Petition for Writ of Certiorari — Napoli v. United States

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No. ‘

J

ALEXANDER i Si “A’\3

In the RE

Supreme Court of the United States.

OCTOBER TERM, 1984.

JOHN NAPOLI,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

MARTIN G. WEINBERG,

Counsel of Record,

KIMBERLY HOMAN,

OTERI, WEINBERG & LAWSON,

75 Blossom Court,

Boston, Massachusetts 02114.

(617) 227-3700

BATEMAN & SLADE. INC. BOSTON, MASSACHUSETTS

Questions Presented for Review.

I. Whether this Court should resolve the division of stand-

ards amongst the federal circuit courts and determine the cir-

cumstances which mandate the granting of severance by the

trial court when a defendant seeks to testify as to some counts

of an indictment but concommitantly to assert his Fifth Amend-

ment privilege against self-incrimination as to the other counts

of the indictment at trial.

I]. Whether where an undercover Drug Enforcement Ad-

ministration agent represented himself as a trafficker in illicit

drugs and expressly disclaimed connection with the United

States, knowledge of the governmental ownership of the money

in question is or is not an essential element for conviction of

a violation of 18 U.S.C. § 641, or alternatively, whether under

these circumstances, the exercise of federal jurisdiction is im-

permissible.

Table of Contents.

Opinions below

Jurisdiction

Constitutional and statutory provisions involved

Statement of the case

Ss £NMN WN NY

Reasons why the writ should be granted

I. This court should resolve the division of standards

amongst the federal circuit courts and determine

the circumstances which mandate the granting of

severance by the trial court when a defendant seeks

to testify as to some counts of an indictment but

concommitantly to assert his Fifth Amendment

privilege against self-incrimination as to the other

counts of the indictment at trial 7

II. Deception and disguise practiced by the under-

cover D.E.A. agent compel the conclusion that

there was no federal jurisdiction of this offense ab-

sent proof of defendant’s actual knowledge that the

monies in question were the propriety of the United

States government 13

Conclusion 17

Appendix follows page 17

Table of Authorities Cited.

CASES.

Alvarez v. Wainwright, 607 F.2d 683 (Sth Cir. 1979) 10

Baker v. United States, 401 F.2d 958 (D.C. Cir. 1968),

cert. denied, 400 U.S. 965 (1970) 7 285 Gee

il TABLE OF AUTHORITIES CITED.

Bradley v. United Siates, 433 F.2d 1113 (D.C. Cir.

1969) 9

Bruton v. United States, 391 U.S. 123 (1968) 13

Byrd v. Wainwright, 428 F.2d 1017 (Sth Cir. 1970) 13

Cross v. United States, 335 F.2d 987 (D.C. Cir. 1964) 9,11

Harrison v. United States, 392 U.S. 219 (1968) 10

Holmes v. Gray, 526 F.2d 622 (7th Cir 1975), cert.

denied, 434 U.S. 907 (1977) 10, 11

Morissette v. United States, 342 U.S. 246 (1952) 13n

Sherman v. United States, 356 U.S. 369 (1958) 16

United States v. Archer, 486 F.2d 670 (2d Cir. 1973) 16, 17

United States v. Armstrong, 621 F.2d 951 (9th Cir.

1980) 10, 12

United States v. Baker, 693 F.2d 183 (D.C. Cir. 1982) 13

United States v. Bentvena, 319 F.2d 916 (2d Cir.), cert.

denied, 375 U.S. 940 (1963) 10

United States v. Boyd, 446 F.2d 1267 (Sth Cir. 1971) — 13

United States v. Crutchley, 502 F.2d 1195 (3d Cir.

1974) 13

United States v. Denmon, 483 F.2d 1093 (8th Cir.

1973) 13

United States v. Echeles, 352 F.2d 892 (7th Cir. 1965) 12,13

United States v. Falco, 478 F.2d 1376 (9th Cir. 1973) 16

United States v. Feola, 420 U.S. 671 (1975) 14, 15

United States v. Garrett, 716 F.2d 257 (Sth Cir. 1983),

cert. denied, 104 S.Ct. 1910 (1984) 16

United States v. Hamilton, 726 F.2d 317 (7th Cir. 1984) 13

United States v. Howey, 427 F.2d 1017 (9th Cir. 1970) 13

United States v. Jamar, 561 F.2d 1103 (4th Cir. 1977) i)

TABLE OF AUTHORITIES CITED. ili

United States v. Jannotti, 673 F.2d 578 (3d Cir.), cert.

denied, 457 U.S. 1106 (1982) 16

United States v. Jermendy, 544 F.2d 640 (2d Cir.

1976), cert. denied, 430 U.S. 909 (1977) 13

United States v. Johnson, 596 F.2d 842 (9th Cir. 1979) 15n

United States v. Lee, 428 F.2d 917 (6th Cir. 1970), cert.

denied, 404 U.S. 1017 (1972) 9

United States v. Long, 706 F.2d 1044 (9th Cir. 1983) 15n

United States v. Reicherter, 647 F.2d 397 (3d Cir. 1981) 8,

11, 12

United States v. Smith, 489 F.2d 1330 (7th Cir. 1973),

cert. denied, 416 U.S. 994 (1974) 16

United States v. Sorrow, 732 F.2d 176 (11th Cir. 1984) 16

United States v. Speir, 564 F.2d 934 (10th Cir. 1977),

cert. denied, 435 U.S. 927 (1978) 13

United States ex rel. Tarallo v. LaVallee, 433 F.2d 4

(2d Cir. 1970), cert. denied, 403 U.S. 919 (1971) 10, 12

United States v. Valentine, 706 F.2d 282 (10th Cir.

1983) 9, 12

United States v. Weber, 437 F.2d 327 (3d Cir. 1970),

cert. denied, 402 U.S. 932 (1971) 10

United States v. Werner, 620 F.2d 922 (2d Cir. 1980) 8,12

United States v. Williamson, 482 F.2d 508 (Sth Cir.

1973) 9

United States v. Yermian, 104 S.Ct. 2936 (1984) 15

Wangrow v. United States, 399 F.2d 106 (8th Cir.),

cert. denied, 393 U.S. 933 (1968) )

Williams v. Florida, 399 U.S. 78 (1970) 10, 11

iv TABLE OF AUTHORITIES CITED.

OTHER PROVISIONS.

United States Constitution

Fifth Amendment 2, 8, 9, 10

Federal Rules of Criminal Procedure

Rule 14 3, 8, 9, 10, 11

18 U.S.C. § 111 14

18 U.S.C. § 371 4

18 U.S.C. § 641 3, 4, 7, 11, 12 et seq.

18 U.S.C. § 1001 15

21 U.S.C. § 841(a)(1) 4

21 U.S.C. § 846 4

28 U.S.C. § 1254(1) 2

No. ‘

In the

Supreme Court of the United States.

OCTOBER TERM, 1984.

JOHN NAPOLI,

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certic-ari to the United States

Court of Appeals for the Second Circuit.

Petitioner John Napoli prays that this Honorable Court grant

a writ of certiorari to review the judgment of the United States

Court of Appeals for the Second Circuit entered in this case

on July 13, 1984.

2

Opinions Below.

Petitioner's appeal was heard by a panel of the Second

Circuit which issued an unpublished opinion affirming

petitioner's conviction on July 13, 1984, which opinion is

reproduced herein in the Appendix at 2a-4a. On August 29,

1984, the Court denied petitioner's timely petition for rehear-

ing, see Appendix at la.

Jurisdiction.

The judgment below was entered on July 13, 1984, and a

petition for rehearing was denied on August 29, 1984.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved.

The Fifth Amendment to the United States Constitution pro-

vides:

No person shall be held to answer for a capital, or other-

wise infamous crime. unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law; nor

shall private property to be taken for public use, without

just compensation.

18 U.S.C. § 641 provides:

Whoever embezzles, steals, purloins, or knowingly con-

verts to his use or the use of another, or without authority,

sells, conveys or disposes of any record, voucher, money,

or thing of value of the United States or of any department

or agency thereof, or any property made or being made

under contract for the United States or any department or

agency thereof; or

Whoever receives, conceals, or retains the same with

intent to convert it to his use or gain, knowing it to have

been embezzled, stolen, purlcined or converted —

Shall be fined not more than $10,000 or imprisoned not

more than ten years, or both; but if the value of such

property does not exceed the sum of $100, he shall be

fined not more than $1,006 or imprisoned not more than

one year, or both.

The word “value” means face, par, or market value, or

cost price, either wholesale or retail, whichever is greater.

Federal Rule of Criminal Procedure 14 provides:

If it appears that a defendant or the government ‘s prej-

udiced by a joinder of offenses or of defendants in an

indictment or information or by such joinder for trial

together, the court may order an election »r separate trials

of counts, grant a severance of defendants or provide

whatever other relief justice requires. In ruling on a motion

by a defendant for severance the court may order the

attorney for the government to deliver to the court for

inspection in camera any statements or confessions made

by the defendants which the government intends to intro-

duce in evidence at trial.

4

Statement of the Case.

After a jury trial in October, 1983, petitioner was convicted

of receiving stolen government money under 18 U.S.C. § 641,

distributing heroin under 21 U.S.C. § 841(a)(1), and conspir-

acy to commit these offenses under 18 U.S.C. § 371 and 21

U.S.C. § 846, respectively. Judgment entered on January 20,

1984.

The evidence at trial portrayed a quintessential “rip-off”

scheme.' On August 24, 1982, co-defendant Frank Guglielmini

telephoned petitioner Napoli and one Gary Francione to enlist

their assistance. As the three men drove to a pre-arranged

meeting with the proposed dupes, Guglielmini explained to

Napoli and Francione that he needed their help in “ripping

off” one Alvin Kotz, who had failed to pay Guglielmini money

owed to him. His plan contemplated presenting Napoli and

Francione to Kotz as narcotics dealers to set the stage for a

sham drug transaction in which Kotz would be relieved of the

monies produced by him to fi..ance his end of the deal without

the corresponding delivery of narcotics, which were to be

promised but not produced.

Unknown to the plotters, Kotz was a confidential informant

for the Drug Enforcement Administration, working with Spe-

cial Agent Dannie West, who was present with Kotz at the

August 24 meeting, assuming the identity of a prospective

narcotics purchaser (“Danny”) The conversation at the meet-

ing revolved around the proposed sale of heroin to “Danny”

by Napoli and Francione.

As a resuit of this meeting and several subsequent telephone

conversations, a meeting was arranged at Newark Airport for

the purported sale of one-half kilogram of heroin to “Danny” for

'The unpublished opinion of the Court of Appeals contains no statement of facts.

Accordingly, petitioner sets forth herein a brief statement of the facts necessary to

the issues presented.

5

$120,000 on August 26, 1982. On that date, “Danny” met

with Francione in the former’s automobile to negotiate whether

the putative heroin and the money would be exchanged simul-

taneously or whether the money would be paid first, with

delivery to follow thereafter. Upon seeing Napoli standing

inside the terminal a short distance away, “Danny” agreed to

give Francione the cash? with the understanding that Francione

would transfer the money to Napoli and return with the nar-

cotics. Francione left “Danny’s” automobile with the money

and walked toward the terminal. At this crucial juncture, Agent

West’s attention was diverted by the arrival of a marked police

car which pulled up behind his vehicle with sirens blaring.

When Agent West had recovered his composure sufficiently

to seek out Napoli and Francione, he was unable to locate them.

In a series of telephone conversations which followed this

meeting, Napoli told “Danny” that Francione had fled the

scene upon observing the police vehicle apparently heading

toward “Danny’s” automobile; in a subsequent conversation,

Napoli, according to the government, informed “Danny” that

Francione’s temporary scarper had matured into a permanent

one, involving both the money and the heroin destined for

“Danny”. In light of the compromising position in which his

contederate’s defalcation had placed him, Napoli told “Danny”

that he would supply a full kilogram of heroin upon payment

of only an additional $60,000. The purported willingness of

Danny to on e again part with his money without seeking to

test the subject of the transaction, coupled with the rousing

success of the earlier scam, apparently inspired the parties to

repeat the ploy.

On September 1, 1982, Napoli and “Danny” arranged to

meet in Brooklyn to effect the transfer. For this purpose, Napoli

had prepared a “dummy” package, i.e., one containing a legal

> $120,000 withdrawn from the D.E.A. cashier.

6

heroin look-alike. On route to the appointed meeting, Agent

West observed Napoli at a public telephone booth a few blocks

from the meeting site. “Danny” confronted Napoli with a gun

prominently displayed in his waistband and with an apparent

confederate nearby. Napoii and “Danny” drove, at Napoli’s

request, to a nearby diner where Napoli excused himself to

make a telephone call and then told “Danny” that he was

compelled to leave immediately to “meet his people”.

Leaving “Danny” at the diner, Napoli proceeded in

“Danny’s” automobile to meet with one George Downes. He

telephoned “Danny” at the diner and declined to carry the

transaction further as Danny was armed and not alone. He

further informed Kotz that for these reasons, and also because

“Danny” now insisted upon testing a sample prior to parting

with his money, the deal was off, and also relayed this infor-

mation to Francione. Francione volunteered to supply a sub-

stance which would test positively for heroin * to be presented

as asample. Reluctantly, Napoli agreed to proceed and, follow-

ing another series of telephone conversations between Napoli

and “Danny”, it was agreed that Napoli would send someone

to meet “Danny” with a sample. Accordingly, Downes deliv-

ered to “Danny” a small aluminum foil packet, which had

been supplied by Francione; the field test performed upon the

substance contained therein indicated positive for heroin.*

Thereafter, “Danny” expressed his satisfaction with the sample

to Napoli by telephone, requesting delivery of the complete

package. Downes returned to “Danny” with a package of pow-

der which was duly exchanged for $60,000.° As soon as Downes

‘Evidence was adduced at trial that the Marquis Reagent Test, the usual device

for field-testing narcotics, will also indicate a positive result for substances other

than illegal narcotics, many of which may be purchased over the counter in any

drugstore.

* Subsequent laboratory testing by a D.E.A. chemist indicated that the substance

did contain heroin.

‘Also withdrawn from the D.E.A. cashier.

7

left the scene, Agent West field-tested the substance in the

package and obtained a negative indication. Nevertheless,

Napoli was arrested shortly thereafter and upon his person was

found currency the serial numbers of which matched those

belonging to a portion of the initial $120,000 with which

Francione had absconded.

Prior to trial, Napoli moved to dismiss the § 641 counts on

the ground that the government’s deliberate deception and

disguise regarding the provenance of the funds rendered a

§ 641 prosecution impermissible. He also requested that the

jury be instructed that Napoli could not be convicted absent

proof of knowledge that the money involved was the property

of the United States government, which request was denied.

Prior to trial, and renewed during trial, Napoli also moved to

sever the § 641 counts from the narcotics counts on the basis of

his need to testify as to the narcotics counts and his correspond-

ingly compeliing need not to testify as to the money counts. The

motion was denied, and Napoli testified at trial in a manner

which exculpated himself on the drug counts but which necessar-

ily inculpated himself on the money counts, precisely the quan-

dary which had been placed before the trial judge. Substantial

terms of imprisonment were imposed on all counts.

Reasons Why the Writ Should be Granted.

I. THIS COURT SHOULD RESOLVE THE DIVISION OF STAND-

ARDS AMONGST THE FEDERAL CIRCUIT COURTS AND DETER-

MINE THE CIRCUMSTANCES WHICH MANDATE THE GRANT-

ING OF SEVERANCE BY THE TRIAL COURT WHEN A DEFEND-

ANT SEEKS TO TESTIFY AS TO SOME COUNTS OF AN INDICT-

MENT BUT CONCOMMITANTLY TO ASSERT His FIFTH

AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AS

TO THE OTHER COUNTS OF THE INDICTMENT AT TRIAL.

The quandary in which petitioner was placed here was palp-

able and patently prejudicial. Confronted with the spectre of

8

joint trial on charges of receiving stolen government monies

and distribution of heroin, Napoli was faced with a dilemma

of immense proportion: whether to remain silent as to all counts

and suffer the attendant consequences or whether to effectively

concede his guilt as to the money counts in the course of

explaining the nature and scope of the planned “rip-off”, an

inescapable concommitant of his disavowal of any intention

to distribute narcotics and, indeed, even of knowledge that the

sample actually did contain heroin. Napoli’s defense to the

narcotics counts, which met the government’s proof completely

and consistently, was that he never possessed the requisite

knowledge or intent to distribute narcotics but, on the contrary,

his intent was merely to perform a credible charade bearing

convincing indicia of a contemplated drug transaction to lull

the intended victims into unsuspectingly parting with their

money without actual delivery of narcotics, either through

negotiating advance payment or, failing that, the provision of

a non-narcotic substitute.° The indefensible Hobson's choice,

which the refusal to sever created, entirely vitiated the

petitioner’s Fifth Amendment protection against self-incrimi-

nation.

The Circuit Courts of Appeals have not developed a defini-

tive and consistent approach to this troublesome question. In-

deed, three analytically distinguishable treatments are evident,

which fail even of internal consistency within each circuit.

Some courts treat the matter simply as one of judicial discretion

under Fed. R. Crim. P. 14, and have accordingly limited their

review to determination of whether that discretion has been

abused, without adverting to the Fifth Amendment implica-

tions. See, e.g., United States v. Reicherter, 647 F.2d 397

(3d Cir. 1981); United States v. Werner, 620 F.2d 922 (2d

* Petitioner testified at trial that he believed that the sample packet provided by

Francione would contain a substance which would produce a positive field test

result but which would not, in fact, be an illegal narcotic substance.

9

Cir. 1980); United States v. Williamson, 482 F.2d 508 (Sth

Cir. 1973); United States v. ¢ ee, 428 F.2d 917 (6th Cir. 1970),

cert. denied, 404 U.S. 1017 (1972); Wangrow v. United States,

399 F.2d 106 (8th Cir.), cert. denied, 393 U.S. 933 (1968).

Other courts, while recognizing the inherent Fifth Amend-

ment considerations, have simply incorporated them as an

element to be balanced under Rule 14. The leading proponent

of this analysis has been the Court of Appeals for the District

of Columbia, which formulated its rule in Baker v. United

States, 401 F.2d 958, 977 (D.C. Cir. 1968), cert. denied, 400

U.S. 965 (1970), which pronouncement remains the corner-

stone of subsequent jurisprudence in this area:

[N]o need for severance exists until the defendant makes

a convincing showing that he has both important testimony

to give concerning one count and strong need to refrain

from testifying on the other. In making such a showing,

it is essential that the defendant present enough informa-

tion — regarding the nature of the testimony he wishes

to give on one count and his reasons for not wishing to

testify on the other — to satisfy the court that the claim

of prejudice is genuine and to enable it intelligently to

weigh the considerations of ‘economy and expedition in

judicial administration’ against the defendant’s interest in

having a free choice with respect to testifying.

See, e.g., United States v. Valentine, 706 F.2d 282 (10th Cir.

1983); United States v. Jamar, 561 F.2d 1103, 1108 n.9 (4th

Cir. 1977); Bradley v. United States, 433 F.2d 1113, 1122

(D.C. Cir. 1969); Cross v. United States, 335 F.2d 987, 989

(D.C. Cir. 1964).

Many courts consider the Baker analysis dispositive even

of Fifth Amendment claims made independently of Rule 14

10

severance claims. See, e.g., United States v. Armstrong, 621

F.2d 951 (9th Cir. 1980); Alvarez v. Wainwright, 607 F.2d

683, 685 n.2 (Sth Cir. 1979); Holmes v. Gray, 526 F.2d 622,

626 (7th Cir. 1975), cert. denied, 434 U.S. 907 (1977); United

States ex rel. Tarallo v. LaVallee, 433 F.2d 4, 5 (2d Cir.

1970), cert. denied, 403 U.S. 919 (1971).

Only one court has analytically distinguished the right to be

free from compulsory self-incrimination from the question of

prejudicial joinder in this context. United States v. Weber,

437 F.2d 327 (3d Cir. 1970), cert. denied, 402 U.S. 932

(1971). The Weber court subjected the Fifth Amendment ques-

tion to independent scrutiny, properly recognizing that no mere

balancing of equities may dispose of the constitutional protec-

tions at issue.

The Court of Appeals for the Second Circuit disposed sum-

marily of petitioner’s claim on the basis that there was no

abuse of discretion in the denial of severance and, in any event,

joint trial did not prejudice defendant. See Appendix at 4a.

This conclusion is patently erroneous: not only is it based upon.

an improper standard, one which utterly ignores the substantial

Fifth Amendment interests at stake, but furthermore it is invalid

even assuming the propriety of subjecting such a fundamental

constitutional protection to a Rule 14 balancing inquiry.

Petitioner was caught between the Scylla of relinquishing

his right to testify in his own behalf, see United States v.

Bentvena, 319 F.2d 916, 942-44 (2d Cir.), cert. denied, 375

U.S. 940 (1963), and the Charybdis of forfeiting his Fifth

Amendment protection. Cf. Harrison v. United States, 392

U.S. 219, 222 (1968). Unlike the situation in most of the cases

which have considered this issue, Napoli did not have an

“unfettered choice,” Williams v. Florida, 399 U.S. 78 (1970),

between testifying on the money counts or remaining silent.

See, e.g.. Uniied States v. Weber, 437 F.2d at 335 (defendant

free to remain silent on count to which he contended pretrial

11

he did not wish to testify; strategic decision that best chance

of acquittal involved denial of involvement in both extortion

schemes as opposed to selective denial of one and silence on

other). Cf. Holmes v. Gray, 526 F.2d at 626. Rather, the

circumstances here mandated testimony inculpating Napoli on

the money counts in the course of presenting his defense to

the jury. Negation of the intent and knowledge elements of

the narcotics charges necessarily required an admission of an

intent to permanently deprive “Danny” of his money. While

the inextricably interwoven nature of the offenses charged

might well militate against the granting of a Rule 14 motion

not implicating the privilege, in a case such as petitioner’s,

the particular concatenation of circumstances eliminates even

the theoretical possibility of presenting his evidence as to the

narcotics counts and remaining silent as to the money counts,

assuming the risk of an adverse inference from his silence on

one count which could only be exacerbated by testimony on

the other. See, e.g., Cross v. United States, 335 F.2d at 989

& n.5. Even this unenviable alternative was denied petitioner.

Furthermore, petitioner’s defense to the narcotics counts was

not one which was susceptible to presentation through other

witnesses, thus ameliorating the Fifth Amendment conundrum.

See, e.g., United States v. Reicherter, 647 F.2d at 401 (alibi).

Cf. Williams v. Florida, 399 U.S. 78 (1970). Under all the

circumstances of this case, petitioner’s inculpatory testimony

on the § 641 counts was compelled within the meaning of the

Fifth Amendment.

Even if this issue is capable of resolution within the parame-

ters of Rule 14 and the Baker-Cross analysis, severance should

have been granted. Petitioner repeatedly and vigorously de-

lineated for the trial judge the importance of the testimony that

he wished to offer on the narcotics counts and the compelling

need not to present that testimony at a joint trial, unlike most

of the cases which have applied the Baker standard. See, e.g.,

12

United States v. Valentine, 706 F.2d at 291; United States v.

Werner, supra; United States v. Reicherter, supra; United

States ex rel. Tarallo v. LaVallee, supra; United States v.

Armstrong, supra.’

Petitioner’s testimony relative to the narcotics counts neces-

sarily encompassed an effective admission of all the elements

of the § 641 offense except for the ownership of the monies

in question by the United States government. The prejudice

flowing therefrom cannot be doubted;* while judicial economy

is a serious consideration in severance determinations,

“[nlevertheless, a single joint trial, however desirable from

the point of view of efficient and expeditious criminal adjudi-

cation, may not be had at the expense of a defendant’s right

to a fundamentally fair trial.” United States v. Echeles, 352

F.2d 892, 896 (7th Cir. 1965). In Napoli’s case, while separate

trials would necessarily produce some duplication of proof,

the evidence at the separate trials wouid be by no means con-

gruent; indeed, proof which consumed substantial portions of

trial time (e.g., the provenance of the monies or the accuracy

of field-testing) would not require repeat performance.

Only a separate trial of the § 641 counts which preceded

trial of the narcotics counts could alleviate the overwhelming

prejudice inherent in this joint trial. The trial judge had the

power to dictate the precedence of the separate trials. See, e.g.,

’ Furthermore, the testimony offered was not merely cumulative, see, e.g., United

States v. Valentine, supra, nor is there any reason to believe that petitioner would

not in fact have remained silent at a separate trial of the § 641 offenses, see, e.g.,

Baker v. United States, 401 F.2d at 977.

“In addition, in a separate trial of the § 641 counts, Napoli would obviously not

have embarked upon the slippery slope of calling co-defendant Guglielmini as a

witness to substantiate his contention that no drug transaction was intended, provid-

ing the prosecutor the opportunity to impeach Guglielmini with his guilty plea to

the § 641 count of the very indictment at trial, an event of immense prejudicial

impact.

13

Byrd v. Wainwright, 428 F.2d 1017 (Sth Cir. 1970); United

States v. Echeles, 352 F.2d at 898. Cf. Bruton v. United

States, 391 U.S. 123 (1968). Preservation of the fundamental

privilege against self-incrimination demanded such resolution

here.

Il. DECEPTION AND DISGUISE PRACTICED BY THE UNDER-

COVER D.E.A. AGENT COMPEL THE CONCLUSION THAT

THERE WasS No FEDERAL JURISDICTION OF THIS OFFENSE

ABSENT PROOF OF DEFENDANT'S ACTUAL KNOWLEDGE

THAT THE MONIES IN QUESTION WERE THE PROPERTY OF

THE UNITED STATES GOVERNMENT.

This Court has never examined the question of whether,

and to what extent, knowledge of the governmental ownership

of the monies or property in question is an element of the

offense under 18 U.S.C. § 641.° There is, admittedly, a general

consensus among the circuits that such knowledge is not an

element of the offense. See, e.g., United States v. Hamilton,

726 F.2d 317 (7th Cir. 1984); United States v. Baker, 693

F.2d 183 (D.C. Cir. 1982); United States v. Speir, 564 F.2d

934 (10th Cir. 1977), cert. denied, 435 U.S. 927 (1978);

United States v. Jermendy, 544 F.2d 640 (2d Cir. 1976), cert.

denied, 430 U.S. 909 (1977); United States v. Crutchley, 502

F.2d 1195 (3d Cir. 1974); United States v. Denmon, 483 F.2d

1093 (8th Cir. 1973); United States v. Boyd, 446 F.2d 1267

(Sth Cir. 1971); United States v. Howey, 427 F.2d 1017 (9th

Cir. 1970).'° These cases are most noteworthy for their utter

*In Morissette v. United States, 342 U.S. 246 (1952), this Court heid that

specific intent is an element of the § 641 offense.

'° Many of these cases simply adopted the holding of the Ninth Circuit in Howey.

Howey rested upon the superficially compelling analogy to the common law defi-

nition of larceny, which does not require proof that the defendant knew precisely to

14

lack of thoughtful analysis, glibly dismissing the question on

the ground that government ownership provided the jurisdic-

tional basis for the federal prosecution. However, the question

is not simply whether a given requirement is jurisdictional but

rather whether it is jurisdictional only. United States v. Feola,

420 U.S. 671, 676 n.9 (1975).

In Feola, while holding that knowledge that the assaultee

was a federal officer was not an element of the offense under

18 U.S.C. § 111, this Court nonetheless refrained from making

its pronouncement absolute, concluding rather that actual

knowledge may in fact be relevant under some circumstances:

The statute does require a criminal intent, and there may

well be circumstances in which ignorance of the official

status of the person assaulted or resisted negates the very

existence of mens rea. For example, where an officer

fails to identify himself or his purpose, his conduct in

certain circumstances might reasonably be interpreted as

the unlawful use of force directed either at the defendant

or his property. In a situation of that kind, one might be

justified in exerting an element of resistance, and an hon-

est mistake of fact would not be consistent with criminal

intent.

Id. at 686.

whom the property belonged; however, where the question is what interests of the

federal government the statute was designed to protect or, conversely, what conduct

falls within the ambit of the statute, the absence of such a specific knowledge

requirement from the common law definition is analytically utterly irrelevant. Yet

this is the touchstone upon which most of the circuits have founded their conclusions.

The common law definition of assault is similarly silent as to knowledge of the

identity of the victim, yet in United States v. Feola, this court engaged in a lengthy

and careful analysis of whether the intent of 18 U.S.C. § 111 (making it a crime

to assault a federal officer while in the performance of his duties) was to protect

federal officers, in which case knowledge of identity would not be required, or

federal functions, in which case knowledge would be required, or both.

15

Similarly, in United States v. Yermian, 104 S.Ct. 2936 (1984),

holding that 18 U.S.C. § 1001 did not require proof of actual

knowledge that the false statements at issue were made in a

matter within the jurisdiction of a federal agency,'' this Court

proceeded on the assumption that some lesser culpability stand-

ard was required, declining to pass upon the propriety of the

jury instructions that agency jurisdiction must have been

reasonably foreseeable, on a “knew or should have known”

standard. Compare id. at 2943 n.14 with id. at 2943-44

(Rehnquist, J. dissenting). Both Feola and Yermian leave open

the question of the proper standard of culpability where it was

not reasonably within the power of a defendant to discover

the nexus between his conduct and the federal government

which would bring his conduct within the purview of a specific

federal criminal statute,'? either because of the significant at-

tenuation or, as in this case and as implicit in the language of

Feola, quoted supra, because of illegality or deceit on the part

of government agents.

18 U.S.C. § 1001 provides “Whoever, in any matter within the jurisdiction

of any department or agency of the United States knowingly and wilfully falsifies

. . or makes any false, fictitious or fraudulent statements or representations . . .”.

That petitioner knew of the falsity of his statements was not in dispute in Yermian;

similarly, matter printed on the forms on which the information was contained was

sufficient to put a reasonably perceptive person on notice of the federal interest in

the matter. The Court, parsing the statutory phraseology, apportioned the “know-

ingly and wilfully” language to the falsification element rather than the agency

jurisdiction element. By contrast, the statute at issue in Feola provided simply

“Whoever forcibly assaults . . . [a federal officer] while engaged in or on account

”

of the performance of his official duties . . .”.

'* Another consistently distinguishing characteristic of the cases considering the

knowledge requirement is the almost uniform existence of circumstances which

would have supported conviction on a reasonable foreseeability standard, i.e.,

where the federal provenance of the property or monies would have been discern-

able. See, e.g., United States v. Johnson, 596 F.2d 842 (9th Cir. 1979); United

States v. Long, 706 F.2d 1044 (9th Cir. 1983).

16

The purpose of § 641 is protection of federal property. Cf.

United States v. Sorrow, 732 F.2d 176 (11th Cir. 1984). Any

such interest becomes severely attenuated where federal agents

not only deliberately place federal funds at risk but further

create elaborate fictional guises to obscure the federal proven-

ance of the funds.'* There are apparently only two decisions

of federal Courts of Appeals which have considered this issue.

United States v. Smith, 489 F.2d 1330 (7th Cir. 1973), cert.

denied, 416 U.S. 994 (1974); United States v. Falco, 478

F.2d 1376 (9th Cir. 1973). Both concerned classic “rip-off”

situations in which the unwitting dupe was to be deprived of

his purchase money without provision of the bargained for

consideration, in Smith, narcotics, and in Falco, counterfeit

currency. Defendants in both cases contended that the govern-

ment conduct constituted entrapment, an argument misper-

ceived by the courts as pertaining to inducement to commit

the theft per se rather than pertaining to the federal element

of the offense. The offenses here charged under § 641 were

indisputably the product of the creative activity of law enforce-

ment officials. See, e.g., Sherman v. United States, 356 U.S.

369, 372 (1958); United States v. Jannotti, 673 F.2d 578,

596-97 (3d Cir.), cert. denied, 457 U.S. 1106 (1982). Without

the government’s deceit and inducement, no crime cognizable

under § 641 would have been committed.'* See United States v.

Garrett, 716 F.2d 257, 268-71 (Sth Cir. 1983), cert. denied,

104 S.Ct. 1910 (1984); United States v. Archer, 486 F.2d 670

‘With the exception of a handful of cases discussed further infra, prosecutions

under § 641 have involved defendants who wrongfully removed government prop-

erty or monies from their rightful repository or who received such property from

one who had done so, a vastly different scenario from one in which government

agents insinuate government funds into the stream of commerce, both encouraging

takers and discouraging inquiry.

‘Indeed, had circumstances been as they appeared, both state and federal law

enforcement authorities would undoubtedly have been utterly indifferent to the

pecuniary aspects of the transaction.

17

(2d Cir. 1973). With respect to analogous claims of manutac-

tured jurisdiction under the Travel Act, the Second Circuit in

Archer held that:

{Wyhen the federal element in a prosecution under the

Travel Act is furnished solely by undercover agents, a

stricter standard is applicable than when the interstate or

foreign activities are those of the defendants themselves.

Id. at 685-686. Similarly, it is a far different situation where

a defendant has acted with either actual imputed knowledge

of the federal interest or with reckless disregard of potential

federal interests in the matter than where, as here, disguise

and deception were practiced intentionally by federal agents

for the specific purpose of ensuring that the defendant could

not and would not ascertain the federal involvement in the

matter. Where it has provided the carrot in this fashion, fairness

and due process of law demand that the government be denied

the use of the stick.

Conclusion.

For all the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

MARTIN G. WEINBERG,

Counsel of Record,

KIMBERLY HOMAN,

OTERI, WEINBERG & LAWSON,

75 Blossom Court,

Boston, Massachusetts 02114.

(617) 227-3700

Appendix.

Table of Contents.

Order of United States Court of Appeals for the Second

Circuit, August 29, 1984

Opinion of United States Court of Appeais for the Sec-

ond Circuit, July 13, 1984

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United States Court of Appeals

for the Second Circuit.

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

and for the Second Circuit, held at the United States Court-

house, in the City of New York, on the 29th day of August

one thousand nine hundred and eighty-four.

UNITED STATES OF AMERICA, No. 84-1053

Appellee,

v

JOHN NAPOLI,

Defendant-Appellant.

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by defendant-

appellant, John Napoli,

Upon consideration by the panel that 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 transmitted to the judges of the court in regular active

service and to any other judge on the panel that heard the

appeal and that no such judge has requested that a vote be

taken thereon.

Elaine B. Goldsmith,

Clerk

2a

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 thirteenth day of July one

thousand nine hundred and eighty-four.

Present: HONORABLE WALTER R. MANSFIELD,

HONORABLE THOMAS J. MESKILL,

HONORABLE RICHARD J. CARDAMONE,

Circuit Judges.

UNITED STATES OF AMERICA,

Appellee, Docket No. 84-1053

Vv

JOHN NAPOLI,

Defendant-Appellant.

This is an appeal from a judgment entered on a jury verdict

by the United States District Court for the Eastern District of

New York, McLaughlin, J. Napoli was convicted of receiving

stolen government money under 18 U.S.C. § 641 (1982),

distributing heroin under 21 U.S.C. § 841(a)(1) (1982), and

conspiracy to commit the above substantive offenses under 18

U.S.C. § 371 (1982) and 21 U.S.C. § 846 (1982).

This cause came on to be heard on the transcript of record

from said district court and was taken on submission.

The judgment of the district court is AFFIRMED.

3a

Giving proper deference to the district court’s credibility

determinations, see Tr. at 100, we cannot conclude that the

district court clearly erred in crediting the government’s tes-

timony. Thus, we accept the findings that Agent Rakowsky

properly read appellant his Miranda rights and that appellant

did not ask to call his attorney prior to making a statement to

Agent Johnson.

Under the totality of the circumstances, see United States

v. Vera, 701 F.2d 1349, 1364 (11th Cir. 1983), we hold that

the district court did not clearly err in holding that appellant

knowingly, intelligently and voluntarily waived his Miranda

rights when he chose to cooperate with Agent Johnson. See

United States v. Rubio, 709 F.2d 146, 153 (2d Cir. 1983).

Immediately after appellant agreed to talk to Johnson and asked

him what he wanted to know, Johnson ascertained that appel-

lant had been advised of his Miranda rights and that he under-

stood them. Tr. at 44. The district court found that appellant

had been arrested at least seven or eight times previously, Tr.

at 100, and appellant evidently had been read his rights on at

least ten occasions, Tr. at 76. The record supports the district

court’s conclusion that appellant understood his rights and

voluntarily waived them.

The district court did not cleariy err in finding that the

atmosphere in the DEA office was not oppressive, Tr. at 100,

and that appellant ’s statements to Johnson were not the product

of coercion. Agent Johnson’s question to appellant regarding

whether he wanted to cooperate, Tr. at 43, was not a form of

interrogation under Miranda. See United States v. Guido, 704

F.2d 675, 677 (2d Cir. 1983). Because Johnson did not begin

to interrogate appellant at that time, there was no need for

fresh Miranda warnings. Johnson was free to answer appel-

lant’s questions regarding cooperation and did so in a “back

and forth” discussion in which appellant was evidently an

active participant. See Tr. at 43-44. After this dialogue, appellant

da

indicated to Johnson that he would talk to him and invited

questioning by asking Johnson what he wanted to know. Tr.

at 44. Because appellant freely offered to cooperate and be-

cause he was well aware of his Miranda rights at the time he

did so, the district court did not err in finding that there was

no coercion.

Appellant’s other contentions are also meritless.

(1) The DEA Form 12s are not like the lab reports in United

States v. Oates, 560 F.2d 45 (2d Cir. 1977), but are routine

reports based on routine procedures. Agent West provided

testimony suggesting that the documents were reliable and that

was sufficient for their admission. See, e.g., /tel Capital Corp.

v. Cups Coal Co., 707 F.2d 1253, 1259-60 (11th Cir. 1983).

(2) There was no abuse of discretion in denying a severance

and the denial of the severance tid not prejudice appellant.

See United States v. Lyles, 593 F.2d 182, 189-90 (2d Cir.),

cert. denied, 440 U.S. 975 (1979). (3) The government’s

evidence that appellant knew the money was stolen went to

the essence of the crimes with which he was charged and was

not “similar act” evidence. (4) Frank Guglielmini’s testimony

was relevant for impeachment purposes, United States v.

Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982), and was not

contrary to the district court’s ruling. In any event, appellant

does not claim that he asked for a cautionary instruction; thus,

under Fed. R. Evid. 105, the trial court was not obligated to

give one. (5) Finaily, appellant need not have known the juris-

dictional fact that the money belonged to the United States in

order to be convicted of receiving stolen money belonging to

the United States. United States v. Jermendy, 544 F.2d 640,

641 (2d Cir. 1976) (per curiam), cert. denied, 430 U.S. 909

(1977); cf. United States v. Yermian, 52 U.S.L.W. 4922 (U.S.

June 27, 1984) (false statements to government agency).

Walter R. Mansfield, U.S.C.J.

Thomas J. Meskill, U.S.C.J.

Richard J. Cardamone, U.S.C.J.

N.B. Since this statement 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.