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UNITED STATES v. CUTOLO

November 14, 1994

UNITED STATES OF AMERICA against WILLIAM CUTOLO, et al., Defendants.


The opinion of the court was delivered by: EUGENE H. NICKERSON

 NICKERSON, District Judge:

 Count Three of the indictment in this case charges that the seven defendants conspired to murder members of the Persico faction of the Colombo Organized Crime Family in order to maintain or enhance their positions in that Family.

 The court has before it an application by the government to preclude defendants from obtaining discovery of or offering evidence as to whether an F.B.I. agent gave information to Gregory Scarpa, a member of the Persico faction in the "war" with the Orena faction of which defendants were members.

 The defendants advance two main arguments as to why evidence should be admitted that an F.B.I. agent gave information to Scarpa.

 I.

 The first is that the evidence would be relevant to a defense of entrapment by showing that "Scarpa, a government agent, was sent out by the F.B.I. in order to spread fear among the defendants and to incite them to react."

 A defense of entrapment presupposes that the defendants illegally conspired to kill Persico faction members in order to maintain or enhance their positions in the family, but may not be found guilty because they would not have committed the crime without the government's inducement.

 To justify an entrapment charge a defendant must show "that the government's inducement was directly communicated" to the defendant. United States v. Toner, 728 F.2d 115, 127 (2d Cir. 1984). Even in a case where a government agent induces an intermediary to commit a crime and the intermediary in turn induces a defendant to participate, the defendant may not assert an entrapment defense. Id.

 Where a defendant commits an illegal act in response to even a well founded belief that another person may take some action with the assistance of the government, such a defendant has not been entrapped by the government into committing the illegal act. The court has found no reported decision that has held to the contrary.

 This court holds that there is no basis for a defense of entrapment.

 II.

 The defendants' second argument for allowing the discovery requested is that it is relevant to their defense that they did not intentionally conspire to kill members of the Persico faction to maintain or enhance their positions in the family, but merely agreed to get ...


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