Opposition — Marzano v. United States

‘Supreme Court, U, $2

FILED;

DEC 12 96

No. 76-279

RE SE AES ARAL OS LORIE ROE NY (SP eS IR, CLERK

In the Supreme Court of the United States

OcTOBER TERM, 1976

PASQUALE CHARLES MARZANO, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

RopertT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

GeorGE S. Kopp,

KATHERINE WINFREE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

CORI COI cinscecennsclbaceckienictversecoscsncstbonisvesentetaaneses l

BI SEE A SE CME Te Se Ee I

COmOTROD TPOROTIN 5a vsiecntiicsdecieitnescictictttncbciinintivltamecones 2

RI LE Cy a rea ENG OO SEN RON Woe 2

PRR, crcisivetaiiitbs cictinctllicbaiapigineipeircitionighabiieiinatiitibines 3

CORDIOG: sige ectbacithbiiaibsscccinsinsceatnninseseviciainbiiiciiisiitteinbibans 11

CITATIONS

Cases:

Barnes v. United States, 412 U.S. 837 ................00+ 8

Barringer v. United States, 399 F. 2d 557,

certiorari denied, 393 U.S. 1057 .0...........ccccceeceeees 7

Bayless v. United States, 288 F. 2d 794,

certiorari denied, 366 U.S. 971 .00..........ccccceeeeeeees 9

Berenyi v. Immigration Director, 385 U.S.

GD sdintiosinbiindapcasibeniitinemtunteitinnautbdisustaialievniscliiius 4

Birdsell v. United Stats, 346 F. 2d 775,

certiorari denied, 382 U.S. 963 ................cccceeeees 6

Blockburger v. United States, 284 U.S. 299 ........... 9

Burdeau v. McDowell, 256 U.S. 465. ..............0000000 6

Ebeling v. Morgan, 237 U.S. 625 ............cccc000008 7,8

Graver Mfg. Co. v. Linde Co., 336 U.S. 271. ......... 4

Shurman v. United States, 219 F. 2d 282,

certiorari denied, 349 U.S. 921 oo... eceeceeeeeeees 6

Page

Cases (continued):

Stonehill v. United States, 405 F. 2d 728,

certiorari denied, 395 U.S. 960 .........ccccccceeeeceeees 6

United States v. Blackwood, 456 F. 2d 526,

certiorari denied, 409 U.S. 863 .........c.cccccceeeceeeees 7

United States v. Canty, 469 F. 2d 114 .............eceeee 8

United States v. Gaddis, 424 U.S. 544 .......... ‘isipiicey 9

United States v. Janis, No. 74-958, decided

FORT GO, CVG csineevtieresnsincinisciiniitintieeiaaiaaaamnia 4

United States v. Mahler, 363 F. 2d 673 ..............006 7

United States v. Watson, 423 U.S. 411 ..........cc0000 4

Constitution and statutes:

Constitution of the United States of America,

FOUTt AmnemMIGOR « ciicccpssccivcccccecedeusucsstiadins 2, 3,4

BS UBL, SHE snisceticeincrusslacnhieseesicaianiiea aan 2

BS UBC. SERIES | aiccosveccietitcineinesensitienssaiiaiaiianasae 9

5S UDA. BRIE ccoccrecepinenmniiaaeiaame 2, 7, 8, 10

BS UBC. FOF ceccecsssvsecsnnesmneniiaiiaiaainees 2,9

In the Supreme Court of the Hnited States

Octoser Term, 1976

No. 76-279

PASQUALE CHARLES MARZANO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. Apps. A, B)

is reported at 537 F. 2d 257. The opinion of the district

cousl ea) pelitaney> mation to cappeess & supetted at 258

F. Supp. 906.

JURISDICTION

The judgment of the court of appeals was entered on

May 18, 1976, and a petition for rehearing with suggestion

of rehearing en banc was denied on June 28, 1976 (Pet.

App. C). On July 26, 1976, Mr. Justice Stevens extended

the time for filing a petition for a writ of certiorari to and

including August 27, 1976, and the petition was filed on

August 25, 1976. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

(1)

2

QUESTIONS PRESENTED

1. Whether, on the facts of this case, the involvement of

United States officials in a foreign arrest and search was

sufficient to subject the foreign governmental action to

the requirements of the Fourth Amendment.

2. Whether the district court abused its discretion in

limiting cross-examination and impeachment of the prin-

cipal government witness.

3. Whether theft of monc, from a single location that

belongs to different federally insured banks constitutes

more than one offense.

4. Whether theft of money from federally insured banks

and interstate transportation of the stolen money constitute

separate offenses.

5. Whether the district court properly instructed the

jury on the elements of the offense of bank larceny.

STATEMENT

After a jury trial in the United States District Court for

the Northern District of Illinois, petitioner was convicted

on six counts of bank larceny, in violation of 18 U.S.C.

2113(b) (Counts 2 to 7), transportation of more than

$5,000 of stolen money in interstate commerce, in violation

of 18 U.S.C. 2314 (Count 12), and conspiracy to commit

those offenses, in violation of 18 U.S.C. 371 (Count 1).

He was sentenced to concurrent terms of ten years’ im-

prisonment on the larceny counts and five years’ imprison-

ment on the conspiracy count, and to a consecutive term

of ten years’ imprisonment on the transportation count.

The court of appeals affirmed (Pet. App. A), one judge

dissenting (Pet. App. B).

The sufficiency of the evidence of petitioner’s guilt is

not in dispute. In brief, the evidence at trial showed that

petitioner and five other persons conspired in October 1974

3

to steal more than $3 million from the vaults of Purolator

Security, Inc., a company that provides armored car ser-

vice for the transportation of cash between banks and

business establishments in Chicago, Illinois.' Petitioner's

role in the illegal venture was established primarily by

che testimony of co-conspirator Peter Gushi,? a long-

time friend of petitioner, and Martin Pollakov, a govern-

ment informant who worked in a discount store owned by

Gushi. Gushi testified in detail to the Purolator burglary

plans to “wash” the proceeds through the banking system

of Grand Cayman Island (Tr. 1173-1268). Much of this

testimony was corroborated by Pollakov (see, e.g., Tr.

943-976).

The plan was executed on October 21, 1974, esi

several million dollars in cash were stolen from Purolator

(Tr. 171-172). On October 30, 1974, petitioner was arrested

on Grand Cayman Island by local police, who seized part

of the stolen money and other incriminating objects from

his person and luggage (Tr. 1506-1512). Petitioner was

then returned to the United States, where he was arrested

pursuant to a warrant.’

ARGUMENT

1. Petitioner contends (Pet. 16-25) that the courts below

erred in finding that the Fourth Amendment did not apply

to his arrest and search by authorities on Grand Cayman

‘An extensive summary of the evidence at trial is included at pp.

3-19 of the government's brief in the court of appeals, a copy of which

is being lodged with the Clerk of this Court.

2Gushi pleaded guilty to several counts prior to trial (Pet. App. 3).

>The federal warrant had been issued on Octobc: 30, 1974, but that

fact was not known to Grand Cayman authorities at the time of peti-

tioner’s arrest in that country (Pet. App. 17, n. 7).

4

Island because “the involvement of the Government

agents in this case was too insignificant for them to be

considered participants in the actions of the foreign police

official” (Pet. App. 18-19). As petitioner concedes (Pet.

17), the determination of whether the degree of federal

participation in a foreign search is sufficient to implicate

the Fourth Amendment and its exclusionary rule is a factuz

one. See United States v. Janis, No. 74-958, decided July

6, 1976, slip op. 22-23, n. 31. The district court and the

court of appeals each concluded that the amount of federal

involvement here was insufficient, and the correctness of

this concurrent finding of fact of two lower courts does not

warrant further review. See, e.g., Berenyi v. Immigration

Director, 385 U.S. 630, 635-636; Graver Mfg. Co. v. Linde

Co., 336 U.S. 271, 275. In any event, the evidence shows

that the findings of the courts below are amply supported

by the record.

Within ten days of the theft, the Federal Bureau of

Investigation had identified several participants in the

crime and had traced petitioner and co-conspirator Luigi

DiFonzo to Grand Cayman Island. F.B.I. Agents Francis

Pieroni and Patrick Farrell went to the island, where they

were met by Detective Superintendent Derrick Tricker of

the Grand Cayman police, whom they had previously

‘Petitioner apparently contends (Pet. 18) that his arrest and subse-

quent search by Grand Cayman authorities violated the Fourth Amend-

ment because they were conducted without a warrant. The Fourth

Amendment, however, does not require a warrant for an arrest in a

public place (United States v. Watson, 423 U.S. 411), and the warrant-

less searches were justified as incident to the arrest. Moreover, al-

though the district court made no finding as to whether the Grand

Cayman police had probable cause to arrest petitioner (Pet. App. 16),

that arrest, as we note below, occurred for violation of Grand Cayman

rather than federal law, and “[petitioner] does not appear to contend

that the arrest or search incident thereto was illegal inder Cayman

law” (Pet. App. 17).

5

contacted (S. Tr. 98-100; 148-152).5 At the outset, Tricker

advised the agents that they could not carry weapons on

the island (S. Tr. 76), that they had no jurisdiction to

interrogate anyone or to take anyone into custody, and

that any investigation would be conducted by his depart-

ment (S. Tr. 77). While on the island, the F.B.1. agents

did not question anyone (S. Tr. 80), and did not request

that Superintendent Tricker make an arrest or search (S.

Tr. 24-25).

Acting independently of the agents, Tricker determined

from the Grand Cayman immigration office that petitioner

was on the island and checked with local hotels to deter-

mine where he was staying. At approximately 9:30 p.m.

on October 30, 1974, Tricker went to the airport and

saw petitioner and DiFonzo at an exit gate waiting to board

an airplane. He immediately approached them, identi-

fied himself, and asked them to accompany him into an

airline office. Tricker asked for their names and travel

documents and obtained from DiFonzo two airline tickets

in the name “Stewart.” Petitioner and DiFonzo were then

arrested for refusing to identify themselves, which is an

offense under Grand Cayman law (S. Tr. 20-21, 30).

At the police station, petitioner and DiFonzo were

searched and certain money and papers were seized.

Although the F.B.I. agents were present during the arrest

and search, they did not request that petitioner be arrested

or searched, did not interrogate petitioner, and did not parti-

cipate 2 the arrest or search in any way (S. Tr. 23, 98-100,

110, 141-144, 149-152, 155, 166-167). The following day,

petitioner and DiFonzo returned to Miami in the company

of a Grand Cayman police officer whose air fare was

*“S. Tr.” refers to the transcript of the January 24, 1975, suppres-

sion hearing.

6

paid by the F.B.I. agents (S. Tr. 25, 27, 39, 98-99). Prior

to boarding, Superintendent Tricker handed Agent Farrell

the money and other materials that had been seized from

petitioner (Tr. 88).°

Thus, as the court of appeals observed (Pet. App. 18),

“Tricker jealously guarded his prerogatives and reached

his own decisions about what to do with the information

which the FBI had provided him.” While it is true that

Grand Cayman authorities might not have taken action

against petitioner and DiFonzo if the F.B.1. agents had

not called their attention to petitioner’s and DiFonzo’s

presence on the island, providing information to a foreign

official is not sufficient involvement for the government to

be considered a participant in acts the foreign official

takes based on that information. Stonehill v. United

States, 405 F. 2d 738, 746 (C.A. 9), certiorari denied,

395 U.S. 960; Birdsell v. United States, 346 F. 2d 775,

782 (C.A. 5) (Friendly, J.), certiorari denied, 382 U.S.

963; Shurman v. United States, 219 F. 2d 282 (C.A. 5),

certiorari denied, 349 U.S. 921. Nor was the mere pres-

ence of the federal agents at the time of the search by

Tricker sufficient to federalize the search. Stonehill v.

United States, supra, 405 F. 2d at 744. Finally, as the

court of appeals noted (Pet. App. 19):

[Petitioner and DiFonzo] violated Grand Cayman law,

according to Tricker, and that [was] the reason for

which he arrested them. That he might also have

*Petitioner contends (Pet. 24-25) that Agent Farrell's acceptance

of this evidence at the airport constituted an unlawful seizure,

regardless of the validity of the earlier arrest and search by Grand

Cayman police. This argument is insubstantial, since the seizure

had occurred on the previous day. As the court of appeals correctly

held (Pet. App. 20), “Superintendent Tricker’s action in turning the

items over to the FBI was totally voluntary. Thus, no seizure took

place. Coolidge v. New Hampshire, 403 U.S. 443, 484 et seq.” See also

Burdeau v. Mc Dowell, 256 U.S. 465.

7

intended to help the United States is not a suf-

ficient reason to treat his actions as those of United

States agents.

2. Petitioner contends (Pet. 26-42) that the district

court improperly limited his cross-examination and im-

peachment of co-conspirator Gushi. Each of petitioner's

present claims was considered and rejected by the court

of appeals, upon whose thorough opinion we rely. The

proper conduct and limits of cross-examination neces-

sarily lie within the sound discretion of the trial judge,

whose rulings will not be disturbed absent an abuse of

discretion and a showing of prejudice. United States v.

Blackwood, 456 F. 2d 526, 529 (C.A. 2), certiorari.

denied, 409 U.S. 863. As the court of appeals con-

clusively demonstrated, each of the orders challenged by

petitioner was correct, and the issue of Gushi’s pos-

sible motive to testify falsely “was fairly put to the

jury.” United States v. Mahler, 363 F. 2d 673, 677 (C.A.

2).

3. Petitioner contends (Pet. 46-49) that he was impro-

perly subjected to multiple convictions and punishments

for a single transaction.

a. Petitioner was charged under 18 U.S.C. 2113(b) with

taking money belonging to six different federally in-

sured banks. A separate count was charged for each

bank whose money was taken. Petitioner argues (Pet.

46-48) that it was error to convict him on several counts,

since all of the money was taken during a single crimi-

nal event. However, if Congress so intends, one trans-

action may constitute multiple offenses. Ebeling v.

Morgan, 237 U.S. 625 (cutting several mail bags taken

from the same car); Barringer v. United States, 399 F.

2d 557 (C.A. D.C.), certiorari denied, 393 U.S. 1057

(robbery of two persons at the same time). Section 2113

(b) proscribes the taking of money belonging to “any

bank” that is federally insured. The statute clearly

indicates that Congress intended to protect the interests

of each federally insured bank and to make each un-

authorized taking therefrom a distinct and separate of-

fense. Ebeling v. Morgan, supra, 237 U.S. at 629;

United States v. Canty, 469 F. 2d 114, 126 (C.A. D.C.).’

As the court of appeals correctly held (Pet. App. 22):

In this case the money taken belonged to multiple

banks. That the money was all taken from Purolator’s

vault is irrelevant. Congress was concerned with

protecting bank money. A separate crime may be

charged for each institution whose money is taken.

Since the money at Purolator was kept segregated in

separate containers, there was no question as to

whose money was taken and whose money was left as

there would have been if the money had been

commingled.

In any event, petitioner received identical concurrent

sentences on each of the six counts charging bank

larceny. See Barnes v. United States, 412 U.S. 837,

848, n. 16.8

b. Petitioner also claims (Pet. 48-49) that he could not

properly be convicted of bank larceny under Section 2113

(b) and transportation of stolen property in interstate

’Petitioner relies upon Caniy to support his contentions (Pet. 47).

Although that case held that robberies of multiple tellers within

a bank are not separate takings, the money in question belonged

only to a single bank. 469 F. 2d at 126.

‘Despite petitioner's claim (Pet. 47) that the jury would have

had a more difficult time in reaching a compromise verdict if he

had been charged with only a single count of bank larceny, the

jury’s finding of guilty on each of the six counts of bank larceny

submitted to it strongly suggests that the verdict was not the

result of a compromise.

9

commerce under 18 U.S.C. 2314. In Blockburger v.

United States, 284 U.S. 299, 304, this Court held that

“where the same act or transaction constitutes a viola-

tion of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or

only one, is whether each provision requires proof of a

fact which the other does not.” The court of appeals

properly applied this rule to uphold the convictions

(Pet. App. 23):

The relevant elements of section 2113(b) are the

taking and carrying away with the intent to steal

more than $100 which belongs to a federally insured

bank. The relevant elements of section 2314 are

the transportation of $5000 or more in interstate or

foreign commerce knowing it to have been stolen.

Section 2113(b) thus requires a taking, but section

2314 does not. Section 2314 requires transportation

in commerce, but section 2113(b) does not. Under

the Blockburger test, therefore, conduct even though

violating both sections constitutes two offenses since

each requires proof of a fact which the other does

not.

See also Bayless v. United States, 288 F. 2d 794, 795

(C.A. 9), certiorari denied, 366 U.S. 971 (violations of 18

U.S.C. 2113(a) and 2314 constitute separate offenses).

Congress’ desire to prevent the use of interstate commerce

for the purpose of transporting stolen articles is wholly

separate from its desire to protect federally insured

banks from theft. See United States v. Gaddis, 424 U.S.

544, 547.

4. Petitioner contends (Pet. 42-46) that the district court

erred in its instructions to the jury on the bank larceny

10

counts.’ Specifically, he argues that the court made no

reference to Purolator’s role as agent for the banks and

therefore failed to submit to the jury the issue whether

theft of the money from the premises of Purolator

constituted theft from the federally insured banks. As

petitioner concedes (Pet. 42), however, the theft of money

belonging to a federally insured bank constitutes a viola-

tion of 18 U.S.C. 2113(b), regardless of who has pos-

session of the money when it is stolen. There is no

question that the money taken by petitioner from Purola-

tor belonged to the banks (see Pet. App. 21, n. 8).

Therefore, as the court of appeals correctly observed

(Pet. App. 27):

The heart of the crime charged and the federal

jurisdictional nexus was the taking of money be-

longing to or in the control of a federally in-

sured bank. 18 U.S.C. §2113(b). Purolator’s sta-

tus as an agent, independent contractor, or other-

wise was totally irrelevant to the crime charged.

Under the court’s instructions the jury must have

found that federally insured bank money was taken.

This is all that was necessary to convict under the

statute. The agency language in the indictment is

°The court’s instructions on the elements of each of these counts

were as follows (Pet. App. 26):

To convict a defendant of this count, you must find beyond

a reasonable doubt:

On or about October 20, 1974, the defendant did take and

carry away, with intent to steal or purloin, any amount of

money in excess of $100.00 that belonged to or was in the

care, control or management of the .. . Bank . . . [named in

that count];

And, that the .. . Bank . . . [named in that count] was a

bank whose deposits were then and there insured by the Federal

Deposit Insurance Corporation.

surplusage though there can be no doubt from the

evidence in the case that the jury found the money

was taken from Purolator.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

RosBert H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

GeorGE S. Kopp,

KATHERINE WINFREE,

Attorneys.

DECEMBER 1976.

DOJ-1976-12