United States v. Luisi

482 F.3d 43 (2007)

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Nature of the Case

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Facts

Previte, a captain in the LCN, assisted the FBI investigation into the LCN by working as a cooperating witness under a personal services contract with the FBI. He was paid a substantial sum of money in return. D was also an LCN captain who was supervising the criminal activity in Boston. The FBI had Previte introduce D to McGowan, an undercover FBI agent, who posed as a source of illegal money-making opportunities. McGowan told D he had previously worked with Previte and that he needed help taking advantage of special 'deals.' McGowan told D of a number of different opportunities. D expressed an interest in the possibility of obtaining diamonds. D and Previte spoke to each other at a party in Philadelphia. Previte proposed a 'swap' of cocaine for diamonds, and D's response was that he would 'try' to get the deal done. D testified that he gave this response because 'at the party D's boss, Merlino, made it very clear to that he wanted these drugs.' D testified that shortly after the party he chose not to do the deal. At a second encounter, D said he would do the deal but pulled McGowan aside and said it would be difficult and it would take time. D testified that he did not actually agree to do a drugs-for-diamonds swap. Previte came to Boston. He met with McGowan, D, and some of D's associates. D confirmed that he would get the cocaine-for-diamonds deal done. Afterward, D said to McGowan, the deal would not happen immediately. The next week D returned film that McGowan had delivered as D was not able to move it. D then told McGowan he didn't want to have anything to do with drugs. D then sent McGowan to a guy named Danny White, not affiliated with D, to do the deal. Danny White is a fictitious person whom D made up in order to pretend that he was cooperating with McGowan. Weeks passed along with more phone calls. Finally, Previte had a conversation with Merlino, his superior. Previte complained to Merlino that D had not yet done the cocaine transaction. He directly asked Merlino if there was 'any way you could just tell D to do what he gotta do.' They agreed Previte would put D on the phone with Merlino, at which point Merlino would tell D to do the cocaine deal. Previte went to McGowan's office, and McGowan arranged for Previte to make a three-way call with LCN boss Merlino and D, Merlino's underling. Merlino (somewhat cryptically) got down to business. D testified that he understood Merlino to be ordering him to get the cocaine deal done and that he agreed to do the deal as a result of this. Two days after the call with Merlino -- Carrozza, a D associate, sold two kilograms of cocaine to McGowan. Carrozza told McGowan that the cocaine came 'right from D. A second deal was agreed to and completed. At trial, D explained that the LCN was extremely hierarchical, and he stated that when the head of the LCN ordered him to do the cocaine transaction, he felt that he had no alternative other than to fulfill the order. D's attorney asked the district court to dismiss the case on the ground that the government had engaged in allegedly outrageous conduct, thereby violating D's due process rights. The court never ruled on that motion but agreed that D was entitled to an entrapment instruction. D specifically asked for an instruction indicating that if the jury found that Previte had induced Merlino, that meant that Merlino's order could be considered government action. It was refused. During deliberations, the jury asked about Merlino's influence on D and whether it was induced by the government. The court concluded that because Previte ranked below Merlino in the LCN hierarchy, Previte was in no position to 'instruct' Merlino to do anything and thus there was no indirect entrapment. The district court reinstructed the jury on entrapment and left out any involvement of Merlino. D was convicted and appealed.