Petition for Writ of Certiorari — Marino v. United States

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FILED

No. EB 18 ies

OSEPSE & ieee :

eS CLERK

In The 7

Supreme Court of the United States

October Term, 1987

NICHOLAS MARINO,

Petitioner,

VS.

UNITED STATES OF AMERICA,

: Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

WASHOR, GREENBERG & WASHOR

Attorneys for Petitioner

291 Broadway

New York, NY 10007

(212) 732-2077

‘

MICHAEL S. WASHOR

HARVEY L. GREENBERG

On the Petition

{ ick Ra (ey Ds NntENS, 203 Port Richmond Avenue @ Staten Island, New York 10302

212) 608-7666 — (718) 447-5358 — (516) 222-2470 — (914) 682-0848

QUESTIONS PRESENTED

1. May a criminal defendant use the entrapment

defense when he admits committing all of the acts con-

stituting the offense charged but denies possessing the re-

quisite criminal intent?

2. Did the extraneous evidence that came before the

Petit Jury so prejudice the Petitioner MARINO, as to

deny him a fair and impartial trial, his right of confronta-

tion, his right of counsel and due process?

PARTIES

The Appellant in the United States Court of Appeals

for the Third Circuit and the defendant in the United

States District Court of New Jersey, was NICHOLAS

MARINO.

TABLE OF CONTENTS

Pages

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ETT cist ens cosbncgavenecshsseonncceceqocoass ]

TT et cdiineahenacdedasdactonsescucceeceoeuccnccvesss 2

Constitutional and Statutory Provisions ..................++. 2

a cancun aduneckessobbeosennsbenessos 3

TR iis an ssa capeneecaceneseesocsubaseseeausoeed +

TE caida disddscueyeannancecnonssesssenecseseosand 9

Reasons for Granting the Wit ...............ccccscccsseceees 15

POINT I—This Court should grant Certiorari as this

case presents important Constitutional issues concer-

ning the right of the Petitioner to have had his defense

of entrapment présented to the Petit Jury. The Trial

Court’s refusal to charge the defense of entrapment

violated the Petitioner’s Fifth Amendment rights.

The conflicts in the Circuits results in differing ap-

plications of the entrapment defense from Circuit to

ss la ieee Sdaeeniduaiecs 15

POINT II—This Court should grant Certiorari as this

Case presents important issues concerning the Peti-

tioner’s constitutional right to a fair and impartial

trial, right of confrontation, right to counsel and due

process; Extraneous and extrajudicial evidence came

before the Petit Jury, and thereby undermined the

tenet of a fair trial; Petitioner was denied the oppor-

tunity to confront this extraneous evidence and

restore the irreputable damage to his case. ............... 24

RAINE: csccrncasanssenmssicnntnsnommsnansenininiiaeceie.. 30

Appendix A—Trial Court Decisions 4/22/87 .......... la

Appendix B—Docket and Entry Judgment of Trial

NE Biatercinatasiiddncan teats ne a) Sa

Appendix C—Decision of the United States Court of

Appeals for the Third Circuit 12/23/87 ................... 17a

TABLE OF AUTHORITIES

Cases Pages

Briggs v. U.S., 221 F.2nd 636 (6th Cir. RED cccscnencstes 28

Crisp v. U.S., 262 F.2nd 68 (4th Cir. 1958) .........22222+5 22

Gibson v. Clanon, 633 F.2nd 851 (9h Cir. 1980) ........ 28

Government of Virgin Islands v. Gereau, §23 F.2nd

140 (3rd Cir. 1975) .....ccceccececeeceeneeneneeeeeeeneeueeeennees 26

Griffin v. U.S., 298 F.437 (3rd Cir. 1924) ......0s02esee0e8 28

Griffin v. U.S., 380 U.S. 609 (1965).......--ceeeeeeereeeeees 18

Hampton v. U.S., 425 U.S. 484 (1976) ......00eeeeeeeeeeees 17

Hansford v. U.S., 303 F.2nd 219 (D.C. Cir. 1962) ...... 20

Johnson v. U.S., 207 F.2nd 314 (Sth Cir. 1953) .......+-- 26-

Kinsella v. U.S., 361 U.S. 234 (1960) ......cceceeeeeeeeeeeees 16

Marshall v. U.S., 360 U.S. 310 (1989) ......ce-eeeeeeeeeeeees 27

McKibben y. Phil. & Reading Railway Co.,

251 F.877 (3rd Cir. 1918) ......cccceeeceeeeeeennneeseeneesennens 28

Napue v. Illinois, 360 U.S. 264 (1959) ..cccccccccccsccccceees 29

Parker v. Gladden, 385 U.S. 363 (1966) ......0-+-0eeeeeeees 27

Sherman v. U.S., 386 U.S. 373 (V9SB) .....eceeeeeeeeee 16, 17

Simmons v. U.S., 390 U.S. 377 (1968) .....cccccccccceeeees 18

Sorrells v. U.S., 287 U.S. 438 (1932) .....00000000. 16, 17, 23

Turner v. Louisiana, 379 U.S. 466 (196$) .....00000.0.0... 26

U.S. v. Alisup, $66 F.2nd 68 (Mh Cir. 1977) 00000000... 27

U.S. v. Annese, 631 F.2nd 1041 (1st Cir. 1980) ...... 19, 21

U.S. v. Bagley, 473 U.S. 667 (1985S)... 2»

U.S. v. Caron, $88 F.2nd 8$1 (Ist Cir. 1978) ............. 21

U.S. v. Demma, $23 F.2nd 981 (%h Cir. 1975). 16, 19, 22

U.S. v. Dorta, 783 F.2nd 1179 (4th Cir. 1986) ............ 22

U.S. v. Greer, 620 F.2nd 1383 (10th Cir. 1980) .......... 27

U.S. v. Henry, 749 F.2nd 203 (Sth Cir. 1984)... 19. 20

U.S. v. Hill, 68$ F.2nd $12 (3rd Cir. 1981)... 16

U.S. v. Howard, $06 F.2nd 86S (Sth Cir. 1975) ......... 29

U.S. v. Kelly, 748 F.2nd 691 (D.C. Cir. 1984)............. 20

U.S. v. Kum Seng Seo, 300 F.2nd 623 (3rd Cir. 1962). 28

U.S. v. Mathews, 803 F.2nd 325 (7th Cir. 1986) ...... 4, 16

U.S. v. Mora, 768 F.2nd 1197 (ith Cir. 1985)... 16

U.S. Prickett, 790 F.2nd 35 (6th Cir. 1986)... 16

U.S. v. Russell, 411 U.S. 423 (1973)........cccccceeee 16,

U.S. v. Silvestri, 719 F.2nd $77 (2nd Cir. 1983) ..........

U.S. v. Smith, 787 F.2nd 1161 (Lith Cir. 1985) ..........

U.S. v. Valencia, 645 F.2nd 1158 (2nd Cir. 1980)........

U.S. v. Vasquez, $97 F.2nd 192 (Hh Cir. 1979) ..........

U.S. v. Walker, 720 F.2nd 1$27 (i lth Cir. 1983) .........

Ware v. U.S., 289 F.2nd 442 (&th Cir. 1958) ........... vee

LAW REVIEW ARTICLES

Nagle, Inconsistent Defenses in Criminal Cases—92

DAS Baw. FF, CIGBED cocococcovccccccccossososssoosccossoonsss

Pleading the Entrapment Defense: The Propriety of

Inconsistency, 28 N.Y.L. Sch. L. Rev. 1025 (2983) .....

3n The

@upreme Court of the United States

October Term, 1987

NICHOLAS MARINO,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

NICHOLAS MARINO petitions this Court to issue a

Writ of Certiorari to the United States Court of Appeals

for the Third Circuit (hereinafter Circuit Court) to review

the decision of that Court, which upheld petitioner's con-

viction for conspiracy to transport stolen securities in in-

terstate commerce and to sell and dispose of said stolen

securities in violation of Title 18 U.S.C. Section 371, and

for receipt, sale, and disposition of stolen securities in

violation of Title 18 U.S.C. Section 2315 and Section 2,

and upheld the imposition of a sentence of incarceration

for Eighteen (18) months and a fine of Five-Thousand

(5,000.00) Dollars.

OPINIONS BELOW

The decision and Judgment of the United States

District Court (Ackerman, J.), is set forth in the annexed

appendix, “‘A’’.

The decision of the United States Court of Appeals

has not as yet been published in the official reports but is

set forth in the annexed appendix, ‘‘C’’.

JURISDICTIONAL STATEMENT

This Petition seeks review of a decision of the United

States Court of Appeals for the Third Circuit, rendered on

December 23, 1987, which decision affirmed petitioner’s

conviction for violating the provisions of Title 18 U.o.c.,

§§ 371, 2315 and 2.

This present petition was filed with this Court within

60 days of the date that the decision of the Circuit Court

was rendered on December 23, 1987.

This Court’s jurisdiction is invoked pursuant to 28

U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fifth Amendment to the United States Con-

stitution provides, in pertinent part, as follows:

‘“No person shall be . . . compelled in any criminal case to

be a witness against himself, nor be deprived of life, liber-

ty, OF property, without-due process of law.”’

2. The Sixth Amendment to the United States Con-

stitution provides, in pertinent part, as follows:

‘In all criminal prosecutions, the accused shall enjoy the

right to a. . . public trial, by an impartial jury,...tobe

confronted with the witnesses against him; . . . and to have

the assistance of counsel for his defense.’’

PRELIMINARY STATEMENT

This is an appeal by the petitioner, NICHOLAS

MARINO, from a judgment of conviction had after trial

before the Court and Jury (Judge Harold A. Ackerman),

United States District Court, District of New Jersey,

whereby the said petitioner was convicted under Counts I

and III (petitioner ws found not-guilty under Count II) of

Indictment Number 86-36, charging, respectively, under

Count I, conspiracy under Title 18 U.S.C. 371, to

transport stolen securities in interstate commerce and to

sell and dispose of said stolen securities; and, under Count

Ill, the substantive crime of receipt, sale and disposition

of stolen securities in violation of Title 18 U.S.C. 2315 &

Subsequent to the jury verdict, an evidentiary hearing

was held on Petitioner MARINO’s Motion for a new trial

based upon the jury’s receipt of extraneous material; that

Motion was denied and petitioner MARINO was sentenc-

ed as follows: On Count I, Eighteen (18) Months in-

carceration and a fine of TWENTY-FIVE HUNDRED

($2,500.00) DOLLARS: On Count III, eighteen (18) Mon-

ths incarceration and a fine of TWENTY-FIVE HUN-

DRED ($2,500.00) DOLLARS: The prison sentences

under Counts I & III to run concurrently.

The United States Court of Appeals for the Third Cir-

cuit affirmed.

This petition asks this Court to review the Circuit

Court’s decision. Petitioner contends that his Constitu-

tional rights were denied him in that he was deprived of

the defense of entrapment although he admitted all of the

acts constituting the offense charged but denied possessing

the requisite criminal intent; that this case presents

unresolved issues of law as relates to the application of the

defense of entrapment in that there is conflict in the Cir-

cuits in differing applications of the entrapment defense

from Circuit to Circuit.

Presently pending in this Court, in the Matter of

United States v. Mathews, 803 F. 2nd 325 (7th Cir.), cert.

granted, _. U.S.__ , 107 S. Ct. 1601 (No. 86-6109)

March 30th 1987, argued December 2nd 1987, 56

—-=U.S.L.W. 3398-99 (U.S. December 8th 1987) is the iden-

tical issue raised herein.

Petitioner, also, timely moved in the District Court,

seeking a new trial premised upon the receipt by the Petit

Jury of extraneous evidence during deliberations which

denied him his constitutional rights to a fair and impartial

trial, right of confrontation, counsel, and due process.

Although the District Court, after a complete evidentiary

- hearing examing all the Petit Jurors, concluded as a matter

of fact and law that extraneous evidence did pervade the

jury deliberations and that petitioner was denied his sixth

amendment right of counsel, nonetheless denied the mo-

tion for a new trial.

On appeal to the Circuit Court, petitioner raised each

issue alluded to above. The decision of the Circuit Court,

dated December 23rd 1987, of which review is sought, re-

jected petitioner’s contentions and affirmed his convic-

tion, while recognizing the pendency of decision in U.S. v.

Mathews, supra, in this Court.

STATEMENT OF FACTS

In early 1980, Sliker was introduced to the Petitioner

NICHOLAS MARINO (hereafter Marino) by a mutual

friend, a stockbroker, one Peter North; the purpose of the

introduction was to put Marino in contact with Sliker who

represented himself as an entrepaneur in various business

dealings and transactions.

There is no dispute that Sliker was and had been, for

the greater part of his entire life, a professional criminal

and schemer, a thief, government informer, and con-

artist. Sliker, consistent with his modus operandi, enticed

and lured Marino and his law partner Gulkin into several

business deals whereby Marino and Gulkin had been

baited into investing more than Two Hundred and Fifty

Thousand Dollars. Unbeknown to Marino and Gulkin, all

these deals and transactions were fraudulent and phony. It

is undisputed that Marino was the victim of Sliker’s

beguilement. The financial loss eventually sustained by

Marino and Gulkin was approximately One Hundred and

Ten Thousand Dollars.

In December of 1980, Peter North introduced Marino

to Morton Swersky, a New York attorney who represented

himself as an individual involved in the legitimate practice

of law specializing in arranging conglomerates and dealing

in high finance.

Unknown to Marino, Swersky had engaged in a gold

transaction with Sliker; he claimed to have entered into

this gold deal on behalf of a client of his, Ora-Bright Co.,

a corporation solely owned by Ralph Angel.

Sliker claimed that he went to New York City and ex-

changed the gold on the public street, in front of Republic

Bank, receiving One and One-Half Million

($1,500,000.00) Dollars in cash, in a brown paper bag,

from two unknown individuals. Swersky claims to have

been involved only at the request of his client and knew

nothing about this transaction.

The following incidents and transactions occurred in

January and February, 1981.

Co-defendants Kelly, Amato, Saluzzi, and Romano

(who was acquitted after trial) had secured, illegally,

stolen security bonds; there were two specific sets of bonds

in question; to wit, One Million ($1,000,000.00) Dollars

worth of Fort Meyer Bonds and One Million

($1,000,000.00) Dollars worth of Federal Home Loan

Securities.

In an attempt to dispose of and sell the stolen bonds,

Sliker was enlisted by Saluzzi, a co-conspirator and ac-

complice in the underlying scheme. Sliker had represented

to these ‘‘thieves’’ that he would be able to dispose of

these bonds for a substantial amount of money and all of

‘hem would split the proceeds.

Sliker attempted to utilize the Federal Home Loan

Bonds as collateral for a loan; the government stipulated

that there was independent verification that the Federal

Home Loan Bonds were legitimate and not on any ‘‘stolen

list.’’

He approached Gulkin and Marino who had been

persistently persuing and threatening him for the return of

One-Hundred and Ten Thousand ($110,000.00) Dollars

on the phony metal transactions. Sliker proposed a

transfer of securities which he represented as being

legitimate and authentic bonds.

Sliker claimed that he would be receiving a substantial

commission on the sale of this stock from his present

employer, Kelly, and that his commission could be used to

satisfy the indebtedness he owed Marino.

Sliker had independently verified, without the

knowledge of Marino, that the Fort Meyer Bonds were not

on any ‘‘stolen list,’’ assuring, that, when Marino in-

dependently attempted to verify these bonds, he would

learn that the bonds were legitimate and not stolen.

At the same time that Sliker proposed the transfer of

bondsto Gulkin, Swersky approached and solicited Marino.

Swersky had been previously arrested for stock swindling

and was then an informer for both the New York District

Attorney’s Office, as well as the Federal Bureau of In-

vestigation. Swersky was ‘working off’’ a pending felony

crime committed by him. Swersky suggested to Marino

that he had investors that would be interested in purchas-

ing securities; Swersky proposed to Marino that a substan-

tial amount of money could be made, legitimately, and

that his investors would be only interested in ‘‘legitimate”’

securities. Swersky’s status as an informer and ‘‘agent”’

for the F.B.1. was unknown to Marino.

In late January or early February 1981 Marino gave

Swersky one bond from the Fort Meyer Series, which he

had received from his partner Gulkin who, in turn, receiv-

ed the bonds from Sliker.

Contemporaneous with this transaction, and

unknown to Marino, Mr. Gorbo, Swersky’s attorney in

New York, arranged for a finder’s fee of 10% or One

Hundred Thousand ($100,000.00) Dollars, to be the

reward for the discovery of any stolen bonds, as a result of

his client Swersky’s efforts.

Before passing the Fort Meyer Bond to Swersky,

Marino contacted a broker friend of his, Gene Gulka, and

requested verification of the legitimacy of the Fort Meyer

Bonds in question; Mr. Gulka, after verifying it through

his brokerage house, confirmed that the Fort Meyer Bond

was in fact legitimate and not on any ‘*stolen list.”’

Swersky returned the Fort Meyer Bond to defendant

Marino telling him that the bond was a ‘‘photocopy”’ and

that he could not transact business in this manner. Within a

few days Marino, having discussed the matter with Gulkin,

received the Federal Home Loan Bonds. These bonds were

also proposed as legitimate and non-stolen securities.

Marino once again verified that the Federal Home Loan

Bonds were legitimate and not on any “‘stolen list.’’

Thereafter, Marino delivered the Federal Home Loan

Bonds to Swersky, who in turn gave defendant Marino

partial payment, approximately Thirty-Five Thousand

($35,000.00) Dollars. This money was given to Gulkin,

who turned it over to Sliker. The money was never

recovered nor accounted for. The delivery of the balance

of the money and balance of the bonds was scheduled

within a few days; at the time of the final meeting between

Marino and Swersky, the F.B.I. interceded and suggested

to Marino that he contact the F.B.I. after thinking about

the matter over the weekend.

Marino advised his partner Gulkin immediately of the

situation; both obtained counsel to represent them in this

matter. Within the next several days, unbeknown to defen-

dant Marino, Swersky and his attorney Mr. Gorbo ap-

peared in Marino’s office, uninvited, unsolicited and

without an appointment. It was at this meeting that

Marino learned that Swersky and Gorbo were interested in

‘‘straightening the matter out’’ for an amount of money.

Marino advised both Swersky and Gorbo that he had an

attorney and that the attorney would contact them.

Marino received Gorbo’s business card at that time.

The following day, Marino’s attorney, Mr. William

Martini contacted Gorbo and an appointment was made

to meet in Swersky’s office in New York City.

Mr. Martini and Marino attended the meeting

wherein Gorbo and Swersky were present. A solicitation

was made by Gorbo and Swersky, wherein Twenty-Five

Thousand ($25,000.00) Dollars was requested as an ex-

pense ‘‘to straighten out’’ the matter.

The implication was clearly made that this was

‘*bribe’’ money and that nothing would come of the situa-

tion when and if these monies were paid.

Upon leaving this conference Mr. Martini and

Marino agreed that they would not in any manner or form

participate in this illegal transaction and rejected the im-

proper suggestions made by both Gorbo and Swersky.

Within a few days, Marino appeared at the United

States Attorney’s Office, Eastern District of New York,

with his attorney, Mr. Martini; after preliminary discus-

sions, Marino and his attorney left.

Marino learned of his Indictment by reading a

newspaper account, in February 1986 (almost five (5)

years to the day subsequent to the incident in question);

this was also the first time Marino learned of the immunity

conferred upon his former law partner, Gulkin, five (5)

years prior thereto.

PETITIONER’S DEFENSE

Mr. Angel, presently in the communications business,

previously in metal (Gold) manufacturing for the dental

trade, was the sole proprietor of Ora-Bright Products.

Mr. Angel, married, a father and grandfather, had no

criminal record whatever.

Swersky had handled some civil matters for Ora-

Bright Products, such as collections.

Mr. Angel categorically denied that Swersky was in-

volved with him or his company in the purchase of gold or

silver.

He denied knowing Sliker.

He denied any business deal with Sliker.

He denied authorizing Swersky to enter into any deal

with Sliker.

Mr. Angel explained that 3,000 Krugerrands were

worth about Two and One-Half of a Million

($2,500,000.00) Dollars in 1980; the largest metal deal

either he or his company transacted amounted to twenty-

five (25) krugerrands.

Neither he personally nor his company Ora Bright Pro-

ducts had accounts at the Republic National Bank, in New

York where the Swersky-Sliker gold transaction took place.

His bank and Ora Bright’s Bank was First National

Bank and Midland Bank, located in Rahway, New Jersey

which was the location of his office and manufacturing

pliant.

The Government waived cross-examination of this

witness.

Mr. Andrew Macera, an electrical contractor, knew

Marino for approximately sixteen (16) years, as a friend

and an attorney.

He attested to Marino’s reputation for honesty,

truthfulness and decency within both the social and pro-

fessional communities as being of the highest caliber.

Mr. Confrancesco, a real estate developer, knew

Marino, as a friend and as an attorney, for approximately

three and one-half (3%) years.

The community reputation of Marino as well as his

own personal opinion concerning the characteristic traits

of honesty, decency and truthfulness was ‘‘Class A.”’

It was his opinion that Marino would not be involved

in illegalities.

Mr. Fried, a CPA dealing in real estate tax shelters, a

friend and former client, knew Marino was indicted and

on trial for conspiracy and possession of stolen bonds.

Knowing him for approximately nine (9) years he at-

tested to Marino’s reputation in both the social and pro-

fessional communities as being excellent.

Based upon his knowledge of Marino, he claimed that

it would be inconceivable that Marino would be involved

in the commission of any crimes.

Mr. Gulka, President of First Monmouth Security, a

Bond firm in Shrewsbury, New Jersey, having been

associated in the security business for approximately

eleven (11) years totally corroborated the fact that

Marino, in early February 1981, had called him to verify

both the Fort Meyer Bonds and Federal Home Loan

Bonds; he was able to authenticate the validity of the Fort

Meyer Bonds through his own office; while Joseph Rig-

goloso, of Paine Webber, authenticated the validity of the

Federal Home Loan Bonds for Marino.

Mr. Martini, an attorney, who originally represented

Marino, explained that he and his client, along with Gulkin

and his attorney, attended a conference with the U.S. At-

torney’s Office in February 1981 concerning the instant

matter. He had no further contact with the Government

until five (S) years later when Marino was indicted.

Mr. Martini had been a member of the Bar since

1972; he was the law clerk of Judge Joseph P. Harrahan,

Hudson County Assignment Judge of the Seperior Court

of New Jersey; he was an assistant prosecutor with the

Hudson County Prosecutors Office and eventually

became an Assistant U.S. Attorney for the District of New

Jersey, Newark Division for three years, thereafter enter-

ing private practice.

Mr. Martini put the lie to Swersky. He unequivocably

described, in detail, the meeting in New York, with

Marino, John Corbo and Swersky, at Swersky’s office; a

bribe offer was made in the sum of twenty-five thousand

($25,000.00) dollars by Swersky and Corbo, which was re-

jected by both himself and Marino.

Mr. Marino testified on his own behalf: He was mar-

ried with two minor children and had been practicing law

since 1966.

His testimony along with his character witnesses,

demonstrated the lack of any predisposition to violate the

law. He had no prior conflict with law enforcement nor

had he been subject to any prior disciplinary proceedings

while a member of the bar.

He admitted knowing Sliker, becoming his victim and

accepting the bonds for transfer to reduce the One-

Hundred and Ten Thousand ($110,000.00) Dollar debt.

He admitted being lured by Swersky and passing the

bonds. J

He explained the transactions as he understood them.

He denied actually knowing the bonds were stolen;

this facet was corroborated by the tapes, and Swersky’s

cross-examination.

Marino was cross-examined but not impeached.

“THE SERPENT BEGUILED ME”

Morton Swersky, a disbarred lawyer, and convicted

felon, became an ‘“‘informant-agent”’ for the F.B.1. in

November or December 1980, in an attempt to

‘‘work-off’’ a pending criminal case involving his own

theft of Four-Hundred Thousand ($400,000.00) Dollars

worth of stolen bonds. These charges were eventually

dismissed for having ‘‘made’’ two causes for the Govern-

ment, one of which was the matter at bar.

In November or December 1980, contemporaneously

with his becoming an informer-agent for the F.B.1., Swer-

sky was introduced to Marino by Peter North.

Swersky solicited defendant Marino, testifying:

‘*] had told Marino that | was interested in buying deep

discount bonds at a very cheap price as long as they were

usable, as long as they had not been reported missing or

anything. And he said he was going to see what he could do."’

There were discussions in this first meeting proposed

and designed by Swersky to instill confidence in Marino.

Swersky told the F.B.1. ‘I've got a live one”’ and part

of the future conversations were tape recorded; Swersky's

principle concern was getting Marino involved so that he

(Swersky) could get his pending cases dismissed.

In order to accomplish his goal, Swersky admittedly

cajoled, baited, enticed and lured Marino; he did this con-

tinuously, misrepresenting and using deceit and ruse.

When conversations were being recorded, Swersky

lead and baited Marino; when the conversations were not

being recorded, Swersky, also lured and falsely encourag-

ed Marino.

Swersky claimed to be controlled and directed in his

actions by the F.B.1.; he therefore tried to control the con-

versations with Marino, program the language and obtain

incriminating statements.

To further the enticement, Swersky gave meaningless

documents to Marino and had conversations with him

about them; this was a continuation of the ruse.

The luring, soliciting, beguiling and entrapping con-

tinued throughout.

Swersky admitied that Marino never acknowledged

that he was dealing in stolen bonds.

The F.B.1. wanted to find the source of the stolen

bonds and therefore it was necessary to propose a fic-

titious “‘legitimate’’ deal. If Marino knew the bonds were

stolen, there would have been no consumated transaction.

In pertinent part, Swersky was compelled to admit:

“Q. Wait a second, wait a second. You're asking Nick

Marino to represent to you these are good bonds, these are

genuine, these are not xeroxed copies, these are not stolen,

these are not on the missing list. Isn't that what you're ask-

ing him?

“A. I'm asking him to assure me they're genuine,

they're really real, they're not copies and no bonds are

reported stolen yet.

The Court questioned Swersky about this aspect:

“THE COURT: Was there any discussion at that

meeting that you say you had with Mr. Marino concerning

whether these bonds had been stolen or not?

THE WITNESS: Yes, sir, I asked him whether these

bonds were still good, whether they had been reported on

any hospital sheets or anything. And he swore to me they

were good and the rest of the bonds he was going to give

me were going to be good and he guaranteed because | told

him if we found out they weren't any good I didn’t want

them and please don't waste my time.”

Even the tape recordings corroborated the proposal

by Swersky of a genuine deal.

Swersky emphatically denied knowing Sliker, dealing

with him or ever meeting him. He explained that the letter

on his attorney's stationery, as attorney for Ralph Angel,

had been written several times for Ora-Bright; the letter to

Sliker was written at his client's request and he knew

nothing else about the transaction.

Swersky further denied ever meeting with Marino at his

office after February 13th, 1981 and denied meeting with

William Martini and Marino with his own Attorney John

Corbo, in New York. He denied the bribery solicitation.

SPECIFIC STATEMENT OF FACTS RELATED TO

THE INCIDENT OF EXTRANEOUS INFLUENCE OF

THE JURY

On or about October 24, 1986, (subsequent to the

conviction and before sentencing) juror number nine,

Vincenza Traina, sent a letter to the District Court, stating

that another juror, Anthony Ferrara, ‘brought some in-

formation into the jury room that may not have been ap-

propriate." Specifically, Traina stated that Ferrara, an

employee of the Republic National Bank, commented to

her during the trial that the F.B.1. had subpoenaed records

from Republic National Bank of a company called Ora-

Bright, owned by the defense witness, Ralph Angel. Mr.

Angel had testified that neither he nor his company had

any account at Republic. The Government had waived all

cross-examination of Mr. Angel.

Marino moved for a new trial. On January 12, 1987,

and February 10, 1987, the District Court held evidentiary

hearings to explore the allegations. The Court examined

all 14 jurors including the alternates, F.B.1. Special Agent

Edward Kelly, who served the subpoena, and Joseph

Patrick, the warehouse supervisor from Republic National

Bank in New York.

After examining the fourteen (14) jurors it was deter-

mined that four (4) heard none of Mr. Ferrara’s

statements. Five (5) jurors remembered vaguely that

something was stated by Mr. Ferrara concerning a sub-

poena. Four (4) jurors, Melodie Crump, Janine Amato,

Barbara Blair, and Enza Traina, heard Mr. Ferrara 's en-

tire expose.

Basically, the four (4) jurors who heard the ex-

traneous evidence, all describe Mr. Ferrara’s account in

which he explained Ora-Bright records existed at Republic

National Bank in apparent contradiction of Mr. Ralph

Angel's testimony that Ora-Bright had no bank account at

Republic.

Mr. Ferrara’s evidence was met by the jurors with ex-

planations of surprise. Mr. Ferrara confirmed that he had

seen the records himself.

This extraneous evidence contradicted the testimony

of Mr. Angel who was not cross-examined by the Govern-

ment.

REASONS FOR GRANTING REVIEW

POINT I

THIS COURT SHOULD GRANT CERTIORARI AS

THIS CASE PRESENTS IMPORTANT CONSTITL-

TIONAL ISSUES CONCERNING THE RIGHT OF

THE PETITIONER TO HAVE HAD HIS DEFENSE OF

ENTRAPMENT PRESENTED TO THE PETIT JURY.

THE TRIAL COURT'S REFUSAL TO CHARGE THE

DEFENSE OF ENTRAPMENT VIOLATED THE PETI-

TIONER’S FIFTH AMENDMENT RIGHTS. THE

CONFLICTS IN THE CIRCUITS RESULTS IN DIF-

FERING APPLICATIONS OF THE ENTRAPMENT

DEFENSE FROM CIRCUIT TO CIRCUIT.

1. In the case at bar, although the petitioner presented

evidence of the Government initiation and solicitation,

lack of propensity and disposition to violate the law, and

admitted all the acts underlying the charges against him,

he did deny the requisent element of criminal intent. The

trial court, none-the-less, refused to*charge the Petit Jury

with the defense of entrapment.

The entrapment defense is premised upon ‘‘the notion

that Congress could not have intended criminal punish-

ment for a defendant who has committed all the elements

of a prescribed offense but was induced to commit them

by the government.’’ United States v. Russell, 411 U.S.

423, 435 (1973). Nothing in this Court’s history of the

defense, however, requires a defendant to admit that he

committed all the elements of a prescribed offense before

he may claim that he was induced to commit them by the

government, as the Third Circuit Court of Appeals re-

quired Marino to do in the instant case. On the contrary,

Sorrells v. United States, 287 U.S. 435 (1932), expressly

permits a defendant to plead not guilty and assert the en-

trapment defense. See Sherman v. United States, 356 U.S.

373 (1958).

Sometimes the defense does not have a constitutional

basis, although in a particular case the law enforcement con-

duct in question may violate ‘‘the fundamental fairness,

shocking to the universal sense of justice, mandated by the

Due Process Clause of the Fifth Amendment.’”’ /d. at

431-32 (quoting Kinsella v. United States ex rel. Singleton,

361 U.S. 234, 246 (1960)). See Note, Pleading the Entrap-

ment Defense: The Propriety of Inconsistency, 28 N.Y.L.

Sch. L. Rev. 1025, 1033 n. 53 (1983).

Constitutional implications nevertheless arise when,

as in the instant case, courts restrict the use of the entrap-

ment defense to cases where the defendant admits all

elements of the crime charged, including mens rea. See

United States v. Mathews, 803 F.2d 325, 327 (7th Cir.

1986); United States v. Prickett, 790 F.2d 35, 36 (6th Cir.

1986); United States v. Mora, 768 F.2d 1197, 1198-99

(10th Cir. 1985) (per curiam), cert. denied, 106 S. Ct. 856

(1986); United States v. Hill, 655 F.2d 512, 514 (3d Cir.

1981). Requiring a defendant to admit guilt before he may

claim the defense infringes upon the defendant’s constitu-

tional right to require the government to prove each and

every element of its case beyond a reasonable doubt. E.g.,

United Sates v. Demma, 523 F.2d 981, 986 (9th Cir. 1975)

(en banc). In effect, he must incriminate himself before he

can assert the defense.

: LLL

Over the past fifty-five years, this Court has focused

upon ‘‘the intent or predisposition of the defendant to

commit the crime’’. Russell, 411 U.S. at 429. See also

Hampston v. United States, 425 U.S. 484, 488-89 (1976);

Sherman v. United States, 356 U.S. at 372; Sorrells v.

United States, 287 U.S. at 442 (1932). As now-Chief

Justice Rehnquist noted in Russel, ‘‘(i)t is only when the

governments deception actually implants the criminal

design in the mind of the defendant that the defense of en-

trapment comes into play.’’ Russell, 411 U.S. at 436. In

determining whether a particular defendant was pre-

disposed to commit the offense charged, the crucial ques-

tion is ‘‘whether the defendant is a person otherwise inno-

cent whom the Government is seeking to punish for an

alleged offense which is the product of the creative activity

of its own Officials’’. Sorrells, 287 U.S. at 451. See also

Sherman, 356 U.S. at 372.

In the instant case, Marino fully admitted possessing

and transfering the bonds, but denied the intent to commit

a crime in that he was led to believe that the bonds were

legitimate and that the Government agent (Swersky)

would only buy legitimate bonds. Thus, he admitted doing

all of the acts constituting the offense, but denied having

the mens rea necessary to convert otherwise innocent con-

duct into a criminal offense.

The Third Circuit’s current possition directly con-

flicts with the Supreme Court’s view that there is no incon-

sistency in joining an entrapment plea with a not guilty

plea. Sorrells, 287 U.S. at 452. Certainly if a defendant

simply pleads not guilty, he is not admitting even as much

as Marino did. Under Sorrells and its progeny, as well as

under the fifth amendment’s protections, the Third Cir-

cuit’s rule requires the defendant to relinquish a constitu-

tional right as a condition precedent*to use of the entrap-

ment defense.

In Simmons v. United States, 390 U.S. 377 (1968),

this Court dealt with the ‘‘intolerable’’ situation of a

defendant having to surrender a constitutional right in

order to assert another. Id. at 393-94. That case involved a

defendant’s need to incriminate himself by admitting

owership of incriminating evidence in order to obtain stan-

ding to challenge an illegal search. Although the entrap-

ment defense does not yet rise to the level of an absolute

constitutional right, the Simmons holding nevertheless can

be applied to the fifth amendment protecticns that Marino

had to sacrifice in order to claim the entrapment defense.

Indeed, ‘*. . . Simmons may be read as forbidding a forc-

ed trade-off of protection, even if one right is not constitu-

tionally grounded, as long as that right remains fun-

damentally important.’’ |

Marino should not be precluded from asserting the

entrapment defense solely because he exercises his fifth

amendment and due process rights. In Griffin v. United

States, 380 U.S. 609 (1965), this Court prohibited pro-

secutors from commenting upon defendants’ failure to

testify, thereby penalizing defendants who exercised their

right to remain silent. The exercise of a constitutional right

should not be costly to a defendant, Id. at 614. Thus,

penalizing a defendant who exercises his fifth amendment

and due process rights by precluding him from exercising

the important right to present all reasonable defenses is

impermissible.

The oft-discussed concerns about inconsistent

defenses and about predisposition are not at issue in this

case. Even if they were, they would pale in light of the con-

stitutional implications of denying a criminal defendant

use of a defense unless he first incriminates himself by ad-

mitting that he committed a crime. ‘‘Whether the defen-

dant had the criminal intent required for conviction is a

jury issue. Whether he was predisposed to commit the

charged crime... .is also a jury issue.’’ United States v.

Henry, 749 F.2d 203, 213 (Sth Cir. 1984) (en banc).

Marino should be allowed to present both his lack of

intent and his lack of predisposition to the jury and allow

the jury to decide the issues. The consistency or incon-

sistency of particular defenses are a factor for the jury to

consider in assessing the defendant’s credibility. As the

Demma, supra, court noted, ‘‘inconsistent testimony by

the defendant seriously impairs and potentially destroys

his credibility.’” Demma, 523 F.2d at 985. Conversely, a

defendant who elects not to testify may reduce his chances

of success in persuading a jury that he was entrapped, but

‘that is a choice that he has a right to make free of any

compulsion whatsoever.’’ United States v. Annese, 631

F.2d 1041, 1047 (1st Cir. 1980).

The Conflict In The Circuits Results In Differing Applica-

tions Of The Entrapment Defense From Circuit To Cir-

cuit.

The circuits are sharply divided on whether a defen-

dant can claim entrapment while denying scienter. As a

consequence, a federal defendant in New Jersey, such as

Marino, is treated differently from a similarly charged

defendant in New York or Texas with regard to his ability

to claim entrapment while exercising his constitutional

rights. Two circuits allow a defendant to deny all elements

of the crime, including physical acts and intent, and still

claim entrapment. Four circuits allow the entrapment

defense where, as in the instant case, the defendant admits

committing the acts charged but denies possessing the re-

quisite mens rea. Five circuits now require the defendant

to admit all elements, including intent. One circuit re-

quires the defendant to admit the acts involved in the of-

fense, but has never clearly addressed the intent issue.

Ware v. United States, 259 F.2d 442, 445 (8th Cir. 1958).

A defendant in the District of Columbia may deny in-

tent but still claim entrapment. In United States v. Kelly,

748 F.2d 691 (D.C. Cir. 1984), an ABSCAM case, the

District of Columbia Circuit Court of Appeals held that

the entrapment instruction was properly given where the

defendant testified that he took a bribe, but claimed he did

so to further an investigation and therefore lacked the

necessary criminal intent. Id. at 696, 701 n.24. In its

leading case on the entrapment issue, however, the District

of Columbia Circuit did not require the defendant to ad-

mit any elements of the offense charged, and allowed the

defendant to use ‘‘alternative but not inconsistent”’

defenses. Hansford v. United States, 303 F.2d 219, 221

(D.C. Cir. 1962) (en banc). The Hansford court held that

‘it was consistent with defendant’s denial of the transac-

tion to urge that if the jury believed it did occur the

government’s evidence as to how it occurred indicated en-

trapment.’’ Id. See Kelly, 748 F.2d at 701 n.24.

If a defendant in the Fifth Circuit admits the acts

charged but presents evidence negating his criminal intent,

he is entitled to an entrapment instruction. United States

v. Henry, 749 F.2d 203, 205-06 (Sth Cir. 1984) (en banc).

As did Marino, the defendant in that case testified and ad-

mitted the acts but denied possessing the requisite scienter.

Id. at 206. The Fifth Circuit concluded that ‘‘a non-

testifying defendant may - by examination of witnesses

and argument - contest every element of the charged of-

fense and still request and obtain an entrapment instruc-

tion.’’ Id. at 210. When the defendant testifies, however,

the same rule applies because it “‘is entirely consistent with

the nature of the jury function and with the nature of the

entrapment defense to require the jury to consider both

the existence and the quality of the defendant’s alleged in-

tent’’. Id. at 211.

The Fifth Circuit took the approach that the accused is not

guilty if he was not predisposed to commit the crime,

rather than the approach that he is guilty of the crime but

can avoid punishment because the government entrapped

him. Id. at 210. In so doing, the Fifth Circuit aligned itself

with this Court’s long line of cases cited earlier.

While there is some confusion in the First Circuit aris-

ing from United States v. Caron, 588 F.2d 851, 852, (ist

Cir. 1978) in United States v. Annese, 631 F.2d 1041 (Ist

Cir. 1980), however, the court held that a testifying defen-

dant must admit the acts, need not admit his guilt as to the

offense, but cannot actually deny his guilt. Id. at 1046. In

holding that a non-testifying defendant may claim the en-

trapment defense, the court held that the defendant must

choose whether to testify ‘‘free of any compulsion what-

soever. To hold otherwise would raise a serious fifth

amendment problem.’’ Id. at 1047.

In a slightly different approach, the Second Circuit

Court of Appeals allows a defendant to claim entrapment

while contending that his acts did not violate the law, as

long as he does not take the stand. United States v.

Silvestri, 719 F.2d 577, 580 n.1 (2d Cir. 1983). He need not

admit the alleged criminal acts as long as he does not deny

them. United States v. Valencia, 645 F. 2d 1158 (2d Cir.

1980).

Generally, a defendant in the Eleventh Circuit may

not use the entrapment defense if it conflicts with another

defense theory, although certain exceptions exist. An en-

trapment defense js allowed in conjunction with a not guil-

ty plea as long as the defenses are not so inconsistent as to

confuse the jury. United States v. Walker, 720 F.2d 1527,

1534 (11th Cir. 1983), cert, denied, 465 U.S. 1108 (1984).

As long as such seemingly inconsistent defenses are not

‘impermissibly inconsistent’? - that is, they do not

disprove each other - they are allowed. United States v.

Smith, 757 F.2d 1161, 1168-69 (11th Cir. 1985).

A defendant in the Ninth Circuit enjoys the broadest

range of defense opportunities with regard to this issue. In

United States v. Demma, 523 F.2d 981 (9th Cir. 1975) (en

banc), the Ninth Circuit Court of Appeals developed what

are still the strongest arguments in favor of the ‘‘per-

missive’’ approach to the entrapment debate. Nagle, in-

consistent Defenses in Criminal Cases, 92 Mil. L. Rev. 77,

106-09 (1981). Demma, supra, permits a defendant to

deny committing any element of the crime, including in-

tent, and yet claim entrapment. Id. at 983. Both defen-

dants in Demma testified that they did the acts, but denied

that they possessed the scienter necessary to convert their

conduct into criminal activity. Id. at 982. Basing its ra-

tionale upon Sorrells, the Demma court held that ‘‘the re-

quirement that the defendant concede a state of mind is in

direct conflict with the Sorrells conception of

entrapment.’’ Demma, 523 F.2d at 983. Thus, the Ninth

Circuit permits totally inconsistent defenses on the

premise that a defendant’s assertion of entrapment while

he simultaneously denies committing the acts constituting

the offense simply raises a credibility question for the jury.

Id. at 985

At the opposite end of the entrapment spectrum are

the Third, Fourth, Sixth, Seventh and Tenth Circuits,

which require the defendant to admit every element of the

offense, including mens rea, before he can claim that he

was entrapped. Crisp v. United States, 262 F.2d 68, 70

(4th Cir. 1958). However, the Fourth Circuit rejected the

Crisp’s reasoning and held that the defendant must con-

cede that he committed the crime in question before he can

claim that he was entrapped into doing so. U.S. vs. Dorta,

783 F.2d at 1181-82. But the precise issue before this Court

was not addressed. It is not clear whether a defendant in

the Fourth Circuit can admit only the acts and still avail

himself of the entrapment defense.

Perhaps the easiest explanation for the diverse

holdings in the various circuits is that a number of circuits

have mistakenly relied upon the concurring opinion in

Sorrells. In his concurrence in Sorrells, Justice Roberts

noted that a defendant who commits a crime, albeit due to

government inducement, is within the letter of the law pro-

scribing the criminal conduct and is therefore ‘‘amenable

to its penalties.’’ Sorrells, 287 U.S. at 456 (Roberts, J.,

concurring). According to Justice Roberts the Entrapment

defense does not excuse the criminal conduct or somehow

render the statute in question inapplicable to that defen-

dant. Id. at 455-56. Nor does it entitle the defendant to ‘‘a

double defense under his plea of not quilty, namely, (a)

that what he did does not fall within the definition of the

statute, and (b) entrapment.’’ Id. at 456.

The Sorrells majority however, expressly considered

and rejected the government’s contention that the entrap-

ment defense was not available to a defendant who pleads

not quilty. Id. at 452. Thus, from Sorrells forward, this

Court has allowed defendants to plead not guilty and still

- claim the entrapment defense. As the Ninth Circuit noted,

‘the requirement that the defendant concede a state of

mind is in direct conflict with the Sorrells conception of

entrapment.’’ Demma, supra, 523 F.2d at 983. On that

basis alone, the district court’s refusal to allow Marino to

claim entrapment is contrary to the law of the land, and

reversal is mandated.

Thus, the five circuits still refusing to allow a defen-

dant to claim entrapment unless he admits all elements of

the offense are simply perpetuating the theoretically and

constitutionally infirm U.S. v. Eastman, 212 F.2nd 370

(Mh Cir. 1954) principles which were soundly rejected in

Demma. Although some of the cases address concerns

with predisposition determinations and analyses of

whether a given set of defenses is impermissibly inconsis-

tent, their original fundamental basis remains in the

Eastman rule.

Six years ago, one commentator expressed great con-

cern about the ‘‘serious split among the circuits. . . .on a

fundamental right of any defendant - the right to present

evidence.’’ Nagle, supra p. 19 at 125. He concluded:

‘*It is a fundamental flaw in the American system of

justice if an individual arrested in San Francisco in

the Ninth Circuit can assert entrapment while still

putting the Government to its proof, while a defen-

dant arrested in Chicago in the Seventh Circuit for the

same Offense or even as part of the same conspiracy

can assert entrapment only at the expense of his con-

stitutional rights. Such a dichotomy cries out for cor-

rection.”’

POINT II - THIS COURT SHOULD GRANT CER-

TIORARI AS THIS CASE PRESENTS IMPOR-

TANT ISSUES CONCERNING THE PETI-

TIONER’S CONSTITUTIONAL RIGHT TO A

FAIR AND IMPARTIAL TRIAL, RIGHT OF

CONFRONTATION, RIGHT TO COUNSEL AND

DUE PROCESS: EXTRANEOUS AND EXTRA-

JUDICIAL EVIDENCE CAME BEFORE THE

PETIT JURY, AND THEREBY UNDERMINED

THE TENET OF A FAIR TRIAL: PETITIONER

WAS DENIED THE OPPORTUNITY TO CON-

FRONT THIS EXTRANEOUS EVIDENCE AND

RESTORE THE IRREPUTABLE DAMAGE TO

HIS CASE.

At the District Court level the Government did not

dispute the conclusion reached by the District Court Judge

after a full and complete evidentiary hearing that the Petit

Jury was in fact presented with extra-record and ex-

traneous facts, related to an issue in the case at bar, mainly

the credibility of Mr. RALPH ANGEL, a defense witness

whom the Government deliberately never cross-examined.

The Government also did not attempt to rebut the

prima facie violation of the Petitioner’s Sixth Amendment

Rights; the trial court found as a matter of law and fact

that extra-record influence present in this case constituted

such a violation.

**] find it to be clear from the facts recounted above that

the Marino jury was presented with extra recorded facts

which relate to an issue in the Marino case, namely the

credibility of a defense witness whom the government

never cross-examined. The government does not dispute this

conclusion. I also find it clear that the defendant’s sixth

amendment rights were violated. As a matter of law, extra-

record imfluence of the type present in this case constitutes

a prima facie violation of the defendant’s sixth amendment

-rights.’’ (citations omitted) The government did not attempt

to rebut this prima facie violation nor could it, since a mat-

ter of fact, I find it to be clear that defendant’s rights were

infringed. Mr. Ferrara and the other four jurors who heard

_ his full story all understood the extra-record facts made

known to him as evidence that Mr. Angel’s testimony

regarding Ora-Bright’s bank accounts at Republic were in-

accurate or untrue.’ (Appendix A annexed)

When the extraneous material about Mr. Angel ‘‘hav-

ing an account at Republic National Bank’’ came improper-

ly before the jury, it was tantamount to the Government

having impeached this witness’ testimony behind closed

doors without the defense’s knowledge and without the

defense having an opportunity to meet this impeachment.

The trial court clearly recognized how severely disad-

vantaged the defendant Marino was, holding:

**Had the fact that Republic kept records on Ora-Bright

been presented to the jury in oper court, defendant’s

counsel could have used procedures known to trained

counsel to examine the record and prove that they sup-

aaa

ported, rather than refuted Mr. Angel's testimony. Thus,

defendant could have buttressed Mr. Angel's credibility

and thereby buttressed Defendant's general effort to im-

peach Mr. Swersky’s credibility. Because the facts were

presented off the record, however, defendant's capacity to

benefit from the assistance of counsel, the confrontation

of witnesses, and the impartiality of the Jury was as a mat-

ter of fact impaired.’’ (Appendix A Annexed).

This type of juror misconduct has a high potential of

prejudice, and it must be considered ‘‘prima facie’’ pre-

judicial against the Petitioner with the onus upon the

Government to disprove the presumed prejudice (Govern-

ment of Virgin Islands v. Gereau, $23 F.2d 140; Johnson

v. U.S., 207 F.2d 314).

This record is barren of any proof by the government

assuaging the prejudice to the Petitioner.

The introduction of this extraneous material into the

jury room undermined the fundamental tenet of a fair

trial, affording no protection of Petitioner Marino’s right

of confrontation and of counsel, and deprived him of ad-

vancing reasonable arguments to the jury. These basic

guarantees of constitutional dimension have all been

subverted.

This Court, in the matter of Turner v. Louisiana, (379

U.S. 466) put it quite succinctly; at page 472, 473, stating:

**The requirement that a jury's verdict must be based upon

the evidence developed at the trial goes to the fundamental

integrity of all that is embraced in the constitutional con-

cept of trial by jury... .

In the Constitutional sense, trial by jury in a criminal case

necessarily implies at the very least that the evidence develop-

ed against a defendant shall come from the witness stand,

in a public courtroom where there is full judicial protection

of the defendant's right of controntation, of cross-

examination, and of counsel. What happened in this case

operated to subvert these basic guarantees of trial by

jury.”’

Turner, supra, cited with approval, in Government of

Virgin Islands v. Gereau, supra, at page 151 stated:

**. | . where jurors consider evidence, in the form of either

fact or opinion, which has not been introduced in Court,

the confrontation and counsel rights of an accused are ob-

viated as regards to the particular evidence received.”

In Parker v. Gladden, (385 U.S. 363), this Court held

that amere statement by the bailiff having custody of the jury

to only one juror that the defendant was ‘‘wicked’’ and

‘*guilty,”’ constituted a violation of Defendant's Sixth

Amendment Rights to confrontation and to an impartial

jury.

In aless compelling situation than thecaseat bar,in U.S.

v. Allsup, (866 F.2d 68, Mh Cir.), the Court held that the

defendant was entitled to a new trial where the trial court

denied disqualification of two jurors’ promise to act im-

partially. The Court reasoned that the jurors’ mere posi-

tions with the bank, albeit, different branches, was suffi-

cient to cast dispersion on their promise to act impartially.

In U.S. v. Greer, (620 F.2d 1383, 10h Cir.), the

Court reversed a drug conviction merely because of

‘lunch break conversations’’ between jurors and U.S.

Marshalls concerning possible sentencing procedures.

In Marshall v. U.S., (360 U.S. 310) at page 312, the

Court stated:

** . . The prejudice to the defendant is almost certain to

be as great when (prejudicial) evidence reaches the jury

through news accounts as when it is a part of the prosecu-

tion’s evidence. . . . It may indeed be greater for it is not

then tempered by protective procedures.”’

In the case at bar, since there was no cross-

examination of and no impeachment of the witness, Ralph

Angel, in open court, the prejudice to the Petitioner

Marino was exacerbated, when the impeachment of his

principle witness, Mr. Angel, occurfed in the jury room,

without the benefits of judicially protected procedures.

In U.S. v. Kum Seng Seo (300 F.2d 623, 1962, 3rd

Cir.), a new trial was granted as a result of a prejudicial

newspaper article being exhibited by a juror in the jury

room. At page 625, the Court stated:

‘Traditionally this court has taken the position, even in

civil cases that verdicts would be set aside where there was

evidence that the impartiallity of the tribunal had been af-

fected or that tainted material had come before a jury. See

McKibben v. Philadelphia & Reading Railway Co., 251

F.577 (3rd Cir., 1918). In criminal cases our rule has been

strict. See Griffin v. United States, 295 F. 437 (3rd Cir.,

1924). The rule of other courts of appeals has been equally

so. See Briggs v. United States, 221 F.2d 636 (6th Cir.,

1955). But whatever may have been the law prior to Mar-

shall, since that decision it has been clear that a new trial

should be granted in federal criminal cases when it is

shown that members of the jury have read news accounts

containing inadmissible and inaccurate facts prejudicial to

the defendant.”’

In Gibson v. Clanon, (633 F.2d 851) in concluding

that there was a reasonable possibility that the extrinsic

evidence affected the verdict and granting the Writ of

Habeas Corpus, the Court, at page 854, made compelling

findings:

“*. . . These decisions have noted that when a jury con-

siders facts that have not been introduced in evidence, a

defendant has effectively lost the rights of confrontation,

cross-examination, and the assistance of counsel with

regard to jury consideration of the extraneous evidence. In

one sense the violation may be more serious than where

these rights are denied at some other stage of the pro-

ceedings because the defendant may have no idea what new

evidence has been considered. It is impossible to offer

evidence to rebut it, to offer a curative instruction, to

discuss its significance in argument to the jury, or tu take

other tactical steps that might ameliorate its impact.*’

It is precisely this type of prejudice that innured to the

APPENDIX A—TRIAL COURT DECISION 4/22/87

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CRIMINAL ACTION NO. 86-36

UNITED STATES OF AMERICA,

Vv.

NICHOLAS MARINO, et al.,

Defendants.

Samuel Alito, Esq. Michael S. Washor, Esq.

United States Attorney

by: Daniel 3. Gibbons, Esq. _28H0r. Greenberg & Washor

291 Broadway

Asst. United States Attorney New York, New York 10007

970 Broad Street

Newark, New Jersey 07102 Attorneys for Defendant Marino

OPINION

ACKERMAN, District Judge.

This is a criminal action brought by the United States

Government against defendant Nicholas Marino and

others, alleging violations of federal criminal prohibitions

against interstate dealings in stolen securities. Before me

now are defendant Marino's motions for post-conviction

relief.

In September and October, 1986, Marino was tried

before a jury in this court on two counts of dealing in and

one count of conspiring to deal if stolen bearer bonds

moving in interstate commerce, in violation of 18 U.S.C.

§§2315, 2 and 371. Chief among the government’s

evidence offered against defendant Marino was the

testimony of John Sliker and Morton Swirsky, who both

claimed to have participated in the bond transactions upon

which the charges against defendant Marino were based.

The evidence presented by defendant Marino included the

testimony of Roger Angel, which in part contradicted the

testimony of Morton Swirsky. Defendant Marino also

took the stand in his own defense. After the close of

evidence, I instructed the jury regarding the law applicable

to the crimes charged and the rules governing delibera-

tions. I instructed the jury in part that defendant’s guilt or

innocence ‘‘must be established only by the evidence

before you.’’ On October 2, 1986, defendant was con-

victed by the jury on Count I of the indictment, which

stated the conspiracy charge, and Count III of the indict-

ment, which stated one of the two charges of dealing in

stolen bearer bonds. Defendant was acquitted on Count

II, the other charge of dealing in stolen bearer bonds.

Defendant has moved for arrest of judgment, relief

from the verdict, and a new trial, on the following

grounds: that the court lacked jurisdiction over the mat-

ter, that the verdict was against the weight of evidence,

that no crimes were committed, that the verdict was con-

trary to law, that the interest of justice demands a new

trial, and that the jury was prejudiced against defendant

by juror misconduct and extraneous influence. I shall con-

sider each of these grounds in turn.

In his conviction on Counts I and III of the indict-

ment, defendant was found guilty of violating three

federal statutes, 18 U.S.C. §§2315, 2 and 371, by conspir-

ing to deal and dealing in stolen bearer bonds moving in

interstate commerce, within the District of New Jersey and

elsewhere. Because the offenses are federal criminal of-

fenses whose commission occurred at least in part in this

district, this court has jurisdiction over the matter. See 18

U.S.C. §§3231, 3237; Fed.R.Crim.P. 18.

When a defendant asserts that his conviction is

against the weight of evidence, the court must sustain the

conviction if ‘‘there is substantial evidence, taking the

view most favorable to the Government, to support it.’’

Glasser v. U.S., 315 U.S. 60, 80 (1942) (quoted in, e.g.,

U.S. v. Provenzano, 334 F.2d 678, 683-84 (3d Cir. 1964)).

I find that when the evidence in this case is viewed most

favorably to the Government, there is more than substan-

tial evidence to support a guilty verdict against defendant.

Defendant’s assertion that no crimes were committed

may be reduced to two claims, that conviction was against

the weight of evidence or that errors in the proceedings re-

quire relief from the verdict. I have already found that the

evidence in this case supported a guilty verdict against

defendant. I shall consider defendant’s more specific

claims of legal error below.

Defendant’s final grounds for relief, that the verdict

was contrary to law, that the interest of justice demands a

new trial, and that the jury was prejudiced against defen-

dant by juror misconduct and extraneous influence, are all

based on the following more specific contentions: that the

court committed an error of law when it refused to instruct

the jury on the law of entrapment; that the court commit-

ted errors of law in regard to each of defendant’s pre-trial

motions, request to charge the jury, and exceptions to the

jury charge which the court denied; and that the jury

received extra-record facts in this case in violation of

defendant’s sixth amendment rights and to defendant’s

prejudice. I shall discuss each of these three contentions in

turn.

In order to assert a defense of entrapment in this cir-

cuit, a defendant must first admit his ‘‘guilt of the crime

charged and all of its elements, including the required

mental state.’’ U.S. v. Hill, 655 F.2d 512, 514 (3d Cir.

1981) (citing U.S. v. Watson, 489 F.2d 504 (3d Cir. 1973)),

cert. denied, 464 U.S. 1039 (1984). See Government of the

Virgin Islands v. Braithewaite, 782 F.2d 399 (3d Cir.

1986). The Third Circuit has specifically rejected the alter-

native view that an entrapment charge may be given once a

defendant admits only the ‘‘operative facts’’ of the

charge, and not each element specifically, including the re-

quisite mental state. U.S. v. Janotti, 673 F.2d 578, 601 (3d

Cir. 1982). Defendant Marino never did admit the mental

states with which he was charged under any of the three

counts in the indictment, including the two counts on

which he was convicted, Counts I and III. Therefore, his

request for an entrapment charge was properly denied at

the time it was made, and does not at this time constitute

an error of law requiring relief from the jury verdict.

In challenging the remaining decisions of the court in

which pre-trial motions, requests to charge the jury, and

exceptions to the charge were offered by defendant and

denied, defendant states only that he renews his original

motions, requests, and exceptions. Without more specific

argument from defendant based on the facts found and

law applied in each of those separate decisions, I see no

need to reconsider them.

I now come to defendant’s allegations of juror

misconduct and extraneous influence on the jury. These

allegations are based on two letters written by juror

number 9, Vincenza Traina, after the jury announced its

verdict and was dismissed. The first letter, written some

time after October 2, 1986 and mailed to Mr. Washor,

defendant’s counsel, recounted Ms. Traina’s belief that

she had been unduly pressured by her fellow jurors to vote

for a verdict of guilty against defendant. I find, and the

parties agree, that any inquiry into the dynamics of jury

deliberation is prohibited, and that this letter of Ms.

Traina’s can provide no basis for questioning the jury’s

verdict. See Government of the Virgin Islands v. Gereau,

523 F.2d 140, 149-50 (3d Cir. 1975), cert. denied, 424 U.S.

917 (1976). Accord, Van Buskirk vy. Carey Canadian

Mines, Ltd., 760 F.2d 481 (3d Cir. 1985); Government of

the Virgin Islands v. Nicholas, 759 F.2d 1073 (3d Cir.

1985); U.S. v. Aimone, 715 F.2d 822 (3d Cir. 1983); see

also Fed.R.Evid. 606(b).

Ms. Traina’s second letter requires more considera-

tion. On or about October 24, 1986, Ms. Traina wrote

directly to the court, stating in part:

‘Dear J udge Ackerman:

I hope you’ll excuse this second intrusion on your time, but

I’ve remembered something that occurred during the trial.

_ One of the jurors, Anthony Ferrara, brought some infor-

mation into the jury room that may not have been ap-

propriate.

Mr. Ferrara is employed by the Republic Bank. One morn-

ing he commented on something he learned at work the

previous evening. He said that the F.B.I. had subpoenaed

the bank’s records for a defunct account in the name of

Orabrite. This was a few days after we had heard testimony

concerning a company with the name of Orabrite, and

where they had bank accounts.

I’m sorry that I didn’t bring this to your attention sooner,

but as I said before, I had forgotten about it. At the time, I

felt that it was inappropriate, but we were not all assembl-

ed so | dismissed it. .

It is the law of this Circuit that ‘‘extraneous in-

fluence’ imposed upon a jury, including ‘‘consideration

by the jury of extra-record facts about the case’’ tnay suf-

ficiently prejudice the decision making of a jury to war-

rant the setting aside of its verdict. Gereau, 523 F.2d at

149-50, 154. The consideration by the jury of extra-record

facts is ‘prima facie incompatible’ with a defendant’s

sixth amendment rights to an impartial jury, to confront

witnesses, and to receive the assistance of counsel at every

critical stage of a criminal proceeding. Gereau, 523 F.2d at

150. Therefore, once the jury’s consideration of extra-

record facts is established, and a resultant violation of the

defendant’s sixth amendment rights is established, the ver-

dict must be set aside if a party has been prejudiced by that

consideration. Gereau, 523 F.2d at 153-54.

In general, there is a presumption that jury verdicts

are valid and free from prejudice. Gereau, 523 F.2d at

154. Certain instances of extraneous influence, however,

establish a prima facie case of prejudice. For example,

when an outsider communicates with a juror during a trial

regarding the guilt or innocence of the defendant, there is

presumptive prejudice. U.S. v. Coleman, 805 F.2d 474,

482 (3d Cir. 1986) (citing Remmer v. U.S., 347 U.S. 227,

229 (1954)); U.S. v. Boscia, 573 F.2d 827, 830-31 (3d Cir.

1978) (quoting Remmer, 347 U.S. at 229-30). In such

cases, the verdict must be set aside unless the opposing

party rebuts the presumption of prejudice. Gereau, 523

F.2d at 154.

I note that the Gereau court, in canvassing the subject

of undue influence on jury verdicts, made a categorical

distinction between extra-record facts and outsider com-

munications directly regarding the guilt or innocence of

the defendant. 523 F.2d at 150-154. In addition, it appears

that the Third Circuit has never expressly considered the

circumstances under which extra-record facts, as opposed

to outsider communication, may give rise to a presump-

tion of prejudice. Nevertheless, Coleman and Boscia clear-

ly suggest that a presumption of prejudice should be infer-

red when the jury learns of extra-record facts which direct-

ly concern the guilt or innocence of the defendant.

The process by which the court considers the pre-

judicial effect of extra-record facts on the jury begins with

an allegation that extra-record facts have reached the

jurors. When there is ‘‘a significant possibility’’ that a

juror has been exposed to prejudicial extra-record facts,

the Third Circuit ‘‘prefers,’’ in general, that the court in-

vestigate the possibility of exposure by conducting in-

dividual questioning of the jurors. Government of the

Virgin Islands v. Dowling, Nos. 86-3289 and 86-3290 (3d

Cir. March 19, 1987), slip op. at 6-7. See cases cited in

Dowling, slip op. at 7. The court may exercise ‘‘wide

discretion’’ in determining the questions to ask of jurors

and the manner of asking them. Dowling, slip op. at 7-8.

See cases cited at Dowling, slip op. at 8. It is well accepted

for the judge to question jurors. See U.S. v. Moten, 582

F.2d 654, 667 (2nd Cir. 1978); Wright & Miller, 3 Federal

Practice and Procedure §554 at pages 261-62. Compare

Lanza v. Poretti, 537 F.Supp. 777, 782 (E.D.Pa. 1982) (at-

torneys did questioning) and U.S. v. Jezzi, 451 F.Supp.

1027, 1038 (W.D.Pa. 1976) (judge questioned jurors in

camera, with no objection from defendants), for an il-

lustration of the breadth of the court’s discretion to tailor

the proceeding to the needs of the case.

Limits to the scope of juror questioning are set by

Rule 606(b) of the Federal Rules of Evidence. That provi-

sion states: i

(b) Inquiry into validity of verdict or indictment ~

Upon an inquiry into the validity of a verdict or in-

dictment, a juror may not testify as to any matter or state-

ment occurring during the course of the jury’s delibera-

tions or to the effect of anything upon his or any other

juror’s mind or emotions as influencing him to assent to or

dissent from the verdict or indictment or concerning his

mental processes in connection therewith, except that a

juror may testify on the question whether extraneous pre-

judicial information was improperly brought to the jury’s

attention or whether any outside influence was improperly

brought to bear upon any juror. Nor may his affidavit or

evidence of any statement by him concerning a matter

about which he would-be precluded from testifying be

received for these purposes.

Within these limits, the court should attempt to establish

with its questions: 1) what the extraneous influence was

and 2) whether it was of a nature calculated to be pre-

judicial. Liggett & Myers v. Imbraguglia, 73 F.Supp. 909

(D.Md. 1947). The ‘‘entire picture’? of the influence

‘should be explored.’’ Moten, 582 F.2d at 667.

Based on the evidence adduced, the court must deter-

mine what, if any, extra-record ‘‘contamination’’ occur-

red and, if there was such contamination, whether it was

sufficiently prejudicial to require that the verdict be over-

turned given a violation of the defendant’s sixth amend-

ment rights. Judgments regarding the prejudicial value of

the extra-record influence are made by the judge objective-

ly, since it is forbidden to probe whether the jurors were

subjectively prejudiced. Gereau, 523 F.2d at 150-54; Owen

v. Duckworth, 727 F.2d 643, 646 (7th Cir. 1984); Musto,

540 F.Supp. at 345. As is often said, the juror can testify

to the existence and nature of the influence, but not its ef-

fect. U.S. v. Greer, 620 F.2d 1383, 1385 (10th Cir. 1980);

Lewellyn v. Stynchcome, 609 F.2d 194, 196 (Sth Cir.

1980); U.S. v. Jonnet, 597 F.Supp. 999, 1001 (W.D.Pa.

1984). The question of effect is for the judge.

After reviewing the October 24 letter from Ms.

Traina, the parties agreed that it raised a question of in-

fluence by extra-record facts. Both sides requested that the

court hold a hearing to develop evidence on the scope of

the influence and its prejudicial effect. On January 12,

1987 and February 10, 1987, the court held hearings to ex-

plore the issues. The court called all 14 jurors empanelled

at the start of the trial and questioned them regarding

juror Ferrara’s alleged remarks. One of Mr. Ferrara’s co-

workers, Joseph Patrick, and special agent Edward Kelly

of the F.B.I., who served the subpoena referred to by Mr.

Ferrara, were also questioned. Based upon all the evidence

adduced in this matter, I make the following findings of

relevant fact.

The case against defendant Marino was based in large

part on the testimony of two government witnesses, John

Sliker and Martin Swirsky. During the course of the trial,

defendant spent many hours cross-examining these

witnesses, attempting to impign their credibility with

evidence of prior bad acts, criminal convictions, and un-

trustworts, character, including evidence of past frauds

and misstatements and evidence of cooperation with the

government in anticipation of lenient treatment. At one

point, defendant called Ralph Angel to testify that Martin

Swirsky had lied when in the past Swirsky represented in a

letter that Angel’s company, Orabrite, was involved in a

Kruggerand deal with John Sliker. According to the letter,

the deal was to be handled through Orabrite’s account at

the Republic National Bank. In response to defendant’s

questioning, Mr. Angel not only testified that Swirsky’s

letter was false and unauthorized, but also that, while

10a

Orabrite had bought Kruggerands from Republic National

Bank, the company had no bank accounts with Republic.

The government did not cross-examine Mr. Angel.

Apparently, however, the government did attempt to

verify the accuracy of Mr. Angel’s statement that Orabrite

had no account at Republic. The prosecuting attorney,

Mr. Gibbons, dispatched F.B.I. Special Agent Kelly to

Republic’s record storage center in Passaic, New Jersey,

with a subpoena for any records Republic kept on

Orabrite. Special Agent Kelly found records there which

showed that Orabrite engaged in gold transactions with

Republic. There was no evidence in Republic’s records

that Orabrite had any bank account with Republic. The

government never attempted to offer any of this informa-

tion into evidence.

One of the jurors sitting in the Marino case, Mr. An-

thony Ferrara, worked for Republic at the Passaic records

center, and was on leave from his job while serving on the

Marino jury. The government did not know that one of

the Marino jurors worked at the records center. One night

soon after Special Agent Kelly made his trip to the records

center, Mr. Ferrara dropped by his workplace. He was

told that an F.B.I. agent named Kelly had come by with a

subpoena for Orabrite records and had been surprised at

the quantity of material he was shown. One or two days

later, while waiting in the jury room for the resumption of

that day’s proceedings in the Marino trial, Mr. Ferrara

spoke about what he had learned at work. In the presence

of six to ten of his fellow jurors, Mr. Ferrara mentioned

out loud that he had visited work and had learned that the

F.B.I. had served a subpoena for Orabrite records and had

been shown a quantity of papers in response. Mr. Ferrara

expressed surprise that Orabrite records existed at the

records center, for that fact seemed to contradict the

lla

testimony of Mr. Angel earlier that Orabrite did not have

a bank account at Republic.

Of the fourteen jurors and alternates, four heard

none of this. Five jurors remembered only vaguely that

something about a subpoena had been mentioned. Four

jurors, Melodie Crump, Janine Amato, Barbara Blair,

and Ms. Traina, heard Mr. Ferrara’s story. They all

described the story as one in which Mr. Ferrara explained

that Orabrite records existed at Republic, in apparent con-

tradiction of Mr. Angel’s testimony that Orabrite had no

account there.

Mr. Ferrara’s story was met with vague exclamations

of mild surprise, such as ‘‘you’re kidding,’’ by those who

heard it. Mr. Ferrara confirmed that he had seen the

records himself. The story was not discussed any further.

It was never mentioned again.

I find it to be clear from the facts recounted above

that the Marino jury was presented with extra-record facts

which related to an issue in the Marino case, namely the

credibility of a defense witness whom the government

never cross-examined. The government does not dispute

this conclusion. I also find it to be clear that defendant’s

sixth amendment rights were violated. As a matter of law,

extra-record influence of the type present in this case con-

stitutes a prima facie violation of defendant’s sixth

amendment rights. Gereau, 523 F.2d at 150. The govern-

ment does not attempt to rebut this prima facie violation.

Nor could it, since as a matter of fact, I find it to be clear

that defendant’s rights were infringed. Mr. Ferrara and

the other four jurors who heard his full story all

understood the extra-record facts made known to them as

evidence that Mr. Angel’s testimony regarding Orabrite

bank accounts at Republic was inaccurate or untrue. In

12a

fact, it was accurate. Orabrite never had a bank account at

Republic. The records uncovered at the Republic records

center showed only that Orabrite had engaged in gold

transactions with Republic; a fact which Mr. Angel admit-

ted in his testimony. Had the fact that Republic kept

records on Orabrite been presented to the jury in open

court, defendant’s counsel could have used procedures

known to trained counsel to examine the records and pro-

ve that they supported, rather than refuted, Mr. Angel’s

testimony. Thus, defendant could have buttressed Mr.

Angel’s credibility and thereby buttressed defendant’s

general effort to impeach Mr. Swirsky’s credibility.

Because the facts were presented off the record, however,

defendant’s capacity to benefit from the assistance of

counsel, the confrontation of witnesses, and the impar-

tiality of the jury was as a matter of fact impaired.

I conclude, however, that the infringement of defen-

dant’s sixth amendment rights did not prejudice the jury

verdict against him. See Gereau, 523 F.2d at 153-54. The

worst effet the extra-record facts could have wrought

would have been that five jurors found Mr. Angel’s

testimony utterly unreliable or untrustworthy. Even in

that extreme instance, I find that the jury would have

reached the same verdict. The jurors were provided with

an ample supply of evidence aside from Mr. Angel’s

testimony from which to conclude that Mr. Swirsky’s

testimony could not be believed. Discrediting Mr. Angel

alone would not have rendered Mr. Swirsky credible,

because the jury had received an abundance of additional

evidence challenging Mr. Swirsky’s credibility. And even

if Mr. Swirsky’s testimony was rendered credible by Mr.

Angel’s discredit, the jury could not have found defendant

guilty without also finding separate reasons for rejecting

the evidence presented in favor of defendant’s innocence,

including defendant’s own testimony that he was not guil-

l3a

ty of the crimes charged. Such reasons were available

among the other evidence of guilt submitted by the

government, including the extensive, damaging testimony

of John Sliker. In short, Mr. Angel’s testimony was

marginally important to the extended impeachment effort

brought against one of the government’s two key

witnesses. Given this tangential connection between Mr.

Angel’s testimony and the issue of defendant’s guilt or in-

nocence, I find that undermining Mr. Angel’s believability

could not in any way be seen as swaying the jury toward

convicting defendant Marino. See, e.g., U.S. v. Wor-

thington, 698 F.2d 820 (6th Cir. 1983); U.S. v. Bagnaroil,

665 F.2d 877 (Sh Cir.), cert. denied, 456 U.S. 962 (1981):

Stynchombe, 609 F.2d at 195-96.

Given this conclusion, I find it unnecessary to decide

whether the extra-record facts at issue give rise in the first

place to a presumption of prejudice. Even where a

presumption established, it would be rebutted by the vir-

tual irrelevance of Mr. Angel’s testimony to the issue of

defendant’s guilt or innocence.

Plaintiff has not raised a claim that the introduction

of extra-record facts denied him due process under the

fifth amendment. I note, however, that due process does

not require that a defendant receive a jury free of ex-

traneous influence. It requires only ‘‘a jury capable and

willing to decide the case solely on the evidence before it,

and a trial judge ever watchful to prevent prejudicial oc-

curences and to determine the effect of such occurences

when they happen.’’ Smith v. Phillips, 455 U.S. 209, 217

(1982). Defendant received all the process he was due

under Smith.

In conclusion, I find that the court does not lack

jurisdiction over this matter; that the jury verdict is not

against the weight of evidence; that no error was made in

refusing to charge the jury on entrapment; that other

unspecified rulings of the court denying pre-trial motions,

requests to charge the jury, and exceptions to the jury

charge made by defendant do not require reconsideration;

and that the presentation of extra-record facts to the jury

did not violate defendant's sixth amendment rights in a

manner which caused defendant prejudice, and did not

violate defendant’s fifth amendment rights.

lSa

APPENDIX B—DOCKET AND ENTRY JUDGMENT

OF TRIAL COURT 5/11/87

1-13-87—N. MARINO—Hrg. on motion of deft. for a

new trial, re letters from jurors. The Court conducted an

individual inquiry of the jurors. ORDERED hrg adjourn-

ed w/out a date. (Ackerman) (1-12-87)

1-21-87—C. KELLY—ORDER extending the time to

voluntarily surrender to the Federal Prison Camp,

Lewisburg, Pa. to June 29, 1987, filed. (Ackerman)

1-22-87—N. MARINO—Transcript of Proceedings held

on 1-12-87, filed.

2-11-87—N. MARINO—Hearing on motion of deft. for

new trial re: letters from jurors. Court conducted in-

dividual inquiry of juror (Barbara Blair—5622). Decision

Reserved. Ordered govt brief to be filed by 2-25-87.

Ordered deft brief to be filed by 3-4-87. Ordered hearing

adj. (Ackerman) (2-10-87)

2-11-87—N. MARINO, S. ROMANO—Transcript of

Proceedings, Excerpt, of 9-17-86 filed 2-11-87

4-22-87—N. MARINO—OPINION, filed. (Ackerman)

4-22-87—N. MARINO—ORDER denying deft’s motions

for arrest of judgment, relief from the jury verdict and a

new trial and that the sentencing date for deft. is scheduled

for 5-11-87, filed. (Ackerman)

4-27-87—J. SLIKER—Judgment and Commitment

ORDER filed 4-27-87 (Ackerman)

4-28-87—N. MARINO—JUDGMENT and ORDERED

that the deft is not guilty of the offenses charged in Ct 2 of

the Indictment filed 4-27-87 (Ackerman)

4-28-87—S. ROMANO—JUDGMENT and ORDERED

that the deft is not guilty of the offenses charged in Cts 1,

2 and 3 of the Indictment filed 4-27-87 (Ackerman)

16a

4-28-87—J. SLIKER—SENTENCE: 1 yr to run con-

secutively to sent. of the Southern District of New York in

Cr. 83-691. Hearing on application of govt to dismiss Cts

2 and 3. ORDERED application GRANTED. OTBS

(Ackerman) (4-27-87)

5-8-87—N. MARINO—Certification of review of pre-

sentence report, filed. (Ackerman)

5-11-87—N. MARINO—Minutes of 5-8-87 re:

SENTENCE: deft N. Marino Ct 1: 18 months Fine of

$2,500.00. Ct 3: 18 months concurrent to ct 1. Fine

$2,500.00 not concurrent. Voluntary surrender to a

designated institution.

17a

APPENDIX C—DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

12/23/87

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-5339

UNITED STATES OF AMERICA

NICHOLAS MARINO

Appellant

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal No. 86-36)

District Judge: Hon. Harold A. Ackerman

Argued October 21, 1987

Before: HIGGINBOTHAM, SCIRICA and GARTH,

Circuit Judges

(Filed DEC 23 1987)

MEMORANDUM OPINION OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

This is an appeal from the order of the district court

denying the motion of appellant Nicholas Marino for a

new trial following a judgment of conviction. Marino

argues that the decision of the district court, denying a

new trial because the extraneous matter that reached the

jury did not prejudice the verdict, was an abuse of discre-

tion, and that the district court’s refusal to instruct the

18a

jury On entrapment was an error of law. We hold that the

district court’s conclusion that the extraneous matter did

not prejudice the verdict was not clearly erroneous and

that its refusal to instruct the jury on entrapment was not

an error of law. Accordingly, we will affirm the judgment

of the district court.

Marino, a practicing tax attorney, was accused of one

count of conspiracy to transport stolen property in in-

terstate commerce and two counts of receiving, selling and

disposing of stolen property moving in interstate com-

merce. The property was two separate packages of bearer

bonds.

Marino testified that he was owed approximately

$110,000 by an individual named Jack Sliker' as a result of

business dealings. Sliker offered to give Marino a package

of $975,000 in bearer bonds of the City of Fort Meyers,

Florida, that Marino could sell, thereby reducing Sliker’s

debt.

Appellant arranged to sell the bonds to Morton Swir-

sky, who, unknown to Marino, was at that time acting as a

government informant. This arrangement was a result of

an agreement with respect to recent charges brought

against Swirsky for possession of stolen bonds. It is un-

contested that, after Marino learned that Sliker had bonds

to sell, Marino was contacted by Swirsky with an oilfer to

1. Sliker was originally charged as a co-defendant. Sliker pleaded

guilty before trial and testified against Marino. Sliker’s testimony

revealed that he was not at any time acting as a government agent or

informant during his dealings with Marino.

19a

buy bonds. A dispute arose between Marino and Swirsky

as to whether the Fort Meyers Bonds were legitimate or

worthless photocopies. Marino returned the Fort Meyers

Bonds to Sliker, who then gave Marino $1,000,000 in

Federal Home Loan Bank Bonds. He delivered the bonds

to Swirsky, at which time Marino was arrested by the FBI.

At trial, Gulkin, Marino’s law partner, testified under

a grant of immunity that he was aware that the bonds of-

fered by Sliker were most likely stolen, based upon their

low price. Marino claimed throughout the trial, however,

that he did not know of the stolen nature of the bonds.

Marino asserts two grounds on this appeal: 1) that the

district court abused its discretion by denying a new trial

despite its finding that the extraneous matter that reached

the jury did not prejudice the verdict; and 2) that the

district court erred by refusing to instruct the jury on the

issue of entrapment, despite Marino’s testimony that he

did not know the property he possessed was stolen.

Il.

We begin by analyzing the claim of extraneous in-

fluence on the jury. The district court conducted a hearing

into the nature of the extrinsic evidence and its possible

prejudice to the verdict. Post-trial testimony at the hearing

revealed that some extrinsic evidence had reached the jury.

One juror, employed by a large bank, testified that he was

made aware by a co-worker that the FBI had subpoenaed

bank records of a witness in this case. During the trial, the

witness had testified that he did not have certain accounts

with that bank. That juror casually mentioned the sub-

poena incident at the bank to some other jurors. The other

jurors were questioned regarding any extraneous informa-

tion that they had heard. Those who remembered hearing

20a

about the bank records subpoena testified that it had no

effect on them. In addition, the district court, at trial, had

instructed the jurors only to consider the testimony and

evidence presented in reaching a verdict.

Following a considered review of the details and cir-

cumstances of the case, the district court concluded that

there was no logical and rational connection between the

extraneous influence and possible prejudice, and that mere

speculation as to prejudice was insufficient to require the

verdict to be overturned. It therefore upheld the verdict,

based upon a finding that there was no possibility of pre-

judice affecting the verdict.

This Court will accept factual findings of the district

court unless they are clearly erroneous. We hold that the

findings do have a reasonable basis in the record evidence,

and, therefore, we hold that the district court did not

abuse its discretion when it denied Marino’s motion for a

new trial on this ground.

Ill.

Marino argues that the district court erred as a matter

of law by refusing to instruct the jury on entrapment. At

trial, he admitted most of the operative facts underlying

the charges. He denied, however, knowing that the bonds

were stolen. Knowledge of the stolen character of the pro-

perty is a necessary element of receiving stolen property,

the offense with which Marino was charged.

At trial, Marino requested an entrapment instruction.

The district court denied the request and did not instruct

the jury on entrapment. It is well-settled federal law in this

Circuit that a defendant may not contest an essential ele-

ment of an offense and still claim the defense of entrap-

2la

ment. United States v. Watson, 489 F.2d 504, 507 (3d Cir.

1973).

Since Watson, this rule has been followed in each

subsequent decision in which we have confronted this

issue. See United States v. Hill, 655 F.2d 512, 514 (3d Cir.

1981) (defendant of subnormal intelligence claimed to

have been unable to form criminal intent); United States v.

Shoup, 608 F.2d 950, 964 (3d Cir. 1979) (defendant claim-

ed he owed no duty to government and therefore could not

have conspired to defraud it); United States v. Levin, 606

F.2d 47, 48-49 (3d Cir. 1979) (defendant admitted supply-

ing food stamps but denied knowing it was illegal to do

SO). .

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

(in banc), cert. denied, 457 U.S. 1106 (1982), this rule was

discussed with regard to a defendant who claimed that the

money he received in an ‘‘Abscam’’ related investigation

was not a bribe, but rather was a ‘‘consulting fee.’’ The

district court adopted an ‘‘operative facts’’ theory, allow-

ing an entrapment instruction when the defendant admits

most of the operative facts underlying the charges. This

Court reversed. We held that, because knowledge that the

money was intended as a bribe was an element of the

Hobbs Act offense, the defendant was not entitled to an

entrapment instruction if he denied a necessary element of

the offense, i.e., that the money was a bribe. 673 F.2d at

601.

This appeal presents a similar set of circumstances.

Marino admitted most of the operative facts, but he did

not admit that he knew of the stolen nature of the property

involved. The district court correctly applied the law in

refusing to instruct the jury on the entrapment defense

where the defendant has not admitted an essential element

of the offense.

22a

We note that the Circuits are split on the issue of

whether the defense of entrapment is available to a defen-

dant who denies intent where intent is an essential element

of the offense. In a case which illustrates this split, the

Supreme Court has recently granted certiorari. United

States v. Mathews, 803 F.2d 325 (7th Cir.), cert. granted,

__ U.S. _., 107 S. Ct. 1601 (No. 86-6109), argued Dec. 2,

1987, 56 U.S.L.W. 3398-99 (U.S. Dec. 8, 1987). Mathews

was convicted of accepting a thing of value as a public of-

ficial for an official act to be performed by him. At trial,

Mathews had claimed that the money given to him was a

personal loan that was not related to his governmental

duties. The district court refused to instruct the jury on en-

trapment because Mathews did not admit all the elements

of the offense, including the element of intent. The Court

of Appeals for the Seventh Circuit affirmed, refusing to

change its rule requiring a defendant to admit all elements .

of an offense before being allowed to plead entrapment.

The Court of Appeals stated that its rule is in accord with

the law of the Courts of Appeals for the Third, Sixth and

Tenth Circuits. Mathews argued that a better rule, as

adopted by the Courts of Appeals for the First, Fifth and

District of Columbia Circuits, requires a defendant only to

admit the acts of a crime and not the intent. The court

concluded that, ‘‘[w]hen a defendant pleads entrapment,

he is asserting that, although he had criminal intent, it was

the ‘Government’s deception [that implanted] the criminal

design in the mind of the defendant.’ ’’ 803 F.2d at 327

(quoting United States v. Russell, 411 U.S. 423, 436

(1973)). The court added that it was “‘inconsistent per se’’

to allow a defendant to deny a

In this case, the district court did not err in refusing

instruct the jury on entrapment, correctly applying the

well-settled law of this Court.

23a

For the foregoing reasons, we will affirm the judg-

ment of the district court.

TO THE CLERK:

Please file the foregoing opinion.

s/ A Higginbotham

Circuit Judge

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