Was the trial court in error in issuing instructions that prevented the jury from considering the order of the crime boss as part of the inducement in regard to the claimed entrapment?

Question

Robert Luisi, an admitted member of "La Cosa Nostra" (LCN) crime family, was convicted of cocaine dealing stemming from an FBI investigation. The FBI employed Ronald Previte a paid "cooperating witness" (undercover informant) and a captain or "capo regime" in LCN. Luisi admitted his involvement in the cocaine transactions. His defense was entrapment. He claimed that Previte, acting for the government along with another undercover FBI agent (McGowan) had improperly tried to induce him to commit drug crimes. When Luisi resisted, Previte persuaded Philadelphia LCN boss Joseph Merlino to order Luisi to engage in the drug deals. Merlino was Luisi's superior in the LCN, and the government was aware that Luisi faced death if he refused to follow Merlino's order. Luisi and McGowan had a number of conversations about obtaining stolen goods and some about a diamonds-for-cocaine swap. Luisi made comments that expressed reluctance to go ahead with the deal and indicated that Luisi had "nothing to do with" the cocaine business. Luisi explained to McGowan that "in the last . . . three years I lost over a dozen and a half guys to that. . . . And I have to make a stern, a firm stand here. . . . I don't wanna have nothing to do with it." After this Previte, still cooperating with the FBI, had a conversation with Merlino and convinced Merlino to order Luisi to close the diamondsfor-cocaine swap. Luisi's theory is that Merlino's order was concocted by the FBI and was government inducement.
The district court instructed the jury on the entrapment defense, but the court's instructions foreclosed the jury from considering Merlino's role in the asserted government entrapment of Luisi.
What will be an ideal response?

Answer 1

Yes