Tzimopoulos v. U.S., 77-1032

• Citation: 554 F.2d 1216
• Decision Date: 20 May 1977
• Docket Number: No. 77-1032,77-1032
• Parties: Nicholas TZIMOPOULOS, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1216

554 F.2d 1216

Nicholas TZIMOPOULOS, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 77-1032.

United States Court of Appeals, First Circuit.

Argued April 6, 1977.

Decided May 20, 1977.

Melvin S. Louison, Taunton, Mass., for appellant.

Paul F. Healy, Jr., Asst. U. S. Atty., Washington, D. C., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and MILLER, ^* Judge.

PER CURIAM.

Appellant challenges on several grounds his conviction by a jury on a one-count indictment charging that he offered a bribe to a public official in violation of 18 U.S.C. § 201. We affirm.

Appellant argues that his criminal conduct was "the product of the creative activity of government agents thereby establishing entrapment as a matter of law," and that, in any case, the trial judge erred in refusing to give a requested instruction on entrapment. We find no merit in either point. ¹ Entrapment as a matter of law may be established by undisputed facts that the criminal design originated with the government agent, who planted in the mind of an innocent person the idea of committing the offense, and that the innocent person committed the offense at the urging of the government agent. Sherman v. United States, 356 U.S. 369, 372-73, 78 S.Ct. 819, 821, 2 L.Ed.2d 848, 851 (1958); United States v. Jackson, 539 F.2d 1087, 1090 (6th Cir. 1976). Here the fact of the "planting" is very much in dispute, with the government agent (John R. Holliday, Criminal Investigator, United States Immigration and Naturalization Service (INS)) testifying that appellant first brought up the idea of a bribe by saying "perhaps we could handle it here today outside of the office for cash" and appellant testifying:

Mr. Holliday is the one who came up to me and suggested this. I did not go up to him and suggest it.

With respect to any "urging" on the part of the government agent, appellant testified that "Holliday forced me into doing this kind of thing," and argues that "This is the only piece of evidence on point" and that it is sufficient. However, such a statement is conclusory, and, as pointed out by appellee, use of the word "forced" is self-serving. Moreover, the real "evidence on point" is shown by the record of cross-examination of appellant, as follows:

Q After he (Holliday) suggested it you freely went along with it?

A Yes, because you see I am not infallible. I trusted his valued judgment, his valued judgment to make this and Tsironis' valued judgment. ²

With respect to the argument that the entrapment issue should, at least, have been presented to the jury in the court's charge, we find no error in the court's refusal to do so. Appellant contends that he met the burden of establishing a defense of entrapment prescribed by this court in Kadis v. United States, 373 F.2d 370, 374 (1st Cir. 1967), quoting therefrom as follows:

Henceforth we will look, singly, at the ultimate question of entrapment. If the defendant shows, through government witnesses or otherwise, some indication that a government agent corrupted him, the burden of disproving entrapment will be on the government; but such a showing is not made simply by evidence of a solicitation. There must be some evidence tending to show unreadiness.

However, appellant's conclusory statement, noted above, does not satisfy the requirement of "some evidence tending to show unreadiness." United States v. Hopkinson, 492 F.2d 1041, 1044 (1st Cir.), cert. denied, 417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1139 (1974); United States v. Foster, 469 F.2d 1, 3 (1st Cir. 1972).

Appellant also argues that Litsa Garbidou was held in the INS office and not permitted to see him and Tsironis because Holliday "did not want anyone to give Litsa advice, and he did not want her to have any friendly contact." Therefore, appellant says that "(b)ut for" such conduct of Investigator Holliday and other INS officials, "this case would never have happened." Assuming that Litsa Garbidou's rights were violated, ³ it is for her to complain not for appellant. Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113, 119 (1976). Appellant maintains, however, that since her rights were violated "for the sole purpose of ensnaring appellant," there should be an exception to the rule that only the person whose rights have been violated can complain. Considering the evidence in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942), it is clear that the conduct of Investigator Holliday and other INS officials towards Litsa Garbidou was not motivated by a purpose of entrapping appellant; rather, that the purpose was to avoid her having a conversation with appellant and Tsironis in the Greek language before getting her to the INS office, where she had agreed to make a statement, and to avoid a confrontation between her and Tsironis, who had been implicated in her alleged illegal activity. As to appellant's "(b)ut for" point, it clearly amounts to mere speculation.

Appellant further argues that the trial judge "went beyond permissible limits" in commenting on the evidence as follows:

In my opinion, which I say you are free to disregard if you wish, the testimony about the treatment of the girl and whether as was claimed Holliday acted heartlessly, that was not the word but callously, and so forth, these things are of some background relevancy, but in my view marginal, a very slight relevancy.

It is appellant's position that the acts should have been described as "constitutional violations," rather than minimized as merely "callous" or "heartless." However, as noted previously, any violation of Litsa Garbidou's rights was not a proper issue in appellant's trial, and, in light of the record, it would have been presumptuous on the part of the trial judge to label the conduct of Investigator Holliday and other INS officials towards her as "unconstitutional."...