United States v. James B. Borum

MacKINNON, Circuit Judge,

dissenting:

Because it is my conclusion that the evidence, as a matter of law, shows that Bo-rum was not entrapped to receive a firearm shipped in interstate commerce and to possess same without a license, I respectfully dissent from the decision of the majority opinion.

The court argues that the police in the course of operating their undercover “fence,” “the Sting,” entrapped Borum to commit these firearms offenses merely by telling him on several occasions when he voluntarily came to sell stolen goods that they would also purchase guns. In making these suggestions, however, the Sting did nothing more than “provide an opportunity” for appellant to exercise his felonious intentions which — as opposed to actual “inducement” — by the great weight of authority, falls outside the purview of the entrapment doctrine. United States v. Russell, 411 U.S. 423, 435 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 (1973); United States v. Gardner, 516 F.2d 334 (7th Cir.), cert. denied, 423 U.S. 861 , 96 S.Ct. 118 , 46 L.Ed.2d 89 (1975); United States v. Hill, 469 F.2d 673 (10th Cir. 1972), cert. denied, 410 U.S. 939 , 93 S.Ct. 1400 , 35 L.Ed.2d 604 (1973); United States v. Basey, 468 F.2d 194 (9th Cir. 1972), cert. denied, 411 U.S. 964 , 93 S.Ct. 2140 , 36 L.Ed.2d 684 (1973); Chatman v. United States, 411 F.2d 1139 (9th Cir. 1969); United States v. Soles, 401 F.2d 521 (6th Cir. 1968), cert. denied sub nom. Nelson v. United States, 394 U.S. 931 , 89 S.Ct. 1201 , 22 L.Ed.2d 461 (1969).

This would be quite a different case had the police, instead of merely waiting to see what contraband Borum might bring to them, approached the defendant with stolen guns and urged him to find some “fence” to buy them, whereupon Borum proceeded to fence these guns with the “Sting.” Cf. United States v. Oquendo, 490 F.2d 161 (5th Cir. 1974). In actuality, however, the police never approached Borum. He came to the Sting completely unsolicited, as a confirmed burglar fencing a variety of stolen goods for a small part of their actual value. In the course of dealing with appellant, the officers running the Sting discussed what types of articles they were interested in purchasing, and he returned any number of times voluntarily and completely on his own to sell such goods. Borum dealt with the Sting solely because it afforded him a market for the fruits of his larcenies, not because the police prodded him to do so. As he testified, he had “about 20 conversations about guns” with the Sting. “Most of the time I called them” (Tr. 152). The Sting, thus, merely afforded the defendant a chance to profit by violating the law; a chance which he eagerly embraced and to which he was preeminently predisposed. Compare Sorrells v. United States, 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932). Lutfy v. United States, 198 F.2d 760 (9th Cir. 1952).

In this case it must be remembered that the predisposition we are talking about is the predisposition to possess guns. It was the mere possession of a gun that formed *431 the corpus delicti of the two offenses of which he was convicted. Apparently Bo-rum was not only a thief; he also operated as an intermediary for others wishing to fence various articles. 1 According to his own testimony he was always running across men who wanted to buy and sell guns, but his reluctance to do so himself was, as he said, because he didn’t want to get stuck with the guns — -i. e. not be able to sell them. When a sure sale and a good price was guaranteed, Borum said he was “Solid.” This seems a clear admission of predisposition to sell guns if he were assured of a ready market. And implicit in this wider predisposition is the necessarily involved predisposition to possess guns whether owned by him or others. Thus it was no surprise when a friend of his wanted to sell credit cards or a TV, and both offers were turned down, that Borum called back a third time and inquired if the Sting would buy a “pistol.” When the reply was affirmative, instead of sending his friend (Melvin Sales) who had the gun alone, Borum went along with him in order to share in the price. Borum’s predisposition to handle guns under such circumstances is apparent and his own testimony convicts him on that score:

And I went uptown to cop. And I think I went with somebody. Got a quarter or whatever it was. It was about nine of us in a room sitting around all. And Melvin Sales came in and he had some credit cards. But I didn’t know at the time that he had a TV and some radio or something. But anyway, it was a bunch of things he had.

But the only thing I knew at the time, he had some credit cards. So, he told me that I know where to offer them. I said yes.

So, I went up and got on the phone and I called over to Pat’s. And Pat — I told him I had — he asked what did I have. I said I had some credit cards.

So, he said, “I ain’t talking no more credit cards. You should know that” or something to that effect. So, he said, “Is that all you got?”

I said, “Yes”.

Well, he said, “Well, I ain’t taking no credit cards. Bring me a trailer truck or some guns.”

I said, “Okay.” So, I .hang up.

So, I relayed the message to Melvin. So, Melvin said he had a TV and some other items. So, he wanted me to call back.

So, I called him back again. So, I told me [him?] what I had this time. He said no, he wasn’t taking anything. He told me what he wanted, and that’s all he was going to take.

So, I relayed the message back to Melvin again. So, Melvin said, “Well, I got a pistol.”

So, I said, “If you got a pistol, he’ll take the pistol.”

He said, “Come on, take me past the house.”

So, we put all the stuff in my car, went past his house, picked up the pistol, and I went back — no, I called from the gasoline station on Bladensburg Road, and he asked me what did I have. I said, “I got a pistol.” So, he said, “Come on up.”

*432 So, I went up there and I had the pistol and the other stuff because I figured he wasn’t going to turn it down if I had the pistol.

So, that’s how it came about.

Tr. 154-156. It is also a fact not to be ignored that Borum’s accomplice (Sales) already had the pistol — the opportunity to sell it merely caused the existing evidence to surface. No new crime was committed by Sales, and to a certain extent Borum initially aided and abetted Sales’ offenses and subsequently committed his own individual offenses.

There is a possibility that Borum might never have been in possession of a gun if he had not been afforded an opportunity to sell it, but it is a perversion of the American language and the American law to suggest that therefore he was “induced” to commit the crimes of which he was convicted. It is firmly established that simple solicitation, and much less mere affording of an opportunity, does not amount to such inducement as gives rise to an entrapment defense, see, e. g., United States v. Perry, 478 F.2d 1276 (7th Cir.), cert. denied, 414 U.S. 1005 , 94 S.Ct. 363 , 38 L.Ed.2d 241 (1973); United States v. Tharpe, 443 F.2d 12 (4th Cir.), cert. denied, 404 U.S. 866 , 92 S.Ct. 80 , 30 L.Ed.2d 110 (1971); United States v. Barash, 412 F.2d 26 (2d Cir.), cert. denied, 396 U.S. 832 , 90 S.Ct. 86 , 24 L.Ed.2d 82 (1969); but compare, United States v. Licursi, 525 F.2d 1164, 1168 (2d Cir. 1975) (and cases cited therein). In apparent disregard of such compelling authority, the court seems to have confused “inducement” with a more passive concept, perhaps best described simply as a temptation. In so doing the court glosses over the point that entrapment can only be present where the police action is actually “creative” of the defendant’s criminal intent, see Hampton v. United States, 425 U.S. 484 , 96 S.Ct. 1646 , 48 L.Ed.2d 113 (1976); Sherman v. United States, 356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958), rather than merely supplying a facility for its activity, see, e. g., Chatman v. United States, supra. Justice Harlan aptly observed that “the defense of entrapment is concerned [with] the manufacturing of crime by law enforcement officials and their agents.” Lopez v. United States, 373 U.S. 427, 434 , 83 S.Ct. 1381,1385 , 10 L.Ed.2d 462 (1963). But Borum was no innocent victim.

The Government’s role in the interplay between the Sting and Borum was significantly passive. There was never any attempt to urge or persuade or to influence the reason or judgment of Borum. It is recognized that in those cases where the criminal activity in which the defendant was allegedly entrapped is itself minimal, “relatively slight” inducement may suffice to require an entrapment instruction, see, e. g., United States v. Boone, 177 U.S.App.D.C. 265 , 543 F.2d 412 (1976); United States v. Viviano, 437 F.2d 295, 299 (2d Cir.), cert. denied, 402 U.S. 983 , 91 S.Ct. 1659 , 29 L.Ed.2d 149 (1971); United States v. Weiser, 428 F.2d 932, 934 (2d Cir. 1969), cert. denied, 402 U.S. 949 , 91 S.Ct. 1606 , 29 L.Ed.2d 119 (1971). Here, however, there is no indication of any actual “inducement” at all. The defendant thus has not presented sufficient evidence to justify the court placing the issue before the jury by an instruction on entrapment. “[A]s a matter of law, no entrapment takes place merely by a Government informer’s asking to purchase contraband articles.” Kibby v. United States, 372 F.2d 598, 602 (8th Cir.), cert. denied, 387 U.S. 931 , 87 S.Ct. 2055 , 18 L.Ed.2d 993 (1967), and cases cited therein.

The active party in Borum’s contact with the “fence” was plainly the defendant himself. It was he who first went to the Sting and made the initial overtures, and he who continued voluntarily and repeatedly to renew this contact — some 27 times in three months, cf. United States v. Haden, 397 F.2d 460 (7th Cir.), cert. denied, 396 U.S. 1027 , 90 S.Ct. 574 , 24 L.Ed.2d 523 (1968). On facts much less favorable to the Government than these, one would be hard put to deny that a defendant’s conduct had become sufficiently independent and derivative from his own initiative that even the most credulous would be forced to refuse to believe that the “criminal design originated in the mind of the officer” not of the de *433 fendant. Such a conclusion is particularly ineluctable in the present case where Bo-rum has proven himself to be a confirmed thief and has admitted to regularly possessing and trafficking in various contraband and stolen articles. Cf. Sorrells v. United States, supra, 287 U.S. at 442 , 53 S.Ct. 210 ; United States v. Anders, 485 F.2d 562 (5th Cir. 1973); Beatty v. United States, 377 F.2d 181 (5th Cir.), rev’d on other grounds, 389 U.S. 45 , 88 S.Ct. 234 , 19 L.Ed.2d 48 (1967).

I do not, of course, understand the majority to suggest that all of Borum’s dealings with the Sting were “induced” by the police, but only that he may have been entrapped by the officers specifically into dealing with guns, a crime which it is alleged he was not predisposed to commit. Although this position lacks the patent absurdity of any suggestion that Borum’s general dealings in stolen goods were “induced,” I nevertheless cannot agree that where law enforcement officials merely operate a passive, purchasing operation involving stolen property that such activity is transformed into illegitimate inducement to possess guns merely because the supposed “fence” indicates that he is only interested in certain merchandise and suggests that such items would command a good price. That is nothing more than affording an opportunity. Cf. United States v. Virciglio, 441 F.2d 1295 (5th Cir. 1971).

Moreover, Borum was charged only with possessing a gun and stolen property so that there is no need for the Government to show that he was predisposed actually to deal in guns (which might be difficult), but rather only that he was predisposed to possess them. The suggestion that while he was disposed generally to sell stolen goods, he was not predisposed to sell stolen guns misstates the nature of this case and misconstrues the crimes for which Borum was convicted. As long as it is shown — and there is abundant evidence so indicating— that Borum was sufficiently predisposed to possess guns if he was afforded a ready market for them, no further predisposition is needed.

In this case, the police exerted so little influence on the defendant that it is difficult to imagine how his acts could be said to proceed from anything other than his own predisposition. There is no question that the police on several occasions told the defendant they were interested in purchasing guns, but they did so only when he voluntarily contacted them to discuss the possible sale of various other stolen articles. The police never approached Borum on any matter. This case does not involve the “repeated and persistent solicitation” characteristic of entrapment, see Sorrells v. United States, supra, 287 U.S. at 411 , 53 S.Ct. 210 ; United States v. Ewbank, 483 F.2d 1149 (9th Cir. 1973). What the police offered Borum was merely an “opportunity,” and his eventual sale of an illegal weapon was the result of his free decision to take advantage of that opportunity. Of course, had the Sting on this particular day stated that they were interested in stolen credit cards, Borum might not have resorted to the sale of the pistol, but the mere refusal to buy one species of stolen property does not constitute entrapment into selling — and much less into possessing — something else. The point remains that it was the defendant himself who decided without any persuasion that he would sell what the Sting offered to buy.

Moreover, in my view, the court has misapprehended the nature of the predisposition which the Government must show in this case. Borum was a confirmed thief predisposed to steal or acquire any stolen article in order to fence it and obtain the best price he could. There is, in this respect, nothing unique about his possession of a stolen gun as opposed to, for example, diamonds or currency. The law may attach special penalties to the possession of illegal firearms, but when an individual makes his livelihood from fencing stolen merchandise, he seems predisposed to provide (and hence to possess) such articles in general. There may be some situations in which a general predisposition to steal and fence would not imply a predisposition to do so with certain articles — for example, an individual who is readily willing to sell guns may not be to *434 sell national secrets — but at the very least, on the facts of this case, it seems overly nice to dispute that a general predisposition on the part of Borum to fence stolen goods would not at least suggest a similar attitude — if the price Vas right — towards possessing guns to sell them. Appellant’s reluctance to sell firearms seems to have been indicative more of the hazards of doing so than to any lack of predisposition to possess them so as to profit by that particular felony-

The court makes much of Borum’s subsequently stated reluctance to deal in firearms because of his knowledge of the heavy penalties consequent upon a convicted felon being apprehended in possession of a gun, by way of suggesting that he would not have overcome his reluctance but for some suasion by the police. But there is not an iota of evidence that the suasion ever exceeded “opportunity.” That Borum overcame his initial hesitation, demonstrates nothing more than at some point the mere opportunity to obtain the “top dollar” paid for firearms overmastered his self-interested caution, a process which presumably takes place whenever any crime is committed for financial gain.

The mere fact that at a certain point Borum considered it worthwhile to commit the crime of possession in furtherance of a crime that he was initially reluctant to commit is not evidence that supports an inference of inducement. Borum was just like the confirmed poker player who regularly played in the crooked game, although he would have preferred an honest one, because the former was the only game in town. During the three months that it took for him to decide to sell a gun (and incidentally to possess it) the subject of firearms purchases was mentioned slightly less than twice a week and then only after the defendant himself voluntarily appeared at the Sting and initiated the discussion as to what the Sting would buy 2 — a situation far different from the “hard sell” tactics that are required for the inducement that leads to entrapment, see, e. g., Sorrells v. United States, supra; Lutfy v. United States, supra. We are not confronted here with any browbeating or intimidation by the police, but only with an individual who, as his circumstances changed, became willing to take advantage of an opportunity that prudence had earlier persuaded him to avoid.

The court’s opinion asserts that this case is distinguishable from United States v. Brooks, 185 U.S.App.D.C. 267 , 567 F.2d 134 (1977) because Brooks did not involve the government “redoubling their requests in the face of expressed reluctance on the part of defendant to comply with such requests.” Neither does this case. The testimony here does not support an assertion that the Sting redoubled his requests. Rather, when Borum persisted in his continuing attempts to fence other stolen articles the Sting merely repeated its statement that it would not buy such articles but would buy a trailer or guns. This was practically the same situation as existed in Brooks where we found that the record presented not “even a colorable contention that Hazel [a defendant] was an innocent person instigated to crime by the police, who implanted in his mind the disposition to violate the law,” 185 U.S.App.D.C. at 271 , 567 F.2d at 138 .

In the face of Borum’s admission that he frequently came in contact with guns, supra n. 1, it is hard to see how one already engaged, or at least in contact with others who were themselves engaged, in crimes involving guns can be said not to be predisposed to commit that crime. The fact that he “expressed reluctance” does not compel an entrapment instruction unless such reluctance was overborne by inducement, which is not shown here. His reluctance was not based on moral principles and was easily overcome when his own cupidity induced him to perform such acts. He then eagerly and repeatedly called the Sting to *435 make all the arrangements for. just such a crime as he had previously “expressed reluctance” to commit. His own testimony, pp.---of 189 U.S.App.D.C., pp. 431-432 of 584 F.2d, supra, clearly shows that the influence that caused Borum to overcome his reluctance was his desire for money; the police officers involved merely remained available as the passive instrument of his felonies:

[When asked why on the one occasion in question and no other he brought a firearm to the Sting, Borum replied] Because they said they wasn’t taking any credit cards or anything else that I might have brought. And I knew that eventually that day I would have to have some money. And they said to bring pistols that’s all they was taking. So, I brought the pistol. (Tr. 157)

If prior “reluctance” in such circumstances is sufficient to merit an entrapment instruction, then the deterrent element in criminal penalties would make such an instruction necessary in virtually all cases involving undercover police activity.

Turning from the “predisposition” prong of the entrapment doctrine to that focusing on the amount of police “inducement,” again it is the similarity between the dealings of the defendants with the police in Brooks and in the instant case, not the differences, which stand out. It is true that Borum made some twenty-seven visits to the Sting, all of them voluntarily whereas the defendant in Brooks made only eighteen. However, this seems to be a difference without distinction. If anything, it indicates more disposition to crime in Bo-rum. Certainly the fact that the police told one defendant eighteen and another twenty-seven times that they were interested primarily in purchasing guns — particularly when it was the individual criminal himself who determined how many times he would talk to the’ Sting — does not constitute a meaningful difference in the degree to which the two defendants were induced to commit their respective crimes. The Sting’s failure to accommodate the defendant’s preferred method of obtaining funds by retailing the fruits of his larcenies, and those of his friends, does not amount to the inducement necessary to permit an entrapment instruction. The inducement that is necessary to justify an entrapment instruction must be something akin to:

persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship. A solicitation, request or approach by law enforcement officials to engage in criminal activity, standing alone, is not an inducement.

Criminal Jury Instructions for the District of Columbia, Instruction 5.05 Entrapment (3d ed. .1978).

The inducement necessary to require an entrapment instruction may consist in pleas “predicated on . presumed suffering” that amount to “enticement,” Sherman v. United States, 356 U.S. 369, 371 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958), or in personal appeals to human sympathy, friendship, etc. Sorrells v. United States, 287 U.S. 435, 439-440 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932). The court’s reliance here on these two cases is misplaced, Maj. op. p. -of 189 U.S.App.D.C., p. 429 of 584 F.2d, as no such inducement was indulged in here. The court’s reliance on United States v. Russell, Maj. op. p. - of 189 U.S.App.D.C., p. 429 of 584 F.2d, is even more contrary to its holding. Russell held that the defendants were not entrapped even though the government voluntarily furnished the critical ingredients necessary to manufacture a contraband drug. It would be hard to find a case that would furnish less support for the court’s position than Russell .

It may be true, but irrelevant, that Bo-rum’s desire for money was fueled by the mandates of addiction, not merely the more mundane aspects of greed. While addiction may contribute to one’s predisposition to commit crimes, it is not a legal defense to the consequences thereof. The majority *436 goes beyond the law in so asserting. Surprisingly, the court insists that the jury should be instructed to consider the fact that Borum was an addict, and that it may infer — without any evidence on the point— that he therefore had a pressing, indeed literally an overwhelming physical, need for money (parenthetically, in actuality the overpowering strength of all addiction is a common misconception, and in fact the condition does not exist in all addicts). We are not pointed to and have been unable to find that any court has ever instructed a jury that narcotics addiction may negate predisposition. It is submitted that the court is grossly in error in this respect. Moreover, Borum’s addiction cuts both ways. If he were short of funds, that fact might magnify the effect and hence the potential illegality of any “inducement” by the police. It would, however, also suggest that he was predisposed to do anything to obtain funds to purchase narcotics, and thus arguing that the police induced his crime is fantastical.

Furthermore, I cannot concur in the court’s implication that the financial exigencies of addiction — or any other subjective characteristic of a defendant — can transform mere opportunity into inducement. Addiction might make one more willing to grasp “opportunity,” but it in no way converts “opportunity” into impermissible inducement. To allow it to do so would be to allow individual infirmities to eviscerate the protection of the criminal law.

Here there is no evidence at all that the police even knew of, let alone exploited, Borum’s addiction, and barring some showing of such manipulation, the court is wholly without justification for transmuting the passive, receiving activity of the police in this case into the “initiative,” “creative,” “persuasive” conduct which constitutes entrapment merely because defendant might have had a strong physical need for money. It is impermissible for the court to confuse internal compulsion with external inducement.

As a final point, I note that the court seems to place some weight on the fact that the defendant was “frightened” of the officers posing as leaders of the Sting. However, he was not apparently sufficiently frightened to avoid them or to be dissuaded from continually and voluntarily renewing contact with the persons whom he now alleges terrified him. Not only did Borum himself give few signs of actually being frightened, but also the conduct of the police was by no means excessively intimidating. The officers themselves never threatened Borum with any dire consequences should he not deal in guns; the furthest they went was simply to inform him that they would not purchase any other type of stolen property. The defendant may well have been afraid, but it was his greed, not his fear, that induced him to fence Sales’ pistol. One would suspect that most criminals are frightened to some degree; fright alone by no means indicates that the police in this case created Borum’s criminal intent.

The Supreme Court has admonished that in dealing with entrapment, “a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal,” Sherman v. United States, supra, 356 U.S. at 372 , 78 S.Ct. at 821 . The Sting on its face was no more than a trap for the predisposed criminal, and Borum, one of their most frequent “customers,” could hardly be described as innocent. That he was unwary was his downfall.

More recently, the Court has reiterated that “entrapment is a relatively limited defense.” United States v. Russell, supra, 411 U.S. at 435, 93 S.Ct. at 1644 . The suggestion that entrapment was involved is out of place here. There is no indication that the police in the course of the Sting customarily overstepped the bounds of passivity and intruded into the area of entrapment, and in their dealings with Borum they certainly did not do so. Even if the most extreme view of entrapment, as expressed by Justice Brennan, is accepted, the facts here do not constitute such defense. In his dissent in *437 Hampton v. United States, 425 U.S. 484 , 96 S.Ct. 1646 , 48 L.Ed.2d 113 (1976), Justice Brennan postulated:

If the police believe an individual is a distributor of narcotics, all that is required is to set up a “buy”; the putative pusher is worth the investigative effort only if he has ready access to a supply. See United States v. Russell, 411 U.S., at 448-449, [ 93 S.Ct., at 1650-1651 , 36 L.Ed.2d, at 382-383 ] (Stewart, J., dissenting).

425 U.S. at 499 -500 n. 3, 96 S.Ct. at 1655 . Here the police knew that Borum possessed and sold stolen goods. He admitted he sometimes had access to guns. 3 Consequently all that the agents did was “set up a ‘buy’,” and the putative seller (Borum) took advantage of it by the ready access he had to a gun that was made available to him by Sales. This is not entrapment even by the standards of Justices Brennan, Mar-shall and Stewart, and this court should not attempt to make it so. 425 U.S. at 495-500 , 96 S.Ct. 1646 . Sales and Borum, here, between them, supplied their own inducement to the crimes with which they were charged. I challenge anyone to read Bo-rum’s testimony at pp.----of 189 U.S.App.D.C., pp. 431-432 of 584 F.2d, supra, and point out any inducement by the government. It would seem that Russell and Hampton , being so recent, would command respect and that further explication would not be necessary. I respectfully dissent.

. The proffer by the prosecution at a bench conference of a tape recording of Borum’s conversation with the Sting ran as follows:

Lilly: “Run across any guns?”

Borum: “Ah, yes, I am always running across dudes that wants to buy them and sell them, but I don’t want to buy them and get stuck with them.”

Lilly: “You ain’t going to get stuck with them if you get them and bring them to me.” Borum: “What do you get for a gun?”

Lilly: “I give you pretty good money. You just bring it in and let me see it. I can’t buy something until I look at it, see what it looks like.”

Borum: “I understand that.”

Borum: “No, I am not saying, like if, ah, it’s a .38 you know.”

Lilly: “Bring in any kind of gun you get your hands on. I will buy it. I guarantee it, and I guarantee you a good f___ing price.”

Borum: “Solid.”

Tr. 134. This proffer was not objected to and it was permissible for the court to consider it in connection with its decision to deny a charge on entrapment. Had an entrapment instruction been given the above testimony would have been admissible and would have been very damaging to Borum.

. Tr. 151-154. The appellant was “asked about guns” by the officers operating the Sting approximately twenty times from late November until February 3 when he sold a firearm to them. Appellant’s Brief at 5-6.

. Tr. 134.