NICHOLAS MARINO, PETITIONER V. UNITED STATES OF AMERICA

   No. 87-1414

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Third Circuit

   Memorandum for the United States

   Petitioner argues that he was entitled to an entrapment instruction
at trial, and that he is entitled to a new trial because the jury was
exposed to extra-record material.

   1. Following a jury trial in the United States District Court for
the District of New Jersey, petitioner was convicted of conspiracy to
deal in stolen securities, in violation of 18 U.S.C. 371, and the
substantive offense of disposing of stolen securities, in violation of
18 U.S.C. 2315.  He was sentenced to concurrent terms of 18 months'
imprisonment and a fine of $5,000.  The court of appeals affirmed.

   The evidence at trial showed that petitioner, a practicing
attorney, was owed $110,000 by Jack Sliker.  To reduce the debt,
Sliker gave petitioner $1,000,000 in stolen bonds.  Petitioner
delivered the bonds to Morton Swirsky, a government informant, and was
promptly arrested.  Pet. App. 18a-19a.  At trial, petitioner attempted
to discredit Swirsky's account of the transaction by presenting the
testimony of Ralph Angel, who stated that Swirsky lied when he
represented in a letter that Angel's company had participated in a
particular gold deal involving the Republic National Bank (Republic).
The government investigated Angel's statement by examining Republic's
records.  Agents discovered that Angel's company had no account at
Republic but had engaged in gold transactions involving the bank;  the
government, however, did not present any evidence relating to the
point at trial.  Pet. App. 9a-10a.  At the close of trial, petitioner
requested an entrapment instruction, arguing that he had been induced
to commit the charged offenses by Swirsky.  Because petitioner had not
admitted all of the elements of the offenses, the district court
declined to instruct the jury on entrapment.

   After petitioner was convicted, a juror wrote to the district
judge, informing him that another juror, Anthony Ferrara, was an
employee of Republic.  The letter stated that Ferrara became aware of
the government's examination of Republic's records during trial, that
he concluded that Angel's trial testimony was incorrect, and that he
discussed his discovery with several other jurors.  See Pet. App. 5a,
10a-11a.  After receiving the juror's letter, the district judge held
a hearing at which he examined each of the jurors about Ferrara's
remarks.  The judge discovered that four jurors heard Ferrara's
account, but he declined to set aside the verdict because of "the
virtual irrelevance of Mr. Angel's testimony to the issue of
(petitioner's) guilt or innocence" (id. at 13a).

   The court of appeals affirmed (Pet. App. 17a-23a).  It accepted the
district court's factual finding that Ferrar's statement posed "no
possibility of prejudice affecting the verdict" (id. at 20a).
Applying the law of the circuit, the court also held that petitioner
had not been entitled to an entrapment instruction at trial.
Petitioner had denied knowledge that the bonds were stolen, which is
an element of the offense of receiving stolen property;  the court
held that "a defendant may not contest an essential element of an
offense and still claim the defense of entrapment" (id. at 20a-21a).

   2. Petitioner contends that the district court erred by refusing to
charge the jury on entrapment.  We agree.  In Mathews v. United
States, No. 86-6109 (Feb. 24, 1988), slip op. 4, this Court held that
"even if the defendant denies one or more elements of the crime, he is
entitled to an entrapment instruction whenever there is sufficient
evidence from which a reasonable jury could find entrapment." In
contrast, the court of appeals held that petitioner's denial of one of
the elements of the charged offenses made an entrapment instruction
inappropriate.  This holding cannot be squared with Mathews.  /1/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be granted, the judgment of the court of appeals
vacated, and the case remanded for reconsideration in light of Mathews
v. United States, supra.  /2/

   CHARLES FRIED

      Solicitor General

   APRIL 1988

   /1/ Neither court below made any findings on whether there was
sufficient evidence of entrapment to justify submitting the issue to
the jury.  That question is one that the court of appeals should
address in the first instance.

   /2/ Petitioner's other contention (Pet. 24-30) -- that he is
entitled to a new trial because some jurors were exposed to
extra-record material -- does not warrant review.  After conducting an
evidentiary hearing, the district court held that Ferrara's statement
could not have had a prejudicial effect on the outcome of the trial.
The court of appeals examined the record and found this determination
supported by the record.  There is no reason for this Court to
consider petitioner's challenge to these factual determinations.