# Reply Brief — Nicosia v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1602%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1981 - **Citation:** 452 U.S. 961 ## Text 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 hee ad i 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 - 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1602%3A3. Public record. Not legal advice.