Petition for A Writ of Certiorari — Stavola v. New Jersey

Saeed

STD LRRD ORL TRARY I PREM ONE SIT FT pT Ne

JAN 15 1974

yen. OER

IN THE

Supreme Court of the United States

OcToBER TERM, 1973

No @3- 1110

MicHaEL J. Stavo.a, Petitioner

v.

StTaTE oF New Jersey, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE DIVISION, SUPERIOR COURT

OF NEW JERSEY

JOsEPH A. CALIFANO, JR.

RayMonpD W. BERGAN

Rosert P. WATKINS

1000 Hill Building

Washington, D.C. 20006

Counsel for Petitioner

Wiu1iaMs, ConNoLLy & CALIFANO

1000 Hill Building

Washington, D.C. 20006

Parss or Byron S. Apams Paintin, Inc., WaSHINGTON, D. C.

p>,

a LSS LL AOA RG HB HORT SMe PERTTI TN OY a OE a Ne PRE eR ae ee

CSS “ eae

~~.

TABLE OF CONTENTS

Page

i etic nccaectbncedanevencetecccrecwe 1

EES SES LE OP OE PERE EOE FST 2

SD OIE hocscvcnesecesdeeseendeanwsuns 2

Constitutional Provisions Involved ................. 2

cn caw aaee cous bamkwaKinekemins 3

Reasons for Granting the Writ ..................... 7

ee ie tang ake eeweenenes 17

EE ose ecadcdencdrceesenedusneteetnkees news la

TABLE OF AUTHORITIES

CasEs:

Accardi v. United States, 257 F.2d 168 (5th Cir. 1958) 8

Banks v. United States, 249 F.2d 672 (9th Cir. 1957) .. 8

Blumenthal v. United States, 332 U.S. 539 (1947) .... 14

Butts v. United States, 273 F. 35 (8th Cir. 1921) ...... 8

Katz v. United States, 389 U.S. 347 (1967) ........ 11

—— v. United States, 248 F.2d 191 (3rd Cir.

Levine v. United States, 261 F.2d 747 (D.C. Cir. 1958) 17

Lufty v. United States, 198 F.2d 760 (9th Cir. 1952) .. 17

Olmstead v. United States, 277 U.S. 438 (1928) ...... 11

Palko v. Connecticut, 302 U.S. 319 (1937) .......... 11

Sherman v. United States, 356 U.S. 369 (1958) ....7, 10,13

Sorrells v. United States, 287 U.S. 435 (1932) ...... 7, 8, 10

United States, ex rel. Hassel v. Mathues, 22 F.2d 979

EY he ae irons alpine 12,13

United States v. Kelley, 349 F.2d 720 (2d Cir. 1965)

14, 15, 16

ii Table of Contents Continued

Page

United States v. Russell, 411 U.S. 423 (1973) ........ 7,9

United States v. Silver, 457 F.2d 1217 (3rd Cir. 1972) 16

STATUTE:

Oe a 2 as ok Oban ee os 2

Unitep States ConsTITUTION:

I a tg re ese Dk 2

Fourteenth Amendment ...............ceceeeceeees 3

MISCELLANEOUS:

Cowen, The Entrapment Doctrine in the Federal Courts

and Some State Court Comparisons, 49 J. of Crim.

L., Criminology and P.S. 447 (1959) ............ 9

Donnelly, Judicial Control of Informants, Spies, Stool

Pigeons and Agent Provocateurs, 60 Yale L.J.

fC eRe ra errr rs 11

IN THE

Supreme Cowt of the United States

OctToBER TERM, 1973

No.

MicHakEL J. Stavoua, Petitioner

Vv.

StaTE oF NEw JERSEY, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE DIVISION, SUPERIOR COURT

OF NEW JERSEY

The petitioner, Michael J. Stavola, prays that a

Writ of Certiorari issue to review the judgment of

the Appellate Division of the Superior Court of New

Jersey affirming petitioner's conviction entered by the

Superior Court of New Jersey, Law Division, Mon-

mouth County.

OPINION BELOW

The opinion of the Appellate Division of the Superior

Court of New Jersey is reprinted in the Appendix

at p. la. The Supreme Court of New Jersey’s Denial

of Certification is reprinted in the Appendix at p. 21a.

SORES EERE

2

JURISDICTION

The judgment of the Appellate Division of the Su-

perior Court of New Jersey, affirming petitioner’s con-

viction was entered on August 3, 1973. The petition

for certification to the Supreme Court of New Jersey

was denied on October 2, 1973. Mr. Justice Brennan

signed an order, December 29, 1973, extending the time

for filing this petition to and including January 15,

1974. ‘The jurisdiction of this Court is invoked pursu-

ant to 28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. Whether the defense of entrapment should be

‘‘constitutionalized’’ and made applicable to the state

courts through the due process clause of the Fourteenth

Amendment of the United States Constitution.

2. Whether the petitioner was denied a fair trial

within the meaning of the due process clause of the

Fourteenth Amendment because the trial court failed

to sever a co-defendant, Martinelli, when it was clear

that evidence admitted against only Martinelli was

severely prejudicial to Stavola and because the court

failed to distinguish between petitioner’s conduct and

that of Martinelli in its instructions. .

THE CONSTITUTIONAL PROVISIONS INVOLVED

UNITED StaTEs CONSTITUTION

Tue FirtH AMENDMENT:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

ee

3

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use without just compensation.

THE FouRTEENTH AMENDMENT:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

On November 22, 1971, after a jury trial, petitioner,

Michael J. Stavola, and a co-defendant, Joseph Mar-

tinelli, were convicted of bribery and obstruction of

justice. Martinelli was also convicted of attempting

~ to induce a police officer to commit misconduct in

' office.

Prior to trial Stavola had moved for severance on

the grounds that he could not get a fair trial with

Martinelli. This motion was denied. Stavola’s de-

fense was that he had been entrapped.

In September, 1970, the Monmouth County, New

Jersey, Grand Jury returned an indictment charging

Stavola with assault and battery on a municipal police

officer, Dennis J. Vaspori, and obstructing Officer

Vaspori in the performance of his duties.

IE SERENE PW BAER ERS RT ES RN

Ey ria eters se Ct UG Eta S

&

On October 29, 1970, Joseph Martinelli, then an em-

ployee of Stavola, mentioned the fact of this indictment

to Detective James Sweeney of the New Jersey State

Police. Martinelli next met Sweeney at the Coach

Restaurant on December 17, 1970, and told him that

if anybody could help Stavola with his problem they

could ‘‘ Write their own ticket’? (IL.Tr. 43-44). This

conversation was reported to Sweeney’s superior, De-

tective William Turner (1.Tr. 293). Turner directed

Sweeney to attempt to set up a meeting with Stavola

and to record everything that was said (I.Tr. 271).

Pursuant to Turner’s orders, Sweeney then made sev-

eral telephone calls to Martinelli on December 17 and

18 to arrange a time for Martinelli to introduce

Sweeney to Stavola (III.Tr. 527). These calls were

tape recorded by Sweeney (II.Tr. 56, 60).

On December 18, 1970, Sweeney, after placing tape

recording equipment on his body, went to the Carriage

House Restaurant where he conversed with Martinelli

out of Stavola’s presence and then met Stavola (II.Tr.

68-70). At this meeting, the question of money is

brought up first by Sweeney (III.Tr. 557-560). Swee-

ney then left Martinelli to make a telephone call; on

his return, Martinelli took him to meet Stavola (II.Tr.

70). Sweeney said he knew of Stavola’s problem.

Stavola told Sweeney that the only way to handle it

was to get the policeman to tell the truth (IIL.Tr. 334,

419). There was no mention of money being paid to

Sweeney during this conversation (III.Tr. 336-338).

After Stavola ended his conversation with Sweeney

and left, Sweeney and Martinelli continued to discuss

what was to be done. Sweeney pointed out that Stavola

was ‘‘not too committed’’ to the plan (III.Tr. 358).

Martinelli called Sweeney several times during the

months of January and February, 1971. However,

5

Stavola did not contact Sweeney during this period.

On February 23, 1971, Sweeney called Martinelli and

asked him to set up a meeting with Stavola (IV.Tr.

891). Martinelli arranged to meet Sweeney later that

day. Sweeney, driving a vehicle equipped with a mi-

crophone and tape recorder, met Martinelli outside the

Carriage House Restaurant (II.Tr. 112). During this

conversation, Sweeney noted again that in their initial

meeting Stavola had been very non-committal.

On February 25, 1971, in the parking lot of the

Carriage House Restaurant, Sweeney met with Stavola

for the second time. Martinelli was also present

(1II.Tr. 137-138). The part of the conversation which

occurred in Sweeney’s auto was taped by a recorder

hidden in the rear seat (II.Tr. 139). Stavola’s tape

recorded statements at this meeting primarily consisted

of monosyllabic responses to Sweeney’s comments about

Stavola’s situation. Then Sweeney told Stavola that

the prosecutor would play on the fact that he was

Italian and successful, thus denying him a fair trial.

It was Sweeney, not Stavola, who first mentioned that a

‘*deal’’ could be made with a specific prosecutor and a

specific judge. Sweeney lied to Stavola telling him

that if he were convicted, the statute required that

he be sentenced to no less than two, no more than seven

years and that he be fined $2,000. (Part of the con-

versation between Sweeney and Stavola occurred out-

side Sweeney’s auto and was thus not recorded.)

Sweeney testified that Stavola asked him what it would

cost to fix the case. Sweeney replied he did not know

what the price would be to reach the judge and the

prosecutor. But he arranged to meet Stavola at the

Holiday Inn the following day (II.Tr. 150).

6

The next day Sweeney met Stavola at the Holiday

Inn and told him that the price would be $5,000 each

for three people: the prosecutor, the judge and ‘‘the

guy that’s setting it up.’’ Later that day in the park-

ing lot of the Colts Neck Inn, Stavola handed Sweeney

$5,000-and then left-the scene (I1.Tr. 158-160). -Both

conversations were recorded by electronic devices con-

cealed in Sweeney’s automobile. These tapes were

played for the jury (IL Tr. 157, 162).

Stavola moved for mistrial several times on the

grounds that the joint trial with Martinelli unfairly

prejudiced Stavola because of conversations between

Martinelli and Sweeney were admitted against Mar-

tinelli. In these conversations, Martinelli discussed the

possibility that he would ‘‘fix’’ other cases and that

he was involved with several well-known persons who

were under indictment or had been convicted of bri-

bery. These motions were denied.

Part of Stavola’s entrapment defense was based on

the theory that Martinelli acted as an unwitting agent

of the government. He requested an instruction to

the effect that if the jury found Martinelli was an

unwitting agent of the government, then it could con-

sider that fact in determining whether Stavola was

entrapped.’ This instruction was denied.

1**]_ In considering the issue of entrapment with reference only

to the defendant Stavola you should consider if the defendant

Martinelli either knowingly or unwittingly was being utilized by

Det. Sweeney for the purpose of communicating their conversations

or any portions thereof to the defendant Stavola. If you so find

then the conduct and actions of defendant Martinelli as well as

the conduct and action of Sweeney as communicated to the defend-

ant Stavola may be considered by you members of the jury in

determining if Michael Stavola was entrapped.’’ (V. Tr. 440)

7

REASONS FOR GRANTING THE WRIT

L

This petition raises a substantial question of federal

law that is of particular importance because it bears

on- tlie- question -ef- whether the -due -preeess- chause - -

‘requires minimum standards which the states must~ -

observe when the defense of entrapment is raised.

From Sorrells v. United States, 287 U.S. 435 (1932)

through Sherman v. United States, 356 U.S. 369 (1958)

to United States v. Russell, 411 U.S. 423 (1973), this

Court, while recognizing entrapment as a valid defense,

has been unable to agree on the legal basis for the

defense. This has caused significant confusion and

controversy in the state and lower federal courts when-

ever the entrapment defense is raised. This Court

has recently given voice to what has only been hinted

at in some of the cases sustaining the entrapment de-

fense—that the foundation for the entrapment defense

is due process. In United States v. Russell, 411 U.S.

423 (1973) the majority opinion stated:

‘**While we may someday be presented with a situ- 3

ation in which the conduct of law enforcement

agents is so outrageous that due process principles

would absolutely bar the government from invok-

ing judicial processes to obtain a conviction, .. .

the instant case is distinctly not of this breed.”’

[Citation omitted], 411 U.S. 431-432.

This statement for the first time recognized that en-

trapment may have a legal basis in the principles of due

process. If entrapment is grounded on the constitu-

tional basis of due process, then these principles should §

apply no less in the state courts than they do in the :

federal courts.

ALICANTE SETAE MA wg mn rw

8

That the entrapment defense has a due process basis

has been suggested by the language of several cases.

In Butts v. United States, 273 F.35 (8th Cir. 1921) the

Court of Appeals reversed a lower conviction for sale

of morphine, characterizing entrapment as ‘‘uncon-

scionable and contrary to public policy and the-estab-

lished law of the land,” 273 F.35 at 38. -Butts was

~ eited with approval of Chief Justice Hughes, speaking

for the majority in Sorrells. Chief Justice Hughes

found it would have been ‘‘shocking to the sense of

justice,’’ 287 U.S. 446, and ‘‘abhorrent to the sense of

justice,’’ 287 U.S. 449 to allow Sorrells’ conviction to

stand.

In Accardi v. United States, 257 F.2d 168 (5th Cir.

1958) the court, after a thorough analysis of the ma-

jority and concurring opinions in Sherman, points out

that:

‘*In spite of the sharp differences between the two

opinions as to the crucial question in entrapment,

the conceptual basis for the defense, and the role

of the court, the language of the majority of the

court, shows that they attach almost as much im-

portance as the minority to the conduct of the gov-

ernment agents [Emphasis in original]. There is

scarcely a decibel’s difference in their expressions

of shock and outrage at the agents’ methods.”’

[Emphasis supplied] 257 F.2d at 172-173, n.5

The court held ‘‘the agent’s conduct [did] not shock

the conscience .. .”’ and thus there was no entrapment

as a matter of law.

In Banks v. United States, 249 F.2d 672, 674 (9th

Cir. 1957), the court said of entrapment ‘‘A conviction

so procured is in violation of the due process provision

of the Fifth Amendment... .”’

9

In Russell v. United States, supra, this Court rec-

ognized that ‘‘The law enforcement conduct here stops

far short of violating that ‘fundamental fairness,

shocking to the universal sense of justice,’ mandated

by the due process clause of the Fifth Amendment.”’

41¢ U.S7432. One commiéntator has pointed qut that,

"6 the judicial characterizations of entrapment and

of due process violations are oftentimes strikingly

similar.’ He also states that due process affords

“the more solid foundation” than ‘‘the sheer fiction

of Sorrells’ statutory interpretation.”” Cowen, The

Entrapment Doctrine in the Federal Courts, and Some

State Court Comparisons, 49 J. of Crim. L., Criminol-

ogy and P.S. 447, 449 (1959).

In the instant ease, Detective Sweeney, through

Martinelli, pursued Stavola until he finally took the

bait and paid the bribe. The conduct of Sweeney

is shocking to the universal sense of justice and

clearly violates that fundamental fairness mandated

by the due process clause. The following facts show

that Sweeney, pursuant to orders by his superior,

Turner, solicited a bribe from Stavola.

After Martinelli told Sweeney that if anybody could

help Stavola they could ‘‘ Write their own ticket,”’

Detective Turner ordered Sweeney to set up a meet-

ing with Stavola and to record the conversation

(1ILTr. 516). At the meeting of December 18, 1970,

Stavola said, not that he wanted to bribe Sweeney to

fix the case but rather, that the only way to handle the

matter was to have the policeman tell the truth (II1.Tr.

334, 419). There was absolutely no mention of money

by Stavola. Indeed, Sweeney, in his own words, char-

acterizes Stavola’s position at the December 18 meeting

as ‘“‘not too committed’’ to the plan (IILTr. 358).

10

When Sweeney did not hear from Stavola for over

six weeks, he asked Martinelli to set up a meeting with

Stavola (IIL.Tr. 362, [V.Tr. 891). He told Martinelli,

‘“‘The only thing is, I want him to commit himself”’

_(Tape of February 23, 1971). When Sweeney met

“with Stavola on *Pebruary 25, 1971, Stavola’s tape ~

recorded statements consisted of ‘Mmonogyllabie responses

to Sweeney’s comments about Stavola’s situation. It

was Sweeney, not Stavola, who suggested a ‘‘deal’’

could be made with a specific prosecutor and a specific

judge.* He also lied to Stavola about the punishment

he could receive. At this point Stavola swallowed the

bait in the trap conceived in the minds of Sweeney and

Turner. But it was clearly only as a result of

Sweeney’s blandishments.

In Sherman v. United States, supra, this Court

pointed out ‘‘the fact that government agents ‘merely

afford opportunities or facilities for the commission of

the offense does not’ constitute entrapment. Entrap-

ment occurs only when the criminal conduct was ‘‘the

product of creative activity of law-enforcement offi-

cials’? (emphasis in the original), 356 U.S. 369, 372.

If Stavola had been tried in a United States District

Court, the evidence would haye required the granting

of a motion for judgment of acquittal at the close of

the government’s case because the ‘‘criminal design

originate[d] with the officials of the government, and

they implant[ed] in the mind of an innocent person

the disposition to commit the alleged offense,’’ Sorrells

v. United States, 287 U.S. 435, 442.

The standards applicable to entrapment in the fed-

eral courts should be the minimum standards observed

by the state courts. ‘‘Clearly entrapment is a facet of

2 Since this is the crucial conversation which shows that Stavola

was entrapped by Sweeney, it is reprinted in the appendix at p. 23a.

11

a broader problem. Along with illegal search and

seizures, wire tapping, false arrest, illegal detention

end the third degree, it is a type of lawless law enforce-

ment.”” Donnelly, Judicial Control of Informants,

Spies, Stoolpidgeons and Agent Provocateurs, 60 Yale

L.-F. 1691, 1111 (1951): The entrapment defense is

“analogous to the exclusionary rule in illegal search

and seizure cases because both are directed at prevent-

ing improper police conduct. Illegal searches and

seizures are expressly forbidden by the Fourth Amend-

ment, while entrapment has not been recognized as

constitutionally grounded. In Olmstead v. United

States, 277 U.S. 438 (1928), the Court held that ille-

gally obtained wiretap evidence could not be excluded

because such conduct was not specifically barred by the

Constitution. However, the Court has since departed

from the narrow view upon which that decision rested

and held that the ‘“‘underpinnings of Olmstead .. .

have been so eroded that the doctrine there enunciated

can no longer be regarded as controlling.” Katz v.

United States, 389 U.S. 347, 353 (1967). The Court

should now recognize that the better legal basis for

the entrapment defense is due process.

Entrapment, one of the devices of lawless law

enforcement, cannot be tolerated because it is ‘“‘unfair”’

“‘unconscionable”’ and ‘‘shocking to the universal sense

of justice’. The defense of entrapment, grounded in

the due process clause of the Fifth Amendment, is thus

applicable to the states through the Fourteenth Amend-

ment because it is fundamental to our principles of

liberty and justice. Palko v. Connecticut, 302 U.S.

319, 328 (1937).

In the instant case, the principles governing entrap-

ment in the federal courts would have required the

eR IE 1 ABC RA hs SAILS A> TORENT ers cacmeneneceinaiittias

12

granting of judgment of acquittal. In United States

ex rel. Hassel v. Mathues, 22 F.2d 979 (E.D.Pa. 1927)

the court found entrapment, as a matter of law upon

operative facts, identical to the facts in this case.

Morris and Max Hassel were owners of a brewery.

Morris, out-of the presence of his brother; offered $560

to a prohibition agent, Hurley, who*was watching the

brewery. After talking with his colleague, Hurley

‘¢. .. told Morris Hassel that he did not want to talk

to him; he wanted to talk with Max Hassel.’”’ A few

days later the agents met Max and Morris Hassel and

the Hassels paid them $1,250. Both Hassels were

charged with bribery and held for the Grand Jury.

Max obtained a writ of habeas corpus contending that

he had been entrapped. The Court agreed and said:

‘‘There is no evidence to establish the fact that

there was any thought in Max Hassel’s mind of

offering a bribe to the prohibition officers until

Agent Hurley, after suggestion of bribery made by

Morris Hassel, had made the latter his agent to

bring Max Hassel to the officers and have him take

part in the plans for bribery.”’ [Emphasis sup-

plied.]

* * * *

‘While the first suggestion, looking toward the

commission of the criminal act, was made by

Morris Hassel to the officers, the suggestion which

induced a criminal intent in Max Hassel origi-

nated with the officers, merely to entrap Max

Hassel into the commission of a crime suggested

to him [Max Hassel] by them [prohibition offi-

cers] through the agency of his brother, Morris

Hassel.’’ 22 F.2d 979-980.

Martinelli, like Morris Hassel, may have first sug-

gested the bribe, but later became Sweeney’s agent to

entrap Stavola in the bribery. The evidence shows

: —

13

that Stavola, like Max Hassel, had no intention of

offering a bribe until he was brought into the scheme

by Sweeney through Martinelli. Therefore, the prin-

ciples applied in Hassel should have been applied here.

: The Third-Circuif Court of Appeals reversed bribery

convictions on the ground of entrapment in Klosterman

v. United States, 248 F.2d 191 (3rd Cir. 1958). In

that case the evidence showed that while Deeney, an

IRS agent, had initially considered a bribe offer from

Klosterman, he later abandoned the bribery scheme;

but he had been lured back into the scheme after

numerous solicitations by a government agent. The

court held that Deeney participated in the bribery

scheme because of the agent’s activity and was there-

fore entrapped as a matter of law. Im the instant

case, Sweeney’s stated objective was to get ‘‘a com-

mittal from Stavola’”’ (III. Tr. 378). Sweeney first

approached Stavola through Martinelli (IIT. Tr. 532) ;

he initiated conversations about money with Martinelli

(III. Tr. 560-561) ; he told Stavola he could not get a

fair trial because he was Italian and successful; he lied

to Stavola (IIT. Tr. 396), telling him the penalties for

assault and battery on a police officer were far greater

than they actually were (III. Tr. 397). This is the

kind of ‘‘creative activity”? by government agents

which was condemned in Klosterman and Sherman.

Here, as in those cases, the activity should have been

deemed entrapment as a matter of law.

II.

The petitioner was denied a fair trial within the

meaning of the due process clause of the Fourteenth

Amendment because the trial court failed to sever

Martinelli when it was clear that evidence admissible

EFL ELSE RRS EERIE SEE A

14

against only Martinelli was severely prejudicial to

Stavola, and because the court failed to distinguish

between petitioner’s conduct and that of Martinelli in

its instructions.

- Stavola*s defense was bused upon two theories of —

entrapment. ~ First, that“Sweehey entrapped him on

February 25, 1971, when Sweeney said he would make

a deal with the judge and the prosecutor. Second, he

was entrapped by Martinelli who, as Sweeney’s

agent, conveyed the fact that Sweeney would make a

‘‘deal’’ for him. As to both aspects of his entrapment

defense, it was crucial to prevent the conversations of

Martinelli and Sweeney, properly admissible only

against Martinelli, from being considered in determin-

ing Stavola’s guilt or innocence.

(a)

This Court has recognized that when there is a joint

trial, there is danger that the adverse evidence against

some defendants will improperly rub off on the co-

defendants. In Blumenthal v. United States, 332 U.S.

539, 559-560 (1947), the Court stated ‘‘Perhaps even

at best the safeguards provided by clear rulings on

admissibility, limitations of the béaring of evidence as

against particular individuals, and adequate instruc-

tions are insufficient to ward off the danger entirely.

It is therefore extremely important that these safe-

guards be made as impregnable as possible.’”’ In

United States v. Kelley, 349 F.2d 720 (2nd Cir. 1965),

where the evidence against defendant, Shuck, in a

stock fraud case was less extensive and incriminating

than against his co-defendants, the Court held that

Shuck was prejudiced by the introduction of evidence

against the co-defendants which ‘‘must have stamped

15

them [co-defendant] in the eyes of the jurors as un-

scrupulous swindlers of the first rank’’, 349 F.2d at

759.

The same danger that arose in Kelley. arose in the

instant ease. On October 29, 1970, Martinelli initiated -

conversatiun with the New Jersey State Troopers about

helping Stavola with the problem of his indictment for

assault and battery. (II. Tr. 43-44). Martinelli ar-

ranged to have Sweeney meet Stavola on December 18,

1970 (III. Tr. 527). Martinelli by his own admission

called Sweeney ten to fifteen times in January and

February, 1971, to find out what progress Sweeney

was making and he met with Sweeney on February 23,

1971. (IV. Tr. 873). During these conversations,

none of which were admissible against Stavola, Marti-

nelli offered to fix future cases with Sweeney (IV. Tr.

990-991), and to become a ‘‘bag man” (IV. Tr. 994).

These tape recorded statements were played for the

jury. It is clear from these statements the jury could

only infer that Martinelli’s impetus to engage in future

cease-fixing activity came from his ‘‘fixing’’ this case.

This clear indication of Martinelli’s predisposition had

to rub off on Stavola.

The prosecutor brought out on cross-examination of

Martinelli the fact that he knew Frank Mallamaci who

had been indicted in a widely publicized trial for

bribery (IV. Tr. 973-977). The fact of Martinelli

being associated with Mallamaci and Joe Zicarelli,

equally notorious, was not relevant to any of the

charges against either Stavola or Martinelli and it was

not admissible against Stavola. The court instructed

the jury not to consider the references to Martinelli’s

knowledge of the Mallamaci indictment in determining

Stavola’s guilt. (IV. Tr. 988). These references

ESA ARH EE IP EN

16

marked Martinelli as an unscrupulous briber. Here,

as in Kelley, the evidence properly admissible against

Martinelli alone rubbed off on Stavola, improperly

prejudicing him.

(b)

. Petitions defense was-that of entrapment, In-

deed, it was\the crucial issue in the case because it was

never denied\that Stavola had handed Sweeney $5,000.

Since it was JXe basic issue in the case it was particu-

larly important hat the instructions to the jury were

clear and unequivWeal. United States v. Silver, 457

F.2d 1217 (3rd Cir. 1972). One aspect of Stavola’s

entrapment defense was that he had been entrapped

by Sweeney using Martinelli as his agent. He re-

quested an instruction to that effect.’ The instruction

was not given. The evidence showed that Sweeney

used Martinelli to contact and arrange meetings with

Stavola. With the exception of the meeting of February

26, 1971, all meetings between Sweeney and Stavola

were set up by Martinelli. The tape recordings con-

tained statements by Martinelli that he was in effect

acting as an agent of Stavola. The court instructed

that agency could not be established only by statements

of the agent, but must be determined on all the facts

(V. Tr. 312-313). However, the court did not instruct

that Martinelli could also have been acting as an agent

of Sweeney. Thus the jury was only instructed on

the prosecution’s theory of agency and was never al-

lowed to consider one aspect of Stavola’s theory of

defense which was supported by the evidence. The jury

could have found that Martinelli was Sweeney’s agent

for soliciting a bribe. This would have been sufficient

3 See fn. 1.

a nea LOTR E EN DTA AH SRNR N NN TASTES ears ceceencecee aia

17

to establish the defense of entrapment. The trial

judge’s refusal to give the requested instruction con-

stituted error. Lufty v. United States, 198 F.2d 760

(9th Cir. 1952), Levine v. United States, 261 F.2d 747

(D.C. Cir. 1958). : rarer y

The trial judge’s failure to give Stavola’s requested

instructions combined with the evidence admitted

solely against Martinelli, which severely prejudiced

Stavola, denied Stavola a fair trial within the meaning

of the due process clause of the Fourteenth Amend-

ment.

CONCLUSION

For the foregoing reasons the Petition for Certiorari

should be granted.

Respectfully submitted,

JOSEPH A. CALIFANO, JR.

RayMonp W. Bercan

Rosert P. WATKINS

1000 Hill Building

Washington, D.C. 20006

Counsel for Petitioner

WruiaMs, ConnoL_y & CALIFANO

1000 Hill Building

Washington, D.C. 20006

seoeg tp snge se MY DLN NAGE ELNOT EISEN ERI MABE MN TLRS SA