Supplemental Brief — Marino v. United States

87-1414 ~

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Supreme Court of the United States

October Term, 1987

NICHOLAS MARINO,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

SUPPLEMENTAL PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE

PFHIRD CIRCUIT

W ASHOR, GREENBERG & WASHOR

Attorneys for Petitioner

291 Broadway

New York, NY 10007

(212) 732-2077

MICHAEL S. WASHOR

HARVEY L. GREENBERG

On thre Pe litto?

. an ry ° > 4

[) k brite inte rw, 202 Richmond Avenue @ Staten Island, New York 10302

ir (212) 608-7666 71K) 447-8358 — (516) 222-2470 (914) 682-O848

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?

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.

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TABLE OF CONTENTS

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POINT I—This Court should grant Certiorari and

summary reverse this case premised upon the recent

Decision in Mathews vs. United States wherein the

identical issue raised by Petitioner was decided

favorably, to wit, the right of Petitioner to have had

his defense of entrapment presented to the Petit Jury

when Petitioner admitted committing all of the acts

constituting the offenses charged but denied possess-

IMA CIO PRUSIEE CFIMIMIAL UNION «2... cccccccccccccccccscestes 5

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REET CRN NE MI Se A ME Mie ANS NETTIE 7

Appendix A—Trial Court Decisions 4/22/87 As it

pertains to this Supplemental Petition....................... la

TABLE OF AUTHORITIES

Cases Pages

Mathews v. U.S. __ U.S. __, 42 CRL 3069 No.

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In Che

Supreme Court of the United #tates

October Term, 1987

NICHOLAS MARINO,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

SUPPLEMENTAL PETITION FOR A WRIT OF CER-

TIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

NICHOLAS MARINO supplementally 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 conviction for conspiracy to transport stolen

securities in interstate commerce and to sell and dispose of

said stolen securities in violation of Title 18 U.S.C. Sec-

tion 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 in-

carceration 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.), as pertains to the issue of

entrapment 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’’, of Petitioner’s

Original Petition.

JURISDICTIONAL STATEMENT

This supplemental Petition seeks review of a decision

of the United States Court of Appeals for the Third Cir-

cuit, rendered on December 23, 1987, which decision af-

firmed petitioner’s conviction for violating the provisions

of Title 18 U.S.C., Sections 371, 2315 and 2.

The original 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 supplemental Petition is filed prior to any deci-

sion being rendered on the original petition in order to in-

corporate this Court’s decision in Mathews v. United

States, __ U.S. _., 42 CRL 3069, decided 2/14/88.

This Court’s jurisdiction is invoked pursuant to 28

U.S.C. Section 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, Or property, without due process of law.”’

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 was 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

III, the substantive crime of receipt, sale and disposition

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

2.

Petitioner MARINO was sentenced as follows: On

Count I, Eighteen (18) Months incarceration and a fine of

TWENTY-FIVE HUNDRED ($2,500.00) DOLLARS: On

Count III, eighteen (18) Months incarceration and a fine

of TWENTY-FIVE HUNDRED ($2,500.00) DOLLARS:

The prison sentences under Counts I & III to run concur-

rently.

The United States Court of Appeals for the Third Cir-

cuit affirmed.

This supplemental petition asks this Court to review

the Circuit Court’s decision. Petitioner contends that his

Constitutional rights were denied him in that he was

deprived of the defense of entrapment although he admit-

ted all of the acts constituting the offense charged but

denied possessing the requisite criminal intent.

This Court, in Mathews v. United States, __ U.S. _,

42 CRL 3069, No. 86-6109, decided 2/24/87, resolved the

identical issue raised herein.

=== aga...

4

On appeal to the Circuit Court, petitioner raised the

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

Petitioner adopts and incorporates the Statement of

Facts submitted in his original Petition, pages 4 through 9,

as if fully reiterated herein in its entirety.

PETITIONER’S DEFENSE

Petitioner adopts and incorporates statement of his

defense submitted in his original petition, pages 9 through

16, as if fully reiterated Ferein in its entirety.

REASONS FOR GRANTING REVIEW

POINT I

THIS COURT SHOULD GRANT CERTIORARI

AND SUMMARILY REVERSE THIS CASE

PREMISED UPON THE RECENT DECISION IN

MATHEWS vs. UNITED STATES WHEREIN THE

IDENTICAL ISSUE RAISED BY PETITIONER

WAS DECIDED FAVORABLY, TO WIT, THE

RIGHT OF PETITIONER TO HAVE HAD HIS

DEFENSE OF ENTRAPMENT PRESENTED TO

THE PETIT JURY WHEN PETITIONER ADMIT-

TED COMMITTING ALL OF THE ACTS CON-

STITUTING THE OFFENSES CHARGED BUT

DENIED POSSESSING THE REQUISITE

CRIMINAL INTENT.

I. In the case at bar, petitioner presented evidence of the

Government inducement, initiation and solicitation and

total lack of propensity and disposition by petitioner to

violate the law.

Petitioner admitted all the acts underlying the charges

against him, but denied the element of criminal intent.

Petitioner’s timely request for an instruction of the

defense of entrapment was denied as was the post-verdict

motion which was addressed to the same issue.

In Mathews v. United States, supra, this Court, in

reversing held:

‘*We hold that even if the defendant denies one or more

elements of the crime, he is entitled to an entrapment in-

struction whenever there is sufficient evidence from which

6

a reasonable jury could find entrapment.’’ (supra, at 3070)

‘‘That a valid entrapment defense has two related

elements: government inducement of the crime, and a lack

of predisposition on the part of the defendant to engage in

the criminal conduct. (Citations omitted). Predisposition,

the principal element in the defense of entrapment .. .

focuses upon whether the defendant was an ‘‘unwary inno-

cent’’ or instead, an ‘‘unwary criminal’’ who readily avail-

ed himself of the opportunity to perpetuate the crime

(Citations omitted). The question of entrapment is general-

ly one for the jury, rather than for the Court.’’ supra, at

3070.

In the case at bar, the record is replete with evidence

that the Government, through its informer-agent, Morton

Swersky, induced, solicited and beguiled the petitioner.

The Government cannot seriously contend otherwise in

light of the overwhelming evidence of Governmental in-

ducement.

At the trial level, the Government never contended in-

sufficiency of inducement by the Government agent

(Swersky); nor did they raise that issue on appeal in the

Third Circuit.

Petitioner introduced evidence demonstrating his lack

of predisposition to commit any of the crimes charged.

This evidence was not controverted and stands uncon-

tradicted.

In sum, the two related elements of the defense of en-

trapment, government inducement and lack of predisposi-

tion to violate the law, were fully evidenced at trial.

All that remains is the application of the law as pro-

mulgated and enunciated in Mathews, supra, to the instant

petition, where petitioner properly preserved the issue for

review.

CONCLUSION

Upon the facts and the principles of law outlined

above, it is urged that this Court issue a Writ of Certioriari

to the United States Court of Appeals for the Third Cir-

cuit and review the decision of that Court or, alternatively,

Summarily reverse the instant case in light of Mathews vs.

United States, remanding the matter to the Third Circuit

Court of Appeals directing entry of judgment in accor-

dance with this Court’s decision rendered in Mathews v.

United States.

Respectfully submitted,

WASHOR, GREENBERG & WASHOR

Attorneys for Petitioner

291 Broadway

New York, NY 10007

(212) 732-2077

MICHAEL S. WASHOR

HARVEY L. GREENBERG

On the Petition

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APPENDIX A - TRIAL COURT DECISION 4/22/87

AS PERTINENT TO THE SUPPLEMENTAL PETI-

TION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CRIMINAL ACTION NO. 86-36

UNITED STATES OF AMERICA.

.

NICHOLAS MARINO, et al.,

Defendants.

Samuel Alito, Esq

United States Attorney

by: Daniel J. Bibbons, Esq.

Asst. United States Attorney

970 Broad Street

Newark, New Jersey 07102

Michael S. Washor, Esq.

Washor, Greenberg & Washor

291 Broadway

New York, New York 10007

Attorneys for Defendant Marino

2a

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 dealings in and

One count of conspiring to deal in stolen bearer bonds

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

Sections 2315, 2 and 371. On October 2, 1986, defendant

was convicted by the jury on Count I of the indictment,

which stated the conspiracy charge, and Count III of the

indictment, 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 verdict was contrary to law (and)

that the interest of justice demands a newtrial,. . . .I shall

consider each of these grounds in turn.

Defendant’s grounds for relief, that the verdict was

contrary to law (and) that the interest of justice demands a

new trial, are all based on the following more specific con-

tentions: that the court committed an error of law when it

refused to instruct the jury on the law of entrapment; that

the court committed errors of law in regard to each of

defendant’s request to charge the jury, and exceptions to

the jury charge which the court denied; I shall discuss each

of these 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

3a

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 conclusion, I find that no error was made in refus-

ing to charge the jury on entrapment; that other

unspecified rulings of the court denying requests to charge

the jury, and exceptions to the jury charge made by defen-

dant do not require reconsideration.