Opposition Brief — Marchese v. United States

In the Supreme Court of the Gnited States

OctToBER TERM, 1970

No. 1474

Ia@nazio MARCHESE, PETITIONER

v.

Unitrep States oF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The per curiam opinion of the court of appeals (Pet.

App. A) is not yet reported.

JURISDICTION

The judgment of the court of appeals was entered on

January 27, 1971. A petition for rehearing was denied

on March 1, 1971. Mr. Justice Harlan extended the

time for filing a petition for a writ of certiorari to April

30, 1971, and the petition was filed on March 16, 1971.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

QUESTION PRESENTED

Whether the evidence was sufficient to support the

verdict.

STATEMENT

After a jury trial in the United States District Court

for the Southern District of New York, petitioner and

one Cuomo were convicted of transporting a stolen

security in foreign commerce and of conspiracy to

commit that offense, in violation of 18 U.S.C. 2314 and

371. On October 27, 1970, petitioner was sentenced to

concurrent prison terms of five years on the conspiracy

charge and ten vears on the substantive count. The

court of appeals affirmed per curiam (Pet. App. A).

The evidence is set forth in the opinion below. In

essence it shows that in October 1969, five United States

Treasury bills, each having a face value and approxi-

mate market value of $1,000,000, were stolen from a

banking concern in New York City. During that same

month in New York City, co-defendant Cuomo asked

an accountant, one Ploss, to negotiate one of the stolen

bills in a manner which would preserve the anonymity

of the owner. Ploss said that this could be done in

Europe; he agreed to do so in exchange for one-half

of the net proceeds above $500,000. In November 1969,

Ploss went to Switzerland but the attempted negotia-

tion resulted in his arrest, the seizure of the bill, and

Ploss’ deportation to the United States.

' Upon Ploss’ return petitioner, who had known both

Ploss and co-defendant Cuomo for some time, tele-

phoned Ploss. He told Ploss that he wanted to meet

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with him and that was ‘‘worried about the money.’’

Ploss refused to participate in any meeting and peti-

tioner then told him to check with Cuomo.

Thereafter, in early February 1970, petitioner met

Ploss. He told Ploss that he owed $250,000 for the

United States Treasury bill and that his life was in dan-

ger; he asked Ploss to give back the money resulting

from the bill’s negotiation. Remarking that petitioner

must be ‘‘crazy’’, Ploss stated that he had been unable

to negotiate the bill and that his effort to do so had

resulted in his arrest. At petitioner’s request Ploss

produced documents showing his arrest in Switzerland.

_ ARGUMENT

Petitioner’s contention that the evidence was in-

sufficient to prove his part in the conspiracy is without

merit. Petitioner’s statements to Ploss, after the latter

had returned from his foreign travel, were sufficient to

show his relationship with both Ploss and Cuomo and

his participation from the start in the illegal venture.

See Opper v United States, 348 U.S. 84, 93-94. Peti-

tioner’s guilt of the substantive offense is established

by familiar principles, since Ploss’ travel with the

stolen security in furtherance of the conspiracy was

binding on petitioner. See Pinkerton v. United States,

328 U.S. 640, 646-648.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

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mitted that the petition for a writ of certiorari should

be denied.

ERWIN N. GRISWOLD,

Solicitor General.

WiLL WIison,

Assistant Attorney General.

Roger A. PAvuLey,

EDWARD FENI«,

Attorneys.

May 1971.

xv U.S. Government Printing Office: 1971—423-997/627