United States v. Kozak

• Decision Date: 18 February 1971
• Docket Number: 19116.,No. 19115,19115
• Citation: 438 F.2d 1062
• Parties: UNITED STATES of America v. Martin KOZAK, Appellant in 19115, and John Shopa. Appeal of John SHOPA, in No. 19116.
• Court: U.S. Court of Appeals — Third Circuit

438 F.2d 1062 (1971)

UNITED STATES of America v. Martin KOZAK, Appellant in 19115, and John Shopa Appeal of John SHOPA, in No. 19116.

Nos. 19115, 19116.

United States Court of Appeals, Third Circuit.

Argued October 29, 1970.

Decided February 18, 1971.

Edward A. Rudley, Pelagatti, Rudley & Forceno, Philadelphia, Pa., for appellants.

Carl J. Malone, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before FORMAN, SEITZ and ALDISERT, Circuit Judges.

OPINION OF THE COURT

FORMAN, Circuit Judge.

Appellants, Martin Kozak and John Shopa, were indicted in the United States District Court for the Eastern District of Pennsylvania on two counts under 18 U.S.C. § 1510.¹ The first count charged that on or about July 9, 1968, in Philadelphia, they willfully endeavored by means of force and violence to obstruct, delay and prevent the communication of information relating to a violation of a criminal statute of the United States (18 United States Code § 1952)² by Martin Illich to a Special Agent of the Federal Bureau of Investigation. The second count charged that at the same time and place they injured Mr. Illich because he had given information to the special agent relating to the alleged violation named in the first count.

Appellants were both found guilty on the first count, while on the second count Mr. Kozak alone was found guilty and Mr. Shopa was acquitted. Following denial of post-trial motions for a judgment of acquittal or for a new trial, Mr. Kozak was sentenced on the first count to imprisonment for two years³ and on the second count the imposition of sentence was suspended. Mr. Shopa was also sentenced to two years⁴ on his conviction on the first count. This appeal followed.

The assault on Mr. Illich, and other incidents which are alleged to have given rise to the indictment herein, occurred on the evening of July 9, 1968, in Domzalski's Tavern, one of the places of refreshment frequented by Mr. Illich and the appellants.

In January 1968 the premises of Carl Pernitski at 976 and 978 North Lawrence Street, Philadelphia, consisting of his bar, restaurant and home were subject to a search warrant raid by agents of the Federal Bureau of Investigation in connection with a grand jury investigation which led to a prosecution against Mr. Pernitski for interstate transportation in aid of racketeering (gambling) in violation of 18 U.S.C. § 1952.⁵ Appellants were said to have been involved in Mr. Pernitski's enterprise, and it was in connection with this operation that Mr. Illich is alleged to have passed information to a special agent.

The uncontradicted testimony at trial revealed that appellants were present on the Pernitski premises, where Mr. Illich was employed as a"door man,"⁶ on January 29, 1968 — the time of a raid by agents of the Federal Bureau of Investigation; that each appellant was then served with a subpoena, following which they appeared before a Federal Grand Jury; that Mr. Illich was also subpoenaed and so appeared; that the alleged incidents in the Domzalski barroom, described herein, occurred on July 9, 1968, the same date upon which Mr. Kozak was subpoenaed for the Grand Jury a second time in the Pernitski investigation; that at the trial which followed the indictment the acquaintanceship of appellants with Mr. Illich was established; that Mr. Illich testified that on July 9, 1968, both defendants struck him with their fists repeatedly after Mr. Kozak voiced the accusation, "You turned me in"; and that subsequently Mr. Kozak asked him to "drop the charges." Mr. Domzalski and his bartender testified cautiously concerning the confrontation between Mr. Illich and the appellants, but at least confirmed the presence of all three together at the bar.

I

Appellants first contend that the District Judge erred in his charge to the jury regarding the extent of knowledge required under § 1510 to establish intent to engage in the prohibited conduct. The disputed charge stated:

"* * * you must find beyond a reasonable doubt that the defendants knew that Illich was giving information to a Special Agent of the Federal Bureau of Investigation, or that they believed that he was doing it, and that they reacted in response to that belief * * *".

Upon exception taken by defense counsel, the District Judge further charged:

"It is not necessary that defendants have certain knowledge that Illich had in fact communicated such information * * * The Government need only prove as to this aspect that defendants believed that Illich would communicate such information, and that the force took place with an effort to obstruct, delay or prevent such communication."

Appellants suggest, contrary to the above charge, that the proper standard under § 1510 is actual knowledge that information had been or would be given. No cases have been decided as yet under this recently-enacted section.

The legislative history of § 1510 discloses that its purpose was to extend the protection of the preceding §§ 1503⁷ and 1505⁸ afforded witnesses, jurors and others in judicial, administrative and congressional proceedings to "potential informants or witnesses" and to those who communicate information to Federal investigators prior to a case reaching the court.⁹ In the absence of any adjudication interpreting § 1510, appellants suggest that the same standards required by courts in cases under §§ 1503 and 1505 should be applied in determining the extent of proof necessary in a case under § 1510.

The appellants argue that transposing the standard of §§ 1503 and 1505 would require, under § 1510, actual knowledge on the part of the accused that the alleged informer either had testified against their interests or was about to do so, and proof that because of that knowledge both appellants set about to injure the alleged informer (Illich). But the legislative history of § 1510 indicates that Congress did not intend to establish this suggested standard.

In its discussion of scienter, the House Committee on the Judiciary specifically stated that there must be actual knowledge that the recipient or intended recipient of information be a criminal investigator as defined in § 1510(b), but remained silent on the question of whether it was necessary to prove actual knowledge that an informant had transmitted, or was about to transmit, information to such investigator.¹⁰ Since the legislative history indicates that decisions of the courts under §§ 1503 and 1505 were discussed during consideration of § 1510,¹¹ silence on this aspect of scienter suggests that if Congress had intended to alter the judicially determined standard, it would have so stated.

The acceptance of appellants' suggestion that the degree of scienter established under §§ 1503 and 1505 be extended to the companion provision, § 1510, however, does not go the length asserted by appellants. An examination of the cases adjudicated under §§ 1503 and 1505 reveals that actual knowledge that an informant has supplied, or is about to supply, information to an investigator has not been required by the courts. Thus, in Odom v. United States,¹² submitted by both appellants and appellee, the court was similarly presented with the issue of the sufficiency of a showing that accused knew that a government witness had testified, or intended to testify, against him and there held that:

"The knowledge necessary is not absolute or direct knowledge * * * but information or a reasonably founded belief thereof is sufficient to make the requisite scienter."¹³

It is apparent that Odom did not establish the standard appellants urge upon the court, but rather, permitted a finding of scienter where the accused reasonably believed that information had been, or would be, supplied to an investigator.¹⁴

As indicated by Odom, the standard of knowledge in the instant case under § 1510 required no more than that the Government establish a reasonably founded belief that information had or was about to be given, and Judge Higginbotham's charge as supplemented properly instructed the jury and guided it correctly regarding the law to be applied by it in its inquiry as to whether appellants had violated § 1510.

II

Appellants next contend that the evidence was as consistent with innocence as guilt; that it therefore should not have been submitted to the jury, and alternatively, that it was insufficient to support the verdict.

To buttress these arguments, appellants point out first that the Government did not show that Mr. Kozak and Mr. Shopa had actual knowledge that Mr. Illich had conveyed, or was about to convey, information to a special agent of the Federal Bureau of Investigation, since the Government introduced into evidence only a stipulation showing the dates of appearance of Mr. Illich and appellants before the Grand Jury to prove knowledge. Appellants claim that the lack of direct evidence to prove this allegedly vital point constituted a fatal flaw in the Government's chain of proof. This argument, however, is founded on the erroneous assumption, discussed in the preceding section, that the Government was required to prove appellants' actual knowledge that Mr. Illich had or was about to supply information, whereas the Government had only to demonstrate that appellants entertained a reasonable belief to that effect.

Appellants additionally emphasize Mr. Illich's testimony that "bad blood" had existed between appellants and him for at least three years, and that they had previously engaged in hostilities similar to that of July 9, 1968. They further point out that Mr. Kozak replaced Mr. Illich in his position as "doorman" at the Pernitski establishment when Mr. Illich was discharged; that the agent of the Federal Bureau of Investigation testified that he did not notice bruises and marks on Mr. Illich the day following the incident; and Domzalski testified that he heard only a "slap" or "smack" at the time Mr. Illich sustained his injuries.

Whether this evidence necessitates the conclusion that...