Petition — Barone v. United States

Supreme Court, U. 3%,

FILED

JUL 5 1977

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October Term 1977 =<

N . 7

SALVATORE BARONE, SENIOR AND

SALVATORE BARONE, JUNIOR,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent,

ON PETITION FOR

A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR

A WRIT OF CERTIORARI

ARTHUR LEWIS

205 South Broadway, Suite 802

Los Angeles, California

(213) 624-4901

Attorney for BARONE SENIOR

MICHAEL D. NASATIR, of

NASATIR, SHERMAN and HIRSCH

9911 West Pico Boulevard

Los Angeles, California

(213) 277-3112

Attorney for BARONE JUNIOR

IN ‘THE

SUPREME COURT

OF THE UNITED STATES

October Term 1977

No.

SALVATORE BARONE, SENIOR AND

SALVATORE BARONE, JUNIOR,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent,

ON PETITION FOR

A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR

A WRIT OF CERTIORARI

ARTHUR LEWIS

205 South Broadway, Suite 802

Los Angeles, California

(213) 624-4901

Attorney for BARONE SENIOR

MICHAEL D. NASATIR, of

NASATIR, SHERMAN and HIRSCH

9911 West Pico Boulevard

Los Angeles, California

(213) 277-3112

Attorney for BARONE), JUNIOR

TOPICAL INDEX

Table of Authorities

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED

STATEMENT

ARGUMENT

CONCLUSION

i.

11

TABLE OF AUTHORITIES

Cases

Az Dinv. U.S.,

232 F.2d 283

(1956 - 9th Circuit)

U.S. v. Clavin,

(1921) 1921 F. 986

U.S. v. Flowers,

(1966) 255 F.S. 485

U.S. v. Fullmer,

457 F.2d 447 (1972)

U.S. v. Love,

534 F.2d 87 (1976)

Vierick v. U.S.,

318 U.S. 236,

63 S.Ct. 561, 87 L.Ed. 734 (1943)

U.S. v. Hayward,

136 U.S. App. D.C. 300,

420 F.2d (1969)

U.S. v. Russell,

(1973) 411 U.S. 423

U.S. v. Nataro,

(1966 - 9th Circuit)

363 F.2d 172.

ii.

Page

10

U.S.v. Sherman,

(1958) 356 U.S. 369

U.S. v. Sorrels,

(1932) 287 U.S. 435

U.S. v. Vixie,

(9th Circuit - 1976)

532 F.2d 1277

Statutes

18 U.S.C. §371

18 U.S.C. §641

18 U.S.C. §942 (c) (2)

18 U.S.C. §5010 (e)

28 U.S.C. §1254 (1)

iii.

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term 1977

No.

SALVATORE BARONE, SENIOR AND

SALVATORE BARONE, JUNIOR,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR

A WRIT OF CERTIORARI

OPINION BELOW

The opinion of the Court of Appeals is

attached hereto as Appendix A.

JURISDICTION

The judgment of the Court of Appeals was

entered on June 3, 1977 (see Appendix A).

jurisdiction of this court is invoked under

> Be

The

cee te WORE ey

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

QUESTIONS PRESENTED

: 1. Was Defendant BARONE SENIOR

entrapped as a matter of law?

2. Should a mistrial have been declared

when the government attempted to link the Defen-

dants with the ''SLA Shootout"?

3e Was the evidence sufficient to

convict Appellant BARONE JUNIOR under

18 U.S.C. §641?

4. Was the verdict acquitting Appellant

BARONE JUNIOR on the conspiracy count, but

convicting him on the Substantive count, impermis-

sibly inconsistent ?

STATEMENT

A three count indictment was returned by

the Grand Jury charging SALVATORE BARONE

SENIOR with violations of 18 U.S.C. §371

(conspiracy), 18 U.S.C. §641 (receiving stolen

property), and 18 U.S.C. §942 (c) (2), (unlaw-

fully carrying a firearm during the commission

of a felony).

A two count indictment was returned against

SALVATORE BARONE JUNIOR charging violation

ie

of 18 U.S.C. §371 (conspiracy) and 18 U.S.C.

§641 (receiving stolen weapons).

BARONE SENIOR AND BARONE JUNIOR

plead not guilty and were tried before a jury in the

United States District Court, Central District

of California, the Honorable Robert Firth

presiding.

A co-defendant, LUPE CONTRERAS, plead

guilty before trial.

Defendant BARONE SENIOR based his defense

solely on the issue of entrapment and was found

guilty of all three counts and was sentenced to

three years in prison.

Defendant BARONE JUNIOR based his

defense on his plea of not guilty, his lack of prior

knowledge, and his lack of intent to commit the

crime. He was acquitted on the conspiracy count,

but found guilty on the substantive count. He

was sentenced to a 60 day youth offender diagnostic

study pursuant to 18 U.S.C. §5010 (e).

Timely notices of appeal were filed in the

Ninth Circuit Court of Appeals and a motion to

consolidate the two appeals were granted.

The United States Court of Appeals for the

Ninth Circuit heard oral argument on the issues

presented and on June 3, 1977 entered a

Memorandum Opinion affirming the conviction.

Petitioner BARONE SENIOR, at trial,

presented corroborated evidence that he had

3.

weet

been enticed into procuring weapons by a govern-

ment informer and that he had no predisposition to

commit the crime.

The jury agreed that BARONE JUNIOR did

not participate in a conspiracy yet found that he

had committed the substantive crime even though

the conviction on the substantive count depended

on a belief by the jury of the truth of the key

element of the conspiracy charge.

ARGUMENT

1. Petitioners contend that both the

trial court and appeals court erred in their

determination of the law as it applied to them.

BARONE SENIOR showed ample evidence

that he was entrapped as a matter of law yet the

trial Judge, and the Appeals Court, ruled that

this was no entrapment. U.S. v. Sorrels (1932)

287 U.S. 435; U.S. v. Sherman (1958) 356 U.S.

369 and U.S. v. Russel (1973) 411 U.S. 423.

Petitioner BARONE SENIOR also contends

that the Prosecution failed to meet its burden

under U.S. v. Nataro, 363 F.2d 172 (1966 - Ninth

Circuit) in that “The issue [of entrapment] having

appeared it becomes the Prosecution's burden to

establish beyond a reasonable doubt that the accused

was not entrapped into the commission of the

offense."

Regarding BARONE JUNIOR, there was

ample evidence produced which indicated that

BARONE JUNIOR had no knowledge of a conspiraty

and that he possessed no criminal intent.

The probity of that evidence was borne out

by the fact that the jury acquitted BARONE JUNIOR

on the conspiracy count. Such a result could

have been reached only if the jury believed that

BARONE JUNIOR had no knowledge or intent

regarding the crime. Surprisingly, however,

the jury somehow chose to believe he had the

intent for the substantive crime.

While courts do not normally invade the

providence of the jury concerning inconsistent

verdicts, U.S. v. Vixie, 532 F.2d 1277 (9th Cir.

Court, 1976), in the instant case there is an

unusual situation where there is no escaping the

fact that the jury both believed, and disbelieved,

the very same facts. U.S. v. Flowers, 255

F.S,. 485 (1966) and U.S. v. Clavin, 272 F. 986

(1921).

Perhaps the most striking reason for

granting the Petition in the instant case is the

prosecutorial misconduct perpetrated by the

Government.

Twice during its closing argument, the

government prosecutor mentioned the infamous

Los Angeles, Patty Hearst, "SLA Shoot-out. "

The trial brought out absolutely no evidence

regarding this event and absolutely no connection

between the SLA and the defendants was ever

established. The Reporter's Transcript (page 1054)

5.

CNY Ree OE

ee

eee SS

reads as follows:

"Mr. WU: Your Honor, may

it please the court. Good morning,

ladies and gentlemen of the jury, counsel,

defendants.

"Less than two years ago a tragic

incident occurred in the Los Angeles

area which was witnessed by not only

inhabitants of Los Angeles but nation-

wide, and indeed, the world at large,

an incident which involved violence,

destruction of property, the snuffing

out of lives, which very violence involved

the use of fire power and firearms.

Less than two months following the SLA

shootout in Los Angeles another incident

occurred --

"MR. NASATIR: Excuse me,

your Honor. Iam going to object to any

characterization of this as a violent act.

I think it is calculated to inflame the

jury, and on that basis I object.

"MR. LEWIS: I join in the

objection, your Honor.

"MR. WU: Less then two months

after that incident --

"MR. NASATIR: Well, same objection,

your Honor. I ask that the prosecutor

be admonished.

"THE COURT: Disregard the reference

to the SLA shooting. "

The only purpose of this statement was to

impassion and inflame the jury. Such an obvious

dispaly of prejudice should have resulted in the

Judge himself immediately declaring a mistrial;

the admonition alone was insufficient to offset

the prejudice.

As the Court said in Az Din v. U.S., 232 F.

2d 283 (1956 Ninth Circuit):

"It is error for a prosecutor to appeal

to passion and prejudice concerning

matters irrelevant to the case. How-

ever, where the trial judge had admonished

the jury to disregard it, such improper

conduct justifies reversal only when the

‘remarks are not the kind the jury put

out of their minds simply by being told

to do so.'" (Citations omitted. )

The reference to the SLA in the instant case

is exactly the type of prejudicial comment that a

jury cannot be admonished into ignoring. The

SLA shootout was a televised horror that saw a

peaceful neighborhood disrupted by police,

engulfed by flames, peppered by gunfire, and

which saw the violent deaths of a number of young

radicals. When viewed in the light of the fact

that this was a Los Angeles jury, only a year after

the shootout itself, and that Patty Hearst was still

in the headlines, it becomes clear that the linking

of the defendants with the SLA was a highly

prejudicial situation which could only inflame the

7.

SS ket RH ~

passions of the jury against the defendants.

When the SLA statement is further coupled

to the highly prejudicial display of weapons that

occurred in the courtrooms, the tone of the govern-

ment's case is apparent. Defense Counsel

entered into a stipulation with the government

limiting the number og gunds that would be brought

into the courtroom and displayed to the jury.

Only those crates that were opened, that contained

guns that BARONE JUNIOR could have seen,

were to have been brought into the courtroom

(R. T. 344 to 355).

The government actually brought over

forty weapons and crates and duffel bags into the

courtroom, which had a devistating effect on the

jury. Counsel's motion for an immediate

mistrial was denied. Aside from the fact that

there is a serious question cf whether the govern-

ment even attempted to keep to the agreed stipula-

tion, the display of such a large number of guns

is highly flammatory and prejudicial toward the

defendants. Juxtaposing the display of weapons

with the SLA shootout created a mood in the mind

of the jury of fear and prejudice that deprived

the defendants of a fair trial.

In U.S. v. Love, 534 F.2d 87 (1976) the

appeals court reversed the defendant's conviction

of transmitting in interstate commerce a threat

to ir ».° another person, because the prosecution

inje ~ ihe element of possible Mafia connections.

The .. .ai juc.. admonished the prosecutor and

warned the jur; to disregard the statement, since

no evidence remotely suggested the defendant

8.

was Mafia connected.

The appeals court felt, however, that even

an admonition to the jury was insufficient to insure

a fair trial and reversed the lower court, even

without a motion for mistrial having been made

at the trial level. The court based its decision

on the Due Process clause.

A case even closer on point with the instant

case is U.S. v. Fullmer, 457 F.2d 447 (1972).

In that case, the defendant was convicted of knowingly

and willfully conducting the business of a firearms

dealer on premises not licensed to him. The

Appeals Court said:

"We hold that the prosecuting attorney

made two inflammatory, highly prejudicial

statements to the jury which constituted

reversible error.

"The prosecutor told the jury 'We have

filed the case here under the Gun Control

Act of 1968, which was passed by Congress

to ; yovide support for Federa, State and

local enforcement agencies and officials

in their fight against crime and violance

snipping and creating disturbances

and so forth.' Again, an objection by

defendant's counsel was overruled by the

trial court. ...

"Defendant relies on such decisions as

Viereck v. United States, 318 U.S. 236,

63 S.Ct. 561, 87 L.Ed. 734 (1943) and

United States v. Hayward, 136 U.S, App.

D.C. 300, 420 F.2d (1969) to support

his argument that inflammatory remarks

made by the prosecutor and admitted by

the trial court are prejudicial and

reversible error. ...

''We agree with defendant's contention

that he was prejudiced by the inflam-

matory remarks made by the prosecution

in this case. The use of such

inflammatory comments by the United

States Attorney could only arouse passion

and prejudice causing what we feel was

reversible error on the part of the trial

court in overruling defense counsel's

objections. "'

While Fullmer was reversed due to the trial

. . «' An objection by defendant's

Court's failure to sustain an objection, the key

counsel was overruled by the Court.

finding is that there is reversible error due to

prejudice where a prosecutor has tried to connect

a gun related offense with a larger, more vicious

but factually unrelated societal evil.

"Also, the prosecutor stated 'I don't

have to tell you ladies and gentlemen

what is happening today in our country

"s with people -- not the man who shoots

his wife or that kind -- but people who

are using ammunition and guns for

The government's linking of the defendants

with the SLA shootout during closing arguments

P was highly prejudicial to the defendants and should

9. 10.

NE _ !”——

result in this court's granting of the Petition

for Certiorari and, ultimately, the reversal of

their convictions.

CONCLUSION

It is therefore respectfully submitted that

the petition for a

granted.

writ of certiorari should be

Respectfully submitted,

ARTHUR LEWIS

Attorney for

SALVATORE BARONE, SENIOR

MICHAEL D. NASATIR

Attorney for

SALVATORE BARONE, JUNIOR

ll.

~~

——_—

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Unitep States or AMERICA, :

Appellee,

vs.

1 No. 76-2654

SALVATORE BarRoNE, SENIOR and SALVATORE

BARONE, JUNIOR, MEMORANDUM

Appellants.

J

[June 3, 1977]

Appeal from the United States District Court

for the Central District of California

CALLISTER,® District Judg

The appellants were charged in a three-count indictment to-

gether with two co-defendants. Count one alleged a conspiracy

to receive, conceal and retain stolen government property, count

two alleged the substantive crime of receiving the same property,

and count three charged Barone, Senior (Senior) with the

possession of a concealed weapon while committing a felony.

The appellants entered pleas of not guilty and the case proceeded

to trial as to both, father and son. The jury returned a verdict

of guilty on all three counts against Senior, and a verdict of

guilty as to Barone, Junior (Junior) on count two. Junior was

acquitted on the conspiracy count.

Both appellants urge that reversal of their convictions is

required because of a statement made by the prosecutor during

closing argument, Senior contends that the evidence as to him

Before: ELY and SNEED, Circuit ‘ and

*Honorable Marion J. Callister, United States District Judge, District

of Idaho, sitting by designation.

APPENDIX A

2 United States of America vs.

shows entrapment as a matter of law, and Junior contends both

that the. evidence was insufficient for his conviction, and that

the jury verdict was impermissibly inconsistent as to him.

Facts

On July 4, 1974, the National Guard Armory in Compton,

California, was burglarized, and a large quantity of weapons

and ammunition were stolen. During the course of the FBI

investigation, the Bureau offered a reward of $10,000 for infor-

mation leading to the recovery of the weapons.

Senior owned a bar in the Whittier area which at some point

he sold to one Frank Felice, and during the transaction the

two men became friends. On July 30, 1975, the FBI was told

by Felice that a possibility existed that a large amount of guns

was available for sale. Bureau agents then asked Felice to obtain

a list of the weapons if possible. Police obtained a list of the

weapons from Senior, the list was delivered to FBI agents, and

the agents requested that Felice obtain sample weapons.

On August 2, 1975, two FBI agents observed Senior trans-

ferring a bundle to Felice in an open field. The bundle was

subsequently handed over to the agents by Felice and was found

to contain an M-16 automatic rifle, an M-60 machine gun, and a

grenade launcher. It was later verified that the weapons were

among those stolen from the Compton armory.

The FBI then arranged a fake “buy” with one of their

agents posing as a buyer from the East. The ruse worked suc-

cessfully and both appellants were eventually arrested in the

back yard of a co-defendant’s home, surrounded by crates and

boxes of stolen government weapons.

Prosecutorial Misconduct

At the beginning of his closing argument, the prosecutor made

a reference to the “SLA shootout”, a previous incident that had

occurred in Los Angeles, deploring the violence, destruction of

property, and snuffing out of lives. The trial judge immediately

admonished the jury that there was no evidence in the case

with respect to the SLA shootout, and instructed the jury to

disregard the reference to the SLA. While we can conceive of

\

Oh OP Te

Salvatore Barone, Sr., et al. 3

no possible reason or justification for injecting the SLA incident

into this case, we conclude that the remark did not constitute

reversible error in light of the trial judge’s prompt corrective

action and the record considered as a whole. United States v.

Gomez, 523 F.2d 185 (9th Cir. 1975); United States v. Bashaw,

509 F.2d 1205 (9th Cir. 1975).

Entrapment

Senior’s claim of entrapment is based primarily on his testi-

mony as to the conduct of Felice. According to Senior, Felice

pleaded with on several occasions to get something for Felice

to “move” (i.e., stolen property). After numerous requests,

Senior agreed to talk to one of the co-defendants who allegedly

had said that he had some guns for sale. Senior testified that

he merely acted as a go-between in the transaction and that

Felice insisted that Senior take part. Although Senior’s testimony

was corroborated to some extent by two employees of his bar,

there was significant evidence indicating that Senior was a

knowing and voluntary participant.

The flaw in Senior’s argument is that it was rejected by the

jury, under appropriate instructions, in the face of conflicting

testimony. It is not our function to re-evaluate conflicting testi-

mony, including the credibility of differing witnesses. In United

States v. Griffin, 434 F.2d (9th Cir. 1970), we wrote:

“Our earlier summation of the relevant facts demonstrates

that there are definite conflicts in the testimony on the issue

of how Griffin began selling heroin to Agent Henry. Under

our decisions, the resolution of such conflicting assertions of

fact relevant to the entrapment issue is a credibility question

for the jury.” Id. at 981.

Senior’s reliance on Sherman v. United States, 356 U.S. 369

(1957) is misplaced. As the Court made clear in that case, it was

not “choosing between conflicting witnesses, nor judging credi-

bility.” There, the relevant testimony was uncontradicted.

Sufficiency of the Evidence

There was sufficient evidenes in the record to permit a rational

conclusion by the jury that Junior was guilty beyond a reason-

4 United States of America vs.

able doubt. United States v. Nelson, 419 F.2d 1237 (9th Cir.

1969). Of no little importance is the fact that he was arrested

in the back yard of a co-defendant’s home while surrounded by

the illegal weapons. One of the prosecution’s agents also testified

that Junior assisted in the counting and unloading of the

weapons and that at one point Junior acted as a lookout. The

same witness testified that when he expressed concern about the

weapons being out in the open, a co-defendant assured him that

it was all right, and Junior added “Don’t worry about a thing”

and “Everything is okay.” When the agents protested that one

of the essential parts of the weapons was missing, Junior

allegedly responded, “Nobody has handled them but us.”

Although Junior denied any knowing participation in the

crime, the jury apparently did not accept his claim of inno-

cence. The jury was not, of course, obliged to accept Junior’s

protestation of innocence. United States v. Cisneros, 448 F.2d

298 (9th Cir. 1971). See also Umited States v. Cluchette, 465

F.2d 749, 754 (9th Cir. 1972).

Inconsistent Verdict

Junior’s contention that the verdicts as to him were incon-

sistent is without merit. United States v. Vixie, 532 F.2d 1277,

1278 (9th Cir. 1976).

AFFIRMED.

PERNAU-WALSH PRINTING CO.,8AN FRANCISCO 6-13-77-——410