Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia. (D.C. Criminal 76-175).
Opinion for the Court filed by LEVENTHAL, Circuit Judge.
Dissenting opinion filed by MacKINNON, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL
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. *fn1
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," I. 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. " "In 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 Sorrells 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. *fn2
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 ...