The opinion of the court was delivered by: KNAPP
Defendant Charles Brown, a plumber by trade, is charged in this single-count indictment with possession of unregistered explosive devices or "pipe bombs." After a trial, which ended with the jury deadlocked seven to five for acquittal, Brown moved for a judgment of acquittal pursuant to Rule 29(c), Fed.R.Cr.P. Upon oral argument on that motion, we asked counsel to submit briefs on the issues of whether, assuming denial of the motion to acquit, we could or should dismiss the indictment under our supervisory power over the administration of criminal justice. We now deny the Rule 29 motion for acquittal, but dismiss the indictment under our supervisory power.
There is agreement on most of the facts in this case. The government presented four witnesses, three of whom were agents for the Bureau of Alcohol, Tobacco, and Firearms ("BATF").
Their testimony established that at about 1:00 P. M. on June 19, 1978, in response to a telephone call from an informer, several BATF agents, including an undercover agent named Raul Rodriguez, drove to the vicinity of 80th Street and Riverside Drive in Manhattan. When they arrived there, Rodriguez met with the informer, who introduced him to defendant Brown. After a brief conversation, which was recorded on a hidden tape recorder, Brown sold Rodriguez five devices in a brown paper bag for $ 650. Brown was then arrested by other BATF agents who had arrived on the scene at about the same time as Rodriguez and had observed the transaction.
All of the five devices were made of metal tubing and had fuses. One device was dismantled and found to contain an explosive powder, which was also present on one of the fuses. No analysis was made of the other devices.
Brown took the stand and admitted the essential facts related by the agents. He denied, however, that he had known or believed that the devices he had sold were in fact real explosives. Brown testified that about 11:30 A. M. on June 19th, the informer, whom he knew from the neighborhood as "Mousie," approached him with a scheme in which he wanted Brown to participate. During a fifteen minute discussion in Brown's apartment, Mousie showed him five fake pipe bombs which he had brought to the apartment in a paper bag, and told him he had a potential customer who mistakenly believing that the bombs were real was willing to pay $ 650 for them. If Brown should help Mousie sell the fake bombs, Mousie would pay him $ 50. Brown, who was unemployed at the time, agreed. Mousie then left Brown's apartment, taking the bag with him, to call the prospective buyer. When he returned he told Brown that the buyer would meet them on 80th Street and Riverside Drive at 1:00 o'clock. Brown and Mousie then proceeded to that area. Brown's testimony concerning the events that followed differs in no substantial respect from that of the agents who testified for the government.
Immediately after his arrest, Brown made a statement to the agents that was substantially identical to his testimony at trial. Although that statement was not admitted into evidence, we indicated in a bench colloquy that in the event the government challenged Brown's veracity on cross-examination the statement would be admissible on re-direct examination to demonstrate that his version of events was not a recent fabrication. Although the statement was not offered on re-direct, it would be admissible for these purposes in any future trial.
The only testimony contradicting Brown's version of the events preceding the sale was that of the informer, Mousie,
who was called as a court witness at defense counsel's request. Mousie testified that at the time of Brown's arrest he was working for BATF as a paid informer and that he received $ 500 for his role in the events of June 19. This was not his first venture into this line of work. On prior occasions BATF agents had paid him $ 250 and $ 350 as an informer. The pay he received for any work depended on BATF's estimate of its importance. In addition, he testified that he was under indictment in a New Jersey state court on charges of breaking and entering, larceny, and conspiracy, and that he planned to testify for the state in that case in return for a promise of leniency. Mousie also testified that the agents with whom he was working in New York had interceded on his behalf in the New Jersey case and that he hoped that his work for them would be favorably considered when sentence was imposed. Finally, Mousie admitted that he had been previously convicted on charges of arson, larceny, breaking and entering, possession of a stolen car, and possession of a controlled substance and had served approximately seven years in prison on these charges. Mousie's total testimony, together with his demeanor on the witness stand, convinced us that he is an absolutely amoral individual without scruples of any kind.
Mousie's version of the events preceding the sale differs substantially from Brown's. According to Mousie, sometime in early June of 1978 he overheard Brown and three other persons negotiating what sounded like a sale of pipe bombs. Mousie thereupon telephoned Agent O'Leary of BATF, told him of this activity, informed him of Brown's identity, and asked if BATF wished him to pursue this lead. As O'Leary instructed him to do, Mousie told Brown that he had a friend interested in buying any bombs he could supply. Although Brown was agreeable, the next contact between the two did not come until about two weeks later on June 16th, when, again according to Mousie, Brown told him that he had one bomb to sell and wished to arrange a deal for the following Monday, June 19th. Mousie visited O'Leary at BATF's office to relay this information, and was told to go ahead with the deal. When Mousie arrived at Brown's apartment on June 19th, he found five pipe bombs not one on the kitchen table in a brown paper bag. Brown told him that all five bombs were for sale. Mousie again called O'Leary before he left with Brown for the 80th Street-Riverside Drive area. Mousie's version of the events that followed was, like Brown's, consistent with that of the agents.
No evidence corroborates Mousie's version of the pre-sale events. If, as Mousie testified, BATF agents were apprised of the sale three days in advance, they could easily have kept Mousie and/or Brown under surveillance on the day of the sale. Had they done so, the agents and the jury would have known whether Mousie brought the devices to Brown's apartment, as Brown testified, or whether they had been there previously, as Mousie claimed. The agents, however, failed to take this simple precaution. Other than their observation of the transaction itself, they conducted no surveillance at all. The fruit of this failure is a complete lack of corroboration on the crucial issue in this case.
The trial was a brief one. The jury deliberated for two and one-half days longer than it had taken to present the evidence before announcing that it was hopelessly deadlocked seven to five for acquittal.
In evaluating Brown's motion for an acquittal under Rule 29, Fed.R.Cr.P., we must determine whether the evidence before the jury was substantial enough for reasonable jurors to find guilt beyond a reasonable ...