United States v. James B. Borum

424 3(1) argument under

ing thеir section were preferential the combination rates STATES of America UNITED prejudicial shippers Gulf them- Coast Hence, we necessarily selves. while do not agree judge with the BORUM, administrative law Appellant. James B. that whether or (public- ship- “one carrier No. 76-1879. per-owned) shortchanged is in divisions (public- shipper- with another carrier Appeals, United Court of owned) is a matter . . . between District of Columbia Circuit. carriers foreign one that [and is] joint issue whether rates . . are . 6, Argued April 1977. this discriminatory,” agree do we 29, Decided June 1978. case the issue not properly raised.38 20, July Accordingly, As Amended 5 and Oct. 1978. is ICC affirmed this issue. case

The is remanded for deter- FERC by

mination it of whether Williams’ rates

are reasonable and whether those rates in

relation to the Williams-Explorer combined illegal preference.

rates create an In other

respects, decision is af- ICC

firmed. sois ordered. Decision, supra, 1594; reviewing decision,

38. Initial JA at see In id. at the ICC’s Brimstone 1592-94; however, Supreme Supreme 1605. two Court Court did conclude that precedents upon by authority relied the administrative the ICC had no to order the retro- judge proposition rates; law spective joint that “division of a redivision of the Commis- joint ship- divisions, rate is a authority respect matter no concern to sion’s rate per,” 1592; supra, shipper- id. at amended, see note 37 15(6)(a), no derived from 49 U.S.C. § cases, 201, 94-210, owned carrier was involved. In both Pub.L. 90 34 § Stat. shippers challenged joint entirely prospective. rates as unreasonable R. R. Brimstone Co. v. 1, States, 104, 121-23, § under impact and the division of the had rates no 276 U.S. 48 S.Ct. reasonableness, 282, (1928); their overall as the 72 L.Ed. see & 487 Baltimore Ohio Ry. noted Co., Court in both cases. Great No. Co. R. R. Co. v. Alabama Great So. R. R. 165 Sullivan, supra, 463, 216; 226, 1265, U.S.App.D.C. U.S. 294 at 1268-69 (1974). Louisville & R. Consequently, by affirming Nashville R. Co. v. Sloss-Shef- the Com- Co., supra, 234, field Steel & ground petitioners Iron 269 at U.S. 46 mission on the properly failed Hence, they appear disap- ICC, S.Ct. 73. prove do not to raise this issue before we Cases, Tap supra, of the dicta raising again in The Line have not foreclosed them from it 28-29, 741, that, suggesting 234 (FERC) before the receiving precisely successor ICC’s from shipper ownership in a case prospective under in which § redress to of a crimination, potentially carrier relevant to the existence dis- be entitled were joint Williams, course, division rates be a we instead to remand. importance allegedly injured interpose matter of would be free at that time ICC, fact, shippers. ship- special has allowed defense that whatever treatment was per Explorer’s required intervene case on division-of-rates accorded owners was precisely theory. competition Explorer Divisions Received the need to meet Co., 375, See, Brimstone R. R. (1922), g., & Canal other I.C.C. carriers. e. McGraw Elec. F.Supp. grounds, 354, rev’d on other Brimstone R. R. Co. United 361-62 104, (E.D.Mo.) & (three-judge court), mem., Canal Co. v. United affd (1954); S.Ct. citing 72 L.Ed. 487 See id. at L.Ed. 635 JA Cases, Tap supra. Line MacKinnon, filed a dis- Judge, Circuit

senting opinion. Rockville, Gill, Jr., (appoint- Md.

John G. Marder, Court), ed Chris by this with whom Md., brief, Rockville, appellant. for was on Corcoran, Jr., Asst. U. S. G. Thomas C.,D. whom Earl Atty., Washington, with Silbert, Terry A. and Atty., J. U. John S. Mueller, Attys., Asst. U. Wash- Peter S. C., brief, appellee. ington, D. were on TAMM, LEVENTHAL Before MacKINNON, Judges. Circuit by LEVEN- Opinion for the Court filed THAL, Judge. Circuit MacKINNON, filed Dissenting opinion Judge. Circuit LEVENTHAL, Judge: Circuit Borum, was found B. Appellant, James sale dealing guilty on three counts undercover pistol of a stolen (1) receipt of a agents. Those were counts (18 U.S.C. firearm a convicted felon weapon 922(h)); (2) carrying dangerous § 22-3204); (D.C.Code § without a license (D.C.Code (3) receiving property stolen 22-2205). judgment imposed concur- § sentences, one years five on count rent charges. The 1-year terms on the other consecutively sentences were ordered to run 10-year im- to two concurrent sentences posed day the same another case.1 agree appellant’s contention We instructing trial court erred in not that the entrapment. We the defense new trial. and remand reverse selling receiving property stolen appellant pleaded guilty to 1. In 76-176 Criminal property. government . bringing guns? “What about us some We I. RECORD TRIAL COURT you get you’re know that hold of them but of what has popularly This case arises out ” (Trial to us. . bringing them become the District of known as Columbia’s 153.) bring Tr. declined Appellant them “Sting” operation, an undercover fencing gun. He told them at that time that he operation by the Washington conducted guns did not because he knew “mess” Metropolitan Department Police and the conviction, prior felony that with his he Place, N.E., FBI at 2254 25th from October if penalty caught would face a stiff he was 1, 1975, February to late 1976. Policemen with them. bought goods stolen and contraband from individuals the and recorded transactions on to the As offense which he was undisputed video tape. It is that on Febru- convicted, charged appellant and thе testi- 3, 1976, ary pistol the sold a to appellant 3, 1976, February fied at he trial that on Lilly, posed Detective Patrick J. who as Streets, N.W., “cop,” went to 14th T LaRocca, Pasqualle the boss of the under- e., /. While in a inject heroin. room with cover fencing operation. men, appellant approached nine other was by According one Melvin to testimo- Sales. According Lilly’s to Detective ny, credit cards Sales had some that he trial, the appellant regular was custom- appellant Appellant wanted to fence. er at the fencing operation. ap- He made (Detective Lilly) called LaRocca to see if he proximately during 27 visits a three month cards, was interested in credit and was told period, a day. sometimes twice On no occa- that LaRocca was not interested in credit sion February other than appel- did the cards but lant would be market fоr a attempt gun. sell guns.” Appellant “trailer truck and told A prime objective fencing of the opera- Sales that did not want the credit LaRocca tion, P.F.F., Inc., known as get was to un- P.F.F., Inc., Appellant cards. then called registered guns and stolen off the street. again to see ‍‌​​​​‌‌‌​​​​‌‌​‌‌‌​​‌​‌​​‌‌‌​‌‌​‌​‌‌​‌​​​‌‌​​‌‌‌‍were in if interested P.F.F., Inc., The operators of therefore en- television and some other items. The re- couraged bring guns. customers to De- sponse Finally, was the according same. tective that Lilly testified when he asked appellant, told Borum that he Sales had the appellant guns November of pistol Appellant at his home. sold that (i. e., the appellant told him Pasqualle told P.F.F., Inc., pistol along with a number LaRocca) get guns, that “he doesn’t like to of other items. doesn’t guns like to take the because he doesn’t get want to stuck with guns.” the government’s The evidence showed that (Trial 104). Tr. pistol the was parked the сar of Joseph a Mr. Traver some R. time between appellant government, testified that 31, 1976, January February agents discussed with him some 20 There is no evidence in the record that times. He testified on voir dire during that Borum ever used the firearm. Nor is there agents first visit the asked him if he evidence that he ever carried or used fire- gun. carried a appellant When said that he past. arms in the did not carry guns, agent responded, “Well, we guns, you take take all can bring All of the appellant’s testimony giv- was us and pay top (Trial dollar for them.” Tr. en out of presence jury. the of the 151.) A tape during video film taken one of describing February his state of mind on the appellant transactions with the shows thought testified that he appellant the government agent saying “Bring me that he was with the dealing Mafia. The guns. Bring guns.” kind of Inc., people P.F.F., money had lent him “to buy whatever want-

According appellant, stuff” or “do his visit [he] (Tr. 156); ed” immediately pistol transaction, he have to before he knew he pay fencing operation told that the loans back and did not want to Moreover, not going antagonize to deal in credit cards —one of appellant them. appellant’s staple agents added, items. The claimed that he the money day, needed fence and did want alienate being inference that he needed the thought for his habit. He money drug them. bringing gun, might find defense The elements en receptive operators purchas- fence more govern are trapment (1) inducement P.F.F., Inc., items did in ing other as well. ment, (2) a lack appellant other items from fact part of the The classic state defendant. day. Hand in Judge ment of Learned trial hearing testimony, After Sherman, 882-83 give court that it would not announced 1952), puts two elements fol these entrapment. an instruction on (1) agent induce lows: “did the accused appeals ruling in this court. appellant offence,” and, so, (2) if commit the “was willing per without ready the accused II. THE ENTRAPMENT DEFENSE any propitious awaiting suasion and was he This court is not authorized to decide the the opportunity to commit offence. On the question appellant

factual was in whether burden; question first the accused has the entrapped, question the only legal deed but it.” prosecution on the second the has judge given whether the trial should have “ jury entrapment the an instruction. are in These themes confirmed the ‘[I]n raised, deciding jury question is opinions entrapment. whether on Supreme Court judge the trial must consider the evidence projec- Supreme The initial Court decision light favorable the defend most judge- ting entrapment, the defense of ” Boone, ant.’ United v. 177 U.S. in implicit the put made forward as defense 265, 412, 267, (1976) 414 App.D.C. crime, 543 aof was legislative Sor- definition Anglada, (quoting States, 435, 287 rells United U.S. 296, 1975)). 298 210, (1932). In Chief 77 L.Ed. 413 Sorrells Hughes defense Justice stated “the of purposes appeal, we must For of particular entrapment simply not that the is of his appellant’s assume the version was committed at instance of act the P.F.F., Inc., true, dealings with is and that predis- . . The government officials. . appel- The the salient facts are follows: design the position criminal of defend- Inc., P.F.F., some lant visited 27 times. On are Id. at 53 S.Ct. at ant relevant.” operators 20 fence solicited occasions the ruling vitality 216. The of the Sorrells consistently an guns. Appellant expressed confirmed 356 in Sherman unwillingness guns, unwilling- to handle 369,372-73, 819, L.Ed.2d 78 2 848 S.Ct. strengthened the by knowledge ness his of Russell, (1958), 411 and United States v. penalties who ille- imposed stiff felons 423, 433, 1637, L.Ed.2d 366 S.Ct. evi- gally possess There is no firearms. ele- principal that the which stated appellant dence that the ever used in is ment of defense carried He was in Jan- firearms. informed defendant’s to commit the predisposition in uary that fence was interested key predisposition crime. While is- February cards. the fence credit On sue, question totally it does subsume the rejected his offer of credit and ex- cards inducement, separate consideration of in pressed interest trailer trucks one crit- the inducement issue illuminates appellant, money guns. search of ical, habit, additional element support brought then drug act instigation by of the criminal operators pistol he from defense: fence obtained operators government agents.2 Melvin Sales. He feared the 491-95, majority Supreme A Justices L.Ed.2d of the Court (1976) (Justices open possibility hold where there Powell and Blackmun con- even defendant, 495-500, (Justices part curring); id. at Brennan, dissenting). and Marshall conviction barred the Court’s Stewart be under power “outrageous Rehnquist, joined supervisory Justice the Chief Justice in instances of White, Hampton was of view that and Justice conduct.” Therе is sufficient evidence in the defendant finally acceded to repeated jury record for a to find both “inducement” importunings agent of the to commit the by government agents and lack predispo criminal act.” Id. at at 1641. part appellant sition on the Borum. The existence of evidence on inducement government agents It was the who first go sufficient to is made out appellant get guns asked they government asked the repeated initiation and so- times; him twenty about some pistol.3 licitation of the sale aof obtained and sold the when opera- government argues this case P.F.F., Inc., tors of said would not take there was no entrapment, evidence of since offerings. his other the role of the agents law enforcement “ itself the Supreme Sorrells Court was no more than ‘solicitation—the providing ”4 confronted less evidence of induce- of opportunity.’ If this were a cаse of ment than we have in solicitation, this case. Sorrells mere government’s conten- involved possession a conviction for and sale tion would have some force. Recent cases of liquor. agent There the asked the de- establish that if all that is shown is that an fendant three to five times if he could offer, enforcement official made an usually liquor obtain in the course of a 60 to 90 to buy, and acquiesced the defendant minute discussion. The agent had also been readiness, reasonable entrap- the defense of in the same army WWI division as the ment is not made out.5 defendant, although they were not ac- early precedent There is some for the quaintances. The Court held there was suf- proposition that “inducement” is established ficient putting inducement for the entrap- government if the agent was the first to ment issue jury. before the The Court suggest the crime and that the burden was found evidence of inducement in this “re- government then on prove the to predisposi peated persistent solicitation.” 287 g., tion. E. Sagansky v. United 358 441, at 53 210. S.Ct. 195, (1st Cir.), denied, 202 cert. 385

In Russell Supreme the 816, Court referred 36, 87 17 (1966). L.Ed.2d 55 its two earlier entrapment. cases on In Kadis 370, 373 F.2d described Sorrells as a case where (1st there 1967), 373-74 panel Cir. the same were two refusals of the agent’s request Sagansky decided concluded that it was a “upon asking a third time the defend- mistake to treat separate inducement as a ant finally capitulated.” 428, issue, 411 atU.S. 93 and held that the defendant must go S.Ct. at 1641. Sherman described as a on to make an showing initial of his “un case “despite reluctance, where initial the readiness” to commit the crime before the predisposition, process cases of entrapped law, even due claimed he was as a matter of ground claims could not be raised on the of only whereas we hold thаt Borum was entitled outrageous police conduct. Justice Stevens did go jury. importantly, More on the participate. See also United States v. Rus- very meeting agent Vircig- first when the asked sell, 423, 431-32, 1637, 411 U.S. 93 S.Ct. 36 sale, Virciglio lio if he had a machine (1973). L.Ed.2d 366 replied try that he did not but that he would get 441 one. F.2d at 1297. Borum’s is a case 3. appel- The would also be advised of both repeated pistol. of solicitation of the sale of a drug lant’s need to finance a habit and his fear fences, represented of the who themselves as g., Townsend, 5. E. United States v. 555 F.2d organized operatives appel- crime and whom 152, (7th Cir.), denied, 897, 157 cert. 434 U.S. lant did not want to offend. There is no need 277, (1977); 98 S.Ct. 54 L.Ed.2d 184 United opinion in sufficiency to reflect on the or Reynoso-Ulloa, 1329, States v. 548 F.2d 1336 weight testimony. of this additional (9th 1977); Reed, Cir. United States v. 526 F.2d 740, (2d 1975), denied, 743 Cir. cert. 424 U.S. 11, 4. Appellee Brief quoting 956, 1431, (1976); 47 L.Ed.2d 361 Unit DeVore, 1069, (4th States v. 423 F.2d Cir. Dickens, 441, (5th ed States , v. 1970) 524 F.2d Cir. denied, 950, 1604, cert. 402 U.S. 1975), denied, 2208, cert. (1971). L.Ed.2d 119 48 L.Ed.2d 819 clearly The cаse at bar is different from Unit- ed Virciglio, (5th States v. 441 F.2d 1295 Cir. , 1971) Virciglio followed DeVore. threats, promises, pressure “by dence of government the is shifted burden as a urgent or otherwise” This forward need predisposition. pleas carried show Friendly ruling Judge instruction. intermediate to an precondition in U.S.App.D.C. for the Second Circuit 295 F.2d at 1966), that there (2d Cir. Riley, 363 F.2d 955 key opinion Fletcher But if entrapment charge was no need for showing slightest “was of the that there no showed accused the evidence appellant of the part reluctance on the persuasion.” without “ready willing deal,” make the no evidence Judge Friendly continued: unwilling person “had induced otherwise hand, production On other Id. act.” to commit criminal in propensity, whether negating evidence contrast, bar, have In the case at in we otherwise, requires or cross-examination several testimony that the defendant unrea- jury, however submission to unwillingness to deal oсcasions indicated his a ver- judge sonable the consider evidence that the guns. was no There to be. in of the defendant dict favor past. had dealt with appellant at 959. Id. penal- appreciated testified that he He Boone, U.S.App. In United States caught if he were ties he would receive (1976), this D.C. selling gun. opinions possessing rule the accepted appropriate as the Court Sorrells, plainly and Russell estab- Sherman Riley. pronouncement Circuit’s Second materiality, negativing lish the in terms Riley had noted that formulation We expressed predisposition, of the reluctance Angla been reiterated in United States defendant, fact the de- and of the da, 1975), with full capitulates or accedes fendant “ of a trial awareness of the ‘reluctance en- repeated solicitations law context “when he judge charge agents.9 forcement is concocted” and believes defense ”6 is guilty.’ defendant argues that since government the existence question That leaves the to undisputed predisposition was there In propensity.” evidence “negating merchandise, the defendant fence Boone, case, government the in as immunity prosecution from could not claim DeVore, supra, argued voked note 4 and see offense, the “essentially” what is same agent’s only one solicitation ‍‌​​​​‌‌‌​​​​‌‌​‌‌‌​​‌​‌​​‌‌‌​‌‌​‌​‌‌​‌​​​‌‌​​‌‌‌‍the role was merchandise, “so that illegal possession of evi We found sufficient opportunity.7 and respect be drawn with no distinction should require the negating propensity dence to deci entrapment But the propensity.”10 to entrapment charge.8 a “defendant who speak sions terms of pro of a has committed all the elements government

The cites Fletcher v. United offense, was induced to commit States, scribed but 192, 111 F.2d 179 U.S.App.D.C. 295 denied, 993, by the United (1961), 82 them Government.” States cert. 368 U.S. S.Ct. 435, 613, Russell, 1644. requiring 7 evi- v. 411 93 S.Ct. at L.Ed.2d 530 part comply 414, quoting the to with tance on of defendant 6. 543 F.2d States v. United 296, Anglada, 1975). requests. 298 Cir. such Borum’s reluctance was com- agents municated to the at the time of their F.2d 7. 543 at 413. requests (as government agents the acknowl- record), edged present in the in the had 8. In Boone the defendant testified that he government sought agents the override and to during accompanied government agent the requests. by redoubling reluctance their protect agent narcotics from transaction opinion present case is not meant Our being Id. robbed or beaten. at 412-13. proposition frequent stand for the solicita- distinguishable 9. This case is therefore enough by government agents tion itself 267, Brooks, U.S.App.D.C. United 185 States require instruction. 271, 134, 138, (1977). 567 142 In that case government agents persistent re- made Appellee Brief for at 11 n.7. bring guns, quests people with defendant expressed reluc- but this in the face оf was not case, 1972), denied, 939, appellant’s In the instant Cir. cert. contention is 410 U.S. “hypertechnical”, government as the (1973); 35 L.Ed.2d United puts penal- it.11 He was aware of the extra (9th 1972), States v. 468 F.2d 194 Basey, Cir. ties convicted imposed receipt felons for denied, cert. firearms, particular voiced this (1973); L.Ed.2d 684 Chatman United concern to the agents. per- undercover (9th 1969); 411 F.2d 1139 Cir. Unit per- tinent statute makes it unlawful for a Soles, (6th ed 401 F.2d 521 Cir. States son any “who has been convicted in court of 1968), cert. denied sub nom. Nelson v. Unit . a crime punishable by imprison- ed exceeding year ment for a term one . . . L.Ed.2d to receive any transport- firearm . . . quite This would be a different case had ed in foreign interstate or commerce.” 18 police, instead of merely waiting to see 922(h) (1976). context, U.S.C. In this § what might bring contraband Borum government fairly say cannot that a them, approached the defendant with stolen just any like other item.12 guns urged him to find some “fence” to The case is reversed and remanded to them, whereupon Borum proceeded to give the opportunity defendant fence these “Sting.” Cf. present defense a jury. v. Oquendo, (5th

So ordered. 1974). however, In actuality, police approached never Borum. He came to the MacKINNON, Judge, dissenting: Circuit unsolicited, Sting completely as a confirmed burglar fencing variety goods of stolen Because it my conclusion that the evi- dence, part for a small law, of their actual value. as a matter of shows that Bo- dealing appellant, course of rum entrapped to receive a firearm running officers shipped in discussed what interstate commerce to pos- types of articles license, they were interested in sess same without a I respectfully purchasing, and he returned number of majority dissent from the decision of the voluntarily times opinion. completely on his own gоods. to sell such Borum dealt with the argues court Sting solely because it afforded him a mar- course of operating their undercover larcenies, ket for the fruits of his not be- “fence,” “the Sting,” entrapped Borum to police prodded cause the him to do so. As commit these firearms merely by offenses testified, he had “about 20 telling him on several occasions when he guns” Sting. conversations about with the voluntarily came to goods sell stolen (Tr. “Most of the time I 152). called them” purchase would also guns. making In thus, Sting, merely afforded the de- these suggestions, however, the Sting did profit fendant a chance to by violating the nothing “provide more than opportuni law; a chance eagerly which he embraced ty” for appellant to exercise his felonious and to which he preeminently predis- intentions opposed which —as to actual “in posed. Compare Sorrells v. United by great weight of authori ducement” — 77 L.Ed. 413 ty, falls purview outside the of the entrap (1932). Lutfy ment Russell, doctrine. United (9th 1952). 423, 435, 36 L.Ed.2d 366 (1973); Gardner, United States v. this case it must be remembered that (7th F.2d 334 Cir.), denied, cert. the predisposition talking are we about (1975); 46 L.Ed.2d 89 predisposition possess guns. It was Hill, (10th States v. possession gun mere of a that formed quired only 11. Id. if the case involved the offense of receipt property. of stolen pass 12. We have no occasion to whether instruction would have been re- time, thing I knew at the But the two offenses of of the corpus delicti So, he told me cards. he had some credit Bo- Apparently convicted. he was I them. said to offer that I know where thief; operated he also only a rum was not yes. wishing to intermediary for others as an phone So, got on According up to his I went articles.1 fence various And Pat —I told Pat’s. I called over to running always he was testimony own I did I have. asked what him I had —he sell buy who wanted across men I some credit cards. said had himself to do so his reluctance guns, but said, talking more So, “I ain’t no said, he didn’t want to he was, because as he that” or should know able to credit cards. You guns e. not be get stuck with —-i. So, said, he “Is that effect. something to good and a When a sure sale sell them. you got?” that all said he was guaranteed, Borum price said, admission of I “Yes”. This seems a clear “Solid.” as- guns if he were predisposition to sell said, “Well, taking no Well, I ain’t implicit in ready a market. And truck or Bring sured of me a trailer credit cards. necessarily is the predisposition guns.” this wider some possess guns predisposition to involved said, “Okay.” So, .hang up. I I Thus it him or others. whether owned So, message to Melvin. relayed I wanted when a friend of his surprise was no So, TV and some Melvin said he had a TV, and both offers cards or a to sell credit So, me to call he wanted other items. down, back that Borum called were turned back. Sting if the inquired time and a third Sо, I told So, again. him back I called affirm- reply was “pistol.” a When the I time. He said what had this me [him?] (Melvin ative, sending his friend instead of told no, anything. He taking he wasn’t alone, went Sales) wanted, Borum all he was who had what he and that’s me to share in the going with him in order to take. along to handle Borum’s price. So, relayed message I back to Mel- apparent “Well, circumstances is So, said, got under such I a again. Melvin vin convicts him on and his own pistol.”

score: So, said, pistol, he’ll you got I “If pistol.” take the And I uptown cop. I went

And quar- somebody. on, Got said, past think I went with me He “Come take about whatever it was. It was ter or house.” sitting around all.

nine of us in a room car, So, my went put we all the stuff in and he had house, pistol, And Melvin came and I picked up Sales past know at no, gasoline But I didn’t some credit cards. I called from went back — Road, Bladensburg and he a TV and some radio the time that he had station on said, got I “I I hаve. anyway, ‍‌​​​​‌‌‌​​​​‌‌​‌‌‌​​‌​‌​​‌‌‌​‌‌​‌​‌‌​‌​​​‌‌​​‌‌‌‍it was me what did something. But asked said, So, up.” “Come pistol.” things bunch of he had. “I understand that.” prosecution Borum: proffer at a bench 1. The if, ah, “No, saying, recording tape I am not like of Borum’s con- Borum: of a conference you ran as follows: versation with the it’s a .38 know.” “Bring any gun you get Lilly: kind of any guns?” Lilly: “Run across it, guarantee your buy I I hands on. will it. “Ah, always running yes, I am Borum: you f___ing price.” guarantee good and I a buy sell that wants to them and across dudes them, buy get Borum: “Solid.” them and but I don’t want objected proffer to and it 134. This was Tr. them.” stuck with permissible get Lilly: going for to consider it the court “You ain’t stuck charge deny you get bring to me.” a if them and them connection with its decision to them gun?” you get entrapment entrapment. instruc- Borum: “What do Had an you good money. Lilly: give pretty given You “I tion been the above just bring it in me see it. I can’t and let been been have have admissible and would it, something it looks very damaging until I look at see what to Borum. likе.” 432 by law enforcement officials and

So, up pistol there I had the crime I went and figured States, because I Lopez and the other stuff 373 agents.” their v. United going to turn it down if I had the 427, 434, 1381,1385,10 wasn’t 83 L.Ed.2d U.S. S.Ct. pistol. (1963). 462 Borum was no innocent But

So, it victim. that’s how came about. Tr. 154-156. It is also fact not to be interplay Government’s role (Sales) ignored accomplice that Borum’s al- Sting signifi between the and Borum was ready pistol opportunity had the cantly passive. any —the There was never at merely existing sell it caused the evidence tempt urge persuade or to influence to surface. No was committed new crime judgment the reason or of Borum. Sales, to a certain extent Borum in those recognized cases where initially and abetted Sales’ offenses aided activity criminal in which the defendant subsequently committed his own indi- minimal, allegedly entrapped is itself vidual offenses. “relatively slight” inducement suffice possibility might There is a that Borum see, instruction, require entrapment e. possession never have been of a if he Boone, g., U.S.App. 177 United States v. opportunity had not been afforded an to sell 265, (1976); D.C. 543 F.2d 412 it, perversion but it is a of the American Viviano, 295, Cir.), (2d 437 F.2d 299 cert. language suggest and the American law to denied, 983, 1659, 402 91 29 U.S. S.Ct. therefore was “induced” to commit (1971); L.Ed.2d 149 United v. Weis States the crimes of which he was convicted. It is er, 932, (2d 1969), 428 F.2d 934 Cir. cert. firmly solicitation, that simple established denied, 949, 1606, 402 91 29 U.S. S.Ct. affording oppor much less mere of an (1971). Here, however, L.Ed.2d 119 there is tunity, does amount to such inducement no indication of actual “inducement” gives defense, see, entrapment rise to an all. The presented defendant thus has not g., Perry, e. United States 478 F.2d 1276 justify plac sufficient the court evidence (7th Cir.), denied, 1005, cert. 414 U.S. 94 ing jury by the issue before the an instruc 363, (1973); S.Ct. 38 L.Ed.2d 241 law, entrapment. tion on a matter of “[A]s Tharpe, (4th Cir.), States v. 443 F.2d 12 place merely by no takes denied, 866, 80, cert. 404 U.S. 92 30 S.Ct. purchase asking Govеrnment informer’s (1971); L.Ed.2d 110 United States v. Bar Kibby contraband articles.” ash, denied, (2d Cir.), cert. 396 States, 598, (8th Cir.), 602 cert. 832, 86, (1969); 24 L.Ed.2d 82 denied, 931, 2055, 387 18 Licursi, but compare, United (1967), L.Ed.2d 993 and cases cited therein. 1164, 1975) (and cases party The active in Borum’s contact with therein). apparent disregard cited him plainly “fence” was the defendant such compelling authority, the court seems self. It was he who first went to the to have confused “inducement” with a more overtures, and made the initial and he who passive concept, perhaps best described sim voluntarily repeatedly continued to re ply as a temptation. doing In so the court new this contact —some 27 times in three glosses point over the can months, Haden, cf. United States v. present be where the action is denied, (7th Cir.), F.2d 460 cert. 396 U.S. actually “creative” of the defendant’s crimi 1027, L.Ed.2d 523 S.Ct. intent, nal see Hampton v. United On facts much less favorable to the Govern 425 U.S. L.Ed.2d 113 these, put ment than one would be hard (1976); Shеrman v. United deny that a had be defendant’s conduct 2 L.Ed.2d 848 come independent rather and deriva merely supplying sufficiently than facility tive even the activity, see, its from his own initiative that g., e. Chatman v. United States, supra. aptly Justice Harlan ob most be forced to refuse to credulous would design originated served that “the is believe that the “criminal defense concerned manufacturing in the mind of the officer” not of the de- [with] case, police exerted so little In this particularly a conclusion is fendant. Such that the defendant it is diffi- Bo- influence on present in case where ineluctable acts could be imagine cult how his said to to proven himself to be a confirmed rum has other than his own proceed anything from regularly possess- thief and has admitted to question There is no predisposition. that in various contraband ing trafficking occasions told the de- police on several v. and stolen articles. Cf. Sorrells in they purchasing were interested fendant 210; supra, 287 U.S. S.Ct. when guns, they only but did so he volun- Anders, (5th v. United States them to discuss the tarily possible contacted States, 377 1973); Beatty v. United Cir. various other stolen articles. The sale of grounds, (5th Cir.), rev’d on other F.2d 181 Borum on mat- police approached never 19 L.Ed.2d 48 does not involve the “re- ter. This case solicitation” charac- peated persistent not, course, major I do understand entrapment, see teristic of Sorrells Unit- dealings all Borum’s ity suggest to supra, 287 ed Sting po with the were “induced” 210; Ewbank, lice, may have been en only but that he (9th 1973). What Cir. of- specifically the officers into trapped merely “opportunity,” fered Borum was a crime which it is al dealing guns, illegal weapon and his eventual sale of an to leged predisposed he was not commit. free decision to take was the result of his patent ab Although position lacks course, opportunity. Of аdvantage of that gen surdity any suggestion that Borum’s particular day had the stated Sting on this dealings goods eral in stolen were “in in stolen credit were interested duced,” agree I nevertheless cannot cards, not have resorted might Borum merely op where law enforcement officials pistol, the sale of the but the mere refusal purchasing operation in passive, erate a property does species one of stolen activity is volving property stolen that such selling into not constitute —and inducement to illegitimate transformed into possessing something less into else. much — possess guns merely supposed because the it was the defend- point remains that interested only “fence” indicates that he any per- ant himself who decided without suggests in certain merchandise that he would sell what the suasion good price. such items would command buy. offered to affording ‍‌​​​​‌‌‌​​​​‌‌​‌‌‌​​‌​‌​​‌‌‌​‌‌​‌​‌‌​‌​​​‌‌​​‌‌‌‍an nothing That more than Moreover, view, my has mis- the court Virciglio, opportunity. Cf. United States predisposi- apprehended nature of the (5th 1971). tion must show the Government Moreover, charged only Borum was thief this case. Borum was a confirmed possessing gun property and stolen so that any stolen predisposed acquire to steal or there is no need for the Government article in order to fence it and obtain actually show that he predisposed is, re- price best he could. There in this difficult), guns (which might deal in be but possession his spect, nothing unique about pos- predisposed rather that he was to, example, opposed of a stolen suggestion that while he sess them. The may attach currency. The law diamonds goods, to sell stolen disposed generally illegal possession special penalties predisposed he was not to sell stolen firearms, an individual makes but when merchandise, nature of this cаse and mis- misstates the fencing livelihood (and which Borum was provide construes the crimes for hence predisposed he seems There long general. convicted. As as it is shown —and possess) such articles indicating— general there evidence so in which a is abundant be some situations sufficiently predisposed to and fence would not predisposition that Borum was to steal ready so with certain possess guns imply predisposition if he was afforded a do them, example, an individual who is market no further articles —for not be to willing guns may to sell readily is needed. least, for required the inducement that leads very are sell secrets —but at the national case, overly see, g., on of this it seems e. Sorrells United entrapment, the facts general predisposition that a dispute supra; nice to su- Lutfy goods Borum to fence stolen part of any the not here with pra. We are confronted a atti- suggеst at least similar would not police, by or browbeating intimidation pos- right Vas price tude —if the who, with individual as his only but an —towards re- Appellant’s to sell them. sessing guns willing to changed, circumstances became to have been firearms seems luctance to sell advantage pru- that opportunity take an doing so more of hazards indicative him to persuaded had earlier avoid. dence possess any than to lack opinion that this case The court’s asserts profit by particular that felo- them so as to distinguishable from United States v. is ny- Brooks, U.S.App.D.C. subse- The court makes much of Borum’s (1977) because did not involve the Brooks in fire- stated reluctance to deal quently “redoubling requests their government heavy knowledge arms because his expressed reluc- face of penalties upon felon consequent a convicted part comply on the tance of defendant possession gun, apprehended in being requests.” Neither does this with such by suggesting that he would not way of support here does not case. his for some have overcome reluctance but Sting that redoubled his an assertion police. But there is not by suasion Rather, persisted Borum requests. when that the suasion ever ex- iota of evidence continuing fence other sto- attempts That Borum over- “opportunity.” ceeded merely repeated its Sting len articles hesitation, came his initial demonstrates buy such that it would not arti- statement the mere nothing point more than some guns. This cles but a trailer would “top paid obtain dollar” opportunity to the same situation exist- practically was overmastered his self-interest- firearms ed in Brooks where we found the rec- caution, process presumably ed which presented ord “even a colorable conten- whenever crime is commit- place tаkes was an tion that Hazel inno- [a defendant] ted gain. for financial instigated person po- to crime cent point The mere fact at a certain lice, implanted disposi- his mind the who Borum considered it to commit worthwhile law,” U.S.App.D.C. tion to violate the possession crime of in furtherance of at 138. to com- initially crime that he was reluctant In the face of admission that he Borum’s supports mit evidence that an infer- is not guns, supra frequently came in contact just ence like of inducement. Borum already hard how one n. it to see poker player regularly confirmed who engaged, or at in contact others least played game, although in the crooked engaged, in crimes who were themselves one, preferred have an honest be- would predis- involving guns not to be can be said only game was the cause the former fact that posed to commit crime. The it During the three months that took town. “expressed compel does not reluctance” (and inciden- him to decide to sell a unless such re- instruction it) subject of firearms tally possess inducement, luctance was overborne purchases less than slightly was mentioned His reluctance the de- shown here. twice a week and then after and was principles at the was not based moral voluntarily appeared fendant himself in- easily cupidity overcome when his own Sting and initiated the discussion as He perform far him to acts. then Sting what the situation duced such buy2 —a Sting different called the eagerly repeatedly “hard sell” tactics February appellant until 3 when he sold firearm to Tr. 151-154. “asked ber guns” by Appellant’s operating about the officers them. Brief at 5-6. approximately twenty Novem- times from late just make all arrangements Sting’s such a failure to accommodate the defend- for. crime as previously “expressed preferred he had re- ant’s method of obtaining funds luctance” to commit. His own testimony, retailing larcenies, the fruits of his friends, pp.---of of his does those not amount U.S.App.D.C., pp. F.2d, necessary permit inducement supra, entrap- an clearly shows of 431-432 ment instruction. The inducement the influence caused Borum to that is his reluctance was necessary justify entrapment overcome his desire an instruc- tion must be something akin to: money; police officers involved merely passive remained available as the persuasion, representations, fraudulent instrument of his felonies: threats, tactics, harassment, coercive reward, promises pleas or based on asked why on the one occasion in

[When need, sympathy friendship. A question solicita- brought and no other he a fire- tion, request or approach by law enforce- arm to Sting, replied] Borum Be- ment officials engage in criminal activ- they they cause said wasn’t taking any ity, alone, standing is not an inducement. anything might credit cards or else that I brought. have And I knew that eventu- I

ally day would have to have some Jury Criminal Instructions for the District money. they bring pistols And said to Columbia, Entrapment Instruction 5.05 So, they that’s all taking. brought I .1978). ed. (Tr. pistol. 157) necessary require inducement prior If “reluctance” in such circumstances entrapment instruction may pleas consist in is sufficient merit an in- “predicated on . presumed suffer struction, then the deterrent element in ing” that “enticement,” amount to Sherman criminal penalties would make such an in- 356 U.S. necessary

struction in virtually all cases in- 819, personal L.Ed.2d 848 or in volving police activity. undercover appeals to human sympathy, friendship, etc. Sorrells v. United 439- Turning from the “predisposition” prong 77 L.Ed. 413 focusing doctrine to that court’s reliance here on these two cases is “inducement,” on the amount policе U.S.App. Maj. op. p. -of misplaced, again it is the similarity between the deal- F.2d, D.C., of 584 as no such in p. 429 ings of the police defendants with the indulged ducement was in here. The case, Brooks and in the instant not the Russell, court’s reliance on United differences, which stand out. It is true that - U.S.App.D.C., Maj. op. p. p. of 189 Borum twenty-seven made some visits to F.2d, contrary 429 of 584 is even more the Sting, all of them voluntarily whereas its holding. Russell held that the defend the defendant in Brooks only eigh- made ants were entrapped though even However, teen. this seems to be a differ- government voluntarily furnished the crit ence without anything, distinction. If it ingredients ical necessary to manufacture a disposition indicates more to crime in Bo- drug. contraband It would be hard to find rum. Certainly the fact that the told a case that would support furnish less one eighteen defendant and another twen- position court’s than Russell. ty-seven times that were interested рrimarily in purchasing guns particularly irrelevant, may true, be but that Bo- — when it was the individual criminal himself money rum’s desire for was fueled who many determined how times he would addiction, mandates of merely the more talk to the’ not constitute a aspects greed. mundane addiction While —does meaningful degree difference in the to may contribute to one’s which the two crimes, defendants were induced to commit legal it is not a defense to commit their respective consequences crimes. The majority thereof. The I the court point, As a final note that asserting. in so law Sur-

goes beyond the weight fact place insists that on the the court seems some prisingly, “frightened” the fact offi- to consider the defendant was be instructed should addict, Sting. posing that it leaders of the How- cers that Borum was ever, sufficiently point— apparently evidence he was not infer —without them or be dissuaded pressing, frightened to avoid had indeed that he therefore renewing overwhelming continually voluntarily need for and physical, literally an actuality persons in contact with the whom now money (parenthetically, is him. Not did Borum strength alleges of all addiction terrified overpowering actually being give signs the con- few and in fact himself misconception, common po- addicts). We are frightened, in all but also conduct of does not exist dition excessively means intimidat- been unable find lice no pointed and have never threat- ing. The officers themselves ever instructed any that court has consequences any dire may negate predis- ened Borum with that narcotics addiction guns; in the furthest that the court is should not deal position. It is submitted Moreover, simply to him that respect. they in this went was inform grossly error in type of ways. purchase any If he would not other Borum’s addiction cuts both funds, might magni- property. that The defendant well were short of fact afraid, potential illegal- greed, it effect have been but was his fy the and hence fear, police. induced him to fence Sales’ ity any “inducement” that would, suspect most crimi- however, suggest pistol. that he One would that also fright degree; are to some anything frightened to obtain funds nals predisposed to do narcotics, police by no purchase arguing and thus alone means indicates that in case criminal intent. police induced his crime is fantastical. created Borum’s has Furthermore, Supreme in Court admonished I cannot concur must dealing entrapment, exi- in “a line be implication that the financial court’s subjec- trap unwary for the gencies of addiction—or other drawn between trap unwary for the crimi- of a defendant —can innocent and the tive characteristic nal,” supra, 356 into induce- opportunity transform mere Sherman Sting at 821. The might ment. make one morе U.S. at Addiction trap in for the willing to but it no its face was no more than a grasp “opportunity,” criminal, Borum, one of impermis- predisposed way “opportunity” converts into “customers,” frequent To it to do their most could sible inducement. allow so be as That he hardly would be to allow individual infirmities to described innocent. unwary of the criminal was was his downfall. protection eviscerate the law. recently, More the Court has reiterated relatively limited “entrapment there no evidence at all that the is a de-

Here Russell, of, supra, exploited, let police even knew alone fense.” United States sugges- addiction, show- at at 1644. The barring Borum’s some out is whol- tion that was involved is ing manipulation, of such the court place here. no that the ly justification transmuting without There is indication customarily passive, activity police police of the of the receiving the course “creativе,” “initiative,” passivity and overstepped this case the bounds of into the entrapment, en- the area “persuasive” conduct which constitutes intruded into might they certainly trapment dealings in their with Borum merely because defendant money. did not do Even if the most extreme strong physical have had a need for so. by Justice entrapment, expressed view of impermissible It is for the court to confuse Brennan, accepted, the facts here do not induce- compulsion internal external defense. In his dissent ment. constitute such 484, 96 Hampton v. United Justice BUREAU CARRIERS’ 48 L.Ed.2d GOODS HOUSEHOLD Warehousemen’s v ers’ & postulated:

Brennan Mo Inc., America, on behalf Association is a believe an individual If Petitioners, members, of their narcotics, is re- all distributor of “buy”; putative up to set quired is investigative effort is worth the

pusher COMMIS COMMERCE INTERSTATE supply. to a ready access only if he has and United States SION Russell, U.S., See America, Respondents, 1650-1651, S.Ct., 448-449, ‍‌​​​​‌‌‌​​​​‌‌​‌‌‌​​‌​‌​​‌‌‌​‌‌​‌​‌‌​‌​​​‌‌​​‌‌‌‍[93 League, Traffic Industrial National J., (Stewаrt, L.Ed.2d, dissent- at 382-383] Intervenor. ing). 3, 96 at 1655. at 499-500 n. TABLE, Petitioner, ROUND MOVERS possessed Borum knew that Here He admitted goods. and sold COMMERCE COMMIS INTERSTATE Conse- guns.3 had access to sometimes States of and United SION up “set agents did was all that the quently America, Respondents, (Borum) seller ‘buy’,” putative and the ready access advantage of it took League, Industrial Traffic National available to was made had to a Intervenor. even This is him Sales. 76-1319, 76-1550. Nos. Brennan, Mar- of Justices standards by the Appeals, Court of Stewart, court should and this shall and of Columbia Circuit. District 495-500, make it so. 425 U.S. attempt here, Borum, be- 1646. Sales 26, 1977. Argued April them, their own inducement supplied tween 30, 1978. Decided June were crimes with July 1978. Rehearing Denied Bo- to read challenge anyone I charged. pp.----of rum’s F.2d, pp.

U.S.App.D.C., 431-432 of 584 by the

supra, any inducement point out Russell would seem that

government. recent, would com- Hampton, being so explication and that further respect

mand dis- necessary. respectfully I not be

sent.

MacKinnon, Judge, concurred Circuit opinion. filed Tr. 134.

Case Details

Case Name: United States v. James B. Borum

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 20, 1978

Citation: 584 F.2d 424

Docket Number: 76-1879

Court Abbreviation: D.C. Cir.