Petition for A Writ of Certiorari — Marcello v. United States

Supreme Court brief1971

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PETITION FOR A WRIT OF CERTIORARI TO THE

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Guides v, Warden, 331 F.20-082 Ge Ch. 1988). m1

Grady v. Manytend, 373 US. GBQIED).... |... $9

Clatbome v. Untied Stamm, 77 F.20682 GR Ce. 1935) is

Caren v. Gutenere, 259 F.28-707(ReOe. 190m)... oy

Diamond v. Unned Stamm, 632 F.20 35h Ce. 197) is

Gdn v. Guts, 337 US. TI GE................... 1s

Ges v. Maryland, 385 US.6500957 ............ seuss

Guewere v. Geto, 396 F208 605 GS Ch. 1967) ........... 1

umeic v. Gulley, 305 F.20 S90 Ce. 1967) «dw, 12

duckeon v. Walnsight, 390 F.20 208 (Sa Ce. 1958)... 13

Rectnen v. Unned Guam, 396US. 27G06H ........... 4

Kyte v. Uneed Grates, 297 F.20 SUB (and Ce. 1962) ... «i. 12

Marcello v Kennedy. 194 F Supp. 748. reversed 312 F 2d

676 GDC. Cir., 1962) com. dented, 373 S.933......... 9

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Gunde» Uaeed Game, SIS UR. LCS tCi‘(‘(‘(‘(‘(‘(C(“‘ 14.,,15, 16

Qed». Uened Gam, 987 US. 495qI8R 2 ««w«wi«‘(‘(‘ ‘(<es;‘ SD

Gaaghare v, Unied Gane, 286 F.28 69? (HOR Ch. 1957) IS

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want Game on od. then ». Wien, 3296 F.24 135, 140

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want Gam en oe. —— 228 F.28 763 (ore

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eannd Gan ©. Orhewn, 90 US. 378.1983) (ieceneeeee 16

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annd Seaman ©. Henny, 4? #28 267 (AC, 1989) ena ., 9

United States v Marcsito, 423 F 26 998 (Se) Ci 1270)

cut. Grain’ 398 US. 959, 1 Gap. GA. 7, 13 CIF) «=... 2.5.9

Unieed States v. Micaterti, 310 F 24 359 (7th Cir, aes

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(Waiann v. Uaned Sate, 258 F.28 416 (DC. Ce. 1958) 1s

_ Waime v. Detten, 600 F.28 197 (OR Cee. 1968)... .-- 12

STATUTES.

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Cartos Marcelto. petitioner. prays that a writ of certoran

issue to revrew the judgment of the United States Court of

Appeats for the Fifth Circust winch affirmed orders of the

United State: District Court for the Southern District of

Texas denymg a motion for a new mal upon the bess of

Se nn of extdenee end en epplieation ender 08 USC.

‘of the Court Below was entered on Janu

Tre juntediction of thes Court in conferred by

4 Wes i proper to deny, without an evidentiary hearing.

petitioner's application under 16 U.S.C. 2255. alleging that

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hand blow (R. 941, 955). foregoing incident resulted _

in petitioner’s conviction on September 12, 1968 in the

Southern District of Texas for assaulting and/or intimidat-

ing an F.B.1. agent contrary to 18 U.S.C. 111.2 The convic-

tion was affirmed on appeal, 423 F.2d 993 (Sth Cig.,1970),

and certiorari was denied, 398 U.S. 959° (1970). Thereafter.

on June 19, 1970, 2 motion was filed for a new trial (A. 1),

alleging, among other things, suppression of evidence. con-

trary to Brady v. Maryland, 373 U.S. 83 (1963).

been sought at in the examination of F.B.1. Agents

Avignon (®. 876) and Kelteher (R. 1125-7) nae

favorable evidence had been made pre

26), renewed prior to the second trial (R. 29>.

The following occurred et the first trial in Laredo. upon

a specific request for this vital evidence |

“hr. Wassermon: | thimk they arranged this con-

vocation of news media.

« “Rix. Neff: 1 eesent that, your Honor.

“Mr. LaCour: I do too. This is not the first time

this man was in the news

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“And | say we resent thet Mr. Wasserman is

saying that we tried to set this man up.

*Tranecsipt of July 21 & 22, 1970.

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the bail application herein, the |

| 874 (DC. Cir., 1962) cert. denied 373 US. 933),

tions of law by those entrusted with its enforcement should

not go unnoticed. ,

“ 2. The suppression of evidence herein related to nondis-

closure that the F.B.I. had arranged for the rews media to

meet Marcello on September 30, 1966, at the airport, as

well as the fact that F.B.1. Agent Collins had been drunk

at 3:30 p.m. on that date. These items of evidence were

baghly significant.

Siete deeiiteneadiiaiiin diiltias,

theory of the defense which is supported by law and which

has some foundation in the evidence, however tenuous.

United States v. Grimes, 413 F.2d 1376 at 1378 (7th Ciz.

1969). The prosecutors, by failing to disclose the evidence

as required by Brady v. Maryland and by the use of perjured

and false testimony , prevented petitioner from using evidence

bearing on provocation, entrapment, good faith of the pro-

secution, and the credibility of government agents. Even —

relatively slight evidence of inducement will require submis

sion of the entrapment defense to the jury. United States

v. Henry, 417 F.2d 267, 269 (2d Cir., 1969), and Sorrelis

v. United States, 287 US. 435 (1932). Although the Dis-

trict Court may not have erred in refusing to charge the

- jury on entrapment off the facts presented at trial, (R. 1408)

it was a clear violation of petitioner's due process rights,

which are grounded in fairness, for the government to sup-

press, deliberately, the evidence which would have been

an integral and first step in the defense of entrapment.

provocation is a deprivation of duc process.

The government, through its prosecutors. decided for the

Court, for the defense. that the formation in its possession

‘thowld be auppressed. Wf this evidence was benign, why

suppress it?) And if from the desense, why from the Court’

This convection 1s tainted by an outrageous deliberate fasbure

to disclose on the part of the government.

dence which should have been bul never was submitted to

the jury,” the only tribunal entitled to pass upon it. US

ex vel Thompson v. Dye, 221 F.2d 763, (30d Cir. 1955)

cited with approval in Brad) » Mar) iand. supra.

3. The suppression of Collins’ drunkeness on the day of

the incident and Collins’ inability to recall events of that

day are another exampte of the fact that the defense and

tion requisite to a just verdict. The government did not

make an attempt to deny this testimony adduced at the

_ easing on the motion, but rather merely countered with

FBI evidence that he (Collins) appeared later in the day to

be sober. it makes no difference. Non-disciosure by Collins

is fatal. He is part of the prosecution. Barbee v. Warden.

331 F.24 842 (4th Cir., 1964). .

The Government raised no objection to petitioner's fail-

ure to allege Collins's drunkenness in his motion for a new

trial. The District Court and the Government permitted

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supprewsed evidence had been made avatiabic This was no!

the correct standard aor the requimtic finuangs where Une

cosstiutional nghts of a defendant have been infringed

The Court of Agpeais did not assess the of the

suppressed evidence am a jury case. This suppressed eviderc:

clearty related to adrassible testimony mvolving the arcum

stances winch led up to the assault and would have had

great empact epon the jury instead, the opinion below

mepely find: it irrelevant to the issue of entrapment and

without favorable defense quality on this score:

The proper approach io the so-called Brady quandary 1s

evudenced by the cases which repeatedly staic that the

courts will not “speculate as to the effect this (suppressed)

testimony would have had on the jury.” US. ex rel Meers

v. Wilkins, 326 F.2d 135 (24 Cir., 1964), or that it is apec-

ulation to say that such testimony “would nv‘ have influ-

enced the fact finders.” Hemwvic v. Bailey, ’06 F.24 390

@th Cir., 1967), U.S. ex vel Thompson v. Dye, 221 F.2d

763 (34 Cis., 1955), cited with approval by the Court in

Williams v. Dutton, 400 F.24 797 (Sth Cis. 1968), observes

with regard io the suppressed evidence

“It was substantial evidence which should have been

but never was submitted to the jury (the only tn-

States, 297 F.24 S08 (24 Cis., 1961), and Napue v. illinois,

360 US. 264 (1959). require that the suppressed testimony

People v. Sevvides, supra, quoted ‘with approval in Nepue

vy. Mlinois, 360 U.S. 264 (1959), states:

‘ “Rles does it avail respondent to contend that defend-

cury and tribunal. ft os for jarc 4. not

judg. ~f an com, ca epemm, Coane

the issue os

Jackson ». Wakwight. 396 F.24 238, 298-4 Ge Cr..

1968). umwolved an cyewrtmess in a rape case. wine hed told

the police that the assailant was act a aegro. The prosecu-

aoc merely advised defense counsel that the eyewtnes

could not sdentify the defendant. who was of the negro

race. The eyewstness dad not testify at the tal

The cowrt ruled that the suppression of this evidence was

tugity repreheawbic and that i

‘cannot be sesumed that thn evidence would no!

have affected the pury's deltberanons. had it been

made avatlable to the décfense ~

The court, also, noted :

“Before & Sederel constitutions! exvsz con be held

harmless, the court must be able to declare (a belief)

that it wes harmless beyond 2 reasonable doubt.

(Chapman + Sease of Colifarnte, 306 US. 18 (1967),

17 L. Gé. 705).”

These cases emphasizes the error of the court below and

1970 motion for 2 now trish was dapller “for oll intents ond

purposes” to the August 1970, 2255 application and denied

the letter upon the ground thet it wes red con-

erARRaN SD A>

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eideved. This is not supported by the record as the Court

of found. The 2255 application clearly asserts that

the wes obtained through the perjury of F B.1.

agent Collins, a ground not previously urged. conmdered.

or decided. Perjury wes alleged in the following particulars

ss “(> , Sis Qestimeny at the trisl selating to his

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sideration. Sanders v. United States, 373 US. | (1963):

Kaufman v. United States, 394 US. 217 (1969); Tucker v

United States, 427 F.24 615, 617 (DL. Cix., 1970).

The Coust of Appeals, affirming the District Court on

not usged by the Government, found the 2255

application legally contrary to this Court's rul-

ings in Price v. 334 US. 266 (1948), and Sanders

v. United States, 373 US. 1, 19 (1963).

in Price v. Johnston, supra, Price alleged in his fourth

application: -

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“That the government knowingly employed false tes

- timeny at the tral to obtain the conviction.”

. mp cusaapanendnie ot this

pleading. a motion m the District Court fet

“made. eee ie

amend in that court. a

Sanders + United States. supra, observed

| “Petiuoner's first: motion under, 2255 wes denied

because it only stated a bald legsi conclusion with

24 687 (CA. 10th, Cir. (195%) (per cusiam) but

the denial, thus bared, was not on the merits” =

As Sanders, supra, notes, bald legal conclusions are objec-

tionable. See also Wilkins v. United States, 258:F.24 416

(DC. Cir. 1958) where an allegation that defendant pleaded

guilty through “subterfuge” of his counsel was held insuffi-

cient and Stephens v. United States, 246 F 24 607 (10th

Cis. 19ST eka an aiiagation of enencien epee defendant

to plead guilty was held conclusory.

On the other hand, it must be remembered that many

2255 applications are filed by prisoners who have no legal

training. Liberality should, thereforc, follow analysis of

these applications. especially where they adequately inform

the government of the applicant's clam. Meticulous insist-

ence upon regularity in precedural allegations is not required .

Gibbs v. Burke, 337 US. 773, 779 (1949).

in the instant case, there is no bald legal conclusion of

perjury. On the contrary, the specific statements claimed

to be false and given at the trial ase enumerated. The gov-

ernment was adequatély advised of petitioner's claim. Signi-

ficantly, the government has not moved to dismiss the alle-

gations for insufficiency or deficiency as requised by Price

eee ;

it may well be that the jury believed Collins and others

whose testimony is here under attack. However, due process

will not tolerate a conviction obtained by the knowing use

of false testimony, Mooney v. Holohan, 294 US. 103

(1935); Nepue v. Illinois, 360 US. 264 (1959); Pyle v.

Kansas, 317 US. 213 (1942); Alcorta v. Texas, 355 US.

28 (1957); Guerrero v. Beto, 384 F.2d 886 (Sth Cis. 1967).

Allegations of the knowing use of perjured testimony

requise an evidentiary hearing, Price v. Johnston, 334 US.

266 (1948); Sanders v. United States, 373 US. | (1963),

here erroneously denied to petitioner.

Indictments Gos gudusy é0 0st coquise cllagstions of ovi-

chasges. United States v. Debrow, 346 US. 374 (1953);

United States v. Nicoletti, 310 F.2d 359 (7th Cir., 1963),

cert. denied 372 U.S. 942; Claiborne v. United States, 77

F.2d 682 (8th Cis., 1935). A defendant should not be

required to state more in a 2255 application. The difficulty

of defining the specificity required in 2255 applications has

been acknowledged by the courts. Diamond v. United States,

432 F.2d 35 (9th Cis., 1970). The importance of this issue

in post conviction applications and the need for a Supreme

Court ruling clarifying the guidelines of the Price and Sanders

cases justify review of the decision below.

_ The conduct of this trial which resulted in 2 conviction,

sentence and substantial fine for 2 minor altercation anda = °

tion of justice must not only be above reproach, it must

also be beyond the suspicion of reproach,” People v. Sav-

vides, | N.Y.2d $54 (1954). In the instant case justice and

be permitted to stand without further review by this Court.

2111 Dauphine

_ New Orleans, Louisiana 701 16

Attorneys for Petitioner

A-l es

AP PENDIX A

Nos. 30492 and 305619 *

UNITED STATES OF AMERICA,

Respondent-Appellec,

versus

CARLOS MARCELLO, |

Defendant-Appeliant.

Appeals from the United States District Court for the

Southern District.of Texas.

(January 4, 1971)

‘ Before BROWN, Chief Judge, DYER and. SIMPSON,

Circuit Judges.

DYER, Circuit Judge: Marcello, having been con-

Victed of assaulting and intimidating an F.B.I. agent

in violation of 18 U.S.C.A: III," which this Court af-

we a

USA. v. CARLOS MARCELLO

firmed on appeal,* now seeks review of the District

‘Court's denial of his motion for a new trial based upon

the Government's alleged suppression of evidence, and

the denial, without a hearing, of his petition under 18

USCA. 2235 in which he urged that his conviction

was obtained by the knowing use of false testimony.

We affirm.

The evidence supporting the conviction is fully de-

veloped in the previous opinion of this Court. Suffice

it to say that the assault of F.B.1. agent Collins by

Marcello occurred on the night of September 30, 1966,

at the New Orleans, Louisiana, airport where a num-

ber of the news media hed gathered to interview and

photograph Marcello as he deplaned on his return from

New York. A chronology of the post-trial proceedings:

follows.

_ After certiorari was denied by the Supreme Court,

2 timely motion for a new trial was filed alleging that

the F.B.I. had tipped off the news media that Marcello

would arrive at the New Orleans airport at a certain

time from New York and this caused a convocation

of the media. Marcello further alleged that the con-

_ frontation and harassment leading to the assault was

preconceived end that he was entrapped or that he

was denied an opportunity to develop facts upon which

to raise the defense on entrapment. Relying on Brady

v. Maryland, 1963, 373. US. 83, _ S.Ct. “e

L.Ed, ___, he points out that he made a motion re-

aUnited States v. Marcello, 5 Cir. ees ae aaee,

' $88 US. o60. °

A-3

USA. v. CARLOS MARCELLO

questing favorable evidence prior to and during trial

' and that the Government assured him that it had no

such evidence. "a on

At the hearing on the new trial motion, acting agent-

in-charge Sylvester, of the New Orleans F.B.1. office,

testified that on September 30, 1966, he learned from

another agent that Marcello was returning by airplane

from New York City that night and that two agents

(although he did not know their identity) had been as-

signed to cover the arrival. He became concerned a-

bout the sufficiency of F.B.I. manpower at the airport;

and in order to make a judgment about this, Sylvester

contacted the Times Picayune, a local newspaper, and

asked whether they were covering any prominent per-

son coming in that night on an early evening flight.

He was told that no one would be there. He also con-

tacted the Associated Press in the same manner and

received an equivocal answer. He then telephoned

channel 12 TV and was told that they would have cov-

evage at the airport. A post-trial affidavit offered by

Marcello relates that other members of the news me. |

dia were called. In each instance the recipient of the

call probably knew that the caller was Sylvester be-

cause of his distinctive voice, but the name Marcello

was not mentioned. Sylvester, havin determined that

Marcello’s arrival would be covered by the TV, found

no necessity to increase the F.B.I. manpower.

Prior to trial Sylvester related these events to the

United States Attorney. Neither F.B.1 agents Collins

nor Ayigion, who had received the airport assigr.-

ments, knew that Sylvester had contacted ” news

fied that he hed no recollection of the events of that

trict Court denied the motion for new trial.

! , Marcello filed a § 2255 petition to set

ate th judgment of conven on the rund th

- it was by the perjury<of egent Collins. The

District Court denied the petition without an evidenti-

ary hearing.

Denial of the Motion for New Trial

' The thrust of Maercello’s argument is that the Gov-

ernment, by failing to disclose to counsel for Marcello

‘that F.B.I. agent-in-charge Sylvester had informed the

ews media of the time of arrival of Marcello at the

airport prevented Marcello from using this evidence,

in some way, to prove entrapment, or the first step

in that defense, or provocation.

) ee

A-5

USA. v. CARLOS. MARCELLO

Without any knowledge on the part of Collins or Avi-

gion that Sylvester had called the news media, which

is undisputed, there is no way, simply no way to in-

troduce entrapment or provocation into the case. The —

“issues raised and the evidence adduced must be per-

tinent to the controlling question whether the defendant

is a person otherwise innocent whom the Government

is seeking to punish for an alleged offense which is

the product of the creativity of its own officials.” Sor-

rells v. United States, 1932, 287 U.S.-435, 451, . S.Ct.

L.Ed. . There was nothing sinister in the non-

disclosure by Government counsel that Sylvester mad«

calls tp the news media. Not only was this wholly ir-

relevant to any issue in this case but it borders on

the frivolous to claim, as does Marcello, that it wa: .

a scheme by the F.B.I. to “set up” an incident at the

airport or to invade Marcello’s right of privacy. Given

@ number of newsmen at the airport, whether their

presence was because they learned of Marcello’s ay-

vival time from the F.B.1., or from independert

sources, nothing occurred there that gave cause

to Marcello to shout pejorative epithets et them and

to assault F.B.I. agent Collins. There was nothing done

by the F.B.I. that can be seid to have constituted “im.

plantation of the disposition to commit {assault} in

the mind of an innocent man, or inducement for the

purpose of prosecuting.” United States v. Marcello,

5 Cir. 1970,.423 F.2d 993, 1011.

Having failed to demonstrate error in the tric!

court's refusal to submit the issue of entrapment to.

the jury in the previous appeal, Marcello makes a:oth.

er attempt to do so here via Brady by a revelation,

A-6

USA v. CARLOS MARCELLO

that the F.B.1. called the news media but did not dis-

close this to the defense. Even if this “suppressed evi-

dence” could be considered favorable to Marcello, a

eet up. Furthermore, it is manifest that Marcello was

A-7

USA v. CARLOS MARCELLO

that the conviction was obtained

pre-

of F.B.1. agent Cellins,* o

: vieusly been considered or

matter. Luna v. Beto, & Cir, 1968, 996 F.2d 35, 38, cert.

denied, 1060, 304 U.S. 066; see United States v. Edmond-

denying the motion

The orders of the District Court

for new trial and for relief

US, 2664,

se ,

B-]

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT |

October Term, 1970

No, 30492 & 30519

D. C, Docket No. CR 68-L-89

UNITED STATES OF AMERICA,

Respondent-Appellee,

versus

‘CARLOS MARCELLO,

Defendant-Appellant.

Ap from the United States District Court Sor the

_ Southern District of Texas

Before BROWN, Chief ~—. DYER and SIMPSON, Circuit

udges.

JUDGMENT

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

record from the United States District Court for the Southern

District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the judgment of the said

District Court in this cause be, and the same is hereby,

affirmed.

January 4, 1971

Issued as Mandate:

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