Structural error

Government’s Response dated April 2, 2004 to Marino’s Section 2255 Motion/memorandum of Law In Support Motion Document #1262, as depicted in Marino’s Motion DOCUMENT 1381, March 7, 2011:

PAGE 17 OF THE GOVERNMENT’S RESPONSE:

Showing structural error, government admits that Marino had cited the critical case: United States v. Salemme, 91 F.Supp.2d pages 151.153, 171, 174 219, 261-266,( 267-269, 311 (Exhibits 188-247) UNDER SEAL) (D.Mass.1999), which was concealed from the 1997 investigating federal grand jury and Marino’s 1998 and 1999 trials showing egregious governmental misconduct, Brady, Giles, and Giglio governmental violations. Which if handed over by the government to the 1997 federal grand jury, 1998 and 1999 jury trials jurors, to Judge: Nathaniel M. Gorton and to Marino and his defense, there is both a reasonable and actual probability of a different result much more favorable to Marino. Denying Marino his due process and a full fair opportunity to use this material at trial.

PAGES 22-25 OF THE GOVERNMENT’S RESPONSE:

Proving ineffective assistance of counsel claims, governmental interference claims, showing both “Cause” and “Prejudice” to overcome Marino’s procedural default and proving that a fundamental miscarriage of justice and due process violations has occurred against Marino . Requiring Habeas intervention of this Honorable Court and an “evidentiary hearing” to further the PUBLIC RECORDS.

PAGE 24 OF THE GOVERNMENT’S RESPONSE:

Government states in error: “First the facts in Salemme ARE UNRELATED to Marino’s prosecution.”

(Government: Assistant United States Attorney’s: Auerhahn and Young intentionally misrepresented matters of fact and law to the Court and violated its fiduciary duties to hand over all exculpatory material Brady, Giles, and Giglio evidence to Marino within 14 days of Marino’s arraignment and failed to do so, as most of the discovery is over 23 years old and since 1989 and since 1996 in other discovery Brady violations).

The government also went on to stipulate that the Salemme case was published one day after the Marino conviction due to clerical corrections See United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999). Then the government stipulates that exculpatory material Brady evidence was discovered AFTER Carrozza’s and Romano’s debriefings and sentences and also stipulates that the government HAD NO OBLIGATION TO HAND IT OVER TO MARINO, after Marino’s trial contrary to the Local Rules of the United States District Court District of Massachusetts.

See District of Massachusetts LOCAL RULE 42(a)(5) 1986, D.Mass.R. 116.1(c), D.Mass.R. 116.1(a) 1990, D.Mass.R.116.1(A)(5) 1990.

Apparently the government representatives: Assistant United States Attorneys District of Massachusetts: Jeffrey Auerhahn and Cynthia Ann Young are except to following the Local Rules of the United States District Court District of Massachusetts and United States Supreme Court Leading case law authorities: Brady v. Maryland, 373 U.S. 83, 87 (1963); Giles v. Maryland, 386 U.S. 55, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

53834785Marino’s Memorandum of Law In Support

According to Brady v. Maryland, 373 U.S. 83, 87 (1963); Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the government (AUSA’S: Auerhahn and Young and NOW Tabak and Herbert) failed to hand over all exculpatory material Brady, Giles and Giglio evidence to Marino within 14 days of Marino’s arraignment and now over 23 years later since 1989.

Judge: Mark L. Wolf, ORDERED in 1989 via: United States v. Marino, CR-89-190-MLW. (D.Mass/Boston) the discovery concerning the June 16, 1989 Salemme attempted murder and then again in front of Judge:  Nathaniel M. Gorton, the government failed to comply.Under the Local Rules of the United States District Court District of Massachusetts, in effect the prosecution, was required to turn over all written, testimonies, transcripts, documents, material constituting “exculpatory evidence within the meaning of Giles, Brady and Giglio.The government then At Sentencing the Double Jeopardy Clause Prohibits Courts from Punishing Defendants (Marino) Twice for Same Offenses(Count 30 Cocaine Conspiracy/Predicate Racketeering Act-B Cocaine conspiracy)

See Ex parte Lange, 85 U.S. (18 Wall) 163, 176 (1874). Defendant (Marino), who suffered full punishment for Offense (Count 30 cocaine conspiracy, see U.S. v. Marino, CR-97-40009-NMG. (D.Mass)), could NOT be subjected to another.

The jury marked “PROVEN” on predicate racketeering Act A-1 (conspiracy to murder) and Act-B (cocaine conspiracy) which was dismissed by the government on Sept. 28, 29, 1998 DOCUMENT #581 and allowed by the Court on Oct. 22, 1998 DOCUMENT DATE: October 22, 1998 U.S. v. Marino, CR-97-40009-NMG (D.Mass) and NOT PROVEN beyond a reasonable doubt of predicate racketeering Act A-2 (June 16, 1989 Salemme attempted murder) in both Counts One RICO and Count Two RICO conspiracy charges against Marino on December 22, 1999 See Verdict Sheet.Even though predicate racketeering Act-B cocaine conspiracy was dismissed by both the government (AUSA’S: Auerhahn and Young) DOCUMENT #581, and The Court (Judge: Nathaniel M. Gorton, U.S. District Judge D.Mass) DOCUMENT DATE October 22, 1998, via: U.S. v. Marino, CR-97-40009-NMG. (D.Mass).

See indictment via: United States v. Marino, CR-97-40009-NMG. (D.Mass) showing Count 30 and Act-B cocaine conspiracy-are the very SAME charge, SAME  coconspirators, SAME Elements, SAME, wording in indictment, SAME statutes 21 U.S.C. Sections 841(a)(1) and 846.

Predicate racketeering Act-B cocaine conspiracy must be precluded from Count One RICO and Count Two RICO conspiracy, as both are the same charge and Count 30 was dismissed by both the government and court DURING TRIAL while the jury was fully empanelled.Predicate racketeering Act-B became in jeopardy when the government in error placed it back on the December 22, 1999 VERDICT SHEET in Marino’s Second Trial in 1999, which violated the Double Jeopardy Clause of the 5th Amendment of the United States Constitution and the Due Process Clause.Requiring predicate racketeering Act-B/Count 30 to be precluded from Counts One and Two.

  • On October 15, 2009, “Newly Discovered” Admitted Facts and Evidence by the Government (Assistant United States Attorney (AUSA) Cynthia Ann Young”For the first time in close to NOW 16 plus years the government representative: AUSA: Young, D.Mass.Boston, stipulated on PUBLIC RECORD that on September 28, 1998, the government moved the court to the dismissal of Count 30 cocaine conspiracy and that on October 22, 1998, the Court allowed the dismissal of Count 30 cocaine conspiracy, DURING Marino’s first trial in 1998.Moreover, the government also stipulated that Count 30 cocaine conspiracy and predicate racketeering Act-B cocaine conspiracy are the very same charge.

See United states v. Marino, U.S. Court of Appeals for the First Circuit #09-1854 (1st Cir.2009), government’s October 15, 2009, Response pages 2 and 3 in support of all of the above.

Independently corroborating Marino’s Due Process Violations and Double Jeopardy claims under the 5th Amendment. See pages 1-3 & 14 of the government’s response supra.Since, as of October 15, 2009, newly discovered admitted facts and error by the government’s stipulation supra, clearly “NOW” shows “that there remains no genuine material fact issue in dispute of in controversy as the government stipulates to all of the elements of Marino’s double jeopardy claims but stops short of performing their fiduciary duties to correct it.

Thus, currently Marino is held 14 years over his term of imprisonment because of the government’s INTENTIONAL MISCONDUCT. According to Sawyer v. Whitely, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), requiring newly discovered facts which “if proven and viewed in light of the evidence as a whole would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder (Court and Jury), would have found the defendant (Marino) guilty of the underlying offense Count One RICO and Count Two RICO conspiracy and predicate racketeering Act-B in Counts One and Two.See 28 U.S.C. Section 2244(b)(2)(B)(ii). According to Fed.R.Crim.P. Rule 36, has been held to be an acceptable means by which to harmonize the written judgment with the oral sentence. See United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir.2004), however a district court may CORRECT “Clerical” Errors (on Marino’s VERDICT SHEET dated December 22, 1999 U.S. v. Marino, CR-97-40009-NMG (D.Mass) in the written judgment AT ANY TIME, under Federal Rules of Criminal Procedure Rule 36).

Hence, Marino requests that the government and the Court perform their fiduciary duties and Correct the above error by precluding predicate racketeering Act-B form counts One and Two.

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Enlighten Yourself… “Where the willingness is great, the difficulties cannot be great. ” ~Niccolò Machiavelli, The Prince

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