Petition for Writ of Certiorari — Marchio v. United States

LIBRARY

SUPREME COURT, U. S.

No. 738-598

j

Supreme Court, U. $.

F i si i 1J

In the

Supreme Court of the United

OctosEer Tem, 1973

ocT 4 1673

MICHAEL J. MARCHIO,

Petitioner,

V8.

UNITED STATES OF AMERICA,

Respondent.

Ls

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CARL M. WALSH

39 South La Salle Street

Suite 700

Chicago, Illinois 60603

(312) 332-7374

GERALD EISEN

7501 N. Milwaukee

Niles, Illinois 60648

(312) 674-0001

Attorneys for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

AREY * EIEN HALT NOI TR

ee SRO RAN RE a en ode che Pe ont s 1

INDEX

PAGE

Opinion Below .. 1

Jurisdiction 2

Constitutional Provisions Involved 2

Questions Presented 2

a a I oulingeinieesintabnbannsanies 3

Reasons for Granting the Writ ....0..0.00000..... 7

Argument _...... 8

EE Oe 14

Appendices:

Appendix ‘‘A’’—Opinion of Court of Appeals ..App. 1

Appendix ‘*‘B’’—Order Denying Rehearing ....App. 11

TABLE OF AUTHORITIES CITED

Cases

Bruton v. United States, 391 U.S. 123 2000... 3, 7,9, 10

Gonzales-Jasso v. Rogers, D.C.Cir., 264 F.2d 5885 ........ 12

Gullotta v. United States, 8 Cir., 113 F.2d 688 ............ 12

Manning vy. United States, 10 Cir., 215 F.2d 945 000... 12

Opper v. United States, 5 Cir., 263 F.2d 304... ........ 12

Geeebtte V. THimebe, BOD UG, TED nn. .cscsesecscesvensescasseosesssvsessese 11

United States v. Echeles, 7 Cir., 222 F.2d 144 200. 12

lode ote q

ii

PAGE

United States v. Ellicott, 4 Cir., 336 F.2d 868 ................ 13

United States v. Heft, 7 Cir, 413 F.2d 1027 ............ 10

United States v. Wainer, 7 Cir., 170 F.2d 608 ............ 13

Wyatt v. United States, 5 Cir., 263 F.2d 304 .............. 12

Constitutional Provisions and Statutes

Amendment V, Constitution of the United States of

America 2,7,11

Amendment VI, Constitution of the United States of

America .2, 7,11, 12

Be re ID corhictiasnsiacseathcshatsteapnantenrnnccemenintatitanss 3

28 USC 1254(1) . 2

PEPPERS ENT NORD GEL OSDET DIEM ERE SEN ISIE ORE PN EYEE BO TEN IBIEN NATIT PNET LASTER NIE fi 3

—o lia |

Iu the

Supreme Court of the United States

Octoser TERM, 1973

No.

MICHAEL J. MARCHIO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Michael J. Marchio, prays that a Writ of

Certiorari issue to review the judgment of the United

States Court of Appeals for the Seventh Circuit affirming

a judgment of conviction and sentence entered by the

United States District Court for the Northern District

of Illinois, Eastern Division.

OPINION BELOW

The opinion of the Court of Appeals is not yet re-

ported, but is printed in the appendix to this petition

(Appendix ‘‘A’’). The opinion of the Court of Appeals

PO TS DMM ARR ALES YA APY ARM

Re ee a Sem at vee

was entered on August 8, 1973. A timely Petition for

Rehearing was denied by order entered September 6,

1973 (Appendix ‘‘B’’),

JURISDICTION

The judgment of the Court of Appeals was entered on

August 8, 1973 (Appendix ‘‘A’’), A timely Petition for

Rehearing was denied on September 6, 1973 (Appendix

“mp”,

The jurisdiction of this Court is invoked pursuant to

28 USC 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V, Constitution of the United States of

America

‘*No person shall... be deprived of life, liberty,

or property, without due process of law;.. .’’

Amendment VI, Constitution of the United States of

America

: ‘*In all criminal prosecutions, the accused shall

: enjoy the right... to be confronted with the wit-

nesses against him;.. .’’.

QUESTIONS PRESENTED

1. Can a defendant, who has exercised his rights not

to testify, to rely on the rulings of the trial judge, to rely

on the failure of the government to prove him guilty

beyond a reasonable doubt, and to rely upon his presump-

tion of innocence, and who thus has rested his case prior

to the presentation of his co-defendant’s case and been

told by the trial Court that he can not cross-examine

witnesses thereafter, be held to have waived his rights

to confront and cross-examine witnesses presented against

him?

i eT Ri Satie PCEE TE pia:

:

4 LieEeNTR A RMN PANE PARTQEARNE AUN

eek he ry v lei ied . — .

3

2. Did not the trial Court’s forbidding of the petitioner

to cross-examine his co-defendant who presented an entrap-

ment defense fully implicating the petitioner deny the

petitioner his Sixth Amendment rights to confront and

cross-examine witnesses even though the trial court in-

structed the jury that said evidence was not admissible

against the petitioner in light of Bruton v. United States,

391 U.S. 123?

8. Is a defendant’s extra-judicial, uncorroborated state-

ment standing alone, sufficient evidence on which to con-

vict a defendant in federal criminal felony trial?

4. Was it denial of due process to deny a defendant’s

motion for severance and at the same time deny him the

right to cross examine witnesses and co-defendants who

gave crucial testimony against the defendant?

STATEMENT OF THE CASE

Nature of the Case and Its Disposition

Michael J. Marchio was indicted in the Northern Dis-

trict of Illinois, Eastern Division, along with one Allan

B. Nardella, in a one-count indictment charging that,

‘* . , on or about the 24th day of July, 1971, at Joliet,

. .’’, the defendants ‘‘. . . did wilfully and knowingly

transfer to Timothy C. Sack, a firearm, that is, a Chinese

Communist Type 56 Assault Rifle, 7.62 mm, . .. without

obtaining the prior approval of the Secretary of the

Treasury or his delegate as required . . . in violation of

...? 26 U.S.C. 5861(e). (R. 2, A. 1)*

* Pursuant to Circuit Rule 24 of the United States Court of Ap-

peals for the Seventh Circuit, the defendant-appellant elected not

tc file a separate appendix; however, certain portions of the record

have been reproduced in a short appendix bound to the brief filed

in the Court of Appeals, and references thereto shall be “A, ....”.

All other references shall be to the record on appeal: “R. ....”, or

to the transcript of proceedings: “Tr. ....”.

4

The defendants pled ‘‘not guilty’’, and the matter was

tried to a jury which returned a verdict of guilty on June

28, 1972. On July 19, 1972, after denying the defendants’

post-trial motions, the defendant, Michael Marchio, was

sentenced to three years’ imprisonment on the condition

that he be confined six months in a jail type institution,

the execution of the remainder of the sentence was sus-

pended, and the defendant placed on probation for a

period of thirty months (R. 45, A. 5).

Pleadings

The defendant, Michael J. Marchio, filed certain pre-

trial motions including: Motion for Discovery (R. 6),

Motion to Dismiss (R. 15), Motion for Bill of Particulars

(R. 16), Motion to Suppress (R. 17), and a Motion for

Severance (R. 18, A. 2). All of these motions were de-

nied (docket entries, p. 3) with the exception that certain

discovery and the bill of particulars was allowed (R. 12,

p. 3 of docket entries).

The defendant Marchio’s Motion to Suppress related

to statements and was denied after a hearing (R. 21).

A jury was chosen and trial began before the jury on

June 22, 1972 (R. 21).

The Trial

The only evidence admitted by the Court against the

defendant Marchio in the government’s case was testi-

mony that a month after the date of the offense charged

in the indictment, July 24, 1972 (R. 2, A. 1) the defendant

Marchio transferred a weapon to a farmer who was at

the time of trial facing charges of possession of stolen

property (Tr. 237-261), and that Marchio also discussed

the possible sale of another weapon with an agent (Tr.

207-236).

5

All of the evidence concerning the alleged transfer of

the weapon involved in the indictment, which was ad-

mitted against the co-defendant Nardella, was not ad-

mitted against the defendant Marchio, and in fact the

jury was instructed that said evidence could not be con-

sidered against the defendant Marchio (Tr. 32, 36, 46, 48,

102, 142, 200, 376, 400-401).

In fact, no evidence that there was a sale or transfer

of an illegal weapon on July 24, 1972 as charged in the

indictment was ever admitted against the defendant

Marchio.

The defendant Marchio rested (Tr. 400) prior to any

testimony given by the co-defendant Nardella. The trial

judge ruled that by resting, the defendant Marchio could

no longer participate in the case, could not cross-examine,

and that all evidence received thereafter would not apply

to him and so instructed the jury (Tr. 400-401).

Subsequently, the co-defendant Nardella testified on

his own behalf, asserting the defense of entrapment, and

fully implicated the defendant Marchio (Tr. 436-483).

The defendant Marchio was not permitted to cross-exam-

ine, although the jury was instructed that Nardella’s tes-

timony was not to be considered against Marchio (Tr.

400-401).

Although the court instructed the jury that it was to

consider each defendant’s case only on the evidence ad-

mitted against that defendant (Tr. 579), the jury was

unable to perform that mental gymnastic and found the

defendant Marchio guilty (Tr. 603).

The defendant Marchio was sentenced by the Court to

imprisonment for three years on the condition that he

serve six months in a jail type institution, with the re-

a MIMI LAL ©

mainder of the sentence being suspended, and the defen-

dant placed on probation for a period of thirty months

; (R. 45, A. 5).

; The defendant Marchio then appealed to the United

‘ States Court of Appeals for the Seventh Circuit which

Court affirmed the conviction and sentence in an opinion

entered August 8, 1973. A timely Petition for Rehearing

. was denied on September 6, 1973 and the defendant

; Marchio now petitions this Court to issue a writ of cer-

tiorari to review the opinion of the Court of Appeals.

REASONS FOR GRANTING THE WRIT

The Petitioner argues that the Court of Appeals re-

fused to recognize the violation of his Sixth Amendment

right to confrontation in violation of this Court’s holding

in Bruton v. United States, 391 U.S. 123.

Further, the Court of Appeals holding that the Peti-

tioner waived his Sixth Amendment Rights when the

Petitioner exercised his Fifth Amendment rights to due

process, to rely upon the rulings of the trial judge, to

not incriminate himself, and to rely upon his presump-

tion of innocence and the burden of the government to go

forward and prove the Petitioner guilty beyond a rea-

sonable doubt, was to place one constitutional right above

another of equal standing which should not be permitted.

The Court of Appeals holding in finding that the de-

fendant’s extra-judicial, uncorroborated statement (which

was the sole evidence admitted against the defendant)

was sufficient evidence on which to convict is in conflict

with decisions of this Court, prior decisions of the Sev-

enth Cireuit Court of Appeals, and decisions of other

Cireuit Courts of Appeals.

In this case it was so tainted by the testimony of his

co-defendant, who could not be cross-examined that no

jury could follow the Court’s instruction to disregard.

é

é

é

I.

THE TRIAL COURT ERRED IN DENYING THE PETI-

TIONER MARCHIO’S REPEATED MOTIONS FOR SEV-

ERANCE AND THE COURT OF APPEALS ERRED IN

HOLDING THAT THE PETITIONER HAD WAIVED

HIS RIGHT TO CONFRONT AND CROSS-EXAMINE

WITNESSES.

Before trial, the petitioner Marchio moved for a sever-

ance from the defendant Nardella for, among other rea-

sons, that the defendant Marchio:

‘¢ ,. fears that on the trial of this cause, the Gov-

ernment may introduce statements of the co-defen-

dant, inculpatory of him, which although not admis-

sible against the defendant, would be admissible

against the declarant and would result in prejudice to

the defendant, even though the jury was instructed not

to consider the statement against him. Bruton v.

United States, 391 U.S. 123 (1968) ”’

and that

‘*. , . the defendant believes his defense will be

antagonistic to the co-defendant’s defense and there-

fore prejudicial to him, he further believes that the

co-defendant may present an entrapment defense

which would be prejudicial to him.’’ (R. 18, A. 2)

The petitioner Marchio’s fears as expressed in his mo-

tion for severance did come true.

The acts and statements of the defendant Nardella

were testified to and admitted against the defendant Nar-

della (the jury was admonished not to consider the evi-

dence against Marchio). Included in this testimony, was

WELLER IEARE ATLL SOOTY NIE IP CESS ASP DOERR ERIE BIS 3 Tie EEG 2S POMP RT ORAL OO ERG SLES KALI TAT NON EC OR INS BI TB

RE

9

testimony that Nardella had gotten the gun from a friend,

and that he (Nardella) was to receive $50.00 for selling

it (Tr. 492). Further, the weapon allegedly illegally trans-

ferred was admitted against Nardella (Tr. 47).

Although the evidence was admitted sdlely against Nar-

della, and the jury repeatedly so instructed (Tr. 32, 36,

46, 48, 102, 142, 200, 376, 401), the evidence was clearly

prejudicial to the petitioner Marchio.

However, the worst violation of the petitioner Marchio’s

right to a fair trial came after the petitioner Marchio had

rested his case following the presentation of a few very

credible reputation witnesses (Tr. 400).

The trial judge ruled that the petitioner Marchio could

no longer participate in the trial, and that he would have

no right of cross-examination (Tr. 399).

Subsequent to this, the co-defendant Nardella testified

in his own behalf and testified that he was entrapped (Tr.

436-483). In so testifying, the co-defendant Nardella ad-

mitted the offense charged and fully implicated the peti-

tioner Marchio. Although the jury was instructed that

this testimony of Nardella was admitted only against

Nardella and was not to be considered against Marchio,

Marchio was not allowed to cross-examine Nardella, and

the jury had the evidence before it.

As was stated in Bruton v. United States, 391 U.S. 123,

129, 130, 20 L.Ed. 2d 476, 481, 482:

‘“* «The fact of the matter is that too often such

admonition against misuse is intrinsically ineffective

in that the effect of such a nonadmissible declaration

cannot be wiped from the brains of the jurors. The

admonition therefore becomes a futile collocation of

words and fails of its purpose as a legal protection

to defendants against whom such a declaration should

ili PERRET TA RITE CS PELLET TN LE REN SE ESR ee Ea

10

not tell.’ 352 U.S. at 247, 1 L.Ed.2d at 288. The dis-

sent went on to say, as quoted in the cited note in

Jackson, ‘The government should not have the wind-

fall of having the jury be influenced by evidence

against a defendant which, as a matter of law, they

should not consider but which they cannot put out of

their minds.’ Id. at 248, 39 L.Ed. at 412. To the same

effect, and also cited in the Jackson note, is the state-

ment of Mr. Justice Jackson in his concurring opin-

ion in Krulewitch v. United States, 336 U.S. 440, 453,

93 L.Ed. 790, 799, 69 S Ct 716: ‘The naive assumption

that prejudicial effects can be overcome by instruc-

tions to the jury ... all practicing lawyers know to

be unmitigated fiction...’ . ”’

and as the Court went on to say at 391 U.S. 137, 20 L.Ed.

2d 485, 486:

‘‘Despite the concededly clear instructions to the

jury to disregard Evans’ inadmissible hearsay evi-

dence inculpating petitioner, in the context of a joint

trial we cannot accept limiting instructions as an

adequate substitute for petitioner’s constitutional

right of cross-examination. The effect is the same

as if there had been no instruction at all.’’

This Court has held in United States v. Heft, 7 Cir., 413

F.2d 1027 (1969), that instructions to disregard inadmissi-

ble evidence are insufficient to protect a defendant.

It might bé pointed out that the protective instruction

given in the charge to the jury herein is quite similar to

the one found insufficient in Bruton (Tr. 574, 579 — 391

U.S. 125, 20 L.Ed.2d 479, footnote 2).

The only way the petitioner Marchio could have received

the fair trial to which he was entitled was for the trial

court to grant his motion for severance. The trial court

obviously abused its discretion in this cause, and the con-

viction of the petitioner Marchio should be reversed.

RTM MELEE RIS TEMS TENT AR IE OR EMI BEG HERERO MEA DTA TST FO SARIL IRE PRESUME IST I RRM UV AN

11

The Court of Appeals however held that the petitioner

Marchio waived the right to confront and cross-examine

the co-defendant Nardella because he rested his case.

The Court makes this holding even though it likewise

holds that the petitioner’s defense was inconsistent with

and antagonistic to the co-defendant Nardella’s defense.

7

Ry

*

It was the trial judge who held that the petitioner could

no longer participate in the trial and that he would have

no right of cross-examination.

TS Pa he OT

It is thus suggested that to hold that the petitioner’s

exercise of his Fifth Amendment rights not to testify, to

rely on his right to due process of law and therein to

rely on the trial judge’s evidentiary rulings, the burden

of the prosecution to prove him guilty beyond a reason-

able doubt and the government’s failure to meet that

burden, and his presumption of innocence, constituted a

waiver of his Sixth Amendment right to confront and

cross-examine witnesses against him. In other words the

Court of Appeals held that the exercise of one funda-

mental constitutional right can thereby waive another

fundamental constitutional right.

This Court has held that ‘‘... the right of cross-exam-

ination is included in the right of an accused in a criminal

case to confront the witnesses against him .. .’’ and

‘*. . . a denial of cross-examination . . . would be con-

stitutional error of the first magnitude and no amount

of showing of want of prejudice would cure it.’? (Smith

v. Illinois, 390 U.S. 129, 131, 19 Lied. 2d 956, 958-959, 88

S.Ct. 748.

It is suggested that this Court must resolve the ques-

. tion of whether an exercise of Fifth Amendment rights

ean be held to be a waiver of Sixth Amendment rights.

eet |

i

'

reins PSO “Py 2 woe

12

Il.

AN EXTRA-JUDICIAL, UNCORROBORATED STATE-

MENT STANDING ALONE, IS NOT SUFFICIENT EVI-

DENCE ON WHICH TO CONVICT A DEFENDANT IN

A FEDERAL CRIMINAL FELONY CASE AND THE

COURT OF APPEALS HOLDING SO IN CONFLICT

WITH OPINIONS OF THIS COURT AND OTHER CIR-

CUIT COURTS OF APPEALS.

In an attempt to say that the denial of Sixth Amend-

ment rights to the petitioner, if error, was harmless er-

ror, the Court of Appeals held that an extra-judicial, un-

corroborated statement, which was the only direct evi-

dence admitted in evidence against the petitioner, was

sufficient evidence to convict the petitioner in this federal

criminal felony case.

In making this holding the Seventh Circuit is in con-

flict with decisions of this Court, (Opper v. United States,

348 U.S. 84, 99 L.Ed. 101, 75 S. Ct. 158), with other Cireuit

Courts of Appeals (Wyatt v. United States, 5 Cir., 263

F.2d 304; Gonzales-Jasso v. Rogers, D.C. Cir., 264 F.2d

585; Gulotta v. United States, 8 Cir., 113 F.2d 683; and

Manning v. United States, 10 Cir., 215 F.2d 945; to name

a few) and even prior decisions of the Seventh Circuit

(See United States v. Echeles, 7 Cir., 222 F.2d 144).

The only other evidence admitted against the defendant

Marchio concerned the testimony of Thomas Weinhold

(Tr. 237-261), that in August of 1971, he bought an M-14

machine gun from Marchio. Weinhold further related

that he was then facing State charges of having possessed

stolen property, and that the M-14 was discovered during

the execution of a search warrant in the stolen property

ease. He had then become a government witness.

Petar ererenn eon nm OEE ORIENT IIE REMI ER OE IT BIEL MN IPI MOE NES EN OREM ge Oe GE

5 AHEM

13

The M-14, although admittedly not involved in the

offense on trial, was admitted into evidence against Mar-

chio, after evidence offered on the chain of possession

after its seizure was received.

The above is the totality of the evidence admitted

against Marchio. No direct evidence of a sale or transfer

of a firearm on July 24, 1971, was ever admitted against

Marchio.

While the evidence of subsequent acts might in this case

give rise to some suspicion that Marchio took part in the

sale on July 24, 1971, a suspicion is not enough to convict

beyond a reasonable doubt.

The Fourth Circuit stated in United States v. Ellicott,

336 F.2d 868 at 871:

‘«. , , this is only a probability which, however

great, cannot convict.’’

It is suggested, as was argued in Point I, the jury was

unable to ignore the evidence which was not admitted

against Marchio, particularly the testimony of Nardella.

But, this Court must consider only the evidence admitted

against Marchio in determining the sufficiency of the evi-

dence, and while the Court must view it in the light most

favorable for the government ‘‘. . . if after resolving

every conflict for the prosecution, the proof nowhere es-

tablishes guilt to the requisite degree, it is no longer a

matter of weighing the evidence, for then no crime has

been made out.’’ (United States v. Ellicott, 336 F.2d 868,

871)

As Judge Minton wrote for the Seventh Cireuit Court

of Appeals in United States v. Wainer, 7 Cir., 170 F.2d

603, at 606:

14

‘*This evidence merely arouses a suspicion . . . We

cannot agree that the defendant should go to prison

on suspicion, even though it were a robust suspi-

cion.’’

CONCLUSION

For the foregoing reasons, the Petitioner respectfully

submits that his Petition for Writ of Certiorari should

be granted.

Respectfully submitted,

Cart M. WatsH

39 South LaSalle Street, Suite 700

Chicago, Illinois 60603

(312) 332-7374

GeraLp EIsen

7501 N. Milwaukee Ave.

Niles, Illinois 60648

2

:

i

*

a

™

+

4

j

w,

4

&

‘4

|

:

: (312) 674-0001

y Attorneys for Petitioner

i October, 1973.

h

4

As

¥

R Se RPP ANTONE HAE MEAS TNE LLIN LR UNNI RIOT PTL ELE ay BEIM IN PPR ORR PITY TT