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United States v. Kozak

decided: February 18, 1971.

UNITED STATES OF AMERICA
v.
MARTIN KOZAK, APPELLANT IN 19115, AND JOHN SHOPA. APPEAL OF JOHN SHOPA, IN NO. 19116



Forman, Seitz and Aldisert, Circuit Judges.

Author: Forman

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.*fn1 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)*fn2 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 years*fn3 and on the second count the imposition of sentence was suspended. Mr. Shopa was also sentenced to two years*fn4 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.*fn5 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,"*fn6 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 ...


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