Petition for Writ of Certiorari — Masi v. United States

Office - Supreme Court. U.S

FILED

JUN 1 jog4

NO. 83-1988

ALEXANDER L. STEVAS

CLERK

IN THE

SUPREME COURT QF THE UNITED STATES

October Term, 1983

GIOVANNI MASI, a/k/a “John Masi,"

Petitioner,

Vv.

UNITED STATES CG AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

LUIS E. RIVERA-MONTALVO

Attorney at Law

6600 S.W. 57TH Avenue

Miami, Florida 33143

Telephone: (305) 661-1111

Attorney for Petitioner

pn ai

QUESTIONS PRESENTED FOR REVIEW

l. Whether the introduction of co-

conspirator'‘s out-of-court statements

into evidence violated Defendant's right

to confront, and cross-examine the wit-

nesses against him?

2. Whether the District Court erred

in providing the jury during their

deliberations with typed transcripts of

recorded communications in violation of

the best evidence rule, the rule against

improper emphasis and repetition, and the

rule against hearsay?

3. Whether the District Court erred

in denying Defendant's motion to arrest

judgment under Count III since the court

was without jurisdiction of the offense

charged because the offense was not

commited in its district?

ii

4. Whether opening remarks by trial

defense counsel regarding cocaine seized

from the Defendant at the time of his

arrest required a cautionary instruction

by the District Court, sua sponte, in

light of the government's decision to

rest their case without presenting this

evidence to the jury?

5. Whether the District Court erred

in not granting Defendant's motion for a

mistrial on account of prosecutor's

comment upon Defendant's failure to

testify before the jury?

6. Whether the District Court

exceeded its authority when it imposed a

particularly severe sentence against the

Defendant ?

iii

PARTIES TO THE PROCEEDINGS BELOW

-4 The parties to the proceedings in the

United States District Court were Raymond

J. Dearie, United States Attorney for the

Eastern District of New York, 225 Cadman

Plaza East, Brooklyn, New York 11201,

Respondent-Appellee herein; and GIOVANNI

MASI, Petitioner-Appellant herein.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW...... i

PARTIES TO THE PROCEEDINGS BELOW.... iii

TABLE CF CONTENTS... - 2 eee eee eceecees iv

TABLE CF AUTHORITIES... eee eeeeeeces Vv

OPINION BELOW... cee eeeeeececcccvees 2

JURISDICTION... cece eee e eer ennecceess 2

STATUTORY PROVISIONS INVOLVED.......- 2

STATEMENT OF THE CASE...-+-eeeeeeees 3

REASONS FOR GRANTING THE WRIT.....-- ll

I. THE CONVICTION GQ COUNTS I

AND II MUST BE REVERSED FOR THE

REASON THAT IT IS BASED UPON

IMPROPER EVIDENCE. ...-eeeeeeeees ll

II. THE CONVICTION ON COUNT III

MUST BE REVERSED FOR THE REASON

THAT THE DEFENDANT WAS DENIED

HIS RIGHT TO TRIAL IN THE

DISTRICT IN WHICH THE OFFENSE

WAS COMMITTED... cee eee ecceccces 18

III. TRIAL DEFENSE COUNSEL'S

OPENING REMARKS ABOUT EVIDENCE

NOT USED DURING TRIAL AND

PROSECUTOR'S COMMENT UPON

DEFENDANT'S FAILURE TO TESTIFY

BEFORE THE JURY COUPLED WITH A

PARTICULARLY SEVERE SENTENCE

DEPRIVED THE DEFFNDANT OF A FAIR

TRIAL. eseeeeeerereete seeeeeeneeeeeeee 20

CONCLUSION. eeeeseeaeeveeeweemeenvnenveeeaeeee8022 0 28

CERTIFICATE OF MAILING..ceeeeeeecees 29

APPENDIX A. eeeeeeveeeveeveeveeeeeereeeeeee ee @ Al

APPENDIX B.- cece eeereeeeneeeeeeevese Bl

&

er, are Vag 5

adden tetea ded maaaethtahen hin oes ad ae

TABLE OF AUTHORITIES

CASES

BERNSTEIN v. UNITED STATES

421 U.S. 962 (1974)

COUNTS v. UNITED STATES

527 F.2d 542 (2nd Cir., 1975)

FOUNTAIN v. UNITED STATES

384 F.2d 624 (5th Cir.) cert. denied

390 U.S. 1005 (1968)

HOLT v. WYRICK

649 F. 2d 543 (8th Cir., 1981)

cert. denied

454 U.S. 1143 (1982)

JOHN v. UNITED STATES

421 U.S. 962, rehearing denied

421 U.S. 962 (1974)

LEKOMETROS v. UNITED STATES

420 U.S. 917, cert. denied

421 U.S. 962 (1974)

MARSHALL v. UNITED STATES

390 U.S. 1005 (1968)

McGEE v. UNITED STATES

462 F. 2d 243 (2nd Cir., 1972)

OHIO v. ROBERTS

448 U.S. 56 (1980)

Page

17

26

17

15

17

17

17

26

14

vi

CASES Page

UNITED STATES v. CARSON

464 F.2d 424 (2nd Cir.) cert denied

409 U.S. 949 (1972) 16

UNITED. STATES v. GIBBS

703 F.2d 683 (3rd Cir., 1983) 14

UNITED STATES v. HALL

342 F.2d 849 (4th Cir.) cert. denied

382 U.S. 812 (1965) 17

UNITED STATES v. JOHN

508 F.2d 1134, stay denied

420 U.S. 917, cert. denied

421 U.S. 962 (1974) 17

UNITED STATES v. KOSKA

443 F.2d 1167 (2nd Cir.) cert. denied

404 U.S. 852 (1971) 18

UNITED STATES v. LANG

589 F.2d 92 (2nd Cir., 1978) 15

UNITED STATES v. MENENDEZ

612 F.2d 51 (2nd Cir., 1979) 19

UNITED STATES v. PALUMBO

639 F.2d 123 (3rd Cir.) cert. denied

454 U.S. 819 (1981) & 14

UNITED STATES v. PEREZ

658 F.2d 654 (9th Cir., 1981) 14

UNITED STATES v. PUCO

4765 F.2d 1099 (2nd Cir.) cert. denied

414 U.S. 844 (1973) 14

vii

CASES Page

UNITED STATES v. ROBIN

545 F.2d 775 (2nd Cir., 1976) 26

UNITED STATES v. TIERNEY

424 F.2d 643, cert. denied

400 U.S. 850 23

UNITED STATES v. TORRES

519 F.2d 723 (2nd Cir.) cert. denied

423 U.S. 1019 (1975) 13

UNITED STATES EX REL LEAK v. FOLLETTE

418 F.2d 1266 (2nd Cir., 1969) 24

Statutes

21 USC Sect. 84l1(a)(1) 3, 4

28 USC Sect. 801(d)(2)(E) ll, 14

28 USC Sect. 1254 (1) 2

Miscellaneous

Federal Rules of Criminal Procedure

Rule 29(c) 10

Rule 34 p 19

IN THE

SUPREME COURT GF THE UNITED STATES

October Term, 1983

GIOVANNI MASI, a/k/a “John Masi,"

Petitioner,

Vv.

UNITED STATES CF AMERICA,

Respondent.

PETITION FOR A WRIT GF CERTIORARI

TO THE UNITED STATES COURT GF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, GIOVANNI MASI, respect-

fully prays that a Writ of Certiorari

issue to review the opinion of the United

States Court of Appeals for the Second

Circuit entered in tthis proceeding on

April 6, 1984.

2

OPINION BELOW

The judgment of the United States

District Court for the Eastern District

of New York (Appendix A, infra, p- Al),

was entered on August 23, 1983. The

opinion of the United States Court of

Appeals for the Second Circuit was filed

on April 6, 1984. The opinion is repro-

duced as Appendix B, infra, p. Al.

JURISDICTION

The judgment of the Court below

(Appendix B, infra, p- Bl) was not

reported. Rehearing was not sought. The

jurisdiction of this Court is invoked

under 28 U.S.C. Sect. 1254 (1).

STATUTORY PROVISIONS INVOLVED

3

Title 21 U.S.C. Sect. 841(a)(1) per-

taining to controlled substances pro-

vides, as follows:

"(a) Except as authorized by this

subchapter, it shall be unlawful for

any person knowingly or intention-

ally--

(1) to manufacture, distribute,

or dispense, or possess with

intent to manufacture, distrib-

ute, or dispense, a controlled

substance; or"

Title 21, U.S.C. Sect. 846 pertaining

to controlled substances provides as fol-

lows:

" Any person who attempts or con-

spires to commit any offense defined

in this subchapter is punishable by

imprisonment or fine or both which

may not exceed the maximum punishment

prescribed for the offense, the com-

mission of which was the object of

the attempt or conspiracy."

STATEMENT OF THE CASE

The Defendant was charged by Second

Superseding Indictment with violations

of Federal Narcotics laws during the

4

period from December 1, 1982, to March

24, 1983. Named in the indictment were

the Defendant and Co-defendant CINELLI

only. Count I alleged conspiracy between

the defendants during the period from

December 1, 1982, to March 24, 1983, to

violate Section 84l(a)(1) of Title 21,

United States Code; by distributing and

possessing with intent to distribute sub-

stantial quantities of cocaine hydro-

chloride. Count II alleged that on

December 1, 1982, the Defendants distrib-

uted a quantity of cocaine hydrochloride

(one ounce). Count III alleged that on

February 9, 1983, the Defendants

possessed with intent to distribute

within the Eastern District of New York

and elsewhere, a quantity of cocaine

hydrochloride (four ounces).

Meanwhile, CINELLI surrendered to

Government authorities and was released

5

pending trial upon security.

The Defendant was- apprehended on

March 24, 1983, at his residence in

Miami, Florida, upon Ceantater filed in

the Eastern District of New York alleging

violation of Federal Narcotics laws. At

the time of his apprehension, police

authorities seized from Defendant's pants

a small vial containing about one grain

of cocaine hydrochloride.

After a pond hearing held at Miami,

Florida, Defendant was transferred to New

York. Baii was set at an amount. which

the Defendant could not afford.

Upon his first appearance in the

Eastern District of New York, the

Defendant was advised of his indictment.

At a subsequent Bond hearing, the

Defendant was advised that a superseding

indictment had been returned. The

Defendant stood mute to the indictment,

6

and the Court entered a plea of not

guilty. At the time, the Defendant's

counsel made several requests, including

a motion to transfer the case to Florida.

(Although not specifically said, this was

a motion for change of venue.) A few

weeks later, the Defendant retained the

services of trial defense counsel, JOHN

JACOBS, who pursued the Defendant's legal

representation until prior to sentencing.

AK Secgnd Superseding Indictment was

returned shortly before trial.

CINELLI plead guilty to Count II with

the understanding that he would not tes-

tify for the Government or the Defendant

and was awaiting sentencing at the time

cf Defendant's trial. Defendant's con-

viction is based on testimony of Special

Agent HAMILL, who had acted in an under-

cover capacity, out-of-court statements

of co-Defendant CINELLI as reported by

-

HAMILL, and recorded telephone conversa-

tions.

At trial defense counsel‘s request,

an evidenciary hearing was held to deter-

mine the admissibility of the evidence

seized at the time of Defendant's appre-

hension. The Court ruled that the

cocaine hydrochloride would be admitted

into evidence. At trial, the Government

rested its case without using any of the

evidence seized at the time of defend-

ant's apprehension.

However, during his opening remarks

to the jury, trial defense counsel had

made reference to the vial with cocaine

found when the Defendant was arrested.

On December 1, 1982, CINELLI sold one

ounce of cocaine hydrochloride to HAMILL.

CINELLI and HAMILL had subsequent conver-

sations for the sale of additional quan-

tities of cocaine hydrochloride. During

8

the course of recorded telephone conver-

sations between CINELLI and HAMILL, ref-

erence was made to "JOHN," who could pro-

vide quantities of cocaine. HAMILL and

CINELLI continued their negotiations and,

on February 7, 1983, HAMILL called the

Defendant at his place of residence

reportedly to negotiate the price of a

quantity of cocaine. The Defendant hung

up the telephone on HAMILL. Further,

there was no specific reference to any

drugs during their conversations. How-

ever, recorded conversations between

CINELLI and. HAMILL showed CINELLI's

involvement with drugs and his partner

JOHN. " The Government contended that

CINELLI had entered into a conspiracy to

distribute drugs with a person known as

“JOHN,” and that "JOHN" was Defendant

MASI.

The Defendant never went to the

9

Eastern District of New York and there

were no other recorded conversations

between HAMILL and the Defendant. Fur-

ther, no drugs were seized or secured

other than the one ounce of cocaine which

was sold by CINELLI.

The evidence at all times showed that

the offense alleged under Count III was

committed in Florida and not in New York.

During his rebuttal argument, the

Government made specific reference to the

Defendant's failure to testify regarding

disputed telephone conversations where

the Government claimed the Defendant had

discussed the sale of narcotics in fur-

therance of the conspiracy charge.

Specifically, the Government argued:

Mr. Jacobs said there were

only four of the telephone con-

versations successfully

recorded. We know four tele-

phone conversations were

successfully recorded. The

defendant can explain that-Mr.

.

10

“Jacobs can't explain that way,

ladies and gentlemen, because

we all heard the converss sations.

Two of them were with the

defendant sitting here. (Indi-

cating.) And And Agent Hamill

tacacivica Mr. Masi'’s voice on

both of those telephone conver-

Sations.” (emphasis added)

(Trial Record Page 325 at ll-

19).

Upon this improper argument of coun-

sel, the Defense made a timely motion for

mistrial, which was denied.

Once the jury's verdict was

announced, trial defense counsel

requested and the Court allowed for

motions under Rule 29(c), Federal Rules

of Criminal Procedure, to be made at the

time of sentencing. On August 24, 1983,

the Defendant was sentenced to ten years

of imprisonment on each count of the

Second Superseding Indictment to run con-

currently in addition to a special parole

term of ten years. A motion to arrest

judgment under Count III was denied.

ll

REASONS FOR GRANTING THE WRIT

I.

THE CONVICTION ON COUNTS I AND II MUST

BE REVERSED FOR THE REASON THAT IT IS

BASED UPON IMPROPER EVIDENCE

The Defendant's conviction of Counts

I and II is predicated upon the out-of-

court statements of Co-Defendant CINELLI

that there was a person named "JOHN" who

was involved with him in the sale of

drugs and the testimony of Special Agent

HAMILL that this person "JOHN" was the

Defendant.

Trial defense counsel objected to the

use of the out-of-court recorded conver-

sations and oral statements in evidence.

The basis for. his objection was that

while the hearsay statements may in fact

pass the test for admissibility under

Rule 801(d)(2)(E), Federal Rules of

Evidence, they were nonetheless

inadmissible under the Sixth Amendment's

—~

12

confrontation clause.

FIRST, before the out-of-court state-

ments can be admitted into evidence,

three requirements must be established.

(A) there must be independent evidence

establishing that the person against whom

the statement is offered participated in

the conspiracy. (B) the statement must

have been in furtherance of the con-

spiracy. (C) the co-conspirator's

statement must have been made during the

life of the conspiracy. The first and

second prerequisites were. not met in this

case. There was no evidence, “inde-

pendent" or otherwise, of any other

person being involved with CINELLI in the

sale of December 1, 1982. We can assume

that CINELLI obtained or otherwise

secured the drugs from someone else, but

not that there was a "conspiracy." Mere

association with those who have conspired

13

cannot alone support a conviction for

conspiracy. United States v. Torres, 519

F 2d 723 (2nd Cir.), cert. denied, 423

U.S. 1019 (1975). Further, it was not

shown that the statements were in fur-

therance of the conspiracy. The “in fur-

therance" requirement has been given a

broad interpretation; however, the sale

of December 1, 1982, had already been

consummated and it cannot be said that

anything could be dene “in furtherance"

of it.

SECOND, the Sixth Amendment guaran-

tees that "...the accused shall enjoy the

right...to be confronted with the wit-

nesses against him." The admission of

out-of-court statements made by CINELLI

had - effect of denying the Defendant

his e@nstitutional right to confront and

db:

cross-examine his accusers.

The confrontation clause issue and

14

the evidenciary question must be sepa-

rately analyzed, and the Sixth Amendment

may require the exclusion of evidence,

even though admissible under Fed. R.

Evid. 801 (d)(2)(E). United States v.

Gibbs, 703 F. 2d 683 (3rd Cir. 1983);

United States v-. Perez, 658 F. 2d 654

(9th Cir. 1981); United States v.

Palumbo, 639 F. 2d 123(3rd Cir.), cert.

denied, 454 U.S. 819 (1981); United

States v. Puco, 476 F. 2d 1099 (2d Cir.),

cert. denied, 414 U.S. 844 (1973).

In Ohio v. Roberts, 448 U.S. 56

(1980), this Court identified two

restrictions that the confrontation

clause imposes on the use of hearsay

evidence in criminal trials. First, the

Government must show that the hearsay

evidence is necessary because the

declarant is unavailable. Second, the

hearsay statement must be reliable.

15

CINELLI was called to testify at a

hearing outside the presence of the jury.

Upon inquiry by trial defense counsel,

CINELLI invoked the Fifth Amendment priv-

ilege, which could render him legally

“unavailable.” Holt v. Wyrick, 649 F. 2d

543 (8th Cir. 1981), cert. denied, 454

U.S. 1143 (1982). However, the trial

Judge admonished CINELLI that he could

not claim the privilege and commanded his

testimony. It then became evident that

CINELLI was refusing to testify in

accordance with an agreement reached with

the Government. The Government should

not have been allowed to claim that

CINELLI was unavailable when it caused

his unavailability by misleading him

about his plea agreement. Further, not-

withstanding United States v. Lang, 589

F. 2a 92 (2nd Cir., 1978), the circum-

stances were particularly appropriate to

16

require the Government to grant immunity

to CINELLI before offering the out-of-

court statements or otherwise abate the

prosecution.

To further compound the prejudicial

effect of the out-of-court statements,

the trial court allowed the jury to take

into their deliberations typed tran-

scripts of the recorded conversations.

Trial defense counsel entered a timely

objection. The use of these transcripts

during jury deliberations violated the

best evidence rule, the rule against

improper emphasis and repetition, and the

rule against hearsay.

The use of typed transcripts as

visual aids to the jury in listening to

the playback of recorded communications

is a matter within the sound discretion

of the trial judge. United States v.

Carson, 464 F.2d 424 (2nd Cir.), cert.

17

denied, 409 U.S. 949 (1972); Fountain v.

United States, 384 F.2d 624 (5th Cir.),

cert. denied, Marshall v. United States,

390 U.S. 1005 (1968); United States v.

Hall, 342 F.2d 849 (4th Cir.) cert.

denied, 382 U.S. 812 (1965). However ,

there is apparent conflict amongst the

Circuits regarding the jury's use of this

evidence during their deliberations.

In United States v. John, 508 F.2d

1134, stay denied Lekometros v. United

States, 420 U.S. 917, cert. denied

Bernstein v. United States, 421 U.S. 962,

and John v. United States, 421 U.S. 962,

rehearing denied, 421 U.S. 962 (1974),

the Court approved the use of these

“visual aids," but with marked emphasis

upon the fact that "“"...the transcripts

were not made available to the jurv

during its deliberations," supra, at page

1141. On the other hand, United States

18

v- Koska, 443 F.2d 1167 (2nd Cir.), cert.

denied, 404 U.S. 852 (1971), approved of

the jury's use of transcripts during

their deliberations.

With the advent of sophisticated

electronic surveillance, it is imperative

that the trial courts apply a uniform

standard for the use of transcripts of

recorded conversations.

Il.

THE CONVICTION ON COUNT III MUST BE

REVERSED FOR THE REASON THAT THE

DEFENDANT WAS DENIED HIS RIGHT TO TRIAL

IN THE DISTRICT IN WHICH THE OFFENSE

WAS COMMITTED

There is no dispute that the offense

alleged under Count III occurred in

Miami, Florida, instead of the Eastern

District of New York, if at all. Not -

withstanding the Court of Appeals below

has determined that Defendant's objection

to venue was waived because of the

19

failure to raise it appropriately in the

trial court. The Court cites United

States v. Menendez, 612 F.2d 51 (2nd Cir.

1979) for the apparent proposition that

the Defendant waived the venue objection

bas he made his motion for acquittal

without referring to venue.

When the Defendant was confronted

with the superseding indicment, he

requested transfer of his case for trial

in Miami, Florida. Further, once the

jury's verdict was announced, the trial

court authorized the Defendant to make

motion for judgment of acquittal at the

time of sentencing, at which time

Defendant's counsel moved to arrest

judgment under Rule 34, Federal Rules of

Criminal Procedure.

The decision denying Defendant's

motion to arrest judgment was in error

and the Court of Appeals below has

20

sanctioned such departure from the rules

of law as to call for an exercise of this

Court's power of supervision. The Court

of Appeals below has overlooked the

matters of record in this case.

IIl.

TRIAL DEFENSE COUNSEL'S OPENING REMARKS

~ ABOUT EVIDENCE NOT USED DURING TRIAL

AND PROSECUTOR'S COMMENT UPON

DEFENDANT'S FAILURE TO TESTIFY BEFORE

THE JURY COUPLED WITH A PARTICULARLY

SEVERE SENTENCE DEPRIVED THE DEFENDANT

OF A FAIR TRIAL

The practice of trial defense attor--.

neys of bringing out during opening

remarks that evidence which is known to

be prejudicial to the defendant and for

which the Government has received a fav-

Orable ruling upon admissibility in netee

to take out the "sting" associated with

disclosure of this prejudicial informa-

tion to the jury is widely accepted.

This practice is a legitimate trial

21

technique which has been given wide

dissemination. Indeed, trial defense

counsel should not risk defendant's

conviction of serious criminal charges

because of blemishes in the accused's

record. Just because a person might have

made one mistake, it does not mean that

he is a serious criminal offender.

During opening remarks, trial defense

counsel made specific reference to a

grain of cocaine found in Defendant's

pants. Without prior notice, the

Government rested its case without pre-

senting, or making reference to this

cocaine.

Apsent Counsel's disclosure of

Defendant's possession of cocaine, the

jury was called to decide Defendant 's

case without any evidence of predisposi-

tion to drugs. There was no prior

criminal record. Whether the Government

22

had the plan or design to induce trial

defense counsel to comment upon evidence

which had little probative value in this

case and which they did not intend to

present to the jury, or whether the

Government inadvertently forgot to offer

this evidence is unknown to us. However,

the trial judge failed to safeguard the

right of the accused to a fair trial by

not advising the jury to disregard ref-

erences made by trial! defense counsel to

matters which were jiot in evidence. We

believe that the prejudicial effect was

such that a caitionary instruction, sua

sponte, was required in the charge to the

jury.

Our inquiry into this matter has

failed to show any legal authority for or

against the proposition we now advance.

However, we feel this is an important

question of federal law which should be

23

settled by this Court.

To further compound the unfairness of

these proceedings, the prosecutor chal-

lenged and pointed to the Defendant to

explain the telephone conversations

between the Defendant and others. These

conversations were part of the core of

the Government's case against’ the

Defendant. Government counsel's state-

ment is a matter of record.

Trial defense counsel made a timely

objection ard moved for a mistrial. How-

ever, both the trial court and Court of

Appeals have dismissed this challenge as

a “slip of the tongue" or "inadvertent"

comment.

In United States v. Tierney, 424 F.2d

643, cert. denied, 400 U.S. 850, it was

established that the test for whether

3"

there was comment on defendant's failure

to testify is whether language used was

24

manifestly intended or was of such char-

acter that the jury would naturally and

necessarily take it to be such comment.

This is the situation in our case.

We cannot sondeiee of a more direct

reference to the accused's failure to

present evidence or to testify on the

merits of the case than by asking the

Defendant to "explain" and then almost

simultaneously pointing or "indicating"

at the person of the Defendant.

There may be cases in which there is

intentional comment on Defendant's abso-

lute right to remain silent, but those

may be just four instances as suggested

in United States Ex Rel Leak v. Follette,

418 F. 2d 1266, 1270 (2nd Cir., 1969).

All others would be termed “inadvertent"

as opposed to "intentional," thereby

taking all the substance off the

constitutional right of the accused.

25

This Court cannot allow this to happen.

The trial court should have admon-

ished the Government in open court and

conducted an individual inquiry of. each

and every member of the jury to determine

their ability to disregard such prejudi-

cial comments or grant a mistrial. The

prejudicial effect of this violation of

Defendant's constitutional right to

remain silent and not have to "explain"

anything to the jury cannot be corrected

at this late stage of the proceedings,

and therefore, he is entitled to reversal

of his conviction on all counts of the

Second Superseding Indictment.

Throughout trial, the trial judge

made it evident to the Defendant that he

was unhappy with hin. The trial judge

argued that he was playing games with the

Court when he refused to waive provisions

of the Speedy Trial Act. Further, the

26

trial. judge stated that he wanted the

Defendant to get a "full hearing" because

he had in mind a “very substantial sent-

ence" for him and he better know it.

We do realize that criminal sentences

are not generally reviewable. Counts V.

United States, 527 F.2d 542 (2nd Cir.,

1975): McGee V. United States, 462 F. 2d

243 (2nd Cir. 1972). However, a court's

failure to take appropriate steps to

insure the fairness and accuracy of the

sentencing process must be held to be

plain error and an abuse of that discre-

tion warranting review. United States v.

Robin, 545 F. 2d 775, (2nd Cir., 1976).

The Court of Appeals below dismissed

Defendant's contention about his sent-

ence, arguing that it is “well within the

statutory range." In so doing, the Court

overlooked the body of law governing the

sentencing process and the particular

al i8 AT LOE ee

ii ets thet UA gt teat ea taeah Sto. plete neta

27

contentions of this Defendant.

The conduct of Defendant's trial

showed a departure of the proper judicial

proceedings and the Court of Appeals

below has sanctioned such departure so as

to call for an exercise of this court's

power of supervision by this Writ.

28

CONCLUSION

For the foregoing reasons, it is

respectfully submitted that the Petition

for a Writ of Certiorari should be

granted.

Respectfully Submitted,

LUIS E. RIVERA-MONTALVO

Attorney /at Law

6600 S.W. 57th Avenue

Miami, Florida 33143

Telephone: (305) 661-1111

Attorney for Petitioner

29

CERTIFICATE OF MAILING

STATE CF FLORIDA )

) SS.:

COUNTY OF DADE )

On May 31, 1984, I served the within

PETITION FOR A WRIT C” CERTIORARI on the

interested parties in said action, by

placing a true copy in each of two sealed

envelopes, with First-class postage pre-

paid, in a United States post office at

Miami, Florida, addressed as follows:

REX T. LEE RAYMOND J. DEARIE

Solicitor General United States

of United States Attorney for the

Department of Eastern District of

Justice New York

Washington, 225 Cadman Plaza

D.C. 20530 East

Brooklyn, NY 11201

I certify under penalty of perjury

that the foregoing is true and correct.

EXECUTED on this 3lst day of May,

1984, at Miami, Florida.

LUIS E. RIVERA-MONTALVO

APPENDIX A

Al

— » om.

Cores oe (wm

United States of America vs. “) United States District Court tor

es GIOVAHNT MAS1 , (the EASTEn.s DISTRICT OF NEW YORK j

COt Tae

- lees Cornet no —dmem «_CR 83-00141(S-1)

Ta ain SROSATONICUM MtMENROAEER

eae a = Sees

© 2E.3c8 . J WITHOWT Couns Newmar the cout stveed defendant of gk: te counsel and ached whether defendant dened te have

eed ne Seat weet he eRAGOe BE A Raat Be eS Cue

Pies

KU win course rilek. pe

| (NomectComea oy OTS FO. i

= = ae PORE Te -

- (4 CUILTY, amd the cowrt bewg satistied thet Lj MOLO CONTENDER. Uy Mor ’ :

- there s 2 facteal basis for the plea, . > teas °:

| el

5 . TMi AM.

(LI OT CARTY, Cotendamt 11 diac herged 7 FILED

Nee Dees 6 Seeditegy reste) ot | re

(LGumry. to counts 1,2 63.

10 | Coton ha nem convict changed ofthe etemts violating T.21 U.S.C. Sections 841 {a} (1)

“THSRT * 846; T. 18 U.S.C. Section 2.

) ned nates Gat eotimet mat someting @ nay whey petgpmamt veeeid mt be pronounced Becsuse mo sutra Cause to the Comrary

tena) Se pEeenee eer anne ae een ot ein Ge Gentes &

Swe ener rned lm Ae coneety of the Atuermy C traperede! ten (10)

7

. or mie on count 1, ten (10) years and a Special Perole term of ten (10)

— fears on count 2 and ten Y10)- years and a Special Parole term of ten (10)

years on count 3. Said sentemces to run concurrently.

fas, +! Om motion of Assistant U.S. Attorney Peter J. Tomao, the underlying

indictment and the first superseding indictment are dismissed as to

the defendant Masi.

~ ohmer 9 Or OEE conc ons of prahener ewased seve «1s herety ordered that the general conditons of probation set out on the

4 hone ee eieent be cepored. The Court may change the condinens of probenon reduce of extend the pened of probeven and

or 8 eaerg Oe Oeebatven pened a othe 4 mame orobenen pened of frve veer permitted by lew. may issue @ warrant and

~ ‘ Co 6 oO 8 OF 2m OkDeP Gcourring Garng the prohenes gered

“ce © oeters COM -tment to the custody of the Attorney Ceneral and recommends it ordered that the Ciert deiner

” a cerned copy of thes judgment

. : ond commamen to the US Maer-

« . shal or other quaisted orficer

BEST AVAILABLE COPY

APPENDIX B

Bl

United States Court of Appeals

For The

Second Circuit

At a stated Term of the United States

Court of Appeals for the Second Circuit,

held at the United States Courthouse in

the City of New York, on the

6th day of April

one thousand hundred and eighty-four.

Present:

HONORABLE WILFRED FEINBERG,

Chief Judge

HONORABLE HENRY J. FRIENDLY,

FONORABLE JAMES L. OAKES,

Circuit Judges

UNITED STATES OF AMERICA,

Appellee,

-v. - 83-1351

GIOVANNI MASI, a/k/a "John Masi,"

Appellant.

x

Appeal from the United States

District Court for the Eastern District

of New York.

B2

This cause came on to be heard on the

transcript of record from the United

States District Court for the Eastern

District of New York, and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is

now hereby ordered, adjudged and decreed

that the judgment of said district court

is AFFIRMED.

1. Co-conspirator Cinelli's

statements were admissible under Fed. R.

Evid. 801(d)(2)(E), and admission of the

statements did not deny Masi confronta-

tion rights. There was ample evidence,

independent of Cinelli‘'s statements, that

Masi participated in the cocaine distri-

bution conspiracy. Moreover, Cinelli's

statements, made in furtherance of the

conspiracy, bore sufficient indicia of

reliability and did not violate Masi'‘s

constitutional rights. See United States

v. Perez, 702 F.2d 33, 37 (2d Cir.) (per

curiam), cert. denied, 103 S.CT. 2457

(1983).

2. The court did not abuse its

discretion in providing the jury, during

deliberations, with transcripts) of

recorded conversations especially when

there was no claim that the transcripts

were inaccurate and the court had cau-

tioned the jury on the proper use of the

transcripts. See United States v. Koska,

443 F.2d 1167, 1169 (2d Cir.), cert.

denied, 404 U.S. 852, (1971).

3. Masi's contentions regard-

ing chain of custody are, on this record,

B3

with merit. Also without merit is his

contention that the court was required,

sua sponte, to give a cautionary

instruction concerning defense counsel's

reference in his opening statement to

evidence which the government did not

offer at trial.

4. There was no violation of

Masi's speedy trial rights, since the

period excluded due to the illness of

trial counsel was properly excluded pur-

suant to the ends of justice provision of

18 U.S.C. Sect. 3161 (h)(8)(A). Also,

Masi apparently claims before us that

venue was improper. However, this claim

was waived because of the failure to

raise it appropriately in the trial

court. See United States v. Menendez,

612 F. 2d 51, 55 (2d Cir. 1979). Masi's

apparent contention that there was a

material variance between the conspiracy

period charged and the period proven at

trial is similarly unavailing since Masi

was given adequate notice in the indict-

ment of the crimes alleged and the proof

at trial fell within the period charged.

See United States v. Heimann, 705 F.2d

662, 666 (2d Cir. 1983).

5. Masi argues that the pros-

ecutor improperly commented on Masi's

failure to testify. However, viewed in

context, the comment appears to have been

inadvertent and, in any event, was not

“of such character that the jury would

naturally and necessarily take it to be a

comment on the failure of the accused to

testify." United States ex rel. Leak v.

Follette, 418 F.2d 1266, 1269 (2d Cir.

B4

1969), cert. denied, 397 U.S. 1050

(1970). Contrary to Masi's assertion

that the court erred in its instruction

on flight, the charge was proper as

given.

6. Masi's contention that he

was arbitrarily denied trial by the jury

of his choice is without merit. The

claim that Masi's sentence was too severe

is also unavailing, since it was well

within the statutory range.

7. We have examined all of

Masi's contentions and find them to be

without merit.

WILDFRED FEINBERG, Chief Judge

HENRY J. FRIENDLY,

JAMES L. OAKES,

Circuit Judges.

N.B. Since this state-

ment does not constitute a

formal opinion of this

court and is not uniformly

available to all parties,

it shall not be reported,

cited or otherwise used in

unrelated cases before this

or any other court.