Petition for Writ of Certiorari — Marilao v. United States

Supreme Court brief1993

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92-1715

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

NARCISO S. MARILAO, JR.,

be PETITIONER,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

PETITION FOR WRIT OF CERTIORARI

Narciso S. Marilao, Jr.

ll John St., Suite 503

New York, NY 10038

(212) 693-1340

Petitioner Pro Se

QUESTIONS PRESENTED

le Whether the lower Court's denial of

Defendant-Petitioner's right of inspection of the

jury selection records under 28 USC Sec. 1867 (f)

denied him due process of law under the 5th and

14th Amendment to the United States Constitution.

2. Whether the Lower Court in denying P2titioner's

Right under Rute 32 (c) (3) of the Federal Rules of

Criminal Procedure t® comment on the Presentence

Report of the Probation Officer Deni2d him Due

Process of Law as Guaranteed by the Fifth and

Fourteentn Amendments to the United States

Constitution.

3. Whether the Government violations of the

attorney client relationship and Rules 4.2 and 5.3

of the ABA Code of Professional Conduct as adopted

in Pennsylvania which prohibits a lawyer or his

agents from communicating with a party wno is

represented by another lawyer without the other

lawyer's consent, together with other Governmental

Misconducts, denied Petitioner Due Process and fair

trial, and amounted to outrageous Governmental

Misconduct warranting Dismissal or New Trial.

4)Whether the Admission Under Rule 404(b) of the

Federal Rules of Evidence of tne Mirtins'

Testimonies ‘Government Key Witnesses) about

Setitioner's alleged uncharged D..ssimilar Criminal

activities caused unfalzv Prejudice and Denied Him a

Fair Trial.

; ina

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........ i

SABES UF AUTHORITIES. .ccsccscccasevcveses Vil

UPERSGNe BELOW cectcccncsvvsivcecoeseses 2

SUREDUMEGT SIN seacrdcasecasvevesevensecnes 2

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED .cccccccsscccsscses 3

senseremes OF THE CAGE ccccccvcveetescose 5

A. PROCEEDINGS BELOW .nccccesesoecs 5

Be SEATEMENT OF FACTS .ccceccsevces 7

REASONS FOR ALLOWANCE OF THE WRIT ..... 9

I.The Judgment Of The Court of Aopeals

Which Affirmed Tie Action Of The Trial

Court I1 Denying The Defendants Access

To The Jary Selection Records Pursuant

To 28 US2 Sec. 1867 (f) Is Contrary To

The Decision Of This Court In Test Vs.

United Stat2s 420 U.S. 28 (1975) And

The Decisions Of Several Other

Circuit Court OF Apoebls...ccccccvees 9

Il. The Lower Court In Denying

Petitioner's Right Under Rule 32 (c)

(3) Of The Federal Rules O£f Criminal

Procedures To Comment On The Presen-

cence Report Of The Probation Officer

Violated Due Process Of As Guaranteed

By The 5th and 14th Amendments

Table of Contents

Page

To The United States Constitution And

Such Denial Is In Conflict With

Other Circuit Court Of

Appeals Decisions....... ssebeeeeeve 14

II1. The Government's Violations Of The

Attorney-Client Relationshi; And Rules

4.2 and 5.3 Of The Code Of

Professional Conduct As Adopted In

Pennsylvania, Which Prohibits A Lawyer

Oi: His Agents From Communicating With

A Party Who I:s Known To Be Represented

By Another Lawyer Without The Other

Lawyer's Consent, Together With Other

Governmental Misconduct, Denied

Petitioner Due Process and Fair Trial,

And Amounted To Outrageous Government

Misconduct Warranting Dismissal or New

Trial, So That The Lower Court

Judgment Was In ELror.....seeeeeeees 18

IV. The Admission By The Lower Court

Under Rule 494 (b) Of The Federal Rules

Of Evidence Of The Martins’ Testimonies

About Dissimilar Criminal Activities

For Whicn Petitioner Was Not Charged

Caused Unfair Prejudice Violating His

Right To A Faiv Trial... eeeeeees 29

Table of Contents

Page

CONCLUSION coccccsecesecesseseseseestsees 31

APPENDICES

Appendix A - Judgment Order Of The

Court of Appeals Dated January

ree) ) keewrrrrre rer rere ee eee ee ee LA

Appendix B- Order Of The Court Of

Appeals Dated February 23, 1993

Denying Rehearing ..-.-eeeeeeerereees 4A

Appendix C - Order Of The District

Court Dated April 15, 1991......... 6A

Appendix D - Judgment Of The District

ef Pe er a aa ee eee SA

Appendix E - Defendant's Combined

MOECLONS coecvecscres ess carer secness L4A

1) Motion to Inspect Grand Jury

Minutes With Request For Extension

Of Time To Move To Dismiss ...... L4A

and

Motion for Inspection, Reproduction

and Copying of the Records and Papers

In The Custody Of The Court Clerk

Pursuant to 28 USC Sec. 1866 and

Sec. 1867 .(a) (d) & (E)cececccecce L6A

Appendix F - Motion Of Defendant For

Dismissal of Indictment Based on

Unconstitutional Composition of Grand

Jury, dated March 21, 1991.......... 29A

Table of Contents

Page

Appendix G - 28 USCS Sec. 1867 ..... 33A

Appendix H - Federal Rules of Criminal

PEOCOGULES ccccccceccceccecesecscsesese 37A

TABLE OF AUTHORITIES

Constitution, Statutes, Codes

and Rules

Page

J. S. Constitution, Stn Amendment ......... 3,14,17

J. S. Constitution 14th Amendment ......... 3,14,17

YXode of Professional Conduct, Rule 4.2..... 8,18,19

YXode of Professional Conduct, Rule 5.3 .... 8,18

*%ederal Rules of Criminai Procedure,

Mle 32(C)(3) cccecccccccccccccscccceccese 14,15,16

7ederal Rules of Evidence,

Tle 404 (b) a ccccccdeccccccscccvcccccccccce 6,29, 30

cal Rules of Criminai Procedures of

Yennsylvania, RULE 2.....eeeeeeeeeee beceede 2L

fode| Code of Professional Responsibility,

Be PRG 4G) CAPISED ccccnccccvcccccveacnce 27

OES ee ee 5

ee SSS ee eee 5

I EERE Liebe eS eennesverenecces 8

BP UMC Mec. L257 (1) nncncencsccssescccesecs 2

Me USS Sec. 196] ccccccccccccnccscccceccces 10

Table of Authorities

Page

28 USC Sec. 1366 .. ccc cccceeecccenccccccces 5

28 USC Sec. 1867 (a), (d), and (f) ...-- 4,5,9,10,12

Cases Cited

Donnelly v. De Christofono

116 US 636, 646-647 ...cceceeceerccceeecces 27

Fong Foo v. United States

369 U.S. 141 (1962) wc cece eececccccnccccces 26, 28

Giglio v. United States

92 S. Ct. 763 (1972) wcccccceccecsccccceees 24

Government of Canal Zone v. Davis

‘1979, CA Canal Zone), 592 F 2d 887 .....- 12

Grifin v. California 380 JS 6)9..e..--e0ess 26

Huddleston v. United Sates

(1988) 485 U.S. 6B1 ..cceeecccecereeceees 30

Johnson v. Superior Court

539 F 2d 792 (1975) ..cccwecceccccrcccccecees 23

Test v. United States

420 US 28 (1975) wcccececcececcececccees 9,10,11,12

vili

« ai talacaaiat aaa

Table of Authorities

Page

Thomas v. United States

343 F 2d 49 (1965) ccccccccccccccercccceceess 23

United States v. Al Mudarris 695 F 2d 1182

‘9th Cir.), cert. denied 461 US 932 (1983) .. 19

United States v. Alden (1985, CA 8 Mo.)

776 F 2d 771 cvcccccccccccccscvccccccccccces ll

United States v. Alexander (1988, CA 2 NY)

B60 F 2d 508 ..cccccccccccccccccsccccccccocs 16

United States v. Beaty (1972, CA 9 Ariz.)

465 F 2d 1376 cccccccccscccccccccccccccceces 12

United States v. Braniff Airways: Inc. (1977 Wid Tx)

428 F Supp 579 .rcccccccccceccceecececes aces 22

United States v. Capocci

433 F 2d 155 (Ist Cir. 1970)..-----eeeeeeee 26,28

United States v. Caputo

641 F Supp 378 (E.D. Pa 1986) ..---+--+eeee- 21

United States v. Cortijo-Diaz (1989, CA 1)

B75 F 2d 93 ccccvccccccccccvccccccccccccese 31

United States v. Hammad 858 F 2d 834

(2nd Cir. 1988) ...-cceeeeceeeceeccececcces 21

Table of Authorities

Page

United States v. Houghton 554 F 2d 1219

(lst Cir.) cert. denied, 434 US 851 (1977).. 19

United States v. Miller (1989, CA 9 Cal.)

B74 P28 ADS ccvccccevececccestésvaceseeanes 30

United States v. Modica

663 F 2d 1173 (2d Cir. 1961) ccccccccccccss 26

United States v. Oliver

570 F 2d 397 (Ist Cir. 1978) ccccccccccceee 26,28

United States v. Penia (1981, W.D. Dela)

216 F Supp 246 acvccccccveccessccscesseccess 12

United States v. Philip Petroleum Co.

435 F. Supp 61001977) wccccccccccscccececes 22,23

United States v. Russel

411 U.S. 423 (1973) cccccccccccsssccssecoes 19

United States v. Sparrow (1982, CA 5 Miss.)

G73 Fi. BA B62 cccccvcdvcsescsecssestveenses 17

United States v. Studby (1986, CA 9 Cal.)

FBS F 20 934 cccccvcccccccccccsesacessecese 12

Table of Authorities

Page

@ilson v. United States 371 So. 2d 126

(Fla, Dist. Ch Apo. 1978). .ceceeeeeeeeeees 27

Miscellaneous

ABA Prosecution Standard std.3-58 (b)...... 27

ABA Prosecution Si:andards,

Std. 3-5.8 (CC) coccccccvccccccccsecccsccces 27

68 ALR Fed Sec. 5(a) pe 814 wosveeeeeeeveees 22

9 Federai Procedure, L. Ed Sup June 1990,

Bec .22:18, BD. 373 ercccccccccccccccessccecs L5

Defending Business and White Collar Crimes,

by Bailey,Vol. 1, Cum Supp (1990), Pe2.sece 24

sadgeiad

No.

IL N THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

NARCISO S. MARILAO, JR.,

PETITIONER,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ

of certiorari issue to review the judgment order of

the United States Court of Appeals for the Tiiird

Circuit entered on January 21, 1993.

hoes

OPINIONS BELOW

The judgment order of the Court of Appeals

be low (Appendix wan pla ) was not reported.

Judgment of the District Court below ‘Appendix D

p.8A ) was not reported.

JURISDICTION

The judgment of the United States Court of

Appeals below (Appendix A p.l1A ) was entered on

January 21, 1993. The order denying the Petition

foc Rehearing (Appendix B_ p. 4A ) was entered on

February 23, 1993. Jurisdiction is conferred upon

this Court by 28 USC, Section 1257(1) to review by

writ of certiorari a final judgment rendered by the

United States Court of Appeals.

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED

1. Fifth Anendment, United States Constitution,

which provides:

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

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 piblic use, without just

compensation.

2. The Fourteenth Amendment, United Szates

Constitution, Sec. 1, which provides:

All persons born or naturalized in the United

States, aid subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make oc enforce any law which shall

abridye the privileges or immunities of

citizens of the United States; or 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.

aia

;

3. 28 USC Sec. 1367 (f£) which provides:

f) The contents of records or papers used by

the jury commision or clerk in connection with

the jury selection process shall not be

disclosed, except pursuant to the district

court plan or as may be necessary in the

preparation or presentation of a motion under

subsection (a), (b), or (c) of this section,

until after the master jury wheel has been

emptied and refilled pursuant to_ section

1836(b)(4) of this title, and all persons

selected to serve as jurors before the master

wheel was emptied have completed such service.

The parties in a case shall be allowed to

inspect, reproduce, and copy such records or

pape-s at all reasonable times during the

preparation and pendency of such a motion. Any

person who discloses the contents of any record

or paper in violation of this subsection may be

fined not more than $1,090 or imprisoned not

more than one year, or both. (See full Text of

28 UST Sec. 1867, in appendix G).

4. Rule 32 (c) (3), Federal Rules of Criminal

Procedure, (See Appendix H for full text)

STATEMENT OF THE CASE

A. Proceedings Below:

The Petitioner was charged by a Grand Jury in

the District Court with conspiracy to defraud the

Immigration and Naturalization Service (hereinafter

called "INS") under 18 USC Sec. 371, and false

statements in the legalization applications under

18 USC Sections 1001, 1002. Petitioner pleaded not

guilty to all counts.

Prior to trial, on November 9, 1990, Petitioner

filed a Combined Motions: Motion to inspect Grand

Jury minutes, and Motion for In&Spection,

Reproduction, Copying of the records with the Court

Clerk pursuant to 28 USC Sec. 1366, and Sec. 1367

(b)(d) and (f£). (Appendix E£, 0.14 A) Both motions

were denied, with the Court declining action on

Petitioner's motion for inspection, reproduction

and copying of the records with the Court Clerk

under 28 USC Sec. 1867 (b)(d) and (f).

On March 22, 1991, petitioner through counsel

filed the Defendant's Motions to Dismiss for

;

Roverceental Misconduct, Grand Jury Abuse, and

Unconstitutional Composition of the Grand Jury

(AppendixF , p.29A), all of which were denied.

On April 15, 1991, the Government filed a

motion in Linine to admit the testimonies of Ramon

and Marie Martin . This was granted by the Court

under Rule 404 (b) Federal Rules of Evidence,

notwithstanding oral objections by the Defense.

After a trial by an all white jury, the jury

returned a guilty verdict on the four counts.

During the sentencing on April 24, 1992, the

Court refuscdPetitioner's request to comment on the

Revised Presentence Report of the Probation

Officer. (Video Tane 4/24/92)

Petitioner was sentenced, judgment rendered

‘Appendix 0, p8A ) and corrected judgment entered

on May 15, 1992. Petitioner appealed to the United

States Court of Appeals for the Third Circuit, but

Said Court affirmed the judgment of conviction by a

Judgment order, withoit discussing the issues. (

Appendix A , plA )

B. Statement of Facts.

Petitioner is ar American citizen of

Philippine origin, 02 years old, of previously

unblemished reputation, and a lawyer with a clean

record for more than 30 years.

On May 21, 1990, Petitioner accompanied three

(3) applicants for legalization (Corado, Pamposa

and Panahon) in their interview in the INS of fice

in Philadelphia, PA. On that same day, after their

interview, Petitioner represented the applicants,

as their counsel, when they were interrogated by

the INS criminal investigators in their office.

Upon advise of Petitioner as their counsel, the

applicants invoked their constitutional rights to

remain silent during the interrogation.

Irritated and angered by the refusal of the

applicants, upon counsel's advise, to answer their

questions, the INS investigators launched that very

day thei: Operation "Barrister" (to go after their

lawyer), altnough the investigators had no evidence

against him. ¢

In or about July 1990, the INS investigators

made contacts with the applicants, Pamposa and

Corado, in their residences, in the absence and

without the knowledge of their counsel, the

Petitioner. Tnis appears to have been made with the

consent, authorization and/or supervision of the

government lawyers in violation of the AA Code of

Professional Conduct, Rules 4.2 and 5.3 as adopted

in Pennsylvania, as well as the attorney-client

relationship.

Other government misconducts were cammitted

during the grand jury proceedings and jury trial

which are discussed under the heading: Reasons for

Allowance of the Writ.

<XISTENCE OF JURISDICTION BELOW

The United States District Court for the

Eastern District of Pennsylvania had jurisdiction

under 18 US® Section 3231, which provides that the

District Courts have original jurisdiction of all

_ offenses against the laws of the United States.

Ape Sa

ean B etl

tee ey ee Tee hi

REASONS FOR ALLOWANCE OF THE WRIT

I. THE JUDGEMENT OF THE COURT OF APPEALS WHICH

FIRMED THE ACTION OF THE TRIAL COURT IN DENYING

«a DEFENDANT ACCESS TO THE JURY SELECTION RECORDS

PURSUANT TO 28 USC SEC. 1867 (£) IS CONTRARY TO THE

DECISION OF THIS COURT IN TEST VS. UNITED STATES

420 U.S. 28 (1975) AND THE DECISIONS OF SEVERAL

OTHER CIRCUIT COURT OF APPEALS.

The pertinent provisions of 28 USC Sec. 1867

(£) provides:

"(£) The contents of records or papers used by

the jury commision or clerk in connection with

the jury selection process shall not be

disclosed, except pursuant to the District

Court plan oc as may be necessary in the

preparation or presentation of a motion under

subsection (a), (b), or (c) of this section...

The parties in a case shall be allowed to

inspect, reproduce, and copy such records Or

rs at. all reasonable times during the

preparation and pendency of such motion.

In interpreting this provision the United

States Supreme Court in Test v. United States,

420 U.S. 28 (1975) ruled:

"This provision makes Clear that a litigant has

essentially an unqualified right to inspect

jury lists. It yrants access in order to aid

parties in the "preparation" of motions

challenginy jury-selection procedures. Indeed,

without inspection, a party almost invariably

would be unable to determine whether he has a

potentially meritorious jury challenge. Tous,

an unqualified right to inspection 1s

required not only by the plain text of the

statute, but also by the statute's overall

purpose of insuring "yrand and petit juries

selected at random from a fair cross section

of the community." 28 U.S.C. Sec. 1851.

Since petitioner was denied an opportunity

to inspexst the jury lists, we vacate the

judgment of the Court of Appeals and remand

the case to that court with instructions to

remand to the District Court so that

petitioner may attempt to support his

challenge to the jury selection procedures.

The situation in the present case is similar

to that in Test v United States. Here, as in Test

the appelant challenge the jury selection process

claiming anong others the systematic exclusion of

minorities such as persons of Spanish and Asian

origin and young. people in violation of the

Constitution, and appelant filed a motion under 28

.USC Sec. 1367(f£) for inspection of the jury

selection records in the custody of the clerk of

court to make discovery of evidence necessary to

support his challenge of discrimination in the

selection of the Grand Jury and thereafter the

petit jury. In this instant case as in “Test v

United States, the District Court rejected the

jury challenge and denied the motion to inspect the

records, and Ptitioner renewed his claims before

_the Court of Appeals, but the Court oF Appeals,

like in Test v United States, affirmed the

conviction without discussing the issues. Under

similar situation the Supreme Court in Test v

United States granted "certiorari to decide whether

the Jury Selection and Service Act reguired that

petitioner be permitted to inspect the jury lists."

(See Test v United States, 420 US 29, at 29).

The decision of the United States Supreme

Court in Test v UnitedStates 15S therefore fully

applicable to the present case.

In United States v Alden, 776 #£ Fad

771(1985), the United States Court of Appeals for

the 8=h Circuit stated:

Sven if Defendant's anticipated challenge to

the jury selection process, as anticipated at

the time of his motion for inspection, are

without merit, the Defendant may still inspect

the jury records. Grounds for challenge to the

jury selection process may only become apparent

after an examination of the records. Test v

United States, 420 US 3t 30, S. Ct. at 750;

Davis, 582 F. 2d at 839. (United States v

Alden, 776 F. 2d 771 (1985),at 775.

fo avail himself of right of access to otherwise

unpublish jucy selection records, Defendant need

not allege that he is preparing motion challenging

jury selection process. (United States yv Alden

1985, CA 8 Mo) 776 Ed 771. 28 USC Sec. 1867(£)

gives litigant unqualified right to inspect jury

list in order to aid parties in preparation of

motion challenging jury selection procedures.

(United States v Penia (1981, WD Dela) 516 F. Supp.

248); (United States v Studby (1986, CA 9 Cal.) 783

F 2D 934).

District Court's denial of Defendant's

Pretrial Motion fo- Inspection and Copying of Jury

Records Pursuant to 28 USC Sec. 1367 (f) for

purpose of preparation in presentation of motion

Cnallenging compliance with Statutory jury

Selection process constituted reversibie error.

(Sov't of Canal Zone vs. Davis (1979, CA Canal

Zone) 592 F. 2d 887); ( See also US v Beaty 1972,

C\ 9 Ariz.) 465 F zd 1376.

In reversing the lower court's judgment , the

Aspeals Court in Gov't of Canal Zone v Davis (592

F.2d 887) held:

"Since the appelant's right to inspect was

unqualified, whether ot not the accompanying

affidavit established a prina facie case of

defective jury selection process is of no

importance,."Citing Test v United States" 420

US at 29 n.2.

It further held:

"Where, aS here, a defendant is denied

access to the very materia!s containing the

information necessary to filing of a motion to

dismiss for defective jury selection, his

failure to file a formal motion blindly and

speculatively drafted will not be viewed as an

abandonment of his rights aa inspection".

‘Ibid, at 889).

In the present case, the Tial Court clearly

commited reversible error in denying the defendant

the right to inspect jury records in connection

with his motion challenging the selection of the

Grand Jury and thereafter the petit jury, thus

Genying him his constitiutional and statutory

rights.

II. THE LOWER COURT IN DENYING PETITIONER'S RIGHT

UNDER RULE 32(c)(3) OF THE FEDERAL RULES OF

CRIMINAL PROCEDURES TO COMMENT ON THE PRESENTENCE

REPORT OF THE PROBATION OFFICER VIOLATED DUE

PROCESS OF LAW AS GUARANTEED BY THE 5TH AND 14TH

AMENDMENTS TO THE U.S. CONSTITUTION AND SUCH DENIAL

IS IN CONFLICT WITH OTHER CIRCUIT COURT OF APPEALS

DECISIONS.

This involves important issues of

constitutional law that ought to be resolved

because although some lower courts have decided on

this question, this: Honorable Court has not spoken

or decided on this issue.

The Court of Aopeals was in error in confirming

the judyement of the lower court which denied the

| Defendant the right to comment or prohibited the

defendant from making comments on the Revised

Presentence Report of the Pcobation Officer during

the sentencing on April 24, 1992 (Video Tape

4/24/92), in violation of Rule 32 (c) (3) of the

9 alate Se eee

_| Federal Rules of Criminai Procedure. During the

: sentencing Defendant-Petitioner requested the court

) that he be allowad to comment on the Revised

| Presentence Report of the Probation Officer but the

District Court denied his request. (Video Tape

| 4/24/92).

The pertinent provisions of Rule 32 (c) (3) of

He Federal Rules of Criminai Procedure provides:

3) Disclosure

A) At least 10 days before imposing

sentence, unless this minimum period is

waived by the defendant, the court

shall provide the defendant and the

defendant's counsel with a <opy of

the report of the presentence

investigation, including the informa-

tion requirsd by subdivision (c)

(2) ecscces

The court shall afford the defendant

and the defendant's counsel an

Opportunity to comment on the report

and, in the discretion of the court, to

introduce testimony or other

information relating to any alleged

factual inaccuracy contained in it.

B) If the court is of the view that

there is information in the presentence

report which shouid not be disclose

under sub-division (c) (3) (A) of this

rule, the court in lieu of making the

report or part thereof available shall

state orally or-in writing a summary of

the factual information contained

therein to be relied on in determining

sentence, and shall give the defendant

and thedefendant's counsel an

Opportunity to comment thereon.

D) I£ the comments of the defendant and

the defendant's counsel ox testimony

or other information introduced by them

allege any factual inaccuracy in the

presentence investigation report or

the summary of the report ox part

thereof, the court shall, as to each

matter controverted, make (i) a finding

as to the allegation, or (ii) a

determination that no such finding is

necessay because thre matter

controverted will not be taken into

account in sentencing.

Under anended FRCr P32 (3) the court must

permit the defendant and his counsel to read the

presentence investigation report at a reasonable

time before imposing sentence or summarize and give

both the defendant and his counsel an opportunity

to comment thereon. FRCr.P32 (c) (3) (D), (E), (F).

(9 Federal Procedure, L. Ed Supp. June 1990, Sec.

22:18, p. 373). (Underscoring supplied).

Since defendant in criminal case is entitled to

due process in all phases of prosecution, including

sentencing, and due process requires that defendant

not be sentenced on basis of materially false

information, defendant is thus entitled to

effective opportunity to respond to sentencing

soSition advanced by the government, including

pportunity to review and comment upon presentence

"eport prepared by probation office of the court.

Inited States v Alexander (1988, CA 2 NY)

60 F. 2d 508. Orfield's Criminal Procedure under

he Federal Rules, 2nd Ed. Supp. August 1990, Vol.

sac iinaiiaeaia Aha

5, Sec. 32:33, P.19.

FRCrP32 was violated by failure of court to

show report of presentence investigation to

defendant personally before sentencing, so that

defendant could point out any inaccuracies to

sentencing judge. Johnson v. United States (1986,

CA7 111) 805 F. 2d 1284; Orfield's,; Ibid, Sec.

32:33, p.15. (Underscoring supplied). Failure of

sentencing judge *o afford defendant his absolute

right of allocation is error, requiring reversal

for resentencing. United v. Sparrow (1982, CA 5

Miss) 673 F.2d 862.

In the instant case, the lower Court by denying

Defendant's constitutional and statutory rights to

comment on the revised Presentence Report

prejudicially denied him due process as provided

for in the 5th and 14th Amendment to the U.S.

Constitution, which is reversible error.

III. THE GOVERNMENT'S VIOLATIONS OF THE

ATTORNEY-CLIENT RELATIONSHIP AND RULES 4.2 AND 5.3

OF THE CODE OF PROFESSIONAL CONDUCT AS ADOPTED IN

PENNYSLVANIA, WHICH PROHIBITS A LAWYER OR HIS

AGENTS FROM COMMUNICATING WITH A PARTY WHO IS KNOWN

TO BE REPRESENTED BY ANOTHER LAWYER WITHOUT THE

OTHER LAWYER'S CONSENT, TOGETHER WITH OTHER GOVERN-

MENTAL MISCONDUCT, DENI=D PETITIONER DUE PROCESS

AND FAIR TRIAL, AND AMOUNTED TO OUTRAGEOUS GOVERN-

MENT MISCONDUCT WARRANTING DISMISSAL OR NEW TRIAL,

SO THAT THE LOWER COURT JUDGMENT WAS IN ERROR.

The conduct of the Government, both by its

agents and attorneys, was violative of the the Code

of the Professional Conduct ("Code"), as adopted

in Pennsylvania.

Rule 4.2 of the Code provides:

"(I)n representina a client, a lawyer shall

not communicate about the subject of the

representation with a party lawyer’ knows to

De represent2d Dy another lawyer

matter, unless the lawyer has consent of the

other lawyer or is authorized by law to do so."

Rule 5.3 of the Code provides:

"(W)ith respect t9. a non-lawyer employed or

retained by or associated with a lawyer:....

(b) a lawyer having direct authority over the

nonlawyer should make reasonable efforts to

ensure that the person's’ conduct is

compatible with the professional obligations

of the lawyes; and (c) a lawyer shall be

responsible for conduct of such a person that

would be in violation of the Rules of

Professional Conduct if engaged in by a lawyer

if: (1) The lawyer orders or, with the

’ Knowledge of the specific conduct, ratifies the

conduct involved;.....

Under the terms of Rule 5.3 of the code, the

INS agents who conducted the uncounseled interviews

and coercion of Corado and Pamposa were associated

with and the alter egos of the government attorneys

assigned to the investigation and prosecution of

the Defendant. But for the government's destruction

q of the attorney-client relationship, and a

deliberate disregard for the ethical duties

required of lawyers, the Government would be

without any evidence indicative of criminal conduct

by the Defendant.

The Court, through an exercise of its

supervisory powers, may dismiss an indictmert if

required to protect the Defendant's rights.

United States v Al Mudarris, 695 F. 2 1182 (9

Cir.), cert. denied 461 US 932, (1983). Where the

yovernment conduct leading to the indictment is

outrayeous, United States v Russell, 411 US 423

(1973), the Court must dismiss an indictment in

order to deter further, similar, misconduct by the

Government. United States v. Houghton, 554 F2d 1219

(lst Cir.), cert. denied, 434 US 851, (1977).

On May 21, 1990, the Government knew that

Corado and Pamposa were represented by the Defen-

dant, as their lawyer, when they were detained and

interrogated by the INS agents in their office. On

that date the Government knew that Defendant ad-

vised each of his clients to remain silent in the

face of the INS agents efforts to elicit incrimina-

ting information and evidence from them. At no time

after said interrogation on May 21, 1990 did the

defendant terminated or his clients terminated his

representations of said clients, nor did he consent

to his clients uncounseled interview or interroga-

tions by the INS agents subsequent to said date.

In the matter at hand, any member of the Bar

ought to know the surreptitious interviewing Oo7

interrogating a client known to be represented by a

lawyer is a gross violation of the standards of

ethical behavior expected of those admitted to

practice law. Clearly, even if the Government did

not initiate the improper contact with Defendant's

clients, nevertheless h2 should have kown that

such contact by the government agents was improper

and he should not have ratified said improprieties

4 by the use of the information or evidence garnered

' by the agents in order to obtain an indictment of

: or against the Defendant in this case.

Withoui: Defendant's consent to that interview,

a any contact by Government counsel with Defendant's

clients would be prohibitedunder the Code, so long

‘as Defendant continued to represent those clients.

; Indeed, under the Rule 2 of the Local Rules of

Criminal Procedure ofPennsylvania, and applying

those Rules to attorneys involv2d in criminal

litigation before the Court, government counsel's

violation of the Rules is clear. See also, United

Pee v. Hammad, 958 P+ 24 834, 837-838 (2nd Cir.

7 1988).

: Additionally, even if government counsel did no

} more than ratify the investigative conduct of the

} INS agents, that conduct was not legitimate

investigative technique otherwise allowed by law,

Hammad, Supra. at 839, and government counsel's

| ratification of that conduct is analogous to the

conduct prohibited by the Court in United States

v Caputo, 641 F Supp. 378 (E.D. Pa 1986) as well as

in Hammad.

een

co Nae

Halcaleaattadc iid este

FOR iad Oe Doak” OB

Other serious Government Misconducts consist

of the following:

The Prosecutor who presented the charges to

}Grand Jury committed Misconduct by:

a) Witholding or failing to inform the jury of

the lenient charges and_ sentences’ and

Employment Authorization Cards given to

government star witnesses Corado and Pamposa,

so they will go against or falsely testify

against their lawyer (Appellant). ABA

Standards, the Prosecution Function S 3.6(G)

- The Prosecutor should disclose to the Grand

Jury any evidence which he knows will tend to

negate guilt. (See United States v Phillips

Petroleum Co.) 435 F. Supo. 610, 617-22 (N.D.

Okla. 1977); (United States v Braniff Airways

Inc.), 428 F. Supp. 579 (W.D. Texas).

b) Inviting and allowing the presence of

unauthorized person during the presentation

of evidence to and deliberation of the Grand

Jury in which he seek the indictment herein.

Specifically, inviting and permitting another

Assistant U.S. Attorney to attend as observer

during the presentation and deliberation of

the: Grand Jury. In United States v Braniff

Airways, Inc. (1977, W. D. Texas) 428 F.

Supo. 579, the Court dismissed an indictment

where it appeared a Justice Department

Attorney was present in the Jury room when

“he case was being presented to the jury. It

rejected the government's contention that the

attorney was present to observe so that he

could present other cases in the future. 68

ALR Fed. Sec. 5(a) p. 814.

Defendan*: asserts that prosecutors have a

clear duty ‘o present exculpatory evidence to a

Grand Jury, Johnson v Superior Court 539 P 2 792

(1975); United States v Phillip Petroleum Co., 435

iF. Supp. 6'0, and a conviction cannot be permitted

»to stand where a orosecutor has, either wilfully or

negligently, withheld material evidence favorable to

ithe Defendant. Tomas v United States, 343 F. 2d 49

(1965).

In the present case, since the applicants,

| Pamposa and Corado, were illegal aliens who had been

niding from the INS for several years, it is clear

that they were easily intimidated by the approach of

‘the INS agents and the fear that these agents could

detain and deport them. Upon being approached by the

INS agents in the absence of their counsel,Pamposa

and Corado were easily intimidated into making false

statements against the Defendant.

These materials, exculpatory, evidence should

have been but were not disclosed to the Grand Jury

and appeared deliberately withheid fram_ them.

Defendant's indictment hinged primarily upon the

“f

‘testimonies of Corado and Pamposa, without which

testimony there would not have sufficient evidence

to sustain an indictment.

Various courts have recognized that certain

agreements between the prosecution and its witnesses

are “invitations to perjury" and are violative of

constitutional guarantees of the due process and

trial. See,Defending Business and White Collar

Crimes, by L. Bailey, et. al, Vol. 1,Crim. Supp.,

p.2 (Dec. 1990). In Giglio v US 92 Ss. Ce. 763

(1972), U.S. Supreme Court Chief Justice Burger held

that if an Assistant United States Attorney, who

first dealt with key government witnesses, promised

a witness that he would not be prosecuted if he

cooperated with the Government, such a promise was

attributed to Government, regardless of whether

attorney had authority to make it, and nondisclosure

of that promise, which was not commnicated to

Assistant: United States attorney who tried the case,

would constitute a violation of due process

requiring a new trial.

overnment Misconducts During the Trial

In his opening statement, the Prosecutor

Anphasized excessive fees that he claimed were

Bharged by the Defendant which the government

Yntended to prove but never did. This was highly

nf lammatory aid prejudicial to the Defendant

ecause it directly attacked his character,

Bortraying him as a greedy lawyer who charged

éxorbitant fees preying on poor innocent victims.

Vide» Tage 4/17/91).

In the cross examination, Ms. Jane Goldblum

dmitted that during the recess, she conferred with

e Prosecutor as to her testimony, so that after

he recess she was able to cure some deficiency and

prove her testimony claiming that she had spent

everal hours in research and negotiation with the

~brosecutor on no deportation and advance parole for

-- Prosecution witness Martin, which the government

¥ill not oppose, but for which she charged $3,000.90

as her attorney's fee (Video Tape 4/24/91),

dnsinuating that Defendant's fees were exorbitant

t not hers.

"During direct examination, the fourth

witness was "not sure" as to the date of a

certain conference at which representatives

of the corporate defendant were present. At a

recess period his memory was refreshed during

a conversation with an Assistant U.S.

Attorney. Upon resuming the stand, he

corrected his previous testimony as to the

date. On cross-examination, he admitted that

the error has been called to his attention by

the Assistant. The Court then excused the

jury and after excoriating tne Assistant

called the Jury back into session and

directed the verdit of acquittal. (Fong Foo v

United States, 369 U.S. 141, 1962); See

United States v. Oliver, 570 F. 24 397 (lst

Cir. 1978); United States v Capocci, 433 F.

2d 155 (lst Cir. 1970).

During the trial, the Prosecutor insinuated

guilt by alleged failure oF Appellant to present

emoloyees of his office as witness ,notwithstanding

the fact that August2 Sarmiento, a defense witness,

was an employee of appellant's office during the

period in question, (Vide» Tape 4/24/91). The

Prosecution's insinuations were not only untrue and

unfair but also improper outrageous conduct. (See

Griffin v Calif. 330 U.S. 609, 5613-5; U.S. Vv

Modica, 663 F. 2d 1173, 1178 (2d Cir. 1981), cert.

denied456 U.S. 989). The Pcosecutor further

improperty vouched as ‘oO tne credibility of his

witnesses, especially with respect to the Martins’

reading a portion of the Prosecutor's agreement

-h the Martin's vouching on the truthfulness of

Bcir testimonies. T1is was erroneously admitted by

e trial court over the objection of the defense.

ideo Tape 4,/23/91).

In his’ closing, the Prosecutor made

flammatory and prejudicial remarks to the jury,

speatedly pitting Ds fendant against the prosecution

f itnesses aid personally insinuating that the

sfendant was lying and the Prosecutor's witnesses

i elling the truth. (Video Tape 4/25/91). Arguments

‘ ich convey the personal opinion of the prosecutor

gs to the justness of his cause, and the credibility

$e his witnesses are- outrageously improper in

Piolation of AB‘ Prosecution Standard 3-58 (b).‘:See

}ilson v United States, So. 20d 126, 128 (Fla.,

978); Model Code of Professional Responsibility

DR7-106(c) (4) (1980). Arguments designed to inflame

improper (see Donnelly v De Christofono, 416 U.S.

;

be passions Or prejudices of the jury are highly

36, 646-47, aid ABs Prosecution Standards,

td .3-5.8. (e).

ee ee ae eee es eats ome

Based on the combined grounds of improper

onducts of the Prosecutors and goverment agents in

Khe investigation and prosecution of this case, a

hudgment of dismissal or new trial would be proper

#nd justified. (See Fong Foo v United States...

@bid; United States v Oliver, Ibid, 570 F. 2d 397;

#nd United States v Capocci, Ibid.).

LAAT RN NTT -

Iv. THE ADMISSION BY THE LOWER COURT UNDER RULE

404 (b) OF THE FEDERAL RULES OF EVIDENCE OF THE

MARTIN'S TESTIMONIES ABOUT DISSIMILAR CRIMINAL

ACTIVITIES FOR WHICH PETITIONER WAS NOT CHARGED

CAUSED UNFAIR PREJUDICE VIOLATING HIS RIGHT TO A

FAIR TRIAL.

There iS a substantial question as to

whether the prior acts of defendant as claimed by

the Martin's were dissimilar to the offenses which

were charged in this case. Assuming arguendo that

the prior acts of defendant were similar to the

crimes charyed, there is substantial question

whether their potential for unfair prejudice far

outweight their provative value. The Martin's claim

that defendant assisted them in the preparation of

alleged fraudulent applications under the RAW

program (Replenishment Agricultural Workers

program) was so dissimilar to the amnesty program

charged in the indictment as to make their

testimonies not probative. As such their

testimonies were not intended to show common plan,

scheme or design or to show absence of mistake or

accident but to establish defendant's propensity to

commit the crimes charged in the indictment. Even

granting said program to be similar to the amnesty

program involved in the present charged, given the

@ overwhelming prejudicial effect of their

testimonies which far outweighed their probative

value, the same should not have been admitted into

# evidence.

Protection against unduly prejudicial

similar-acts evidence admitted under Rule 404

District Court must make to determine whether

probative value of similar-acts evidence is

substantially outweighed >y potential for

unfair prejudice under Rule 493. Huddleston v

United States (1988) 485 JS 681.

Prior acts should not have been admitted since

prior activities were too dissimilar from the

offenses charged to permit prior acts -to serve

as valid proof of intent to commit the offenses

charged. See United States v Miller (1989, CA

9 Cal.) 874 F. 2d 1255.

In prosecuting for conspiracy and false

statements to government agency, the Court should

not have admitted evidence of defendant's al ledged

orior bad acts under Rule 404 (0) where evidence of

erior acts had no relevance to charges filed except

to established propensity to falsification, which

is the kind of conclusion prohibited by Rule

404(b). See United States v Cortijo-Diaz (1989, CA

1) 875 F 2d 93.

CONCLUS ION

This Petition involves questiohs of exceptional

unportance since it affects fundamental and

constitional rights of the parties in criminal and

civil cases to due process of law and a fair jury

trial, and constitional and statutory rights of

defendants in criminal cases + Cement on the

probation report which will affect their lives,

liberty and property.

For the reasons set forth above, the pocitioner

respectfully prays this Honorable Court to grant

the herein writ.

Respectfully submitted,

in (AN

Dated: April1l6, 1993 Narciso S Marilao, Jr.

Petitioner Pro S2

lL John St., Suite 593,

New York, NY 10038

(212) 693-1340

APPENDICES

APPENDIX "A"

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 91-1872

UNITED STATES OF AMERICA

NARCISO SANTIAGO MARILAO, JR.,

Appelant

a -——ae ee eee ewe eee ew ew ew ew ew ew ew ew ew ew www wen mere ere ee

Appeal from the United States District

4 Court for the Eastern District of

Pennsylvania

D.C. Criminal No. 9-00473-061

(Honorable Lowell A. Reed, Jr.)

eee

Submitted January 8, 1993

Pi) Before: Hutchinson and Sztirica, Circuit

; Judges and Standish, District

Judge*

JUDGMENT ORDER

After considering the contentions

Taised by appelant, to wit, that:

[ne Honorable William L. Standish, United

Btates District Judge for the Western

District of Pennsylvania, Sitting by

feslynation.

a al

ie The court erred in denying

appelant's motions to (1) inspect grand

jury minutes, and, (2) for inspection,

reproduction and copying of the records

and papers in the custody of the court

clerk pursuant to 28 U.S.C. Sections 1866

and 1867 (a), (d) and (f£) (including the

master jury wheel, lists and records);

2. The evidence was insufficient to

convict and/or the verdict and judgment is

against the weight of evidence;

3. Misconduct by the prosecutor and

government agents warrants dismissal of

the indictment, or new trial;

4. The indictment and jury instructions

were erroneous in charging one conspiracy,

where the evidence showed two separate and

individual transactions, not a_— single

transaction or alleged conspiracy;

5. The court erred in admitting the

testimony of Ramon and Marie Martin under

Fed.R.Evid. 404(b);

6. The court erred in imposing the

sentence herein; and,

7. The court erred in denying

appelant's motion for judgment of acquittal

and/or new trial, it is

ADJUGED AND ORDERED that judgment of

the district court be and is_ hereby

AFFIRMED.

| BY THE COURT,

(Sgd.) Scirica

| .

Circuit Judge

Attest:

Sally Mrvos, (Sgd.)

Clerk

Dated: January 21, 1993

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

UNITED STATES OF AMERICA

Ve.

NARCISO SANTIAGO MARILAO, JR.,

Appelant

SUR PETITION FOR REHEARING

Present: SLOVITER, Chief judge, BECKER,

STAPLETON, MANSMANN, GREENBERG, HUTCHINSON,

SCIRICA, COWEM, NYGAARD, ALITO, ROTH

AND LEWIS Circuit Juges,

and Standish* District Judge

The petition for rehearing filed by

appelant in the above-entitled case having

been submitted to the judges wo

participated in the decision of this Court

*As to panel rehearing only.

Bnd to all the other available circuit

hudges of tne circuit in regular active

ervice, andno judge who concurred inthe

Kecision having asked for rehearing, and a

majority of the circuit judges of the

circuit in regular service not having

woted for rehearing, the petition for

rehearing by the panel and the Court i1n

banc, is denied.

By the Court,

(Sgd.) Scirica

Circuit Jadge

Dated: February 23, 1993

sali Lau

CBI ox Gsnallbes a

in ae a eh Dba ih Mo

APPENDIX "C"

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

NARCISO S. MARILAO, JR.

CRIMINAL NO. 9000473

ORDER

AND NOW, this 15th day of April, 1991,

upon consideration of defendant's motion

t> Inspect Grand Jury Minutes with Request

'’ for Extension of Time to Move to Dismiss,

the Motion of Defendant Narciso Santiago

Marilao, Jr., For Dismissal of Indictment

Based Upon UnConstitutional Composition of

Grand Jury, the government's consolidate

respons2s thereto, and tne entire record

in this case, it is hereby

ORDER ED

Riat defendant's Motion to Inspect Grand

Hury Minutes with Request for Extension of

Mim to Move to Dismiss 1s Denied, as moot

Since the minutes have been supplied.

BY THE COURT:

(Sgd.) LOWELL A. REED, JR.

United Sxates District Judge

Entered: April 18, 1991

2. ie Se A ND eA Pe BRE Pe + ee "cla NORRIS : — i

S146 8 tev, 490) Shoot + - sirens 2 crtrines cove MBBENDIX LLB a WU

: ee Cored as @ ue copy en .

Wnited States District Court me" - --

EASTERN District of PENNSYLVANTA | 1 | Soca

UNITED STATES OF AMERICA . JUDGMENT IN A CRIMINAL CASE -

Vv. i (For Offonses Committed On or Alter November 1, 1907)

NARCISO SANTIAGO MARILAO, JR,Case Number: cr, 90-00473-01

(Name of Oelendant)

' . Delendani’s Allorney . 8

€ DEFENDANT: 1

pleaded gullty to count(s) !

was found gullty on count(s) 1,2, 3 ahd 4 aller ..

- e

plea of not guilty.

+ Accordingly, the defendant Is adjudged gully of such couni(s), which sie the following offenses: ..

NN Date Ollonse ~* ‘Count

Conciuded

p & Section Nature of Offense oo Number(s)

71 wunepaeony to defraud INS. May 21, 1990 1.

B46 (a) Use of fraudulent immigration May “21, 1990 Sa8s4s

ocuments. ATRUE TOFROM THE RECORD

: | DATED :

t |. ATTEST:

iy mw Coual

The defendant is sentenced as provided In pages 2 through __ 6 _ of Fis’ judgment.

osed pursuant to the Sentencing Reform Act of 1984.. -

defendant has been found not guilty on'counl(s)

d is discharged as to such count(s).

ount(s) s guhhdved Gamtioced on the maton of be United States.

‘ordered that the defendant shall pay a special assessment of of $200.00: for count(s) _

— immediately GQ as follows: within

hirt 330), dave s of today's

ITIS ADERED that the delenday. Hall notify the United States attorney for this district within

ays of on ae of name, residence, or mailing address = all ane, restilulion, costs, and special

samonts bnpoeed by tie hidoment are tully paid. ”

dan''s Soc. Sec. No.: 564-63-9526_

dani’s Dale of Birth: December..2 9, 1 930

dant’s Mailing Address:

me & Tite of Judicial Officer JUDGE |

dan's Residence Address: wala [292..

Center Street

4—NI__07312 ; f-

: UROPO 1900-12244 10280

. TO te Oe ee Fe emt ame ee wee SS: a .

090) Shows 2 - Wngrle ONO eer 98 64s ewer eee SS eee eS

; NARCISO SANTIAGO MARILAO, JR. Judgment-Page ? é

bor Crk, 90-00473-0)

IMPRISONMENT

iolendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned !

sixtean (16). monthe ee

i 1 4G RMas ¢: ‘eck

Burt makes the following recommendations to the Bureau of Prisons <

t e* ys ‘«

Badant is out on bail pending the filing of an appeal.- Go "'Q +

adant is remanded to the custody of the United States marshal “ ke ;

adant shall surrender to the United States marshal for thvs distinct, = ~ :

am ; ee ere j

! p.m on ears ial |

5 notilied by the United States marshal ;

ndant shall surrender for service of sentence at the institution designated by the Bureau of Prisons ;

slore 2p.m. on i

s notified by the United States marsha! H

5 nolilied by the probation office 4

. :

RETURN ; f

p executed this judgment as follows:

Fe ee aes sa CD ee eae oe, Se ease

dant delivered on ___--_---_-. — ais, eee Oe —acccsslil tina entree cinciaeitt aa

as _with a certified copy of this judgmen .

3 7

3 z

x United States Marshal |

3 By ‘ : ; ;

4 Depuly Marshal

eu 3 Gro '4eo 122 440/'9204

ss abies

See ateae ty MRR bk De

Baer red oe

NARCISO ithe MARILAO, JR. Judgment —Page _3____ of __ 6 rs

amber: CR. 90-00473-0

SUPERVISED RELEASE

n release from imprisonment, the defendant shall be on supervised release for a term of _three

5 to comacnce upon the completion of incarcoration

—_—_

ommit another federal, state, or local crime and shai

possess a controlled substance. The defendant shall comply with the standard conditions that have b

d by this court (set forth below). If this judgment imposes a restitution obligation, it shall be a condilio

ised release that the defendant pay any such restitution that remains unpaid at the commencement o!

supervised release. The defendant shall comply with the following additional conditions:

defendant shall report in person to the probation office in the district to which the defendant i

in 72 hours of release from the custody of jhe Bureau of Prisons.

: “1 StS ey” pees ed

» defendant shall pay any fines that remain unpaid at the commencement of the term of supervised rele.

ile on supervised release, the defendant shall not c

s relea

defendant shall not possess a firearm or destructive device.

CCIAL CONDITIONS OF SUPERVISED RELEASE ARE: (SEE ATTACHED ADDENDUM)

seaanbiy

Se yh nant 1

b= AIRS, PETIA

‘

STANDARD CONDITIONS OF SUPERVISION “. © O6 oe

d ~ ; . .

9 iho delondant 1s on supervised release pursuant to this judgment, ino delendant shall not commu! another lederal siaig Of pcabdime in x

olondant shall not loave the judicial distinct without the parmission of the Court oF probation officer

delendant shall report to the probation officer as Gwecied by the courl of probauion olficer and shall submit a iruthiul and complete wrilien repo:

ivst we days of each month,

dolondant shali answer truthlully all inquines by the probation officer and follow

dolendant shall support his or her dependents and meet other lamily responsibaives,

dolondant shall work reguiarty at @ lawtul occupalion unless excused by the probation officer for $c

delendant shall notify the probation olficer within 72 hours of any change in residence oF employment.

delendant shalt retrain from excessive use of alcohol and shail not purchase. possess. 056, distribute, of adrrunusier any Narcotic Or OINer Cor ;

“ot any paraphernalia relaied lo such substances, except as prescribed by & physician:

dolendant shalt not frequent places where controlled substances are illegally sold, used, disiribuled, or sdrwrusiered.

PE aS —

the instructions of the probation officer

’

hoolng. Waiwung, of other accepiabie re

delendant shall not associate with any persons lelony

4 permission to do 80 by the probation

dolendant shall pormit a probation officer to visi ham or hor at any lane at home oF

view by the probation officer;

delendant shalt notity the probation officer within seventy-two hours of being arresied or questioned by & law enlorcement ofa’

delendant shail not enter into any agreement to act as an inlormer or @ special agent of a lbw eniorcement agency wahout the permission Of ine

Bwecied by the probation officer, the delondant shall notily third parties of risks thal may be occasioned by the defendant's Crimunal cord o* pe

ory or Characteristics, and shall permit the probation officer to make such noulications and to conlum the delendant’s comphance wiih such now!

ement.

olsowhore and shail perma conliscabon of any Coniraband ob-

e@U S GRO 1000/22 448/10l¢

§ 10A yates Ee

«3

ndant: NARCISO 8. MARILAO, JR. Judgment-Page 4 of _6

Number! CR. 90-00473-01

ADDENDUM OF SPECIAL CONDITIONS OF SUPERVISED RELEASE

ial conditions of supervised release are:

defendant shall observe the standard conditions of supervised

ase of the District Court for the District in which the

fendant resides.

Defendant s

hall not possess any firearms or other dangerous

ons.

pefendant shall submit financial information to the Probation

ice at anytime upon request, includ

”

mMallment basis, on 4 Pp

bation Office. The failure to pay any installment of this

ing providing copies of his

onal federal, state, and local income tax returns to-the

ation Office upon request, and within thirty (30) days of

ng said returns.

Defendant shall pay a fine in the sum of $10,000.00 on an

eriodic basis on a schedule set by the

may be grounds for revocation of the status of supervised

ase. The defendant is ordered to liquidate any assets

@ssary to pay the fine or its installments.

ater re? Hei

Sex ataeab as Ab

aM aP or ak

get

L1A

Pee ore See aceon ee

PSOE RAR REND A 10

Sheet 5 - Fine

NARCISO SANTIAGO MARILAO, JR. Judgment — Page 5 of

CR. 90-00473-01 ie

. FINE

B dant shall pay a tine of $ 10,000.00 __. The fine includgs any costs of incarceration and/

unt is the total of the fines imposed on individual counts, as follows: Counts 1, 2, 3 &

‘

has determined that the defendant does not have the ability to pay interest. It is ordered that:

terest requirement is waived.

terest requirement is modified as follows:

® plus any interest required shall be paid:

| immediately.

I not later than —_.

bual monthly installments over a period of ___.____ months. The first payment is due on the

of this judgment. Subsequent payments are due monthly thereafter.

tallments according to the following schedule of payments: on an installment basis,

ba periodic basis on a schedule set by the Probation Office.

eg ad pa’

Sn te ee a Oe

not paid, the court nay sentence the defendant to any sentence which might have been

‘ posed. See 18 U.S.C. § 3614.

@U S GPO 1000-722-448/10206

12A

‘

470) Shea ? ‘ Steterment of Ressone

NARCISO SANTIAGO MARILAO, JR. Judgment—Page °

oer en, «6«90-004573-01

STATEMENT OF REASONS

br adopts the factual findings and guideline application in the presentence repor!

t adopts the factual findings and guideline application in the presentence rport except

tachment, if necessary) SEE ATTACHED ADDENDUM - (4 pages)

Range Determined by the Court:

Hiense Level. _. eS

| History Category: 1 ees |

ament Range: 10. to _.16— months

ed Release Range. 2. to _3__ years

ange: $ 3,000.00 to $30,000.00 3

) Fine is waived or is below the guideline range, because of the defendant's jr@bilit? ip pay

it a 7) ¢

7 Full restitution is not ordered for the following reason(s):

s .

r : ~

e@ vt a

ntence is within the guideline range, that range does not exceed 2'4 months, and the court finds no

‘0 depart from the sentence called for by application of the guidelunes

ntence is within the guideline range, that range exceeds 24 month:s, and the sentence is imposed

following reason(s)

SENATE AT ARINE RAS IY OER BRERA SN OTR AEE SI Se MACE: V

nce departs from the guideline range

Dare eee

ere at

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APPENDIX "E"

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

UNITED STATES OF AMERICA

VS.

NARCISO S. MARILAO, JR

CRIMINAL NO. 90-0047301

COMBINED MOTIONS

MOTION TO INSPECT GRAND JURY MINUTES WITH

REQUEST FOR EXTENSION OF TIME

TO MOVE TO DISMISS

Defendant in the above-entitled action

respectfully moves the court as follows:

l. For an order, pursuant to Rule 6(e)

of the Federal Rules of Criminal

Procedure, permitting defendant to inspect

the minutes of the Crand Jucy of the

United States for the Eastern District of

Pennsylvania for all sessions during which

it considered matters leading to the

filing of the indictment herein, and

directing the United States Attorney for

14A

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ILLIA AS id ne AS BG

Br ge ne ia is Bi ae ok Be aid wi

the Eastern District of Pennsylvania

(Seth Weber Esq.) to make availabte to

defendant a copy of the minutes.

2. For an order, pursuant to Rule 45(b)

of the Federal Rules of Criminal Procedure

extending the time within whici Defendant

may move to dismiss the indictment herein

until 15 days after entry of the order

determining this motion.

This motion is made on the grounds that

matters occuring before said grand jury may

constitute grounds for a motion to dismiss

the indictment, and that the extension of

time is necessary to permit the inspection

of such minutes prior to the preparation

and filing of such a motion.

Dated November 7, 1990.

Narciso S. Marilao, Jr.

Defendant

13 John Street, Suite 593

New York, NY 10038

(212) 693-1340

15A

Tei DA 239 ee Se ERP 5 re 02 HTS a! FINED 4 oxy - ra 5 —— . . _ . Be Nh te

FE eee 2

MOTION FOR INSPECTION, REPRODUCTION,

AND COPYING OF THE RECORDS AND PAPERS

IN THE CUSTODY OF THE COURT CUERK

PURSUANT TO 28 USC SEC. 1866 AND SEC.

1867 (a),(d) & (f)

The defendant moves this Court for an

Order permitting him to make discovery of

certain records and facts necessary to the

support of this challenge to the

indictment because of discrimination in

the selection of the grand jury, etc., in

support of the said motion for discovery,

he alleges as follows:

The defendant hereby moves, pursuant to

28 U.S.C. Sec. 1867 (a), (d), (f£), for an

Order directing the Clerk of the Court to

permit the defendant, his attorney or

representative to inspect, reproduce and

copy the contents of records and papers

used by the Cierk of the Court in the

selection process for the Grand Jury which

16A

A Rs te a

oy ere . iy aig grees

s 3 a ye e — = , 7

ety SA a el Sse . Pe TS BX SE A ”

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returned the above entitled indictment and

tne selection procesg for the prospective

petit jury to be summoned for the trial of

the instant case.

The informaton sought by this :notion

1S based on the defendant's information

and understanding of the jury selection

process as provided for in the pl2n for

this federal district, as well as the

information provided by others.

Defendant specifically seeks discovery

OF: records necessary for him to conduct

a statistical study of the jury selection

process at each level of functioning for

this Court.

Defendant moves for the discovery of

the following information and materials:

a. That the Cierk of the Court be

directed to provide defendant with all

information at his disposal concerning

procedures followed in implementing the

17A

PREP Rite tA a

jury plan for this Court. Such information

is to include, but is not to be limited

to, the following:

i.The numbers selected at random

which determine the application of the

guotient for se2lection of names from

the voter registration list according

to the provisions of the jury plan for

this Court, this number to be provided

for all divisions.

ii. The total number of names of

persons 30 selected, drawn from a

master jury wheel in each of the

divisions, ko whom gualification

questionnaires were sent.

11i1.The total number of such

gualification questionnaires which were

returned to the Clerk of the Court as

incapable of being delivered.

lv. The total number of

qualification questionaires d2livered

by the postal service, but not returned

by the recipient.

v. Tne addresses of all those

persons who failed to respond or whose

qualification guestionnaires were

returned as non-deliverable.

vi. Any procedure taken with regard

to those persons who did not respond.

vii.The total namber of juror

gualification questionnair2s not placed

in the qualified jury wheel, and

viii. Other information concerning

18A

the processing of the questionnaires,

excusals, disqualifications, and/or

exemptions.

b. That the Clerk of the Court be directed

to permit inspection, reproduction, and/or

copying by the defendant and his

representatives, of the total number of

juror qualification questionnaires (or,

depending upon the number, some percentage

thereof, to be determined in the future

and selected randomly), which correspond

to the names which have been drawn from

the voter registration lists.

c. That the Cierk of tne Court be

directed to permit defendant and =his

representatives inspection, reproduction

and/or copying of the total number, or a

random sample thereof, of tne juror

qualification questionnaires for the

division, which questionnaires were

received by the Clerk of the Court and

were not ptaced into the qualified jury

wheel, wether because the prospective

juror was disqualified, exempt or excused.

dad. That the Clexk of the Court be

directed to permit defendant and “his

representative inspection, reproduction

and/or copying of the total number of jury

qualification questionnaires for the

division, which questionnaires correspond

tO persons who were initially qualified

for service but did not respond to the

summons for service or were disqualified,

exempted Ox excused, temporarily or

permanently, from actualiy serving or

responding to the summons for jury service.

19A

e. With respect to the matters

described above, defendant mov2s that in

addition to the jury qualification

guestionnaires, ne also de granted

discovery of any and all other documents

Or papers in existence which are relevant

to the determinaton of the juror's status

of those persons contain2d in te above

requested samples. Tnis includes, but is

not limited to ’ lettecs requesting

excusals, orders granting excusals, and

transcripts, or yucy impanelment

procedings at which prospective jurors,

wno are includ2d within the sample were

excused.

f. Defendant further movés that the

Clerk of the Court be directed to permit

inspection, reproduction and/or copying of

all reports made to the Administrative

Office of the Court by the Cierk in

complicance with the reporting requirement

of the Judicial Conference. The jury plan

requires these reports to provide certain

data which is essential to the support of

the defendant's challenges =o the

indictment and includes the following

information:

----general data relating to the master

jury wheel, the time and manuer of name

selection, the source and number of

names placed in the wheel and related

information, an analysis of the race

and sex of prospective jurors based on

returns of 590 juror qualification

forms drawn at random and from the

master jiry wneel, and an analysis by

race, sex and occupation of all persons

who have actually reported for jury

service during the period covered by

the report.

20A

[n addition, the de2flendant turcther

moves that the Clerk be directed to permit

the d2fendant inspection, reproduction

and/or copying of the data constituting

the underlying samples and statistical

compilations upon which these reports are

based.

Defendant further moves that the Clerk

»E the Court ne directed £O permit

defendant inspection, reproduction and/or

copying of the information that forms the

basis of the determination to reply upon

voter registration lists as the exclusive

source of prospective jurors.

Defendant further moves that the Clerk

Of tne Court be directed to permit

defendant inspection, reproduction and/or

copying of the last voter registration list

—

for the division, which lists were actually

the sources of tne names placed in the

present master jury wheel.

With respect to all of the above

information and materials, defendant

requests that the Court permit him or his

counsel to mechanically reproduce or copy

these materials either at the cost of the

Government, or in the alternative, in such

a manner as may be otherwise arranged under

their direct supervision, whichever method

being least costly to the defendant. This

request is made because the defendant's

funds for his defense against those

charges are limited and the cost of

commercial copying would be prohibitive.

Dated November 7, 1990

Respectfully submitted,

NARCISO S. MARILAO, JR.

Defendant

lj. John St., Suite 503,

New York, NY 10038

(212) 693-1340

22A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT COURT OF

PENNSYLVANIA

UNITED STATES OF AMERIZA

vs.

NARCISO S. MARILAO, JR. H

CRIMINAL NO.90-0047-O01

MEMORANDUM OF POINTS AND AUTHORITIES

i. It apppears that the manner and

method Sy which the court that selected

members of the Grand Jury which returned

the indictment against the defendant

Systematically excluded s2gments of the

€ligible population in violation of the

Fifth Amendment to the U.S. Constitution

and Acts of Congress. :

2. The use of voter registration list

as the sole source of names for the master

jury wheel results in substantial

under-representation in the master jury

wheel, in the qualified jury wheel, and in

tne grand jury of certain cognizable

23A

classes, including but not limited to

women, racial, ethnic ad nationality

minorities, people from lower SOC1O-

economic groups and young people.

3. Upon information and belief, the

detendant (therefore) AVETS ttieat the

followiny cognizable classes, amony others

represented wnen their me2mbers withia the

district as shown by statistics of the U.S.

Census Bureau, are compared and contrasted

with the proportional appearance in the

master jury wneel, the qualified jury

whe2l and the grand jucy as finallly

impaneled, to wit:

a. Persons of Mexican origin

b. Persons of other Central and Soutn

American origin

=. Persons of Pailippine origin

d. Persons ot Pacific Islander origin

e. Brown race

f. Urban dwellers

24A

——— ——

g. Young people

h. Persons of low income, as defined

yy the standards of the United States

jovernment

i. Persons who are "daily wage earners"

j}- Blue collar workers

k. Poorly educated persons

l. Conscientious non-voters

m. New residence (persons wno have

resided in the district less than one (1)

year and not more than two (2) years

n. Atheists and agnostics

4. With respect to the foregoing

allegations, precise factual information

ls unavailable without discovery and

inspection of the jury records.

5. Because the defendant has not yet

been able to inspect the jury records, he

is unable to make, at this time, any

precise estimat2s of the extent of the

under-representation of the cognizable

classes. The defendant intends to

Supplement this motion by filing

25A

- ome

RT ABW SSE

affidavits and memoranda of law which will

detail and constitute a specific statement

as to how the defendant's rights have been

violated. This motion places tne matter

of the composition of the grand jury in

this case in issue.

6. Defendant reserves right to bring

challenges if, after discovery of the

materials requested in the application for

inspection of the jucy records, such

additional challenges become appropriate.

7. Defendant is a member of the Class

which had been systematically excluded, it

appears.

8. Upon information and belief,

defendant avecs that certain favorable

treatment, "deals", consideration or other

leniency appear given oF promised to

certain witnesses called for before the

Grand Jury, and it may not have been

informed about them.

26A

Upon bnlLormation aid belicl,

jlefendant allegss that there has been

selective, discriminatory and vindictive

enforcement of the law or prosecution, and

the Circumstance may not have been told to

the Grand Jury.

10.

involve

Since the counts in the indictment

2 complex alleged offenses and

violations, the Grand Jury may not have

recelved proper instruction on this matter.

Authorities

United States v. Gallo, 394 F. Supp.

310,314 (D. Conn. 1975), failure to

appraise grand jury of hegarsay or

perjurious nature of testimony

warrants dismissal of indictment.

United Sates v. DeMarco, 401 F.

Suppo. 505 (C.D. Cal 1975), af£&*d on

Other grounds, 550 F.2d 1244 (9th

Cic. 1977), where prosecutor fails

to alert grand jary to possibility

of malicious prosecution, the

indictment must be dismissed.

Johnson v. Supreme Court, 124 Cal.

Rptr. 32, 539 F.46 732 (1975),

failure to present favorable

evidence befor? a grand jury

mandates dismissal of indictment.

27A

People v. Percy, 45 A.D. 2d 284;

N.Y¥.S.2d 434 (2d Dept.1974), aff’

38 N.Y. 2d 806, 382, N.¥.S.2d 39

(i9735)% holds the girand jury

instructions in a complex case must

be recorded under C.P.L. Section

210.35(5)

People v. Mackey, 371 N.Y.S. 2d 559

(Suffolk Co. Ct. 1975), prosecutor's

Failure to properly instruct grand

jury was a denial of due process.

283A

APPENDIX "F"

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT -OF

PENNSYLVANIA

UNITED STATES OF AMERICA

Ve. :

NARCISO SANTIAGO MARILAO JR $

Defendant

CRIMINAL NO. 90-00473-01

MOTION OF DEFENDANT

NARCISO SANTIAGO MARILAO, JR.

FOR DISMISSAL OF INDICTMENT BASED UPON

UNCONSTITUTIONAL

COMPOSITION OF GRAND JURY

The Defendant, Narciso Santiago

Marilao, Jr., by his undersigned counsel,

Jack 1. Gruenstein, Esquire, moves for the

dismissal of the indictment in this matter

as being illegal, * void and

unconstitutional on the following grounds:

1.The array of Grand Jary was not

selected, drawned or summoned in

accordance with law and the constitution

and is not representative of the community

from which it was impanelled.

2. The method of selection of the Grand

29A

Jury which sat on the case did not produce

an impartial jury drawn from a cross-

section of the community and, therefore

denied the Defendant the right secured to

him by the Fifth, Sixth and Fourteenth

Amendment:is to the Constitution of the

United States.

3. The composition of the Grand Jary,

because it was not an impartial jury drawn

from a cross-section of the community,

denied the Defendant the rights secured to

him by the Fifth, Sixth and Fourteenth

Amendments to the Constitution of the

Jnited States.

4. The plan for the Random Selection of

Grand Jury and petit Jurors of 1958 for

the Eastern District of Pennsylvania, as

amended, is unconstitutional. The use of

the voter registration lists as the only

source list of the prospective jurors is

violative of die process and equal

protection of the law as guaranteed by the

30A

Fourteenth Amendment of the U.S.

Constitution, because voter registration

lists, anony others, over-represent men,

older people, higher educat2d people and

wealthier people, and systematically

exclude and/or substantially underrepresent

women, racial, national origin, ethnic or

religious minorities such as Orientals

(including Filipinos) and Hispanics, young

people (ages 15-29), poor people with low

paying jobs, and the unemployed.

5. The granting of automatic exemptions

to m2mbers of the fire and police

departments, U.S. Armed Forc2s in active

service, public officers, and the excuse

from jury service on request of persons

over 70 years old, practicing lawyers,

physicians, dentists, clergy or actively

engaged members of religious orders and

volunteer safety personnel violates the

above stated clauses of the United States

Constitution.

31A

WHEREFORE, the Defendant prays the Court

to dismiss the indictment in this case.

Respectfully submitted,

JACK L. GRUENSTEIN, ESQUIRE

Suite 800 ;

One East Penn Square

Juniper and Market Streets

Philadeiphia, PA 19107

(215) 564-1575

Attorney for Defendant

Narciso Santiago Marilao; Jr.

Nated: March 21, 1991

32A

APPENDIX "G"

28 USCS Sec. 1867

Sec. 1867. Challenging compliance with selection

mrocedures

a) In criminal cases, before the voir dire

examinations begins, or within seven days after the

defendant discovered or could have discovered, by

the exercise of diligence, the grounds therefore,

whichever is earlier , the defendant may move to

dismiss the indictment oor stay the proceedings

against him on the ground of substantial failure to

comply with the provisions of this title in

. selecting the grand or petit jury.

b) In criminal cases, before the voir dire

examinations begins, or within seven days after

the Attorney General of the United States

discovered or could have discovered, by the

exercise of diligence, the grounds therefore,

whichever is earlier, the Attorney General may move

to dismiss the indictment or stay the proceedings

on the ground of substantial failure to camply with

the provisions of this title in selecting the grand

Or petit jury.

33A

ee fr, a eae ee el

c) In civil cases, before the voir dire examination

begins, or within seven days after the party

discovered or could have discovered, by the

exercise of diligence, the grounds therefore,

whichever is earlier, any party may move to Stay

the proceedings on the grouid of substantial

failure to comply with the provisions of this title

in selecting the petit jury.

d) Upon motion filed under subsection (a), (b). or

of facts which, if true, would constitute a

substantial failure to comply with the provisions

of this title, the moving party shall be entitled

to present in support of such motion the testimony

of the jury commision or clerk, Jif available, any

relevant records and papers not public or otherwise

available used by the jury commisioner or clerk,

and any other relevant evidence. If the court

determines that there has been a substantial

failure to comply with the provisions of this

title in selecting the grand jury, the court shall

stay the proceedinys pending the selection of a

grand jury in conformity with this title or dismiss

34A

the indictment, whichever is appropriate. If the

court determines that there has been a substantial

failure to comply with the provisions of this

title in selecting the petit jury, the court shall

stay the proceedings pending the selection of a

petit jury in conformity with this title.

e) Tae procedures prescribed by this section shall

be the exclusive means by which a person accused of

a Federal crime, the Attorney General of the

United States oct a party in a civil case may

challenge any jury on the ground that such jury was

not selected in conformity with the provisions of

this ae. Nothing in this section shall preclude

any person or the United States from pursuing any

other remedy, civil or criminal, , which may be

available for the vindication or enforcement of any

law prohibiting discrimination on account of race,

color, religion, sex, national origin or econamic

status in the selection of persons for service on

grand or petit juries.

£) The contents of records or papers used by the

jury commission or clerk in connection with the

jury selection process shall not be disclosed,

35A

except pursuant to the district court plan or as

may be necessary in the preparation or presentation

of a motion under subsection (a), (b), or €) of

this section, until after the master jury wheel

has been enptied and refilled pursuant to section

1863(b)(4) of this title, and all persons selected

to serve as jurors before the master wheel was

emptied have completid such service. The parties

in a case shall be allowed to inspect, reproduce,

or copy such records or papers at all reasonable

times during the preparation and pendency of such a

motion. Any person who discloses the contents of

any record or paper in violation of this subsection

may be fined not more than $1,090 or imprisoned

not more than one year or both.

(June 25, 1948, ch 645 Sec. 1, 62 Stat. 953: Sept.

2, 1957, P.L. 85259, 71 Stat. 583; Mar. 27, 1968,

P.L. 90-274, Sec.101, 82 Stat. 59.)

36A

APPENDIX "H"

Rule 32 Federal Rules Of Criminal Procedure

c} Presentence Investigation.

1) Wnen Made. A probation officer shall make a

presentence investigation and report to the court

before the imposition of sentence unless the court

finds that there is in the recoicd information

sufficient to enable the meaningful exercise of

sentencing authority pursuant to 18 USC 3553, and

the court explains this finding on the record.

Except with the written consent of the defendant,

the report shall not be submitted to the court or

‘its contents disclosed to anyone unless. the

defendant has pleaded guilty oi nolocontendere or

has been found guilty.

2) R2port. Tne report of the presentence

investigation eal contain —

A) information about the history = and

Characteristics of the defendant, including

prior criminal record, if any, financial

condition, and any circumstances affecting the

defendant's behavior that may be helpful in

37A

imposing sentence or in the correctional

treatment of the defendant.

B) the classification of the offense and of the

defendant under the categories established by

the Sentencing Commision pursuant to section

994(a) of title 28, that the probaton officer

believes to be avplicable to the defendant's

case; the kinds of sentence and the sentencing

range suggested for such a category of offense

committed by such a category of defendant as

set forth in the guidelines issued by the

Sentencing Commision pursuant ‘to 28 USC

994(a)(1); and an explanation by the probation

officer of any factors that may indicate that a

sentence of a different kind.or of a different

length from one within the applicable guideline

would be more appropriate under atl tne

circumstances;

C) any pertinent policy statement issued by the

Sentencing Commision pursuant to 28 USC

994(a)(2);

D) verified information stated in a

nonargumentative style containing an

38A

assessment of the financial, social,

psychological, and medical impact upon, and

cost to, any individual against whom the

offense has been committed;

E) unless the court o-ders otherwise,

information concerning the nature and extent of

nonprison programs and resources available for

the defendant; and

F) such other information as may be required by

the court.

3) Disclosure.

A) At least 1) days before imposing sentence,

unless this minimum period is waived by the

defendant, the couct shall provide’ the

defendant and the defendant's counsel with a

copy of the report of the presentence

investigation, including the information

required by subdivision (c)(2) but not including

any final recommendation as to sentence, and not

to the extent that in the opinion of the court

the report contains diagnostic opinions, which

if disclosed, might seriously disrupt a program

Of rehabilitation; or sources of information

39A

obtained upon a promise of confidentiality; or

any other information which, if disclosed, might

result in harm, ohysical or otherwise, to the

defendant or other persons. The court shall

afford the defendant and the defendant's counsel

an opportunity to camment on the report and, in

the discretion of the court, to introduce

testimony or other information relating to any

alleged factual inaccuaracy contained in it.

B) If the court is of the view that there is

information in the piesentence report which

should not be disclosed under subdivision

(c)(3)(A) of this rule, the court in lieu of

making the report or part thereof available

shall state orally or in writing a summary of

the factual information contained therein to be

relied on in determining sentence, and snall

give the defendant and the defendant's counsel

an opportunity to comment thereon. The

statement may be made to the parties in camera.

C) Any material which may be disclosed to the

defendant and the defendant's counsel shall be

disclosed to the attorney for the government.

40A

Set eae

D) If the comments of the defendant and the

defendant's ccounse1 or testimony or other

information introduced by them allege any

factual inaccuracy in the presentence

investigation report ox the summary of the

report or part thereof, the court shall, as to

each matter controverted, make (i) a finding as

to the allegation, or (ii) a determination that

no such finding is necessary because the

matter controverted will not be taken into

account in sentencing. A written record of such

findings and determinations shall be appended

to and accompany any copy o* the presentence

investigation report thereafter made, available

ot the Bureau of Prisons.

E) The reports of studies aid recommendations

contained therein made by the Director of the

Bureau of Prisons pursuant to 18 USC Sec.3552(b)

shall be considered a presentence investigation

within the meaning of subdivision (c) (3) of

this rule.

F) (Redesignated)

41A

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.