Petition — Marino v. United States

wo. Ga- 6310

P©°CEIVED

MAR 1 4.1983

Ore owe int LLERK

SUPREME COURT US

THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

LUCIEN JOSEPH PROVOST,

Petitioner,

8

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

of Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

THOMAS F.

Court

CLAUSS, JR.

40 Wall Street, 24th Fl.

New York,

New York 10005

(212) 943-0700

QUESTION PRESENTED FOR REVIEW

Whether the five-year statute of limitations

for filing an indictment or instituting an information for

a non-capital offense begins to run on the day the alleged

offense is completed or on the following day.

PARTIES TO THE PROCEEDING IN THE COURT OF APPEALS

Plaintiff:

United States of America

Defendants:

Angelo Michael Marino

Anthony Joseph Bottiglio

Thomas Andrew Guerro

Lucien Joseph Provost

ii

TABLE OF CONTENTS

Question Presented for Review „ „„ „% „% „„ „%% % „„ „% „% „ „ „„ „„6„%

Parties to the Proceeding in

the Court of Appeals eee ee eee eee % „ „ „ „ „ „ „ „ „ „ „ „ „ „6 „%

Table of Author it 11ĩ˙eſ-eerrn

OPINIONS de1 ohr

Grounds for Jurisdiction of this court

Text of Statute Involved ..cecccesseceeseieveeeees

Statement Of the cao ae

Reasons for Granting the ritt

Appendix

Decision of the District Court „„ „% „% „ „% „„ „ „ „„ „6 „

Judgment of the Court of Appeals

Denying Petition for Reher ing

vii

Al

A6

TABLE OF AUTHORITIES

Cases:

Barnet v. Willingham Loan t Trust co.,

282 U.S. 43 (1931) „ „ „% „ „% „% „% „% „% „ „ „ „ „ „416 „%

Burnett v. New York Central R. Co.

U.S. ‘4 (

Ex Parte Black, 147 F. 832 (E.D. Wis. 1906),

a a, 160 P. 431 (7th Cir. 1908) 2„„„ „ „„ „„ „46

Grunewald v. United States, 353 U.S. 391 (195)

Toussie v. United States, 397 U.S. 112 (1969) ...

United States v. Borelli, 336 F. 20 376

r. „ „„ „„ „% „ „% „„ „% „% „ „% „% % % „ „% „% „% „ „ „ „ „ „ „ „ „46

United States v. Brasco, 516 F. 2d 816 (2d Cir.)

(per curiam), cert. denied, 423

U. 8. 860 (1975) „ „ „

United States v. Sarantos, 445 F.2d

877 (2d Cir. 1972) W W „„ „„ „„ „„ e

United states v. Stein, 456 F. 2d 844 (2d Cir.),

cert. denied, 408 U.S. 922 (1971ĩ77

Statutes:

18 U.S.C. 8 3568 W FW „

28 9.8. e. 8 3282 *eveeeeeeeeene eee eeeeeaeeneeee

Rules:

Fed. R. Crim. P. 45 „ „% „% „% „ „ „„ „ „ „ „ „ „ „ „6 „.

Other Authorities:

Anonymous, Sir Gawain and the Green Knight,

(Brian Stone trans. Penguin Classics

ed. 1974) cc Cee, ea ee

iv

Pag e

OPINIONS BELOW

The opinion of the Court of Appeals for the

Second Circuit is reported at 694 F.2d 898 and is not

reproduced in the Appendix annexed hereto. No opinion

was rendered by the District Court for the Eastern District

of New York. Portions of the trial transcript relevant to

the District Court's decision may be found in the Appendix

at pp. Al-AS. The judgment of the Court of Appeals for

the Second Circuit denying petition for rehearing may be

found in the Appendix at A6.

rie

N

GROUNDS FOR JURISDICTION OF THIS COURT

The judgment of the United States Court of

Appeals for the Second Circuit was entered on November 24,

1982. A timely petition for rehearing was denied on

January 11, 1983, and this petition for certiorari was

filed within 60 days of that date. Jurisdiction is

invoked under 28 U.S.C. § 1254(1).

vi

TEXT OF STATUTE INVOLVED

United States Code, Title 286:

§ 3283 Offenses not capital

Except as otherwise expressly provided by

law, no person shall be prosecuted, tried, or

punished for any offense, not capital, unless

the indictment is found or the information

is instituted within five years next after such

offense shall have been committed.

vii

STATEMENT OF THE CASE

In an indictment filed on December 29, 1981,

Angelo Michael Marino, Anthony Joseph Bottiglio, Thomas

Andrew Guerro, and petitioner Lucien Joseph Provost were

charged with one count of conspiring to commit offenses

against the United States in violation of 18 U.S.C. § 371,

to wit: (1) receiving, concealing, and selling, etc.,

military-type explosive materials they had reason to

believe were stolen, in violation of 18 U.S.C. § 842(h)

(1976): (2) selling, without authority, military-type

plastic explosives belonging to the United States, in

violation of 18 U.S.C. § 641 (1976); and (3) knowingly

transferring military-type plastic explosives without

paying a transfer tax or filing the required written

application, in violation of 26 U.S.C. §§ 5811, 5812,

5861(e) and 5871 (1976). United States v. Guerro, 694

r. 2d 698, 899-900 (2d Cir. 1982).*

The indictment alleged that in furtherance of

the conspiracy the defendants had committed seven speci-

fied overt acts. The latest overt acts specified were an

alleged December 29, 1976 sale of twenty-five pounds of

military-type plastic explosives by Marino and Bottiglio

to PBI Special Agent Nicholas Cantalupo, and an alleged

February 2, 1977 statement by petitioner Provost to

Cantalupo indicating that the defendants had lost money on

the explosives transaction because they had delivered five

pounds too much. Id. at 900.

* This statement of the case is derived from the Court of

Appeals for the Second Circuit's opinion in this matter.

Defendants moved to dismiss the indictment

on the ground that the prosecution was barred by the

five-year period of limitationn provided in 18 U.S.C.

§ 3262 for non-capital federal offenses. They contended

that the statement alleged to have been made on February

2, 1977, was merely a narrative of past events, and could

not be construed as an overt act in furtherance of the

conspiracy since the goal of the conspiracy had been

achieved with the sale of the explosives on December 29,

1976. Accordingly, defendants argued that the last overt

act properly alleged in the indictment occurred on December

29, 1976. On the basis of the argument that the last day

of the offense is counted as the first day of the limita-

tions period, defendants contended that the December 29,

1981 indictment was filed one day past the end of the

five-year limitations period. Id. at 900.

The district court denied defendants’ motion

to dismiss the indictment as untimely. The court held

that whether the February 2, 1977 conversation was in

furtherance of the conspiracy was a question for the jury

to decide. In addition, the court agreed with the govern-

ment that the limitations period begins on the day after

ge last day of the offense. Id. at 900.

Following denial of their motions, defendants

entered conditional pleas of guilty: Marino, Bottiglio,

and Guerro to the conspiracy charge described above, and

petitioner Provost to a misdemeanor conspiracy count

charged in a superseding information against him. The

plea agreement approved by the court preserved for the

Gefendants the right to appeal the statute of limitations

‘issues. Id. at 900-901.

On appeal, the Second Circuit affirmed the

district court’s denial of the defendants’ motion to

Gismiss the indictment es untimely. The Court of Appeals

agreed with the district court that the limitations period

for non-capital federal offenses begins on the day after

the last day of the offense rather than on the last day

itself. The Court of Appeals therefore held that the

indictment was timely even if the conspiracy ended on

December 29, 1976. As a result, the court found it

unnecessary to reach the issue of whether the February

2, 1977 statement was an additional overt act in further-

ance of the conspiracy. Id. at 903.

All of the defendants except Guerro, who is

incarcerated on unrelated charges, are scheduled to

surrender for incarceration on March 28, 1983. Guerro,

Marino and Bottiglio have been sentenced to three years“

imprisonment. Petitioner Provost has been sentenced to

six months’ imprisonment.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS

WITH THIS COURT'S MOST RECENT

PRONOUNCEMENTS ON THE MANNER

OF CALCULATING THE PERIOD OF

LIMITATIONS POR FEDERAL OFFENSES.

Section 3282 of Title 28 provides that, except

as otherwise expressly provided by law, no person shall

be prosecuted, tried, or punished for a non-capital

federal offense “unless the indictment is found or the

information is instituted within five years next after

such offense shall have been committed."

The section is silent, however, on precisely

when that five-year period begins to run.* While the

parties agree that the proper unit of measure is a day,

they disagree as to whether the day from which one begins

to calculate the limitations period is the day of, or the

Gay after, the offense. If the day of the offense is the

starting point, an indictment filed on December 29, 19861

charging a criminal offense which ended on December 29,

1976 would be untimely. If the day after the offense is

the starting point, @ contrary result obtains and prosecutors

are thereby afforded an extra day to file an indictment.

The Second Circuit held that the day the limita-

tions period begins to run is the day after the offense is

committed. In so doing, the court relied heavily on the

general rule for calculating the period of limitations for

civil statutes of limitation established in Barnet v.

Willingham Loan & Trust Co., 262 U.S. 437, 439 (1931). In

that case, this Court held that “by common usage” a statute,

which required tax assessments to be made within four

years after the return was filed, permitted an assessment

to be made anytime within four years and a day after the

return was filed. While whether this construction comports

* Rule 45 of the Federal Rules of Criminal Procedure

states that, in calculating time pursuant to those

rules, the day of the event is excluded from the cal-

culation. Section 3568 of Title 18 of The United

States Code states that, in calculating the sentence

of imprisonment of any person convicted of an offense,

the sentence “shall commence to run from the date on

which such person is" incarcerated. Section 3282 of

Title 26 does not set forth a method of calculating

when the limitations period begins to run. The

straightforward question presented by this petition

is which method shall be used to calculate time under

Section 3262, the most expansive method exampled by

ae 45 or the narrowest method exampled by Section

with common usage is debatable,* it provides a perfectly

sound manner of calculating the period of limitations for

civil statutes of limitation, where no strong policy

grounds exist for an alternative manner of calculation.

In holding the indictments filed in this case timely,

however, the Second Circuit extended this manner of

calculating the period of limitations for civil statutes

of limitation to criminal statutes of limitation.**

The Court recognized, however, that delaying

the commencement of the period of limitations until

the day after the offense is directly at odds with the

language of this Court in Grunewald v. United States,

353 U.S. 391 (1951). In that case, this Court stated

that an indictment for conspiracy returned on October 25,

1954 would be within the former three year period of

limitations under section 3282 only if one overt act in

furtherance of the conspiracy was performed after October

25, 1951. Id. at 396. The Grunewald Court repeated

its methodology in its consideration of an amendment to

section 3282 which extended the limitations period from

three to five years for all offenses not barred as of

September 1, 1954. In this regard, the Court stated that

an indictment for conspiracy was not time barred as of

* Common understanding of a year is from January 1 to

December 29, not from January 1 to January |. The

latter time span is more appropriately referred to as

@ year and a day. See, ¢.g., Anonymous, Sir Gawain

and The Green Knight (Brian Stone trans. Penguin

Classics * CLUE

** As the Court of Appeals noted, several lower courts

have in the past extended the mili anghar manner of

calculati the limitations r to criminal statutes

of limitation. ( United States v. Guerro, 694 F.2d

at 902 and cases cited herein

that date if the alleged conspiracy had been still alive

after September 1, 1951. Id. at 396 n.9. These state-

ments of this Court explicitly recognize the method of

calculation forwarded by petitioner, to wit, that the

limitations period for a non-capital offense commences the

ast day of the offense, making an indictment timely only

if it is filed before the relevant anniversary of that

date.

Several courts have used or referred to the

Grunewald method of calculating the period of limitations

for criminal statutes of limitation when judging the

timeliness of an indictment. See United States v. Brasco,

516 r. 20 616, 618 (26 Cir.)(per curiam), cert. denied, 423

U.S. 860 (1975); United States v. Stein, 456 F. 20 844, 850

(24 Cir.), cert. denied, 408 U.S. 922 (1972); United

States v. Sarantos, 455 f. 2d 8677, 862-63 (24 Cir. 1972);

United States v. Borelli, 336 F.2d 376, 380, 385 (20 Cir.

1964); Ex Parte Black, 147 F. 632, 641 (E. Db. Wis. 1906),

aff'd, 160 r. 431 (7th Cir. 1908). None of these cases,

however, presented the precise factual and legal issues

presented by this petition.

The Second Circuit, on the other hand, did not

adhere to this Court's method of calculating Section

3262's limitations period and proclaimed the language in

Grunewald to be dicta. Furthermore, despite petitioner's

efforts to demonstrate otherwise, the Court of Appeals

apparently found no reason for distinguishing between

civil statutes of limitation and criminal statutes of

limitation for the purpose of calculating when the period

of limitations should be deemed to commence.

The reason for distinguishing between the two

types of statutes of limitation, however, was clearly

expressed by this Court in Toussie v. United States, 397

U.S. 112, 114-15 (1969):

In deciding when the statute of limitations

begins to run in a given case several considerations

guide our decision. The purpose of a statute of

limitations is to limit exposure to criminal prosecu-

tion to a certain fixed period of time following the

vecurrence of those acts the legislature has decided

to punish by criminal sanctions. Such a limitation

is designed to protect individuals from having to

defend themselves against charges when the basic

facts may have become obscured by the passage of time

and to minimize the danger of official punishment

because of acts in the far-distant past. Such a time

limit may also have the salutary effect of encouraging

law enforcement officials promptly to investigate

suspected criminal activity. For these reasons and

others, we have stated before “the principle that

criminal limitation statutes are to be liberally

interpreted in favor of repose,’ United States v.

Scharton, 285 U.S. 518, 522 (1932). United States

v. Habig, 390 U.S. 222, 227 (78686).

Construing the criminal limitation statute in

section 3282 in favor of repose requires that the period

of limitations be deemed to commence on the day of the

offense rather than the day after the offense. Thus,

the Second Circuit's holding that the period of limita-

tions under section 32862 begins to run on the day

after the offense not only runs contrary to this Court's

interpretation of section 3262 in Grunewald but also to

the general rule of construction for criminal statutes of

limitation.

* Compare the policies underlying civil statutes of

limitation which balance the defendant's right to

repose with plaintiff's right to attempt to recover for

his injuries: “This policy of repose, designed to

protect defendants, is frequently outweighed, however,

where the interests of justice require vindication of

the plaintiff's rights. Burnett », New York Central

R. co,, 380 U.S. 424, 428 (1965).

27

2. THE MANNER OF CALCULATING THE PERIOD OF

LIMITATIONS UNDER SECTION 3262 IS OF

PRACTICAL IMPORTANCE BUT IS RARELY PRE-

SENTED FOR REVIEW BY THIS COURT

Although petitioner is in no position to speak

Gefinitively on the needs of the federal prosecutors,

petitioner believes that the manner of calculating the

period of limitations under 28 U.S.C. § 3282 may be of

great importance to those who must decide when and if to

, Seek an indictment. To make a fully informed decision,

@ prosecutor may need to wait to the last possible day to

benefit from information garnered by last minute investi-

gations. Similarly, he or she may need to wait until the

lest day of the limitations period in order to ensure the

safety of participants in an investigation. Other strate-

gic considerations may make the last day of crucial

importance to a prosecutor. Accordingly, it is important

for prosecutors to be able to calculate with confidence

—

the last day on which an indictment may be found or an

information instituted. Since the method of calculating

the period of limitations under 26 U.S.C. § 3262 is now

unclear given the Second Circuit's ruling in this case and

this Court's opinion in the Grunewald case, it is important

for this Court to determine conclusively which manner of

calculation should be used for that section.

The opportunities for this Court to do so,

however, are few. Given the uncertainties of determining

the last day of the limitations period, only a brave,

foolish, or forgetful prosecutor would commence prosecu-

tion of a case on the fifth anniversary of the offense.

As a result, this happens very infrequently, creating

very few opportunities to speak out on the proper manner

-8-

of calculation in other than dicta. The Court is pre-

sented with a rare opportunity in this case.

a A

THOMAS F. CLAUSS, IR.

40 Wall Street, 24th Fl.

New York, New York 10005

(212) 943-0700

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MEW YORK os ae

0 * 1

UNITED STATES or AMERICA, :

Plaintiff, 1

~against- : CR-81-00691

ANGELO MICHAEL MARINO, ANTHONY :

JOSEPH BOTTIGLIO, THOMAS ANDREW

GUERRO, LUCIEN JOSEPH PROVOST, :

Defendants. 1

United States Courthouse

Brooklyn, New York

March 10, 1982

9: 30 a.m.

BONORABLE JACK 8. WEINSTEIN,

Chief Judge

Dennis Ford,

Court Reporter

EASTERN DISTRICT COURT REPORTERS

UNITED STATES DUTRICT COURT

* CADMAN PLAZA BAST

Al

— ́ mee

3

THE COURT: 1 shall be happy to hear you

*

gentlemen. ues

MR. CLAUSS: The Statute of Limitations,

Judge.

THE COURT: I have read all of your papers.

MR. CLAUSS: There are two main issues here.

One is the Pebruary 2, 1977 conversation which is

an overt act in furtherance, if it is, and then

the indictuent is Clearly timely.

If it is not, then the December 29th date

becomes relevant and the Computation of time -—

THE COURT: It is a jury question, motion

to dismiss on the grounds of application of

Statute of Limitations is denied.

Next.

MR. CLAOSS: I have another motion, request

production of evidence signifying the connection

between defendant Provost and its conspiracy.

THE COURT: What's the connection between

Provost and the conpsiracy?

MR. GROVER: The February 2nd conversation.

THE COURT: Se was a party. to it?

MR. GROVER: It is „ statement or conversa-

tion in the form of an admission and he was

— ewe Se

—ʒꝝͤ—ÿ5́́ D˙ꝛn¶—&j

12

in fact, explosives, and I would ask the Court

to allow us to have a hearing to determine whether

or not there is any basis to believe that they |

had explosive potential.

THE COURT: 10, T am not going to waste

my time with such a hearing. You will have it

during the trial. t they don't prove it is

an explosive, I will dismiss.

MR. BERNE: Judge, I would like to Speak

to the Statute of Limitations question just

briefly, if I may?

THE COURT: Yes.

MR. BERNE: I realize the Court ruled and

called it a jury question, but I believe the

case law which we cited is clear that essentially

the statute means to run from the day of the

last overt act, and the law also states that

once the essential aim of the conspiracy has

been completed, that marks the end of the con-

spiracy. alee

THE COURT: Well, the question is, whether

the conspiracy was just to deliver explosives or

to sell it, and if you are selling explosives, part

of it is delivery and part is payment.

—— ͥ —

—— — — — «6

13

MR. BERNE; And, your Honor, Payment was

made, the Pebruary 2nd conversation 10 instigated

by this informant and it is clear that the motive

behind the call is to try to convince these

people to get involved in other things.

It begins, he is concerned, and that's why

Tt appended the copy to my papers. Be is concerned

because there has been no activity which obviously

he wants and his position is, as an informant,

gaining points for himself, so he makes this

telephone call. -

Be is told right up front that there is

MO problem. In fact, while the other parties to

the conversation aren't quite incredulous, they

quickly inform hia, the informant, that there is

no problem and everything is fine.

nothing else happens.

So, * think you had a fair reading that the

face of that conversation shows that it is merely

Cumulative or repetitive or it is an opening to

* conversation which really tries to start a

second conspiracy.

So chat

THE COURT: Well, that’s an argument you

a4

~

14

can make. It seems to me to be arguable.

MR. BERNE: But it ise question of law;

isn't it your Honor? i

THE COURT: I don't believe so. I think

the jury will have to interpret it in the light

of all the circumstances. |

In any event they did indict you on the

29th day, that's five years, exactly.

MR. BERNE: Well, I think the 28th would

be five years.

THE COURT: I don't believe you are right.

I think the Government is perfectly right on that,

begiming- the next day -—

MR. CLAUSS: I disagree, your Honor.

THE COURT: Well, that's a question of law,

but I think we don't even have to arrive at that,

because I think it is strictly a matter of fact

for the jury.

MR. BERNE: I take it, your Honor, the

ruling on one severence motion applies to all

severence motions that were made?

THE COURT: Correct.

MR. BERNE: Because I made that sane

motion md I think that perhaps — at the same time

NITED STATES COURT OF APPEALS

ECOND CIRCUIT

At a stated term of the United States Court of Appeals, in and

or the Second Circuit,” held at the United States Court House, in the

ity ot New York, on the eleventh day of January » One thousand

ine hundred and eighty-three.

NITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

No. 82-1103, 62-1131

HOMAS ANDREW GUERRO, ANGELO MICHAEL 62-1137, 82-1139

ARINC, LUCIEN JOSEPH PROVOST, and

STHONY JOSEPH BOTTICLIO,

Defendants-Appellants.

—»„——————— eee U!nl,nsd 4444441 ͤ4ͤ„ 5 X

A petition for rehearing containing a suggestion that the action

t reheard in banc having been filed herein by counsel for the defendant-

ppellant, Angelo Michael Marino,

Upon consideration by the pane) chat heard the appeal, it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc has been

fanemitted to the judges of the court in regular active service and to any

ther judge on the panel that heard the appeal and that no such judge has

quested that a vote be taken thereon.

A. Daniel Fusaro, Clerk

Chief Deputy Clerk

by

THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

LUCIEN JOSEPH PROVOST,

Petitioner,

-vs-

UNITND STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Second Circuit

CERTIFICATE OF SERVICE

I hereby certify that on March 11, 19863, one

copy of the Petition for Writ of Certiorari and one copy

of the Motion to Proceed in Forma Pauperis were mailed,

postage prepaid, to the Solicitor General, Department of

Justice, Washington, D.C. 20530. 1 further certify that

211 parties required to be served have been served.

&

40 Wall Street, 24t

New York, New York

(212) 943-0700

ee

RECCIVEDO

MAR 1 4 1983

Orne vi oe ec

Wente“ „ 9

NO. Ga -L390 3

THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

LUCIEN JOSEPH PROVOST,

Petitioner,

-vs-

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Second Circuit

MOTION TO PROCEED IN FORMA PAUPERIS

THOMAS F. CLAUSS, JR.

40 Wall Street, 24th Fl.

New York, New York 10005

(212) 943-0700

Pursuant to the provisions of 28 U.S.C. § 1915,

and Rule 46 of the Rules of this Court, petitioner Lucien

Joseph Provost asks leave to file the attached petition

for a writ of certiorari to the United States Court of

Appeals for the Second Circuit without payment of costs

and to proceed in forma pauperis.

Counsel was appointed for the petitioner by the

District Court for the Eastern District of New York and

the Court of Appeals for the Second Circuit under the

Criminal Justice Act of 1964, as anended.

A

7

40 Wall Street, 24th Fi.

New York, New York 10005

(212) 943-0700