Petition — Marrale v. United States

Supreme Court, US.

MT ED

82-1336 FEB 9 865

No.: n

IN THE

Supreme Court of the United States

October Term, 1982

FRANK 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

RONALD P. FISCHETTI

1290 Avenue of the Americas

New York, New York 10104

(212) 586-3732

Dated: February 9, 1983

i

Question Presented

Whether Congress intended to authorize cumulative

penalties under 18 U.S.C. §§659 and 2113(b) for theft

from a foreign shipment and theft from a bank, respec-

tively, in the context of a single criminal transaction?

: ii

Table of Contents

Statutory Provisions Involved .................

Statement of the Caasee .

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

The Decision Below Raises an Important

Issue of Federal Law Which Has Not Been

and Should Be Resolved By This Court ...

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Appendix A — Opinion of the United States

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iii

Table of Authorities

Cases:

Bell v. United States,

„ Th PR ROOD Be cece detbecveegsbwevsens 9

Blockburger v. United States,

SA SU en 9, 10

Ladner v. United States,

SO Ie SO e 9

Prince v. United States

Bee Ra EE en 10, 11

United States v. Beck,

511 F.2d 997 (6th Cir.), cert. denied

,, ... 10, 12

United States v. Canty,

469 F. 2d 114 (D.C. Cir. 1972) 10, 11, 12

United State. v. DiGeronimo,

598 F.2d 746 (2d Cir.), cert. denied,

Re ũ ũ 9

United States v. Leek,

665 F. 2d 383 (D.C. Cir. 198177) 10, 11

Statutes:

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h een i, 4, 6, 9, 10

, bdons denconeaaeaeese 12

ee. i, 2, 6, 9, 10, 11, 12

, eben 2

Other Authorities

IN THE

Supreme Court of the United States

October Term, 1982

FRANK 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 Frank Marrale respectfuily prays

that a writ of certiorar' issue to review the judgment

of the United States Court of Appeals for the Second

Circuit entered in this case.

Opinion Below

The Opinion of the Second Circuit (Appendix A,

infra, pp. la-19a) has not yet been officially

reported.

2

Jurisdiction

The judgment of the Second Circuit was entered on

December 13, 1982. This petition for certiorari was

filed within 60 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

Statutory Provisions Involved

United States Code, Title 18:

§2113. Bank robbery and incidental crimes

(a) Whoever, by force and violence, or by

intimidation, takes, or attempts to take, from the

person or presence of another any property or

money or any other thing of value belonging to, or

in the care, custody, control, management, or

possession of, any bank, credit union, or any

savings and loan association; or

Whoever enters or attempts to enter any bank,

credit union, or any savings and loan association,

or any building used in whole or in part as a bank,

credit union, or as a savings and loan association,

with intent to commit in such bank, credit union,

or in such savings and loan association, or build-

ing, or part thereof, so used, any felony affecting

such bank, credit union, or such savings and loan

association and in violation of any statute of the

United States, or any larceny -

Shall be fined not more than $5,000 or im-

prisoned not more than twenty years, or both.

(b) Whoever takes and carries away, with

intent to steal or purloin, any property or money

or any other thing of value exceeding $100 belong-

ing to, or in the care, custody, control, manage-

ment, or possession of any bank, credit union, or

any savings and loan association, shall be fined

not more than $5,000 or sets not more than

ten years, or both; or

Whoever takes and carries away, with intent

to steal or purloin, any property or money or any

other thing of value not exceeding $100 belonging

to, or in the care, custody, control, management,

or possession of any bank, credit union, or any

savings and loan association, shall be fined not

more than $1,000 or imprisoned not more than one

year, or both.

(c) Whoever receives, possesses, conceals,

stores, barters, sells, or disposes of, any property

or money or other thing of value knowing the

same to have been taken from a bank, credit

union, or a savings and loan association, in vio-

lation of subsection (b) of this section shall be

subject to the punishment provided by said sub-

section (b) for the taker.

(d) Whoever, in committing, or in attempting

to commit, any offense defined in subsections (a)

and (b) of this section, assaults any person, or

puts in jeopardy the life of any person by the use

of a dangerous weapon or device, shall be fined

not more than $10,000 or imprisoned not more

than twenty-five years, or both.

(e) Whoever, in committing any offense de-

fined in this section, or in avoiding or attempting

to avoid apprehension for the commission of such

offense, or in freeing himself or attempting to

free himself from arrest or confinement for such

offense, kills any person, or forces any person to

accompany him without the consent of such per-

son, shall be imprisoned not less than ten years,

or punished by death if the verdict of the jury

shall so direct.

(f) As used in this section the term “benk”

means any member bank of the Federal Reserve

System, and any bank, banking association, trust

company, savings bank, or other banking institu-

tion organized or operating under the laws of the

4

United States, and any bank the deposits of which

are insured by the Federal Deposit Insurance

Corporation.

(g) As used in this section the term “savings

and loan association” means any Federal savings

and loan association and any “insured institu-

tion” as defined in section 401 of the National

Housing Act, as amended, and any “Federal

credit union” as defined in section 2 of the Federal

Credit Union Act.

(h) As used in this section the term “credit

union” means any Federal credit union and any

State-chartered credit union the accounts of which

are insured by the Administrator of the National

Credit Union Administration.

United States Code, Title 18:

§659. Interstate or foreign shipments by carrier;

State prosecutions

Whoever embezzles, steals, or unlawfully

takes, carries away, or conceals, or by fraud or

deception obtains from any pipeline system, rail-

road car, wagon, motortruck, or other vehicle, or

from any tank or storage facility, station, station

house, platform or depot or from any steamboat,

vessel, or wharf, or from any aircraft, air term’.

nal, airport, aircraft terminal or air navigation

facility with intent to convert to his own use any

goods or chattels moving as or which are a part

of or which constitute an interstate or foreign

shipment of freight, express, or other property; or

Whoever buys or receives or has in his posses-

sion any such goods or chattels, knowing the

same to have been embezzled or stolen; or

Whoever embezzles, steals, or unlawfully

takes, carries away, or by fraud or deception

obtains with intent to convert to his own use any

baggage which shall have come iiito the posses-

5

sion of any common carrier for transportation in

interstate or foreign commerce or breaks into,

steals, takes, carries away, or conceals any of the

contents of such baggages, or buys, receives, or

has in his possession any such baggage or any

article therefrom of whatever nature, knowing

the same to have been embezzled or stolen; or

Whoever embezzles, steals, or unlawfully

takes by any fraudulent device, scheme, or game,

from any railroad car, bus, vehicle, steamboat,

vessel, or aircraft operated by any common carrier

moving in interstate or foreign commerce or from

any passenger thereon any money, baggage,

goods, or chattels, or whoever buys, receives, or

has in his possession any such money, baggage,

goods, or chattels, knowing the same to have been

embezzled or stolen

Shall in each case be fined not more than

$5,000 or imprisoned not more than ten years, or

both; but if the amount or value of such money,

baggage, goods or chattels does not exceed $100,

he shall be fined not more than $1,000 or impri-

soned not more than one year, or both...

Statement of the Case

The indictment in this case was based upon the

theft of a $2 million shipment of currency which was en

route from the Republic National Bank in New York to

Seoul, Korea. According to Steven Mui, the govern-

ment’s principal witness, the money was stolen from an

armored car transporting it to John F. Kennedy Airport,

by substituting bogus bags filled with newspaper for the

real money.

Petitioner Frank Marrale was named along with

Alphonse Marrale, his 19 year old son, and Vincent

Gambale in a five count indictment stemming from this

theft.“ Frank Marrale and Alphonse Marrale were

charged with conspiring to steal and possess money

stolen from a foreign shipment in violation of 18 U.S.C.

§371 (Count One). Petitioner was charged with stealing

money from a foreign shipment in violation of 18 U.S..

§§659 and 2 (Count Two), and with larceny from a bank

whose deposits were insured by the Federal Deposit

Insurance Corporation (“FDIC”) in violation of 18

U.S.C. §§2113(b) and 2 (Count Four).? Petitioner

Marrale was convicted upon all counts. He was sen-

tenced to serve consecutive prison terms totalling 25

years and to pay cumulative fines of $20,000.

On appeal, petitioner Marrale challenged the im-

position of consecutive sentences on Counts Two and

Four, contending that Congress did not intend to auth-

orize cumulative penalties under §659 and §2113(b) for

theft from a foreign shipment and theft from a bank,

respectively, in the context of a single criminal trans-

action such as that which occurred here.

In 1981, petitioner Marrale and Mui were employed

by Armored Express, Inc., a firm in the business of

transporting shipments of money for commercial com-

panies and banks. Petitioner Marrale worked as a

driver. According to Mui, who testified for the govern-

ment, their duties included making pickups of money

from theaters and department stores. In addition, they

sometimes worked on overtime runs taking large

amounts of currency from New York banks to Kennedy

Airport, for shipment to foreign banks.

1 Gambale’s trial wan severed.

* Alphonse Marrale was charged with aiding and abetting a

theft from a foreign shipment, in violation of 18 U.S.C. §§659 and 2

(Count Three), and with aiding and abetting a larceny from a bank

whose deposits were insured by FDIC, in violation of 18 U.S.C.

§$§2113(b) and 2 (Count Five). At the close of the government’s case,

Counts Three and Five against Alphonse Marrale were dismissed

pursuant to Fed. R. Crim. P. 29. The jury found Alphonse Marrale

guilty of conspiracy.

7

Mui and petitioner Marrale worked together, with

Marrale as driver and Mui as messenger routinely

making overtime runs to Japan Airlines and Korean

Airlines from May of 1981. They personally delivered

bags of money and paperwork for the shipment to the

pilot of the aircraft and obtained a receipt. Eventually

Mui observed that the pilots regularly failed to compare

the serial numbers on the bags of currency themselves

against the accompanying paperwork; instead the pilot

would merely sign for the shipment. Mui testified that

he and petitioner Marrale began to discuss stealing a

shipment by substituting phony bags for the real bags

of money. According to Mui, petitioner Marrale told him

that he knew three individuals who would prepare the

phony bags and seals; Mui was supposed to switch the

bags and put the destination tags, prepared by the bank,

on the bogus bags.

Mui further testified that petitioner Marrale told

him the money would be sent out of the country after the

theft to be laundered. Mui said that prior to the theft,

petitioner Marrale told him that Marrale’s son Alphonse

„would know the business he’s dealing with” with third

parties, in case anything went wrong.

On November 10, 1981, petitioner Marrale and Mui

were entrusted with delivery of the shipment to Korean

Airlines which was the subject matter of the instant

indictment. During this overtime run, they were to

deliver $2 million to Korean Airlines and $7 million to

Japan Airlines. Mui said that petitioner Marrale in-

formed him that they were going to take the Korean

shipment that night. According to Mui, petitioner

Marrale stated that he would telephone his third partner

and instruct him to bring the phony money to a location

near Armored Express.

After they had completed their early evening run,

they returned to Armored Express, according to Mui,

and stopped beside a Lincoln Continental; petitioner

Marrale removed five bags from its trunk and placed

them behind the driver's seat of the a mored truck. Mui

—

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=.

said that they then drove the truck to an entrance of

Armored Express, and that he and petitioner Marrale

went into the vault area to pick up the two shipments

and necessary paperwork. Mui took five bags, contain-

ing the Korean Airlines shipment and placed them in

front of the driver’s seat.

Mui then removed the destination tags from the

authentic bags of money, attached them to the bogus

bags, placed the real bags behind the driver’s seat and

covered them. The bogus bags, now bearing legitimate

destination tags, were placed at Mui’s feet, in front

of the truck. Two other Armored Express employees

loaded the Japan Airlines shipment—which consisted of

19 bags of currency—into the rear of the truck. The four

men then proceeded to Kennedy Airport in the truck,

with petitioner Marrale driving.

Upon their arrival at the airport, Mui stated that he

and another individual delivered the five bogus bags to

the pilot of the Korean Airlines flight. The pilot signed

for the shipment without checking the serial numbers on

the seals of the bags against the corresponding paper-

work. Mui and this individual met petitioner Marrale

and the other guard at Japan Airlines. After this de-

livery they returned to Armored Express. According to

Mui, upon their return petitioner Marrale gave him a set

of keys to Marrale’s Cougar automobile and told him to

unload the bags of money hidden behind the driver’s

seat of the armored truck, and to put them in the trunk

of the Cougar. According to Mui, he and petitioner

Marrale were each to receive $400,000 from the theft.

Another $400,000 was to be split by Marrale’s three

partners; the balance was to cover the expenses of laun-

dering the stolen money.

The government introduced a number of consensual

tape recordings between Mui and petitioner Marrale

from December 4th to December 9th, 1981. Mui testified

that petitioner Marrale delivered approximately

$300,000 to him on December 6th, at a shopping mall in

Brooklyn. In conversations between December 7th and

December 9th, Mui pressed petitioner Marrale for the

$100,000 balance owed him. On December 9th, peti-

tioner Marrale promised that Mui would have the money

by the end of that week.

Reason for Granting the Writ

The Decision Below Raises an Important Issue

of Federal Law Which Has Not Been and Should

Be Resolved By This Court.

On appeal, petitioner Marrale argued that although

the counts in issue were not multiplicitous, under the

test enunciated in Blockburger v. United States, 284

U.S. 299 (1932), that test was inapplicable. Petitioner

contended that the Federal Bank Robbery Act, 18 U.S.C.

§2113, is a comprehensive scheme that provides the

exclusive remedy for conduct falling fully within its

coverage, and that an independent provision such as 18

U.S.C. §659 may not be invoked to fragment what was

in fact a single criminal transaction. In its opinion, the

Second Circuit Court of Appeals failed to examine the

exact parameters of the Bank Robbery Act. This exam-

' ination was critical to a proper determination of peti-

tioner’s claim.

It is well settled that Congress’ intent to provide

multiple convictions and punishments for the same acts

must be clear and unambiguous. United States v. Di

Geronimo, 598 F.2d 746 (2d Cir.), cert. denied, 444 U.S.

886 (1979); Bell v. United States, 349 U.S. 81 (1955).

What is more, absent the requisite clear legislative

directive doubt will be resolved against fragmenting

a single wansaction into multiple offenses. Ladner v.

United States, 358 U.S. 169 (1958).

Where two statutory provisions require different

elements of proof, it is essential to determine whether

Congress intended the provisions to subject a defendant

to multiple punishments when applied to a single act or

transaction. There can be no dispute in the case at bar

that the same conduct constituted the basis for both

10

offenses. Under the unique facts of the instant case, the

theft from the bank and the theft from the interstate

shipment were literally coterminous in time and place.

It was merely the fact that the stolen currency had

originated from a federally insured bank on the one

hand and was destined for foreign commerce on the

other that distinguished the two offenses. The differ-

ence in these jurisdictional underpinnings—a federally

insured bank under §2113 and an interstate or foreign

shipment under §659—should not legitimize the frag-

mentation of what was undeniably a single criminal

transaction.

The law is clear that the Federal Bank Robbery Act,

18 U.S.C. 2113, provides the exclusive remedy for con-

duct falling fully within its coverage. Numerous courts

have so held. United States v. Canty, 469 F.2d 114

(D.C, Cir. 1972’ United States b. Beck, 511 F.2d 997

(6th Cir.), cert. denied 423 U.S. 836 (1975); United States

v. Leek, 665 F. 2d 383 (D.C, Cir. 1981). Petitioner Marrale

should have been prosecuted entirely within the bank

robbery statutory scheme; by venturing outside §2113,

the government was able impermissibly to pyramid a

maximum sentence of ten years imprisonment into a

twenty year penalty.

Prince v. United States, 352 U.S. 322 (1957), one

of the seminal cases on illegal pyramiding, provides a

detailed analysis of the Federal Bank Robbery Act. In

Prince, this Court held that a bank robber cannot be

convicted of both robbery and entry of a bank with

intent to commit a robbery if the robbery is consum-

mated, This Court concluded that Congress made entry

itself illegal in order to reach cuiprite who fell short

of their purpose rather than to fragment the crime for

the sake of enhanced punishment.

Predictably, in Prince, the government invoked

Blockburger and its progeny. This Court rejected this

view. Indeed, this Court stated:

None of these [cases] is particularly helpful to

us because we are dealing with a unique statute

11

of limited purposo and an inconclusive legislative

history. 352 U.S. at 325.

Finding the legislative history of §2113 to be ambiguous,

this Court thereupon applied the traditional rule of

lenity and precluded the imposition of cumulative

punishments.

The result in Prince stemmed primarily from the

Court's recognition of the comprehensive nature of the

scheme embodied in §2113. The statute carefully sub-

divides the offense of bank robbery into a continuum of

discrete steps ranging from attempted entry and entry

with intent to rob; to robbery and attempted robbery by

force, violence, or intimidation; to robbery utilizing a

dangerous weapon; to robbery resulting in death or kid-

napping. The statute correspondingly provides for

penalties in increasing degrees of severity in relation

to the degree of aggravation of the theft. Unable to

ascertain the clear and unambiguous legislative intent

which would have validated multiple punishments from

the literal language of the statute itself or its sparse

legislative history, this Court reversed the convictions.

Although in Prince both offenses fell within the

scope of §2113, other courts have not deemed this

factor to be determinative. For example, in United

States v. Canty, supra, the defendant was convicted of

bank robbery by force and violence under §2113(d) and

of assault with a dangerous weapon under a catchall

provision of the District of Columbia Code. By indicting

in this manner, the prosecution was able to obtain a

sentence longer than the maximum sentence authorized

under the highest tier of the Federal Bank Robbery Act.

Endorsing the doctrine of Prince, that §2113 was to be

all-comprehensive in the bank robbery context, the

Canty court vacated the defendant's conviction for

assault in violation of the local criminal code.

More than a decade later, the District of Columbia

Court of Appeals addressed a virtually identical ques-

tion in United States uv. Leek, supra, and emphatically

12

reaffirmed the Canty holding. This decision is espe-

cially significant because after a detailed consideration

of intervening developments in this Court, the court

aga that the Canty rationale had fully retained

its ty.

United States b. Beck, supra, represents another

variation upon the same theme. In that case, the court

considered the exclusivity of the Federal Bank Robbery

Act in reference to another federal statute, the Hobbs

Act, 18 U.S.C, §1951. The government had charged the

defendant in Beck with bank larceny under §2113(b)

and with extortion under the Hobbs Act, thereby obtain-

ing a sentence longer than the maximum sentence

allowable under §2113 alone. The court explicitly

noted that the Hobbs Act conviction could not stand

because precisely the same facts which permitted judi-

cial notice of the interstate nature of a national bank's

operations provided the basis for the convictions under

both statutes. This reasoning applies equally to the case

at bar.

For the reasons stated, this case raises a substantial

federal question regarding the scope of the Federal Bank

Robbery Act that should be reviewed by this Court on

certiorari.

Conclusion

A writ of certiorari should issue to review the judg-

ment and opinion of the Second Circuit.

Respectfully submitted,

Ronald P. Fischetti

1290 Avenue of the Americas

New York, New York 10104

Counsel for Petitioner

Dated: February 9, 1983