Petition — Solvino v. United States

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Supreme Court, U. &

FILED

MAR 26 (979

“ MICHABL RODAK, JR., CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

78-1502

VITTORIO SOLVINO, Petitioner

:

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE UNITED STATES

ALFRED C. DeCOTIIS, ESQ.

Attorney for Petitioner

VITTORIO SOLVINO

570 Broad Street

Newark, New Jersey

07102

>

INDEX

Opinions below ......-.

WUPEOGLOCAOR .« «+ 6 » 2 2's

Questions Presented... .,

Statement of the Case...

Reasons for Granting Writ .

Conclusion oe Se ee ae ee

Appendix: Judgment Order of the

-22

Court

of Appeals for the Third Circuit,

issued on January 19, 1979

Denial of Petition for Rehearing

In Banc issued on February 26, 1979

TABLE OF CITATIONS

Cases:

Bolling v, Sharpe,

347 U.S. 497, 74 S.Ct. 693,

96 &.Bd. 884 (1984)... .« « e

United States v. Ahmad,

347 F.Supp. 921

(M.D, Pa. 1972) ® ~ . ] . .

United States v. Berrigan,

482 F.2d 171

fame Gees A2O7S) «© 6 ts

ii

TABLE OF CITATIONS

(Continued) ;

Cases: (Continued) :

United States v.

501 F.2d

(2d Cir.

United States v.

258 (8th Circ.

433 F.Supp.

546 F.2d

on remand,

1207

1974). . .»

(W.D. Mo. 1977) . .

United States v. Falk,

479 F.2d

919

(7th Cir. 1973) ..

United States v.

Berrios,

Cammisano,

1976)

964

. ° bd

Malinowski,

472 F.2d

(3rd cir

850

. 1973) . .

United States v. Nixon,

418 U.S.

41 L.Ed.

683, 94 S.Ct.

3090,

2a 1039 (1974) . .

United States v. Oaks,

508 F.2d

(9th Cir

United States v,

1403 :

. 1974) . 7

Robinson,

311 F.Supp. 1063

(W.D. Mo

United States v,

- 1969) ..

Steele,

461 F.2d

(9th Cir

Yick Wo v.

1148

-etes « &

Hopkins,

118 U.S.

30 L.Ed.

356, 6 S.Ct.

220 (1885)

iii.

9,

19

15,

15

6,

11

18

Statutes:

Federal Rules Cr,

i ie ae

8 u.S.c. $1326 .

Proc,

iv

19

13,

14,

18

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

VITTORIO SOLVINO, Petitioner

¥.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE UNITED STATES

The Petitioner, VITTORIO SOLVINO,

respectfully prays that a writ of certio-

rari issue to review the judgment of the

United States Court of sib for the

Third Circuit entered January 19, 1979.

Petition for Rehearing In Banc was denied

on February 26, 1979.

OPINIONS BELOW

The opinion of the Court of Appeals

for the Third Circuit has not yet been re-

ported. It is reproduced in the Appendix

-l-

to this petition. The Denial of the peti-

tion for Rehearing In Banc is likewise

reproduced in the Appendix.

JURISDICTION

The Denial of Petition for Rehearing

In Banc before the Third Circuit Court of

Appeals was entered on February 26, 1979.

The jurisdiction of the Supreme Court is

invoked under 28 U.S.C. $1254(I).

QUESTIONS PRESENTED

Did not the trial court commit rever-

sible error in denying the defendant an

evidentiary hearing to establish his

allegations of discriminatory prosecution?

Did not the trial court err in deny-

ing the defendant's request for the pro-

duction of government documents?

a

ee eee ae

STATEMENT OF THE CASE

The petitioner, VITTORIO SOLVINO, is

an Italian citizen who was charged with

having illegally ‘sp eisieliawieai this country

after having previously been deported, in

violation of 8 U.S.C, §1326.

Prior to trial, the defendant moved

for an evidentiary hearing and the pro-

duction of various government documents

to substantiate the allegation of discri-

mMinatory prosecution.

Oral arguments on this motion were

heard by the Honorable Herbert J. Stern,

U.S.D.J., for the District of New Jersey

on June 19, 1978. Judge Stern denied

both the request for discovery and the

motion for an evidentiary hearing.

On that same date the trial was held,

the defendant having waived a jury trial

and findings of fact. The only witness

-3-

for the government was Mr. Frank La Mort,

a criminal investigator for the United

States Immigration and Naturalization

Service. In essence, Agent La Mort testi-

fied that he had received a file memoran-

dum which stated that Mr. Solvino had

been arrested and deported S060 the United

States in 1970, and that it appeared that

he was now in the United States. Mr. La

Mort then stated that he arrested the

defendant on April 13, 1978 in the

Gloucester County Courthouse in Woodbury,

New Jersey. Judge Stern adjudged the |

Acdaneait guilty.

On July 20, 1978, the petitioner was

sentenced to a period of two (2) years

imprisonment, said sentence to be suspen-

ded, and an unsupervised probation period

of five (5) years.

Notice of Appeal was filed with the

Court of Appeals for the Third Circuit on

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July 28, 1978. On January 19, 1979, the

Third Circuit affirmed the rulings of the

trial judge,(la). Petitioner's Timely

Petition for Rehearing In Banc was denied

on February 26, 1979(2a),

oS

REASONS FOR GRANTING THE WRIT ; as practically to make

unjust and illegal dis-

crimination between

/ persons in similar cir-

A. The trial court committed rever- ; cumstances, material to

| their rights, the denial

sible error in denying VITTORIO SOLVINO's | of equal justice is still

j within the prohibition of

demand for an evidentiary hearing to the Constitution,"

establish his allegation of discriminatory | It is now clear that such discrimina-

prosecution. | tion on the federal level is in violation

The petitioner, VITTORIO SOLVINO, of the due process clause of the fifth

contended that he had been singled out for amendment. Bolling v. Sharpe, 347 U.S.

prosecution because of his Italian ances- 497, 74 §.Ct. 693, 98 L.Ed. 884 (1954).

try and because of his association with So, too, any systematic discrimination in

Others of Italian descent. enforcement, United States v. Robinson,

The origin of the defense of discri- 311 F.Supp. 1063, 1065 (W.D.Mo. 1969) or

minatory prosecution is set forth in the unjust discrimination between persons in

United States Supreme Court case of Yick similar circumstances, Yick Wo, 118 U.S.

Wo v. Hopkins, 118 U.S. 356, 373-374, at 374, 6 S.Ct. at 1073, violates the

6 §.Ct. 1064, 1073, 30 L.Ed. 220 (1885). equal protection clause and renders the

* There it was held: prosecution invalid. United States v.

"Though the law itself Berrigan, 482 F. 2d 171, 174 (3rd Cir.

be fair on its face and .

impartial in’appearance, 1973).

yet if it is applied and

administered by public The burden of proving intention or

authority with an evil

eye and unequal hand, so

aa

-6-

purposeful discrimination is placed upon

the defendant, United States v. Malinow-

ski, 472 ?.2@ $50, 860 (32€@ Ciz.. 1973).

The courts have described that burden in

various ways. In United States v. Berrigan,

482 F2d at 177, it was stated, "Without

denigrating the importance of the right of

a person accused of crime to establish the

presence of discriminatory prosecution,

central to the issue must be some initial

showing that there is a colorable basis

for the contention."

Judge Dixon in United States v. Ahmad,

347 F.Supp. 912, 928 (M.D. Pa. 1972),

stated that it was incumbent upon a defen-

dant to present evidence from which at ,

least an inference of the use of improper

standards could be drawn.

Likewise, the court in United States

v. Falk, 479 F. 2d 616 (7th Cir. 1973)

defined the burden as follows:

ee ere

rman 5 ie

te a meal

ee

Court of Appeals in United States v.

The presumption is always

that a prosecution for vio-

lation of a criminal law is

undertaken in good faith

and in nondiscriminatory

fashion for the purpose of

fulfilling a duty to bring

violators to justice. How-

ever, when a defendant al-

leges intentional purpose-

ful discrimination and pre-

sents facts sufficient to

raise a reasonable doubt

about the prosecutor's

purpose, we think a diffe-

rent question is raised.

In determining what it is that a

defendant must prove, the Second Circuit

Berrios,

SOl F. 2d 1207 (2nd Cir. 1974) held:

To support a defense of

sele._tive or discrimina-

tory prosecution, a defen-

dant bears the heavy burden

of establishing, at least

prima facie, (1) that, while

others similarly situated have

not generally been proceeded

against because of conduct of

the type forming the basis of

the charge against him, he

has been singled out for pro-

secution, and (2) that the

government's discriminatory

selection of him for prosecu-

tion has been invidious or

in bad faith, i.e. based

-9-

upon such impermissible

considerations as race,

religion, or the desire

to prevent his exercise of

constitutional rights,

These two essential ele-

ments are sometimes refer-

red to as ‘intentional and

Purposeful discrimination. '

See Snowden v. Hughes, 321

U.S. 1, 8, 64 S.Ct. 397,

88 L.Ed. 497 (1943);

Moss v, Hornig, 314 F. 24

89, 92093 (2nd Cri. 1963);

United States v. Ahmad,

347 F.Supp. 912 (M.D. Pa.

1972); aff'd sub nom.,

United States v. Berri an,

482 F.2d 171 (3rd Cir. 1973);

United States v. Falk, 479°

P.2d 616 (7th Cir, 1973)

(en banc); United States Vv.

Crowthers, 456 F.2d 1074

(4th Cir. 1972); united

States v. Steele, 461 F.24

1148 (9th Cir. 1972), See

Comment, 'The Right to Non-

Discriminatory Enforcement

of State Penal Laws,' 61

Colum. L. Rev. 1103 (1961).

Mere ‘conscious exercise ,

of some selectivity in

enforcement is not in itself

a federal constitutional vio-

lation.' Oyler vy. Boles,

368 U.S. 448, 456, 82 S.ct.

501, 506, 7 L.Ed. 2a 446

(1962).

It further explained the "color basis"

Standard as follows, "We should first

ie SO Pe,

require some evidence tending to show the

existence of the essential elements of

the defense and that the documents in the

government's possession would indeed be

probative of these elements’. United

States v. Berrios, 501 F.2d at 1211-1212.

As was more fully set forth in the

supporting affidavit,* the petitioner,

VITTORIO SOLVINO, a citizen of Italy,

reasonably believed he could have Proved

by testimonial and documentary evidence

at a hearing the following:

(1) That there are literally mil-

lions of illegal aliens in this country;

(2) Each year there are thousands

of such aliens who are arrested or de-

tained by immigration authorities and,

ultimately, deported;

(3) That there have been thousands

of such deportees who have illegally re-

entered this country and were apprehended

This affidavit was appended to the Brief

in Support of the Motion for an Eviden-

tiary Hearing. aha

by federal authorities;

(4) That in the vast majority of

cases, deportees who illegally re-enter

this country are rarely prosecuted crimi-

nally.

The petitioner sought to demonstrate

by documentation and testimony that the

only distinction in treatment between the

aforementioned illegal aliens and himself

was the fact that he is of Italian ances-

try and associates with other of Italian

descent. This type of selective enforce-

ment of the statute violated his first

and fifth amendment rights.

A similar averment of discriminatory

Prosecution based upon the petitioner's

Italian heritage and associations was

raised in United States v. Cammisano, 546

F.2d 238 (8th Cir. 1976), on remand, 433

F. Supp. 964 (W.D. Mo. 1977) wherein the

indictment was dismissed for failure to

-12-

produce documents.

It is contended that the supporting

affidavit demonstrates the requisite

"seiaesbke basis" for the granting of the

hearing.

As was more specifically set forth

in that affidavit, the petitioner believed

he could prove the following facts:

(1) Criminal prosecutions under 8

U.S.C. 91326 are relatively rare in light

of the total number of violators,

(2) The Newark Strike Force of the

United States Department of Justice, whose

primary responsibility is organized crime

cases, conducted this prosecutior and not

the United States Attorney's Office who

would not ordinarily handle such a pro-

secution.

(3) Bail was initially set at FIFTY

THOUSAND ($50,000.00) DOLLARS on the cri-

minal prosecution and TWENTY-FIVE THOUSAND

-13-

($25,000.00) DOLLARS for the administrative

bail on the related deportation proceeding.

These initial bails were extremely high in

light of the two (2) year penalty fixed

for violation of the statute in question.

A reasonable inference can be drawn from

this fact alone that the defendant was being

illegally discriminated against.

(4) When sufficient security was

raised by the petitioner on the reduced

bail, the prosecution requested and was

granted a Nebbia hearing to determine the

source of such funds. Again, this is 4

most unusual procedure to be employed on

an alleged 8 U.S.C. $1326 violation.

(5) At that Nebbia hearing, the pro-

secution continually raised the petitioner's

alleged association with others of Italian

heritage who were alleged to be involved

in criminal activities.

In short, a strong inference can be

=-14<

gleaned from the foregoing that the only

reason Mr, solvino was prosecuted is due

to his heritage, and the prosecution's

unfounded “suspicion” that he is associa-

ted with other unknown criminal activities

and persons,

This type of discriminatory and selec-

tive prosecution is violative of the United

States Constitution, and there was a suffi-

cient showing of a “colorable basis" to

conduct an evidentiary hearing.

While it is acknowledged that hearings

are not granted as a matter of right, when,

as here, a sufficient showing has been made,

the courts have granted them. United

States v. Oaks, 508 F.2d 1403 (9th Cir.

1974); United States v. Steele, 461 F.2d

1148 (9th Cir. 1972) and United States v.

Ahmad, 347 F.Supp. 912 (M.D. Pa. 1972).

See also: United States v. Falk, supra,

where the trial court was reversed for

-15-.

failure to conduct such a hearing. | of the Government. In brief, those re-

a fern

Thus, the trial court erred in not quests can be broken down into two cate-

granting the petitioner an evidentiary | gories. The first group sought copies of

hearing which would have enabled him to statistical reports regarding the auatece

prove discriminatory prosecution. The | of deportees who have been apprehended

failure to grant such a hearing is rever- : after re-entering the country. These

sible error requiring the judgment of | statistics were clearly relevant in esta-

guilty to be vacated; requiring a reversal blishing that the defendant has not been

of the Judgment Order of the Court of treated as others similarly situated.

Appeals for the Third Circuit; and, fur- The Government could not have reason-

ther, requiring an evidentiary hearing to | ably objected on the basis of Rule 16(b),

be held. It is respectfully requested since these statistical reports did not

that this court grant certiorari in the | seek “reports, memoranda, or other internal

present case in order to establish the government documents made by the attorney

much needed guidelines for a proper deter- | for the government or other government

mination of whether a colorable basis has, agents.in connection with the investigation

in fact, been shown. or prosecution of the case" (Emphasis added).

B. The trial judge erred in denying | As is evident, this series of requests

petitioner's request for the production of was not made to conduct a "fishing expedi-

government documents. tion" into the government files of the

The petitioner moved for the produc- | Solvino case, Rather, it related to infor-

tion of certain documents in the possession

-17-

-16-

mation about other cases in a reasonable

attempt to demonstrate selective enforce-

ment of the statute. See: U.ited States

v. Ahmad, 347 F.Supp. at 926.

With respect to the second category

of requested documents, which related to

internal government files relating to

policies and decisions made in the Solvino

case and other 8 U.S.C. 81326 prosecutions,

it was and still is contended that the

government's claim of confidentiality and

executive privilege must give way to the

due process rights of the defendant to

obtain a fair and full hearing.

As the Court said in United States v.

Oaks, 508 F.2d 1405:

"Tf the defendant makes an

initial factual showing of

impermissible discrimination,

then the trial court may, in

the exercise of its discre-

tion, require disclosure of

relevant privileged informa-

tion. See United States v.

Berrigan, 482 F.2d at 181.

But even then the court can

-18-

minimize the risk to the

government by holding the

proceedings in camera and

issuing appropriate pro-

tective orders." Fed. R,

Crim. P. 16(e),

The petitioner had shown such a

"colorable basis" for the trial court to

require the production of the requested

internal government files.

Chief Justice Burger in United States

v. Nixon, 418 U.S. 683, 713, 94 S.Ct. 3090,

3110, 41 L.Ed. 2a 1039, 1066 (1974) in

granting discovery in that case, rested

his decision upon “the fundamental demands

of due process of law in the fair adminis-

tration of criminal justice."

"United States v. Nixon made

clear that even a presumptively

valid claim of Presidential

privilege must be considered

in light of our historic com-

mitment to the rule of law

administered in accordance

with an adversary system of

criminal justice. That case

concluded that:

'The need to develop all

relevant facts in the adver-

Sary system is both fundamen-

tal and comprehensive. The

-19-

ends of criminal justice would

be defeated if judgments were

to be founded on a partial or

speculative presentation of

the facts. The very integrity

of the judicial system and pub-

lic confidence in the system

dependon full disclosure of

all the facts, within the

framework of the rules of evi-

dence. To ensure that justice

is done, it is imperative to

the function of the courts

that compulsory process be

available for the production

of evidence needed either by

the prosecution or by the de-

fence.' (Id. at 709, 94 S.Ct.

at 3108, 41 L.Ed, 2d at 1064).

United States v. Nixon applied

and reiterated long established

principles when it concluded

that 'the right to the pro-

duction of all evidence at a

criminal trial .. . has con-

stitutional dimensions.' (id.

at 711, 94 S.Ct. at 3109, 41

L.Ed.2d at 1066), and that

‘the allowance of the privi-

lege to withhold evidence that

is demonstrably relevant in

a criminal trial would cut

deeply into the guarantee of

due process of law and gravely

impair the basic function of

the courts.' {Tas Oe Fis,»

94 S.Ct, at 3110, 41 L.Ed.2d

at 1066) (United States v.'

Cammisano, supra, 413 F.Supp.

at 892-93.)" United States v.

Cammisano, 546 F.2d 238, 240-

241, (8th Cir. 1976).

=-20@=

The requests in the second category

made by the petitioner Solvino were very

similar to those that were produced and

granted in the Cammisano case.

For all of the foregoing reasons, it

is therefore respectfully urged that this

Court vacate the determination made by the

trial court and order the United States

to comply with the discovery sought by

petitioner Solvino,.

=21<

CONCLUSION

WHEREFORE, petitioner respectfully

prays that a writ of certiorari be granted.

Respectfully submitted,

a S* Cou

ALFR C. DE COTIIS, ESQ.

Attorney for Petitioner,

VITTORIO SOLVINO

570 Broad Street

Newark, New Jersey 07102

APPENDIX

a22e«

Ree

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO. 78-2062

UNITED STATES OF AMERICA

VITTORIO SOLVINO,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

Crim. No. 78-00121 .

Submitted Under Third Circuit Rule 12(6)

January 16, 1979

Before: ADAMS and WEIS, Circuit Judges, and

WEINER, District Judge*

JUDGMENT ORDER

After consideration’ of all contentions raised by

appellant, namely, that (1) the trial court erred in not

ordering an evidentiary hearing to enable the defendant to

prove that he was a victim of discriminatory prosecution;

and (2) the trial court erred in not granting the defend-

ant's requests for the production of documents, it is

ADJUDGED AND ORDERED that the judgment of the

district court be and is hereby affirmed.

BY THE COURT,

(a ars

ETA Judge

ATTEST:

2” ¥] é

ad e/e/

Thomas F. Quinn, Clerk

DATED: January 19, 1979

* Hon. Charles P. Weiner, United States District Judge for

the Eastern District of Pennsylvania, sitting by

designation.

1@

Pmecs =

Gnited States Court of Appeals

FOR THE THIRD CIRCUIT

No. __78-2062

UNITED STATES OF AMERICA,

ve

VITTORIO SOLVINO,

Appellant

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Jucge. ALDISERT, GIEBOUS, ADAMS, ROSENN,

HUNTER, 7G H, HIGGINBOTHAN , Circuit Judges

and WEINER*

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 active service not having

voted for rehearing by the court in banc, the petition for rehearing is denied.

Dated: February 26, 1979 Circuit Judge

* Hon. Charles R. Weiner, United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.

Aq

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