Reply Brief — Merlino v. United States

in the

Supreme Court

of the

United States

OCTOBER TERM, 1979

NO. 79-654

FRANK J. MERLINO,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

REPLY TO GOVERNMENT’S BRIEF IN

OPPOSITION TO THE GRANTING OF

CERTIORARI

Richard M. Gale

924 Biscayne Building

19 West Flagler Street

Miami, Florida 33130

Attorney for Petitioner

TABLE OF CONTENTS

Page

ARGUMENT

1. Gross Improper Use of the Grand Jury .... 2

2. Suppression of the Jencks Material ....... 7

3. ‘Suppression of Brady Material ........... 10

4. Intracircuit Conflict -................0000. 12

eure yy cc sececcccessccevscces: 15

TABLE OF CASES

Commissioner v. Estate of Bosch,

RI IN i

Dickinson v. Petroleum Conversion Corp.,

Pe A I ok bck bo uke ossced bcc

Hampton v. United States,

425 U.S. 484, 48 L.Ed.2d 113,

Pes SN in

John Hancock Ins. Co. v. Bartels,

SIE Ee ene ee oe

Maggio v. Zeitz,

OE MR cs caper edbccncidesasecs

Mesarosh v. United States,

352 U.S. 1, 77S.Ct. 1, 1 L.Ed.2d 1 (1956) ......

Scarborough v. United States,

POTN estab oooh os hs ok dia decd ce

United States ex rel. Robinson v. Johnston,

O20 U.0. COD, OB Ld. 1732 .. o.oo occ ccccccece,

United States v. Hammond,

598 F.2d 1008 (5th Cir. 1979) ..................

TABLE OF CASES (Continued)

Page

United States v. Russell,

411 U.S. 423, 36 L.Ed.2d 366,

hs MINT Sh ck wawet Cidr'ks fhe) vik ibe vcsecs 11

Wisniewski v. United States,

PEE ain natchigesnse civsasascdes 13

ili

in the

Supreme Court

of the

United States

OCTOBER TERM, 1979

NO. 79-654

FRANK J. MERLINO,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

REPLY TO GOVERNMENT’S BRIEF IN

OPPOSITION TO THE GRANTING OF

CERTIORARI

ARGUMENT

Petitioner will refrain from repeating any matter set

forth in his petition for writ of certiorari and his

supplemental brief to petition for writ of certiorari.

Petitioner’s reply brief will contain material addressed

to the arguments first raised in the government’s

opposition brief.

Gross Improper Use of the Grand Jury

1. The government concedes that it does not

condone the use of compulsory process in order to

question a witness about his conversations with defense

counsel in a pending case (Gov't Br. 9, 11, 12).

Notwithstanding, the government states that there is no

suggestion here that the grand jury inquiry was

undertaken to ascertain the defense strategy in the

present case.

Petitioner will not repeat his argument contained in

the questions presented in his petition as to the blatant

misuse of a post-indictment grand jury to discover

defense stratagem and to prepare for trial.

_ The boldness of the prosecutor in denying the

government’s misuse of the post-indictment grand jury

for discovery purposes is clearly seen in the following

proceedings at the hearing of June 13, 1977:

“THE COURT: Did you not inquire of a

witness [under Grand Jury subpoena] whether

or not he had inquired of Mr. Masin [defense

counsel] and what the nature of the

conversation was?

“MR. PAVE: That is a matter of record.

“THE COURT: That was not discovery?

“MR. PAVE: That was not discovery in that I

did not get anything back. I can certainly talk

to a police officer witness whether it be

subpoena or derivative.

“THE COURT: About his conversations with

defense counsel in a case presently pending?

‘MR. PAVE: I think if the witness chooses

not to answer he can.” (2 SR 17, 18).!

It is almost pathetic that a member of the Solicitor

General’s staff can state to this Court that eliciting

answers from a grand jury witness as to what the witness

discussed with defense counsel does not result in

ascertaining defense strategy (Gov’t. Br. 9).

The Solicitor General has traveled a long road in a

descending path since a case like Mesarosh v. United

States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956) where

the Solicitor General candidly conceded that its chief

witness had perjured himself in. other cases.

Petitioner has accused the prosecutor with making

false representations to the trial court that the post-

indictment grand jury was not used for any discovery

and that no Brady material existed. Petitioner has used

exceptionally strong but appropriate language that

justice has been perverted by the prosecutor’s misuse of

the grand jury and “‘lied to cover up this misconduct”’.

The Solicitor General of the United States never even

replied to these serious charges. Instead, the Solicitor

'Reference to the second supplement to the record-on-appeal

will be by the use of the symbol “2 SR”.

General attempted to avoid the charges and confuse this

Court by stating the following in a footnote:

“Petitioner also argues (Pet. 8) that there was

prosecutorial misconduct in what he labels as a

misrepresentation by the government as to the

content of certain tapes of conversations

between Cacy and others. However, as the

magistrate, the district court, and the court of

appeals found (Pet.App. A-4 to A-5), the

prosecutor had relied on representations made

by others and did not intentionally

misrepresent the contents of these tapes. In

any event, those portions that contained

conversations referring to petitioner were

turned over to petitioner in advance of trial,

and there was therefore no prejudice to

petitioner.” (Gov’t Br. 11)

This footnote concerning the Magistrate’s finding

that the prosecutor relied on patently false statements

that there was no information favorable to the petitioner

concerning certain in camera material but that the

prosecutor did not himself thwart the process of the

Court was made by the Magistrate on April 15, 1977, at

an evidentiary hearing (SR 115).?

The magistrate’s finding on June 13, 1977, that the

prosecutor made “repeated representations to the Court

that have been false in this case...” refers not to the

"Reference to the first supplement to the record-on-appeal will

be by the use of the symbol “SR”.

prosecutor’s reliance on others but refers to the false

representations knowingly made by the prosecutor (2 SR

21).

This finding of the Magistrate that the prosecutor

lied to the trial court was based on the prosecutor’s

misrepresentations concerning matters of which he had

personal knowledge. During a hearing before the District

Judge on January 28, 1977, it was revealed that the

government had subpoenaed many of the same persons

that had been subpoenaed by the defendant to appear

before a Federal grand jury on the morning of January

28, 1977 (R 149, 150).° On the same day the prosecutor

deliberately misrepresented to the District Judge and

employed deceptive tactics concerning the government’s

purpose in using the (post-indictment) grand jury and

the information gained by the government from the

witness’ testimony.

The misrepresentations are as follows:

1. The prosecutor told the District Judge that the

grand jury was not used for any discovery (R 155-156).

2. The grand jury was called to determine whether

there was any wrongdoing in the police officers’ handling

of the case and whether there was any further Brady

material that should be furnished to defense counsel (R

155).

Both the Magistrate and the District Judge found

that the government improperly used the grand jury to

3Reference to the record-on-appeal will be by the use of the

symbol “R”’.

discover testimony of witnesses subpoenaed by the

defendant and Brady material was revealed which

should have been furnished to the defendant (R 284,

294-296). The District Judge found that the grand jury

was improperly used to prepare an indictment for trial

(T 284). Both the District Judge and the Magistrate

found that there was material in the transcripts of the

grand jury containing Brady material that should have

been furnished to the defendant (R 284, 294-296).

Quite simply, this Court must exercise its

supervisory powers to indicate to all Federal prosecutors

that the criminal justice system will not tolerate

deliberate misrepresentations to a District Judge or to a

United States Magistrate.‘

This Court should accept jurisdiction in order to set

minimum standards for the conduct of Federal

prosecutors. These minimum standards should include,

inter alia, that deliberate false representations to a trial

court judge on a material matter will result in the grant

of a new trial or the dismissal of an indictment

depending on the flagrancy of the prosecutorial perfidy.

This Court must set a minimum standard for

federal prosecutors which prohibits use of a post-

indictment grand jury to subpoena witnesses to prepare

the government’s case for trial.

‘It is perplexing to understand from all of the foregoing how the

trial judge could make the statement half-way through the trial

that the government had tried the case in good faith and that the

government did not knowingly and intentionally deprive the

defendant of any of his rights (T 656, 657, 662, 663).

Although our system of law may be the best in

civilized society, it has its inherent defects for it is

ministered through men. The frailties of men are

reflected so clearly in this case which frailties resulted in

the abuses perpetrated by the prosecutor that only this

Court can correct.

Prosecutorial misconduct is so commonplace in

regard to the oft-repeated suppression of Brady, Giglio

and Jencks materials that it will continue unabated

unless this Court exercises its role to supervise Federal

courts. Thus minimum standards must be set to require

prosecutors to comply with the well-established rules

relating to the production of Brady, Giglio and Jencks

material.

Accordingly, the writ should be granted.

Suppression of the Jencks Material

2. As to the government’s failure to make Agent

Fernandez’ grand jury testimony available to the

defense at trial as required by the Jencks Act, the

government states it does not condone such carelessness

of the prosecution (Gov’t Br. 11). The government

concludes, however, that the petitioner was not

prejudiced by not having access to Fernandez’

testimony at the time of trial. According to the Solicitor

General there was no prejudice for the following reason:

‘Petitioner, who was also furnished with a copy

of the transcript (ibid), likewise has not

pointed to any inconsistency between

Fernandez’s trial testimony and the grand jury

testimony that he might have been able to

exploit had the latter been available to him at

trial. In the absence of any colorable showing of

potential prejudice, petitioner is not entitled to

relief.” (Gov’t Br. 6).

To the contrary there is a substantial inconsistency

between the grand jury testimony of Fernandez and the

latter’s trial testimony. Notwithstanding the Fifth

Circuit’s finding that a comparison of Agent Fernandez’

testimony at trial arid his grand jury testimony reveal no

‘* ‘substantial inconsistency, contradiction or

variation’ ”’ in the testimony given on the two occasions,

the Fifth Circuit panel at oral argument indicated

differently. For Judge Thornberry noted that the grand

jury testimony of Fernandez was more incriminating

than the testimony of Fernandez before the jury.®

Adverting to Fernandez’ grand jury testimony, he

stated:

“‘We again met at Lum’s and he [Merlino] had

placed half a pound of cocaine wrapped in

newspaper behind a Dempsey Dumpster and

that was about it.”” (Grand Jury Testimony of

4/1/76; pp. 4, 5). (Emphasis added).

5Inasmuch as Fernandez’ testimony was apparently

unimpeachable during the trial, the oportunity to show that

Fernandez substantially colored his testimony before the grand jury

(to obtain an indictment) would have had a significant impact on

the jurors who deliberated for seven hours as will be shown, infra.

On the other hand, in regard to the critical issue of

who placed the cocaine behind the Dempsey Dumpster,

Fernandez at trial stated:

““ ,.. he then told me—motioned over his

shoulder and asked me if I saw a green garbage

can.

“I looked and there was a big square Dempsey

Dumpster. I said ‘Yeah, the Dempsey

Dumpster’. |

“He replied, ‘Yeah, Yeah’, and then he

told—he said ‘it’s behind the Dempsey

Dumpster, in the newspaper.”

(T 608)

Neither Fernandez nor any agent saw Merlino place

any cocaine behind the Dempsey Dumpster (T 608, 739-

743).

Without citing the pages at which the trial judge

commended the excellence of Mr. Masin, petitioner’s

trial counsel, in his cross-examination of Cacy, it is

patently evident that Mr. Masin would have been able

to effectively impeach Fernandez by asking him whether

he had told the grand jurors that Merlino had placed

one-half pound of cocaine behind the Dempsey

Dumpster.

6Reference to the transcript of the trial proceedings will be by

the use of the symbol “‘T’’.

Masin could have shown this grand jury statement

to be a boldface misrepresentation by Fernandez.’

Further, had the grand jury transcript been

produced during trial when ordered by the trial judge,

defense counsel could have seriously questioned

Fernandez’ ability of recall, as the latter testified at the

beginning of his cross-examination that he did not even

remember appearing before the Federal grand jury (T

617). Fernandez’ faulty memory could have been

properly capitalized upon for he testified further that

even with a subpoena to appear before the grand jury, he

could not remember appearing before the grand jury (T

617).

Suppression of Brady Material

3. The government contends that no actual

prejudice occurred as a result of the prosecutor’s failure

to furnish a statement of a conversation between

Fernandez and the petitioner clearly containing Brady

material indicating that the petitioner did not want to

talk about cocaine (Gov’t Br. 6, 7). The government

contends that no actual prejudice resulted and the

Court of Appeals (Fifth Circuit) agrees in this

contention. Id. at page 7.

Petitioner would respond that the blatant

suppression of the Brady material denied him a fair

opportunity to prepare an entrapment defense. During

"Defense counsel could have inquired of Agent Fernandez

whether the misrepresentations before the grand jury that he

(Merlino) placed the cocaine behind the dumpster was more likely

to achieve the result of obtaining an indictment.

10

cross-examination of the case agent, Fernandez it was

elicited by chance that he had made a certain report (T

642-644). Thereupon, a two-page report by Fernandez

was examined by the District Judge. Upon examination

of the report he declared it to be Brady material. The

first page of this report was found by the District Judge

to be helpful to the defense where special agent

Fernandez attempted to get defendant into a narcotics

deal and the defendant indicated that he was not

interested (T 647).

Obviously, this evidence that the defendant desired

not to be involved in a drug deal would constitute

evidence supporting the defense of entrapment.

The defense of entrapment is still viable in the laws

of the United States and is considered a complete

defense when properly asserted. Hampton v. United

States, 425 U.S. 484, 48 L.Ed.2d 113, 96 S.Ct. 1646

(1976); United States v. Russell, 411 U.S. 423, 36

L.Ed.2d 366, 93 S.Ct. 1637.

It is submitted that the government knowingly and

wilfully withheld this exculpatory evidence or was

grossly negligent as evidenced by the prosecutor’s

inability to explain why the report was not provided to

defense counsel (T 651, 652).

From a review of all the evidence in the case, the

specific information in the report as well as the

overwhelming amount of governmental misconduct, it

can be seen.

1) That the report was clearly Brady material.

11

2) Had it been timely provided under the standing

discovery order, a serious and well-founded entrapment

defense could have been prepared and,

3) By withholding the information, the

government denied the petitioner the opportunity to

consider and prepare such a defense.

Clearly, the suppressed Brady material constituted

a crucial, critical and highly significant piece of

evidence which was directly material to the petitioner’s

guilt or innocence. As such, this act alone by the

government, coming without explanation, has a serious

bearing on the fundamental fairness of the trial.

Thus, it is apparent that the misconduct of the

government resulted in prejudice to the petitioner,

denying him Due Process of Law under the Fifth

Amendment and the right to effective assistance of

counsel under the Sixth Amendment.

Intracircuit Conflict

4, Concerning the intracircuit conflict between

the case sub judice and United States v. Hammond, 598

F.2d 1008 (5th Cir. 1979), and the decision on petition

for rehearing in United States v. Hammond, not as yet

reported,® the issues involved in the intracircuit conflict

are clearly set forth in the petition and supplemental

brief. Petitioner responds to the government argument

that an intracircuit conflict is not ordinarily the basis for

*The opinion on petition for rehearing is contained in the

supplemental appendix in the supplemental brief to petition for

writ of certiorari.

12

review by this Court, Wisniewski v. United States, 353

U.S. 901 (1957).

The alleged intracircuit conflict was of sufficient

importance that the Fifth Circuit through its Clerk

notified the Clerk of this Court of the Fifth Circuit’s

opinion on rehearing in the Hammond case.°

This Court has taken jurisdiction when the intracir-

cuit conflict relates to a recurring and important issue or

is accompanied by “widespread conflict among the cir-

cuits,” Commissioner v. Estate of Bosch, 387 U.S. 456,

457, it may become one of the factors inducing the Court

to grant certiorari. See, e.g., John Hancock Ins. Co. v.

Bartels, 308 U.S. 180, 181 (certiorari granted because of

intracircuit conflict and the importance of the ques-

tion); Dickinson v. Petroleum Conversion Corp., 338

U.S. 507, 508 (certiorari granted “‘because of this in-

tracircuit conflict’); Maggio v. Zeitz, 333 U.S. 56, 59-60

(certiorari granted because of differing views within a

circuit that was most frequently confronted with dif-

ficult bankruptcy problems); Scarborough v. United

States, 431 U.S. 563, 567, n. 4 (certiorari granted

because of “split among the Circuits,” one Circuit being

noted as having an intracircuit conflict).

A remand for an en banc hearing may also be ap-

propriate in dealing with an intracircuit conflict. After

granting a second petition for rehearing of an order

denying certiorari, this Court remanded a criminal case

to the Ninth Circuit with leave to apply for an en banc

hearing before that court “[i]n view of the conflict of

The contents of the Fifth Circuit’s letter are set forth in the

supplemental brief at page 2.

13

views which has arisen among the judges of the Ninth

Circuit with respect to the decision in this case,”’ and in

view of a recent Supreme Court decision in another case.

United States ex rel. Robinson v. Johnston, 316 U.S.

649, 86 L.Ed. 1732.

14

CONCLUSION

This Court should issue a writ of certiorari to review

the judgment and opinion of the Fifth Circuit or, in the

alternative, remand the case for an en banc hearing to

compel the Fifth Circuit te comply with Rule 35 of the

Federal Rules of Appellate Procedure in order that the

Circuit maintain uniformity of its decisions.

Respectfully submitted,

Richard M. Gale

924 Biscayne Building

19 West Flagler Street

Miami, Florida 33130

/s/ RICHARD M. GALE

Attorney for Petitioner

15