APPEAL FROM JUDGMENT OF CONVICTION IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (Criminal Number 79-00042)
Before Aldisert, Rosenn and Garth, Circuit Judges.
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.
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.*fn1 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.
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 ...