# Petition for Writ of Certiorari — Masi v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 469 U.S. 1188

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2925%3A1. Public record. Not legal advice.