Petition — Ordner v. United States

OCTOBER TERM, 1976

Nn. 76-1617

WILLIAM u. ORDNER, IR.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CHARLES J. IRWIN

Irwin and Post

EUGENE GRESSMAN 744 Broad Street

1828 L Street, N.W. Newark, N.J. 07102

Washington, D.C. 20036 (201) 622-6351

Of Counsel Counsel for Petitioner

THE CATILLAS PRESS, INC.-1717 K Street. N. W.—Weshington, 0. C.-223-1220

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No.

WILLIAM M. ORDNER, IR..

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner prays that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals for

the Second Circuit entered in the above case on April 18,

1977.

2

OPINION BELOW

The opinion of the Court of Appeals for the Second

Circuit, dated April 18, 1977, is not yet officially re-

ported, but is appended to this petition at p. la. The

District Court for the Southern District of New York is-

sued no opinion.

JURISDICTION

The judgment of the Court of Appeals for the Second

Circuit was made and entered on April 18, 1977, and this

petition is being filed within thirty days after entry of that

judgment. The jurisdiction of this Court is invoked under

28 U.S.C. $ 1254(1).

QUESTIONS PRESENTED

1. Whether the actions of federal agents who arbitrarily

selected a victim, enmeshed him through fear in a scenario

of criminal activity, created a crime, and perpetrated the

elements of the crime, constituted the “outrageous” con-

duct contemplated by this Court in United States v. Rus-

sell, 411 U.S. 423, 431 (1973), which triggers the defense

of entrapment as a matter of law and renders the existence

of predisposition irrelevant.

2. Whether a conviction under 18 U.S.C. 6 2 for aid-

ing and abetting the possession of unregistered firearms

can stand where both the aider and the principal could

lawfully possess the unregistered firearms.

3

STATUTE INVOLVED

18 U.S.C. 82

Principals

(a) Whoever commits an offense against the United States

or aids, abets, counsels, commands, induces or procures its

commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if

directly performed by him or another would be an offense

against the United States, is punishable as a principal.

STATEMENT

Petitioner, a :cderally licensed firearms dealer and manu-

facturer, was convicted by a jury in the Southern District

of New York on three counts of a six count indictment

alleging various violations of the Gun Control Act of 1968,

26 U.S.C. $8 5811, 5812, 5845, 5861, 5871. His convic-

tion was affirmed on appeal to the Second Circuit. His

major defense at the trial and his major issue on the ap-

peal dealt with his claim that he had been entrapped by

federal agents as a matter of law.

On appeal, the Court of Appeals for the Second Circuit

noted in its decision that:

„the extraordinary and quite bizarre factual

background has caused the reviewing court to ex-

amine the record with microscopic care in order

to properly appraise the defense of entrapment as

a matter of law.” See p. Sa, infra.

The court below has faithfully and accurately extracted,

and succinctly recorded, the facts as they relate to the is-

sue of entrapment. See pp. Sa-10a of opinion below, in

4

the Appendix hereto. In fact, the court below perceived

with great clarity the intracacies of the Government's plot

to ensnare petitioner as its victim in a crime of the Gov-

ernment’s manufacture and perpetration. Petitioner there-

fore joins in the court’s factual presentation, and directs

this Court’s attention to the opinion rather than repeating

the critical facts here.

The issue here is drawn not on question of fact, but on

the retreat of the court below into the vagaries of predis-

position. In the Second Circuit’s words, the issue was

framed thusly:

Whether or not the Government's initiation

of the crime was established as a matter of law,

we are left with the issue of Ordner’s predisposition.”

See p. 8a, infra.

The court concluded that the proof showed that petitioner

had the requisite predisposition.

Further, the court below approved the action of the

trial court in “treating” the third count of the indict-

ment, charging possession of 502 firearms, as charging

aiding and abetting in the unlawful possession” of the

502 pen guns. It then proceeded to affirm his convic-

tion on this count “as a principal” under 18 U.S.C. § 2(b).

REASONS FOR GRANTING THE WRIT

Since this Court's decision 45 years ago in Sorrells vy.

United States, 287 U.S. 435 (1932), there has been an

ongoing controversy both within the Court and among

commentators as to whether the proper standard for as-

sessing the availability of the entrapment defense is the

5

subjective test set forth in the majority opinions in Sor-

rells, supra; Sherman United States, 356 U.S. 369 (1958);

United States v. Russell, 411 U.S. 423 (1973), or the ob-

jective test urged in dissents and concurring opinions dur-

ing this period.

The majority of the Court in Sorrells favored a subjec-

tive test which examines the Government's conduct and

the defendant's predisposition to determine whether the

Government had induced the commission of the crime,

287 U.S. at 451. Three concurring Justices advocated an

“objective” test for entrapment that focuses on whether

the Government's conduct would have persuaded an ordi-

nary, law-abiding citizen, such as Ordner, to commit the

crime.

In 1958, the Court again considered the theory under-

lying the entrapment defense in Sherman. In that case,

the line of demarcation between the subjective and objec

tive tests became less distinct as Mr. Chief Justice Warren,

for the Court, held that [to determine whether entrap

ment has been established, a line must be drawn between

the trap for the unwary innocent and the trap for the

unwary criminal.” 356 U.S. at 372. The Court further

recognized that:

“Criminal activity is such that stealth and strat-

egy are necessary weapons in the arsenal of the

police officer. However, ‘A different question

is presented when the criminal design originates

with the officials of the Government, and they

implant in the mind of an innocent person the

disposition to commit the alleged offense and in-

duce its commission in order that they may pros-

cute (356 U.S. at 372).

6

In further recognition of the critical need for evalua-

tion of the Government's actions, the Court stated at page

376:

“Thus the Government plays on the weaknesses

of an innocent party and beguiles him into com-

mitting crimes which he otherwise would not

have attempted. Law enforcement does not re-

quire methods such as this.”

Justices Frankfurter, Brennan, Harlan and Douglas, in a

concurring Opinion in Sherman, strongly urged a reevalua-

tion of the majority opinion in Sorrells, a reevaluation re-

flected in the position originally espoused by Justices Rob-

erts, Brandeis and Stone, and reasoned in said concurrence:

“The courts refuse to convict an entrapped de-

fendant not because his conduct falls outside

the proscription of the statute, but because,

even if his guilt be admitted, the methods em-

ployed on behalf of the Government to bring

about conviction cannot be countenanced. .. .

“No matter what the defendant's past record

and present inclinations to criminality or the

depths to which he has sunk in the estimation

of society, certain police conduct to ensnare

him into further crime is not to be tolerated

by an advanced society.” (369 U.S. at 380,

382-383).

In United States v. Russell, the Court reaffirmed its de-

cisions in Sorrells and Sherman, and added clarification.

While stating that those decisions were not intended “to

give the federal judiciary a chancellor s foot veto over

law enforcement practices of which it did not approve,”

411 U.S. at 435, the Court also recognized that:

7

“We may some day be presented with a situa-

tion in which the conduct of law enforcement

agents is so outrageous that due process princi-

ples would absolutely bar the government from

invoking judicial processes to obtain a convic-

uon. (411 U.S. at 431-432).

Petitioner submits that the day foreseen by the Court

in Russell has arrived. The instant case is “of that breed”

(411 U.S. at 432) that the Court described as “outrageous.”

Indeed, the court below was forced to describe the fac-

tual background as “extraordinary and quite bizarre” (p.

Sa, infra) and the whole entrapment situation as a “Gov-

ernmental-staged scenario” (p. 13a, infra). Circuit Judge

Oakes’ concurrence even more severely condemned the

Government's “elaborate pretense involved in this case

as “unquestionably borderline conduct on the part of a

government that has a duty not to ‘create crime for the

sole purpose of . . . punishing it (p. 14a, infra). The

Second Circuit's opinion seems to be asking this Court

to draw the bottom line to this bizarre case and to ren-

der a definitive delineation of the governmental conduct

in terms of outrageousness and due process repercussions.

Russell holds that the defense of entrapment is rooted

im the notion that Congress could not have intended

criminal punishment for a defendant who has committed

all the elements of a proscribed offense, but was induced

to commit them by the government.” How, then, could

Congress intend criminal punishment for a defendant who

committed none of the elements of a proscribed offense

but was induced to aid and abet Government agents who

did commit them“

Petitioner further urges that the instant case factually

supplies the catalyst for the partial merger of the subjec-

tive and objective tests. By providing the “outrageous”

case envisioned by the majority in Russell, this case ren-

ders irrelevant the element of predisposition, the element

that seems to have caused the Second Circuit to hesitate

to reverse this conviction.

To permit the decision of the court below affirming the

conviction of petitioner as an aider and abettor to stand

would compel the intolerable result of sustaining a federal

criminal conviction although no offense had been commit-

ted against the United States. Such a result, unacceptable

on its face, is also in direct conflict with the concepts gov-

erning this Court's decision in Shuttlesworth v. Birmingham,

373 U.S. 262 (1963).

The court below gave credit to this Court's decision in

Shuttlesworth as standing for the proposition that there

can be no conviction for aiding and abetting someone to

do an innocent action,” but the court then lapsed into

an irrelevant discussion of guilt or innocence of principals

and intermediaries. The factual determination of guilt or

innocence of the underlying conduct is not, however, a

consideration or an issue in this case. That point of anal-

ysis need not have been reached. The court should have

examined only the question of capacity.

The court below recognized implicitly that petitioner,

as a licensed federal firearms dealer and manufacturer,

could have lawfully manufactured and possessed the un-

registered firearms, and the court specifically recognized

that “the government agents were themselves immune

from criminal responsibility.”

Since the Government agents were immune from pros-

ecution, petitioner could only be guilty of aiding and abet-

ting if the actions of the Government agents, if done by

9

petitioner, would have constituted an offense against the

United States.

However, since petitioner was a licensed dealer and man-

ufacturer, he could have legally manufactured and possessed

the firearms. Thus, neither party, neither petitioner nor

the Government agents, had the requisite capacity to com-

mit en offense against the United States, and, therefore, no

criminal activity occurred.

Of course, the holding of the court below is particularly

destructive to the proper administration of justice where,

as here, all of the acts complained of were done by the

Government and were a part of a scenario of entrapment.

However, even without the extraordinary and bizarre fac-

tual background of the instant case, it is essential that this

Court declare that it could not have the intent of Congress

in enacting 18 U.S.C. §2 to punish persons as aiders and

abettors of alleged criminal activity when neither the prin-

cip*'s nor the intermediary had the capacity to commit

the underlying offense and when no offense was commit-

ted against the United States.

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be granted.

Respectfully submitted,

CHARLES J. IRWIN

Irwin and Post

744 Broad Street

1828 L Street, N.W. Newark, NJ. 07102

Washington, D.C. 20036 (201) 6224351

Of Counsei Counsel for Petitioner

UNITED STATES COURT OF APPEALS

For tHe Seconp Cmcurr

— —

No. 592— September Term, 1976.

(Argued January 4, 1977 Decided April 18, 1977.)

Docket No. 76-1428

—~eo—

Unrrep States or AmEnica,

Plaintiff-Appellee,

—egainst—

WruuMm M. Orpwer, Jr,

Defendant-A ppellant.

Before:

Moore, Oakes and Tuts.

Circuit Judges.

——

Appeal from judgment entered in the United States Dis-

trict Court for the Southern District of New York, Ward,

Judge, following a jury verdict of conviction for the unlaw-

ful possession and transfer of firearms.

Affirmed.

James A. Moss, Assistant United States Attor-

ney (Robert B. Fiske, Jr., United States

Attorney, Audrey Strauss, Assistant United

States Attorney for the Southern District

of New York, of counsel), for Plaintif/-Ap-

pellee.

2a

Cuan.es J. Inwin, Newark, New Jersey, for De-

fendant-A ppellant.

—

Moon, Circuit Judge:

Appellant William M. Ordner, Jr., is a licensed commer-

cial blaster and firearms manufacturer. On March 2, 1976,

he was charged in a six-count indictment with various

violations of the Gun Control Act of 1968.“ At his trial

before Honorable Robert J. Ward, United States District

Judge for the Southern District of New York and a jury,

Ordner presented a defense based on entrapment and

duress. The jury convicted him on Counts One through

Three and acquitted him on Counts Five and Six.’ The

counts of the indictment on which Ordner was convicted

are, in substance “One”, unlawful possession “wilfully and

knowingly” of a firearm, namely, a .25 caliber “Pen Gun”

not bearing a required serial number; “Two” unlawful

transfer of said “Pen Gun”; and “Taree” unlawful posses-

sion of 502 .25 caliber Pen Guns” (26 U.S.C. 665842,

5845(a)(e) and (j), 5861(e) and (i) and 5871). Judge

Ward sentenced Ordner to ten-year terms on each of the

three counts, the sentences to run concurrently, subject

1 Counts One and Three charged that Ordner illegally possemed one

unserialed pen gun and 502 unserialed pen guns, respectively, in viola-

lation of 26 U.8.C. 668642, 5845, 586) and 5871. Counts Two and Four

charged that Ordner illegally transferred one unserialed pen gun and

502 unserialed pen guns, respectively, in violation of 26 U.8.C. 68811,

5812, 5845, 5861, and 5871. Count Five charged that Ordner illegally

possessed three hand grenades, in violation of 26 U.. C. §§5845, 586)

and 5871. Count Six charged that Ordner legally transferred

grenades, in violation of 26 U. C. §§5811, 5812, 5845, 5861 and 587).

2 Judge Ward dismissed Count Four at the close of the Government's

case. Although be denied appellant's motion to dismiss Count Three,

he stated that be would “hereafter treat [it] as

abetting in the unlawful possession” of the 502 pen guns.

3a

to modification after a 90-day study to be conducted pur-

suant to 42 U.S.C. §4205(c) and (d) (June, 1976 Pamph.).

Ordner appeals on the grounds, inter alia, that the facts

make out a case of entrapment as a matter of law, that it

was not illegal to “aid and abet” the non-criminal pos-

session of firearms by Government agents, and that the

jury verdict was inconsistent. We find these and appellant’s

other arguments to be without merit and hence we affirm

his conviction.

Facts

Ordner met John Romano at a gun show in Connecticut

in August, 1975. Ordner had not seen Romano for some

time and informed him that he was now a commercial

blaster. Romano told Ordner that he knew of a contractor

who might have blasting work for him.

Unbeknownst to Ordner, Romano was at this time a Gov-

ernment informer. He had been arrested by Special Agent

Joseph Kelly of the Bureau of Alcohol, Tobacco and Fire-

arms on gun violation charges and had agreed to provide

the Bureau with information in the hope that this might

ameliorate any sentence he might subsequently receive.

Romano told Kelly about his meeting with Ordner, and

Kelly then asked Romano to bring Ordner to the home of

Anthony Stagnito, a/k/a A. Michael Stagg. Stagg was a

paid informant who resided in an expensive home in Ar-

monk, New York.

Romano contacted Ordner and made arrangements for

him to meet the contractor“ whom Romano had men-

tioned at their earlier meeting. On August 25, 1975, Ro-

mano drove Ordner from Connecticut to New York. He

stopped the car at a phone booth and made a phone call.

A Cadillac with a driver named “Billy” (actually Police

Officer William Adams) arrived and the men proceeded

in that car, by a circuitous route, to Stagg’s home.

4a

Ordner and Romano entered the house and were met by

Stagg, Kelly, and another Special Agent, who were intro-

duced respectively as “Mr. 8“, “Joe Keen”, and “Mr. 8˙8

bookkeeper”. When Ordner asked about the blasting work,

“Mr. S8.“ responded that he did not need a blaster. The

facts are in dispute at this point. Agent Kelly testified that

“Mr. S“ told Ordner that the “family” was looking for

weapons to sell and that Ordner replied that he had dealt

in weapons but would have to re-establish his contacts.

Ordner testified that “Mr. S” merely declared his intention

to “make good business” with him.

Shortly thereafter, Romano died of a liver ilment. On

September 23, 1975, Ordner met Stagg, Kelly, and Adams

after the wake, and was offered Romano’s place in the

“family”. Kelly and Ordner both testified to several meet-

ings which took place over the next month, but their ver-

sions differed. Briefly, Kelly testified that Ordner said he

could supply the “family” with a large number of pen

guns, that he supplied them with a blueprint and a sample,“

that he showed them how to operate the guns, that he

helped locate a supplier of one of the component parts,

that he supplied the other part himself, and that he helped

assemble 502 pen guns from the two component parts.‘

Kelly testified further that Ordner offered on more than

one occasion to supply the “family” with other types of

Sa

guns; the Government introduced a tape recording of one

such conversation between Ordner and Kelly.“

Ordner’s version of these meetings was that he initially

refused to supply the guns in quantity but when pressed,

volunteered the names of possible suppliers. He never

“offered” to supply other types of guns, although again,

when pressed, gave information on and demonstrated other

types of guns. Ordner testified that he was “pressed” in

indirect, as well as direct, ways. “Mr. S” questioned him

about his family and cautioned him not to go to the au-

thorities. Romano’s death added to the aura of fear sur-

rounding the “family”. Ordner’s daughter told him that

unknown men had tried to get her into their car. Two

of Ordner’s friends testified to conversations they had

with Ordner during this period, in which he expressed his

fear and in which he said that he thought he had been

approached by the mob. Finally, Ordner testified that on

September 25, 1975, he tried to call the United States

Attorney but was unable to get through and did not leave

a message.

Entrapment, Corncion A&D Duress

Were it not for statements by Government counsel and

its chief witness, Special Agent Joseph F. Kelly, Bureau

of Alcohol, Tobacco and Firearms, this case might be

placed in the usual jury verdict category. However, the

extraordinary and quite bizarre factual background has

caused the reviewing court to examine the record with

microscopic care in order properly to appraise the defense

of entrapment as a matter of law.

The record does not disclose any reason for believing

that Ordner was under suspicion as a lawbreaker, actual

5 Appellant's objection to the admission of this tape recording into

evidence is without merit. The tape was clearly relevant to the issue

of appellant's predisposition.

6a

or potential. Nor is there any proof that he was under

surveillance of any kind or for any purpose. To the con-

trary, he appears to have been a family man with a wife

and children conducting his trade as a professional blaster.

The scenario which the Government writes is rather indic-

ative of attendance by its Agents at a recently popular

motion picture portraying the activities of the underworld,

headed by their chieftain.

Onto the stage first enters John Romano “an individual

Kelly] arrested for gun violation charges” and who had

“indicated he wanted to try to help us [the Government]

so that any help he could render to us would be supplied

to any sentencing Judge at the time of sentencing for his

particular crime”. The Bureau made him a “confidential

informant”. Obviously to promote his own interests, Ro-

mano had to produce (or “get”) someone and apparently

he selected his friend Ordner. The Government added to

its cast Anthony Stagnito (Stagg), a “paid informant”

who had a large (7 bedrooms, $200,000-$300,000 estimated

value) house in Armonk (Westchester County), New York;

Police Officer William Adams of the Town of North Castle;

Special Agent Kenneth Waxman of the Bureau and other

Agents who entered upon the stage at a later date.

Kelly, to carry out his part, assumed the name of “Joe

Keen”, Police Officer Adams became “Billy”, Agent Wax-

man pretended to be Stagg’s bookkeeper, even to the point

of carrying an account ledger as a stage prop, and Stagg

himself appeared in the style of the motion picture chief-

tain “Mr. 8“. As Government counsel best describes the

situation in his summation:

“the ruse, if you will, that was set up, was carried off

in grand style. There is no denying that. And when

Mr. Ordner arrived, the Government’s agents were

playing the role to the hilt to convince him [Ordner]

7a

that they could be trusted in a criminal enterprise,

that they were the real thing [namely, members of a

‘family’ or mob'].“

The conversation, in part, was “about the possibility that

Mr. Ordner might supply Mr. Stagg’s organization with

explosives and firearms”. (App. 607, 608).

The “ruse” was even carried further. When Romano

suddenly died, Stagg revealed to Ordner that it was Ro-

mano’s “dying wish” that Ordner succeed him as a member

of the “family”—a wish that Stagg emphasized by kissing

Ordner on both cheeks. And to take care of every detail

of the deception, even the pseudo-butler serving the group

was a Special Agent, as was another Agent stationed up-

stairs.

The thespian talents of this Kelly-directed task force

was eminently successful. To them it was “a kind of an

act” and “the purpose of the act was to convince Mr.

Ordner that Mr. Stagg was a big man in organized crime”

(App. 197), and the “objective” was “[t]o get Mr. Ordner

to supply him [Stagg] with some kind of firearm” (App.

198). Kelly, himself, said that he thought that Ordner’s

reaction could be taken to “indicate that he might believe

we were part of organized crime... . (App. 199).

But entrapment as a matter of law is not so easily dis-

posed of. *

Even assuming that Romano, to stay in the Govern-

ment’s good graces, had to find a “victim” and that he re-

ported to the Agents that he had found a possibility for

them to ensnare, entrapment is a term of legal art and as

a matter of law is not established, if, despite the entice-

ment, the potential defendant shows himself ready, and

willing to commit the crime. United States v. Sherman,

200 F.2d 880, 882-883 (2d Cir. 1952); United States v.

Licursi, 525 F.2d 1164, 1168 (2d Cir. 1975); United States

v. Viviano, 437 F.2d 295, 298 (2d Cir.), cert. denied, 402

U.S. 983 (1971) ; United States v. Weiser, 428 F. 2d 932, 934

(2d Cir. 1969), cert. denied, 402 U.S. 949 (1971); United

States v. Riley, 363 F.2d 955 (2d Cir. 1966). Therefore,

whether or not the Government’s initiation of the crime

was established as a matter of law, we are left with the

issue of Ordner’s predisposition. The testimony of Ordner

and Kelly conflicted on this crucial issue and the jury was

entitled to believe Kelly’s version of the facts.

Kelly testified that Ordner told him that he had been

engaged in similar activities in the past, and that Ordner

offered without hesitation to supply him with pen guns and

other firearms. The jury could conclude that Ordner was

a willing and indispensable party in every step of the “pen

gun” operation. Ordner brought the blueprint and the

original prototype. He suggested the sources from which

to obtain the component parts of the pen guns and con-

ducted most of the negotiations as to the purchase of these

parts. Ordner then directed and assisted in the assembly

of the five hundred pen guns, ten of which he personally

fired.

The jury was not limited to Kelly’s testimony in draw-

ing the above conclusions. It listened to a tape on which

Ordner unhesitatingly assisted in ironing out the plans for

obtaining the pen guns and then negotiated the purchase

of the flare components from a su, lier of boating goods.

The jury heard Ordner, on tape, mislead the supplier into

thinking that Ordner was purchasing the flares for his boat

store. The jury heard Ordner recommend to Kelly that

he purchase the supplier’s entire stock of flares:

“If he doesn’t have anything to offer anymore, then

nobody can go to him and say ‘Well, geez, ah, you got,

where do you get your ‘pen guns?’ and say, ‘Oh,

9a

Johnny Jones bought them all from me.’ Out-of-sight,

out-of-mind.” (Gov't. Ex. 6, p. 64)

To allay Kelly’s hesitation at purchasing more than the

five hundred flares needed for the pen guns, Ordner added:

“They make a bell of a fire, you know. They burn at

2500 degrees.” (Gov't. Ex. 6, p. 64)

The jury was clearly entitled to find Ordner's actions

a “ready response to the inducement”, and hence proof of

his predisposition. See United States v. Viviano, 437 F.2d

at 299. The jury's rejection of the entrapment defense can-

not be overturned on appeal. In a recent Seventh Circuit

case, the Court stated:

“Entrapment is established as a matter of law only

when the absence of predisposition appears from un-

contradicted evidence. In the case at bar the evidence

bearing on the issue of predisposition was in conflict,

and that issue was therefore properly submitted to

the jury. The evidence from which the jury could

properly have found predisposition included defen-

dant’s ready response to the solicitation... The de-

fense of entrapment was properly submitted to the

jury, and the jury was justified in rejecting the de-

fense.” United States v. Spain, 536 F.2d 170, 173-74

(7th Cir. 1976), petition for cert. filed, 44 U.S.L.W.

3749 (U.S. June 2°. 1976).

Illegal possession and transfer are conceded. The only

remaining questions of whether Ordner acted wilfully and

knowingly or was entrapped, coerced or subjected to duress

were for the jury. The court’s charge on these subjects

was exceedingly explicit and fair to both parties. The ele-

ments on each side of the “line [which] must be drawn

between the entrapment of the unwary innocent and the

10a

trap for the unwary criminal” (App. 667) could not have

been more clearly set forth. The same clarity is found in

evidence to support it—shows that they found that Ordner

knew what he was doing and that they rejected his co-

ercion and duress claims. Absent these factors, predisposi-

tion remains as to which there was more than sufficient

probative testimony.

Amino 4 Asettine Possession

By Government Acents

Ordner’s argument that his conviction on Count Three

should be overturned on the ground that it is not illegal

to aid and abet the non-criminal possession of firearms by

Government agents is similarly unavailing. Ordner con-

tends that since it is not illegal for a Government agent

to possess an unserialed firearm obtained while collecting

evidence against an accused, it cannot de illegal for the

accused to “cause” that possession. This contention flies

directly in the face of 18 U.S.C. §2(b), which provides:

“Whoever wilfully causes an act to be done which

if directly performed by him or another would be an

offense against the United States, is punishable as a

principal.” (Emphasis added).

Ordner appears to have confused this subsection with

18 U.S.C. §2(a), which punishes as a principal one who

aids or abets the commission of an offense.‘ By its very

terms, that subsection requires the commission of an of-

6 1% UBC. §8(a) provide:

Jodge Ward incorporated both subsections of 18 UBC. §2 in bis charge:

fense, and lilt is generally recognized that there can be

no conviction for aiding and abetting someone to do an

innocent act.” Shuttlesworth v. Birmingham, 373 U.S. 262,

265 (1963).

It is equally well recognized that the guilt or innocence

of the intermediary under a §2(b) charge is irrelevant.

United States v. Rapoport, Dkt. No. 76-1291, slip op. 423,

430 (2d Cir. November 4, 1976); United States v. Kelner,

534 F.2d 1020, 1022-23 (2d Cir. 1976); United States v.

Kelley, 393 F.2d 727, 729 (2d Cir.), cert. denied, 393 U.S.

963 (1968). In United States v. Kelner, supra, we held the

defendant liable as a principal for causing the transmis-

sion in interstate commerce of threatening words in his

television press conference, even though the intermediary

television station, which actually transmitted the commu-

nication, was arguably protected by the First Amendment,

and hence innocent of any offense. We stated that [lil

is clear enough that a person may be held responsible as

a principal under 18 U.S.C. §2(b) . . for causing another

to do an act which would not have been criminal if it had

beer performed independently by that otber person.” 534

F.2d at 1022. Thus in the instant case, Ordner is respon-

sible as a principal for causing the possession of unserialed

firearms by Government agents, regardless of the fact that

the Government agents were themselves immune from crim-

inal responsibility.

Consistency or THe Vier

Ordner’s argument that the jury verdict—guilty on

Counts One, Two and Three and not guilty on Counts Five

and Six—was legally inconsistent is wholly without merit.

“You may Ged Mr. Ordser guilty of count 3 if you Gnd that is

fact these pen cuns were posseme! without proper ceria) sumbers,

l2a

It has long been the rule that jury verdicts need not be con-

sistent. Hamling v. United States, 418 U.S. 87, 101 (1974);

Dunn v. United States, 284 U.S. 390 (1932); United States

v. Zane, 495 F.2d 683, 690 (2d Cir.), cert. denied, 419 U.S.

895 (1974). In any event, the verdict as to Mr. Ordner

does not appear unreasonable. The jury could have found

that Ordner responded readily to the “pen gun” plan but

showed far more hesitation when it came to the hand

grenades. Moreover, the entrapment defense was not the

only issue before the jury. Ordner also raised the defense

of duress, and one of the bases for his claim of duress

was the attempted abduction of his daughter, which took

place after the events alleged in Counts One, Two and

Three, but before those alleged in Counts Five and Six.

Thus, Ordner’s inconsistency argument is both factually

and legally insufficient and this Court will not set aside

the verdict on this ground.

Conclusion

Although generally any consideration of the sentence is

not within the scope of appellate review (nor is it here),

almost fifty pages of the record are devoted to the trial

judge’s consideration of the question. For all practical

purposes as yet there has been no final sentence. The highly

commendable care and consideration given to this difficult

problem is evidenced by Judge Ward’s remarks during the

proceeding :

“Mr. Ordner has no previous criminal record and

the Court takes this into account. However, the

charges here are serious and the defendant, right up

until today, has indicated a total lack of contrition,

stating to the Court earlier that he is not guilty;

although he considers himself a victim, he has so ad-

vised the Court.

132

“The Court is puzzled regarding the defendant. He

has two years of college, is married and has a stable

family relationship as far as the Court can determine.

I know that he sustained injuries in an earlier stage in

his life, unfortunately losing one hand and one eye.

Because the Court is at this point not as informed of

what makes this defendant work as I would like to be,

I have decided on a sentence which will give me fur-

ther information regarding the defendant so that I can

ultimately impose a sentence which is appropriate in

this case.” (Transcript at 752-53.) (Emphasis added.)

He concluded with the comment that, pursuant to 18 U.S.C.

54205 (e):

“Basically, what I have done is I have sentenced

the defendant to the maximum provided by law with

a provision for a study in contemplation of his return

before me after three months or an extended period

as provided by law, so that I may then resentence him,

if it is deemed appropriate, consistent with the study

and the report which I received. I want that very

clear. That is what I am doing.” Transcript at 758.

Thus the final chapter of this Governmental-staged sce-

nario has not yet been written. The record upon which the

verdict is based reveals that Ordner had a fair and error-

free trial. The resulting verdict must be affirmed.

——

Oaxes, Circuit Judge (concurring) :

— & Sp Seay Ses ee While

1H

iH

111

HI

;

proving predisposition beyond a reasonable doubt. See

United States v. Rosner, 485 F.2d 1213, 1221-22 (2d Cir.

14a

1973), cert. denied, 417 U.S. 950 (1974); United States v.

Weiser, 428 F.2d 932, 934-35 (2d Cir. 1969), cert. denied,

402 U.S. 949 (1971); United States v. Riley, 363 F.2d 955,

957-58 (2d Cir. 1966); United States v. Sherman, 200 F.2d

880, 882-83 (2d Cir. 1952) (L. Hand, J.). As I have said,

“there is no magic formula” for evaluating “predisposi-

tion.” United States v. Ortiz, 496 F.2d 705, 708 (2d Cir.

1974) (dissenting opinion). But the elaborate pretense

involved in this case, however clever in conception and suc-

cessful in operation /see also United States v. Michaelson,

No. 76-1559, slip op. 2615, 2619-20 (2d Cir. March 31, 1977),

is unquestionably borderline conduct on the part of a gov-

ernment that has a duty not to “create crime for the sole

purpose of .. . punishing it,” Butts v. United States, 273

F. 35, 38 (8th Cir. 1921), quoted in Sorrells v. United

States, 287 U.S. 435, 444 (1932) (Hughes, C./.).