Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. HCR-78-27 -- Phil M. McNagny, Jr., Judge .
Before Swygert and Sprecher, Circuit Judges, and East,*fn* District Judge.
John B. Nicosia (Nicosia) appeals his judgment of conviction and sentence to custody and a fine entered by the District Court on July 26, 1979 for endeavoring to influence witness Cornel Leahu (Leahu) to testify falsely before a grand jury in violation of 18 U.S.C. § 1503. We affirm.
INDICTMENT AND JURY VERDICTS
Nicosia was indicted on March 16, 1978. Count I charged him with filing a false income tax return. Count II charged perjury. Count III charged Nicosia with endeavoring to influence witness Leahu to testify falsely before a grand jury in violation of 18 U.S.C. § 1503. On March 9, 1979, the jury found Nicosia not guilty on Counts I and II and guilty on Count III.
Nicosia presents four issues on review:
1. Whether the District Court erred by excluding the defense of entrapment from the consideration of the jury.
2. Whether the District Court erred by receiving certain out-of-court statements, as non-hearsay declarations of co-conspirators, without finding by a preponderance of the evidence that such statements were shown to have been made by co-conspirators in furtherance of a conspiracy of which Nicosia was a member.
3. Whether the District Court's instructions on the elements of the offense of obstruction of justice and on the defense of impossibility were erroneous.
4. Whether the indictment was sufficient to charge an offense under 18 U.S.C. § 1503 and whether the indictment was illegally amended.
Nicosia, a physician, was mayor of East Chicago, Indiana from January 1964 through December 1971, two four-year terms. He appointed Leahu Superintendent of the East Chicago Sanitary District. During Nicosia's second term as mayor, the city undertook its Water Pollution Abatement Project (WPAP) under the direction of the Sanitary District. The evidence implicates Nicosia in a scheme for the contractor to kick back funds to public officials. In the Spring of 1969, Nicosia, Leahu, two Sanitary District engineers, and Alfred Kovach (Nicosia's former executive assistant) met in Nicosia's basement to discuss the scheme. Subsequent conversations occurred between Nicosia and Kovach. The plan involved establishing a phony Swiss consulting firm to which fees would be paid and then returned to the United States in cash. The contractor gave one million dollars to Leahu, who gave it to Kovach, who delivered the money to Nicosia.
Leahu and Kovach first testified to a grand jury that the money was given to Sidney Moss. After Leahu and Kovach were convicted, they decided to cooperate with the Government in exchange for recommendations for reductions in their sentences. Kovach testified before the Nicosia grand jury that Nicosia, not Moss, had received the money. On June 9, 1977, Leahu testified before the same grand jury under a grant of immunity.
On June 10, 1977 and again on July 7, 1977, Leahu met with Nicosia while wearing a concealed microphone and tape recorder. On June 10, Leahu told Nicosia that he had been subpoenaed and that Kovach had changed his story. Nicosia urged Leahu to stick to his story that Moss had received the money and to state that he could not recall any basement meeting or driving Kovach to Nicosia's house to deliver money. He discussed the statutes of limitations and told Leahu to be careful about the dates he told the grand jury he had received payments. He repeatedly said that Leahu was to say that the mayor knew nothing about it. At the July 7th meeting, Nicosia again urged Leahu to say he could not remember anything involving Nicosia. These conversations were the basis of Nicosia's indictment for obstructing justice.
Nicosia identified his voice on the tape recordings at trial but denied attempting to influence Leahu improperly. Leahu testified at trial that during an unrecorded part of the July 7th conversation, Nicosia discussed giving him some money from the proceeds of the sale of some paintings.
"The trial court refused to admit evidence tending to prove entrapment and refused to instruct the jury as to entrapment for the stated reason that this defense was not available unless (Nicosia) admitted that he had in fact committed the offense of obstruction of justice."
The District Court's ruling was fostered by this Court's decision in United States v. Johnston, 426 F.2d 112, 114 (7th Cir. 1970). Nicosia urges that the rule of Johnston should be reversed in light of other Circuits' later decisions, specifically United States v. Demma, 523 F.2d 981 (9th Cir. 1975). In Demma, the en banc court reversed the prior rule of the circuit, similar to the requirement of Johnston, that a defendant must admit the acts of the alleged crime in order to raise a defense of entrapment and held at 982:
"(A) defendant may assert entrapment without being required to concede that he committed the crime charged or any of its elements."
Most certainly the rule of Demma, as well as a similar rule in at least four other circuits, tempts a reconsideration of Johnston by the Court en banc. However, this appeal is not the vehicle to drive for such a review because, as later pointed out, the evidentiary record on appeal is devoid of any evidence in support of a defense of entrapment calling for an appropriate jury entrapment defense instruction.
In this case, we look to the whole record before the District Court. Nicosia offered the testimony of Mr. Shapiro, one of the prosecutors, concerning the instructions given to Leahu, before his taped conversations with Nicosia. Even though the instructions directed Leahu to lie and to challenge Nicosia, the Court held that they were not probative of anything in the case. Nicosia seems to be claiming that since Leahu told Nicosia many lies and misled him into thinking Leahu was still loyal to him, entrapment occurred. He is wrong. "It is only when the Government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play." United States v. Russell, 411 U.S. 423, 434-36, 93 S. Ct. 1637, 1644-45, 36 L. Ed. 2d 366 (1973).
Nicosia has attempted to interpret his conversations with Leahu to be innocent, but a glance at excerpts of the tapes*f ...