United States v. Raymond E. Kaminski

Group purported that defendant to be an PELL, COFFEY, Before POSNER and arsonist for hire. Judges. Circuit Defendant did not return to the credit union September, until when he came to PELL, Judge. buy a car mother. During for his this visit Defendant was after a convicted explained defendant that he had been in jury trial travelling in interstate com Texas during the summer and had been promote merce to an activity, unlawful ar employed up building. to blow Because son, in violation of 18 1952(a)(3), U.S.C. § his exploits in Texas defendant had been transporting an explosive in interstate com hasty Chicago forced to make a return to unlawfully merce to damage destroy and money. and was in need of Defendant re- building in violation 844(d), of 18 U.S.C. § peated to an undercover agent and maliciously attempting damage and who was with working agent Kramer. The destroy, by means of an explosive, a build later unsuccessfully verify tried defend- ing used in interstate commerce in violation ant’s claim that a building had been blown of 18 844(i). U.S.C. Defendant relied § up in Texas. Kramer told defendant that upon the at trial and might he knew someone who be interested now that the evidence demonstrated hiring in an arsonist. that he was entrapped as a matter of fact 1, 1981, On October Kramer introduced and law. We must jury assume that defendant Walker agent during a tele- chose to accept light evidence in the phone conversation. told defendant Walker most favorable to the Government. Glasser that he looking up was for someone to blow 60, 80, v. United buildings and would be in talking interested 457, 469, (1942). 86 L.Ed. 680 with Later defendant. afternoon I Facts. telephone Walker made a call to defendant and said that he needed “to take someone January February of 1981 defend- down a When building.” asked about his accompanied ant his girlfriend during a vis- experience replied, defendant “I’ve it to Northwest Parish Credit Union in an up.” burned ’em. I’ve never blown ’em attempt automobile, to reclaim her which expressed meeting Defendant interest had been repossessed. In the course of this discussing possibility Walker and of de- Kramer, visit defendant spoke with James stroying building. This conversation Seider, employee a/k/a James of the recorded, con- subsequent was as were all credit union. Unbeknown to versations. employed Kramer was also as an informant Alcohol, Tobacco, for the Bureau of next day and Walker and defendant met the (ATF). Firearms Defendant mentioned at a bar to discuss business. Walker said looking that he was inter- arson- for work and was that he wanted to hire a ist, buying ested in and A week to boast selling prompted cars. defendant later defendant un- arsonist. De- again visited the credit about his credentials as an a fire money explained ion and told Kramer that he needed fendant how he could start acci- willing repossess appear and would be cars and that would to be an electrical particular explosion. about the or the of a furnace legality his dent result have burned three build- employment. returned a few He also claimed to Kramer, working in days spoke ings repeated later and with mention- his account of things go wrong” in build- experienced blowing up “making he was Texas suitably impressed burning buildings willing ing. and would be Walker might jobs there be more put his skills to work for Kramer. mentioned that Defend- keep Kramer said that he would this in the future if the first went well. promised ant that he would not back out of Defendant also claimed that he had never deal, and Walker said that he pay buildings been to Texas and one of the $1,000 destroying the build- he claimed to have burned never existed. ing. explained knowledge He that his of various came from techniques working arson at a conversations, After several telephone gas engineering station and at an firm and Walker and defendant to meet at an talking He firemen. testified all-night before driving diner into Wiscon- up that he had made the about Texas sin to examine the tavern defendant was to him, stop “pestering” to Kramer from al- destroy. Defendant failed to make the though he admitted that Kramer had never meeting problems because mechanical “pestered” him about fires. De- starting car, assured his but Walker the next fendant also admitted that he had not been day that he was not withdrawing from the pressured by Walker and had had plenty job. 13 the On October two men drove to to opportunities withdraw from the scheme Wisconsin to visit the During tavern. the but had continued to meet with Walker trip defendant discussed experiences his burning because he was interested in the explained preferred and that he to use building. He also that he had conceded because, lighter gasoline, fluid unlike it left agreed destroy to the tavern before know- no residue to indicate chemical arson. De- ing paid. how much he would be fendant also mentioned that he was at- tempting get in touch with a Entrapment. II

arsonist who could teach him how to use timers to start fires. Walker volunteered Defendant that the evidence es- to finance defendant’s “education.” They entrapment tablished as a matter of fact inspected tavern the to rendez- law. In making defend- Richmond, Illinois, vous at a diner that ant entrapment has confused the defense of morning. separate governmental with the diner,

Walker and defendant met at the process. misconduct in violation of due As where paid Walker to defendant and step $500 a first in an examination of the distinc- arranged to the pay remaining after tion between the two defenses we turn to $500 the destroyed. tavern was took the major entrapment four decisions of the key and, bending to the tavern after his Supreme Court. plates detection, license to avoid drove his cases, In the first of these Sorrells own car into Wisconsin. Defendant was States, 287 53 77 S.Ct. arrested surveillance agents letting after (1932), persuaded L.Ed. 413 defendant was himself into the building removing one liquor to sell illegal government agent lighter two cans of fluid from his coat by repeated appeals sympa- to defendant’s pocket. being rights After advised of his thy majority for a fellow war veteran. The deal, he explaining offered to make a Court, reversing the the trial court’s job this was his first arson and that he was entrap- refusal to submit the defense of working (Walker’s name). for “Hal” first jury, ment to the held that as a matter of When he saw Walker enter the tavern he statutory construction the defense of en- “you up.” exclaimed set me Walker asked trapment was raised the introduction of Texas, about the arson in evidence that the crime was committed at prophetically, would only reply, “I can’t tell instigation of Government and you They just that. will kill me. I will the defendant was not to com- go jail.” have to en- analysis mit the offense. Under this At trial defendant confirmed that he had is a of fact to be decided trapment question met with accuracy jury. separate opinion Walker and admitted the In a three of the conversations, argued recorded but claimed members of the Court the de- that none of what entrapment upon he told Walker concern- fense of should focus expertise his as an arsonist was true. extent of the misconduct and Government’s

1007 grounded in the judiciary’s power to supplying ingredient, held that one not it- “protect itself and the government illegal, self engaged to defendants in the prostitution such of the criminal law.” 287 methamphetamine manufacture of S.Ct. at 218. Under this dissent, such conduct. The again, once ar- objective test the defendant’s character is gued objective for an test of the Govern- irrelevant. The minority argued that it ment’s conduct. duty court, was the jury, of the not the recently Most five members of the Court close its prosecutions doors to founded upon reconfirmed that on “focus[es] governmental in inducing intent or of the defend- creating crime. Hampton ant to commit the crime.” This opinion difference of was repeated States, 484, 488, S.Ct. Sherman United 1646, 1649, (1976). L.Ed.2d Two of (1952), in which justices, however, these unwilling majority held that determine “[t]o rule out the possibility separate due entrapment established, whether has been a process defense if the Government’s con- line must be drawn trap between the for sufficiently duct was outrageous, making a unwary the innocent trap and the for the justices total of five willing recognize unwary 372, criminal.” 356 at 78 U.S. S.Ct. defendant’s is irrele- minority at 820. A argued of the Court for vant when the evidence truly establishes an objective test of the Government’s con- egregious governmental misconduct. duct that would not consider the predisposi- tion of the defendant. Both groups agreed We may reweigh not the arguments entrapment was established as a mat- support made in of these two positions, but ter of law when the uncontroverted evi- proceed rather must on the assumption that dence disclosed that defendant sold narcot- the entrapment is not available ics to an informer only after numerous to a separate defendant while a pleas to defendant’s empathy one suf- defense solely upon governmental based. fering the ravages of withdrawal overcame may by be raised even the most defendant’s initial reluctance. There was hardened criminal. See United States v. persuasive proof no predispo- Hodge, United (7th Cir.1979); 594 F.2d 1163 sition profit and defendant made no v. Twigg, States (3rd Cir.1978); 588 F.2d 373 the sales. In effect the Government had Garcia, United 411, States 415 created a criminal out of a person attempt- (7th Cir.1977). ing to break his simply addiction for the sake of arresting expounded great him. Defendant has at length upon unsavory the nature of Kram Although the members of the Court have er’s character and other exculpatory evi changed, disagreement the over the source advancing dence in and scope of the entrapment defense re- prove Government failed to his predisposi Russell, mains. States 411 tion as a matter of fact. Matters of fact 423, 1637, U.S. 93 36 S.Ct. L.Ed.2d 366 jury, appeals. are for the not a court of (1973), the majority held that entrapment is Regardless of repulsive may how Kramer limited to those situations in which the the jury be was free to believe his testimo “Government’s deception actually implants ny, they obviously ap as chose to do. On design criminal in the mind of the de- we peal considering are limited to whether 436, fendant.” 411 at U.S. 93 at 1645. S.Ct. the evidence established as a majority The conceded that “we some law, only matter of occurs when the day presented be with a situation in which predisposition ap absence of defendant’s the conduct of the law enforcement agents pears from the uncontradicted evidence. outrageous is so that due process principles v. 373, from Sherman 356 at absolutely government bar the U.S. 821; Spain, invoking judicial processes 78 at 536 obtain a con- S.Ct. viction,” denied, id. at 431-32, 1642, cert. 170, (7th Cir.1976), 93 at S.Ct. 173 1008 833, 96, 97;

429 97 50 denied, S.Ct. L.Ed.2d 897, 98 S.Ct. Cardi, United States v. 184; 1367 L.Ed.2d Jannotti, United States v. su- (7th Cir.1973), denied, cert. 94 pra, 501 F.Supp. 1190-91, 355, 38 S.Ct. 237. This is L.Ed.2d not such a Before examining the facts of this case case. we should peculiar note the nature of one of , these factors: the inducement offered Although there is no infallible the Government. As stated previously, pre- divining means of a defendant’s predisposi disposition prior exists to contact with the tion fact, to commit a crime after the there cases, Government. In many however, are several recognized factors as relevant in there is little direct evidence of the defend- making this determination. We start with ant’s state of mind prior to interaction with is, observation that predisposition agents Government and we must instead definition, “the defendant’s state of mind rely upon proof indirect through available and inclinations before his initial exposure examination of the defendant’s conduct af- government agents.” United States v. ter agents. contact with the Should the Jannotti, F.Supp. 1182, (E.D.Pa. initially reject 1980), grounds, rev’d on other 673 F.2d 578 he commit (3rd a crime this is Cir.), indicative of a lack predisposition. Conversely, should (1982) (emphasis he initiate contact with agents in order added). This answers defendant’s bizarre to commit a strong crime this is proof of contention that “the agents literally en predisposition. The amount of inducement trapped him into a state of predisposition.” Government, however, offered has One is either predisposed to commit a crime logical no such correlation with defendant’s before coming into contact with the predisposition as the Government may offer not, Government or one is so the as much any potential as it wishes to de- that one could be entrapped having into a fendant. The amount gains of inducement state of meaningless. is We its relevance through the defendant’s reac- now turn our attention to the factors rele tion to the lure. If the amount offered is vant in determining predisposition. “a substantial inducement to a first of- Among these are the character or reputa- fense,” Jannotti, United States v. supra, at tion of the any including prior 1200, this may negate the inference normal- record; criminal whether the suggestion ly drawn from a ready acquies- of the criminal activity was initially made cence to a that he commit a Government; by the whether the defend- crime person as even a with no criminal ant was engaged in the activity criminal predisposition may abandon his moral stan- for profit; whether the defendant evi- dards when the reward is A substantial. denced offense, reluctance to commit the inducement, large however, proof is not in only by overcome repeated Government and of itself that predis- defendant was not persuasion; inducement or and the na- posed to commit the offense. In a case ture of the persuasion inducement or sup- such as that today, before us in which de- plied by the Government. While none of fendant agreed to commit the crime before the factors alone indicates either knowing reward, the amount of the this presence or absence predisposition, of factor is of minimal importance in evaluat- important most factor ... is whether the ing a claim entrapment. defendant evidenced reluctance engage to in criminal activity which was overcome light Viewed in the most favorable by repeated Government inducement. Government the in this evidence case Reynoso-Ulloa, States v. adequate was more than defend prove (9th Cir.1977), cert. 436 ant’s predisposition. Defendant initiated L.Ed.2d 769 contact with Kramer and offered his serv (1978); see Townsend, also United States v. Although ices as a arsonist. he (7th Cir.1977), n. 3 later claimed to have fabricated the crime, seeking In to detect and stop “pester- punish

about Texas to Kramer from ing” jury required agencies frequently Mm the to be- law enforcement are Furthermore, required might lieve this de- to resort tactics explanation. pres- Walker had not offensive in other contexts. highly fendant admitted that be many oppor- Granting person sured him and had offered him is offense, participation tunities in we think that it to withdraw commit jury investigative the crime. The was also free to be- said that officers safely be go long way lieve that in a in concert experienced agents may defendant burning buildings despite question his claim to the in without the individual it is uncontested that he had have so outra- contrary, being deemed to acted evoke knowledge process extensive of the various means as to violate due geously setting super- fires. Defendant to burn the courts of their exercise deny the tavern before he knew how much he as to to the officers visory powers so $1,000 paid, any be and at rate the their misconduct. the fruits of offered Walker was not exorbitant. Quinn, States never important, expressed Most defendant case, (8th Cir.1976). nothing which is This any committing reluctance at the crime and typical example more a undercover than expressed in fact considerable enthusiasm work, cry is a far from the outra- police short, defendant was not job. about envisioned geous governmental misconduct committing some naive innocent forced into few cases Hampton. in Russell and Those a crime the Government. recognized in which federal courts have n defense have involved misconduct far re- turning process Before to defendant’s due us today. moved from the facts before See point claim we wish to out that even if (3rd Twigg, 588 F.2d 373 fabricating defendant had been his creden- Cir.1978) (Government informer contacted a fire tials as an arsonist and had never set narcotics; manufacturing defendant about negate finding life this would not his chemicals, supplied glassware, Government predisposition. Predisposition question is manufacturing; in- intent, extent and farmhouse used experience, not and to the the manufactur- former did lion’s share of engaged puffery to sell his involvement was min- ing while defendant’s finding wares this only serves bolster Archer, imal); v. coming into United States that he was before (2nd Cir.1973) (federal agents deceived contact with Kramer and Walker. by staging sham crime grand jury court and prosecu- in state corruption to investigate Ill Due Process. States, 454 office); v. United tor’s Greene gov Cir.1971) (Government agent (9th F.2d 783 case ernmental misconduct exhibited used with defendants and initiated contact of flagrant was so as to mandate reversal of time period over extended veiled threats has not Supreme his conviction. The Court illegal whis- produce them to to convince principle to the yet given any content only and was cus- ingredients key; supplied prosecu bar governmental defendants). tomer of any deprivation other tion even absent every had reason In this case Walker rights. constitutional How was a ever, that defendant post-Hampton examination of the to believe properly employment appeals seeking the courts of indi arsonist cases decided action before defendant leeway to take process grants cates that due wide decided The use of fide customer. in their inves found a bona agencies to law enforcement a reasonable the offer of that no inde informants and tigation Assuming of crime. investigat means of proper are right has been vio inducement pendent constitutional Hodge, lated, must be crime. See United States governmental misconduct Cir.1979); (7th United States process will F.2d 1163 outrageous before due truly Cir.1977), (10th Swets, the defendant. prevent conviction of 54 sense assessment of whether it is likely that (1978); United States v. Es the defendant would have committed the quer-Gamez, (9th Cir. crime anyway the blandishments —without 1977). police general, Undercover work in the police used on him —but at a time and and the such use of men as Kramer place where it have been more diffi- specific, business, is an unattractive cult for them to him apprehend and the is the nature the beast and we see him, state police to convict or whether the nothing the manner improper in in which powerful used threats or so promises this investigation was carried out. Defend law-abiding individual was induced to com- ant’s judgment of conviction is Affirmed. case, mit a latter is crime. If the police merely tactics do not affect the tim- POSNER, Judge, concurring. crime; ing they location of cause join I Judge opinion Pell’s for the court crime. reservations, without any sepa- and write rately merely to float giv-

ing practical content to elusive concept,

which is to the entrapment fundamental

doctrine, of commit a

crime. If the someone police entice to commit a PRODUCTS, INC., Petitioner, SIOUX crime who have would not done so without blandishments, their and then arrest him convicted, and he is prosecuted, and pun- NATIONAL LABOR RELATIONS ished, law squan- enforcement resources are BOARD, Respondent. dered in the sense: following resources that No. 81-2728. could and should have been used in an effort to reduce the unacceptably nation’s Appeals, States Court high crime used rate are instead in the Circuit. Seventh entirely activity inciting sterile first Argued Dec. then However, punishing a crime. if the police just inducing are someone to commit 24, 1983. Decided March sooner a crime he would have committed eventually, but to so in do controlled cir-

cumstances where the costs to the criminal

justice system apprehension and convic- minimized,

tion are police are economiz-

ing on particularly resources. It is difficult arsonists, catch if all police so

doing here it easier making to catch an

arsonist —not someone to inducing become they using law enforce- arsonist —

ment resources and there properly is no judicial

occasion for intervention. And I

am persuaded that is the situation

this case.

Thus in my “entrapment” view is merely

the name we give particularly unpro- resources,

ductive use of law enforcement

which our system properly condemns. If

this is right, the implementing concept of

“predisposition psy- to crime” calls less for

chological than conjecture for a common-

Case Details

Case Name: United States v. Raymond E. Kaminski

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 21, 1983

Citation: 703 F.2d 1004

Docket Number: 82-1413

Court Abbreviation: 7th Cir.