United States v. James B. Borum , 584 F.2d 424 ( 1978 )

Opinion for the Court filed by LEVEN-THAL, Circuit Judge.

Dissenting opinion filed by MacKINNON, Circuit Judge.

LEVENTHAL, Circuit Judge:

Appellant, 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.¹

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.

I. TRIAL COURT RECORD

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 firearm. 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, the inference being that he needed the money for his drug habit. He thought that by bringing the gun, he might find the fence operators more receptive to purchasing other items as well. P.F.F., Inc., did in fact buy other items from appellant that day.

After hearing this testimony, the trial court announced that it would not give the jury an instruction on entrapment. 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, 177 U.S.App.D.C. 265, 267, 543 F.2d 412, 414 (1976) (quoting United States v. Anglada, 524 F.2d 296, 298 (2d Cir. 1975)).

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 appellant 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, 200 F.2d 880, 882-83 (2d Cir. 1952), puts these two elements as follows: (1) “did the agent induce the accused to commit the offence,” and, if so, (2) “was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it.”

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, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). In Sorrells Chief Justice Hughes stated that “the defense of entrapment is not simply that the particular act was committed at the instance of government officials. . . . The predisposition and criminal design of the defendant are relevant.” Id. at 451, 53 S.Ct. at 216. The vitality of the Sorrells ruling was confirmed in Sherman v. United States, 356 U.S. 369, 372-73, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), and United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), which stated that the principal element in the defense of entrapment is the defendant’s predisposition to commit the crime. While predisposition is the key issue, it does not totally subsume the question of inducement, for separate consideration of the inducement issue illuminates one critical, additional element of the entrapment defense: instigation of the criminal act by government agents.²

There is sufficient evidence in the record for a jury to find both “inducement” by government agents and lack of predisposition on the part of appellant Borum.

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.” 287 U.S. at 441, 53 S.Ct. 210.

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.” 411 U.S. at 428, 93 S.Ct. at 1641. Sherman is described as a case where “despite initial reluctance, the defendant finally acceded to the repeated importunings of the agent to commit the criminal act.” Id. at 429, 93 S.Ct. at 1641.

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.³

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.’ ”⁴ If this were a case of mere solicitation, the government’s contention would have some force. Recent cases establish that if all that is shown is that an enforcement official made an offer, usually to buy, and the defendant acquiesced with reasonable readiness, the defense of entrapment is not made out.⁵

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 predisposition. E. g., Sagansky v. United States, 358 F.2d 195, 202 (1st Cir.), cert. denied, 385 U.S. 816, 87 S.Ct. 36, 17 L.Ed.2d 55 (1966). In Kadis v. United States, 373 F.2d 370, 373-74 (1st Cir. 1967), the same panel that decided Sagansky concluded that it was a mistake to treat inducement as a separate issue, and held that the defendant must go on to make an initial showing of his “unreadiness” to commit the crime before the burden is shifted to the government to show predisposition. This carried forward the intermediate ruling of Judge Friendly for the Second Circuit in United States v. Riley, 363 F.2d 955 (2d Cir. 1966), that there was no need for an entrapment charge if the evidence showed the accused was “ready and willing without persuasion.” Judge Friendly continued:

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, 177 U.S.App.D.C. 265, 268, 543 F.2d 412, 415 (1976), this Court accepted as the appropriate rule the Second Circuit’s pronouncement in Riley. We noted that the Riley formulation had been reiterated in United States v. Anglada, 524 F.2d 296 (2d Cir. 1975), with full awareness of the “ ‘reluctance of a trial judge to charge on entrapment “when he believes the defense is concocted” and the defendant is guilty.’ ”⁶

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.⁷ We found sufficient evidence negating propensity to require the entrapment charge.⁸

The government cites Fletcher v. United States, 111 U.S.App.D.C. 192, 295 F.2d 179 (1961), cert. denied, 368 U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530 (1962), as requiring evidence of pressure “by promises, threats, pleas of urgent need or otherwise” as a precondition to an entrapment instruction. 111 U.S.App.D.C. at 194, 295 F.2d at 181. But the key to the Fletcher opinion was that there “was no showing of the slightest reluctance on the part of the appellant to make the deal,” no evidence that the police “had induced an otherwise unwilling person to commit a criminal act.” Id.

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.⁹

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 possession of merchandise, “so that no distinction should be drawn with respect to propensity.”¹⁰ But the entrapment decisions speak in terms of a “defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the Government.” United States v. Russell, 411 U.S. at 435, 93 S.Ct. at 1644. In the instant case, appellant’s contention is not “hypertechnical”, as the government puts it.¹¹ He was aware of the extra penalties imposed on convicted felons for receipt of firearms, and he voiced this particular concern to the undercover agents. The pertinent statute makes it unlawful for a person “who has been convicted in any court of . a crime punishable by imprisonment for a term exceeding one year . . . to receive any firearm . . . transported in interstate or foreign commerce.” 18 U.S.C. § 922(h) (1976). In this context, the government cannot fairly say that a gun was just like any other item.¹²

The case is reversed and remanded to give the defendant an opportunity to present the entrapment defense to a jury.

So ordered.

1 . In Criminal 76-176 the appellant pleaded guilty to receiving stolen property and selling stolen government property.

2 . 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, 425 U.S. 484, 491-95, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (Justices Powell and Blackmun concurring); id. at 495-500, 96 S.Ct. 1646 (Justices Brennan, Stewart and Marshall dissenting). Justice Rehnquist, joined by the Chief Justice and Justice White, was of the view that in cases of predisposition, even due process claims could not be raised on the ground of outrageous police conduct. Justice Stevens did not participate. See also United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

3 . 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.

4 . Brief for Appellee at 11, quoting United States v. DeVore, 423 F.2d 1069, 1072 (4th Cir. 1970) , cert. denied, 402 U.S. 950, 91 S.Ct. 1604, 29 L.Ed.2d 119 (1971).

The case at bar is clearly different from United States v. Virciglio, 441 F.2d 1295 (5th Cir. 1971) , which followed DeVore. Virciglio claimed he was entrapped as a matter of law, whereas we hold only that Borum was entitled to go to the jury. More importantly, on the very first meeting when the agent asked Vircig-lio if he had a machine gun for sale, Virciglio replied that he did not but that he would try to get one. 441 F.2d at 1297. Borum’s is a case of repeated solicitation of the sale of a pistol.

5 . E. g., United States v. Townsend, 555 F.2d 152, 157 (7th Cir.), cert. denied, 434 U.S. 897, 98 S.Ct. 277, 54 L.Ed.2d 184 (1977); United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir. 1977); United States v. Reed, 526 F.2d 740, 743 (2d Cir. 1975), cert. denied, 424 U.S. 956, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976); United States v. Dickens, 524 F.2d 441, 444 (5th Cir. 1975), cert. denied, 425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976).

6 . 543 F.2d at 414, quoting United States v. Anglada, 524 F.2d 296, 298 (2d Cir. 1975).

7 . 543 F.2d at 413.

8 . 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.

9 . This case is therefore distinguishable from United States v. Brooks, 185 U.S.App.D.C. 267, 271, 567 F.2d 134, 138, 142 (1977). In that case the government agents made persistent requests to defendant to bring people with guns, but this was not in the face of expressed reluctance on the part of defendant to comply with such requests. Borum’s reluctance was communicated to the agents at the time of their requests (as the government agents acknowledged in the testimony in the present record), and the government agents sought to override that reluctance by redoubling their requests. Our opinion in the present case is not meant to stand for the proposition that frequent solicitation by government agents is by itself enough to require an entrapment instruction.

10 . Brief for Appellee at 11 n.7.

11 . Id.

12 . 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.