United States v. Jonathan Townsend , 555 F.2d 152 ( 1977 )

CUMMINGS, Circuit Judge.

After a jury trial, defendant was convicted on four counts of a six-count indictment¹ charging firearm offenses occurring on January 24 and January 30, 1974, in violation of 26 U.S.C. §§ 5861(c), 5861(d), 5821(a) and 5871. The firearms involved were two sawed-off shotguns, and he received five-year concurrent imprisonment sentences on the first and third counts. On the remaining counts he was sentenced to five years’ probation to be served consecutively to the completion of the sentence on Counts I and III.

On appeal, defendant contends that the Government did not prove him guilty beyond a reasonable doubt because it failed to rebut his entrapment testimony and that the evidence showed entrapment as a matter of law. He also contends that the trial court erroneously permitted the Government to impeach him with prior convictions which were over ten years old. We reject these contentions and therefore affirm.

Special Agent James Warren of the Illinois Bureau of Investigation was the Government’s first witness. On January 24, 1974, he was visiting informer Ulysses “Ted” Core in his apartment at 533 Collins-ville Avenue in East St. Louis, Illinois. During Warren’s visit to Core’s apartment, defendant Townsend, who had the adjoining apartment, was admitted. When a discussion occurred about a sawed-off shotgun, defendant stated that he had a particular shotgun ready for sale because he had worked on it the previous night. Defendant told Warren he would obtain the gun and left with Core to do so. When they returned, Core set a blue and red tote bag containing the gun on the floor. Defendant took the gun from the bag and gave it to Warren, requesting $80 for it. Thereupon Warren gave the money to Core, who passed it to defendant, who then pocketed it. Warren said that Government Exhibit 1 was the shotgun he purchased from defendant and that it had a barrel length of less than 18 inches.

Warren was also present in Core’s apartment on January 30, 1974. Defendant arrived and asked Warren if he was interested in purchasing another shotgun for $90, this one being a double-barreled shotgun. Warren asked defendant if he might look at the gun. When defendant returned with the gun, he asked Warren and Core to come on the back porch to avoid Core’s other visitors. Defendant had a corrugated box at his feet on the back porch and took the gun therefrom at Warren’s request and gave it to Warren for $90, which defendant requested Warren to hand to Core, who in turn handed it to defendant, who then pocketed it. Warren said that Government Exhibit 2 was the shotgun he purchased from defendant on January 30 and that the double barrel lengths were 11 inches.

On cross-examination, Warren testified that he had been at the Collinsville Avenue apartment building twenty or thirty times before the January 24 transaction. Core worked for the Illinois Bureau of Investigation as an informer and was paid on a case-by-case basis. Warren thought that the Bureau was withholding prosecutions of Core although he did not know what the charges against Core were. Warren admitted that when he went to the Collinsville Avenue address on January 24 he was wired for sound and intended to purchase a shotgun from defendant. Similarly, on January 30, he was wired for sound and went to the same building to buy another shotgun from defendant. Warren conceded that he gave the cash to Core who thereupon handed it to Townsend because the defendant would not take the cash at first.

Special Agent Robert Biby of the Illinois Bureau of Investigation surveyed the Core and Townsend apartments on January 24 and 30 and corroborated much of Warren’s testimony about the firearms. He thought that Core, who was unemployed, had been paid $100 cash for his work as an informer in each of these transactions. He added that the Illinois Bureau of Investigation had no pending charges against Core but that other police organizations did and that the Bureau would speak up for him because of his cooperation.

Special Agent William J. Lukowski of the Bureau of Alcohol, Tobacco, and Firearms testified that on May 15, 1974, he fired Government Exhibits 1 and 2. They were in operating condition, and neither had been registered with the National Firearms Registration and Transfer Record.² When he arrested defendant in November 1974, he interviewed Warren but the Illinois Bureau of Investigation did not permit him to interview Core.

Defendant then testified on his own behalf and stated that he had known Core for eleven years but did not know that he was an informant for the Illinois Bureau of Investigation, although he had heard so and had confronted Core with the rumor which Core specifically denied. He said that Core brought him a firearm toward the end of January 1974 and asked him to keep it for Core, because he was having trouble with his “old lady,” until he could sell it. Townsend retained the weapon 2-4 days prior to Warren’s January 24 visit. On that date, Core told defendant to get “that piece” ready because the “dude” was coming to pick it up. Later that day, at Core’s request, defendant came to Core’s apartment and met Warren, whom defendant had seen at Core’s apartment twice before. They talked about the gun, and defendant and Core went to defendant’s apartment where Core told defendant to ask $80 for the gun and infer that it was defendant’s weapon. Core carried the weapon back to his apartment where defendant told Warren that he and Core had agreed on $80 for the weapon. After Warren gave the money to Core, he and Townsend went back to defendant’s apartment to split the money evenly, since Core owed defendant money.

On another occasion, defendant visited Warren at Core’s apartment and delivered a weapon that he had received a day or a day and a half before from Core. The weapon was in a cardboard box which defendant took outside and put on Core’s porch before knocking on Core’s door. Core came out to discuss the price to ask for the gun, and then Warren came out and paid Core for the gun, with Townsend receiving $25 or $30 later when .Core brought it to defendant’s apartment. Defendant admitted that he was an “ex-police character,” had been convicted of burglary in Missouri in 19t58 and in Illinois in 1959 and had been convicted in Illinois of armed robbery in 1962.

On cross-examination, defendant admitted that he had kept the first weapon sold to Warren for two or three days and knew that it was a sawed-off shotgun. He kept the second weapon for 23 or 24 hours. On being presented on direct with Government Exhibit 2 at trial, Townsend first said that “[i]t looks familiar” but then immediately recanted by saying that he had never seen it “before in his life.” On cross, the defendant reiterated that he had never seen Exhibit 2. He said that “piece” means gun in black ghetto language, and that the term was also used by persons familiar with firearms. He said he had been involved in firearms all his life and had been in service when he was 16. He added that he had been arrested with a firearm within five or ten years and had no qualms about having a gun because he was authorized to have one.

The defendant’s motion for acquittal at the close of all the evidence was denied and the issue of entrapment was submitted to the jury which returned a guilty verdict as to all four counts.

I

Defendant’s principal argument is that the Government did not prove him guilty beyond a reasonable doubt, for it assertedly failed to prove predisposition beyond a reasonable doubt to rebut his testimony of entrapment.³ Nothing in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, or Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113, would compel the Government to prove Townsend’s predisposition by the testimony of informer Core, as the dissent suggests. Here the evidence was such that, viewing it most favorably to the Government under Glasser,⁴ the jury could find predisposition on Townsend’s part. There was ample testimony by Illinois Bureau of Investigation Agent Warren to show lack of any reluctance on Townsend’s part. Thus he testified that defendant entered Core’s apartment on January 24 and said the sawed-off shotgun was ready because he had worked on it the night before. Defendant said a butt would make the gun too bulky to conceal. He told Warren he would get the gun, leaving with Core to fetch it. Subsequently Core returned with a tote bag, but Townsend took the gun from the tote bag and gave it to Warren, advising him to be careful because it was loaded. He requested $80 for it, saying the only problem with the gun was that it did not have a handle but he had planned to cut the stock down to pistol-grip size and pour lead into the handle to give it weight and balance. Townsend took the money that Warren handed Core and put it in his pocket. On January 30, Townsend asked Warren if he was interested in purchasing a double-barreled sawed-off shotgun for $90. Townsend obtained it from his apartment and gave it to Warren on Core’s back porch. Warren handed the money to Core, who gave it to Townsend who proceeded to pocket the cash. Defendant testified that he kept one of the illegal firearms two to three days and the other for 25-30 hours. He was familiar with firearm slang and had been involved with firearms all his life. He had been arrested with a firearm two times within five years and was an ex-police character who had been convicted of armed robbery and two burglaries.⁵ He knew the first weapon was a sawed-off shotgun but kept it anyway. These are hardly the actions of an “unwary innocent.” United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 36 L.Ed.2d 366.

Obviously the jury resolved the discrepancies in Warren’s and defendant’s uncorroborated testimony in favor of the Government. This was its prerogative since, as in Hampton, the evidence was sufficient to establish predisposition. As the prosecutor explained to the jury in his closing arguments as to predisposition (Tr. 105-106, 115).

1. Townsend was charged with possession of two firearms on two different occasions.

2. He had been involved in an armed robbery.

3. He was knowledgeable as to firearms.

4. He had been arrested a number of times with a firearm.

5. He had the first gun (a sawed-off shotgun) two or three days before selling it to Warren instead of getting rid of it.

6. Defendant could have called informant Core as a witness if he considered Warren’s testimony were false.⁶

7. He admittedly shared in the sale proceeds.

8. He did not deny having seen the first weapon “before in his life,” in contrast to the second weapon (also an illegal sawed-off shotgun).

The district judge carefully instructed the jury that it must find defendant not guilty if it had “a reasonable doubt whether the defendant had previous intent or purpose to commit an offense of the character charged * * The court also charged that if the jury should find beyond a reasonable doubt that the defendant was “ready, willing * * * to commit the crimes such as charged in the indictment, whenever the opportunity was afforded, and that government officers or their agents did no more than offer the opportunity,” then the jury should find that the defendant was not a victim of entrapment. The jurors were earlier told that if defendant had no previous intent or purpose to violate the law but was induced by law enforcement agents to do so, the doctrine of entrapment would forbid his conviction. The court added that if a person already has the readiness and willingness to break the law, the mere fact that the government agents provide what appears to be a favorable opportunity is not entrapment. (Tr. 126-127.) These replete instructions⁷ fully covered predisposition and would prevent any reasonable jury from convicting defendant in the absence of predisposition.

The dissent strives mightily to distinguish Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. In Masciale government agent Marshall was introduced to Masciale by government informer Kowel as being a “big narcotics buyer.” The question was whether entrapment as a matter of law was made out and, if not, whether the jury could be permitted to find as it did. “[EJntrapment could have occurred in only one of two ways. Either Marshall induced petitioner, or Kowel did.” 356 U.S. at 388, 78 S.Ct. at 828. Masciale conceded that Marshall had not induced him.

However, Masciale argued that he was entrapped by Kowel who waged a campaign to persuade Masciale to sell heroin:

“It is true that the defendant further testified that Kowel over a period of several months had urged him to engage in the narcotics traffic, pointing out the pecuniary rewards which might be expected both by the defendant and by Kowel; that for months he had rebuffed Kowel’s importunities; that in meeting Marshall and purporting to cooperate he was in fact merely ‘stringing him along’ in order to increase Kowel’s prestige in the eyes of Marshall.” 236 F.2d 601, 603 (2d Cir. 1956).

Petitioner’s testimony on this score was undisputed. But the Supreme Court, while finding that Masciale had made out a prima facie showing of entrapment, held that entrapment as a matter of law had not been made out and that the jury was free to disbelieve his testimony even in the absence of any rebutting evidence by the Government:

“Petitioner argues that this undisputed testimony explained why he was willing to deal with Marshall and so established entrapment as a matter of law. However, his testimony alone could not have this effect. While petitioner presented enough evidence for the jury to consider, they were entitled to disbelieve him in regard to Kowel and so find for the Government on the issue of guilt.” 356 U.S. at 388, 78 S.Ct. at 829.

Moreover, as in the instant case, the defendant did not attempt to call the informer as a witness, adverse or otherwise, in order to substantiate his story, nor did the Government. 356 U.S. at 388 n. 4, 78 S.Ct. 827.⁸

In two pre-Hampton reported cases where, as here, contraband was not supplied by the Government, the First and Tenth Circuits permitted the jury to disbelieve defendant’s uncontradicted testimony. United States v. Jett, 491 F.2d 1078 (1st Cir. 1974); United States v, Johnson, 495 F.2d 242 (10th Cir. 1974). See also United States v. Gurule, 522 F.2d 20 (10th Cir. 1975), certiorari denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800. Similarly, here, the jury was entitled then to disbelieve Townsend.

The dissenting opinion here does not rest on government misconduct, which was involved in both United States v. Bueno, 447 F.2d 903 (5th Cir. 1971), and United States v. West, 511 F.2d 1083 (3d Cir. 1975). In Bueno, “entrapment” had not yet taken on a term of art meaning corresponding to predisposition. It then contained the objective element of police misconduct and the subjective element of predisposition. Judge Roney carefully distinguished between the subjective question of why and the objective question of what:

“The evidence of willingness to make the sale, which is common to the usual entrapment defense, is no answer. In such cases where the issue is willingness or unwillingness of the defendant, the defense becomes a jury question because the sale itself constitutes evidence of willingness contrary to the defense of unwillingness. The issue there is not what he did but why he did it, i. e., because of coercion. The issue here is what he did, i. e., taking heroin from one government agent and selling it to another. The government’s case cannot rest on the mere fact that he entered into the Informer’s plan willingly.” 447 F.2d at 906.

Thus by its own terms, Bueno concedes that a finding of predisposition is supportable even if a jury based its finding only on its view of the defendant’s credibility. In fact the Fifth Circuit itself has rejected a Bueno rule in the true entrapment defense situation. United States v. Workopich, 479 F.2d 1142 (5th Cir. 1973). Likewise in West, the narrow holding dealt only with going forward with evidence in the objective case of government misconduct (511 F.2d at 1086). Accepting this holding, West has no direct precedential value with respect to a requirement that the Government has a burden of going forward with evidence to prove the existence of the subjective element of predisposition.

Even reading this pair of cases as the defendant suggests, Warren’s and Lukowski’s testimony and Townsend’s own account satisfied the Government’s burden (imposed in Bueno and West) of showing predisposition. Thus the jury could and obviously did credit Warren’s and Lukowski’s version of the January 24 and 30 events as well as defendant’s own highly damaging admissions. Indeed, as in Hampton, 425 U.S. at 487 n. 3, 96 S.Ct. 1646, Townsend’s trial counsel seems to have conceded predisposition, albeit inadvertently.⁹ From the Government’s and defendant’s testimony, we conclude that the jury could find defendant had a predisposition beyond a reasonable doubt to commit these offenses.

II

As to defendant’s secondary argument that the evidence of entrapment was established as a matter of law, his counsel states that the Government may not “ensnare a person who could not possess a predisposition to commit a crime” (Br. 13-14). But, as already shown, the Government did adduce sufficient evidence to go to the jury with respect to predisposition. To hold otherwise would be “on the sole basis of the defendant’s unverified testimony,” as the dissenting opinion admits. Our rejection of defendant’s first argument necessarily requires us to reject his conclusion that entrapment as a matter of law was established. United States v. Spain, 536 F.2d 170, 173 (7th Cir. 1976), certiorari denied, 429 U.S. 833, 97 S.Ct. 96, 50 L.Ed.2d 97.

III

Defendant’s final point is that the court should not have admitted stale convictions for the purpose of impeaching him. Defense counsel had moved preliminarily for a protective order to prevent the Government from using over ten-year-old felony convictions against the defendant for impeachment purposes. Before the Government rested, the court ruled that it would allow the Government to use those convictions. Although, as the trial judge noted, Rule 609(b) of the Federal Rules of Evidence ¹⁰ had not yet become effective in permitting the testimony, he said he was motivated by defendant’s lack of reform and rehabilitation and by his continuing “run-ins for violations of the law,” including a consistent history of felony convictions commencing in 1957, with other recent weapon and theft charges still pending.

Since Rule 609(b) had not yet become effective, the trial judge could have permissibly allowed in evidence much staler convictions than these. United States v. Kow-alski, 502 F.2d 203 (7th Cir. 1974), certiorari denied, 420 U.S. 979, 95 S.Ct. 1407, 43 L.Ed.2d 660. Furthermore, the court’s discussion of Rule 609(b) shows that he intended to abide thereby, and his comments to counsel adequately indicated why he thought “the probative value of the conviction[s] supported by specific facts and circumstances substantially outweighs * * [their] prejudicial effect,” as required by the new rule. See United States v. Mahone, 537 F.2d 922, 928-929 (7th Cir. 1976).

The judgment is affirmed.¹¹

1 . Counts I and II charged knowing possession without payment of the making tax on January 24 and January 30 respectively. Counts III and IV charged possession without registration on January 24 and 30 respectively.

Counts V and VI charging knowing transfer of a firearm without payment of a making tax were dismissed on the defendant’s motion before trial.

2 . It was stipulated by the parties that both shotguns involved had been manufactured without the payment of a making tax.

3 . Since United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, “definitively construed the defense of ‘entrapment’ to be focused on the question of predisposition,” Hampton v. United States, 425 U.S. 484, 492 n. 2, 96 S.Ct. 1646, 1651, 48 L.Ed.2d 113 (Powell, J., concurring), it is important to note that two independent lines of analysis still combine in determining whether the subjective mental state of predisposition existed at the time of the crime’s occurrence. Id. at 494 n. 5, 96 S.Ct. 1646. First, one considers the defendant’s personal background to determine where he sits on the continuum between naive first offender and street-wise habitué. Second, one considers the degree of coercion present in the instigation law officers have contributed to the transaction. The stronger the inducement and the scantier defendant’s criminal background, the greater is the need to declare an entrapment. Yet even the most habitual offender can be entrapped if the officers use coercive inducement to overbear the defendant’s reluctance, Sherman v. United States, 356 U.S. 369, 371-373, 78 S.Ct. 819, 2 L.Ed.2d 848.

4 . Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680.

5 . Defendant also had been convicted of perjury and another armed robbery, both of which had been reversed for trial error.

6 . This statement was of course in response to defendant’s jury argument that the Government could have called Core as a witness.

7 . According to the record, the entrapment instructions were tendered by the defendant without objection by the Government (Tr. 100-101).

8 . The dissent asserts that the existence or nonexistence of predisposition is to be determined during the time period before the crime is completed. We, of course, agree. However, probative evidence of predisposition is not rigorously confined to an a priori time frame. Surely the demeanor (as distinguished from the substantive testimony) of the defendant on the stand, although adduced after the crime, is direct, probative evidence going to the existence or nonexistence of predisposition. Similarly, the enthusiasm and initiative in commission and the depth of involvement shown by the putatively entrapped defendant in the crime also can relate back to the a priori time frame. The resolution of these subtle factual issues is at the very heart of the traditional function of the jury.

9 . In closing argument below, while denying predisposition, defendant’s counsel first stated:

“You don’t leave your common sense outside. You know as well as I do in watching that man [the defendant] testify and hearing about his background that if Mr. Core wanted him to keep a tank or a machine gun or if he had an opportunity to get a tank or a machine gun and make a few bucks, he would do it. Let’s lay our cards on the table.” (Tr. 112)

10 . Rule 609(b) of the Federal Rules of Evidence provides in pertinent part:

“Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or the release of the witness from confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect * * * ”

11 . Defendant argues that paying Core on a contingent fee basis when he supplied the contraband was improper. However, the Government’s behavior was not so outrageous as to bar Townsend’s conviction as a matter of due process, as discussed in the concurring opinion of Justice Powell (joined by Justice Blackmun) in Hampton, 425 U.S. at 495, 96 S.Ct. 1646. As the dissent here admits, an approach stressing unlawful government misconduct in the instructions submitted to the jury was rejected by the Hampton plurality. See United States v. Gonzales, 539 F.2d 1238, 1240 n. 1 (9th Cir. 1976).