## Facts

- The FBI investigated the Philadelphia La Cosa Nostra (LCN) in the late 1990s and used Ronald Previte, an LCN captain, as a paid cooperating witness.
- Previte introduced Robert C. Luisi, Jr., an LCN member, to undercover FBI agent Michael McGowan, who posed as a source of illegal earning opportunities.
- A federal grand jury charged Luisi with (1) conspiracy to possess cocaine with intent to distribute and (2) two counts of possession of cocaine with intent to distribute, based on cocaine transactions in 1999.
- At trial, Luisi admitted participating in the cocaine transactions but asserted entrapment.
- Luisi’s entrapment theory was that government actors (Previte and McGowan) tried to induce him to commit drug crimes, and when he resisted, Previte caused LCN boss Joseph Merlino to order Luisi to participate; Luisi claimed the order carried serious consequences if disobeyed and that the government knew this.
- The district court instructed the jury on entrapment but, after a jury question during deliberations, gave a supplemental instruction that prevented the jury from considering Merlino’s role in evaluating government inducement.
- The jury convicted Luisi on all counts, and he appealed the entrapment instructions.

## Issues

1. Whether the district court’s supplemental entrapment instruction misstated the law by preventing the jury from considering alleged government inducement implemented through an intermediary (an LCN superior’s order).
2. Whether excluding that intermediary-based theory from the inducement analysis was prejudicial error requiring vacatur of the convictions.

## Decision

- The First Circuit vacated the convictions and remanded.
- The court held the supplemental instructions were erroneous because they foreclosed the jury from considering Merlino’s role in the asserted government entrapment of Luisi.
- The court did not find entrapment as a matter of law; it held only that the jury was improperly constrained in evaluating the defense.

## Legal Principles

- Entrapment requires the jury to assess both government inducement and the defendant’s predisposition; the jury must be allowed to consider the defense as supported by the evidence.
- Government inducement is not limited to direct communications between agents and the defendant; inducement may include pressure applied through a third party when government actors, including cooperating witnesses, intentionally use that person as a means of persuasion.
- Jury instructions that artificially narrow the facts the jury may consider on inducement—by excluding a key alleged conduit of government pressure—can constitute reversible error when the limitation affects the core defense.

## Conclusion

Because Luisi’s defense depended on the claim that the government, through a cooperating witness, used an LCN superior’s order to pressure him into committing the charged drug crimes, the supplemental instruction’s exclusion of that theory from the inducement analysis was a prejudicial misstatement of entrapment law, requiring vacatur and remand.


United States v. Luisi, 482 F.3d 43 (1st Cir. 2007)