Argued October 21, 1987. Decided December 23, 1987. Certiorari Granted May 2, 1988; Vacated and On Remand from the Supreme Court of the United States May 2, 1988; Submitted Under Rule 12(6) September 9, 1988.
Higginbotham, Scirica and Garth, Circuit Judges.
This case is before us on remand from the United States Supreme Court for further consideration in light of Mathews v. United States, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988). We will affirm Marino's conviction because (1) given the evidence of entrapment Marino presented at trial, he is not entitled to an instruction on entrapment under the standard enunciated in Mathews, and (2) Marino has asserted unequivocally that he has no additional evidence of entrapment to present that would justify remand for a proffer hearing, United States v. Bay, 852 F.2d 702 (3d Cir. 1988).
Nicholas Marino, a practicing tax attorney, was convicted of conspiring to transport stolen securities in interstate commerce and of receiving, selling and disposing of stolen securities moving in interstate commerce in violation of 18 U.S.C. §§ 2315, 2 and 371. Central to the government's case was the testimony of Morton Swirsky, who had participated in the bond transactions that led to Marino's conviction. Unknown to Marino, Swirsky was acting as a government informant at the time that he arranged to buy stolen securities from Marino.
Morton Swirsky had been arrested for possession of stolen securities and agreed to cooperate with the government by working undercover for the Federal Bureau of Investigation. The FBI instructed Swirsky to attempt to purchase additional stolen bonds. To comply, Swirsky sought aid in finding stolen securities from a stock broker, Paul North. Swirsky told North that he was interested in buying "deep discount" bonds, which Swirsky described at trial as bonds sold at a substantial discount of their original price. App. at 755a. North then introduced Swirsky to Marino. Swirsky asked Marino to help him buy "deep discount" bonds for clients with large amounts of cash to invest. Swirsky specified that he only wanted to buy bonds that were "usable" and that had not been reported stolen. App. at 763a. Marino told Swirsky that he "might be able to help [Swirsky] out with what [he] wanted." App. at 758a-59a.
Shortly thereafter, in a telephone conversation taped by the FBI, Swirsky told Marino that he had $340,000 to invest for one million dollars worth of bonds. App. at 764a. During the conversation, Swirsky referred to himself as "Mr. Blake," an alias that Swirsky said was suggested by Marino "to keep the transaction as nebulous as possible." App. at 763a. Swirsky and Marino then arranged to meet at a hotel, where they discussed the proposed transaction. When Swirsky asked whether Marino had brought any securities, Marino told Swirsky to follow him to his law office. According to Swirsky, upon arriving at Marino's office, Marino asked Swirsky to remove his clothes, presumably to check him for body wires. After Swirsky removed his jacket and shirt, Marino left the room briefly to speak with someone, then told Swirsky to get dressed, and informed him that he would find "what [he] wanted" under the seat of his car. Swirsky returned to his car and discovered eight $25,000 municipal bonds under the front seat. App. at 769a-70a.*fn1
Swirsky delivered the municipal bonds to FBI agents who examined the bonds and questioned whether they were authentic. App. at 772a. Consequently, Swirsky returned the bonds to Marino and told him they were unacceptable. A few days later, Marino called Swirsky to tell him that he had something for him and requested that they meet. App. at 780a-81a. They again met at a hotel, where Marino offered Swirsky ten Federal Home Loan Bonds with a face value of $100,000 each.*fn2 The two worked out a sale price of $350,000 for the bonds, payment of which Marino requested in small denomination, nonsequential bills. App. at 795a. According to Swirsky, Marino gave him one of the Federal Home Loan Bonds to take with him in order to "check it out to see whether it was reported stolen or not." App. at 781a, Swirsky took the bond and the next day met Marino to obtain delivery of the other nine bonds. Marino produced four bonds for Swirsky. When Swirsky inquired as to the other five bonds, Marino gave Swirsky the keys to his car and told him that the bonds were in the glove compartment. Swirsky retrieved the bonds and delivered them to the FBI. App. at 799a. When Swirsky met Marino the following day to pay for the bonds, Marino was arrested. At trial, Marino requested an entrapment instruction. Following the close of evidence, the district court rejected this request on the ground that Marino had denied knowing that the bonds were stolen and therefore could not properly claim that he had been entrapped.
Marino was convicted by a jury and appealed. We affirmed Marino's conviction, relying on "well settled federal law in this circuit that a defendant may not contest an essential element of an offense and still claim the defense of entrapment." United States v. Marino, No. 87-5339, 838 F.2d 463, memo-op. at 5 (3d Cir. Dec. 23, 1987) (unpublished). Because Marino did not admit knowing the bonds were stolen, an essential element of the offense, we affirmed the district court's refusal to instruct the jury on entrapment.
Marino petitioned for writ of certiorari. On May 2, 1988, the Supreme Court granted the writ, vacated the judgment, and remanded the case to this court for further consideration in light of Mathews v. United States, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988). On remand, we requested supplemental briefing in light of Mathews and United States v. Bay, 852 F.2d 702 (3d Cir. 1988). In his supplemental brief, Marino stated that he had presented all his evidence on entrapment at trial and that remand was not required as Bay was inapplicable.
Before the Supreme Court's decision in Mathews v. United States, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988), the prevailing law required the defendant to admit all the elements of the offense before he was entitled to a charge on entrapment. See, e.g., United States v. Hill, 655 F.2d 512 (3d Cir. 1981). In Mathews, the Supreme Court held that a defendant could assert inconsistent defenses and could properly ...