United States v. Nicholas Marino

judgment merit. are without is affirmed. court district STATES of America UNITED MARINO, Appellant.

Nicholas

No. 87-5339. Appeals,

United States Court of

Third Circuit.

Argued Oct. 1987.

Decided Dec. 1987. 2,May Granted 1988.

Certiorari and On from

Vacated Remand

Supreme Court of 2,May States 1988.

United 12(6) Under Rule

Submitted

Sept. 1988.

Decided Feb. Washor, (argued), Washor

Michael S. Washor, City, Greenberg York New appellant. P. (argued), Samuel Daniel Gibbons Chief, Div., Appeals Attor- Moulthrop, Newark, Office, N.J., appellee. ney’s HIGGINBOTHAM, SCIRICA Before GARTH, Judges. Circuit OF THE COURT OPINION SCIRICA, Judge. Circuit is before us on remand This case fur- Court for in consideration of Mathews v. that were “usable” and that had not ther been States, reported App. stolen. at 763a. Marino Swirsky “might help L.Ed.2d 54 We will affirm Mari- told that he be able to (1) given [Swirsky] no’s the evi out with conviction what wanted.” [he] App. dence of at at 758a-59a. trial, entitled to an instruction on he is not thereafter, Shortly telephone in a conver- entrapment under the standard enunciated FBI, taped by Swirsky sation told Mari- (2) in and Marino has asserted $340,000 no that he had to invest for one that he has no additional evi unequivocally App. million dollars worth of bonds. at present to that would dence of During conversation, Swirsky 764a. proffer hearing,

justify remand for Unit Blake,” referred to himself as “Mr. an alias Bay, ed States Swirsky suggested said was 1988). keep “to the transaction as nebulous as possible.” App. Swirsky at 763a. and

I. hotel, arranged Marino then to meet at a they proposed where discussed the transac- practicing Nicholas tax attor- tion. Swirsky When asked whether Marino ney, conspiring to trans- was convicted brought securities, had Marino told port in stolen securities interstate com- Swirsky to him to follow his law office. receiving, selling dispos- merce and of According Swirsky, upon arriving to at ing moving of stolen securities in interstate office, Swirsky Marino’s Marino asked to of 18 commerce violation U.S.C. §§ clothes, presumably remove his to check government’s 2 and 371. Central to the body Swirsky him for wires. After re- testimony Swirsky, of Morton case was shirt, jacket moved his Marino left the participated who had the bond transac- someone, briefly speak room to with then that led to Marino’s conviction. Un- tions dressed, Swirsky get told to and informed Marino, Swirsky acting as a known to him that he would find “what wanted” government informant at the time [he] that he Swirsky under the seat of his car. re- arranged buy stolen to securities $25,- eight turned to his car and discovered Marino. municipal bonds under the front seat. . Swirsky Morton had been arrested App. at 769a-70a.1 possession agreed of stolen securities and cooperate government by Swirsky municipal with the work- delivered the bonds to ing agents for the Federal Bureau of FBI undercover who examined the bonds and Investigation. Swirsky questioned The FBI they instructed whether were authentic. attempt purchase App. Consequently, Swirsky additional stolen at 772a. re- comply, Swirsky sought aid in turned the him bonds. To bonds to Marino and told later, they unacceptable. A finding days stolen securities from stock bro- were few ker, Swirsky Swirsky told North that Marino tell him Paul North. called that he buying “deep something requested for him he was interested dis- had bonds, Swirsky App. They again described at meet. at 780a-81a. count” hotel, sold at a substantial discount met at a where Marino offered trial as bonds Swir- original price. App. sky at 755a. ten Federal Home Loan Bonds of their with a $100,000 Swirsky North then introduced to Marino. face value each.2 The two $350,000 price Swirsky help buy Marino to him worked out a sale for the asked bonds, “deep payment requested of which Marino discount” bonds for clients with denomination, large Swirsky nonsequential in small amounts of to invest. bills. cash specified App. According Swirsky, 795a. buy bonds at Mari- wanted $975,000 municipal provide 1. bearer bonds Marino was able to bonds to Sliker, sell. Marino could because an who individual named Jack $110,000, partner owed Marino and his law of- fered Marino securities for resale in order to Marino had also obtained these bonds from pay Specifically, his debt. Sliker had offered Sliker. Federal Home Loan all his evidence on gave him one of the trial and “check with him in order to Bonds to take that remand was not Bay reported it was stolen it out to see whether inapplicable. Swirsky took the App. not.” at 781a. day next met Marino to ob-

bond and the II. delivery of the other nine bonds. Mar- tain Before the Court’s decision Swirsky. produced ino four bonds 58, States, 485 U.S. Mathews v. United Swirsky inquired as to the other five When 883, (1988), 99 L.Ed.2d 54 S.Ct. the 108 bonds, gave Swirsky keys the to his Marino prevailing law the defendant to in car and told him that the bonds were the admit all the elements of the offense be- glove compartment. Swirsky retrieved the charge entrap- fore was entitled to a on App. and delivered them to the FBI. bonds See, Hill, ment. e.g., United v. 655 at 799a. When met Marino the (3d Cir.1981). Mathews, F.2d 512 In the bonds, following day pay the for Supreme Court held that a defendant could trial, requested At was arrested. assert defenses and could Following instruction. inconsistent an evidence, properly request jury instruction on en- rejected close of the district court trapment admitting without all the ele- request ground that Marino had knowing crime. denied that the bonds were stolen ments of the 108 S.Ct. at 887. properly and therefore could not claim that valid defense has “[A] entrapped. he had been two related elements: induce jury ap- Marino was convicted crime, predisposi ment of the and a lack of conviction, pealed. We affirmed Marino’s part engage tion on the of the defendant to relying in on “well settled federal law this in criminal conduct.” at Id. 886. We held an circuit that a defendant not contest El-Gawli, in United States v. offense and still essential element — (3d Cir.), denied, U.S. -, cert. 109 entrapment.” claim the defense of United 55, (1988), 102 L.Ed.2d 34 S.Ct. 87-5339, memo-op. No. States v. “ ‘[entrapment occurs when a defendant (3d 23, 1987) (unpublished). Cir. Dec. predisposed was not who to commit the (table) F.2d 463 Because Marino did [838 ] govern crime does so as a result of the stolen, knowing not admit the bonds were ” (quoting ment’s inducement.’ Id. at 145 offense, an essential element of the we Jannotti, 578, v. 673 F.2d United States affirmed district court’s refusal to in- (3d Cir.), 1106, 597 struct the on 2906, (1982)). 73 L.Ed.2d 1315 In S.Ct. petitioned of certiorari. writ must decide whether Marino we — 2, 1988, -, May On U.S. S.Ct. produced sufficient of induce require jury charge entrapm on ment to writ, granted judgment, vacated the ent.3 the case to this court for and remanded El-Gawli, approved In the tri we light v. further consideration Mathews States, judge’s al instruction that “[a] approach by request or law enforcement remand, we re- 99 L.Ed.2d 54 On engage activity, in criminal officials to quested supplemental briefing alone, standing is not an inducement.” Id. Bay, Mathews Cir.1988). approved trial court’s at 149. We also supplemental F.2d 702 In his brief, inducement to include the fol- Marino stated that he had definition of inducement, defense, produce sufficient evidence of 3. To make an Marino must produce inducement and non- both his evidence of we therefore need not consider El-Gawli, predisposition to commit the crime. non-predisposition to sell stolen securities. Consequently, F.2d at if the defendant Rodriguez, also United States produce does not ment, sufficient evidence of induce- (1st Cir.1988) (initial showing entrap- on non-predisposition his evidence of alone some evidence on each of two ment necessitates entrapment charge. would not warrant an Cf. defense). prongs of holding id. 147. Given our that Marino did opportunity or facilities for represen- afforded an lowing: “persuasion, fraudulent would be tactics, the commission of crime tation, threats, harass- coercive instruc- to warrant such an insufficient pleas ment, reward or based promises of Id. tion. friendship.”4 need, sympathy El-Gawli inducement defined Bay, noted that at 888.5 This mere solicitation. Supreme Court in Mathews held more than mean that a Mathews, mirrored standard is entrapment de- is entitled to an stated: Supreme Court exists from sufficient evidence fense when entrap- find a reasonable could alterna- which contends

The Government jury, A reasonable ment. 852 F.2d at 704. affirming judgment basis tive however, find inducement under in- could not at trial was the evidence below forth Mathews standards set support an instruction sufficient Of course mere evidence of solicita- the defense agents.6 by government agents merely tion prove beyond prosecution a reason- list was exem- that this We noted in El-Gawli en- the defendant was not jury able doubt that as a “finite plary, presented to the and not trapped. at 150. group possibilities.” 837 F.2d of Indeed, El-Gawli, point- we F.2d at 145. 837 approach "distinct from the out that our was ed Court decided 5. In approach’ adopted ... the Second ‘bifurcated Circuit,” him- could avail defendant whether a criminal rejected we because a standard which not The Court was defenses. self of inconsistent disapproval it of the fact that of "our quantum of evidence required to decide the a substantial burden the defendant to shoulder charge entrap- jury warrant a sufficient to making As defense.” Id. at 145-46. we Nevertheless, follow believe we must we ment. noted, approved trial court’s have El-Gawli suggestion what con- as to Court’s the Mathews solicitation, request, or that "[a] instruction entrapment for an stitutes sufficient evidence approach enforcement officials to en- law charge. alone, activity, standing gage is not in criminal 149, inducement,” fol- id. at and stated the an decision in United this court's 6. Marino cites lowing: Cir.1973), (3d F.2d 504 States v. 489 accurately sum this statement hold that [W]e govern proposition evidence of that mere of inducement. We marizes the definition entrap to take the initiation is sufficient ment jurisdictions besides the at least two note that adopted jury. to the ment defense Columbia, Appeals the District of Court of 489 the Second Circuit. test" from "workable charge, employ part of the which authored Riley, (citing 363 States v. United F.2d 509 Barry, principles. States v. See United similar 1966)). 955, Riley, In Cir. F.2d 958-59 1400, (9th Cir.1987) (“In n. 2 814 F.2d 1402 "goes inducement Circuit stated that Second sugges requires than mere more ducement simply initiation the Government’s government agent.’’) by a tion of solicitation degree pressure exert to the of crime and not omitted); Velasquez, (citation United States v. Under the "bifur Riley, F.2d at 958. ed." 363 104, 1986) (evidence (4th of 106 Cir. 802 F.2d proof split of approach” burden cated —the even insufficient to meet mere solicitation Riley entrapment adopted standard —this coming forth with more burden of minimal justified the de have been well of induce scintilla of evidence than a proof on induce fendant bore the burden ment) .... However, unitary approach under the ment. omitted). (footnote F.2d at 149 837 Jannotti, F.2d v. 729 enunciated in United States of the term "solicita- Whatever the content 880, 213, denied, (3d Cir.), 105 469 224 cert. tion,” entrapment con- evident that in the it is El-Gawli, 243, (1984), and 182 text, standing of mere solicitation evidence pro burden of carries the the defendant being This constitute inducement. alone cannot so, El-Gawli, held: duction on the defense. more, can- without entrap- an jurisprudence, to make Under our the issue of support instruction on forward must come ment a defendant precedential defense whatever to both inducement with some evidence as viability has been Watson where non-predisposition. After the defendant initiated the that the Government introduced may showing, (however burden of which is a "initiated” be has the term made this crime construed), has the bur- decreed that in production, then has now Circuit, others, of mere solic- beyond doubt proving a reasonable this itation, den of law, germane is not to the entrap This as a matter the defendant. that it did not unitary ap- jury’s determination the so-called court thus follows Indeed, Riley rejected many courts have proach, whereby after on the view that based showing, definition of inducement original falls the burden made his

553 instruction); Burkley, appeals require courts of some Other 591 903, (D.C.Cir.1978) (trial F.2d thing judge more than mere solicitation before give entrapment must if find a defendant entitled to an there foundation in United charge. example, For the evidence that he induced, (1st persua was i.e. that there Rodriguez, v. F.2d existed States Cir. sion, representations, threats, 1988), fraudulent Appeals the Court of for the First tactics, harassment, promises coercive that, although bright-line Circuit noted reward, pleas need, based on or other quantum proof rule existed as to the government conduct that would create the necessary entrapment to warrant causing risk of non-predis otherwise charge, the threshold is not overcome offense), posed person to commit the showing byor defen of mere solicitation 1516, conclusory self-serving state dant’s (1979); United States v. Chris L.Ed.2d 782 Id. at 812-13. also United ments. (9th topher, Cir.1973) 488 F.2d 850-51 Luce, (1st States v. F.2d (lone government agent fact that initially 1984) (evidence that defendant must show provided opportu contacted defendant and “unready” to commit the offense or nity for enough commission of crime not “corrupted” by government require instruction); agents defense before Bradley, (7th 426 F.2d United States v. Velas jury); submitted to Cir.1970)(mere opportunities for defendant (4th Cir.1986) quez, (evi to violate law if he were so inclined insuffi enough dence solicitation not show require cient evidence of inducement to en inducement and thus make instruction). trapment holding Our is con Ortiz, v. United States jury); opinions. sistent with these 1161, (10th Cir.1986) (trial 804 F.2d judge refusing give entrap did not err in to III. ment instruction when evidence revealed In this Marino asserts that he solicited, only government agent re entrapped by Swirsky Swirsky was because quested, approached or the defendant to “by to induced Marino commit the crime conduct); United States engage in criminal ruse, representations; sham and false [that Andrews, v. 1491, (11th 765 F.2d bait, Swirsky cajole acted lure and to] 1985) (defendant seeking to raise beguile into the transactions and [Marino] govern ment defense must show that “the Ap into the commission a crime.” [him] ment’s conduct created a substantial risk pellant’s Supp. particular, Brief at 6. by that the offense would be committed a argues Marino that he was “lured” into it”; person ready other than one to commit committing the crime because he did not defendant need demonstrate an element of that the stolen. know bonds were coercion), persuasion or mild 1064, 106 assertions, Contrary to Marino’s how- Parr, (1986); ever, any 716 F.2d the record is devoid of evidence (initial (11th Cir.1983) approach by Swirsky induced Marino to sell him require entrapment does not stolen securities. Marino initiated tele- " trapment] ‘solicitation itself is not the kind of conduct We instruction.” 108 S.Ct. at 888. persuade per that would an otherwise innocent think that the distinction drawn the dissent government "facilitating” son to commit a crime.’" United States v. Burk between the the crime law, (D.C.Cir.1978) (quoting ley, by providing 591 F.2d the means to violate the DeVore, government "initiating" by provid- United States the crime (4th Cir.1970)). comprehensive critique ing opportunity For a the initial for criminal behav- standard, ior, Dissent, Riley Burkley, see is 591 F.2d at see at 556 n. a distinction Although 910-14. without a difference. both devel- "inducement," Finally, challenges op we note that the dissent into neither alone constitutes meaning” Consequently, the "broad we have attributed to the inducement. we believe that the language in in which the Court stated standard enunciated in El-Gawli and the lan- agents merely guage suggesting the that "evidence that afforded an in Mathews amount opportunity necessary entrapment charge or facilities for for an the commission of a crime be to [an would insufficient warrant en- controls in this case. request an Swirsky denied

phone to returned Swir- Marino’s calls trial consummate the securities after the had ended. sky’s calls 758a, 763a, 780a, App. at 1270-72. Both Marino and the App. at transactions. 789a, suggested presented all He had their evi- and 791a. also 790a pre-trial places ruling dence meeting discuss Swir- without hotels App. at limited the admission of evi- 791a-92a. have sky’s proposal. supporting or dence an defense. reluctance enter into exhibited no Indeed, Swirsky. unequivocally Marino has asserted complete transactions with Bay hearing inapplicable Moreover, no that a is evidence that Swir- there on persua- he all his evidence sky pressured Marino means of sion, representation, at trial that on the basis that evi- harass- fraudulent dence, threats, tactics, should find that he entitled ment, promises of coercive entrapment jury charge. reward, on We do not pleas based need. agree Marino was entitled en- opportunity to an merely offered trapment instruction. commit the offense. argument We will not remand the case for new

Finally, Marino’s judge trial because the trial did not err in commission the offense be- “lured” into refusing give entrapment charge; unaware the bonds were cause he was Marino’s insuf- merit. Whether knew inducement wa3 stolen lacks charge. ficient such stolen relates to intent to to have warranted the bonds were proffer hearing illegal It on Remand for a act.7 does bear would commit futile; us these Marino has assured that he has was induced to sell whether Marino Accordingly, we find that Mari- additional evidence securities. Marino’s of mere we will affirm conviction.

no’s without more, induce- is insufficient evidence of HIGGINBOTHAM, Jr., A. LEON jury charge in this justified ment to have dissenting: Judge, Circuit correctly court refused to case. The trial instruct the I am unconvinced that affirmance of on this is the Marino’s conviction record IV. majority’s proper course. The decision to holding Bay, departure in affirm—in errant from the our we must also Under procedures of operating can internal this Court whether defendant show consider predicated upon —is the conclusion that a that have adduced sufficient evi- he could given prior this Court has entrapment had he been decision of been over- dence on subsequent sub silentio ruled a opportunity to do so. 852 F.2d at 705. decision panel a I do preclud- a of this Court. not believe defendant was Before procedurally that be correct either presenting evidence on result to ed from and, substantively accordingly, I all the of the dissent. if he to admit elements failed Therefore, Bay held in a we that offense. opinion I the author of Court’s hearing entitled to a limited defendant court’s affirming the district determination could on remand to determine whether he that, did not admit to re- produce evidence to warrant sufficient ceiving knowingly, stolen bonds he was district jury charge on if the of entrapment. an instruction entitled to entrap- ruling, rejecting an pre-trial court’s Marino, 87-5339, United States v. No. See instruction, precluded have 23, 1987), op. (3d slip Cir. Dec. at [838 sup- introducing defendant remanded, (table)] vacated and F.2d 463 Id. porting entrapment instruction. — -, 108 S.Ct. U.S. (1988). at which it was At the time distin- of this case The circumstances cor- Here, entered, court’s decision guish the district Bay. court it from district immunity grant trial, he was that know testified under 7. At Marino testified that he did not stolen because of the aware the bonds were were stolen. that the bonds he sold However, price by Sliker. partner Stanley low offered Gulkin Marino’s law applied the control would consider a in rectly interpreted and verdict favor of the ling precedent of this Circuit. See United be, defendant when the accused (3d 1981); Hill, 655 F.2d 512 (1) shows evidence that the Govern- Jannotti, 673 F.2d 578 States v. crime, regardless ment initiated the Cir.), denied, 457 102 S.Ct. U.S. pressure applied the amount to the (1982). L.Ed.2d 1315 The district defendant, (2) negat- any concluded, law, court matter as a ing propensity the defendant’s to com- because of Marino’s alternate theories of mit the crime. defense, entrap he was not entitled to the Watson, added). 489 F.2d at (emphases predicate ment instruction. It did not its Moreover, this Court noted in Watson grounds and the conclusion on alternate “determining] in whether [the decision that it entered makes no reference entitled to an charge.... we sufficiency is] evaluation of the testimony must resolve all conflicts in entrapment presented by evidence of Mari- Marino, No. favor of the defendant no. See United States v. ... no matter how 86-36, (D.N.J. 22, 1987); slip op. Apr. improbable may find the defense ver- also, see United States v. No. (citation sion of the facts.” Id. at 507 86-36, Proceedings 12-14 Transcript of at omitted). I good read Watson law for (D.N.J. 29, 1986) Sept. (transcript charg applicable this Circuit and to this case. conference), ing reprinted Appellant’s majority opinion The implies that Watson Appendix at 1270-72. The longer precedent is no viable for our cir applied instructed us has now view majority suggests cuit. The that Watson this Court Hill and Jannotti and upon theory relied that has been over our affirmance of Marino’s conviction is ruled opinion Court’s more recent States, incorrect. See Mathews v. United El-Gawli, 99 L.Ed.2d 54 — (3d Cir.) -, cert. denied (1988). Because that view was the 55, 102 maj. L.Ed.2d 34 decision, I basis for the district court’s (“[t]hus, precedential 552 n. 6 whatever the would remand for the district court to de viability of where the evidence has termine whether the evidence of introduced that the Government initi been ment entitled Marino to a (however the crime the term ated ‘initiated’ on that defense.1 construed), has now de majority incorrectly reached its Circuit, others, in this as in creed predicated upon conclusion affirm its evidence mere as a matter of quantum own evaluation of the of the evi- law, germane jury’s is not to the determi entrapment presented. dence of That con- entrapment”). nation That conclusion is clusion is inconsistent with this Court’s de- wholly proce inconsistent with the internal cision in United States v. (3d Cir.1973) provide 504 which held that dures of our Court which that sitting the Court overrule the charge entrapment] in banc be must

[t]he [of given, judge prior panel however the decision of a of our unreasonable Court.2 Operating 1. The of whether this case should be 2. See Internal Procedures of the Unit- Circuit, remanded to the district court for its determina- Appeals ed States Court of for the Third sufficiency support tion of the of the evidence in 8(C) Chapter [Heáring Rehearing In Banc]. entrapment, of a instruction of or that the explicitly Our rules state that judgment of conviction should be reversed for a reported is the tradition of this court that [i]t instruction, faulty is a close one. The evi- opinions binding panel subsequent are presented by government dence Marino that the panels. subsequent panel no overrules a activity initiated the contact for criminal and published opinion previous panel. Court of predisposed that he was not to commit a crime in banc consideration is to overrule suggests entrapment that an instruction should published opinion of this court. However, given. light have been of the fact added). 8(C) Chapter (emphasis IOP that the district court never evaluated the suffi- ciency entrapment, of the of I evidence would prefer remand.

556 and, Moreover, that such I presented the evidence read conclusion El-Gawli substantively incor- Court, is precedent overruled Watson applicable the of this that rect. is sufficient meet the to threshold requisite charge entrapment. for a of no reference at all makes Engler, does it the United States and address neither for when a Cir.1986) (“[t]o standard enunciated Watson be entitled to entrapment is to an entitled circuit, charge in this ‘a defendant Indeed, not ad- charge. El-Gawli does present must first evidence both that the entrapment the issue the dress of when government initiated crime and the ... that charge given should context. predis the defendant was otherwise not only the That decision concerned sufficien- ”), denied, posed to commit the crime.’ cert. given in that cy charge of the that was S.Ct. L.Ed.2d had to case in of what the defendant See also United States v. demonstrate in order succeed (3d Cir.) Gambino, (“to F.2d of It did not address defense charge, be entitled to an a de given charge the should have been whether present first fendant must evidence that the of which is focus Watson. crime, government regard the initiated the present In Marino the pressure applied, less the amount of of agent, evidence that the Swir- and the otherwise that defendant was not par- sky, initiated the contact Marino’s crime”) predisposed (empha to commit the enterprise. ticipation in the illicit added), sis his and also offered evidence of character (1986). Significant 93 L.Ed.2d 49 testimony concerning attempts verify his ly, “[ojnce Engler, we noted that the legitimacy the and the bonds securities evidence, proffered defendant has such the argued demonstrated a lack of which burd,en dis shifts activity. ma- predisposition to criminal The prove the elements de in the trial jority cites evidence record that beyond reasonable doubt.” En Marino’s evidence. counter-balances See fense added). gler, (emphasis F.2d at 428 On maj. (noting that record, prof the inconsistencies telephone “initiated calls and Swirsky’s calls to consummate returned fered evidence—no matter how the securities transactions” that Mari- suggests that the views that dis evidence— suggested meeting places). The fact court, position trict in a better government presented evidence, than this Court to evaluate the that, despite showed its initiation opportunity should have the on remand to contact with in- entrapment charge determine whether an however, activity, clined to criminal does was warranted. not to a not mean Marino was entitled view, my majority reads also too jury instruction majority sug- The much into Mathews. quantum arguendo I concede that the gests negates that decision majority weighs evidence referenced and makes the standard for entitlement to favor conclusion Marino was more strict. that, entrapped juror, I as a would however, upon clear focus persuaded not have been that Marino’s evi- proffer of inconsistent theories de- pre- him to dence was sufficient to enable entrapment, fense—not on elements inquiry, on that That how- vail defense. majority’s suggestion that the Su- ever, disposition is not to our relevant preme regarding dicta the Court’s stan- appeal. inquiry relevant is wheth- The entrapment charge dard for an overrules showing the er Marino has made a of or constrains the decision government initiated the contact and case, present maj. Court in the see lack criminal predisposition he had a simply F.2d at Marino n. is without merit.3 conduct. 509. Moreover, by majority appears dicta in to me inac- the manner the reads the Mathews presented it subsequent history of Mathews and further to make the The self, although certainly dispositive early ruling determination of whether his case, present perhaps pro anything in the presenting deterred the defendant from ev- guidance. Af vides the most informative present- idence he otherwise have conviction, vacating the defendant’s the ter ed.”) remanded to the Court of Court present I believe that the case is also a to consider the suffi Appeals for that court requires case that remand. We did not The noted ciency of the evidence. pretermit sufficiency the issue of the of the “pretermitted had been that that the district court did not Appeals, open and it by the Court of will be reach that issue—even dicta—in its hold- by for consideration that court on remand.” doubt, ing. approach No the by taken the Mathews, present unlike in the Id. In majority appellate make it easier for will compelling there was a reason to consider dispose judges completely by of matters sufficiency of the evidence the issue appellate fact-finding. As this case demon- previously because the had strates, however, approach the blurs challenged sufficiency the of the evidence fundamental distinction that exists between the district court to the district court and role the district the court and the re- had indicated that it had found the evidence sponsibility appellate my review. Mathews, thin. view, majority opinion intrudes too far (“District S.Ct. at 886 Court noted that upon province of the district court ‘shaky which is to evaluate the evidence ”). Despite indicating only a record best.’ in the and determine first instance whether however, slight entrapment, evidence of instruction is warranted. For that appellate court nonetheless remanded reason, respectfully I dissent. the district court for its reconsideration sufficiency of the evidence of of the

ment, rather than enter conviction based Mathews,

upon its own evaluation. U.S. v. (7th Cir.1988)(Table of Deci Opinions).

sions Without Published Cf. Graham, United States (6th Cir.1988)(vacating a conviction noting of Mathews “[w]hile

we would be inclined to find that there was

insufficient evidence warrant ... [en

trapment] instruction ... the district court position in a much better than we are to sufficiency

evaluate the of the evidence activity. Certainly, majority paragraph criminal both initi- curate. opinion In the final ment in Mathews, ques- the Court noted that "[t]he to the ation and facilitation are relevant basis Government contends as an alternative in fact tion of whether a criminal defendant was affirming judgment below that the evidence substantively entrapped, but are different. support an instruc- at trial was insufficient evidence, former, gives supporting rise with Mathews, entrapment.” tion on the defense presumption was not to a that the defendant The Court then noted that 108 S.Ct. at 888. requires predisposed to commit a crime which government agents course evidence that "[o]f merely reason, government. by rebuttal For that opportunity or afforded an facilities rule that evidence Court has enunciated the our of the crime would be insuffi- the commission government, together by with of initiation To warrant such an instruction.” Id. cient to predisposition to crim- other evidence of lack of mind, my this statement does not have activity, to warrant a inal are sufficient majority. meaning attributed to it broad has not been called into instruction. That test only the instance in which a crimi- It addresses and, even I read the dicta in doubt govern- that the nal defendant has demonstrated controlling be read accu- it would not if it were a crime "facilitated” the commission of rately require the district that the decision providing It does not address the the means. grant which, court to alleges, instance in as Marino as error. case be reversed record of this initiated the contact for involve-

Case Details

Case Name: United States v. Nicholas Marino

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 23, 1989

Citation: 868 F.2d 549

Docket Number: 18-1041

Court Abbreviation: 3rd Cir.