U.S. Court of Appeals #09-1854

United States v. Marino, U.S. Court of Appeals number: 09-1854 (1st Cir.2009)
In the First Circuit Court of Appeals See “Appellant Marino’s Petition For Rehearing And Or Suggestion For Rehearing En Banc & Affidavit In Support Herein, dated December 22, 2009.

Issues Presented For Review

This Court Should Grant Rehearing in this case to correct certain important inaccuracies in its analysis and should grant Rehearing En Banc to more closely examine certain questions of significant importance, such as follows:

A. The right of Marino to exercise due process;

B. This Honorable Court’s Three Judge Panel’s Order for the Appellees/Government representatives to answer Marino’s issues presented for review as ORDERED by this Court on November 25, 2009. See Court Order Docket Sheet.

c. For this Court to recognize the fact that the Appellees/government representatives (AUSA: Cynthia Ann Young) stipulated to Marino’s Double Jeopardy issue which violated the 5th Amendment of the U.S. Constitution. See Appellee(s)/United States’s Response dated October 15, 2009 pages 1-3, 14.

Which states as follows: Appellee(s)/United States’s version of relevant facts/Marino’s indictment and conviction.

“The first day of trial, September 28, 1998, the government moved to dismiss Count 30, the drug conspiracy charge, against Marino, which the district court granted on October 22, 1998.” See Government’s/Appellee(s) Response last paragraph page 2, top paragraph page 3. Also see DOCUMENT 581, & DOCUMENT DATE: October 22, 1998, via: United States v. Marino, CR-97-40009-NMG. (District of Massachusetts/Boston/Worcester) in support.

First Circuit Local Rule 35 Statement

I express a belief, based on a reasoned and studied professional judgment, that this appeal involves one or more questions of exceptional importance;

1. Doe the  5th Amendment of the United States Constitution’s Double Jeopardy Clause violations facilitates a “Fundamental Miscarriage of Justice” if Appellant Marino has been effected adversely causing Marino to serve an extra 30 years in prison, when the government clearly stipulates that Count 30 (cocaine conspiracy) was dismissed during trial by the government/Appellee(s) on September 28 or 29, 1998 during the first day of trial. See DOCUMENT 581 (U.S. v. Marino, CR-97-40009-NMG. (D.Mass)) the government’s motion DOCUMENT 581 was allowed by the court also during trial while the jury was empanelled on October 22, 1998. See DOCUMENT DATE: October 22, 1998.

Also see governments/Appellee(s) response dated October 15, 2009 pages 1-3, 14 (U.S. v. Marino, USCA #09-1854 (1st Cir.2009) also in support.

Moreover, the government states: Racketeering Act-b, the drug trafficking conspiracy, in violation of 21 U.S.C. Section 846 (also charged in the dismissed Count 300 [DOCUMENT 1078] stipulating that Count 30 & predicate racketeering Act-B are the very same charge.

2. Whether, the Three Judge Panel’s: Boudin, Torruella & Lipez of the First Circuit Court of Appeals ORDER that the government answer Marino’s appeals brief by NOVEMBER 25, 2009, and the government’s failure to respond have any impact of this Court’s proceedings and Marino’s  due Process, when the results will generate a core fundamental miscarriage of justice as described in issue #1, supra resulting in Marino unlawfully being held over 14 years over his term of imprisonment?

3. Whether the United States Supreme Court case-law leading authority described in: U.S.. v. Morgan, 346 U.S. 502, 510, 74 S.Ct. 247, 98 L.Ed. 248 (1954) supports Marino’s issues?
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For whatever reason the United States Court of Appeals For The First Circuit failed to enforce their Court ORDER, ORDERING
the government/Appellee(s) to answer Marino’s brief by November 25, 2009, and the government failed to do so, and the court improperly dismissed  Marino’s action on the 18th of November 2009, constitute judicial misconduct?