554 F.2d 1216 (1st Cir. 1977), 77-1032, Tzimopoulos v. United States

Docket Nº:77-1032.
Citation:554 F.2d 1216
Party Name:Nicholas TZIMOPOULOS, Defendant, Appellant, v. UNITED STATES of America, Appellee.
Case Date:May 20, 1977
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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554 F.2d 1216 (1st Cir. 1977)

Nicholas TZIMOPOULOS, Defendant, Appellant,

v.

UNITED STATES of America, Appellee.

No. 77-1032.

United States Court of Appeals, First Circuit

May 20, 1977

Argued April 6, 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

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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...

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