Appeal from conviction for firearms violation, 18 U.S.C.§ 922(a)(1), after jury trial in the United States District Court for the Eastern District of New York, Jack B. Weinstein, J. Finding no plain error in entrapment charge or defect in special attorney's authority to obtain indictment, conviction affirmed.
Feinberg, Mansfield and Gurfein, Circuit Judges.
Appellant Vincent Ingenito was convicted, after a jury trial in the United States District Court for the Eastern District of New York before Judge Jack B. Weinstein, of dealing in firearms without a license in violation of 18 U.S.C. § 922(a)(1). Appellant, who was sentenced to a prison term of three years, argues that we should overturn his conviction because: (1) The trial judge committed plain error in failing to instruct the jury that it must acquit Ingenito if it found that a government informer had supplied him with the firearms; and (2) the special attorney who presented the case to the grand jury exceeded his authority in obtaining the indictment of appellant. We reject both of these claims and we affirm the judgment of conviction.
The jury could justifiably have found the following relevant facts. In June 1974, Frank DuBois (a/k/a Frank Davis) told federal authorities in Brooklyn that Ingenito was offering guns for sale. DuBois then arranged a meeting at a Brooklyn parking lot later that month between federal undercover agent Bartholomew Aversano and Ingenito. At that time, Ingenito sold the agent a pistol and some ammunition for $200 cash. At a second meeting two days later, appellant sold the agent another pistol for $164 cash, and the two discussed the possible sale of other weapons, including a machine gun. Ingenito was subsequently arrested.
At trial, Ingenito argued that he had been entrapped by the Government's informer, DuBois.*fn1 Ingenito testified that DuBois had supplied him with the guns and persuaded him to sell the weapons to Agent Aversano. Ingenito also claimed that he gave DuBois most of the money from the sales. DuBois, testifying as a government witness, denied that he persuaded Ingenito to make the sale, supplied weapons to him, or received any money from the sales. On the entrapment issue, the court charged that when the evidence showed government inducement, then the Government had to establish beyond a reasonable doubt that Ingenito had been predisposed to sell the guns. There was no objection to this charge, and the jury returned a guilty verdict.
Appellant now claims that the judge should have charged that the jury had to acquit him if it found, as Ingenito claimed, that the government informer had supplied him with the guns he sold to the agent. This, according to appellant, would constitute entrapment as a matter of law. Appellant concedes that he did not request this charge at trial, but argues that this does not matter because the judge's failure to so charge was plain error.
Appellant raises his basic point in what appear to be two slightly different arguments. The first is that the nonconstitutional defense of entrapment should focus exclusively on the Government's conduct -- at least where the Government furnishes defendant the contraband necessary to commit the alleged crime -- without regard to defendant's predisposition. The second argument is that due process precludes conviction of a defendant to whom the Government has furnished the indispensable contraband for commission of the crime. The issues raised by these claims have been the subject of considerable attention both by courts and commentators. In 1973, the Supreme Court rejected similar arguments in United States v. Russell, 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637. In that case, a government agent had supplied to defendant Russell a rare chemical used in the manufacture of methamphetamine, commonly known as "speed." Thereafter, Russell was convicted of the unlawful manufacture and sale of that drug. The Ninth Circuit dismissed the indictment because of "an intolerable degree of governmental participation in the criminal enterprise." 459 F.2d  at 673. The Supreme Court reversed, declining either to change the usual entrapment test or to hold that the "law enforcement conduct" in that case violated due process. 411 U.S. at 432.
The issue, however, has not disappeared. Shortly after the Court's decision in Russell, the Fifth Circuit distinguished it on the ground that the chemical supplied there by the government agent was not illegal contraband. See United States v. Oquendo, 490 F.2d 161, 163 (1974). In that circuit, therefore, the law continues to be that a defendant must be acquitted if the undercover agent supplies him with the narcotics he then sells. See United States v. Mosley, 496 F.2d 1012, 1016, pet. for reh. en banc denied, 505 F.2d 1251 (1974); United States v. Bueno, 447 F.2d 903 (1971). The Third Circuit has adopted the same view. United States v. West, 511 F.2d 1083 (1975). On the other hand, various other courts of appeals do not read Russell so narrowly and reject the proposition that the Government's conduct in supplying contraband bars a conviction. United States v. Hampton, 507 F.2d 832 (8th Cir. 1974); United States v. McGrath, 494 F.2d 562 (7th Cir. 1974); United States v. Jett, 491 F.2d 1078 (1st Cir. 1974). See Comment, Criminal Procedure: Entrapment Rationale Employed to Condemn Government's Furnishing of Contraband, 59 Minn. L. Rev. 444 (1974).
The issue is again before the Supreme Court, which granted certiorari in Hampton, supra, in March 1975, 420 U.S. 1003, 95 S. Ct. 1445, 43 L. Ed. 2d 761, and heard argument in that case in December 1975, 44 U.S.L.W. 3343. The Government urges us not to defer disposition of this appeal until Hampton is decided because that case is, in any event, distinguishable; the guns allegedly supplied by DuBois to Ingenito here were not "inherently unlawful merchandise" or contraband while the narcotics supplied in Hampton were. Appellant replies that the distinction is not persuasive because the weapons here, like narcotics, are contraband under federal law. We need not enter this fray because we agree with the Government that we should not hold up our decision, but for a different reason.
It is conceded that appellant never asked for the charge he now claims Judge Weinstein should have given. Thus, under Fed. R. Crim. P. 30,*fn2 the point would ordinarily be waived. Appellant relies, however, on the saving language of Fed. R. Crim. P. 52(b) that "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." However, it must be recalled that there was a sharp factual conflict at trial over whether DuBois had supplied guns to Ingenito. If the jury believed DuBois's testimony that he had not, then the basic premise of appellant's argument for entrapment as a matter of law would fail. It is at least likely that the jury did accept the testimony of DuBois on this issue rather than that of Ingenito, because the verdict probably reflects a rejection in other respects of Ingenito's version of the events. Of course, we cannot be sure that the jury believed DuBois's story that Ingenito obtained the guns from someone else. But we obviously also cannot be sure of the converse, that is, that DuBois supplied the guns to appellant. That proposition is the factual basis of appellant's argument that he was entrapped as a matter of law. Moreover, the validity of the legal rule for which appellant contends is, as shown above, in sharp dispute, and has not been adopted as yet in this circuit. Cf. United States v. Rosner, 485 F.2d 1213, 1221-23 (2d Cir. 1973), cert. denied, 417 U.S. 950, 41 L. Ed. 2d 672, 94 S. Ct. 3080 (1974); United States v. ...