Harold F. Mayo, Jr. and Mark A. McGarghan appeal from judgments entered in the United States District Court for the District of Vermont, Coffrin, J., convicting them after a jury trial of assorted violations of the federal firearms laws. We find no merit in claims on appeal that the district court erroneously refused to instruct the jury on the entrapment defense; there was insufficient evidence to support their convictions under 18 U.S.C. § 992 (1976); the prosecution's dealings with the government informant deprived appellants of due process; and the indictment was insufficiently specific.
Oakes, Van Graafeiland and Meskill, Circuit Judges.
Harold F. Mayo, Jr. and Mark A. McGarghan, two of six defendants below, appeal their convictions for assorted violations of the federal firearms laws. After a five week jury trial before Judge Coffrin of the United States District Court for the District of Vermont, Mayo was found guilty on four counts of receipt of a firearm by a convicted felon in violation of 18 U.S.C. § 922(h) (1976) (counts 3 thru 6); two counts of unlawful transfer of a machine gun in violation of 26 U.S.C. § 5861(e) (1976) (counts 11 and 13); one count of unlawful possession of a machine gun in violation of 26 U.S.C. § 5861(d) (1976) (count 12); one count of dealing in firearms without a license in violation of 18 U.S.C. § 922(a)(1) (1976) (count 16); two counts of aiding and abetting violations of 18 U.S.C. § 922(a)(1) (1976) (counts 17 and 18); and one count of conspiracy to commit the above offenses in violation of 18 U.S.C. § 371 (1976) (count 20). McGarghan was found guilty of unlawfully transferring a machine gun (count 13); unlawfully dealing in firearms without a license (count 17); conspiring to violate the firearms laws (count 20); and aiding and abetting violations of the firearms laws (counts 5, 6 and 16). Mayo was sentenced to four concurrent one-year terms of imprisonment plus five years probation. McGarghan received three concurrent six month prison terms plus three years probation.
In early 1980, agents of the United States Bureau of Alcohol, Tobacco and Firearms (BATF) were investigating possible firearms violations by John P. Cleary, the operator of a retail firearms business in Willison, Vermont named Cleary and Company.*fn1 In the course of the BATF investigation, an agent was informed by a Cleary and Company employee that Neil Chamandy, a Canadian citizen, was in the area trying to peddle modern firearms. An undercover BATF agent approached Chamandy and learned that he had tried to sell several modern weapons to Cleary. BATF secured Chamandy's help in its investigation and armed him with a transmitter to record subsequent conversations with Cleary and others.*fn2
Chamandy, who held himself out as a wealthy firearms broker and collector with a particular interest in antique firearms, called Cleary on July 11, 1980, and the two agreed to meet in Vermont later that month. When they met on July 28, Clearly purchased two of the four modern guns Chamandy had for sale. Cleary offered to introduce Chamandy to Harold Mayo who was reputed to have an extensive antique firearm business. Like Cleary, Mayo also had been convicted previously of violating the federal firearms law and, as a consequence, was not licensed to deal in modern firearms. Although 18 U.S.C. § 922(a)(1) (1976) makes it illegal to deal in firearms without a license, and 18 U.S.C. § 922(h) (1976) makes it unlawful for a convicted felon to receive firearms from interstate commerce, antique weapons can be lawfully traded without a license. Antique firearms are excepted from the definition of "firearm" in 18 U.S.C. § 921(a)(3) (1976), and include generally guns manufactured on or before 1898 as well as replicas of guns manufactured on or before 1898. 18 U.S.C. § 921(a)(16) (1976). Although Mayo could not lawfully purchase the weapons Chamandy had for sale, Cleary suggested that perhaps they could transact some business. Mayo agreed to meet with them that night at Cleary and Company.
Mayo arrived with a car trunk filled with both antique and modern weapons. From this assortment Chamandy purchased two Colt .22 caliber derringers for $250. This transaction formed the basis of counts 3 and 4 of the indictment. The recorded conversations showed that Mayo hoped to conduct further business with Chamandy: "I want to do a lot of business. I don't want to do $50 and it's all over. . . . Understand what I mean. I love buying. I don't like selling. . . ." (R115). However, Mayo declined to purchase Chamandy's modern weapons: "I wouldn't take them as a gift. . . . I really wouldn't. . . . I just don't know where . . . to go with them." (R146).
Mayo was eager to sell guns the following day. He described an array of firearms to Chamandy that were available for purchase. When Chamandy asked if Mayo could acquire "Teddy Roosevelts" -- Winchester .30-.30 caliber commemorative rifles -- Mayo responded: "Yeah and I can get 'em today." (R156). Chmandy also requested .32 caliber revolvers. Mayo said he had many, "about eight of them right now." (R163). Chamandy was pleased. He told Mayo: "I'll be very honest with you[,] I came with like twenty five thousand dollars in cash and I wanted to spend it. I will spend it with you." (R164).
Mayo located several available "Teddy Roosevelts" soon thereafter. He did not acquire the guns, however, because as the tapes showed he "wasn't supposed to have those, cause they're the modern type, ya know?" (R195). But, he reassured Chamandy that he would "get somebody to go get them, ya know?" (R197). They agreed to meet on August 7 in Burlington, Vermont to transact business. Mayo also hoped to introduce Chamandy to other gun-dealing friends.
Chamandy arrived in Burlington the morning of August 7 and took a room in a local motel. Mayo arrived at the motel that afternoon, his car loaded with firearms. Chamandy purchased nine guns from this collection, among them the two Teddy Roosevelt commemorative rifles that were the subjects of counts 5 thru 8. Mayo was suspicious of Chamandy, but not so much so that he would refuse to deal with him; Mayo said: "I figure . . . . if I'm going to jail, I might just as well take the chance." (R213).
The following day, during one of several recorded phone conversations, Chamandy expressed interest in obtaining a machine gun. Mayo jumped at the opportunity: "I know where there's one. You could own . . . one today." (R350). Mayo stated the price and offered to arrange delivery, but he insisted that he "wouldn't put [his] hand on it." (Id.) That afternoon, per Mayo's arrangement, he and Chamandy visited the homes of codefendants John Crabbe and Frank Cota. Chamandy purchased modern guns from each. Later that evening, Mayo and Chamandy met codefendant George Manieri in a parking lot.*fn3 Chamandy retrieved a German Schmeisser submachine gun from the front seat of Manieri's pickup truck and left in its place an envelope containing $325. Mayo ultimately pocketed some of the money. This transaction was the subject of counts 10 and 11. Afterwards, Mayo brought up the subject of a British Sten machine gun available for$225: "I just wanted to let ya know, . . . I took the liberty to find out, ya know?" (R536).
Chamandy returned to Burlington on August 21. He was met this time by Mayo and co-appellant Mark McGarghan. The three retired to a motel room which Chamandy testified "was covered in guns . . . . on the floor . . . on the dresser, guns everywhere." Trial Tr. at 1095. McGarghan testified that there were at most thirteen weapons in the motel room. Some of the guns were modern, others were antique. While Chamandy examined the merchandise, McGarghan left the room and went to a silver Camaro parked outside. The car had been seen earlier that day at Mayo's residence with Mayo and Mcgarghan standing nearby. BATF later discovered that the car was rented in McGarghan's name. McGarghan carried a box containing a British Sten submachine gun from the trunk of the Camaro and brought it back to the motel room. Chamandy's purchase of this weapon formed the basis of counts 12 and 13. Chamandy's subsequent contact with both Mayo and McGarghan is not relevant to this case.
At trial counsel for Mayo and McGarghan claimed that their clients were small-town antique gun dealers enticed by a wealthy Canadian gun collector into selling several modern firearms in the hope of securing the Canadian's lucrative antique gun business. Both defendants asked the district court to charge the jury on the entrapment defense. Its refusal to deliver the requested charge is asserted as reversible error.
An entrapment defense raises the questions:
(1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, 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.
United States v. Sherman, 200 F.2d 880, 882-83 (2d Cir. 1952); see United States v. Jannotti, 673 F.2d 578, 597 (3d Cir. 1981), cert. denied, 457 U.S. 1106, 102 S. Ct. 2906, 73 L. Ed. 2d 1315, 50 U.S.L.W. 3963 (1982). The defendant bears a "relatively slight" burden in showing inducement. United States v. Henry, 417 F.2d 267, 269 (2d Cir. 1969), cert. denied, 397 U.S. 953, 90 S. Ct. 980, 25 L. Ed. 2d 136 (1970). He need demonstrate only that the government initiated the crime. United States v. Riley, 363 F.2d 955, 958 (2d Cir. 1966). When inducement has been shown, the burden is cast on the government to establish by "substantial evidence," United States v. Licursi, 525 F.2d 1164, 1168 (2d Cir. 1975), that the accused was "ready and willing without persuasion" and was "awaiting any propitious opportunity to commit the offence." United States v. Sherman, 200 F.2d at 882. While jury determinations of this issue are favored, United States v. Anglada, 524 F.2d 296, 298 (2d Cir. 1975), the defendant is not automatically entitled to have the defense go to the jury whenever inducement is shown. United States v. Bishop, 367 F.2d 806, 810 (2d Cir. 1966). If the government's evidence of propensity stands uncontradicted, there is no factual issue for the jury to resolve and the defense will not be submitted. United States v. Licursi, 525 F.2d at 1169. However, "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." United States v. Riley, 363 F.2d at 959; see United States v. Fleishman, 684 F.2d 1329, 1342 (9th Cir. 1982) ("Whether there exist issues of fact as to a defense of entrapment is properly a question for the trial judge, the standard of review being abuse of discretion."), cert. denied, 459 U.S. 1044, 103 S. Ct. 464, 74 L. Ed. 2d 614, 51 U.S.L.W. 3420 (1982). In making this determination, the trial court must examine the record of the case "in the light most favorable to the defendant," United States v. Anglada, 524 F.2d at 298; United States v. Dehar, 388 F.2d 430, 433 (2d Cir. 1968), and with the understanding that resolution of "an issue of credibility as between the agent and the defendant . . . is peculiarly within the jury's province," United States v. Riley, 363 F.2d at 958. The duty of the trial judge is easier to state than to apply -- if inducement has been shown, entrapment must be submitted to the jury if there exists a genuine issue of fact concerning the accused's propensity to commit the crime.
The district court found that both Mayo and McGarghan had cleared the initial hurdle of inducement. The government's evidence established that, with the notable exception of the two Colt .22 caliber derringers that were the subjects of counts 2 and 3, nearly every firearm sold to Chamandy was provided upon his request. As to the derringers, however, there was little evidence to support an inference that Chamandy induced their sale. Mayo brought the derringers with him to Cleary and Company the night he first met Chamandy. There was no evidence that Chamandy had solicited the derringers or had expressed any interest in buying modern weapons from Mayo. Nevertheless, Chamandy did set in motion the chain of events that led to his purchase of the derringers from Mayo. He came on the scene advertising great wealth and exhibiting a substantial interest in buying and selling both antique and modern firearms. It was Chamandy who suggested that Mayo might be interested in dealing in modern weapons and it was Chamandy who selected and purchased the derringers. As to McGarghan, there was no evidence that Chamandy induced him directly to deliver the Sten machine gun. Nevertheless, the district court moved past the threshold issue of inducement to consider the troublesome evidence of propensity.*fn4
Propensity can be established in many ways, among them proof of:
(1) an existing course of criminal conduct similar to the crime for which the defendant is charged, (2) an already formed design on the part of the accused to commit the crime for which he is charged, or (3) a willingness to commit the crime for which he is charged as evidenced by the accused's ready response to the inducement.
United States v. Viviano, 437 F.2d 295, 299 (2d Cir.), cert. denied, 402 U.S. 983, 29 L. Ed. 2d 149, 91 S. Ct. 1659 (1971) (emphasis added). The government produced substantial evidence of Mayo's predisposition to violate the firearms laws. See United States v. Licursi, 525 F.2d 1164, 1168 & n.3 (2d Cir. 1975). ("The prosecution must meet its burden of showing, by substantial evidence, that the defendant had a predisposition to commit the offense.") Mayo's 1975 conviction under the firearms laws, together with his unlawful possession of modern Colt derringers prior to meeting Chamandy, make out a course of criminal conduct suggesting predisposition. More telling was Mayo's ready and unhesitating response to Chamandy's inducement. Before they had ever met Mayo was gathering antique and modern guns to offer Chamandy. At all times thereafter, Mayo seemed eager to sell Chamandy whatever firearms he required. With each sale of modern weapons, Mayo suggested another transaction. Mayo was aware at all times that his conduct was illegal: "I wasn't supposed to have those, cause they're the modern type, ya know?" (R195); "I figure . . . if I'm going to go to jail, I might just as well take the chance." (R213). Whatever his motive, Mayo demonstrated a nonhesitating willingness to commit the crimes for which he was convicted.
As to McGarghan, there was less evidence of predisposition, McGarghan met Chamandy only once. Yet McGarghan carried into that meeting the Sten submachine gun that Chamandy ultimately purchased. Moreover, the evidence indicated that Mayo and McGarghan had together obtained the "Teddy Roosevelt" commemorative rifles that were eventually sold to Chamandy. By his own account, McGarghan was an experienced collector of antique and modern guns, and was familiar with the requirements of the firearms laws. The district court refused to instruct the jury on the entrapment defense in light of the government's substantial, uncontradicted evidence of predisposition.
Mayo and McGarghan submit that under United States v. Riley, 363 F.2d 955 (2d Cir. 1966), they have introduced sufficient evidence to contradict the government's showing of propensity. Appellants would have us rule that their evidence, which fails to contradict most of the government's showing, constituted the " any evidence negating propensity" that "requires submission [of the defense] to the jury." Id. at 959 (emphasis added). We cannot accept this interpretation of the Riley standard. In Riley Judge Friendly set out to formulate a standard for determining when entrapment must be submitted to the jury. He rejected the argument that submission was required upon the mere showing of inducement. See Sagansky v. United States, 358 F.2d 195, 202-03 (1st Cir.), cert. denied, 385 U.S. 816, 17 L. Ed. 2d 55, 87 S. Ct. 36 (1966). He also rejected the government's position that submission was not required where "the evidence on propensity so preponderates in its favor that the jury could not reasonably find for the defendant." 363 F.2d at 958. Judge Friendly preferred a "middle of the road solution:"
submission to the jury is not required if uncontradicted proof has established that the accused was "ready and willing without persuasion" and to have been "awaiting any propitious opportunity to commit the offense." In such cases there is no real issue for the jury even though in strict theory it might create one by speculating that the agents had found the defendant less willing than they said. 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.
It is a mistake to divorce the language of Riley from the facts of Riley. Judge Friendly's underlying concern was that questions of fact concerning the government's instigation of criminal conduct go to the heart of the offense and, thus, demand resolution by a jury. He observed that "an issue of credibility as between the agent and the defendant . . . is peculiarly within the jury's province." United States v. Riley, 363 F.2d at 958. The defendant in Riley vigorously attacked the prosecution's evidence of propensity. He narrated a "wholly different version" of the facts, id. at 957: the prosecution established Riley's lengthy criminal record, but he showed that his prior convictions were not for the same crime that he was accused of; the prosecution offered evidence of his readiness to commit the crime charged, but he explained that his illegal sale of narcotics was solicited on the basis that the undercover agent "and his wife were sick and in desperate need of drugs." Id. at 959. Riley, himself an addict, took the stand to explain that the informant who ...