offense would

be committed by a person other than one ready to

commit it”: defendant need demonstrate an element of

persuasion or mild coercion), cert. dented, 474 U.S. 1064

(1986): United States v. Parr, 716 F.2d 796, 803 (11th Cir.

1983) (initial approach by government does not require

entrapment instruction); United States v. Burkley, 591

F.2d 903, 914 (D.C. Cir. 1978) (trial judge must give

entrapment instruction if there is any foundation in the

evidence that he was induced, i.e. that there existed

persuasion, fraudulent representations, reward, pleas

based on need, or other government conduct that would

create the risk of causing an otherwise non-predisposed

person to commit the offense), cert. denied, 440 U.S. 966

(1979): United States v. Christopher, 488 F.2d 849, 850-51

(9th Cir. 1973) done fact that government agent initially

contacted defendant and provided opportunity for com-

mission of crime not enough to require entrapment

instruction); United States v. Bradley. 426 F.2d 148, 150

(7th Cir. 1970) (mere opportunities for defendant to

violate law if he were so inclined insufficient evidence of

inducement to require entrapment instruction). Our

holding is consistent with these opinions.

Ill.

In this case, Marino asserts that he was entrapped

by Swirsky because Swirsky induced Marino to commit

the crime “by ruse, sham and false representations; [that

lla

Appendix A

Opinion of the United States Court of Appeals

Swirsky acted to] bait, lure and cajole [Marino] into the

transactions and beguile [him] into the commission of a

crime.” Appellant’s Supp. Brief at 6. In particular, Marino

argues that he was “lured” into committing the crime

because he did not know that the bonds were stolen.

Contrary to Marino’s assertions, however, the record

is devoid of any evidence that Swirsky induced Marino

to sell him stolen securities. Marino initiated telephone

calls to Swirsky and returned Swirsky’s calls to con-

summate the securities transactions. App. at 758a, 763a,

780a, 789a, 790a and 791la. He also suggested hotels as

meeting places to discuss Swirsky’s proposal. App. at

79la-92a. Marino exhibited no reluctance to enter into or

complete the transactions with Swirsky. Moreover, there

is no evidence that Swirsky pressured Marino by means

of persuasion, fraudulent representation, harassment,

-+hreats, coercive tactics, promises of reward, or pleas

based on need. Swirsky merely offered Marino the oppor-

tunity to commit the offense.

Finally, Marino’s argument that he was “‘lured”’ into

commission of the offense because he was unaware that

the bonds were stolen lacks merit. Whether Marino knew

the bonds were stolen relates to intent to commit the

illegal act.’ It does not bear on whether Marino was

induced to sell these securities. Accordingly, we find that

Marino's evidence of mere solicitation, without more, is

insufficient evidence of inducement to have justified a

jury charge in this case. The trial court correctly refused

to instruct the jury on entrapment.

At trial, Marino testified that he did not know that the bonds he

sold to Swirsky were stolen. However, Marino’s law partner Stanley

Gulkin testified under a grant of immunity that he was cware that

the bonds were stolen because of the low price offered by Sliker.

qummemnsiiedeanaiiaminsmasiemeecemmeaimmaaiannoeneaaaetiee

12a

Appendix A

Opinion of the United States Court of Appeals

IV.

Under our holding in Bay, we must also consider

whether the defendant can show that he could have

adduced sufficient evidence on entrapment had he been

given the opportunity to do so. 852 F.2d at 705. Before

Mathews, a defendant was precluded from presenting

evidence on entrapment if he failed to admit all the

elements of the offense. Therefore, we held in Bay that a

defendant was entitled to a limited hearing on remand to

determine whether he could produce sufficient evidence

to warrant a jury charge on entrapment if the district

court’s pre-trial ruling, rejecting an entrapment instruc-

tion, might have precluded the defendant from intro-

ducing evidence supporting an entrapment instruction.

Id.

The circumstances of this case distinguish it from

Bay. Here, the district court denied Marino's request for

an entrapment instruction only after the trial had ended.

App. at 1270-72. Both Marino and the government had

presented all their evidence without any pre-trial ruling

which might have limited the admission of evidence

supporting an entrapment defense. Indeed, Marino has

asserted unequivocally that a Bay hearing is inapplicable

because he presented all his evidence on entrapment at

trial and that on the basis of that evidence, we should

find that he was entitled to an entrapment jury charge.

We do not agree that Marino was entitled to an entrap-

ment instruction.

We will not remand the case for a new trial because

the trial judge did not err in refusing to give an

entrapment charge; Marino’s evidence of inducement

was insufficient to have warranted such a charge.

Remand for a proffer hearing would be futile; Marino

has assured us that he has no additional evidence on

entrapment. Thus, we will affirm Marino’s conviction.

l3a

Appendix A

Opinion of the United States Court of Appeals

A. LEON HIGGINROTHAM, Circuit Judge, dissenting:

I am unconvinced that affirmance of Marino’s con-

viction on this record is the proper course. The majority’s

decision to affirm -- in an errant departure from the

internal operating procedures of this Court -- is predicated

upon the conclusion that a prior decision of this Court

has been overruled sub silentio by a subsequent decision

of a panel of this Court. I do not believe that result to be

correct either procedurally or substantively and, accord-

ingly, I dissent.

I was the author of this Court’s opinion affirming

the district court’s determination that, because Marino

did not admit to receiving stolen bonds knowingly, he

was not entitled to an instruction of entrapment. See

United States v. Marino, No. 87-5339, slip op. at 5 (2d Cir.

Dec. 23, 1987), vacated and remanded, - RNR See

108 S. Ct. 1590 (1988). At the time at which it was

entered, the district court’s decision correctly interpreted

and applied the controlling precedent of this Circuit. See

United States v. Hill, 655 F.2d 512 (3d Cir. 1981): United

States v. Jannotti, 673 F.2d 578 (3d Cir.), cert. denied, 457

U.S. 1106 (1982). The district court concluded, as a

matter of law, that because of Marino’s alternate theories

of defense, he was not entitled to the entrapment instruc-

tion. It did not predicate its conclusion on alternate

grounds and the decision that it entered makes no

reference to any evaluation of the sufficiency of the

evidence of entrapment presented by Marino. See United

States v. Marino, No. 86-36, slip op. at 4 (D.N.J. Apr. 22,

1987); see also, United States v. Marino, No. 86-36,

Transcript of Proceedings at 12-14 (D.N.J. Sept. 29, 1986)

(transcript of charging conference), reprinted in Appel-

lant’s Appendix at 1270-72. The Supreme Court has now

instructed us that the view applied by this Court in Hill

and Jannotti and in our affirmance of Marino’s convic-

tion is incorrect. See United States v. Mathews,

U.S. , 1088. Ct. 883 (1988). Because that view was

l4a

Appendix A

Opinion of the United States Court of Appeals

the only basis for the district court’s decision, I would

remand for the district court to determine whether the

evidence of entrapment entitled Marino to a jury instruc-

tion on that defense. '

The majority has incorrectly reached its conclusion

to affirm predicated upon its own evaluation of the

quantum of the evidence of entrapment presented. That

conclusion is inconsistent with this Court’s decision in

United States v. Watson, 489 F.2d 504 (3d Cir. 1973)

which held that

[tlhe charge [of entrapment] musi be given,

however unreasonable the judge would consider a

verdict in favor of the defendant to be, when the

accused shows (1) evidence that the Government

initiated the crime, regardless of the amount of

pressure applied to the defendant, and (2) any

evidence negating the defendant’s propensity to

commit the crime.

Watson, 489 F.2d at 509 (emphasis added). Moreover,

this Court noted in Watson that in ‘determin[ing]

whether [the defendant is] entitled to an entrapment

charge .... Wwe must resolve all conflicts in testimony in

favor of the defendant ... no matter how improbable we

may find the defense version of the facts.” Id. at 509

(citation omitted). I read Watson as good law for this

Circuit and applicable to this case.

The question of whether this case should be remanded to the

district court for its determination of the sufficiency of the evidence in

support of a jury instruction of entrapment, or that the judgment of

conviction should be reversed for a faulty jury instruction, is a close

one. The evidence presented by Marino that the government initiated

the contact for criminal activity and that he was not predisposed to

commit a crime suggests that an entrapment instruction should have

been given. However, in light of the fact that the district court never

evaluated the sufficiency of the evidence of entrapment, I would

prefer remand.

=e

l5a

Appendix A

Opinion of the United States Court of Appeals

The majority Gpinion implies that Watson is no

longer viable precedent for our circuit. The majority

suggests that Watson relied upon a theory that has been

overruled by this Court’s more recent opinion in United

States v. Ei-Gawli, 837 F.2d 142 (3d Cir.), cert. denied,

anne ee , 1098. Ct. 55 (1988). See maj. transcript

at 6 n.6 (“[t]hus, whatever the precedential viability of

Watson where the evidence has been introduced that the

Government initiated the crime (however the term

“initiated” may be construed), El-Gawli has now decreed

that in this Circuit, as in others, evidence of mere

solicitation, as a matter of law, is not germane to the

jucy’s determination of entrapment’). That conclusion is

wholly inconsistent with the internal procedures of our

Court which provide that only the Court sitting in banc

may overrule the prior decision of a panel of our Court.”

Moreover, the conclusion that E/-Gawli overruled Watson

is substantively incorrect.

El-Gawli makes no reference at all to Watson, and

neither does it address the standard enunciated by

Watson for when a defendant is entitled to an entrapment

charge. Indeed, El-Gawli does not address the issue of

when the entrapment charge should be given in any

context. That decision concerned only the sufficiency of

the charge that was given in that case in light of what

the defendant had to demonstrate in order to succeed on

the defense of entrapment. It did not address whether

the charge should have been given which is the focus of

Watson.

‘See Internal Operating Procedures of the United States Court of

Appeals for the Third Circuit, Chapter 8(C) [ Hearing or Rehearing In

Banc]. Our rules explicitly state that

[ijt is the tradition of this court that reported panel opinions

are binding on subsequent panels. Thus, no subsequent

panel overrules a published opinion of a previous panel.

Court in banc consideration is required to overrule a published

opinion of this court.

IOP Chapter 8(C) (emphasis added).

l6a

Appendix A

Opinion of the United States Court of Appeals

In the present case, Marino presented evidence that

the government agent, Swirsky, initiated the contact for

Marino’s participation in the illicit enterprise. Marino

also offered evidence of his character and testimony

concerning his attempts to verify the legitimacy of the

bonds and securities which he argued demonstrated a

lack of predisposition to criminal activity. The majority

cites evidence in the trial record that counter-balances

Marino’s evidence. See maj. typescript at 12 (noting

evidence that Marino “initiated telephone calls to

Swirsky and returned Swirsky’s calls to consummate the

securities transactions” and that Marino suggested

meeting places). The fact that the government presented

evidence that showed that, despite its initiation of the

contact with Marino, Marino was inclined to criminal

activity, however, does not mean that Marino was not

entitled to a jury instruction on entrapment.

I concede arguendo that the quantum of evidence

referenced by the majority weighs in favor of the con-

clusion that Marino was not entrapped and that, as a

juror, I would not have been persuaded that Marino’s

evidence was sufficient to enable him to prevail on that

defense. That inquiry, however, is not relevant to our

disposition of this appeal. The relevant inquiry is whether

Marino has made a showing that the government initi-

ated the contact and that he had a lack of predisposition

to criminal conduct. Watson, 489 F.2d at 509. Marino has

presented such evidence and, as I read the applicable

precedent of this Court, that evidence is sufficient to

meet the threshold requisite for a charge of entrapment.

See United States v. Engler, 806 F.2d 425 (3d Cir. 1986)

(‘‘[t]o be entitled to an entrapment charge in this circuit,

‘a defendant must first present evidence both that the

government initiated the crime... and that the defendant

was otherwise not predisposed to commit the crime.’’’),

cert. denied, 481 U.S. 1019 (1987). See also United States

uv. Gambino, 788 F.2d 938, 943 (3d Cir.) (“to be entitled to

17a

Appendix A

Opinion of the United States Court of Appeals

an entrapment charge, a defendant must first present

evidence that the government initiated the crime, regard-

less of the amount of pressure applied, and that the

defendant was otherwise not predisposed to commit the

crime’) (emphasis added), cert. denied, 479 U.S. 825

(1986). Significantly, in Engler, we noted that ‘‘[o|]nce the

defendant has proffered such evidence, the burden shifts

to the government to disprove the elements of the entrap-

ment defense beyond a reasonable doubt.” Engler, 806

F.2d at 428 (emphasis added). On this record, the incon-

sistencies in the proffered evidence -- no matter how this

Court views that evidence -- suggests that the district

court, which is in a better position than this Court to

evaluate the evidence, should have the opportunity on

remand to determine whether an entrapment charge was

warranted.

In my view, the majority also reads too much into

Mathews. The majority suggests that that decision

negates Watson and makes the standard for entitlement

to an entrapment instruction more strict. The clear focus

of Mathews, however, was upon the proffer of incon-

sistent theories of defense -- not on the elements of

entrapment, and the majority’s suggestion that the

Supreme Court’s dicta regarding the standard for an

entrapment charge overrules Watson or constrains the

decision of this Court in the present case, see maj.

typescript at 8 n.5, is simply without merit.’

Moreover, the manner by which the majority reads the dicta in

Mathews appears to be inaccurate. In the final paragraph of the

majority opinion in Mathews, the Court noted that “|t he Government

contends as an alternative basis for affirming the judgment below

that the evidence at trial was insufficient to support an instruction on

the defense of entrapment.” Mathews, 108 S. Ct. at 888. The Court

then noted that “[o]f course, evidence that government agents merely

afforded an opportunity or facilities for the commission of the crime

would be sufficient to warrant such an instruction.” Jd. To my mind,

this statement does not have the broad meaning attributed to it by

the majority. It addresses only the instance in which a criminal

18a

Appendix A

Opinion of the United States Court of Appeals

The subsequent history of Mathews itself, aithough

certainly not dispositive of anything in the present case,

perhaps provides the most informative guidance. After

vacating the defendant’s conviction, the Supreme Court

remanded to the Court of Appeals for that court to

consider the sufficiency of the evidence. The Court noted

that that question had been “pretermitted by the Court

of Appeals, and it will be open for consideration by that

court on remand.” Jd. In Mathews, unlike in the present

case, there was a compelling reason to consider the issue

of sufficiency of the evidence because the government

had previously challenged the sufficiency of the evidence

to the district court and the district court had indicated

that it had found the evidence of entrapment thin. See

Mathews, 1088S. Ct. at 886 (“District Court noted that the

evidence of entrapment was ‘shaky at best.’’’). Despite a

record indicating only slight evidence of entrapment,

however, the appellate court nonetheless remanded to

the district court for its reconsideration of the sufficiency

of the evidence of entrapment, rather than enter a

conviction based upon its own evaluation. U.S. v.

Mathews, 848 F.2d 196 (7th Cir. 1988) (Table of Decisions

defendant has demonstrated that the government “facilitated” the

commission of a crime by providing the means. It does not address

the instance in which, as Marino alleges, the government initiated

the contact for involvement in criminal activity. Certainly, both

initiation and facilitation are relevant to the question of whether a

criminal defendant was in fact entrapped, but they are substantively

different. The former, with supporting evidence, gives rise to a

presumption that the defendant was not predisposed to commit a

crime which requires rebuttal by the government. For that reason,

our Court has enunciated the rule that evidence of initiation by the

government, together with other evidence of lack of predisposition to

criminal activity, are sufficient to warrant a jury instruction. That

test has not been called into doubt and, as I read the dicta in

Mathews, even if it were controlling it would not be read accurately to

require that the decision by the district court to grant an entrapment

instruction on the record of this case be reversed as error.

19a

Appendix A

Opinion of the United States Court of Appeals

Without Published Opinions). Cf. United States v.

Graham, 856 F.2d 756, 763 (6th Cir. 1988) (vacating a

conviction in light of Mathews and noting that “[w]hile

we would be inclined to find that there was insufficient

evidence to warrant ...an[entrapment] instruction...

the district court is in a much better position than we are

to evaluate the sufficiency of the evidence that was

presented and further to make the determination of

whether his early ruling deterred the defendant from

presenting evidence he might otherwise have presented. ’”’)

I beheve that the present case is also a case that

requires remand. We did not pretermit the issue of the

sufficiency of the evidence because the district court did

not reach that issue -- even in dicta -- in its holding. No

doubt, the approach taken by the majority will make it

easier for appellate judges to dispose of matters com-

pletely by appellate fact-finding. As this case demon-

strates, however, that approach blurs the fundamental

distinction that exists between the role of the district

court and the responsibility of appellate review. In my

view, the majority opinion intrudes too far upon the

province of the district court which is to evaluate the

evidence presented and determine in the first instance

whether a jury instruction is warranted. For that reason,

[ respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

20a

Appendix B

Order of United States Court of Appeals

On Petition for Rehearing and Suggestion for

Rehearing In Banc

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-5339

UNITED STATES OF AMERICA

Vv.

NICHOLAS MARINO,

Appellant

(D.C. Crim. No. 86-00036-01)

SUR PETITION FOR REHEARING

Present: SEITZ, HIGGINBOTHAM, SLOVITER,

BECKER, STAPLETON, MANSMANN, GREENBERG,

HUTCHINSON, SCIRICA, COWEN, NYGAARD and

GARTH*, Circuit Judges

The petition for rehearing filed by appellant in the

above-entitled case having been submitted to the judges

who participated in the decision of this Court and to all

the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the decision

having asked for rehearing, and a majority of the circuit

judges of the circuit in regular service not having voted

* As to Panel Rehearing Only.

Zla

Appendix A

Opinion of the United States Court of Appeals

for rehearing, the petition for rehearing by the panel and

the Court in banc, is denied.

BY THE COURT,

Ss

Circuit Jud

(To

ve

Dated: March 133. 1989