*1 Rodrigues between only difference is that there the defend- al., the case at bar Alice MULHERIN et agent, procuring that he was a ant testified Plaintiffs-Appellants, at bar did defendant but that entitled a forti- Therefore he would be not. O’BRIEN, Jr., L. John charge when he ad- entrapment ori to Defendant-Appellee. guilt establish his facts sufficient to mitted procuring agent. was a In Rod- he unless No. 78-1187. inconsistency we found no between rigues, United States Court of Appeals, jury to the acts trying convince First Circuit. charged up did not add to the crime alleged jury that one trying to convince Argued Sept. into such innocent acts. A entrapped Decided Dec. can claim that he was induced dеfendant perform acts which were, all, innocent and which he con- after of law did not constitute a violation
tends which he was indicted.
of the sort helped that he
Defendant’s admissions them, guns by delivering sell
the owners of them, guns receiving money him as a certainly sufficient to convict the first under 18 U.S.C. under
principal §
count, in viola- charging dealing in firearms 922(a)(1).
tion of U.S.C. § put gun that he in some-
His admissions the car to meet the
one else’s car and drove certainly sufficient to convict
agent was count, possession, under the second
him 5861(d). on 26 U.S.C. 5841 and § §
based Davis, F.Supp. U.
See S.
(W.D.Pa.1972). Likewise his admission agent guns take out of the helped
he jury
car would suffice to enable a to find transferring a firearm as guilty
him count,
charged in the third based on 26 5812(a) 5861(e).
U.S.C. § § admitted facts sufficient
Since defendant offenses warrant his conviction of the charge on
charged, he was entitled to a
entrapment. the case judgment is vacated and to the district court for further
remanded
proceedings.
854 Ronan, Salem, Mass., with Complaint T. in the light
James of established doc- Porter, Henry Harring- C. Ronan & trines of whom law. Salem,
ton,
Twomey,
Mass.,
and Jerome F.
governments
That
federal and State
brief,
appellants.
were on
for
operate
independently
sеpa
within
rate spheres of
(although
action
both im
Mass.,
Lynn,
Stimpson,
B.
Robert
pinge
upon
directly
the same individuals or
Mass.,
Stimpson, Lynn,
whom Jaffee &
citizens)
long
has
been a basic feature of
brief,
appellee.
on
unique
federalism which has been a
distinctive characteristic of the traditional
KUNZIG,
Judge,
Before
Court
structure of
govеrnment.1
American
In the
BOWNES,
Claims,*
Judge,
Circuit
words of an astute British observer: “All
DUMBAULD,
Judge.**
District
Americans
long
agreed
have
been
that the
only possible
government
form of
for their
DUMBAULD,
Judge.
District
is a
country
Federal one.” There were no
Plaintiffs-appellants
employed
were
options
open
workable
to the framers
Register
the office
of Deeds for
of the Constitution of the United States.
County,
Essex
Massachusetts. Defendant-
possible
The
confronting
alternatives
Register of
appellee became
Deeds on or Founding
lucidly
Fathers are
set forth in
January 3,
about
and a month later
exposition
James Wilson’s classical
in the
plaintiffs
stating
each of
received a lеtter
Pennsylvania ratifying convention:
job
unsatisfactory
performance,
“Due
America
. may ...
be-
your employment at the
Registry
Salem
come one
empire;
consolidated
she may
is terminated
They
Deeds
herewith.”
be divided into
separate,
thirteen
inde-
brought
(presumably
suit
under 42 U.S.C.
pendent,
unconnected
common-
1983, though
Complаint
no
states
§
wealths;
bemay
she
erected into two or
jurisdictional
prayer
basis
in the
confederacies;
more
lastly,
she
relief does seek a declaration that
their
become one comprehensive
repub-
federal
Amendment).
dismissal violated
lic.3
damages
Reinstatement as well as
for “loss
first,
Of these possibilities the
complete
wages,
suffering
mental
emotional
consolidation into
single
govern
a
unitary
prestige
standing
and loss of
ment, was generally
being,
considered as
market,
employment
resulting from their
language,
inexpedient
Madison’s
“as
as it is
illegal dismissal
the defendant” was
unattainable.”
defendant,
sought.
Upon motion
by Judge
complaint was dismissеd
W. Ar-
The unsatisfactory consequences of sepa-
Jr.,
20,1978.
Garrity,
thur
on March
will
rate co-existence
been brought
had
home
helpful
be
allegations
experience
to consider the
under the Articles of Confedera-
* Sitting by designation.
George
4.
Washington, April
James Madison to
Writings
II,
Madison,
1787. The
of James
**
Pennsylvania,
Of the Western District of
sit-
(Gaillard Hunt, ed., 1901).
prevalence
The
by designation.
ting
Montesquieu’s
territory
notion
a
vast
only
governed by
despotism
could
ren
Dumbauld,
1. Edward
The Constitution of the
unacceptable
this
dered
alternative
to Ameri
States, 112-13,
Wilson,
3, supra,
cans.
note
341. For Jeffer
view,
Montesquieu’s
son’s criticism of
see Gil
Bryce,
Commonwealth,
2.
James
The American
Chinard,
Commonрlace
bert
The
Book of
I,
(3rd
reprinted
1921).
ed.
For
Jefferson,
Thomas
See also Jeffer
Bryce’s
shortcomings
on
comments
Tiffany, August 26, 1816,
son to Isaac T.
ibid.,
merits of
see
340-58.
Writings
Jefferson, XV,
(Lip
of Thomas
65-66
eds.,
Bergh,
1904).
scomb and
Speech
Documentary
of November
History of
the Ratification
the Constitution
II,
(Edited by
Jensen),
Merrill
For
ibid.,
passage,
another
this
vеrsion of
see
principle
polity.
principle
of American
anticipated if a
could be
evils
Similar
tion.5
(1) as the
appears
aspects:
were created.
in three
essence
confederacies
of loose
group
itself;9
“comprehensive
(2)
of a
of constitutional
establishment
Only the
hopeful pros-
рresented
sepa-
of the traditional doctrine of
republic”
the basis
federal constitution
rendering “the
powers,
ration of
derived
the framers
pect
*3
of Government
exigencies
adequate
Montesquieu;10 (3)
to the
as the foundation
from
of the Union.”6
preservation
the
separate spheres
&
where
of
of
assigned
аction are
to central and local
embodied
mechanism
governmental
The
agencies
government.11
of
constitution
the United States
in
Madison, the
generis, as
sui
unique and
essential
of federalism
Since the
feature
Constitution,” recognized.
of the
“Father
to the central and
is thus the attribution
the true character
to understand
“In ordеr
respectively
separate
of
local authorities
error,
the
of the U.S.
the Constitution
of
action,
spheres
limited
of
it is vital to
and
avoided,
viewing
uncommon,
must
not
functioning
sys-
the successful
of a federal
of a consoli-
medium either
through the
it
tem that
the boundaries between such
or of a confederated
dated Governmеnt
respected.
be known and
spheres
Govt,
the one nor the
it is neither
whilst
long
it has
In “Our Federalism”12
been
having
other,
of both. And
a mixture
may
gov-
mold its
State
analogies
&
the similitudes
no model
in
in such form as it
fit.
system
ernmental
sees
Govt,
it must
systems
other
applicable to
may
leg-
It
have a unicameral or bicameral
interpreter,
be its own
any othеr
more than
may
may
islature.
Its chief executive
or
the
the facts of
to its text &
according
himself after
permitted
not be
to succeed
contemplated
The Constitution
case.”7
serving
may may
one or more terms.
or
na-
. was in its
“sovereignty
judicial
particu-
not establish
tribunals of a
divisible,
in
was in fact divided”
ture
character,
separate
such as
courts of
lar
by that docu-
created
the “mixt Govt.”
appeal.
courts of
equity13 or intermediate
ment.8
may may
More
it
or
specifically
are divisible
powers
governmental
That
adopt
system
a civil service
a fundamental
State
constitutes
and limitable
power
in its own nature illimitable.”
So too
Articles of Confedera-
defects of the
5. On the
constitution,
regarded
Dumbauld,
British
of the
Jefferson
the
The Constitution
tion see
States, 32-37,
(1964).
changed by any
passed by
which can be
act
110-11
Parliament, as “no constitution at all.” Dum-
4,
February
Congress of
of the old
6. Resolution
bauld,
States,
The Constitution of the United
1787, calling
convention
the constitutional
(1964).
18-19
(ed.),
Philadelphia.
C. Tansill
аt
Charles
meet
the
the Formation of
Illustrative of
Documents
Dumbauld,
10.
of the United
Constitution
States,
(1927).
23
In
of the American
Union
States,
(1964).
320
jurists,
terminology
Consti-
German
Bundesstaat;
the Confed-
established a
tution
11.
In Nixon v. Administrator of General Serv
eration, expressly
in the Articles as a
described
ices,
425,
(1977), separation
U.S.
507
433
“league,” was a Staatenbund.
powers and federalism were viewed as twin
system.
pillars of the American constitutional
28,
Everett, August
1830.
to Edward
7. Madison
Madison,
IX,
Writings
384-85
James
ed.,
phrase
Hunt,
1910).
employ
12.
Black’s heartfelt
(Gaillard
To
Justice
44-45,
Harris,
37,
Younger
in
v.
401 U.S.
91
Ibid., 568-69.
746,
(1971).
essentially
lim-
is
9. Constitutional
Anglo-American
Provision Co. v. Davis Pro
Mcllwain,
government.
H.
Consti-
Charles
ited
93,
Co.,
191
24 S.Ct.
48
vision
World,
Changing
248
tutionalism
(1903) [Holmes, J.], and other cases
L.Ed. 228
that Chiеf Jus-
It is in this connection
Dumbauld, The Constitution
of the
cited in
Madison,
Marshall, Marbury
John
tice
(1964)
See also Missouri v.
United States
ordinary
137,
(1803),
if an
declared that
Cr.
Lewis,
22,
(1897);
Turney
101 U.S.
30-31
legislation
the constitution
alter
act of
437,
Ohio,
273 U.S.
47 S.Ct.
L.Ed.
at-
are absurd
written
constitutions
“then
part
people,
tempts,
to limit a
on the
patterned upon
example
whether
Another
emрloyees,
penalizing
local
where
system,
civil service
or
the classical federal
exercise of a
right
is forbid-
system recently enacted14 un-
the modified
practice
den
requiring
that crimi-
sponsorship
Jimmy
of President
der
nal sentences not be increased because a
speedier
designed
Carter
to effect
easi-
right
exercises
defendant
his
to stand trial
separation from
federal service
er
plead
rather
than
guilty,
exercises his
unsatisfactory employees,
upon any
right
appeal.
North
Pearce,
Carolina v.
legislatures,
model.
State
395 U.S.
23 L.Ed.2d
courts,
what,
decide
if
civil
any,
ser-
protection or
vice
tenure
should be
it
S.,
So too wаs held in Simmons v. U.
particular
accorded to
classes of State and
employees promote
local
order to
(1968),
L.Ed.2d
that a defendant’s tes-
public interest.
timony (admitting
*4
ownership of seized
by
Supreme
It has even been held
the
property) given in order to establish stand-
leading
in a
Court
United States
case
ing
a hearing
at
in suppоrt of a Fourth
right
pay
employees
its
State’s
to
Amendment
suppress
claim to
evidence can
wages
be respected.
substandard
must
Na
against
not be admitted
him
upon
at trial
v.
League
Usery,
tional
of Cities
426 U.S.
guilt
the issue of
or innocence. For to hold
2465,
833, 845, 857, 96 S.Ct.
Francisco R.R.
(1976), upon
which plaintiffs-appellants
their making employees in the exercising nonpolicy were form of any quence Essex, not, County Registry of Deeds for the rights. They did Amendment Massachusetts; they shortly were fired Pickering or the the school teacher like remain, States; they may grant with the pertinent is the to the case at bar 15. Likewise Bishop withhold tenure at their unfettered discretion.” Stevens comment of Mr. Justice 341, 349-50, Wood, (1976), term, that “unless we L.Ed.2d 684 appropriate far as we are 16. This so adopt BRENNAN’S re- aware, MR. JUSTICE emрloyed Judge were to first Harold was far-reaching markably view that al- . article “Environmental Deci- Leventhal in his every discharge implicates a constitution- Courts,” most sionmaking Role of the 122 U. and the interest, liberty ally protected con- the ultimate (January, 1974) of Pa.L.R. is, relationships personnel and will trol of state defendant-appellee after took office as the Deeds;
newly Register elected that their America, Appellee, UNITED STATES of replacements political proposed were close supporters appellee; appellants ISOM, Appellant. Kendall actively support appellee; did not and that given e., firing, thе reason for the i. unsatis- No. Docket 78-1213. performance, factory job groundless. Appeals, States Court of allegations These seem would to be en- Second Circuit. compassed in question presented in El- rod as framed Mr. Justice Brennan. Argued Oct. presents question This case wheth- Decided Nov. er public employees allеge who that they were discharged threatened with dis-
charge solely partisan because of their
political affiliation or nonaffiliation state deprivation
a claim for of constitutional secured the First and Four- added).
teenth (emphasis Amendments
Elrod v.
2673, 2678, 49 L.Ed.2d 547 There that,
can be little doubt appellants if had
campaigned actively opponent for appellee’s remaining politically neutral,
instead of El- apply appellants’ jobs
rod would would protected. Perhaps time will show that facts,
Elrod should be confined to its but it now
is difficult to trace its exact contours *6 implications. See Patronage and the
First Amendment After Elrod v.
Colum.L.Rev. 468 As Mr. Justice separate concurrence, noted in his
Stewart
“This case does require not us to consider
the broad patron- contours the so-called
age system, per- all its variations and
mutations.”
Id. at
I am unwilling hold that Elrod and principles
“the established of federalism”
require a complaint dismissal of the
failure to state a cause of action.
be, after established, the facts have been ruling should issue that Elrod does apply, involving decision constitu-
tional be made in a vacu- I
um. would reverse and remand
hearing so that fully the facts could be
developed.