United States v. Anthony Melvin Azadian

ELY, Circuit Judge

(dissenting):

I respectfully dissent. Despite anything which has been written to the contrary, I think it simply illogical that one can be found guilty of aiding and abetting in the commission of an offense which has been held not to have occurred. As our Brother Barnes wrote in United States v. Jones, 425 F.2d 1048 (9th Cir. 1970), which, incidentally, the majority ignores: “There is no question but there must be a guilty principal before there can be an aider or abettor.” See also Edwards v. United States, 286 F.2d 681 (5th Cir. 1960); United States v. Titus, 210 F.2d 210 (2d Cir. 1954); Karrell v. United States, 181 F.2d 981 (9th Cir.), cert. denied, 340 U.S. 891 , 71 S.Ct. 206 , 95 L.Ed. 646 (1950).

Even were this not the law, I would reverse Azadian’s conviction. The majority’s reasoning, as I understand it, is that the immunity granted to an entrapped principal should not extend to one who aided and abetted the commission of the otherwise criminal acts of the principal. In support of its position, the majority relies solely upon Carba-jal-Portillo v. United States, 396 F.2d 944 (9th Cir. 1968). In my humble opinion, however, that decision does not support the majority’s reasoning in the instant case. The policy that immunity should be granted to those whom government agents have entrapped into commission of criminal acts is, as Car-bajal itself recognized, that it is not

“right and just that a Government should instigate and successfully pursue prosecution for the commission of an act which the prosecuted would not likely have committed but for the importunity of an agent of the Government itself.”

Id. at 946 (quoting from Notaro v. United States, 363 F.2d 169, 173 (9th Cir. 1966)). In Carbajal, the majority, over the well-reasoned dissent of District Judge Gray, was swayed by the fact that the narcotics agent who entrapped Carbajal had nothing whatsoever to do with the decision of Carbajal’s codefendant, Vega, to aid and abet Carbajal in the illegal importation of heroin into the United States. The agent had never met Vega, nor had he even suggested to Carbajal that another person be employed. Vega was a volunteer, and there was no suggestion to the contrary.

Here, the same cannot be said. The plan and method for the falsification of *84 Langley’s draft records originated with Lewallen, the Government’s agent. He approached Daniel and, on her suggestion, the appellant, also. He, not Daniel, negotiated with Azadian. He, not Daniel, gave Azadian $2,000 in Government funds. While subsequent to Daniel’s change of heart, Azadian still desired to consummate the deal, the impetus for Azadian’s conduct derived, not from Daniel, but from the overreaching zeal of the Government. It is one thing when a principal, such as Carbajal, decides on his own to solicit help in the commission of an offense. It is quite another, I think, when both the principal and the aider and abettor are solicited and guided, from the beginning, by a hand of the Government itself.

My Brothers appear to believe that the inability of a defendant in the Ninth Circuit to assert entrapment as a defense, unless he admits the act supposed to constitute the crime, supports their position. I, however, submit that the precise issue now before us is a different one. We are called upon to decide, not whether Azadian can assert that he, himself, was entrapped, but whether he can rely on the admitted entrapment of Daniel, the principal acquitted of the crime with which he was charged with having aided and abetted. In Carbajal, the resolution of that abstract question was expressly reserved. In the circumstances of this case, the Government’s far deeper involvement with Azadian should require that his conviction be set aside. The noble image of our Government is tarnished when it successfully prosecutes one for involvement in acts which, save for its own seduction, would not have been committed. I deplore the prospect that my Brothers’ opinion could encourage an eager Government agent to engage in reprehensible conduct in order to lure others, as aiders and abettors, into a web of criminality, even while knowing that his principal entrapee would escape conviction.

I would reverse.