# Supplemental Brief — Marino v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0722%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Supplemental Brief - **Published:** January 1, 1988 - **Citation:** 485 U.S. 1031 ## Text 87-1414 ~ jn Che = j Bei 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. il TABLE OF CONTENTS Page i ieserchighintansesecsssaasensesvanesa i aiden saruddciuadvarenuedsneeseseasnnas i ns. ci avesavdeuecensivsecssaanenssti ill ae bacalaneadhecewgnbidebsnsaieeaaucadec l tila cchauvedsessnddessciascecasdesevsasacacs l ee aise cidcdprancresdcpdtsescnlsceacsasarssencs 2 INN OMIWEEIONEG, oo occcsscnccscssncsacesesscescccancsees 2 Ort vlbicwessnedesshansesaonw nese 3 Statement of Facts Recs. GLA cccalnumaeepew es idaukcakwitonse 4 deli dcanavaciuajuasdannaseakaadanses 4 eens FOr GANTINS INE Wit ...........0ccccccccccssccssceces 5 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 iil 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. ny CIE Al OO evcanansentadcnincdscatawnencess passim 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 la 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0722%3A2. Public record. Not legal advice.