Petition — Marrale v. United States

Office-Supreme Court, U.S.

FILED

82-1323 FED 6 1045

ALEXANDER L S. Vas.

No.: CLERK

IN THE

Supreme Court of the United States

October Term, 1982

ALPHONSE MARRALE,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JAY GOLDBERG

Attorney for Petitioner

230 Park Avenue

New York, New York 10169

(212) 370-1000

Questions Presented

I. Did the prosecution summation, when uncor-

rected by any cautionary instruction, deprive petitioner

of his Fifth Amendment right to a fair trial?

II. Did the Trial Court err in admitting petitioner’s

post arrest statements taken following his in home,

non exigent, warrantless arrest.

ii

Table of Contents

Statement of the ooo

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The Government’s Case Generally......

The Government’s Case Against

Alphonse Marrale in Particular ........

The Defense Case and Government

C%%m.: “““

The Prosecution Summation

C. The Second Circuit Opinion .............

Reasons for Granting the Writ .................

I- The Comments in Summation by the

Prosecutor Offended Principles of Fairness

Properly Enunciated by Other Courts. The

Opinion of the Second Circuit Improperly

Ignores These Principles. Petitioner Was

Deprived of a Fair’Trial. ...................

The Derogatory Comments About

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The Prosecutor Further Injected Her Own

Credibility Into This Case..............

The Prosecutor Asserted As Facts That

Which Had Not Been Proved and Thus

Misstated the Evidence ................

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12

13

15

21

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iii

II- The Post Arrest Statements Were Involun-

tarily Made. The Finding of Waiver by the

Second Circuit Improperly Misinterprets

That Principle. But of Utmost Import-

ance, the Court Ignored Payton v. New

York, 445 U.S. 573 (1980) When It Ruled

That With a Showing of Probable Cause

an Arrest Warrant Is Not Needed in a Non

Exigent Entry Into a Home to Arrest the

Appendix A -- Opinion of United States Court

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iv

Table of Authorities

Cases:

Henry v. Mississippi,

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Johnson v. Zerbst,

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Payne v. Arkansas,

e viv ck cde Pacccer carne

Payton v. New York,

445 U.S. 573 (1980)))) 13, 24, 25, 27

Taylor v. Alabama,

50 U.S.L.W. 4783 (June 23, 1982) ...........

United States v. Antonelli Fireworks Co.,

155 F.2d 631 (2d Cir.), cert. denied,

Bik RO RAD CEs Ay Bin maa RD Ob RE

United States v. Flaherty,

668 F.2d 566 (Ist Cir. 1981).................

United States v. Modica,

D i ! —˙ Ry

United States v. Rios,

611 F.2d 1335 (10th Cir. 1979999

United States v. Robinson,

460 P20 1164 (D.C. % 0 vse ceases

United States Constitution:

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Statutes:

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No.:

IN THE

Supreme Court of the United States

October Term, 1982

ALPHONSE MARRALE,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, Alphonse Marrale, respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the Second Circuit entered in this proceeding on

December 13, 1982.

Opinion Below

The opinion of the Second Circuit, rendered on

December 13, 1982 is unreported but reproduced in the

Appendix, infra at p. Ia.

2

Jurisdiction

On December 13, 1982 the Second Circuit entered its

judgment affirming the judgment of conviction entered

by the District Court, EDNY, following a jury verdict

finding petitioner guilty of conspiracy to steal, conceal

and possess monies stolen from a foreign shipment in

violation of 18 U.S.C. 371.

Petitioner was sentenced on May 14, 1982 to the

custody of the Attorney General for an indeterminate

term as a young adult offender pursuant to 18 U.S.C.

5010(b). He is serving that sentence.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

Constitutional Amendment Involved

United States Constitution, Fifth Amendment:

No person shall...be deprived of life, liberty or

property, without due process of law;

Statement of the Case

A. The Indictment

This was a five count indictment naming Frank

Marrale, his nineteen year old son, petitioner Alphonse

Marrale, and Vincent Gambale. Gambale’s trial was

severed by reason of his counsel’s trial engagement.

Alphonse Marrale was named in Count One (con-

spiracy to steal, conceal and possess stolen monies),

Count Three (aiding and abetting the other defendants

to possess the stolen monies in violation of 18 U.S.C.

659 and 2), and Count Five (aiding and abetting the

other defendants to receive, possess and conceal the said

monies in violation of 18 U.S.C. 2113(c) and (2)).

B. The Trial

The Court’s View of the Case

At the conclusion of the government’s case, the

Court stated: ö

There is a serious question as to whether or

not the government has presented sufficient facts

for Alphonse Marrale's case to go any further.

(A 112)(719).!

But, I will be very frank with you, this evi-

dence is kind of skimp,. (A 113)(723).

It is very, very skimpy as to Abphonse

Marrale, I will tell you that. It’s very skimpy.

Listen, I’m going to let you (addressing the prose-

cutor) work. You can have all night, you know.

(A 113)(723).

Following argument the next morning, the Court

stated:

I might put it to you this way. Even though

I’ve sustained it to the conspiracy it’s not a strong

case on that and the jury could find either way.

(A 114)(751).

The prosecutor agreed. (A 114)(751).

The result was that as to Counts Three and Five

(charging, aiding and abetting) a directed judgment of

acquittal was granted. (A 115)(758).

The Government’s Case Generally

Frank Marrale? and Steven Mui were employed as

couriers for Armored Express Company with the re-

sponsibility of making pickups of monies from various

1 References to “A” are to the Joint Appendix in the Court of

Appeals. Those numbers without a prefix are to pages of the trial

transcript.

2 Hereinafter, Alphonse Marrale will be referred to as petitioner

so as not to confuse him with his father.

“we

4

locations including department stores and banks (143).

The Company at times picked up currency at New York

banks and made deliveries to Kennedy Airport for ship-

ment to foreign banks (143).

Marrale had joined Armored Express .n March or

April, 1981, after leaving a small trucking business,

Marrale Trucking, which he had operated with his two

brothers and son, the petitioner.

Some time in the Spring of 1981 Frank Marrale

became Mui’s supervisor at Armored Express with the

former acting as driver of the Armored truck and the

latter acting as a messenger.

Mui noticed that though airline pilots were

obliged to check the seal numbers on bags containing

currency delivered to them by Armored Express for

foreign shipment against the shipping documents, this

in practice was not done (150). Some time in or about

May, 1981, Frank Marrale and Mui started to discuss

the possibility of switching bogus bags and seals for real

bags and seals which contained the currency consigned

to be shipped abroad (152-154). Marraie said that he had

three people who could arrange to make up substitute

bags and seals. It would be Mui’s function then to

switch the bags (156). The plan was to wait to steal a

shipment of over one million dollars which would then

be split with Marrale’s two unnamed partners after the

expenses of laundering (A 65-6)(160-1). The time and

particular shipment was to be decided upon when the

appropriate occasion arose. ~

On November 10, 1981, Mui and Marrale were doing

evening work picking up money from stores and busi-

nesses in the theatre district of Manhattan (183). At

9:00 p.m. that evening Mui learned that there was a late

Korean and Japan Airlines shipment scheduled to be

delivered to JFK by 1:00 a.m., November 11, 1981.

Marrale had access to the vault area. He told Mui that

he was going to call the “third guy” to have him bring

over a car in which there would be five filled bogus bags

with bogus seals. The car would be parked on West

Street across from Armored Express.

5

At 11:50 p.m. on November 10, 1981, Marrale, driv-

ing the Armored truck, pulled it next to a Lincoln auto-

mobile and then exited the truck, opened the trunk of the

Lincoln automobile and took out five bags which he

placed into the Armored truck behind the seat of the

driver. Marrale and Mui then proceeded in the truck to

an entrance of Armored Express (206). Mui secured the

necessary paperwork for a $9 million shipment - $7

million to Japan Airlines, $2 million to Korean Airlines.

He took the five bags containing $2 million consigned to

Korean Airlines and put them in front of the driver’s

seat (207). In the front of the truck, Mui switched

paper tags from the five real bags of money and

attached them to the bogus bags (210). He then placed

the real bags behind the driver’s seat and covered them.

The bogus bags, now bearing bona fide Korean Airlines

tags, were placed at his feet in the front of the truck

between himself and the driver who was Marrale. Two

other guards loaded nineteen (19) bags of money to be

delivered to Japan Airlines. The truck then headed for

Kennedy Airport with Marrale driving. Arriving at

Kennedy Airport, Mui and another unsuspecting guard

unloaded the five bogus bags and brought them to the

pilot of the Korean Airlines plane. The pilot signed

the invoice furnished by Mui without checking to see

whether the identification numbers of the seals on the

five bags reflected on the paperwork matched the iden-

tification numbers of the seals on the five bags.

The Armored truck then proceeded to Japan Air-

lines where nine of the nineteen bags were delivered.

Since there was a discrepancy in the airway bill, the

other ten bags of money consigned to Japan Airlines

had to be returned to Armored Express. The truck then

left Kennedy Airport and returned to Armored Express

with Marrale driving.

When the truck arrived buck at Armored Express,

Marrale gave Mui car keys to Marrale’s own Cougar

automobile and told him to unload the five bags of

money then still hidden behind the driver’s seat in the

Armored truck and to place them into the trunk of

Marrale’s car. Meanwhile, Mui noticed a 6 ft. tall, 190

Ibs. individual entering the Lincoln automobile, from

which the five bogus bags had been earlier taken by

Marrale. Marrale then drove Mui home to Chinatown.

During the course of the drive Mui was able to see the

Lincoln automobile following and made note of the

license tag number “906 GUZ”’ (247).

Marrale stated that there were five people involved

in the theft of the $2 million. Marrale and Mui were to

receive $400,000 each, a third partner operating the

Lincoln and two of his friends who assisted in setting up

the theft were to receive $400,000 and the remainder of

the money would go to the person doing the laundering.

(A 72-3)(249-250).

Several days later Armored Express officials asked

Mui to take a lie detector test (259). Prior to taking the

test, Mui took pills which he first said he obtained

from Frank Marrale (260). Feeling that he had failed the

lie detector test and concerned about his role in the

robbery, he spoke with an attorney, was referred to the

U.S. Attorney’s Office and thereupon agreed to coop-

erate on December 4, 1981 in return for transactional

immunity (269).

Between December 4 to 9, 1981, Mui made a number

of consensual tape recordings with Frank Marrale and

one recording on December 9 with Alphonse Marrale,

the petitioner.

On December 6, 1981, at a Shopping Mall in

Brooklyn, Frank Marrale delivered a little less than

$300,000 to Mui.

Between December 7 and December 9, Marrale and

Mui had additional conversations in which Mui pressed

to obtain the remaining $100,000 that was his share of

the proceeds. Marrale promised, on December 9, to have

the monies delivered to Mui “by the end of the week.”

7

The Government’s Case Against Alphonse

Marrale In Particular

(1) Before the money was stolen, Frank Marrale

told Mui that Alphonse “would know the business he’s

dealing with - with third parties, in case anything go

wrong with him” (A 68)(163).

However, Mui testified:

Q. Did he tell you whether or not his own son

knew about his plan to steal the money?

A. No. (A 68)(163).

(2) In the tape of December 9, 1981 at 9:05 p.m.

when Mui pressed Marrale for the remainder of his

share, Marrale stated that Mui was not to worry: “I

gotta make my son meet you...I’ll make my son bring it

to you...” Again, Marrale stated: “I'll probably make

my son deliver it cause they ain’t watching him...”

Finally: maybe I’ll send him up to the restaurant.”

The record is clear, however, that the petitioner

never delivered money to Mui and was never seen carry-

ing any package or even meeting with the co-conspirator

Gambale. To be sure, FBI Agent Gaither testified that

there never had been any surveillance of petitioner

either before or after his arrest, obviously, so little

interest was there in him though the money remained

unrecovered (A 101-10)(708-717). There was no proof

Frank Marrale spoke to petitioner after his call. To be

sure, he was arrested shortly thereafter that right (A 98-

100)(677-679).

(3) Mui, prior to taking the lie detector test, had

den told by Frank Marrale to pick up a pill from peti-

tioner (A 69-70)(423-424). The pill was contained in a

plastic envelope and there waa no indication whatsoever

that petitioner was aware of the contents of the package

which his father had given him to pass on to Mui or the

purpose for which it would be used (444-51).

(4) On December 9, 1981, a few minutes after 4:00

p.m., Alphonse Marrale called Mui and told him:

8

We gonna lay low for a while, all right.

They're following my father. Don't worry about

it...yeah, do not worry about it.. He said they're

following him.

I'll know what the rest of the story is.

(5) Early the morning of December 10, 1981, agents

of the FBI entered the Marrale residence without a war-

rant and found therein petitioner, his mother, his 13

year old sister and 11 year old brother. He was told that

he was under arrest for conspiracy in the robbery of $2

million from Armored Express (567). Petitioner was

handcuffed behind his back. His mother and sister were

crying. The mother was concerned about what had

happened to her husband who, unknown to her, had

been arrested some eight (8) hours before (A 74-78)(573-

577). Petitioner was taken to an FBI vehicle for the ride

back to the FBI (, eens office. Despite petitioner's com-

plaint that the handcuffs were too tight, no one did any-

thing to relieve the pressure (A 75)(574). He did not act

cocky or arrogant to anyone (A 75-86)(574-585). Agent

Trahon testified petitioner “seemed to be confused”

(A 71)(486).

Agent Flagg started to question petitioner in the

car. Agent Flagg admittedly lied to petitioner (A 88-91)

(607-610). The lie was enough to put fear in any reason-

able man. That is, Agent Flagg told the petitioner that

he was in trouble because Marrale had told the FBI that

his son, petitioner, was involved in the conspiracy. The

reason the Agent did this was admittedly to trick him

(A 90)(609). As a result, petitioner denied that he knew

or that he had called Mui. Later that morning when

the December 9th tape between petitioner and Mui was

played, petitioner admitted that he made the call be-

cause his father had come to the garage where petitioner

worked around 3:00 p.m. on December 9 and told him to

make the telephone call at 4:00 p.m. (A 92-4, 95-6)(646-

648)(674-675).

The government's transcript, not in evidence, reflects “I said”.

The tape we submit reflects “He said.”

9

The Defense Case and Government Rebuttal

Petitioner testified on his own behalf. Nineteen

years of age when arrested, he had no prior criminal

record. He lived his entire life in a small two bedroom

apartment with his mother, father, Frank Marrale, 13

year old sister and 11 year old brother, sleeping on a

couch, not a bed, in the living-room against the common

wall to his parents’ bedroom. He left school when he

was 15'4, with grades in his last year as follows: English

40, Social Studies 50, Math 55, Science 0 and Foreign

Language 0 (A 116-20)(761-765). After leaving school he

worked as a helper at a business known as Marrale

Trucking which was owned by his father and two

uncles. He earned $75.00 a week. After his father left

Marrale Trucking to work for Armored Express, the

uncles formed a new company at che same location

known as A & R Trucking and made him President

(A 121)(766). His duties were nonetheless that of a

mechanic. He earned, as of the time of trial, $130.00 a

week.

It was in November, 1981, either by radio or in the

newspapers that petitioner first learned about a $2

million theft. He did not know it involved his father

until he heard his father complaining to his mother that

the father was being wrongly blamed for the lost ship-

ment (A 124-25)(769-70). During November and Decem-

ber, 1981, he frequently heard his mother and father

talking about the fact that the authorities were wrongly

accusing his father. He felt reassured when he heard his

father say to his mother that he did not steal any money

and in fact had taken a lie detector test and passed it.‘

(A 126-28)(771-73).

On December 9 at about 3:00 o'clock, petitioner was

under a car repairing it at the A & R garage when his

father came in and told him to make a call. After repeat-

ing the message that the father wanted conveyed,

‘ The father had in fact taken a lie detector test and passed it.

10

and finding that petitioner did not have it down ac-

, the father wrote it out on a piece of paper. The

father had said to tell Mui that they were following him,

but not to worry, that as a result he and Mui were going

to have to lay low for awhile (A 128-31)(773-776).

Petitioner, from the point that his father instructed him

to make this call, became concerned about hie father’s

situation and asked whether everything was all right.

The father responded that everything was in fact all

right and that he would talk to his son later that night

when he came home (A 128-30)(773-775). Petitioner

called Mui at 4:06 p.m. and conveyed the message.

The father never came home, for that night he was

arrested.

Another incident involved petitioner. In Novem-

ber, Frank Marrale came to the premises of A & R Truck-

ing, gave his son an envelope and told him to give it to

Mui when he came by (A 131-33)(776-778). Neither on

the occasion when the petitioner called Mui, or gave him

the envelope was this as a result of any mere request

made by the father. Rather, the.e were the son’s re-

sponses to directions from a parent.

In the early morning hours of December 10, agents

of the FBI, without a warrant and with no showing of

exigent circumstances, entered the apartment where

petitioner resided, took him off the couch where he had

been sleeping in his underwear, told him to get

dressed, then pushed his head against the wall and

cuffed him. All the while, the mother was screaming

and the children were crying. In the Bureau car, Agent

Flagg asked petitioner “where did you put the money?”

He became “scared” and thereafter lied about whether

he had called Mui (A 137)(782). Petitioner, upon arriv-

ing at Bureau Headquarters in Queens, was lied to by

FBI Agent Nicols, who falsely told him “your father told

us everything and how do you feel now that your father

gave you up” (A 138)(783). Petitioner claimed his

innocence but lied as to whether he had called Mui. The

false exculpatory statement of the petitioner as to

11

whether he had called Mui was explained by reason of

his fright and the fact that he did not want to get him-

self into any trouble. As earlier noted, he had in fact

become concerned the afternoon of December 9, when

his father told him to call Mui and convey a message,

but had been reassured by the father that everything

was all right and that the father would talk to him later

that night.

Petitioner had never been asked by his father to

deliver any monies to anyone (A 141)(786). To be sure,

as earlier noted, so unimportant was the petitioner that

the FBI, concerned as it was and still is about the re-

covery of the monies, never undertook at any time to

surveil petitioner (A 104-10)(711-717).

The cross examination of the petitioner was directed

at showing that he was smarter than his school grades

made him appear.“ After all, the government claimed,

he was the President of a trucking company, he had

enrolled as a welding student at Apex Technical School

where he passed an English Comprehension test and

what was even more compelling, he dated for a time a

college girl (792-793). The problem with this was that

the trucking company had two or three trucks, petitioner

was a mechanic-in-fact and only the nominee President.

As far as the English comprehension test was concerned,

it was admitted in evidence as petitioner’s Exhibit A

(866). The test results proved nothing, that is, petitioner

was able to solve the following problems: 6 + 2:= what; 5-3

= what; how many minutes are in an hour and a hali and

so on (A 143-44)(868-869).

The prosecution offered a witness in its rebuttal

case, Edward J. Farrell, who was a welding teacher at

Apex Technical Institute. The thrust of his testimony

was that the petitioner was a good welding student. The

relevance of this was marginal to say the least (870-901).

Following this witness, both sides rested and awaited

final summations and charge.

In summation, the prosecutor falsely stated that the low grades

were the result of his never attending class (787).

12

The Prosecution Summation

In a no holds barred, overly zealous summation, the

prosecution acted in such a way as to deprive petitioner

of a fair trial in these following respects.

(1) The prosecutor repeatedly made derogatory

comments about defense counsel (A 160, 163, 169, 185,

187-89, 192, 207-08)(958, 961, 967, 983, 985, 986, 987, 990,

1074-75);

(2) She made improper comments about the defense

itself (A 157-58, 218)(955-56, 1085);

(3) She injected her own personal beliefs and thus

credibility, repeatedly using the first person (A 200)

(997). For examples of this, see: (A 154, 156-58, 162, 167-

68, 217)(952, 954, 955-56, 960, 965, 966, 1084). Use of the

first person exceeded forty occasions;

(4) She vouched for the truthfulness of Mui, the

linchpin witness (A 154, 186)(952, 1984);

(5) She asserted as facts that which had not been

proved (A 194, 219)(992, 1086);

(6) She made material misstatements of facts

(A 151) 949).

In this admittedly “skimpy” case, the prosecutor’s

improper statements caused substantial prejudice to the

petitioner’s right to a fair trial. Despite objections,

the Trial Court did nothing to insulate petitioner from

this undue prejudice (A 196-201, 221-23)(994-998, 1088-

90).

C. The Second Circuit Opinion

On December 13, 1982 the Court affirmed the con-

viction, holding in part, that the prosecutor was justified

in commenting in a disparaging way about defense

counsel’s conduct by reason of the defense lawyer's

tactics. In addition, the prosecutor’s remarks were not

80 egregious as to fall into the category of impermissible

conduct.

13

In response to petitioner’s argument that under

Taylor u. Alabama, 50 U.S.L.W. 4783 (June 23, 1982) the

post arrest statements should have been suppressed,

as the product of an illegal warrantless non exigent

arrest in petitioner’s home, the Court ruled that the

argument had not been properly preserved and therefore

was waived. Of course, the trial was concluded well

before Taylor, cupra.

Critically important, the Court erroneously ruled,

ignoring Payton v. New York, 445 U.S. 573 (1980), that

“Since probable cause existed, no arrest warrant was

required” (16a). This clearly contravenes this Court’s

holding in *yton.

Reasons for Granting the Writ

I

The Comments in Summation by the Prosecutor

Offended Principles of Fairness Properly Enun-

ciated by Other Courts. The Opinion of the Second

Circuit Improperly Ignores These Principles.

Petitioner Was Deprived of a Fair Trial.

Just a few months prior to the trial of the instant

case, the Second Circuit itself recognized that:

A prosecutor's improper sammation results in

a denial of due process when the improper state-

ments cause substantial prejudice to the defend-

ant. See, e.g. United States v. Bivona, supra,

487 F. ad at 444; United States u. White, 486 F.2d

204, 205 (2d Cir. 1973), cert. denied, 415 U.S. 980

(1974); cf. United States uv. Morris, supra, 568 F.2d

at 402. Often, the existence of substantial preju-

dice turns upon the strength of the government’s

case: if proof of guilt is strony, then the preju-

dicial effect of the comments tends to be deemed

insubstantial; if proof of guilt is weak, then improp-

er statements ure more likely to result in reversal.

Compare United States v. Gallagher. supra, 576

F.2d at 1042-43 and United States v. Benter, 457

14

F.2d 1174, 1178 (2d Cir.), cert. denied, 409 U.S.

842 (1972) with Berger v. United States, supra,

295 U.S. at 88-89 and United States v. Burse,

supra 531 F.2d at 1155. More comprehensively,

however, determining the existence of substantial

prejudice involves three factors: the severity of

the misconduct; the measures adopted to cure the

misconduct; and the certainty of conviction ab-

sent the improper statements. See generally Vess,

Walking a Tightrope; A Survey of Limitations on

the Prosecutor’s Closing Argument. 64 J. Crim. L.

& Criminology 22, 54-55 (1973). United States v.

Modica (2d Cir. 1981).

As will be clearly shown, the misconduct was not

only severe, but this was a case of deliberate mis-

conduct.

Though specific and timely objections were made to

the misconduct of the prosecutor, the Trial Court took

absolutely no corrective action (A 196-201, 221-23) (994-

998, 1088-1090).

Insofar as weighing the factor of the strength or

weakness of the government’s case, it was conceded that

the Court’s view that the case was “skimpy” and “the

jury could find either way” was the correct one (A 112-

114)(719, 723, 751).

{t was close to ten years ago when the Second Circuit

wrote:

, unless the prosecutor heeds our recent warnings,

we may be left with no alternative but to reverse

convictions where the argument of the prosecu-

tion goes beyond what is permissible and fair.

But we fully expect that our criticism here...will

not fall on deaf ears.

U.S. v. Bivona, 487 F.2d 443 (2d Cir. 1972).

And, still in Modica the Second Circuit once again

reiterated its confidence that federal prosecutors would

15

take heed of the repeated warnings which have come

from frequent comments against improper summations.

However, in light of the frequency of such warnings,

extending over a considerable period of time, are not

the words of Judge Frank now, once and for all, particu-

larly appropriate? He stated:

The deprecatory words we use in our opinions

..are purely ceremonial. Government counsel,

employing such tactics, are the kind who, eager

to win victories, will gladly pay the small price

of a ritualistic verbal spanking. The practice

of this Court - recalling the bitter tear shed by the

Walrus as he ate the oysters - breeds a deplorably

cynical attitude towards the judiciary.

United States v. Antonelli Fireworks Co., 155 F.2d 631,

661 (2d Cir.) (Frank, J., dissenting), cert. denied 329 U.S.

742.

It is not a reversal we seek solely because of deter-

ence purposes; rather, our position is that the summa-

tion made the conviction itself invalid. By deliberate-

ly and substantially prejudicing petitioner’s constitu-

tional right to a fair trial, it interfered with the jury’s

ability to reach a just verdict. In short, in this terribly

thin case which prior to summations could have gone

either way, it was the strategy of the prosecutor to wrest

victory through a performance riddled with improper

tactics. Despite the repeated comments of the Second

Circuit it simply cannot bite the bullet and reverse,

however egregious the prosecutorial misconduct may be

in this area.

The Derogatory Comments About Trial Counsel

By a steady and repeated eeries of attacks upon the

defense attorney, the prosecutor injected her own credi-

bility into the case and diverted the attention of the jury

to the conduct and manner of defense counsel. Such a

tactic is contrary to para. 3-5.8 of the ABA Standards for

Criminal Justice cautioning that the prosecutor should

16

refrain from argument which would divert the jury from

its duty to decide the case on the evidence.

To set the stage, it was the position of the defense

(concurred in we might add by the report of the Proba-

tion Officer) that petitioner was of dull“ intelligence.

His grades supported this (A 116-18)(761-763); and

neither the fact that he at times dated a college girl,

was a good welding student or could successfully sub-

tract three from five on the Apex Technical School com-

prehension test validly contradicted this (A 143-44)(868-

869). So too, the fact that his uncles made him the

nominee President of a two truck trucking company

where he still nonetheless worked as a mechanic, in

no meaningful way contradicted the position taken by

the defense.®

It was the defense position that petitioner had

nothing to do with the plan to steal or conceal the

monies, that his involvement stemmed from an inten-

tion to carry out the directions of his father (to make

the call and give the message to Mui and to pass on to

Mui the envelope which his father had given him) not to

an intention to join the criminal conspiracy.

We pressed that this nineteen year old unemanci-

pated petitioner living at home all his life, without even

his own bed, with his only work since leaving school

before his sixteenth birthday at a family business was

not sufficiently shielded against the father’s commands

what with petitioner’s dull intelligence. The position

was an honest one and completely accurate. To this

valid position and to defense counsel, the prosecutor

turned her venom:

Now, Mr. Goldberg in the course of this case

painted a picture of Alphonse Marrale.

But is that the way Alphonse Marrale was

treated during the conspiracy?

At sentencing the Trial Judge indicated that despite what the

Probation Officer found the Court believed petitioner had manage

ment skills because as he testified, in the business he first took in the

receipts, then paid the bills and only then took his salary. To be

frank, the Court’s comments in this regard, respectfully, do not seem

to warrant serious comment.

17

Mr. Goldberg kept referring to him as this

boy. Stand up, sit down, stand up, sit down.

What is that? That is a tactic. That is Mr.

Goldberg’s style and don’t by fooled by it.

Don’t be fooled by it, ladies and gentlemen.

Don’t be fooled by the condescending way Mr.

Goldberg treated his client because that is just

Mr. Goldberg’s style.

He wants you to think his client is so stupid

he can’t tie his own shoelaces.

He wants you to think he can’t stand up, sit

down without being told, or think his way out of a

paper bag.

He wants you to think that his client was not

capable of doing arything except mindless follow-

ing of his father’s orders (A 160)(958).

Not as Mr. Goldberg portrayed Alphonse

Marrale, not a dupe with no ability to say no, no

ability to think, but as his father’s trusted partner.

(A 163)(961).

He said, I will make my son deliver the pills.

What point did Mr. Goldberg try to make, trying

to make the point that Frank Marrale was forcing

his son to do things (A 169)(967).

In reaching a final, the final conclusive

opinion, the determination about what Alphonse

Marrale knew, who he is, who he was, and that

is, what was he like in this courtroom? We know

how Mr. Goldberg treated him in this courtroom.

You saw him on the witness stand. You saw him

on direct examination (A 185)(983).

That ladies and gentlemen, is the Alphonse

Marrale of direct examination.

This is an Alphonse Marrale of Mr. Gold-

berg’s very skillful presentation. You may think,

poor boy. And Mr. Goldberg may argue that

Frank Marrale, his father, was unscrupulous

(A 187) 985).

18

Because is that Alphonse Marrale,’ the

Alphonse Marrale on direct examination, the

Alphonse Marrale of Mr. Goldberg's tactic; is that

Alphonse Marrale, is that Alphonse Marrale, the

Alphonse Marrale that Frank Marrale dealt with

during that conspiracy? (A 188)(986).

Welding, ladies and gentlemen — Mr. Gold-

berg tried to make welding sound like sweeping

the courtroom, requiring no more intelligence

than that.

I suggest, ladies and gentlemen, that that was

because Mr. Goldberg didn’t like the Alphonse

Marrale that Edward Farrell knew, that his

teacher knew (A 189)(987).

Is that the same — the same Alphonse

Marrale as sat up there on direct examination?

The same Alphonse Marrale that stood up and sat

down at Mr. Goldberg’s request? You decide.

And you learn something else. Something

very interesting about the relationship betweer

father and son. Now, Mr. Goldberg wants you to

believe that Alphonse Marrale was so dominated

by his father that he did whatever his father

asked, without questioning (A 190-91) 988-989).

That is interesting, ladies and gentlemen,

because — that is a very small point. What Mr.

Goldberg objects to is your drawing an inference

(A 207)(1074).

In this extremely close case the jury's attention was

directed to whether defense counsel had falsely “painted

a picture”, attempted by his “style” to cause the jury

purposely to “be fooled.” The jury was told that defense

counsel had concocted a false picture and it was coun-

sel’s “wants” to which the jury was directed. It was

counsel who “portrayed” petitioner as a dullard. The

The transcript reads Frank Marrale. Obviously, the prosecutor

either said Alphonse or meant him. Frank did not testify.

19

jury was told to remember the way his counsel treated

him in the courtroom, though there was not one refer-

ence by the Court or government counsel during the

trial phase of the case to anything in the record which

warranted such an attack. It was not so that petitioner

was dull; it was defense counsel’s “very skillful pre-

sentation.” In short, it was counsel’s style and his

wants, his likes and dislikes and his tactics and intent

that became important to the prosecutor in summation.

Here, where so much depended upon the issue of the

credibility of the petitioner the injection of the un-

warranted issue of defense counsel's credibility and

honesty were prejudicial error. (U.S. u. Rios, 611 F.2d,

1335 (10th Cir. 1979)).

The defense promptly brought this misconduct to

the attention of the Trial Judge (A 197-201)(995-998).

Though specifically directed to the errors in the prose-

cution summation, the Court did absolutely nothing.

Thus, it was no surprise that the prosecutor continued

down the same path in her rebuttal summation (A 222-

23\(1089-90), Once again, the Court remained passive.

The prosecutor’s opening summation obviously was not

in response to the summation of the defense. The Court

had an obligation to issue curative instructions at the

moment of impact.

In U.S. v. Flaherty, 668 F.2d 566, 598 (Ist Cir. 1981)

a whole series of prosecutorial improprieties survived

appeal by reason of prompt cautionary instructions.

The unjustified decision to inject into this close

case the honor of the defense attorney, a matter entirely

unrelated to the issue of guilt or innocence, was improper.

But much more, it interfered with the fact finding

process of the jury for it explained the defense itself as

the creation of counsel’s tactic, style and skillful presen-

tation. In short, the defense, it was conveyed, was

manufactured by the defense attorney. There is no

alternative to a reversal when in a close case a prose-

cutor deliberately embarks upon a path designed to

mislead a jury as to the appropriate issues before it for

resolution. While there at times may be an “unwill-

ingness to use reversals as a means of discipliring

this Court should grant the writ where

the error, as in the case at bar, threatened seriously to

deter the jury in a thin case.

The Second Circuit found the prosecutor’s summa-

tion justified by reason of the “tactics” and “histricnics”

of the defense attorney. Such an approach misses the

point that in a trial the issue is not whether a prosecutor

may meet claimed improper defense conduct with her

own improper conduct, whatever the effect on the fact

finding process. If, during trial, defense tactics are

viewed as improper, then at that point a Court should be

called upon to give curative instructions. This approach

is the proper one if the fact finding process is to remain

intact. To sanction the approach adopted in this case is

to rule that one bad defense tactic or behavior may be

met with a response in kind by a government attorney

while ignoring the essential end to be served by a jury

trial and whatever damage to a defendant’s right to a

fair trial.

The Prosecutor Improperly Characterized the

Defense

The injection of the prosecutor's credibility did not

end with a personal attack upon the defense attorney.

3 . defense of course according to her, was con-

ved:

Ladies and gentlemen, I submit that this is a

defense woven out of the thread of desperation

and thread that unravels before you because

Alphonse Marrale is wrong (A 157-58)(955-56).

He lied [to the FBI] because he hoped that he

could salvage that situation and when confronted

with the tape, what did he do? He backed up only

as much as he had to and said, oh, I did it. I did

it but I didn’t understand it. Exactly his defense

today. He lied, ladies and gentlemen. (A (1985).

21

As noted above, into this category of errors must be

placed much of thot which appears in the first category.

This ju so for the t rust of the prosecution summation

was that the defense itself was the creation of the

defense attorney who sought by his “style” and “tac-

ties“ to “fool” the jury.

The Prosecutor Further Injected Her Own

Credibility Into This Case

The prosecutor used the first person more than forty

times in a summation that was not very long. She

assured the jury: “I suggest that the evidence shows (a

fact) beyond any doubt” (A 155)(953). She told the jury:

J submit. the testimony of Mui. was uncontradicted

and unimpeached (A 154) 952). What made this so

egregious was the Court's charge that if the jury be-

lieved Mui’s testimony beyond a reasonable doubt it

could convict petitioner (A 305-06)(1179-80). This, of

course, was not so. Mui’s testimony did not go to the

critical issues of petitioner’s knowledge and intent. Mui

had absolutely nothing to offer to shed light on whether

petitioner knew his father was involved in the theft or

whether petitioner, when he acted, did so with the intent

of merely following his father’s orders or of joining an

ongoing conspiracy. The Court’s boilerplate charge in

this regard, wholly inappropriate to the case at bar

when combined with the prosecutor’s remarks, could

erroneously lead the jury to believe that once it believed

Mui it was sufficient to convict the petitioner (A 296)

(1170).

The summation wes studded with the pronoun “I”

(e.g. A 156-58, 162, 167-68, 21'7)(954, 955-56, 960, 965-66,

1084, as some examples of many others). The prosecutor

knew of appellate holdings warning of this and brushed

them aside as merely the fashion of the day (A 200)(997).

It hardly needs extended discussion to establish

that such conduct is proscribed. It is simply improper

for the prosecutor to inject her personal beliefs about

» 7

*

+

defense counsel and the conclusions to be drawn from

the evidence. The reason for this rule is that such

arguments bring into play the false issue of the credi-

bility of counsel in which the United States invariably

has the advantage. It was for this reason that the Trial

Judge suggested that defense counsel refrain in his

summation from injecting his credibility to meet that

by the prosecutor (A 201-02)(998-999). It has

been said that “credibility of counsel is a false issue

because it contravenes the truth seeking function of a

trial:...” U.S. b. Flaherty, 668 F.2d 566, 596 (Ist Cir.,

1981). In the case at bar there was not the occasional

use of rhetorical devices, but such constant use that

the substantial risk was posed that the jury was likely to

believe that the issue was whether the prosecutor was

truthful rather than if her evidence were sufficient. But

as the next point shows, if the prosecutor lacked evi-

dence on a point, she simply made it up during summa-

tion with manufactured dialogue

The Prosecutor Asserted As Facts That Which

Had Not Been Proved And Thus Misstated The

Evidence

In his charge the Trial Judge told the jury that the

prosecutor was not required to produce “All available

evidence...” (A 287)(1161). When such an instruction

which, admittedly properly states the law, is given a

prosecutor must be careful by her comments not to mis-

lead the jury into believing there is other evidence which

has not been produced. In the case at bar the prosecutor

was too clever to do that by outright specific deception.

However, her carefully chosen remarks with absolutely

no evidentiary basis had the proscribed effect.

To explain petitioner's false exculpatory state

ments:

But he discussed with his father the same

thing his father had discussed with Steven Mui,

how to protect yourself if you get caught. (A 194)

(992).

To explain why petitioner gave Mui the envelope

given to him by his father which contained the pills:

I suggest that the evidence — the evidence

supports your conclusion that what happened was

that Frank Marrale said to Alphonse Marrale

look, we have to take the polygraph, and we need

something to get us over the hurdle. This is very

important,

Now, I know you have been fooling around

with that stuff because I have been screaming

at you for six months about it, and I want you to

get some pills because I want you to get past that

polygraph test; that is why Frank Marrale didn’t

give them to Steven Mui directly (A 214)(1081).

Alphonse Marrale understood that. You

heard him on the tape say, “Got to lay low for

awhile. As long as everybody stays out of sight,

everybody keeps quiet, nobody can prove any-

thing“ (A 151)(949).

There was no such statement by petitioner.

To support the prosecution theory of a conspiracy:

Because the conversation between father and

son, the conversation when the father said to the

son, this is what I am going to do and I need your

help. Can you help me? And the son responded,

yes, I will help you. That’s where the loyalty was.

Yes, I will help you. We will change our lives

together. I’m — I’m an adult. I am responsible.

We will change our lives together. That conversa-

tion had takcn place long before. (Italics added).

(A 219)(1086).

Didn't Alphonse — didn’t Frank Marrale

say to his son, Alphonse: We have a chance, we

have a chance to dig out of this hole, will you

help me? Because I need someone I can trust. I

need someone I can rely on and give responsibility

and have those responsibilities fulfilled (A 163)

(961). Isn't that what happened? Didn't Frank

Marrale say to his son, would you like to help?

Isn’t that what he was doing? Getting the money,

getting the money for his father and for himself.

Count me in. I'll never have a chance like that in

his life.

Finally, ladies and gentlemen, don’t we see

who Alphonse Marrale is? This trusted partner

(A 188)(986).

Errors that might be overlooked must on the other

hand, be viewed as much more significant where the

proof is thin and the case close. It has been said that in

determining whether to reverse there exists an inverse

relationship between the degree of prejudice inherent in

the prosecutor’s summation and the strength of the

prosecution case.

In the case at bar, wherever one turns in the summa-

tion, the prosecutor injected her own credibility into the

case whether to portray defense counsel as low enough

to scheme up the defense or claiming that the defense

was the product of desperation or that Mui, the linchpin

witness, stood wholly uncontradicted and unimpeached,

or to present as conversations between father and son,

dialogue which the evidence did not support. True that

one is permitted to draw inferences from the evidence,

but the cumulative effect of the prosecutor’s improper

comments, taking her summation as a whole, was im-

properly to lead to what amounted to a series of mis-

statements of fact (A 154, 2170952, 1084).

The Post Arrest Statements Were Involuntarily

Made. The Finding of Waiver by the Second Cir-

cuit Improperly Misinterprets That Principle. But

of Utmost Importance, the Court Ignored

v. New York, 445 U.S. 573 (1980) When It Ruled

That With a Showing of Probable Cause an Arrest

Warrant Is Not Needed in a Non Exigent Entry

Into a Home to Arrest the Occupant.

Involuntary statements may not be used for any

purpose, See: Payne v. Arkansas, 356 U.S. 560, 567-8

(1958). ‘The test of voluntariness is whether the con-

duct of law enforcement officials was such as to over-

bear petitioner's will to resist id bring about state-

ments not freely self determined.

Prior to trial, petitioner moved to suppress the

out of court post custodial statements that he had not

seen or spoken with Mui. These admittedly were false.

The hearing on the motion immediately preceeded

the trial. The proof showed four armed agents entered

the Marrale family residence on December 10, 1981,

without a warrant, intent upon arresting petitioner. No

exigent circumstances were shown to justify dispensing

with the warrant requirement (Payton v. N. V., 445 U.S.

573 (1980)) (A 22)(H 18).

Upon entering the home, the agents found petitioner,

his 13 year old sister, 11 year old brother and mother.

Unknown to the family, Frank had been arrested six or

so hours earlier. Agent Flagg told petitioner that the

father wanted him to come pick him up and drive him

home. This was false (A 20)(H 9). Mrs. Marrale was

screaming (A 20-21)(H 9, 12). When petitioner went to

2 he was placed under arrest by Agent Trahon and

cuffed.

Agent Kinsley read him his rights, but did not tell

him what he was being arrested for (A 22-33, 35)(H 20-21,

27, 28, 33-38, 67). On the ride to Queens petitioner was

questioned and lied as earlier indicated (A )(H ). While

being questioned, he appeared sleepy (A 33, 36, 37)(H 44,

72, 106), but more importantly, according to Agent

Trahon, he appeared “confused” (A 87)(586). Agent

Flagg, in order to trick him, admittedly lied to him

(A 34)(H 47). He did not act cocky or arrogant (A 38-39)

(H 108, 109).

Though advised of his rights, can a defendant make

a considered judgment about the need for silence or the

need for an attorney if there is a studied attempt to

keep from him the nature of the charges for which he has

been arrested? We submit not. Further, such a “trick”

as would state to a son that his father has implicated

him in a crime is one designed to overbear his will to

exercise his right to remain silent. The situation be-

comes more egregious in light of petitioner’s dull (as

opined by the Probation Officer) intelligence, his groggi-

ness, sleepiness and general confusion as testified to by

Agent Trahon. All the while the interrogation occurred

as petitioner sat between two agents with his hands

cuffed behind his back. The interrogation itself was the

product of an unlawful entry into the family home

earlier that morning with a scene coercive in nature,

what with the mother hysterical, the sister crying and

Agents refusing to disclose the whereabouts of the

father.

At FBI, Queens, the petitioner was questioned by

Agent Nichols. She too falsely told him his father had

already implicated him (783). Petitioner lied to Agent

Nichols as to whether he had seen or spoken with Mui.

(The prosecutor may raise that he lied as to whether he

knew Vincent Gambale. The FBI 302 reflects he said he

did not know the man’s full name but when shown a

picture of Gambale he stated he knew the man pictured

as a friend of his father.)

Clearly, there are two sets of statements, one to

Agent Flagg, the other to Agent Nichols. The state-

ment to Flagg could not have been made with knowl-

edge of their possible consequences, since the Agents

carefully avoided advising him of the nature of the

charge U.S. v. Robinson, 459 F.2d 1164 (D.C. 1972). It

cannot be then said that a statement made in such

ignorance is “the offspring of reasoned choice” Id.

It is clear that agents may resort to tricks in the

interrogation process. However, if the trick is one likely

to compel a response by stripping a defendant of his

ability to make a rational free will choice, then such

a tactic must be viewed as going too far. This is exactly

what occurred when Agents Flagg and Nichols lied to

petitioner stating that his own father had implicated

him in the crimes.

27

Psychological coercion we suggest, may be any

method or technique (i.e. a trick) so as to instill in a

defendant a sense of fear, insecurity or other feeling

which induces him to respond to questions posed by law

enforcement officers. The tricks resorted to by the

Agents were enough to taint the voluntariness of the

statements.

At oral argument counsel recalled the recently de-

cided Supreme Court case, which we submit is of critical

importance: Taylor v. Alabama, decided June 23, 1982.

As in the case at bar, the arrest of Taylor was illegal.

In our case, it was illegal because it was made in the

home following a non-exigent entry without a war-

rant to arrest. The statements obtained through

custodial interrogation after an illegal arrest should be

excluded unless intervening events break the causal

connection between the arrest and the statements so that

the statements are sufficiently an act of free will to purge

the primary taint. In the case at bar, there was no

showing or consideration of whether the primary taint

had been purged. In short, the statements of Marrale

were themselves the fruits of the illegal arrest.

The Second Circuit ruled that the Trial Court’s

finding that petitioner had knowingly, intelligently

and voluntarily waived his Fifth and Sixth Amendment

rights were not clearly erroneous. As to the matter of

Payton v. New York, 445 U.S. 573 (1980) the Court ruled

first, that it had not been preserved, though it had been

raised below. Secondly, the Court erroneously ruled that

in light of there being probable cause for the arrest “no

arrest warrant was required” (16a). This holding clearly

contradicts this Court’s ruling in Payton. This was a

nonconsensual, non exigent entry into a private home for

purposes of arresting petitioner. How then can the

Second Circuit ruling that with probable cause alone

such an arrest was proper? So too, the Court erred in

dismissing our reference to Taylor vu. Alabama,

apparently adopting a waiver approach which is at odds

with traditional motions of waiver. See: Johnson

v. Zerbst, 304 U.S. 458, 464-465 (1938); Henry v. Missis-

sippi, 379 U.S. 443 (1964).

The Payton issue was expressly raised during the

suppression hearing and the burden fell then upon the

government to justify the warrantless entry. This was

not done. Further, there was no showing that the pri-

mary taint arising out of the illegal arrest, had been

purged when the statements were obtained.

Conclusion

For these reasons, this petition should be granted.

Respectfully submitted,

JAY GOLDBERG

Attorney for Petitioner

230 Park Avenue

New York, New York 10069

(212) 370-1000

February 8, 1983