# Petition — Ordner v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1860%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 824 ## Text 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./.). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1860%3A1. Public record. Not legal advice.