Petition for Writ of Certiorari — Sikes v. Boone

| Office - Supreme Court, U.S.

ae FILED

83-1891 MAY 18 1984

No.

ALEXANDER L. STEVAS

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

HARRY P. JAN NOTTI,

Petitioner

VU.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

J. CLAYTON UNDERCOFLER, III

ROBERT N. DE LUCA

CARL W. HITTINGER

2600 The Fidelity Building

Philadelphia, Pennsylvania 19109

(215) 875-7230

Attorneys for Petitioner

Harry P. Jannotti

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000

QUESTIONS PRESENTED

1. Whether, given the constitutional limitations in-

herent in Congress’ power to legisiate under the com-

merce clause, federal jurisdiction under the Hobbs Act

can be predicated upon wholly fictitious facts and cir-

cumstances which could never have had, at any time,

any actual or potential effect on interstate commerce

and which “facts,” in any event, were formulated and in-

jected into the transaction in question by the govern-

ment?

2. Whether, under the Hobbs Act, criminal convic-

tions for extortion can be sustained absent proof of “in-

ducement” by the defendants charged?

3. Whether the government’s conduct of the

ABSCAM operation violated the most basic standards of

due process and fundamental fairness, reaching and ex-

ceeding that degree of outrageousness which mandates

dismissal of this prosecution?

4. Whether a “bifurcated” entrapment instruction,

which submits to the jury a question of law reserved to

the court, shifts the burden of proof and potentially with-

draws the entrapment defense from the jury’s consider-

ation, is constitutional error which must be reversed un-

less harmless beyond a reasonable doubt? And if so,

whether such instruction in the instant case was harm-

less?

5. Whether, where the evidence of governmental

inducement is overwhelming, the government can meet

its burden to disprove entrapment when the only proof of

predisposition offered is the fact that the defendant com-

mitted the criminal act, which proof demonstrates nei-

ther his pre-existing criminal inclination nor familiarity

with criminal techniques and procedures and was man-

ufactured, in its entirety, by the government?

TABLE OF CONTENTS

Page

GuSSTIONes FR a a ec Fe i

pr Rd fy) | wer ee er ee iv

oo GT EES TEPC er rrr ee Sr 2

Pos eee rene ea Ua pe Se eae 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

POD 5 50 644 0 be SCS EERE RN 3

BUATUIG OF Time GA. 6h hae dew haeastesese 4

REASONS FOR GRANTING THE WRIT ........... 10

The Third Circuit’s Ruling on Hobbs Act Juris-

diction in This Case Conflicts With the

Rulings‘ of Three Courts of Appeals, Im-

pacts on All Federal Criminal Legislation

Enacted Under the Commerce Clause,

Misapplies Prior Holdings of This Court,

and Is Erroneous Under the Facts of This

COO naka cake cee ee eee

A Conviction for Extortion Under the Hobbs

Act Absent Proof of Inducement by a De-

fendant Should Not Be Permitted, and

Clarification of This Issue Is Essential

The Government’s Conduct of ABSCAM Vio-

lated the Most Basic Standards of Due

Process and Fundamental Fairness,

Reaching and Exceeding That Degree of

Outrageousness Which Mandates Dis-

missal of This Prosecution ............

The District Court’s “Bifurcated” Entrapment

Charge Erroneously Submitted To The

Jury A Question of Law Reserved to the

Court, Shifted The Burden of Proof To The

Defense, And Potentially Withdrew From

ii

10

16

18

TABLE OF CONTENTS—(Continued)

Page

The Jury Petitioner’s Crucial Entrapment

Defense. This Comprised Constitutional

Error But The Third Circuit Abnegated

Chapman’s “Harmless Beyond A Reason-

able Doubt” Standard ................ 23

Where the Evidence of Governmental Induce-

ment Is Overwhelming, the Government

May Not Rely Upon Evidence ofs73“Ready

Acquiescence” Manufactured by It to Meet

Its Burden, Nor Can a Court Sustain a

Conviction in an Entrapment Case on

Proof of Commission of the Criminal Act

ee ee Whe beak eae e kkk cs ns ow 25

ee ee as oe ore ks Chak ows 27

TABLE OF AUTHORITIES

Cases: Page

Casey v. United States, 276 U.S. 413 (1928) .... 18

Chapman v. State of California, 386 U.S. 18

SE cas Was asiwe se wake whee ks hace 6 08 23, 24

Davis v. United States, 160 U.S. 469 (1895) .... 24

Government of Virgin Islands v. Toto, 529 F.2d

ee ee Ce a PPD 8 4 oS eka was weeds 23

Greene v. United States, 454 F.2d 783 (9th Cir.

gt AS ee Poa ree er Pe 18, 20

Hampton v. United States, 425 U.S. 484 (1976) . 18

Olmstead v. United States, 277 U.S. 438 (1928) . 18

People v. Dioguardi, 8 N.Y. 2d 260, 203 N.Y.S. 2d

870, 168 N.E. 2d 683 (1960) ............. 17

Perez v. United States, 402 U.S. 146 (1971) ..... 10

Sherman v. United States, 356 U.S. 369 (1958) .. 18

Sorrells v. United States, 287 U.S. 435 (1932) 18, 25

United States v. Adcock, 558 F.2d 397 (8th Cir.),

cert. denied, 434 U.S. 921 (1977) .......... 16

United States v. Addonizio, 451 F.2d 49 (3d Cir.),

cert. denied, 405 U.S. 936 (1972)....... 16, 17

United States v. Ambrose, 483 F.2d 742, 653 (6th

Sg ova pw dt bees ica ete Ra ee € 25

United States v. Archer, 486 F.2d 670 (2d Cir.

NT ek Ce AW Dek a ees aS 13, 14, 18

United States v. Bocra, 623 F.2d 281 (3rd Cir.),

cert. denied, 449 U.S. 875 (1980) .......... 18

United States v. Cerilli, 603 F.2d 415 (3d Cir.

1979), cert. denied, 444 U.S. 1043 (1980) ... 11

TABLE OF AUTHORITIES—(Continued)

Cases: Page

United States v. Dearmore, 672 F.2d 738, 740-741

SN MN hala se elkteia Hh ee a Oa eRe 25

United States v. Duhon, 565 F.2d 345 (5th Cir.),

cert. denied, 435 U.S. 952 (1978) .......... 17

United States v. Feola, 420 U.S. 671 (1975) . 10, 12,13

14,15

United States v. French, 628 F.2d 1069 (8th Cir.),

cert. denied, 101 S.Ct. 364 (1980) ......... 16

United States v. Gerald, 624 F.2d 1291 (5th Cir.

SE cach a eee ane aa ale ek 17

United States v. Hathaway, 534 F.2d 386 (1st Cir. ),

cert. denied, 429 U.S. 819 (1976) .......... 16

United States v. Hedman, 630 F.2d 1184 (7th Cir.

1980), cert. denied, 450 U.S. 965 (1981) .... 16

United States v. Hyde, 448 F.2d 815 (5th Cir.

1971), cert. denied, 404 U.S. 1058 (1972) ... 17

United States v. Johnson, 565 F.2d 179 (1st Cir.

1977), cert. denied, 434 U.S. 1075 (1978) ... 18

United States v. Leja, 563 F.2d 244 (6th Cir. 1977),

cert. denied, 434 U.S. 1074 (1978) ......... 18

United States v. Phillips, 577 F.2d 495 (9th Cir.),

cert. denied, 439 U.S. 831 (1978) .......... 11

United States v. Prairie, 572 F.2d 1316 (9th Cir.

I aa 6 id gong ok ee 18

BN apie ccheva'c eae eee ee 18

United States v. Rindone, 631 F.2d 491 (7th Cir.

OST eee Ee Or ee ee 11

TABLE OF AUTHORITIES—(Coxtinued )

Cases: Page

United States v. Russell, 459 F.2d 671 (9th Cir.

1972), rev'd 411 U.S. 423 (1973) .......... 18

United States v. Spagnolo, 546 F.2d 1117 (4th Cir.

1976) (per curiam), cert. denied, 433 U.S. 909

4 Serres ret re Te Te 11

United States v. Staszcuk, 517 F.2d 53 (7th Cir.)

(en banc), cert. denied, 423 U.S. 837 (1975). 11,

15, 16

United States v. Tate, 554 F.2d 1341, 1343-1345

i. * 3B 7g 9 Sere ewer rer ere ar 25

United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) 18

United States v. Watson, 489 F.2d 504 (3d Cir.

DD Gs Row eck eh Gs ek eek eee 24, 25

United States v. West, 511 F.2d 1083 (3d Cir. 1975) 18

United States v. Wolffs, 594 F.2d 77, 79-84 (Sth Cir.

| ee or eee ey eer ar er 24

Williamson v. United States, 311 F.2d 441 (5th Cir.

1962), on appeal after remand, 340 F.2d 612

(5th Cir.), cert. denied, 381 U.S. 950 (1965) . 19

Constitution and Statutes:

United States Constitution, Amendment V ...... 3

United States Code, Title 18:

eS, BOON nk tartare ene 00846 wake 12

18 U.S.C. §1951 (The “Hobbs Act”) . 3, 8, 9, 10,

11, 12, 13, 14, 15, 16, 17

i Oe | a 3 A Sia ek ees 6A e 8

United States Code, Title 28:

Se en EO ck ke caccei eae kOe Cakes 2

vi

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

HARRY P. JANNOTTI.

Petitioner

U.

UNITED STATES OF AMERICA.

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COUR® OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner above named respectfully prays that a writ

of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Third Circuit,

entered in this case on Februar, 21, 1984, Rehearing and

Rehearing en banc denied on March 20, 1984.

2

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Third Circuit, affirming the sentence of peti-

tioner Jannotti is not yet reported. A copy of this opinion

is printed in the Appendix at PA. 1.

The opinion of the United States Court of Appeals

for the Third Circuit, sitting en banc, reversing the opin-

ion of the United States District Court for the Eastern

District of Pennsylvania, is reported at 673 F.2d 578,

cert, denied, 457 U.S. 1106 (1982), a copy of this opinion

is printed in the Appendix at PA. 47.

The opinion of the United States District Court,

which was reversed by the appellate court, is reported at

501 F.Supp. 1182 (E.D.Pa. 1980). A copy of this opinion

is printed in the Appendix at PA. 175.

The opinion of the United States District Court dis-

missing the substantive Hobbs Act charges is not re-

ported. A copy of this opinion is printed in the Appendix

at PA. 153.

JURISDICTION

The judgment of the United States Court of Appeals

for the Third Circuit, reprinted in the Appendix, at PA.

41, was entered on February 21, 1984. Petitioner

Jannotti’s timely filed Petition for Rehearing and Sug-

gestion of Rehearing en banc was denied on March 20,

1984. PA. 42. This Court's jurisdiction is invoked under

28 U.S.C.§1254(1).

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The United States Constitution, Amendment V. re-

printed at PA. 273.

The Hobbs Act, 18 U.S.C.§1951, reprinted at PA.

273

4

STATEMENT OF THE CASE

ABSCAM was conceived in 1978 by F.B.I. agents in

New York along with career swindler Melvin Weinberg.

Originally, ABSCAM was designed to recever stolen

property, but it evolved into a nationwide endeavor to

test the morality of targeted public officials, thus chang-

ing the government’s role from that of a passive buyer of

stolen property to an aggressive instigator of crime —

seeking out officials and offering bribes to them.

ABSCAM was characterized throughout by strate-

gies and government inducement — the “honeypot” ac-

cording to Weinberg — designed to attract targets. Prin-

cipally, the F.B.I. created the impression of an Arab

sheik with vast amounts of money who spent freely with

little reservation. Likewise, the F.B.I. agents repeatedly

and effectively employed the concept of “the Arab mind”

or “the Arab way of doing business”! to persuade their

victims that they must accept money offered to them by

the sheik to convince him of their friendship.

The government also recruited “middlemen” to as-

sist in the scheme, among them Howard Criden, a Phila-

delphia lawyer who lured petitioner Jannotti into the

ABSCAM net. Criden, like various other ABSCAM mid-

dlemen, was compensated by the government with con-

tingent fees based upon the number of officials he could

produce.

The Philadelphia phase of ABSCAM was authorized

by the F.B.I. for a ten day period and was the last major

operation conducted by the ABSCAM operatives. No in-

filtration or discovery of ongoing criminal activity took

place, or was intended by the government, in Philadel-

phia. Rather, the scenario centered upon the fictitious

sheik’s plan to construct a fictitious $35 million hotel in

Philadelphia, with its resultant fictitious major impact

on the city’s economy. The record, however, is devoid of

1. See the District Court’s discussion of the “Arab mind” tech-

nique and the manner in which it was employed, at PA. 197-198.

5

any evidence that payments of money to any city official

were either sought or required or that any Philadelphia

official wouid have had to be improperly dealt with in

connection with the proposed hotel project.

With this background, the Philadelphia pnase be-

gan with a series of recorded telephone calls from

Weinberg to Criden, on January 18, 1980, after which

Criden met in front of hidden video cameras with F.B.I.

Agent Michael Wald, who posed as a representative of

the fictitious sheik. Wald pressed Criden for introduc-

tions to Philadelphia municipal officials. He specifically

requested a meeting with Councilman George X.

Schwartz and Councilman Louis C. Johanson, Criden’s

law partner, despite Criden’s protestations that their as-

sistance was unnecessary. given the sheik’s prior rela-

tionship with two Philadelphia congressmen. Wald then

unilaterally raised the issue of payments and agreed to

pay Criden $10,000 for the production of Schwartz and

Johanson. As of this time, Criden had never met or had

any prior dealings with Schwartz.

Later that day, Johanson met with Wald. The meet-

ing was again recorded on videotape. Johanson agreed to

support the hotel project and accepted a $25,000 pay-

ment. At the end of the meeting, Wald gave Criden

$5,000 and promised him “5 for the next delivery.”

Johanson testified that, based on his earlier meeting

with Criden, he thought the payment was a retainer for

legal services which his law firm would perform on the

hotel project. Later and because he thought he had been

duped by Criden, Johanson refused a request by Criden

for an introduction to Schwartz or Jannotti since he felt

they were good men whom he did not want to involve in

improper activities.

On January 23, 1980, Schwartz met with Criden

and Wald,? and at the end of the meeting, also

2. Criden had obtained an introduction to Schwartz through a

mutual friend, Philadelphia Common Pleas Court Judge Thomas

Shiomos. Shiomos testified that Criden told him that Criden’s cli-

6

videotaped, a payment of $30,000 was given to

Schwartz. Wald then gave Criden $5,000 for delivering

Schwartz. and urged Criden to deliver petitioner

Jannotti.* Although, as with Schwartz, Criden did not

know Jannotti prior to the meeting, Criden boasted on

tape to Wald that he knew Jannotti well. The F.B.1. did

not attempt to verify Criden’s plainly false assertions of

knowing Schwartz, and it did nothing to verify his

equally false assertions concerning Jannotti.

On January 24, 1980, Jannotti appeared before the

video cameras. At trial, there was no direct evidence

against Jannotti other than the videotape of this meet-

ing.* Moreover, there was no evidence that Jannotti was

either under criminal investigation prior to the taping or

that any investigation of him was being conducted in the

time period between his being targeted for taping and

the taping itself.

The videotape disclosed that on January 24, 1980,

Jannotti, in the company of Criden, met Wald and Er-

nest Haridopolos, a second undercover F.B.1. agent, for

less than an hour. During the meeting, and following an

initial description by the agents of the contrived hotel

NOTE — (Continued)

ents wanted to hire Schwartz as a consultant and pay Schwartz for

his advice and that he, Shiomos, told this to Schwartz. Judge

Shiomos testified that he saw nothing “improper cr fishy” in this

proposal and so advised Schwartz. PA. 205-206.

3. Also, during this meeting between Criden and Wald, Wald

pressed for introductions to other city officials with whom he could

“deal,” naming, among others, the mayor and the former mayor of

the city of Philadelphia and various councilmen.

4. In addition to this tape, the government offered against

Jannotti the taped statements of Criden, Johanson and Schwartz as

co-conspirator statements and an alleged false exculpatory state-

ment. However, in none of this material is there any reliable evi-

dence as to how Jannotti was produced or what his state of mind

(predisposition) was before his introduction to ABSCAM. The Cir-

cuit Court held the admission of a substantial portion of the co-con-

spirator to be error, but harmless. PA. 5-i6.

7

project, the needs of the “Arab mind” were explained to

Jannotti. The government stated that the sheik insisted

upon making friends and resolving problems before they

arose. Indeed, Wald asserted that the “Arab mind” re-

quired that Jannotti accept the payment of money to

prove his friendship and clearly implied that acceptance

was absolutely necessary if the sheik was to construct

the hotel in Philadelphia. The hotel project was de-

scribed in expansive terms, and the sheik was described

as being able to finance the project himself from his in-

credible wealth. However, the message was always crys-

tal clear that the project would not come to Philadelphia

if the sheik could not make friends. Jannotti expressed

interest in the project as something which would greatly

benefit the City. He further stated, and repeated the

statement in response to the varying approaches of

agent Wald, that he would only support the project be-

cause it was legitimate and because it would be good for

the City. In addition, Jannotti stated on four separate oc-

casions that the proposed project was such that he

would support it without any other benefit because of

the good it would bring the City. Each time that Jannotti

showed reluctance to accept any money, Wald, Criden

and Haridopolos in turn increased the intensity of their

pitch until ultimately Jannotti was given money by the

government.

Once Jannotti left the meeting, Wald, obviously

frustrated because of Jannotti’s honest demeanor and

lack of understanding, interest or desire for the profiered

payment, spoke critically to Criden, again on tape, ques-

tioning Jannotti’s willingness to participate in the trans-

action and speculating whether Jannotti was insulted,

and Criden sought to placate him in order to insure his

own bounty for having delivered a public official to the

government.

5. In an early part of the tape, Jannotti discloses that he was

not aware that the fictitious project was a hotel, thinking rather that

it Was an apartment complex.

= ————_— $$

8

On February 2, 1980, in conjunction with the con-

clusion of ABSCAM, teams of F.B.I. agents were dis-

patched to conduct simultaneous interviews of the

ABSCAM targets. As a result, Jannotti was interviewed

by two F.B.I. agents. The interview was conducted on a

premise, namely, that an ongoing investigation was un-

derway into the activities of the sheik’s representative,

who had been impersonated by Wald. The interviewing

agents thus sought admissions from Jannotti concern-

ing his meeting with Wald. When Jannotti did not admit

to the acceptance of money, the testimony of an inter-

viewing agent was admitted on the theory that the inter-

view constituted a false exculpatory statement. In the

course of this testimony, however, additional facts were

established. It was clear that Jannotti did not know

Criden and did not know that he was an attorney. It was

also established that Jannotti had not come in contact

with Criden until a few hours before the meeting and

that at no time was he advised in the interview that the

meeting had been videotaped; hence, he was not con-

fronted with that evidence for purposes of explaining his

conduct.

Jannotti was indicted for conspiracy under 18

U.S.C. §§1951 (the “Hobbs Act”) and 1962 (the Racke-

teer Influenced Corrupt Organizations Act or “RICO”)

and also for attempts to violate the Hobbs Act. The at-

tempt charges were dismissed by the District Court prior

to trial, and the government did not appeal. Jannotti and

Schwartz were subsequently tried jointly on the two

conspiracy counts. Following a jury trial, Jannotti was

found guilty of the Hobbs Act conspiracy charge but was

acquitted on the RICO count.

At trial, the government did not present one scintilla

of independent proof of any actual, potential or any other

effect on interstate commerce as a result of petitioner's

conduct or alleged conspiratorial agreement. Likewise,

the government introduced no evidence that petitioner

sought, requested, solicited, demanded or otherwise af-

9

firmatively expressed the need for any payment of

money in exchange for official services. Finally, the gov-

ernment introduced no extrinsic evidence of petitioner’s

predisposition. Both prior to trial and following the trial,

the District Court held extensive hearing on the due

process issues.

After verdict, petitioner moved for judgment of ac-

quittal. By Memorandum and Order dated November

26, 1980, the District Court set aside the verdict in its

entirety, dismissed the Hobbs Act conspiracy counts for

lack of jurisdiction, and granted petitioner’s motion for

judgment of acquittal.

The government appealed the District Court’s rul-

ing and, on February 11, 1982, the United States Court

of Appeals for the Third Circuit, sitting en banc, reversed

the District Court’s decision by a seven-to-two vote, and

directed reinstatement of the jury verdict. Petitioner,

thereafter, on April 12, 1982, filed a Petition for Writ of

Certiorari with this Court, and on June 7, 1982, the Peti-

tion was denied. Following remand, the District Court

imposed sentence of January 31, 1983, and Jannotti was

sentenced to six months in prison and a fine of

$2,000.00. Petitioner appealed the judgment and con-

viction, and on February 21, 1984 the United States

Court of Appeals for the Third Circuit affirmed the Dis-

trict Court. A Petition for Rehearing and Suggestion of

Rehearing en banc was denied on March 20, 1984.

10

REASONS FOR GRANTING THE WRIT

Until resolved by this Court, the critical question

will always remain. will our legal system permit federal

investigative and prosecutorial agencies to create and or-

chestrate crime, to target and then solicit their potential

victims, to influence and pressure these victims by the

use of substantial inducements, and to script the evi-

dence which will be used to prosecute the victims? It is

Jannotti’s position that the creation of crime by the fed-

eral govermment is an immoral business, and given the

extraordinary impact which ABSCAM has had on the

national conscience, it is submitted that the controversy

must be definitively resolved. For all of the reasons set

forth below, granting of the writ requested is essential.

The Third Circuit’s Rulings On Hobbs Act Jurisdiction In

This Case Conflicts With the Rulings of Three Courts

of Appeals, Adversely Impacts On All Federal Crimi-

nal Legislation Enacted Under the Commerce Clause,

Misapplies Prior Holdings of This Court, and Is Erro-

neous Under the Facts of This Case.

The interstate commerce requirement in the Hobbs

Act, 18 U.S.C. §1951, is a mandatory jurisdictional pre-

requisite to any prosecution under that Act. As this

Court held in United States v. Feola, 420 U.S. 671, 695

(1975), in an analogous circumstance, “|t]he jurisdic-

tional requirement is satisfied by the existence of facts

tying the proscribed conduct to the area of federal con-

cern delineated by the statute.” In its decisions, the

Court of Appeals completely disregards this fundamen-

tal concept, establishes a standard of proof which is in

direct conflict with the standards employed by the

Fourth, Seventh and Ninth Circuits, sustains a convic-

tion for Hobbs Act conspiracy where no jurisdictional

fact was or could have been proven, and misinterprets

this Court’s prior decisions in Feola and Perez v. United

States, 402 U.S. 146 (1971). For these reasons and be-

11

cause as the Court of Appeals does recognize, a determi-

nation, in the Hobbs Act context, as to the extent of Con-

gress’ power under the commerce clause “will have

ramifications for all federal criminal statutes enacted un-

der Congress’ commerce clause power,” PA. 72, review

of the important Hobbs Act issues raised herein is im-

perative.

First, in United States v. Staszcuk, 517 F.2d 53 (7th

Cir.) (en banc), cert. denied, 423 U.S. 837 (1975), then

Judge Stevens addressed the interstate commerce issue

raised by the Hobbs Act, and held:

“{T]he statutory language [of the Hobbs Act]... re-

quires the prosecutor to prove some connection

with interstate commerce in every case. We hold,

however, that the commerce element of a Hobbs

Act violation — the federal jurisdictional fact —

may be satisfied even if the record demonstrates

that the extortion had no actual effect on commerce

... [JJurisdiction on the particular case is satisfied

by showing a realistic probability that an extor-

tionate transaction will have some effect on Inter-

state commerce.

“The jurisdictional inquiry must, of course, fo-

cus on the situation at the time of the offense.” Id.

at 59-60 (Emphasis added) (footnotes omitted).

Since 1975, the “realistic probability” test enunciated in

Staszcuk has continued to be the law of the Seventh Cir-

cuit and has been adopted and uniformly applied by the

Fourth and Ninth Circuits.®

6. E.g. United States v. Rindone, 631 F.2d 491, 493 (7th Cir.

1980); United States v. Phillips, 577 F.2d 495, 501 (9th Cir., cert.

denied, 439 U.S. 831 (1978); United States v. Spagnolo, 546 F.2d

1117, 1119 (4th Cir. 1976) (per curiam), cert. denied, 433 U.S. 909

(1977). Numerous other courts of appeals have referenced the

Staszcuk formulation in passing on Hobbs Act jurisdiction issues,

including the Third Circuit itself. E.g., United States v. Cerilli, 603

F.2d 415, 424 (3d Cir. 1979, cert. denied, 444 U.S. 1043 (1980).

12

In this case, the government created scheme upon

which the ABSCAM operation was premised was wholly

fictitious. Accordingly, the federal government could not

and did not prove at trial that, had the scheme been car-

ried out, interstate commerce would have been affected.

Moreover, it is undisputed that no evidence other than

the videotapes was introduced at trial by the government

to show that the alleged conspiracy would have had any

effect, actual or potential, on commerce if performed.

Rather, the best the government could do was to fashion

mere arguments, without any evidentiary support, ap-

pealing to the supposed common knowledge of the jury

in its attempt to satisfy its burden of proving an effect

upon interstate commerce.

Likewise, since the government, through its agents,

had no intention of ever implementing the scheme,

there never existed any possibility that the charged con-

spiracy would ever have had any effect upon interstate

commerce. Yet, despite these undisputed facts, the

Third Circuit held that where a defendant’s conduct

constitutes “a sufficient threat to interstate commerce so

as to implicate an ‘area of federal concern’,” federal juris-

diction is established. Thus, in direct conflict with

Staszcuk, the Third Circuit has wrongly substituted a

wholly subjective test, which would rest federal jurisdic-

tion upon hypothetical, imaginary or non-existent and

merely argued effects on commerce.

Under the rationale of Feola, federal jursidiction

must be predicated upon facts. In Feola, the jurisdic-

tional nexus under 18 U.S.C. §111 is satisfied by the ex-

istence of a fact, the presence of a federal officer, just as

federal jurisdiction under the Hobbs Act is based upon

the existence of a fact — an effect on interstate com-

merce. If A and B conspire to assault X and X turns out

to be a federal officer, the federal jurisdictional fact, and

in turn federal jurisdiction, is present. However, if A and

B conspire to assault X who they mistakenly believe to

be a federal officer, the federal jurisdictional fact is not

13

present. Federal jurisdiction under a charge of Hobbs

Act conspiracy can not be predicated solely upon the

state of mind of the defendant; rather, it requires the

proof of a fact, and measured by the facts, no effect on

interstate commerce could have ever taken place in the

instant case.

Second, permeating every aspect of this case is the

uncontroverted fact of the government’s instigation and

scripting of ABSCAM. The federal agents thus unilater-

ally fashioned a scheme which they hoped would satisfy

federal jurisdictional requirements. In each case relied

upon by the Court of Appeals, however, the nature and

extent of the conspiracy — the substance of the criminal

design — was formulated by the defendants them-

selves. ‘

If the focus of the jurisdictional inquiry is upon the

conspiratorial agreement, see United States v. Feola,

supra, 42C U.S. at 695-96, it is both illogical and pa-

tently unfair to sanction governmental manipulation of

that agreement solely to create federal jurisdiction. If the

purpose of the federal conspiracy !aws is to provide fed-

eral law enforcement officials with the tools necessary to

combat criminal conduct in “areas of federal concern,” it

is likewise illogical to contend that these same officials

may be given carte blanche to create indiscriminately

what they believe to be an “area of federal concern” in

any given case so that they may be able to prosecute it.

Whether one accepts Judge Aldisert’s formulation

that “A purely hypothetical effect, a fairy tale conjured

by the F.B.I. . . . is not ‘a sufficient threat to [commerce]

So as to give rise to federal jurisdiction,’ ” or one employs

Judge Friendly’s “manufactured jurisdiction” approach,

United States v. Archer, 486 F.2d 670 (2d Cir. 1973),

the reality is that no real, actual impact on interstate

commerce could have ever occurred in this case and but

7. See cases cited in the opinion of the Court of Appeals at PA.

74-77.

i4

for the government’s creation and injection of an inter-

state element into the scheme, the federal courts would

be without jurisdiction to prosecute petitioner under the

Hobbs Act. This case, even more than Archer, epito-

mizes the dangerous concept of “manufactured federal

jurisdiction.”®

Third, not only does the opinion of the Court of

Appeals demonstrate a complete misunderstanding of

Feola, see 420 U.S. at 695-96,° which clearly states that

a federal officer must be the subject of an agreement to

assault if federal jurisdiction is to be present, but it also

reflects a fundamental misperception of and a lack of re-

spect for the essential nature of federal criminal jurisdic-

tion. As Judge Aldisert recognizes:

“The majority interweaves its jurisdictional argu-

ment with the argument that factual impossibility of

completing a substantive offense does not bar a con-

viction of conspiracy. They confuse proof of the

crime of conspiracy with the jurisdictional power to

punish the crime. The presence of subject matter

jurisdiction is a discrete and primary issue in each

case presented to a federal court, unlike a state

court. The effect on commerce is both jurisdictional

and substantive in a Hobbs Act prosecution, but the

8. In its Opinion the District Court stated:

“Moreover, to permit this kind of artificial federalization

would efficiently remove virtually all of the limitations

upon the criminal jurisdiction of federal courts, and

would be utterly contrary to accepted notions of federal-

ism.” PA. 199-200 (Emphasis added).

9. In her Opinion Judge Sloviter remarked:

“In holding [in Feola] that there was a ‘sufficient threat’ to

an area of federal concern to meet the 32 jurisdictional re-

quirements as long as a federal officer was in fact the tar-

get of the planned attack, 420 U.S. at 695, the Court did

not preclude the existence of federal jurisdiction where the

intended victim is believed to be a federal officer, but in

fact is not.” PA. 78 (Emphasis added).

15

two inquiries are separate and distance. See, e.g.,

Feola, 420 U.S. at 694-96." PA. 147 (Emphasis

added).

Not only are the two inquiries “separate and distinct,”

but also the standards by which they are determined dif-

fer. Respecting proof of the substantive offense, the sub-

jective criminal intent of an alleged Hobbs Act defend-

ant is crucial; respecting proof of Hobbs Act jurisdiction,

however, the subjective criminal intent of a Hobbs Act

defendant is irrelevant. The intent of the Hobbs Act de-

fendant can neither create nor negate the jurisdictional

fact. In Staszcuk, then Judge Stevens understood this

distinction and formulated a test which respected it.

Judge Sloviter, in her opinion for the court below, paid

lip service to the limitations inherent in the Constitu-

tion’s grant of power to Congress to legislate under the

Commerce Clause and established a test which shifts

the focus of the jurisdictional inquiry away from the “ex-

istence of [real] facts” and to the subjective intent of the

actor. As a result, the objective “realistic probability” test

established by Staszcuk has been ignored by the Third

Circuit and the requirement in Feola that federal juris-

diction be predicated on fact has been completely abro-

gated.

Finally, the Court of Appeals faults Jannotti for fail-

ing to present any “policy reason” for it to accept “their

restrictive view” of the jurisdictional reach of the Hobbs

Act. PA. 78. The policy is clear. The federal courts are a

creation of the federal Constitution and of Acts of Con-

gress, and, as such, they are courts of limited jurisdic-

tion. Jurisdiction under the Hobbs Act is predicated on

the Commerce Clause. Interference with interstate com-

merce must be proven before the federal courts may

prosecute a violation of the Hobbs Act. Absent actual in-

terference with commerce or clear proof that an actual

impact on commerce would have esulted from a crimi-

nal defendant's action, the federa: courts simply cannot

hear the case. It is Jannotti’s position that the Court of

16

Appeals, by its ruling, has abolished all jurisdictional

limitations which heretofore existed under the Hobbs

Act and has constructed a standard “which in practical-

ity would extend federal jurisdiction over just about any

robbery or extortion.” United States v. French, 628 F.2d

1069, 1077 (8th Cir. ), cert. denied, 101 S.Ct. 364 (1980).

A Conviction for Extortion Under the Hobbs Act Absent

Proof of Inducement by a Defendant Should Not Be

Permitted, and Clarification of This Issue Is Essential.

A plain reading of the definition of “extortion” in the

Hobbs Act shows that proof of inducement is necessary

to convict. The District Court held that the absence of

proof of any express or implied demand or request for

payment requires dismissal of the Hobbs Act charges.

PA. 154. The Court of Appeals reversed, asserting that

the law is clear throughout the circuits that proof of in-

ducement by a public official acting “under color of offi-

cial right” is unnecessary. PA. 79. Petitioner submits

that both the decision of the Court of Appeals and its ra-

tionale are incorrect.

The First, Third, and Eighth Circuits have each ap-

proved jury instructions which require a specific finding

of inducement.'® In fact, except for Staszcuk, where in-

sufficient detail is provided to determine whether affirm-

ative action was taken by the defendant, and United

States v. Hedman, 630 F.2d 1184 (7th Cir. 1980), cert.

denied, 450 U.S. 965 (1981), which does nothing more

than cite, as “settled law,” the very cases which either

include evidence of inducement or approve a charge on

inducement, there is no decision under the Hobbs Act

involving a public official which sustains an extortion

conviction absent evidence of inducements or of “initia-

10. See United States v. Hathaway, 534 F.2d 386 (1st Cir. ),

cert. denied, 429 U.S. 819 (1976); United States v. Addonizio, 451

F.2d 49, 59 (3d Cir.), cert. denied, 405 U.S. 936 (1972), United

States v. Adcock, 558 F.2d 397 (8th Cir. ), cert. denied, 434 U.S. 921

(1977).

17

tive and purpose,” United States v. Hyde, 448 F.2d 815,

833 (Sth Cir. i971) (Wisdom. J.), cert. denied, 404 U.S.

1058 (1972), on the part of the official."

In this case, it is clear that neither Jannotti. nor any-

one acting on his behalf, at any time requested or de-

manded money in connection with the proposed con-

struction of the hotel in Philadelphia or in exchange for

petitioner's use of his official position. Rather. the evi-

dence is clear that Jannotti was, at most. the passive re-

cipient of money and would have supported the pro-

posed project whether or not any money was paid to

him.

In those cases decided under the Hobbs Act in

which public officials were not defendants. the law has

long been clear that, in the absence of proof that a de-

fendant induced or intended to induce payment, the

mere acceptance of a bribe does not constitute extortion

or violate the Hobbs Act. E.g., United States v. Gerald,

624 F.2d 1291 (Sth cir. 1980); United States v. Duhon,

965 F.2d 345 (5th Cir.)., cert. denied, 435 U.S. 952

(1978); United States v. Hyde, supra.’2 And. as noted

above, given the requirement of inducement even in of-

ficial corruption cases and the fact that no case involving

official corruption has ever resulted in conviction of the

defendant absent proof of a request or demand, the

Court of Appeals’ reading of the Hobbs Act and the con-

clusion which it reached are clearly incorrect. Clarifica-

tion of this troublesome issue is plainly warranted.

11. “In other words, while the essence of bribery is voluntari-

ness, the essence of extortion is duress.” United States v.

Addonizio, supra, 451 F.2d at 72 citing People v. Dioguardi, 8 N.Y.

2d 260, N.Y.S. 2nd 870, 168 N.E. 2d 683 (1960).

12. Indeed, no rational argument can be made to support di-

vergent approaches to the Hobbs Act. As the court stated in Hyde,

“|[t}he distinction from bribery is therefore the initiative and purpose

on the part of the [defendant] and the fear and lack of voluntariness

on the part of the victim.” Id. at 833.

18

The Government’s Conduct of ABSCAM Violated the Most

Basic Standards of Due Process and Fundamental

Fairness, Reaching and Exceeding That Degree of

Outrageousness Which Mandates Dismissal of this

Prosecution

The District Court in this case applied the “demon-

strable level of outrageousness” standard set down in

Hampton v. United States, 425 U.S. 484, 495 n.7 (1976)

(Powell, J., concurring), and held that the government’s

conduct and activities in ABSCAM exceeded permissible

limits. This record confirms that the District Court was

correct. Due process in the context of criminal proceed-

ings has received only limited treatment by this Court,!*

but numerous courts of appeal have applied due process

concepts! and in several instances have reversed crimi-

nal convictions on this very ground.!° Every factor found

relevant to the due process analysis by every court of ap-

peals that has ever considered the issue is present here

in the extreme.

The government instigated and scripted the entire

13. Sorrells v. United Siates, 287 U.S. 435, 459 (1932) (Rob-

erts, J., separate opinion); Sherman v. United States, 356 U.S. 369,

381 (1958) (Frankfurter, J., concurring); United States v. Russell,

411 U.S. 423 (1973); Hampton v. United States, supra; See

Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J.,

dissenting); Casey v. United States, 276 U.S. 413 (1928) (Brandeis,

J., dissenting).

14. E.g. United States v. Bocra, 623 F.2d 281 (3rd Cir. ), cert.

denied, 449 U.S. 875 (1980); United States v. Prairie, 572 F.2d

1316 (9th Cir. 1978); United States v. Johnson, 565 F.2d 179 (1st

Cir. 1977), cert. denied, 434 U.S. 1075 (1978); United States v.

Leja, 563 F.2d 244 (6th Cir. 1977), cert. denied, 434 U.S. 1074

(1978); United States v. Reifsteck, 535 F.2d 1030 (8th Cir. 1976),

and see cases cited infra at footnote 9.

15. E.g., United States v. Twigg, 588 F.2d 373 (3d Cir. 1978);

United States v. Archer, 486 F.2d 670 (2d Cir. 1973); United States

v. Russell, 459 F.2d 671 (9th Cir. 1972), rev'd, 411 U.S. 423 (1973):

Greene v. United States, 454 F.2d 783 (9th Cir. 1971). See United

States v. West, 511 F.2d 1083 (3d Cir. 1975).

19

ABSCAM scheme. Its involvement was pervasive, and

the scheme was singularly designed to lure innocent

persons into its web. Indeed, no evidence of ongoing

criminal conduct by Jannotti was present when

ABSCAM was injected into his life, nor did any evidence

exist of any prior or continuing criminal activities of this

type in Philadelphia city government at the time.

Jannotti did not encourage the government either to ini-

tiate or expand the scheme. He responded only to the

government’s repeated inducements and protestations

of need, and after extreme pressure was brought to bear

on him through the use of the “Arab mind” ruse and the

appeal to his fundamental civic duty the hotel project to

Philadelphia.

Further, the government’s agents employed middle-

men who were paid on a contingent fee basis, a tactic

condemned by the Fifth Circuit in Williamson v. United

States, 311 F.2d 441 (5th Cir. 1962), on appeal after re-

mand, 340 F.2d 612 (5th Cir.), cert. denied, 381 U.S.

950 (1965). Moreover, the government was totally un-

concerned with the methods and ploys used by these

middlemen to convince persons to participate in the

meetings, despite their knowledge of prior deception and

unconscionahle coaching by these very same middle-

men. Indeed, neither the government nor Criden had

any reason to suspect either a propensity to engage in

criminal conduct on the part of Jannotti or the presence

of any ongoing criminal activity involving him. Regard-

less of petitioner’s state of mind at the time he was

approached by the government, no reason exists on this

record to even suggest that, absent the government’s

instigation in this case, Jannotti would not have lived the

rest of his life as a respected and law abiding member of

the community.

The Court of Appeals distorts the significance of the

various aspects of the government’s activities in

ABSCAM by isolating them one from the other, and by

failing to recognize that all of these elements, taken to-

20

gether, plainly demonstrate the outrageousness of the

government’s conduct. In Greene v. United States,

supra, 454 F.2d at 787, the Ninth Circuit recognized

that although

“taken individually, none of the factors which we

have pointed to as significant would necessarily re-

quire reversal of a conviction. In our view, it ts the

combination which is important.” (Emphasis

added).

The totality of factors present here mandates a ruling in

petitioner’s favor.

Further, in its analysis of the due process question,

the Court of Appeals improperly mixed concepts of en-

trapment and due process, failing to recognize the con-

stitutional underpinnings of the due process defense.

For example, although proof that the government had

no reason for approaching a victim may be irrelevant in

the entrapment context, it is and must be a factor in any

due process analysis. Similarly, although in the view of

the Court of Appeals the inducements offered by the

government may not have been sufficient to sustain an

entrapment defense, see PA. 108, these same induce-

ments may, when viewed in conjunction with the entire

scope of unfair governmental activity, be a substantial

factor in supporting a due process defense.

Even if one argues, as does the Third Circuit major-

ity, that the government may employ secretive tactics

and deliberate stratagems to ferret out dishonesty

among public officeholders or to detect illicit drug trans-

actions, that argument does not sanction the govern-

ment’s instigation, control and total orchestration of the

very criminal activity which it intends to prosecute. In

every other case in which the due process defense has

been raised, governmental involvement in criminal ac-

tivity has been passive, and the basic criminal design

has, in each instance, been conceived and carried out in

all material respects by the defendants themselves.

21

However, in none of those cases has governmental

instigation of or involvement in criminal conduct risen to

the abhorrent levels which are present in the Philadel-

phia ABSCAM case.

First, the government designed the very nature of

the fictitious scheme in an attempt to create the federal

jurisdictional fact — interstate commerce — which

would permit it to prosecute this case in the federal

courts. In the same manner, the government, through

its manipulation of its captive middleman, Criden, con-

structed a pattern of bribery which would not have ex-

isted but for Criden’s presence throughout the scheme.

Further, the conduct and language of the government’s

agents were deliberately ambiguous and misleading. In-

deed, a review of the record will demonstrate that at no

time did the government ever ask Jannotti whether the

payment of a bribe was necessary. Moreover, at no point

did the government seek to elicit Jannotti’s understand-

ing of the purpose of the meeting. One must conclude

that the agents feared that such an explicit approach

would only have resulted in the refusal of the victim they

had stalked.

Finally, a review of the Circuit Court’s opinion re-

veals a fundamental misconception of the role of the ju-

diciary. In the view of a majority of the Third Circuit, it is

not the judiciary’s function to determine the constitu-

tional limitations under which our law enforcement

agencies are to operate. According to Judge Sloviter:

. the conduct of agents of the executive branch

who must protect the public from crime is more ap-

propriately considered through the political process

where divergent views can be expressed in the bal-

lot box.” PA. 112.

The opinion of the Court of Appeals manifests a to-

tal abnegation of the judiciary’s obligation to define and

enforce the rights of citizens under the Constitution. As

Judge Aldiseri correctly recognizes in his dissent:

22

“(T]he philosophical difference that divides this

court depends upon a judge’s unspoken notions

about the role of the courts. If he or she views the

role of the court as a passive one, he or she will be

willing to delegate the responsibility for unpopular

issues to the jury and not care greatly what the re-

sult may be. If he or she views the court as an in-

strument of society designed to reflect in its deci-

sions the highest values of the American legal

tradition, he or she will be more likely to risk public

disapproval and to measure an unpopular cause

against the highest ideals and aspirations of the

time.

The rights conferred upon our society by

judges of the Third Article emanated from cases in

which the defendants were unpopular and gener-

ally regarded as transgressors — Dollree Mapp,

Danny Escobedo, and Ernesto Miranda quickly

come to mind. In each case, a court, not a jury, drew

the line of demarcation between permissible and

impermissible police conduct to insure that enforc-

ers of society’s laws would not violate established

moral frontiers while exercising their stewardship;

it was federal judges, unmindful of editorials and

broadcast plaudits, who chose to stand tall and un-

bending.” PA. 126. (Footnote omitted).

If a national benchmark defining limits on federal

law enforcement activity of this type is not established,

no citizen can be secure from the clandestine imposition

of morality tests.

23

The District Court’s “Bifurcated” Entrapment Charge Er-

roneously Submitted To The Jury A Question of Law

Reserved to the Court, Shifted The Burden Of Proof

To The Defense, And Potentially Withdrew From The

Jury Petitioner’s Crucial Entrapment Defense. This

Comprised Constitutional Error But The Third Cir-

cuit Abnegated Chapman’s “Harmless Beyond A Rea-

sonable Doubt” Standard.

Petitioner’s trial defense was entrapment. In in-

structing the jury, however, the District Court errone-

ously charged that Jannotti had a threshold burden of

proof to show government inducement before the jury

was required to consider his defense. The Third Circuit

found this charge to be erroneous, holding:

“Turning to the district court’s charge in the

present case, we note that the court clearly stated

that ‘the burden is upon the Government in a case

of this kind to prove beyond a reasonable doubt that

there was no entrapment.’ Repeatedly, however, the

court indicated that the defendants had a threshold

burden of showing inducement. Not only did this

incorrectly divide the burden between the defen-

dants and the government, but it also required an

independent consideration of the issue of induce-

ment, apart from the central issue of predisposition.

We must therefore conciude that the disirict court’s

instruction on entrapment was erroneous.” PA. 20-

ai.

Nonetheless, the Third Circuit further held that the

erroneous charge was not reversible, ruling it harmless

pursuant to its “highly probable” standard of appellate

review set out in Government of Virgin Islands v. Toto,

529 F.2d 278, 284 (3d Cir. 1976), rather than the “rea-

sonable doubt” standard established by this Court in

Chapman v. State of California, 386 U.S. 18 (1967). The

jury was thus permitted, in reaching its decision on the

entrapment defense, to make a threshold finding as to

whether Jannotti had met his burden of proof on induce-

24

ment. Of course, if the jury decided against Jannotti on

this question, he was then denied consideration of his

basic defense.

The Third Circuit based its decision to disregard

Chapman on the rationale that the District Court’s erro-

neous instruction involved a non-constitutional defense,

entrapment. This holding, however, fails to address the

unavoidable effect of the erroneous instruction, namely,

the shifting of the burden of proof to a federal criminal

defendant. Surely, a jury instruction which requires a

federal defendant to meet a burden of proof to establish

his right to a defense raises a basic question of constitu-

tional proportions. Davis v. United States, 160 U.S. 469

(1895).

Thus, consideration by this Court is required to

define the factors which trigger Chapman as opposed to

a lesser standard. Indeed, petitioner submits that the

only test for harmless error on a fundamental criminal

issue should be Chapman, since to hold otherwise is to

risk a dilution of the fundamental reasonable doubt

standard.

In this case, petitioner based his trial defense on en-

trapment. Nonetheless, the government’s careful

scripting of the videotape resulted in entrapment issues

of extreine difficulty. Hence, the imposition of an erro-

neous threshold burden of proof for Jannotti could have

only risked the strong likelihood that his entire defense

would never be considered. For harmless error to then

be found on less than a reasonable doubt basis clearly

presents the realistic probability that no fact finder ever

applied a reasonable doubt standard to Jannotti’s de-

fense.

Moreover, it is also unavoidable that the erroneous

instruction should have required reversal under a Chap-

man analysis.!© Careful review of petitioner’s videotape

16. Per se reversal is normally required when a bifurcated

charge is given. See: United States v. Watson, 489 F.2d 504 (3d

Cir. 1973); United States v. Wolffs, 594 F.2d 77, 79-84 (Sth Cir.

25

reveals Jannotti’s confusion, uncertainty, and concern

for a legitimate construction project. Indeed, his taped

reactions to the ABSCAM pitch resulted in concerns ex-

pressed by Agent Wald after the taping that petitioner

was not interested in the false proposition. Clearly, un-

der these circumstances, one cannot establish harmless

error beyond a reasonable doubt.

Where the Evidence of Governmental Inducement Is Over-

whelming, the Government May Not Rely Upon Evi-

dence of “Ready Acquiescence” Manufactured by It to

Meet Its Burden, Nor Can A Court Sustain A Convic-

tion In An Entrapment Case On Proof Of Commission

of the Criminal Act Alone.

Although under the law of entrapment it is the gov-

ernment’s burden to prove predisposition beyond a rea-

sonable doubt, the Third Circuit permitted the verdict to

stand on evidence of the commission of crime alone. Pre-

disposition is an inquiry into the defendant’s subjective

state of mind. “[T]he controlling question [is] whether

the defendant is a person otherwise innocent whom the

Government is seeking to punish for an alleged offense

which is the product of the creative activity of its own

officials.” Sorrells v. United States, 287 U.S. 435, 451

(1932). Subsumed within any discussion of entrapment

is the intertwined relationship between inducement and

predisposition. As the Third Circuit itself recognized in

United States v. Watson, 489 F.2d 504 (3d Cir. 1973):

“(T]he stronger the inducement, the more likely

that any resulting criminal conduct of the defend-

ant was due to the inducement rather than to the

defendant’s own predisposition.” Id. at 511.

The extraordinary degree of government induce-

ment in this case has already been reviewed. Given the

1979); United States v. Tate, 554 F.2d 1341, 1343-1345 (5th Cir.

1977); United States v. Ambrose, 483 F.2d 742, 653 (6th Cir. 1973);

United States v. Dearmore. 672 F.2d 738, 740-741 (9th Cir. 1982).

26

evidence of these overwhelming inducements, the gov-

ernment’s evidentiary burden to prove predisposition

was substantial. But the majority of the Circuit Court ab-

jures any necessity to conduct a review of the entire rec-

ord, despite its profession of the appropriateness of such

a procedure. PA. 87-88. Instead, as Judge Aldisert points

out, it satisfies itself with a rebuttal of the items relied

upon by the District Court in entering judgments of ac-

quittal. PA. 139. In so doing, the Court again relieves the

government of its obligation to prove predisposition by

good and sufficient evidence and effectively shifts the

burden of proof to the petitioner.

Second, although appreciating that predisposition

has been historically proven by, for example, proof of a

defendant’s prior convictions, his participation in similar

transactions or proof of bad character, the Court of

Appeals majority makes the startling observation that

since “[s]uch evidence would be extremely difficult to

produce in the case of acceptance of a bribe by a public

official. .. . the very acceptance of a bribe by a public

official may be evidence of a predisposition to do so when

the opportunity is presented.” PA. 99-100. Again, the

majority of the court below states in the most blatant

terms that proof of the criminal act, a fact which must be

admitted of necessity by a criminal defendant if he is to

be permitted to argue entrapment, is enough when it is a

public official who is in the dock.

In no case in which proof of government induce-

ment was a so overwhelming as this case has any court

permitted a conviction to stand on “ready acquiescence”

evidence such as presented here. Although in some situ-

ations a defendant’s ready acquiescence to the govern-

ment’s suggestions may be enough to justify a finding of

predisposition, here Jannotti did nothing tending to es-

tablish pre-existing criminal inclinations, or such famil-

iarity with criminal techniques and procedures as to

demonstrate previous experience with similar criminal

activity. In short, there was no evidence to show that

27

when the government'’s overtures first came to the atten-

tion of Jannotti he was already predisposed to accepting

a bribe.

It is clear that the court’s rejection of the entrap-

ment defense rests upon the notion that all petitioner

had to do when offered the money was to say “No

thanks.” PA. 104. Such an approach to the difficult juris-

prudential problem raised by this case is wholly unac-

ceptable.

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to the Court of Appeals for the Third Circuit so that

this Honorable Court may review and correct the deci-

sion below.

Respectfully submitted,

J. CLAYTON UNDERCOFLER, III

ROBERT N. DE LUCA

CARL W. HITTINGER

2600 The Fidelity Building

Philadelphia, PA 19109

(215) 875-7000

Attorneys for Petitioner

Harry P. Jannotti

Of Counsel:

DILWORTH, PAXSON, KALISH & KAUFFMAN