Lead Opinion
Opinion for the Court filed by LEVEN-THAL, Circuit Judge.
Dissenting opinion filed by MacKINNON, Circuit Judge.
Aрpellant, James B. Borum, was found guilty on three counts dealing with his sale of a stolen pistol to police undercover agents. Those counts were (1) receipt of a firearm by a convicted felon (18 U.S.C. § 922(h)); (2) carrying a dangerous weapon without a license (D.C.Code § 22-3204); and (3) receiving stolen property (D.C.Code § 22-2205). The judgment imposed concurrent sentences, of five years on count one and 1-year terms on the other charges. The sentences were ordered to run consecutively to two concurrent 10-year sentences imposed the same day in another case.
We agree with appellant’s contention that the trial court erred in not instructing the jury on the defense of entrapment. We reverse and remand for a new trial.
This case arises out of what has popularly become known as the District of Columbia’s “Sting” operation, an undercover fencing operation conducted by the Washington Metropolitan Police Department and the FBI at 2254 25th Place, N.E., from October 1, 1975, to late February 1976. Policemen bought stolen goods and contraband from individuals and recorded the transactions on video tape. It is undisputed that on February 3, 1976, the appellant sold a pistol to Detective Patrick J. Lilly, who posed as Pasqualle LaRocca, the boss of the undercover fencing operation.
According to Detective Lilly’s testimony at trial, the appellant was a regular customer at the fencing operation. He made approximately 27 visits during a three month period, sometimes twice a day. On no occasion other than February 3 did the appellant attempt to sell a gun.
A prime objective of the fencing operation, known as P.F.F., Inc., was to get unregistered and stolen guns off the street. The operators of P.F.F., Inc., therefore encouraged customers to bring in guns. Detective Lilly testified that when he asked the appellant for guns in November of 1975, the appellant told him (i. e., told Pasqualle LaRocca) that “he doesn’t like to get guns, doesn’t like to take the guns because he doesn’t want to get stuck with the guns.” (Trial Tr. 104).
The appellant testified that government, agents discussed guns with him some 20 times. He testified on voir dire that during his first visit the agents asked him if he carried a gun. When appellant said that he did not carry guns, an agent responded, “Well, we take guns, take all you can bring us and pay top dollar for them.” (Trial Tr. 151.) A video tape film taken during one of the transactions with the appellant shows the government agent saying “Bring me guns. Bring in any kind of guns.”
According to the appellant, on his visit immediately before the pistol transaction, he was told that the fencing operation was not going to deal in credit cards — one of appellant’s staple items. The agents added, “What about bringing us some guns? . We know that you get hold of them but you’re not bringing them to us. . ” (Trial Tr. 153.) Appellant declined to bring them a gun. He told them at that time that he did not “mess” with guns because he knew that with his prior felony conviction, he would face a stiff penalty if he was caught with them.
As to the offense for which he was charged and convicted, the appellant testified at trial that on February 3, 1976, he went to 14th and T Streets, N.W., to “cop,” /. e., to inject heroin. While in a room with nine other men, appellant was approached by one Melvin Sales. According to testimony, Sales had some credit cards that he wanted appellant to fence. Appellant called LaRocca (Detective Lilly) to see if he was interested in credit cards, and was told that LaRocca was not interested in credit cards but would be in the market for a “trailer truck and guns.” Appellant told Sales that LaRocca did not want the credit cards. Appellant then called P.F.F., Inc., again to see if they were interested in a television and some other items. The response was the same. Finally, according to appellant, Sales told Borum that he had a pistol at his home. Appellant sold that pistol to P.F.F., Inc., along with a number of other items.
The government’s evidence showed that the pistol was stolen from the parked car of a Mr. Joseph R. Traver some time between January 31, 1976, and February 2, 1976. There is no evidence in the record that Borum ever used the firеarm. Nor is there evidence that he ever carried or used firearms in the past.
All of the appellant’s testimony was given out of the presence of the jury. In describing his state of mind on February 3, 1976, the appellant testified that he thought that he was dealing with the Mafia. The people at P.F.F., Inc., had lent him money “to buy stuff” or “do whatever [he] wanted” (Tr. 156); he knew he would have to pay the loans back and he did not want to antagonize them. Moreover, appellant claimed that he needed the money that day,
After hearing this testimony, the trial court announced that it would not give the jury an instruction on entrapmеnt. The appellant appeals that ruling in this court.
II. THE ENTRAPMENT DEFENSE
This court is not authorized to decide the factual question whether appellant was indeed entrapped, but only the legal question whether the trial judge should have given the jury an entrapment instruction. “ ‘[I]n deciding whether a jury question is raised, the trial judge must consider the evidence in the light most favorable to the defendant.’ ” United States v. Boone,
For purposes of this appeal, we must assume that the appellant’s version of his dealings with P.F.F., Inc., is true, and that the salient facts are as follows: The appellant visited P.F.F., Inc., some 27 times. On 20 occasions the fence operators solicited guns. Appellant consistently expressed an unwillingness to handle guns, an unwillingness strengthened by his knowledge of the stiff penalties imposed on felons who illegally possess firearms. There is no evidence that the apрellant ever used or carried firearms. He was informed in January that the fence was not interested in credit cards. On February 3, the fence rejected his offer of credit cards and expressed an interest in trailer trucks and guns. The appellant, in search of money to support his drug habit, then brought the fence operators a pistol he obtained from Melvin Sales. He feared the operators of the fence and did not want to alienate them.
The elements of the defense of entrapment are (1) inducement by the government, and (2) a lack of predisposition on the part of the defendant. The classic statement of Judge Learned Hand in United States v. Sherman,
These themes are confirmed in the Supreme Court opinions on entrapment. The initial Supreme Court decision projecting the defense of entrapment, a judge-made defense put forward as implicit in the legislative definition of a crime, was Sor-rells v. United States,
It was the government agents who first asked appellant to get guns and they asked him about guns some twenty times; he only obtained and sold the gun when the operators of P.F.F., Inc., said they would not take his other offerings.
In Sorrells itself the Supreme Court was confronted with less evidence of inducement than we have in this case. Sorrells involved a conviction for possession and sale of liquor. There the agent asked the defendant three to five times if he could obtain liquor in the course of a 60 to 90 minute discussion. The agent had also been in the same WWI army division as the defendant, although they were not acquaintances. The Court held there was sufficient inducement for putting the entrapment issue before the jury. The Court found evidence of inducement in this “repeated and persistent solicitation.”
In Russell the Supreme Court referred to its two earlier cases on entrapment. It described Sorrells as a case where there were two refusals of the agent’s request and “upon asking a third time the defendant finally capitulated.”
The existence of evidence on inducement sufficient to go to the jury is made out by the government initiation and repeated solicitation of the sale of a pistol.
The government argues that in this case there was no evidence of entrapment, since the role of the law enforcement agents was no more than “ ‘solicitation — the providing of opportunity.’ ”
There is some early precedent for the proposition that “inducement” is established if the government agent was the first to suggest the crime and that the burden was then on the government to prove predisрosition. E. g., Sagansky v. United States,
On the other hand, the production of any evidence negating propensity, whether in cross-examination or otherwise, requires submission to the jury, however unreasonable the judge would consider a verdict in favor of the defendant to be.
Id. at 959.
In United States v. Boone,
That leaves the question of the existence of evidence “negating propensity.” In Boone, as in this case, the government invoked DeVore, see note 4 supra, and argued the agent’s role was only one of solicitation and opportunity.
The government cites Fletcher v. United States,
In the case at bar, in contrast, we have testimony that the defendant on several occasions indicated his unwillingness to deal with guns. There was no evidence that the appellant had dealt with guns in the past. He testified that he appreciated the penalties he would receive if he were caught possessing or selling a gun. The opinions in Sorrells, Sherman and Russell plainly establish the materiality, in terms of negativing predisposition, of the expressed reluctance of defendant, and of the fact that the defendant capitulates or accedes only in the context of repeated solicitations by law enforcement agents.
The government argues that since there was undisputed predisposition to fence stolen merchandise, the defendant could not claim immunity from prosecution for what is “essentially” the same offense, illegal рossession of merchandise, “so that no distinction should be drawn with respect to propensity.”
The case is reversed and remanded to give the defendant an opportunity to present the entrapment defense to a jury.
So ordered.
Notes
. In Criminal 76-176 the appellant pleaded guilty to receiving stolen property and selling stolen government property.
. A majority of the Supreme Court Justices hold open the possibility that even where there is predisposition on the part of the defendant, a conviction may be barred under the Court’s supervisory power in instances of “outrageous police conduct.” Hampton v. United States,
. The jury would also be advised of both appellant’s need to finance a drug habit and his fear of the fences, who represented themselves as organized crime operatives and whom appellant did not want to offend. There is no need in this opinion to reflect on the sufficiency or weight of this additional testimony.
. Brief for Appellee at 11, quoting United States v. DeVore,
The case at bar is clearly different from United States v. Virciglio,
. E. g., United States v. Townsend,
.
.
. In Boone the defendant testified that he had accompanied the government agent during the narcotics transaction to protect the agent from being robbed or beaten. Id. at 412-13.
. This case is therefore distinguishable from United States v. Brooks,
. Brief for Appellee at 11 n.7.
. Id.
. We have no occasion to pass on whether an entrapment instruction would have been required if the case involved only the offense of receipt of stolen property.
Dissenting Opinion
dissenting:
Because it is my conclusion that the evidence, as a matter of law, shows that Bo-rum was not entrapped to receive a firearm shipped in interstate commerce and to possess same without a license, I respectfully dissent from the decision of the majority opinion.
The court argues that the police in the course of operating their undercover “fence,” “the Sting,” entrapped Borum to commit these firearms offenses merely by telling him on several occasions when he voluntarily came to sell stolen goods that they would also purchase guns. In making these suggestions, however, the Sting did nothing more than “provide an opportunity” for appellant to exercise his felonious intentions which — as opposеd to actual “inducement” — by the great weight of authority, falls outside the purview of the entrapment doctrine. United States v. Russell,
This would be quite a different case had the police, instead of merely waiting to see what contraband Borum might bring to them, approached the defendant with stolen guns and urged him to find some “fence” to buy them, whereupon Borum proceeded to fence these guns with the “Sting.” Cf. United States v. Oquendo,
In this case it must be remembered that the predisposition we are talking about is the predisposition to possess guns. It was the mere possession of a gun that formed
And I went uptown to cop. And I think I went with somebody. Got a quarter or whatever it was. It was about nine of us in a room sitting around all. And Melvin Sales came in and he had some credit cards. But I didn’t know at the time that he had a TV and some radio or something. But anyway, it was a bunch of things he had.
But the only thing I knew at the time, he had some credit cards. So, he told me that I know where to offer them. I said yes.
So, I went up and got on the phone and I called over to Pat’s. And Pat — I told him I had — he asked what did I have. I said I had some credit cards.
So, he said, “I ain’t talking no more credit cards. You should know that” or something to that effect. So, he said, “Is that all you got?”
I said, “Yes”.
Well, he said, “Well, I ain’t taking no credit cards. Bring me a trailer truck or some guns.”
I said, “Okay.” So, I .hang up.
So, I relayed the message to Melvin. So, Melvin said he had a TV and some other items. So, he wanted me to call back.
So, I called him back again. So, I told me [him?] what I had this time. He said no, he wasn’t taking anything. He told me what he wanted, and that’s all he was going to take.
So, I relayed the message back to Melvin again. So, Melvin said, “Well, I got a pistol.”
So, I said, “If you got a pistol, he’ll take the pistol.”
He said, “Come on, take me past the house.”
So, we put all the stuff in my car, went past his house, picked up the pistol, and I went back — no, I called from the gasoline station on Bladensburg Road, and he asked me what did I have. I said, “I got a pistol.” So, he said, “Come on up.”
So, that’s how it came about.
Tr. 154-156. It is also a fact not to be ignored that Borum’s accomplice (Sales) already had the pistol — the opportunity to sell it merely caused the existing evidence to surface. No new crime was committed by Sales, and to a certain extent Borum initially aided and abetted Sales’ offenses and subsequently committed his own individual offenses.
There is a possibility that Borum might nеver have been in possession of a gun if he had not been afforded an opportunity to sell it, but it is a perversion of the American language and the American law to suggest that therefore he was “induced” to commit the crimes of which he was convicted. It is firmly established that simple solicitation, and much less mere affording of an opportunity, does not amount to such inducement as gives rise to an entrapment defense, see, e. g., United States v. Perry,
The Government’s role in the interplay between the Sting and Borum was significantly passive. There was never any attempt to urge or persuade or to influence the reason or judgment of Borum. It is recognized that in those cases where the criminal activity in which the defendant was allegedly entrapped is itself minimal, “relatively slight” inducement may suffice to require an entrapment instruction, see, e. g., United States v. Boone,
The active party in Borum’s contact with the “fence” was plainly the defendant himself. It was he who first went to the Sting and made the initial overtures, and he who continued voluntarily and repeatedly to renew this contact — some 27 times in three months, cf. United States v. Haden,
I do not, of course, understand the majority to suggest that all of Borum’s dealings with the Sting were “induced” by the police, but only that he may have been entrapped by the officers specifically into dealing with guns, a crime which it is alleged he was not predisposed to commit. Although this position lacks the patent absurdity of any suggestion that Borum’s general dealings in stolen goods were “induced,” I nevertheless cannot agree that where law enforcement officials merely operate a passive, purchasing operation involving stolen property that such activity is transformed into illegitimate inducement to possess guns merely because the supposed “fence” indicates that he is only interested in certаin merchandise and suggests that such items would command a good price. That is nothing more than affording an opportunity. Cf. United States v. Virciglio,
Moreover, Borum was charged only with possessing a gun and stolen property so that there is no need for the Government to show that he was predisposed actually to deal in guns (which might be difficult), but rather only that he was predisposed to possess them. The suggestion that while he was disposed generally to sell stolen goods, he was not predisposed to sell stolen guns misstates the nature of this case and misconstrues the crimes for which Borum was convicted. As long as it is shown — and there is abundant evidence so indicating— that Borum was sufficiently predisposed to possess guns if he was afforded a ready market for them, no further predisposition is needed.
In this case, the police exerted so little influence on thе defendant that it is difficult to imagine how his acts could be said to proceed from anything other than his own predisposition. There is no question that the police on several occasions told the defendant they were interested in purchasing guns, but they did so only when he voluntarily contacted them to discuss the possible sale of various other stolen articles. The police never approached Borum on any matter. This case does not involve the “repeated and persistent solicitation” characteristic of entrapment, see Sorrells v. United States, supra,
Moreover, in my view, the court has misapprehended the nature of the predisposition which the Government must show in this case. Borum was a confirmed thief predisposed to steal or acquire any stolen article in order to fence it and obtain the best price he could. There is, in this respect, nothing unique about his possession of a stolen gun as opposed to, for example, diamonds or currency. The law may attach special penalties to the рossession of illegal firearms, but when an individual makes his livelihood from fencing stolen merchandise, he seems predisposed to provide (and hence to possess) such articles in general. There may be some situations in which a general predisposition to steal and fence would not imply a predisposition to do so with certain articles — for example, an individual who is readily willing to sell guns may not be to
The court makes much of Borum’s subsequently stated reluctance to deal in firearms because of his knowledge of the heavy penalties consequent upon a convicted felon being apprehended in possession of a gun, by way of suggesting that he would not have overcome his reluctance but for some suasion by the police. But there is not an iota of evidence that the suasion ever exceeded “opportunity.” That Borum overcame his initial hesitation, demonstrates nothing more than at some point the mere opportunity to obtain the “top dollar” paid for firearms overmastered his self-interested caution, a process which presumably takes place whenever any crime is committed for finаncial gain.
The mere fact that at a certain point Borum considered it worthwhile to commit the crime of possession in furtherance of a crime that he was initially reluctant to commit is not evidence that supports an inference of inducement. Borum was just like the confirmed poker player who regularly played in the crooked game, although he would have preferred an honest one, because the former was the only game in town. During the three months that it took for him to decide to sell a gun (and incidentally to possess it) the subject of firearms purchases was mentioned slightly less than twice a week and then only after the defendant himself voluntarily appeared at the Sting and initiated the discussion as to what the Sting would buy
The court’s opinion asserts that this case is distinguishable from United States v. Brooks,
In the face of Borum’s admission that he frequently came in contact with guns, supra n. 1, it is hard to see how one already engaged, or at least in contact with others who were themselves engaged, in crimes involving guns can be said not to be predisposed to commit that crime. The fact that he “expressed reluctance” does not compel an entrapment instruction unless such reluctance was overborne by inducement, which is not shown here. His reluctance was not based on moral principles and was easily overcome when his own cupidity induced him to perform such acts. He then еagerly and repeatedly called the Sting to
[When asked why on the one occasion in question and no other he brought a firearm to the Sting, Borum replied] Because they said they wasn’t taking any credit cards or anything else that I might have brought. And I knew that eventually that day I would have to have some money. And they said to bring pistols that’s all they was taking. So, I brought the pistol. (Tr. 157)
If prior “reluctance” in such circumstances is sufficient to merit an entrapment instruction, then the deterrent element in criminal penalties would make such an instruction necessary in virtually all cases involving undercover police activity.
Turning from the “predisposition” prong of the entrapment doctrine to that focusing on the amount of police “inducement,” again it is the similarity between the dealings of the defendants with the police in Brooks and in the instant case, not the differences, which stand out. It is true that Borum made some twenty-seven visits to the Sting, all of them voluntarily whereas the defendant in Brooks made only eighteen. However, this seems to be a difference without distinction. If anything, it indicates more disposition to crime in Bo-rum. Certainly the fact that the police told one defendant eighteen and another twenty-seven times that they were interested primarily in purchasing guns — particularly when it was the individual criminal himself who determined how many times he would talk to the’ Sting — does not constitute a meaningful difference in the degree to which the two defendants were induced to commit their respective crimes. The Sting’s failure to accommodate the defendant’s preferred method of obtaining funds by retailing the fruits of his larcenies, and those of his friends, does not amount to the inducement necessary to permit an entrapment instruction. The inducement that is necessary to justify an entrapment instruction must be something akin to:
persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship. A solicitation, request or approach by law enforcement officials to engage in criminal activity, standing alone, is not an inducement.
Criminal Jury Instructions for the District of Columbia, Instruction 5.05 Entrapment (3d ed. .1978).
The inducement necessary to require an entrapment instruction may consist in pleas “predicated on . presumed suffering” that amount to “enticement,” Sherman v. United States,
It may be true, but irrelevant, that Bo-rum’s desire for money was fueled by the mandates of addiction, not merely the more mundane aspects of greed. While addiction may contribute to one’s predispositiоn to commit crimes, it is not a legal defense to the consequences thereof. The majority
Furthermore, I cannot concur in the court’s implication that the financial exigencies of addiction — or any other subjective characteristic of a defendant — can transform mere opportunity into inducement. Addiction might make one more willing to grasp “opportunity,” but it in no way converts “opportunity” into impermissible inducement. To allow it to do so would be to allow individual infirmities to eviscerate the protection of the criminal law.
Here there is no evidence at all that the police even knew of, let alone exploited, Borum’s addiction, and barring some showing of such manipulation, the court is wholly without justification for transmuting the passive, receiving activity of the police in this case into the “initiative,” “creative,” “persuasive” conduct which constitutes entrapment merely because defendant might have had a strong physical need for money. It is impermissible for the court to confuse internal compulsion with external inducement.
As a final point, I note that the court seems to place some weight on the fact that the defendant was “frightened” of the officers posing as leaders of the Sting. However, he was not apparently sufficiently frightened to avoid them or to be dissuaded from continually and voluntarily renewing contact with the persons whom he now alleges terrified him. Not only did Borum himself give few signs of actually being frightened, but also the conduct of the police was by no means excessively intimidating. The officers themselves never threatened Borum with any dire consequences should he not deal in guns; the furthest they went was simply to inform him that they would not purchase any other type of stolen property. The defendant may well have been afraid, but it was his greed, not his fear, that induced him to fence Sales’ pistol. One would suspect that most criminals are frightened to some degree; fright alone by no means indicates that the police in this case created Borum’s criminal intent.
The Supreme Court has admonished that in dealing with entrapment, “a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal,” Sherman v. United States, supra,
More recently, the Court has reiteratеd that “entrapment is a relatively limited defense.” United States v. Russell, supra,
If the police believe an individual is a distributor of narcotics, all that is required is to set up a “buy”; the putative pusher is worth the investigative effort only if he has ready access to a supply. See United States v. Russell,
. The proffer by the prosecution at a bench conference of a tape recording of Borum’s conversation with the Sting ran as follows:
Lilly: “Run across any guns?”
Borum: “Ah, yes, I am always running across dudеs that wants to buy them and sell them, but I don’t want to buy them and get stuck with them.”
Lilly: “You ain’t going to get stuck with them if you get them and bring them to me.” Borum: “What do you get for a gun?”
Lilly: “I give you pretty good money. You just bring it in and let me see it. I can’t buy something until I look at it, see what it looks like.”
Borum: “I understand that.”
Borum: “No, I am not saying, like if, ah, it’s a .38 you know.”
Lilly: “Bring in any kind of gun you get your hands on. I will buy it. I guarantee it, and I guarantee you a good f___ing price.”
Borum: “Solid.”
Tr. 134. This proffer was not objected to and it was permissible for the court to consider it in connection with its decision to deny a charge on entrapment. Had an entrapment instruction been given the above testimony would have been admissible and would have been very damaging to Borum.
. Tr. 151-154. The appellant was “asked about guns” by the officers operating the Sting approximately twenty times from late November until February 3 when he sold a firearm to them. Appellant’s Brief at 5-6.
. Tr. 134.