United States v. William M. Ordner, Jr., 554 F.2d 24

United States v. William M. Ordner, Jr.

554 F.2d 24

2d Cir.

1977

Check Treatment

*2 MOORE, TIMBERS, Before OAKES and Judges. Circuit MOORE, Judge: Circuit Appellant William M. Ordner, Jr., is a commercial licensed blaster and firearms 2, 1976, March On manufacturer. he was charged in a six-count indictment with vari- violations of the Gun ous Control Act of At his trial before 1968.1 Honorable Robert Ward, States Judge J. District District York Southern New and a jury, presented defense based on entrapment and duress. convicted through him on One Counts Three and ac- him on Counts quitted Five and Six.2 The counts of the indictment on which Ordner are, “ONE”, was convicted substance un- possession “wilfully lawful knowingly” and firearm, namely, a aof .25 caliber “Pen number; bearing required Gun” not serial “TWO” unlawful transfer of said “Pen Gun”; “THREE” possession and unlawful (26 “Pen 502 .25 caliber Guns” U.S.C. 5842, 5845(a), (e) 5861(e) (i) and (j), and §§ 5871). Judge and Ward sentenced ten-year terms on each of the three counts, concurrently, the sentences run subject 90-day study to modification after a pursuant to be conducted to 18 U.S.C. 4205(c) (d). and § alia, appeals grounds, on the inter entrap- facts make out a case of charged charged illegally One and Three 1. Counts that Ordner transferred these possessed pen gun illegally one unserialed grenades, in violation 26 U.S.C. §§ pen guns, respectively, in viola- unserialed 5812, 5845, 5871. 5861 and 5842, 5845, 5861 26 U.S.C. and 5871. §§ tion of charged that and Four Ordner ille- Two Counts Judge 2. Ward dismissed Count Four at pen gun gally unserialed transferred one Although close of case. the Government’s respectively, guns, unserialed in viola- appellant’s denied motion to dismiss Count 5812, 5845, U.S.C. §§ tion of 26 Three, that he would he stated “hereafter treat charged illegally Five Count 5871. aiding charging abetting in the un- [it] grenades, possessed three hand violation pen guns. possessiоn” of the lawful and 5871. Six Count §§ 26 U.S.C. law, Ordner and that was Romano as a matter entered the house ment were Stagg, and abet” the non-criminal met Kelly, “aid illegal to another Agent, who were respec- firearms Government introduced possession S”, tively Keen”, as “Mr. “Joe verdict was incon- and “Mr. and that S’s agents, bookkeeper”. When find oth- Ordner asked appellant’s We these about sistent. work, blasting rеsponded “Mr. S” to be without merit and hence arguments er *3 a did not need blaster. The he facts are in his conviction. we affirm point. dispute Agent Kelly at this testified that “Mr. S” told Ordner that the “family” FACTS looking for weapons was to sell and gun a John Romano at show met Ordner replied that he had dealt in weapons Ordner August, in 1975. Ordner in Connecticut would have to his but re-establish contacts. Romano for some time аnd not seen had testified Ordner that “Mr. de- merely S” was a him that he now commer- informed good his intention to clared “make busi- told he blaster. Romano Ordner that cial with him. ness” might who have of a contractor blast- knew thereafter, Shortly Romano died of liv- a ing work for him. September 23, 1975, ailment. On er Ordner Ordner, to Romano Unbeknownst was Kelly, Stagg, met and Adams after the time this a Government informer. He had wake, wаs and offered place Romano’s in by Agent Special Joseph arrested Kel- been “family”. and Kelly the Ordner both testi- Alcohol, of the Bureau of Tobacco and ly meetings to fied several which place took gun charges violation and Firearms had month, the next but over their versions agreed provide to the Bureau with informa- Kelly Briefly, differed. testified Ord- hope this might in the ameliorate tion supply ner said he could the “family” awith might subsequently sentence he re- any large pen guns, of number that he supplied Kelly told Romano about his meet- ceive. blueprint with a and sample,3 them a Ordner, Kelly with and Ro- ing then asked showed them how to operate he the guns, bring to to Ordner the home of An- mano helped he locate a supplier of of one A. thony Stagnito, Stagg. a/k/a Michael component parts, supplied that he Stagg paid in was a informant who resided himself, part helped other and that he as- Armonk, expensive home in New York. pen an guns compo- semble from the two parts.4 nent Kelly testified further Ordner ar- Romano contacted and made offered on Ordner more than one occasion rangements for to him meet the “contrac- supply “family” to types with other of Romano had mentioned at tor" whom their guns; the Government tape introduced a meeting. August 1975, Ro- earlier On recording of one such conversation between Ordner from mano drove Connecticut to Kelly.5 Ordner stopped He at a phone York. car New phone a A and made call. Cadillac booth Ordner’s version of meetings these was “Billy” (aсtually initially a named Police with driver that he refused to supply the guns Adams) quantity Officer William arrived and but pressed, when volunteered car, proceeded in that a possible men circuitous names suppliers. He never route, Stagg’s to home. to supply “offered” types guns, other Three, amended, sample pen gun gun charged 4. Count 3. This charged possessing transferring abetting possession aiding with with Two, respectively, pen Four, guns; In- Counts One these 502 Count which shape gun transferring charged is in guns, dictment. A somewhat with these large pen. to fountain It can as- similar a be was dismissed. by taking apparently propulsion sembled gun” gun frequently mechanism of a “flare Appellant’s objection 5. to the admission this —a signal purposes. for distress tape recording used mariners into evidence is without merit. theretо, By adding a machined barrel the flare tape clearly relevant to the issue of single weapon. be converted into a shot appellant’s predisposition. can would gave supplied any infor- be to pressed, sentencing Judge when again, although other types of at the time of sentencing particular demonstrated for his on and mation that he was testified crime”. The Bureau made him a guns. “confiden- indirect, ways. as well as direct Obviously, promote tial informant”. to “pressed” in his interests, family about his Romano produce (or him had to questioned own “Mr. S” someone, go authori- he “get”) apparently him not selected cautioned to the Ordner. The death added aura his friend Government added ties. Romano’s Anthony surrounding “family”. Stagnito (Stagg), Ordner’s to its cast fear large (7 hаd who “paid unknown men informant” had bed- told daughter rooms, $200,000-$300,000 value) their car. Two of estimated her into get tried (Westchester Armonk County), to conversations house in testified friends Ordner’s York; Police period, New Officer during William with Ordner Adams they had Castle; the Town North and in which he of expressed his fear he Agent Kenneth Waxman he thought ap- had been Bureau said that *4 who Agents upon entered the stage оther Finally, Ordner tes- by the mob. proached later date. a September he tried on that tified Attorney but was the United States to call Kelly, carry to out his part, assumed the not and did leave a get through to unable Keen”, name of “Joe Police Officer Adams message. “Billy”, Agent pretended became Waxman Stagg’s bookkeeper, point to be even to the ENTRAPMENT, COERCION carrying ledger an account a stage as AND DURESS Stagg prop, appeared and himself in the by picture motion style not for statements Govern- of the chieftain “Mr. Were witness, chief Special its counsel best counsel S”. As Government describes ment Alcohol, Bureau of in his Joseph Kelly, F. the situation summation: Agent Firearms, case be might ruse, will, Tobacco you “the if that was set up, category. verdict jury the usual placed in grand off in style. was carried There is quite However, extraordinary bi- the that. denying no And when Mr. Ordner has background caused the arrived, factual agents zarre the Government’s were the court to examine record with reviewing role to playing the the hilt to convince properly microscopic ap- care in order to that they could be him trusted [Ordner] entrapment entеrprise, defense of as a mat- praise they the in a criminal were thing [namely, law. the real members of ter of a ‘family’ or ‘mob’].” any does not disclose reason record The conversation, part, The was “about the suspi- was under believing Ordner for Mr. possibility might supply lawbreaker, potential. actual or aas cion Stagg’s organization explosives with Mr. any he proof that was undеr is there Nor (App. 608). firearms”. any for any purpose. kind or surveillance to have been a contrary, he the was even To The “ruse” carried further. and children con- died, with a wife family suddenly Stagg man When Romano re- professional his trade as a blaster. that it ducting “dy- vealed to Ordner was Romano’s ing which the Government writes that Ordner succeed him as scenario wish” a The by “family” attendancе its Stagg indicative of the wish that member of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is rather —a kissing picture motion on recently popular emphasized at a both Agents underworld, to take every of the checks. And care of detail of the activities portraying the pseudo-butler even deception, their chieftain. serv- headed ing was a group Agent, was Romano, John stage first enters Onto Agent upstairs. stationed another [Kelly] gun arrested for vio- “an individual thespian Kelly-direct- had he talents charges” and who “indicated The of this lation were try help eminently to us ed task force successful. to wanted [the Government] help could to us it was “a kind act” and “the any he render To them of an so that was to convince Mr. sisted assembly in the act of the five hundred purpose big Stagg a man in Mr. was pen guns, ten of he personally fired. 197), the “ob- (App. crime” organized was not limited to Kelly’s testi- supply Mr. to get jective” “[t]o mony drawing the above conclusions. It some kind of firearm” with [Stagg] tape listened a on to which Ordner unhesi- himself, said he 198). Kelly, (App. tatingly in ironing assisted out plans could be reaction that Ordner’s thought obtaining guns and then negotiated believe we might to “indicate taken purchase flare compоnents from . . organized crime part were goods. supplier boating a 199). (App. Ordner, tape, heard mislead supplier law entrapment as matter of But thinking into was purchasing of. easily disposed so his boat flares store. The jury to Romano, heard Ordner recommend assuming Kelly that he Even purchase supplier’s good graces, entire the Government’s had stock of stay in flares: reported and that he “victim” to find possibility that he had found a Agents “If he doesn’t have anything to offer ensnare, entrapment is a term for them then anymore, nobody go can to him and a matter law is art and as legal ‘Well, ah, geez, got, say you do you where established, if, enticement, despite the pen guns?’ get your say, ‘Oh, Johnny ready defendant shows himself potential bought Jones them from all me.’ Out-of- willing to the сrime. commit sight, (Gov’t. 6, p. 64) out-of-mind.” Ex. *5 880, Sherman, 200 v. F.2d 882-883 States Kelly’s To allay at purchasing hesitation Licursi, 1952); (2d States v. 525 Cir. United more the five than hundred flares needed 1164, 1975); (2d 1168 Cir. United F.2d guns, for the Ordner added: 295, Viviano, (2d 437 v. F.2d 298 States “They fire, a a make hell of you know. 983, denied, 402 91 Cir.), cert U.S. S.Ct. at They degrees.” 2500 (Gov’t. burn Ex. 1659, (1971); 29 L.Ed.2d 149 United States 6, p. 64) Weiser, 932, (2d 1969), 428 F.2d 934 Cir. v. denied, 949, 1606, 402 cert. U.S. 91 S.Ct. 29 was jury The clearly entitled to Ord- find (1971); Riley, 119 United v.

L.Ed.2d States a “ready response ner’s actions in- the Therefore, (2d 1966). 955 Cir. 363 F.2d ducement”, and hence proof of predispo- his or whether not the Government’s initiation Viviano, sition. United See States v. 437 crime was established as a matter of of the F.2d at 299. The jury’s rejection of the of law, are left with the issue Ordner’s we entrapment defense cannot be overturned testimony The Ordner predisposition. In a appeal. on recent Seventh Circuit Kelly on conflicted this crucial issue case, the Court stated: jury Kelly’s was entitled to believe and the “Entrapment is established as a matter of the facts. version only when of law predispo absence of testified Kelly told sition from uncontradicted evi in engaged he had been similar activities in dence. the case bar In the evidence past, and that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍offered without bearing predisposition issuе'of was conflict, pen guns him with supply hesitation that issue was therefore jury The could properly other firearms. conclude submitted to the jury. evi The willing indispensable that Ordner was a dence from which the could properly every step “pen opera- of the party gun” predisposition have found de included brought blueprint ready and the response tion. Ordner fendant’s to the solicitа prototype. suggested He original tion . . . The defense of entrap component from to obtain properly sources which ment jury, was submitted to the pen guns justified and conducted most was parts and the in rejecting the as to negotiations purchase United Spain, defense.” v. 536 States 170, (7th Cir.), then and as- parts. denied, these directed F.2d 173-74 cert.

29 96, 97 833, 50 L.Ed.2d principal 97 S.Ct. ishes as a one who aids or 429 U.S. аbets (1976). By the commission of an offense.6 very its terms, that subsection requires the commis- are con- transfer Illegal possession and offense, sion an is generally “[i]t only remaining questions ceded. recognized there can be no conviction wilfully and know- acted whether aiding and abetting someone to do an subject- or entrapped, coerced was ingly or act.” Birming- Shuttlesworth v. innocent jury. The court’s were for the to duress ed ham, 262, 1130, 1132, subjects exceedingly was these charge on L.Ed.2d 335 (1963). 10 parties. to both The ele- and fair explicit side of the “line on each [which] ments equally It is recognized well that the entrapment between be drawn must guilt intermediary or innocence of the un trap and the for the innocent unwary irrelevant. United 2(b) charge is der a § 667) (App. could have unwary criminаl” Rapoport, v. States (2d 545 F.2d 806 The same clar- clearly set forth. more been Kelner, United States v. 1976); Cir. charge as to the in the court’s found ity is United 1976); 1022-23 F.2d Cir. “wilfully” “knowingly”. meaning of Kelley, (2d Cir.), States adequate there was verdict —and jury’s denied, cert U.S. S.Ct. they support it —shows evidence In States L.Ed.2d 376 doing knew what he was found Kelner, supra, we held the defendant liable rejected his coercion and du- they principal causing transmission factors, predispo- Absent these claims. ress interstate commerce of threatening as to which there was more remains sition conference, press in his television words probative testimony. sufficient than though the intermediary even television station, actually transmitted ABETTING AND POSSESSION AIDING communication, arguably protected AGENTS BY GOVERNMENT Amendment, the First and hence innocent that his convictiоn on argument Ordner’s We any offense. stated is clear “[i]t on the Three should be overturned Count person enough may responsi be held illegal to aid and abet that it ground 2(b) under principal as a 18 U.S.C. ble § *6 possession of firearms the non-criminal causing another to do an act similarly unavailing. agents is Government would not have been criminal if it which illegal that since it contends performed indeрendently by been that had agent possess to an un- for Government 534 F.2d person.” at 1022. Thus in other collecting while firearm obtained serialed case, responsible Ordner is the instant as a accused, it cannot be against an evidence causing possession principal of un- pos- the accused to “cause” illegal for firearms agents, serialed Government directly in the This contеntion flies session. regardless of the fact that the Government 2(b), provides: which of 18 U.S.C. § face were agents themselves immune from crim- wilfully an act to be causes “Whoever responsibility. inal directly performed by if which done would be an offense against or another THE CONSISTENCY OF VERDICT States, punishable prin- is as United added). (Emphasis

cipal.” argument jury Ordner’s One, guilty to have this on Counts Two confused verdict — 2(a), pun- guilty with 18 and nоt Five U.S.C. Three Counts § subsection 2(a) provides: may guilty “You § 6. 18 U.S.C. find Mr. Ordner of count 3 you pen guns against if find that in fact these were offense commits an “Whoever counsels, aids, abets, numbers, proper ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍possessed com- without serial United States or commission, mands, procures caused, induced, or its induces Mr. aided and that principal.” punishable as a is persons pos- who had actual or abеtted the incorporated Judge both subsections of Ward pen guns at time.” session charge: U.S.C. 2 in his § 18 30 wholly is legally inconsistent I mine. know injuries

Six —was he sustained long It has been the rule merit. without stage life, an earlier in his unfortu- not verdicts need be consistent. losing one nately eye. hand and one Be- States, 101, v. Hamling United cause the Court is at this point not as Dunn (1974); 41 L.Ed.2d 190 94 S.Ct. informed what makes this defendant States, U.S. be, I like would to I work as have decided Zane, United States (1932); L.Ed. give on a sentence which will me further denied, cert. Cir.), the defendant so regarding information 42 L.Ed.2d 139 895, 95 S.Ct. U.S. ultimately impose that I can a sentence event, the verdict as to Mr. Ordner any In appropriate which is in this case.” (Tran- appear unreasonable. not does 752-53.) script (Emphasis added.) responded could have found He concluded that, with the pur- comment gun” plan readily “pen but showed 4205(c): suant to 18 U.S.C. § when it to the more hesitation came far “Basically, what I have done is I have Moreover, entrapment grenades. hand sentenced defendant the maximum only issue before the was not defense provided by law a provision with for a raised the also defense jury. Ordner study contemplation of his return be- duress, one bases for his clаim fore me after three months or an extend- attempted abduction of his duress provided as period by law, ed so I daughter, place which took after events ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍may him, then resentence if is deemed One, Three, alleged in Counts Two and but appropriate, consistent the study with alleged in Five those Counts before Six. report and the which I received. I want Thus, argument is inconsistency Ordner’s very сlear. That is what I am do- factually legally insufficient and both ing.” 758.) (Transcript at set the verdict on this Court will not aside chapter Thus the final of this Govern- ground. this mentally-staged yet scenario has not been upon written. record which the CONCLUSION verdict is based reveals that Ordner had a fair and generally any Although consideration error-free trial. The resulting verdict must scope sentence is within the affirmed. be (nоr it here), review appellate almost fifty of the record are pages devoted to the judge’s question. consideration of the

trial OAKES, Judge Circuit (concurring): practical purposes yet all there For has Judge I concur discerning Moore’s sentence. The highly no final com- been While opinion. Ordner met his burden given care and consideration mendable inducement, proving the evidence was suffi problem by Judge difficult evidenced *7 cient to meet the Government’s burden of during proceeding: remarks Ward’s proving predisposition beyond a reasonable previous Ordner has no “Mr. criminal United Rosner, doubt. See States v. 485 record and the Court takes this into 1213, (2d cert. de F.2d 1221-22 1973), Cir. However, charges here account. are nied, 950, 3080, 417 U.S. 41 L.Ed.2d defendant, right up serious and the until Weiser, United States v. (1974); 672 428 indicated a total today, has lack contri- 932, denied, (2d cert. 1969), F.2d 934-35 Cir. tion, stating to the earlier that he Court 1606, 91 29 S.Ct. L.Ed.2d 119 guilty; although considers him- Riley, United States v. 363 F.2d victim, self a he has so advised the Court. (2d 1966); United States v. 957-58 Cir.

Sherman, (2d 200 F.2d 882-83 Cir. Hand, puzzled 1952) (L. J.). “The Court is regarding the said, As I have “there years He has two no college, magic evaluating defendant. is formula” for “pre Ortiz, has a disposition.” United States v. family married and stable rela- 496 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tiоnship as far as the Court can 1974) deter- (dissenting F.2d Cir. opin- involved pretense elaborate But ion). conception clever case, however also United see operation, successful 472, 475-476 Michaelson, States borderline 1977), unquestionably (2d Cir. government part of

conduct the sole crime for “create duty has it,” Butts punishing . . purpose (8th Cir. States, 273 F. v. United States, v. United in Sorrells 1921), quoted L.Ed. 413 435, 444, 53 S.Ct. U.S. J.).C.

(1932) (Hughes, America, Appellee, STATES

UNITED MORGAN, Jr.,

Dudley D.

Defendant-Appellant. 801, Docket 76-1497.

No. Appeals, Court States Circuit.

Second 25, 1977. Feb.

Argued 18, 1977. April

Decided Tulsa, (Sneed, Lang, Lang, Okl.

James C. *8 Okl., Adams, Tulsa, counsel), & Trotter defendant-appellant. Goldston, Atty., U. M. S. Alan Justice, City (Robert B. New York Dept, Y., Fiske, Jr., Atty., Audrey D. N. U. S. S. Strauss, Atty., City, New York Asst. U. S. counsel), appellee.