Opposition — Nicosia v. United States

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ALEXANDER L. ST

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No. 80-1702

In the Supreme Court of the Hnited States

OcToserR TERM, 1980

JOHN B. NICOSIA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

WabeE H. McCree, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

. (202) 633-2217

Beas

TABLE OF AUTHORITIES

Page

Cases:

Berenyi v. Immigration Director, 385 U.S.

Wiese ai a's: ath sig Bg Wad ho Wis Wikio ek io aes 4

Hansford v. United States, 303 F. 2d 219 ....... 6

Kadis v. United States, 373 F. 2d 370 .......... 4

Lopez v. United States, 373 U.S. 427 ........... 5

Sherman v. United States, 356 U.S. 369 ........ 5

Sorrells v. United States, 287 U.S. 435 ......... 5

United States v. Brooks, 567 F. 2d 134 ....... 5, 6

United States v. Buckley, 586 F. 2d 498,

cert. denied, 440 U.S. 982 ................. 4,5

United States v. Christopher, 488 F. 2d 849 ..... 4

United States v. Demma, 523 F. 2d 981 ........ 6

United States v. DeVore, 423 F. 2d 1069,

cert. denied, 402 U.S. 950 ................. 4,5

United States v. Fitzgerald, 579 F. 2d 1014,

cert. denied, 439 U.S. 1002 .......cccccccccce 2

United States v. Glaeser, 550 F. 2d 483 ....... 5, 6

United States v. Glassel, 488 F. 2d 143,

cert. denied, 416 U.S. 941 ........0. 0.0005. 5

United States v. Johnston, 426 F.2d 112 ....... 3

United States v. Perry, 478 F. 2d 1276,

cert. denied, 414 U.S. 1005 .................. 5

United States v. Reliable Transfer Co., 421

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Statutes:

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Iu the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1702

JOHN B. NICOSIA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioner contends that he was improperly denied a jury

instruction on the defense of entrapment.

|. Following a jury trial in the United States District

Court for the Northern District of Indiana, petitioner was

convicted of obstructing justice by endeavoring to influence

the testimony of a grand jury witness, in violation of 18

U.S.C. 1503.' He was sentenced to 18 months’ imprison-

ment and fined $5,000. The court of appeals affirmed (Pet.

App. I-21).

The evidence at trial showed that petitioner was mayor of

East Chicago, Indiana, from January 1964 through Decem-

ber 1971. As mayor, petitioner appointed Cornel Leahu to

'Petitioner was acquitted on one count of filing a false income tax

return (26 U.S.C. 7206) and on one count of makinga false statement at

a prior trial (18 U.S.C. 1623).

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be Superintendent of the East Chicago Sanitary District.

During petitioner's second four-year term in office, the city

began a large public works project under the direction of the

Sanitary District (Pet. App. 5). The project contractor

obtained the contract by paying kickbacks to petitioner and

other city officials. Pursuant to a spring 1969 meeting in the

basement of petitioner’s home and subsequent conversa-

tions between petitioner and Alfred Kovach, his former

executive assistant, petitioner directed the other partici-

pants to “handle” the kickback funds through Kovach

(ibid.; Tr. 998, 1317-1319). The money was channeled

through a sham Swiss corporation and back to the contrac-

tor, who ultimately paid one million dollars to Leahu, who

in turn delivered it to Kovach. Kovach then delivered the

money to petitioner (Pet. App. 5).

The scheme eventually was discovered, and Leahu and

Kovach were summoned to testify before a federal grand

jury. They both lied, testifying that the money had been

given to someone other than petitioner. After Leahu and

Kovach were convicted for their roles in the scheme,2 they

were again subpoenaed by the grand jury, and this time they

cooperated with the government. Kovach appeared first

and testified that petitioner had received the money (Pet.

App. 5-6). Kovach subsequently told Leahu that he had

testified truthfully about the payments (Tr. 2112). Leahu

testified under a grant of immunity before the same grand

jury on June 9, 1977 (Pet. App. 6).

On June 10, 1977, and again on July 7, 1977, Leahu met

with petitioner. On both occasions Leahu wore a concealed

microphone and tape recorder. At the outset of the June 10

meeting, Leahu told petitioner that he had been subpoe-

naed by the grand jury and that Kovach already had

*See United States v. Fitzgerald, 579 F. 2d 1014 (7th Cir.), cert.

denied, 439 U.S. 1002 (1978).

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testified and had changed his story. Petitioner urged Leahu

to stand by his earlier story that petitioner had not received

the money. He directed Leahu to testify that he could not

recall the spring 1969 meeting in petitioner's basement or

driving Kovach to petitioner’s home to deliver the money.

Petitioner also discussed the applicable statutes of limita-

tions and warned Leahu to be very careful about the dates

he told the grand jury that he received payments. Petitioner

repeatedly urged Leahu to tell the grand jury that petitioner

knew nothing about the kickback scheme (Pet. App. 6).

At the July 7 meeting, Leahu told petitioner that he had

met with the prosecutor and investigators, who knew spe-

cific details of petitioner’s participation in the scheme (Tr.

2126-2127). Petitioner advised Leahu to say that he could

not recall any of the events (Pet. App. 6,8 n.1). When Leahu

pointed out that he could remember, petitioner told him

that nothing could be done if Leahu maintained his asserted

loss of memory (ibid.; Tr. 2137, 2140-2142, 2147, 2152).

Petitioner testified at trial and identified his voice on the

tape recordings, but denied attempting to influence Leahu

(Pet. App. 6). The district court refused petitioner's request

to instruct the jury on the defense of entrapment. The court

first relied on the Seventh Circuit's rule (see United States v.

Johnston, 426 F. 2d 112, 114 (1970)) that a defendant must

admit the acts of the alleged offense in order to be entitled to

an entrapment instruction, but in a post-trial ruling the

court held that in any event there was no evidence of

entrapment (Pet. 5; Pet. App. 7, 9; C.A.R. 128 at 7-9).3

A majority of the court of appeals panel agreed that there

was no evidence that the government had induced peti-

tioner to obstruct justice. Hence, it held there was no need

to reconsider United States v. Johnston, supra, because,

™C.A.R.” refers to the record in the court of appeals, identified by

document number and the relevant pages of it.

car?

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regardless of the continued vitality of that decision, the

distriet-eourt-properly:-had refused to-give the- requested

entrapment instruction (Pet. App. 1-15). Judge Swygert .

dissented. In his view, there was sufficient evidence to raise

the entrapment issue, and the court should have reconsi-

dered United States v. Johnston, supra, and overruled it.‘

2. Petitioner contends (Pet. 6) that the record shows that

there was “some evidence of government initiation of the

offense,” thus requiring an entrapment instruction. Both

courts below, however, rejected this fact-based contention,

and there is no reason for further review of it. United States

v. Reliable Transfer Co., 421 U.S. 397, 401 n.2 (1975);

Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967).

While a defendant is not required to testify at trial in

order to present a colorable entrapment claim, the record

must nevertheless contain some evidence from which the

jury could find either inducement or persuasion on the part

of the government, or unwillingness on the defendant’s

part, to commit the crime. See United States v. Buckley,

586 F. 2d 498, 501 (Sth Cir. 1978), cert. denied, 440 U.S. 982

(1979); United States v. Christopher, 488 F. 2d 849, 850-

851 (9th Cir. 1973); United States v. DeVore, 423 F. 2d

1069, 1071 (4th Cir. 1970), cert. denied, 402 U.S. 950 (1971);

Kadis v. United States, 373 F. 2d 370, 374 (1st Cir. 1967).

Contrary to petitioner’s claim that this requirement was

satisfied, however, both the district court and the court of

appeals majority found that it was petitioner “ ‘who

initiated the obstruction of justice’ ” (Pet. App. 9). Indeed,

_ the tapes showed that petitioner urged Leahu to adhere to

‘The dissent describes (Pet. App. 15) the district court’s decision as

resting on United States v. Johnston, supra: The dissent ignores,

however, the district court's post-trial ruling that there was an insuffi-

cient evidentiary basis upon which to submit the entrapment issue to the

jury (C.A.R. 128 at 7-9).

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his previous story and that petitioner initiated the discus-

sion about the statutes of limitations, advising Leahu to

push back the dates on which he told the grand jury he had

received payments (Pet. App. 6; Tr. 2104-2106, 2115, 2119,

2121-2122). Their second meeting was in a similar vein.

When Leahu told petitioner that investigators knew of the

spring 1969 meeting in the basement of petitioner’s home,

petitioner immediately and repeatedly directed Leahu to

answer “I don't recall” to questions relating to that incident,

despite Leahu’s protests that he did remember and could

not respond in that manner to every question (Pet. App. 8

n.1; Tr. 2127-2129, 2136-2138, 2140-2142, 2147-2148, 2152,

2159-2160, 2162-2163). .

As the court of appeals recognized, “Leahu simply did

not induce [petitioner] to a criminal act which he lacked

predisposition to commit” (Pet. App. 9). Leahu merely

provided petitioner with the opportunity to commit the

offense, but that is not entrapment. See Sherman v. United

States, 356 U.S. 369, 372 (1958); Sorrells v. United States,

287 U.S. 435, 441 (1932); United States v. Perry, 478 F. 2d

1276, 1278 (7th Cir.), cert. denied, 414 U.S. 1005 (1973);

United States v. DeVore, supra, 423 F. 2d at 1072. Insum,

because there was no evidence that the government “actu-

ally implant[ed] the criminal design in the mind of the

defendant” (United States v. Russell, 411 U.S. 423, 436

(1973)), petitioner was not entitled to an entrapment

instruction. United States v. Buckley, supra, 586 F. 2d at

501-502; United States v. Brooks, 567 F. 2d 134, 138 (D.C.

Cir. 1977); United States v. Glassel, 488 F. 2d 143, 146(9th

Cir. 1973), cert. denied, 416 U.S. 941 (1974); United States

v. DeVore, supra, 423 F. 2d at 1072; see Lopez v. United

States, 373 U.S. 427, 436 (1963).5

SNor, contrary to petitioner's claim (Pet. 6), did the court of appeals

or the district court impermissibly weigh the evidence in the record

against his entrapment claim. Rather, the court of appeals merely

fulfilled its obligation—like that of the trial court—to determine

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3. For the same reason, the present case is not an

appropriate vehicle in which to consider the asserted con-

flict between United States v. Johnston, supra, and the

decisions of some of the other circuits. To be sure, some

courts of appeals have disagreed with Johnston’s holding

that a defendant must admit commission of the -offense

charged before he is entitled to an entrapment instruction.

See, e.g., United States v. Demma, 523 F. 2d 981 (9th Cir.

1975) (en banc); Hansford: v. United States, 303 F. 2d 219,

221 (D.C. Cir. 1962) (en banc). Nonetheless, those courts

adhere to the requirement that a defendant must make the

traditional threshold showing discussed above before he is

entitled to an entrapment instruction. See, e.g., United

States v. Brooks, 567 F. 2d 134, 138 (D.C. Cir. 1977);

United States v. Glaeser, 550 F. 2d 483, 486 (9th Cir. 1977);

United States v. Demma, supra, 523 F. 2d at 984 n.4.

Because, as both courts below found, there was no evidence

of entrapment here, petitioner would not be entitled to an

entrapment instruction even in those circuits that do not

require a defendant to admit commission of the offense.

Accordingly, this case presents no occasion to consider the

propriety of the Johnsion rule.

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied. ’

WADE H. MCCREE, JR.

Solicitor General

May 1981

whether petitioner had satisfied his burden of showing some evidence of

inducement by the government and lack of predisposition on his part.

United States v. Glaeser, 550 F. 2d 483, 487 (9th Cir. 1977); United

States v. Glassel, supra, 488 F. 2d at 146. Neither the court of appeals

nor the district court weighed the evidence; instead, they determined

that there was no evidence tending to support an entrapment defense

(see Pet. App. 7, 9).

DOJ-1981-05