Appeal from judgment entered in the United States District Court for the Southern District of New York, Ward, Judge, following a jury verdict of conviction for the unlawful possession and transfer of firearms. Affirmed.
Moore, Oakes and Timbers, Circuit Judges. Oakes, Circuit Judge
Appellant William M. Ordner, Jr., is a licensed commercial blaster and firearms manufacturer. On March 2, 1976, he was charged in a six-count indictment with various violations of the Gun Control Act of 1968.*fn1 At his trial before Honorable Robert J. Ward, United States District Judge for the Southern District of New York and a jury, Ordner presented a defense based on entrapment and duress. The jury convicted him on Counts One through Three and acquitted him on Counts Five and Six.*fn2 The counts of the indictment on which Ordner was convicted are, in substance "ONE", unlawful possession "wilfully and knowingly" of a firearm, namely, a.25 caliber "Pen Gun" not bearing a required serial number; "TWO" unlawful transfer of said "Pen Gun"; and "THREE" unlawful possession of 502.25 caliber "Pen Guns" (26 U.S.C. §§ 5842, 5845(a), (e) and (j), 5861(e) and (i) and 5871). Judge Ward sentenced Ordner to ten-year terms on each of the three counts, the sentences to run concurrently, subject to modification after a 90-day study to be conducted pursuant to 18 U.S.C. § 4205(c) and (d) (June, 1976 Pamph.).
Ordner appeals on the grounds, inter alia, that the facts make out a case of entrapment as a matter of law, that it was not illegal to "aid and abet" the non-criminal possession of firearms by Government agents, and that the jury verdict was inconsistent. We find these and appellant's other arguments to be without merit and hence we affirm his conviction.
Ordner met John Romano at a gun show in Connecticut in August, 1975. Ordner had not seen Romano for some time and informed him that he was now a commercial blaster. Romano told Ordner that he knew of a contractor who might have blasting work for him.
Unbeknownst to Ordner, Romano was at this time a Government informer. He had been arrested by Special Agent Joseph Kelly of the Bureau of Alcohol, Tobacco and Firearms on gun violation charges and had agreed to provide the Bureau with information in the hope that this might ameliorate any sentence he might subsequently receive. Romano told Kelly about his meeting with Ordner, and Kelly then asked Romano to bring Ordner to the home of Anthony Stagnito, a/k/a A. Michael Stagg. Stagg was a paid informant who resided in an expensive home in Armonk, New York.
Romano contacted Ordner and made arrangements for him to meet the "contractor" whom Romano had mentioned at their earlier meeting. On August 25, 1975, Romano drove Ordner from Connecticut to New York. He stopped the car at a phone booth and made a phone call. A Cadillac with a driver named "Billy" (actually Police Officer William Adams) arrived and the men proceeded in that car, by a circuitous route, to Stagg's home.
Ordner and Romano entered the house and were met by Stagg, Kelly, and another Special Agent, who were introduced respectively as "Mr. S", "Joe Keen", and "Mr. S's bookkeeper". When Ordner asked about the blasting work, "Mr. S." responded that he did not need a blaster. The facts are in dispute at this point. Agent Kelly testified that "Mr. S" told Ordner that the "family" was looking for weapons to sell and that Ordner replied that he had dealt in weapons but would have to re-establish his contacts. Ordner testified that "Mr. S" merely declared his intention to "make good business" with him.
Shortly thereafter, Romano died of a liver ailment. On September 23, 1975, Ordner met Stagg, Kelly, and Adams after the wake, and was offered Romano's place in the "family". Kelly and Ordner both testified to several meetings which took place over the next month, but their versions differed. Briefly, Kelly testified that Ordner said he could supply the "family" with a large number of pen guns, that he supplied them with a blueprint and a sample,*fn3 that he showed them how to operate the guns, that he helped locate a supplier of one of the component parts, that he supplied the other part himself, and that he helped assemble 502 pen guns from the two component parts.*fn4 Kelly testified further that Ordner offered on more than one occasion to supply the "family" with other types of guns; the Government introduced a tape recording of one such conversation between Ordner and Kelly.*fn5
Ordner's version of these meetings was that he initially refused to supply the guns in quantity but when pressed, volunteered the names of possible suppliers. He never "offered" to supply other types of guns, although again, when pressed, gave information on and demonstrated other types of guns. Ordner testified that he was "pressed" in indirect, as well as direct, ways. "Mr. S" questioned him about his family and cautioned him not to go to the authorities. Romano's death added to the aura of fear surrounding the "family". Ordner's daughter told him that unknown men had tried to get her into their car. Two of Ordner's friends testified to conversations they had with Ordner during this period, in which he expressed his fear and in which he said that he thought he had been approached by the mob. Finally, Ordner testified that on September 25, 1975, he tried to call the United States Attorney but was unable to get through and did not leave a message.
ENTRAPMENT, COERCION AND DURESS
Were it not for statements by Government counsel and its chief witness, Special Agent Joseph F. Kelly, Bureau of Alcohol, Tobacco and Firearms, this case might be placed in the usual jury verdict category. However, the extraordinary and quite bizarre factual background has caused the reviewing court to examine the record with ...