U.S. v. Ferretti

Citation635 F.2d 1089
Decision Date29 December 1980
Docket NumberNo. 80-1373,80-1373
PartiesUNITED STATES of America v. FERRETTI, Caesar, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Sidney Ginsberg (argued), Philadelphia, Pa., for appellant.

Peter F. Vaira, Jr., U. S. Atty., Thomas J. McBride (argued), Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before ALDISERT, ROSENN and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

Defendant, Caesar Ferretti was convicted on two counts of distributing a controlled substance in violation of 21 U.S.C. § 841 (1976). Count 1 charged Ferretti with the unlawful distribution of .59 grams of Methamphetamine, a Schedule II, non-narcotic, controlled substance; Count 2 charged him with the unlawful distribution of 27.28 grams of the same substance. Ferretti asserts that a number of errors were committed by the district court, any or all of which require a new trial. One such error claimed is that he was unfairly denied the right to make the last argument to the jury as provided by Local Rule 13 of the Eastern District of Pennsylvania, a rule which he contends was in effect at the time of trial. We agree and thus reverse.

I.

Sometime early in 1978, Michael Marazzo, who was then on special parole following his 1975 conviction of manufacturing and distributing quantities of Methamphetamine, was approached by William Kean, a Drug Enforcement Agent. Kean informed Marazzo that he knew Marazzo was still selling Methamphetamine. In return for promises that he would be protected and that he would be relocated, Marazzo agreed to assist Agent Kean.

In late April or early May, Kean enlisted Marazzo's aid in an investigation of Ferretti, with whom Marazzo had associated in the past. On May 4, 1978, Marazzo went to Ferretti's home and allegedly Ferretti gave him, as a free sample, .59 grams of Methamphetamine. Soon after this transaction occurred, Marazzo delivered the substance to Kean. Kean conducted a field test and at trial testified that a positive reaction for Methamphetamine resulted. It was this transaction that provided the basis for the Count 1 indictment.

Marazzo again met with Ferretti on May 11, 1978. At that time, Ferretti allegedly gave Marazzo 27.28 grams of Methamphetamine in return for Marazzo's promise to pay $650. Marazzo again delivered the substance to Kean, who again conducted a field test and testified at trial to observing a positive reaction for Methamphetamine.

At trial, the government presented three witnesses: Kean, Marazzo and Jack Fasanello, a chemist who worked for the Drug Enforcement Administration. Ferretti did not introduce any evidence. Rather, he sought to sum up last before the jury, invoking a Local Rule of the Eastern District of Pennsylvania. 1 The district court denied this request. Ferretti was convicted and thereafter sentenced to four years imprisonment on Count I and to a consecutive term of imprisonment of four years on Count II, to be followed by two years of special parole.

II.

In March, 1979, the date of Ferretti's trial, the Local Rules of the United States District Court for the Eastern District of Pennsylvania appeared to permit the defendant to sum up last before a jury, when, but only when, the defendant had produced no evidence. In full, Local Rule 13 provided:

Rule 13 Opening and Closing Statements to Jury.

At the commencement of the trial, counsel for the government shall make his opening statement to the jury stating what he intends to prove. Immediately thereafter, counsel for the defense may, but need not, make his opening statement to the jury.

At the conclusion of the government's case, if counsel for the defense has not earlier opened to the jury, he may then make his opening statement. At the conclusion of all the evidence the order of summation shall be as follows:

(a) If the defense has produced no evidence, the government shall make its closing argument to the jury, and the defense shall make the last argument to the jury; (emphasis added)

(b) If the defense has produced any evidence, the government shall make its closing argument first, the defense shall follow, and the government shall have a reasonable opportunity for rebuttal confining its argument to answering the summation by the defense;

(c) When multiple defendants are being tried, the order shall be as above. In such cases where one or more of the defendants has produced no evidence, the order of summation shall be as the Judge may determine.

Relying on that rule, and in particular on section 13(a), Ferretti claims to have deliberately foregone the introduction of defense evidence. His argument is stated succinctly in his brief on appeal as follows:

The entire defense strategy was predicated upon defense counsel having the last speech to the jury. Pursuant to this strategy none of the seven exhibits marked for identification by the Appellant (276a) were offered in evidence. Moreover, no witness was called on behalf of the Appellant to testify including the Appellant himself who would have testified had it been known that the trial judge was going to allow the prosecution a rebuttal speech to the jury.

Appellant, in support of his position that he, if no evidence were offered by him or on his behalf, would be entitled to the last speech relied on the official rules of the United States District Court for the Eastern District of Pennsylvania as amended to April 30, 1978.... At the conclusion of the Government's case, the Appellant rested (191a).

The district court however, held that the rule on which Ferretti had relied was no longer in effect. The record reads:

THE COURT: May I see counsel at side bar. (At side bar:)

THE COURT: Mr. McBride's (Assistant United States Attorney) closing argument will be followed by yours and then, in turn, he has a rebuttal.

MR. GINSBERG: (Ferretti's attorney) Well, may I respectfully object because Rule 13(b) (sic)

THE COURT: Well, this is Rule 29.1.

MR. GINSBERG: May I show you

THE COURT: I know.

MR. GINSBERG: Rule 13(b)(sic)?

THE COURT: I have looked into this, so that this is the procedure here.

MR. GINSBERG: Rule 13(b)(sic) of the local court says

THE COURT: That local rule has been repealed.

MR. GINSBERG: I have the latest edition of it, Your Honor.

THE COURT: Well, you are wrong, so that is the way we will proceed so there is no confusion.

MR. GINSBERG: I respect the Court's ruling but I must respectfully object because my reason for not presenting any evidence was predicated

THE COURT: Have you read United States v. F. G. Smith, 410 F.Supp. 1256 at 1261?

MR. GINSBERG: No sir; I haven't, Your Honor.

THE COURT: Well, that is the authority. All right; proceed.

(End at side bar.)

THE COURT: Mr. McBride, your closing argument, sir.

MR. McBRIDE: Yes sir.

(N.T. at 286-87)

United States v. Smith, 410 F.Supp. 1256 (E.D.Pa.1976), the case on which the district court judge relied does indeed state that Rule 13 had been repealed by the Board of Judges for the Eastern District of Pennsylvania on September 16, 1975. The repeal, if such it was, evidently was prompted by an amendment to Rule 29.1 of the Federal Rules of Criminal Procedure. That amendment became effective December 1, 1975 2 and since that date Rule 29.1 has provided that the government shall open the argument, the defense shall be permitted to reply, and that the government shall then be permitted to reply in rebuttal. Other than the statement which appears in Smith, this record does not reveal any other evidence of the September 16, 1975 "repeal" of Local Rule 13(a).

If this sequence of events constituted the entire history of Local Rule 13, Ferretti would have had a much more difficult task in sustaining his position because Smith would appear to have given notice to the bar of this change in the order of final arguments. But Ferretti calls our attention to two circumstances which cloud this issue.

First, Ferretti points out that the version of the Local Rules which included Rule 13 as of the date of his trial, specified that these rules had been amended to April 30, 1978, a date some two years after the Smith opinion was filed and a date almost three years after Rule 13 had purportedly been repealed. 3

The second circumstance to which Ferretti calls our attention is a notice which was published on the first page of the Legal Intelligencer 4 on the date of May 30, 1979, some two months after Ferretti's trial had concluded. That notice published an order of the district court of May 25, 1979 which repealed Local Rule 13. The notice, which is reproduced here as it appeared in the Legal Intelligencer, reads as follows:

Notice to the Bar

In the United States District

Court for the Eastern District

of Pennsylvania

In Re: LOCAL CRIMINAL

RULE 13

ORDER

AND NOW, this 25th day of May, 1979, it appearing that Local Criminal Rule 13 has been superseded by Rule 29.1 of the Federal Rules of Criminal Procedure, it is ORDERED that Local Criminal Rule 13 be and it hereby is REPEALED.

FOR THE COURT:

JOSEPH S. LORD, III, Ch.J.

Opening and Closing Statements to the Jury.

Thus, at the time that Ferretti was denied the right to make "the last argument to the jury," it appears that Rule 13, despite the statement in United States v. Smith, supra, had not been repealed, but was in full force and effect.

The government, making no mention of the district court's order of May 25, 1979, or the notice which appeared in the May 30, 1979 Legal Intelligencer, argues that Ferretti's contentions are completely answered by Rule 29.1 5 of the Federal Rules of Criminal Procedure and United States v. Smith, supra. We cannot agree.

We are not persuaded by the government's assertion that Rule 29.1 by its own force superseded Local Rule 13(a). Rule 29.1 only provides the norm for the general situation. It does not deal with the specific circumstance of a defendant who presents no evidence. Thus we do not read the provisions of Rule 13(a) as being...

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4 cases
  • U.S. v. Diaz-Villafane
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 28, 1989
    ...rules have been promulgated, lawyers and their clients have a right to place reasonable reliance on them. See United States v. Ferretti, 635 F.2d 1089, 1093 (3d Cir.1980). To set the strictures of a local rule to one side without advance notice, the court (1) must have a sound reason for do......
  • United States v. Ferretti
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • February 25, 1981
    ...substance in violation of 21 U.S.C. § 841. Thereafter, an appeal was filed in the United States Court of Appeals for the Third Circuit, 635 F.2d 1089, in which it was contended, inter alia, that reversible error was committed when this Court denied the defendant his right to make the last a......
  • Amader v. Pittsburgh Corning Corp.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • July 26, 1982
    ...the local rules of this district must be given effect and that they cannot be ignored by the district courts. See United States v. Ferretti, 635 F.2d 1089, 1094 (3rd Cir. 1980). See also, Schmidt v. Silver, 89 F.R.D. 519 (E.D.Pa.1981). Consistent with that ruling, the Third Circuit also req......
  • City of Pittsburgh v. Simmons, 84-3081
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 22, 1984
    ...which nine of the ten judges of the Western District have approved and that the court has therefore adopted. See United States v. Ferretti, 635 F.2d 1089, 1093 (3d Cir.1980) ("[O]nce a court announces a policy or rule of procedure, until such rule is effectively repealed, the court cannot i......
1 books & journal articles
  • General principles
    • United States
    • James Publishing Practical Law Books Federal Criminal Practice
    • April 30, 2022
    ...Local rules are binding unless they are inconsistent with the Federal Rules of Criminal Procedure. United States v. Ferretti , 635 F.2d 1089, 1092-93 (3d Cir. 1980); United States v. Cole , 496 F.3d 188, 192 (2d Cir. 2007) (“the local rules must not be inconsistent with the Federal Rules of......

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