Reply Brief — Nicosia v. United States

Iu the

Supreme Court of the United tated“

Octoser TERM, 1980

JOHN B. NICOSIA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

R

JUN 8 |:

ALEXANDER L. ©

espondent.

On Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circu

REPLY BRIEF FOR PETITIONER

it

WILLIAM A. BARNETT

Attorney for Petitioner

WILLIAM A. BARNETT

GERALD C. RISNER

DAVID G. LICHTENSTEIN

135 South LaSalle Street, Suite 808

Chicago, Illinois 60603

(312) 726-4480

RICHARD F. JAMES

JAMES & JAMES

200 Monticello Drive

Post Office Box 338

Dyer, Indiana 46331

(219) 865-8376

CHARLES R. PURCELL

Of Counsel

NASSP “ASCO SSSI

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

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TABLE OF AUTHORITIES

Cases

PAGE

Berenyi v. Immigration Director, 385 U.S. 630 (1967) 2

Hansford v. United States, 303 F.2d 219 (D.C. Cir.

1962) . si Barb TEINS Bits A LF he ORC OE 3

Hoffa v. United States, 385 U.S. 293 (1966) .............0... 2

Napue v. Illinois, 360 U.S. 264 (1959) 000. 2

Sorrells v. United States, 287 U.S. 435 (1932) 0000.0... 3

United States v. Demma, 423 F.2d 981 (9th Cir. 1975) .. 2-3

United States v. Johnston, 426 F.2d 112 (7th Cir.1970) 2

Constitution

U.S. Const., Article III, Section 2, Clause 3 .........0... 2,3

U.S. Const., Amendment VI oun.n...e....senceccecescescscesseceseeees 2,3

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Iu the

Supreme Court of the United States

Octosner Term, 1980

No. 80-1702

JOHN B. NICOSIA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

REPLY BRIEF FOR PETITIONER

The Government describes the Petitioner as the recipi-

ent of an illegal one million dollar ‘‘kickback’’ (Memoran-

dum, p. 2), in the face of a jury verdict finding him ‘‘Not

Guilty’’ on the Government charge relating to that very

money. (Indictment, Count I; Memorandum, p. 1.)

Having adjudged the Petitioner guilty of an offense on

which the jury found him ‘‘Not Guilty’’, the Government

proceeds to use that conclusion as a predicate to justify

judicial preemption of the jury function on the obstruction

of justice charge on which Petitioner was convicted.

-%

2

The Government Memorandum, like the opinion of the

Court of Appeals, demonstrates on its face that the test

applied in this case was not whether the record showed

some evidence of entrapment, but whether the panel judges

believed either the defendant’s lack of predisposition or

his explanation of the tape-recorded conversation on

which the entrapment issue turned. (Petitioner’s App., at

5; Memorandum, p. 3-4.)

This weighing of the evidence by judge rather than by

jury forms the core of Petitioner’s complaint.! The dis-

trict judge and the court of appeals, and now the Govern-

ment in this Court, seek to substitute their judgment for

that of a jury on the central factual issue in the case, thus

depriving Petitioner of his right to a trial by jury, guaran-

teed by the Constitution. Article ITI, §2, cl. ITI and Amend-

ment VI.

The plain fact, evident on the face of both the court of

appeals decision and the Solicitor General’s Memorandum,

is that the district court preempted the critical jury func-

tion at trial. It did so because the defendant would not

admit his guilt as required by the Seventh Circuit Johms-

ton rule. United States v. Johnston, 426 F.2d 112 (7th Cir.

1970). (See, 426 F.2d 112; Petitioner’s App., at 15.)

Petitioner was denied his right to a trial by jury on the

critical issue presented at his trial because the Seventh

Circuit maintains fidelity to a rule of law that is in conflict

with the rule in other circuits, United States v. Demma, 423

1The Solicitor General’s reliance upon the “two-court” rule of

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

placed. Not only are constitutional claims here raised (see, ¢.g.

Napue v. Illinois, 360 U.S. 264, 271, 272; Cf. Hoffa v. United

States, 385 U.S. 293), but the defect here complained of is not in

the facts found, but in who performed the fact finding process.

Berenyi, supra, at 635-636.

%

3

F.2d 981 (9th Cir. 1975), Hansford v. United States, 303

F.2d 219, 221 (D.C. Cir. 1962) (en banc), and with the law

as stated by this Court (Sorrells v. United States, 287 US.

435 (1932).

The question presented is not whether the Government

or any Court believes the defendant guilty or not guilty of

the offense on which he was convicted; the question pre-

sented is whether judges may in effect make such a deter-

mination where the Constitution assigns that function to

a jury. Article III, §2 cl. IJ and Amendment VL

WHEREFORE, Petitioner prays issuance of the Writ

and reversal of the judgment below.

Respectfully submitted,

WuuiumMm A. Barnett

GeraLtp O. Risner

Davin G. LicHTENSTEIN

135 South LaSalle Street,

Suite 808

Chicago, Illinois 60603

(312) 726-4480

Ricuarp F. James

James & JAMES

200 Monticello Drive

Post Office Box 338

Dyer, Indiana 46331

(219) 865-8376

Attorneys for Petitioner

Cuar.tes R. Purcet.

Of Counsel