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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 1031

## Text

FILED
F
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

i
?

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.

ii
TABLE OF CONTENTS

Pages
i SEI i
EE Sal auidsbdabubasesessoudbitnecsocecccocsucescocccocecedocosocoe’ i
RIT MEIIIED cccccubatbéceoccesncescnecesccsscescoccececes iv
i Ur. siial dncencesegcesboccassessabscesenceneccioe l
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

iv

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

v

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

vi

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) .....

>>

16

3n The
@upreme 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

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’’.

2

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.’’

3

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 &
2

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

4

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

5

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.

6

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

8

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-

9

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-

10

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

a

12

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

13

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

14

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,

1S

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-

16

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

17

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.

18

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

tS

19

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).

20

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.

21

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).

22

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.

23

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-

24

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-

25

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

26

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.”’

27

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.

28

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

la
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.

2a

§§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-

3a

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.

4a

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

Sa

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

6a

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-

7a

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

8a

(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);

9a

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

OE

4a

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
v.

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0722%3A1. Public record. Not legal advice.