Petition — Donoho v. United States

77-6910

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

BENSON JOSEPH DONOHO, PETITIONER

-V=

UNITED STATES OF AMERICA

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Petitioner, Benson Joseph Donoho, pursuant to Rule

53, Supreme Court Rules, and Title 18 U.S.C. §3006A(d) (6),

respectfully moves this Honorable Court for leave to file the

attached Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit without prepayment of

costs and to pro d in forma pauperis. Counsel undersigned

was appo ێa by the United States District Court for the

District of Arizona to represent the petitioner for purposes

of appeal to the United States Court of Appeals for the Ninth

Circuit.

Respectfully submitted: June 8, 1978.

Lea ues Lt) Ofooll

THOMAS W. O'TOOLE > ‘

Federal Public Defender

District of Arizona

U.S. Court House

230 North First Avenue

Phoenix, Arizona 85025

Telephone: 602-261-3561

Attorney for Petitioner

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

BENSON JOSEPH DONOHO, PETITIONER

-V-

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BENSON JOSEPH DONOHO

Petitioner

Opinions

Jurisdict

Question

Below . . . - . . .- . . . . . - . . . . .

ion *. . . . . . - . . . . . . . . . . . .

Presentea. for Review «ss « « « & + + * *%

Constitutional Provisions Involved . .....e«.-.

Statement of the Case:

A. District Court Proceedings .... .

Bm. statement OF Peece «2 « « p63) 2 8

Reasons for Granting the Writ:

THE FIFTH AND SIXTH AMENDMENTS TO THE

CONSTITUTION OF THE UNITED STATES AND

RULE 405(b), FEDERAL RULES OF EVIDENCE,

REQUIRE ADMISSION BY THE DEFENSE OF

CHARACTER TESTIMONY RELATING TO SPECIFIC

INSTANCES OF CONDUCT WHERE ENTRAPMENT IS

RAISED AS A DEFENSE .. + «© « «© © «© © «

Conclusion . . . . * . . . . . . . . . . . . . . .

Sees e Et Gerwaee «6 2s 4 8 8 we be 8 ee

Appendix

I - Opinion dated May 12, 1978 .... -

Accardi v. United States,

257 F.2a 168 (5th Cir., 1958), cert. denied,

358 U.S.

RM aos oe a a eae pk ws ee

Carlton v. United States,

198 F.2d 795 (9th Cir., 1952) .. -. « «© «© © «© « «

Chambers v. Mississippi,

Sa se Bee SABUE -.e 6 = ef ele 8s ew ee el et

Frase v. Henry,

444 F.2d 1228 (10th Cir., 1977) «© «© «© © «© «© «

Pulido v. United States,

425 F.2d 1391 (9th Lens. 1970) . . . . . . . . . .

Sherman v. United States,

‘356 U.S.

Sorrells

UeS-

- Sel | a a a a

v. United States,

United States v. Ambrose,

483 F.2d

ae Tee Geese Seas 2 6 ee et ew 60

United States v. Demma,

Das Woae gen. (een Cake, 1975) «© we ew we we we ee eo

United States v. Glassel,

488 F.2d 143 (Sth Cir., 1973), cert. denied,

416 U.S.

941 (1974) . . . . . . . . . . . . . . .

9,

Page

‘9

13

14

15

ll

10

12

ll

10

1l

ll

10

10

Pace

g IN THE SUPREME COURT OF THE UNITED STATES

United States v. Hermosillo-Nanez, eee dead

F. th Cir., , cert. denied, OCTOBER TERM, 1978

429 UsBs 1050 (1977) * * * . * * * . * * * *. * a * . * 10

NO.

United States v. Melchor-Moreno,

536 F.2d 1042 (5th Cir. , 1976) * * . . * * .* * * . * * 13

BENSON JOSEPH DONOHO, PETITIONER

United States v. Reynoso-Ulloa,

cn en ee Ss SSPE 5 » 5 8 66 «ete #88 ll —

United States v. Russell, UNITED STATES OF AMERICA

Sa eee ee AeOGes 6 6 6 6 8 8 we ee 8 low 8 9

Washington v. Texas,

365-0 eit (1567) U.S. 67 Ln OE Ee SR ea an ie 12 PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

Whiting v. United States,

ow oe Bie Shee Cis, LDOOAP oe se we 6 @ ee ee 40, 21

APPEALS FOR THE NINTH CIRCUIT

STATUTE S

Title 18, U.S.C. §2 . . . . . - . . . . . . . . . . . 6, 7

Petitioner, Benson Joseph Donoho requests that a writ

ny eal a I a hl a I le ll - of certiorari issue to review the May 12,1978, opinion of the

Title 26, U.S.C. §5861(d)(i)(e) - +--+ ss seers OF 7 United States Court of Appeals for the Ninth Circuit, San

Title 26, U.S.C. §5871 - . - 2-22 eee eee ess OT Francisco, California (Docket #77-1999), affirming the judgment

eee re ee meneenet 8 Fe See we eS : of conviction of the petitioner by the United States District

AMENDMENTS Court for the District of Arizona, Phoenix, Arizona.

Fifth Amendment,

Constitution of the United States ....-. - 6, 9, 12, 13 OPINIONS BELOW

Sixth Amendment,

Constitution of the United States ....-. - &, 9, 223 33

. Appeals for the Ninth Circuit, No. 77-1999, May 12, 1978, is

A copy of the opinion of the United States Court of

RULES attached and hereinafter referred to as Appendix I.

Rule 404(b), Federal Rules of Evidence ...+.+ ++ + ll

Rule 405(b), Federal Rules of Evidence... . 6, 3. 10, 133 JURISDICTION

sop ee teh Mc Sa ti ta a . On May 12, 1978, the United States Court of Appeals

2 .* . * * * * . * * * 4 .

ae annen hen 6 ever eee COMES Babee > for the Ninth Circuit in cause number 77-1999, affirmed the

Rule 53, Supreme Court Rules . . . +. + + + + © © © # & 1

petitioner's judgment of conviction by the United States District

Court for the District of Arizona, Phoenix, Arizona.

The petitioner submits that Title 28, United States

Code, §1254(1) confers jurisdiction on this Court. Jurisdiction

ll

Y

is further based on Rule 19(1)(b), Supreme Court Rules, because

the United States Court of Appeals for the Ninth Circuit has:

"(1) ... decided a federal

question in a way in conflict with

applicable decisions of this Court ...

(and)

(2) ... rendered a decision in

conflict with another Court of Appeals

on the same matter; ..."

QUESTION PRESENTED FOR REVIEW

WHETHER THE FIFTH AND SIXTH AMENDMENTS TO

THE CONSTITUTION OF THE UNITED STATES AND

RULE 405(b), FEDERAL RULES OF EVIDENCE,

REQUIRE ADMISSION BY THE DEFENSE OF CHARACTER

TESTIMONY RELATING TO SPECIFIC INSTANCES OF

CONDUCT WHERE ENTRAPMENT IS RAISED AS A

DEFENSE.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United

States provides, in pertinent part, that:

"No person shall ... be deprived

of life, liberty, or property without

due process of law;...”

The Sixth Amendment to the Constitution of the United

States provides, in pertinent part, that:

"In all criminal prosecutions,

the accused shall enjoy the right ...

to have compulsory process for obtaining

witnesses in his favor ...”

STATEMENT OF THE CASE

[Clerk's Record on Appeal will be referred to as "C.R.*3

Reporter's Transcript of Proceedings will be referred to

as “R.T.")

A. District Court Proceedings:

On February 22-25, 28, 1977, in the United States

District Court for the District of Arizona, the Honorable Leo

Brewster, Sitting by Designation, presiding, the petitioner

was convicted following a jury trial of Counts IV, V and VI of

an indictment charging him with a violation of Title 26 U.S.C.

§5861(d) and §5871, and Title 18 U.S.C. §2, Possession of an

Unregistered Firearm and Aiding and Abetting; and Title 28

U.S.C. §5861(i) and §5871, and Title 18 U.S.C. §2, Possession

Y)

of an Unserialized Firearm and Aiding and Abetting; and Title

26 U.S.C. §5861(e) and §5871, Transfer of a Firearm Without

Filing a Written Application. (Indictment, C.R. 10-12; Verdicts,

C.R. 169) On motion of the government, Counts I, II and III of

the indictment were dismissed prior to trial. (C.R. 75-76)

On March 28, 1977, the petitioner was adjudged guilty

as charged and committed to the custody of the ,Attorney General

for a period of two years on each count, to run concurrently.

The execution of sentence was suspended and the petitioner was

placed on probation for a period of two years from the date of

judgment. (C.R. 179)

On April 5, 1977, the petitioner filed his Notice

of Appeal to the United States Court of Appeals for the Ninth

Circuit. (C.R. 180; Order Appointing Federal Public Defender

as counsel on appeal, C.R. 187)

On May 12, 1978, the United States Court of Appeals

for the Ninth Circuit affirmed the petitioner's conviction in

an opinion attached hereto as Appendix I.

A Petition for Rehearing has been filed and is pending

before the United States Court of Appeals for the Ninth Circuit.

B. Statement of Facts:

The petitioner proceeded to trial on Counts IV, V

and VI of the indictment, which counts alleged that the peti-

tioner unlawfully possessed and transferred a .22 Caliber Maxim

silencer in violation of Title 26 U.S.C. §5861(d) (i) (e), §5871

and Title 18 U.S.C. §2. Each count involved the same .22 Caliber

Maxim silencer.

At the conclusion of the government's case, which

consisted of testimony from Edward J. Vercelli, a government in-

former and Daniel Ryan and Robert Scroggie, two special agents

for the Bureau of Alcohol, Tobacco and Firearms (A.T.F.), the

petitioner took the stand and presented an entrapment defense.

The defendant called four witnesses who testified or

would have testified as to the following specific acts of con-

duct evisencing the petitioner's lack of predisposition to

7

violate firearm laws:

(1) As reflected in the offer of proof at

R.T. III/222, the petitioner attempted to call Bob Short, a

local law enforcement officer. Mr. Short would have testified

that in September, 1975, two months prior to the petitioner's

alleged gun violations, the petitioner voluntarily informed

local law enforcement officers that an individual had attempted

to sell him a truckload of weapons. The petitioner supplied

the officers with information as to the serial numbers and types

of weapons. Mr. Short determined that one such weapon was

stolen. On October 29, 1975, the petitioner supplied Officer

Short with information concerning a military machine gun smug-

gling ring out of Luke Air Force Base. Short turned this infor-

mation over to the Bureau of Alcohol, Tobacco and Firearms for

further investigation.

(2) The defense attempted to call Harry Koch,

a detective for the Maricopa County Sheriff's Office. Koch

would have testified that in 1975 he purchased weapons from a

pawn shop in Phoenix, Arizona, where the petitioner had been

employed on several occasions. Koch requested permission to step

outside of the store to view the guns in the light. The peti-

tioner, in compliance with federal regulations, always required

Koch to sign a release form and purchase the weapon before

leaving the store with the weapon. (R.T. III/219-221)

(3) The defense attempted to call John Adams,

a special agent with the United States Customs Service, who

would have testified that in July, 1974, the petitioner assisted

him in the investigation of two neutrality violators who had

illegally exported firearms purchased at the petitioner's pawn

shop. (R.T. III/180)

(4) The defense attempted to call John Gannoway,

a salesman at Arizona Shooters Supply. He would have testified

that in 1975 he and the petitioner often discussed the possi-

bility of obtaining automatic weapons -- potentially illegal

weapons if not registered. The petitioner always stated that

said weapons would be lawfully purchased and possessed.

ue

The petitioner contended that the above-mentioned

specific acts of conduct were admissible under Rule 405(b),

Federal Rules of Evidence, as evidence of the petitioner's lack

of predisposition to violate the gun laws. (R.T. III/219-229)

The District Court ruled that specific instances of

conduct reflecting the petitioner's lack of predisposition are

inadmissible even where entrapment is alleged as the defense.

(R.T. III/198)

In affirming the District Court, the Court of Appeals

reasoned:

"If character or a trait of character

is an essential element of the defense of

entrapment, then the District Court should

have admitted relevant testimony of specific

instances of conduct [pursuant to Rule 405(b)]."

(P. 2 of Appendix I)

However, the appellate court held:

"But character or a character trait is

not an essential element of the entrapment

defense. That defense has two elements -- a

government official must have induced the

defendant to commit the crime; and the defen-

dant must not have been predisposed to commit

the crime ... Neither element concerns charac-

ter or a character trait." (Pp. 2-3 of Appendix

I) (Emphasis added)

REASONS FOR GRANTING THE WRIT

THE FIFTH AND SIXTH AMENDMENTS TO THE

CONSTITUTION OF THE UNITED STATES AND

RULE 405(b), FEDERAL RULES OF EVIDENCE,

REQUIRE ADMISSION BY THE DEFENSE OF

CHARACTER TESTIMONY RELATING TO SPECIFIC

INSTANCES OF CONDUCT WHERE ENTRAPMENT IS

RAISED AS A DEFENSE.

At trial the petitioner raised the defense of entrap-

ment. Specifically, the petitioner contended that a government

undercover agent and his informer induced the petitioner into

committing the alleged firearms offenses.

The Supreme Court has dealt with the defense of

entrapment in three leading cases, each of which indicates that

the crucial element of the defense is the accused's predisposition

o

to commit the crime. Sorrells v. United States, 257 U.S. 435

(1932); Sherman v. United States, 356 U.S. 369 (1958); United

States v. Russell, 411 U.S. 423 (1973).

4

The courts have also held that entrapment is an af-

firmative defense. The defendant must come forward with evidence

of his non-predisposition and government inducement. United

States v. Demma, 523 F.2d 981, 985 (9th Cir., 1975); United

States v. Hermosillo-Nanez, 545 F.2d 1230 (9th Cir., 1976), cert.

denied, 429 U.S. 1050 (1977). Once the entrapment defense is

put in issue, the government has the burden of establishing

beyond a reasonable doubt that entrapment did not exist, i.e.,

the accused was predisposed to commit the violation. United

States v. Glassel, 488 F.2d 143, 146 (9th Cir., 1973), cert.

denied, 416 U.S. 941 (1974).

It is well settled law that once a defendant raises

the issue of entrapment the prosecution may meet its burden of

showing predisposition through inquiry into prior similar acts

or convictions by the defendant. United States v. Ambrose, 483

F.2d 742 (6th Cir., 1973); Pulido v. United States, 425 F.2d

1391 (9th Cir., 1970); Whiting v. United States, 296 F.2d 512

(lst Cir., 1961). Prosecutors may also rely upon previous re-

lated misdemeanor or felony offenses for which the accused had

neither been convicted nor arrested as evidence of predisposition.

€

Carlton v. United States, 198 F.2d 795 (9th Cir., 1952).

This case raises the question of what type of evi-

dence the defense may proffer to meet its initial burden in an

entrapment defense by showing a lack of predisposition to commit

the alleged offense. The District Court and Court of Appeals

limited such proof to general opinion or reputation testimony

concerning the petitioner's lack of predisposition to violate

gun laws. Both courts specifically held that relevant testimony

of specific instances of conduct were inadmissible to meet the

initial showing of non-predisposition. (District Court -- R.T.

III/181-182, 188, 198, 221; Court of Appeals -- Opinion, Appendix

I, pp. 2-3) Rule 405(b), Federal Rules of Evidence, provides:

"(b) In cases in which character or

a trait of character of a person is an

essential element of a ... defense, proof

may also be made of specific instances of

his conduct."

-10=

One's character or predisposition to act in a certain

way under specific circumstances is an essential element to the

defense of entrapment. As defined in Frase v. Henry, 444 F.2d

1228 (10th Cir., 1977):

"'Character' is a generalized

description of one's disposition in

respect to a general trait such as

honesty, temperance or carefulness ...

[It] designates a particular kind of

situation with a certain type of con-

duct ..." Id. 1232 (Emphasis added)

At least three circuits have held that “character” is

an essential element to the defense of entrapment. The Fifth

Circuit in Accardi v. United States, 257 F.2d 168 (5th Cir.,

1958), cert. denied, 358 U.S. $83 (1958), in applying the ra-

tionale of Sorrells v. United States, supra, and Sherman v.

United States, supra, held:

"To determine whether entrapment

has been established a line must be

drawn between the trap for the unwary

innocent and the trap for the unwary

criminal. This rationale throws the

main emphasis on the 'predisposition'

of the accused to commit the crime.

We take it that 'predisposition' means

something more than ‘disposition’ and

is intended to refer to the character

and intentions 1/7 of the accused as an

Yunwary innocent’ ..." Id. 171

(Emphasis added)

The First Circuit in Whiting v. United States, 296

F.2d 512, 517 (lst Cir., 1961), has held that predisposition

is a term which embraces both the character and intention of

the defendant and can be proved through general reputation

testimony or relevant prior conduct.

Finally, in an earlier discussion not cited in this

case, the Ninth Circuit in United States v. Reynoso-Ulloa,

548 F.2d 1329 (9th Cir., 1977), recognized that the term pre-

disposition as applied in entrapment defenses signifies a trait

es Predisposition as embodied in an entrapment defense in-

a cludes the defendant's intent at the time of the commission

of the act. Rule 404(b), Federal Rules of Evidence,

sanctions the use of evidence of other acts to prove the

intent of the accused. Therefore, alternatively, under

Rule 404(b) the petitioner was entitled to offer the

above-mentioned testimony concerning his similar prior

acts to prove that he lacked the intent or predisposition

to violate the gun laws.

Il

of the accused's character:

"Sorrells and Sherman reveal a

number of factors which must be con-

sidered in determining whether the

defendant was a person ‘otherwise

innocent' in whom the Government im-

planted the criminal design. Among

these are the character or reputation

of the defendant, including any prior

criminal record ..." Id. 1336

(Emphasis added) Fie?

As character is an essential element to the defense of

entrapment, the Court of Appeals and District Court erred under

Rule 405(b) in holding inadmissible the relevant testimony of

specific instances of conduct concerning the petitioner's lack

of predisposition to violate the gun laws. 2/ In so holding,

the petitioner's rights to due process and a fair trial as em-

bodied in the Fifth and Sixth Amendments to the Constitution of

the United States were violated.

In Washington v. Texas, 388 U.S. 14, 19 (1967), this

Court held:

"The right to offer the testi-

mony of witnesses, and to compel

their attendance, if necessary, is

in plain terms the right to present

a defense, the right to present the

defendant's version of the facts as

well as the prosecution's to the

jury so that it may decide where the

truth lies. Just as an accused has:*

the right to confront the prosecution's

witnesses for the purpose of challenging

their testimony, he has the right to

present his own witnesses to establish

a defense. This right is a fundamental

right of due process of law. 3/

2/ As discussed above, the prior acts which the petitioner

attempted to have admitted into evidence were specifically

limited to transactions involving firearms or law enforce-

ment assistance in firéarm investigations. All of the

prior acts occurred within the same locale of Phoenix,

Arizona, and within one year of the commission of the of-

fenses alleged in the indictment.

3/ In Chambers v. Mississippi, 410 U.S. 284, 302 (1973), this

Court held that “few rights are more fundamental than that

of an accused to present witnesses in his own behalf”.

| o

In United States v. Melchor-Moreno, 536 F.2d 1042,

1046 (5th Cir., 1976), the Court stated:

"Despite the limitations of its

wording, the [Sixth] Amendment is held

to embrace not only the right to bring

witnesses to the courtroom, but also,

in appropriate circumstances, the

right to put them on the stand. As the

Court in Washington said, '[t]he framers

of the constitution did not intend to

commit the futile act of giving to a

defendant the right to secure the atten-

dance of witnesses whose testimony he had

no right to use’'.”

CONCLUSION

The decision of the United States Court of Appeals

for the Ninth Circuit prohibiting testimony of prior similar

acts where entrapment is raised as a defense violated the peti-

tioner's Fifth Amendment right to due process and Sixth Amendment

right to a fair trial as well as Rule 405(b), Federal Rules of

Evidence. In addition, the appellate court's decision conflicts

with decisions of this Court, the First and Fifth Circuits and

a prior decision of the Ninth Circuit. For the foregoing reasons,

the petitioner respectfully requests that this Court grant his

petition and issue a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit and to thereafter reverse

his conviction and order a new trial.

Respectfully submitted: June 8, 1978.

A vousas |) sfoel

THOMAS W. O'TOOLE

Federal Public Defender

District of Arizona

U.S. Court House

230 North First Avenue

Phoenix, Arizona 85025

Telephone: 602-261-3561

Attorney for Petitioner

Le

FILED

IN THE SUPREME COURT OF THE UNITED STATES MAY 191979

OCTOBER TERM, 1978

: 1 UNITED STATES COURT OF APPEALSEMIL E MELFI, J2,

oe | CLERK, U.S, COURT OF APPEALS

9 FOR THE NINTH CIRCUIT

BENSON JOSEPH DONOHO, PETITIONER

oe

-V- i

| 4 UNITED STATES OF AMERICA, )

UNITED STATES OF AMERICA ; }

b) | Appellee, ) No. 77-1999

)

6 vs. )

AFFIDAVIT OF SERVICE ; . ) OPINION

7 } BENSON JOSEPH DONOHO, ) :

)

8 Appellant. )

THOMAS W. O'TOOLE, Federal Public Defender, being )

9 i

first duly sworn, upon his oath, deposes and says: i

10 i Appeal from the United States District Court

That in accordance with Rule 33(2) (a), Supreme Court

11 | for the District of Arizona

Rules, he has served one copy of the following documents on |

: 5 Ph : 12 Before: BARNES and CHOY, Circuit Judges, and LYDICK,*

the United States Attorney for the District of Arizona, oenix, District Judge

13

Arizona 85025; and has forwarded by mail, two copies of the

14 PER CURIAM:

|

H

same to the Solicitor General, Department of Justice, Washington,

'

|

15 Appellant was convicted of Counts Four, Five and

D.C. 20530, on this the 8th day of June, 1978:

, 16 Six of a six-count indictment. I I ,

(1) Motion for Leave to Proceed in Forma | . = a cea B COUnE Our, ‘Re was charges

Pauperis; 17 ' with violation of 26 U.S.C. §5861(d) (possession of unregis-

2) Petition for Writ of Certiorari to : ; ’ ;

the Supreme Court of the United States; 18 ; tered firearm); in Count Five with violation of 26 U.S.C.

; , : |

(3) Affidavit of Service. 19 | §5861(i) (possession of an unserialized firearm); and in

Ship | W OSeel} 20 . Count Six with violation of 26 U.S.C. §586l(e) (transfer of

THOMAS W. O'TOOLE rae ; , ee

Federal Public Defender 21 firearm without written application). In each count, 26

i i izona

District of Ar 22 i U.S.C. §5871 was charged to establish the penalty for the

1

, :

SUBSCRIBED AND SWORN to before me this 8th day 23 | crimes, and 18 U.S.C. §2 was also added to Counts Four and

24 | Five to charge the aiding and abetting of the alleged crime.

of June, 1978, by Thomas W. O'Toole.

> g ’ 25 | During the course of the trial, the Court dismissed the first

OritrLe— MU, Urrrdsbio a 4

Notary Public 4) \, three counts of the indictment and renumbered the last three

My Commission Expires: June 14, 1981. 27 as Counts One, Two and Three. All counts related to the

26 ! possession or transfer of a .22 caliber Maxim silencer on

20 | November 17, 1975.

30 | This Court has jurisdiction of this appeal under

31 Ps eee hei ie

39 : *The Honorable Lawrence T. Lydickx, United States District

Judge, Central District of Caulifuornia, sitting by designation.

{ -/5- APhendix L

a ee |

-15-

————

1$-23-53-fo™Ml--s20 0”

28 U.S.C. §1291.

Appellant presents three issues for our review:

1. Did the District Court err in excluding char-

acter testimony relating to specific instances of appellant's

conduct?

2. Did the District Court err in denying defen-

dant's motion for judgment of acquittal based on the "pro-

curing agent” theory? and

3. Did the District Court err in allowing the

Government to impeach the defendant by proof of a prior

misdemeanor theft conviction?

I

CHARACTER EVIDENCE

The defense attempted to establish defendant's

character by introducing testimony of specific instances of

conduct which would have reflected favorably on appellant.

The trial court ruled such testimony inadmissible. Whether

that decision was correct depends upon the application of

FED. R. EVID. 405(b) to the facts of this case.

Rule 405(b) provides that "[iJn cases in which

character or a trait of character of a person is an essential

element of a charge, claim, or defense, proof may . . . be

made of specific instances of conduct." At trial appellant

raised the defense of entrapment. If character or a trait

of character is an essential element of the defense of en-

trapment, then the District Court should have admitted

relevant testimony of specific instances of conduct.

But character or a ‘character trait is not an

essential element of the entrapment defense. That defense

has two elements: a government official must have induced

the defendant to commit the crime; and the defendant must

=J-

a Oo

not have been predisposed to commit the crime. Hampton v.

United States, 425 U.S. 484 (1976); United States v. Russell,

411 U.S. 423 (1973); Sherman v. United States, 356 U.S. 369

(1958); Sorrells v. United States, 287 U.S. 435 C2932)

Neither element concerns character or a character trait. The

inducement concerns actions taken by persons other than the

defendant, and the predisposition concerns the @efendant's

state of mind prior to the inducement.

We recognize that proof of character may be rele-

vant to the entrapment defense because it may make more

probable than not that a defendant possessed a certain state

of mind. It is the state of mind itself, however, and not

the method of proving the state of mind, which operates as

an essential element of the defense. Moreover, predisposi-

tion may be shown by methods other than proof of character,

including proof of prior similar conduct and convictions for

prior similar conduct. Whiting v. United States, 296 F.2d

S12 (lst Cir. 1961), cert. denied 375 U.S. 884 (1963);

Carlton v. United States, 198 F.2d 795, 797 (9th Cir. 1952);

Pulido v. United States, 425 F.2d 1391, 1393-93 (9th Cir.

1970); but see United States v. McClain, 531 F.2d 431, 435-

437 (9th Cir.), cert. denied 429 U.S. 835 (1976) (hearsay

testimony inadmissible to show predisposition in the absence

of exception to the hearsay rule). Because proof can be

made by several methods, character is not even an essential

method of proof, much less an essential elenent of the de-

fense itself.

Even if character were an essential element of an

entrapment defense, proof of character would still be subject

to the restraints of relevance. United States v. Anbrose,

483 F.2d 742, 748 (6th Cir. 1973). “uch of the testimony

concerning specific acts of the defendant was remote and the

~3-

1 i District Court was well within its discretion in ruling it ’ \ 401 U.S. 601 (1971), the procuring agent theory could apply

‘ i not relevant. The jury was properly instructed as to the 2 i Only to Count Three. Inasmuch as the sentences on the three

3 : elements of idk acest and reasonably could have concluded “ counts were identical and to run concurrently, the alleged

4 | that there was none here. United States v. Gonzales-Benitez, ‘ error would be harmless because it could not affect or

& 537 F.2d 1051 (9th Cir.), cert. denied 429 u.s. 923 (1976). ° | control the convictions for the first two counts. In any

6 We find no error in the District Court's ruling as to the 6 ' event the trial court properly submitted the third count

+ character evidence. 7 to the jury because appellant could have been convicted on

" 8 ; that count as a procuring agent. Furthermore, the jury

' : - 9 f reasonably could have concluded that appellant was not merely

10 THE "PROCURING AGENT" THEORY 10 a procuring agent. For all these reasons, the trial court

n Appellant next urges that the trial court should 11 did not err in denying the motion for judgment of acquittal.

2. @ have acquitted him because he acted only as an agent in pro- ”

13 curing the illegal firearms and delivering them to another ss rit

14 person. We disagree. 14 | PRIOR MISDEMEANOR CONVICTION

15 In Vasquez v. United States, 290 F.2d 897, 898 15 , Appellant last urges that the Government's use of

16 (9th Cir. 1961), we recognized the Third Circuit's decision, | ss a prior misdemeanor conviction to i ease his testimony

7 United States v. Prince, 264 F.2d 850 (3d Cir. 1959), that a | 17 : constituted reversible error. The conviction was for petty

18 procuring agent for a purchaser could not be convicted of a . | eg » theft, which involved the taking of a gun from his employer

19 sale of heroin. However, we declined there to decide whether - in 1971.

20 the same rule applied to a charge of facilitating the sale ™ The governing rule is FED. R. EVID. 609(a) which

21 of heroin, and found no reversible error despite the procur- 7 pecrimaae

22 ing agent theory urged by the defendant. Later, the procur- = "For the purpose of attacking the

23 ing agent theory was specifically rejected by this Court in ges credibility of a witness, evidence that he

24 | United States v. Hernandez, 480 F.2d 1044 (9th Cir. 1973) = has been convicted of a crime shall be ad-

25 | dnsofar as the distribution of controlled substances is 2 mitted if elicited from him or established

26 | concerned, this Court noting that the law of this Circuit “3 by public record during cross-examination

27 : provides that a procuring agent properly may be convicted of ei but only if the crime . . . (2) involved

28 | facilitation of transfer or sale. Id. at 1046-1047. ! 2 dishonesty or false statement, regerdless of

29 | Counts One and Two here deal only with the posses- re | ane Gunietment."

30 ion of a certain type of firearm ané not the sale, transfer | 30 Most crimes involve dishonesty, but dishonesty has assumed

31 | or delivery thereof. Because the prosecution clearly estab- iz | ee re ee ee tee en ee

32 ' tidied Sii-aliniseke Of pedendalon, Gaited stares ¥.' Freed, ; 32 It refers to the inclination not to tell the truth.

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§1-24-35--S0°>2—323

—

Conviction of crimes such as perjury, false statement, fraud,

embezzlement or false pretense suggest that the witness, once

having deceived, lied, or falsified, may do so again. House-

Senate Conference Committee Notes to Federal Rule of Evidence

609; United States v. Ortega, 561 F.2d 803 (9th Cir. 1977).

Accordingly, convictions for those types of crimes, even

though they may be misdemeanors, properly may be used to

impeach a witness.

Appellant's prior conviction was for the violation

of 5 Ariz. Rev. Stats. §§13-661, 13-6633, and 13-661B.

Section 13-661 includes as one of the categories of theft

the knowing and designing defrauding of a person of money,

labor or property through any false or fraudulent representa-

tion or pretense. Section 13-661B provides that ”[a]ny

false or fraudulent representation or pretense shall be

treated as continuing so as to include any money, property

or service received as a result thereof. . .." The inclus-

ion of section 13-6613 in the conviction maxes it clear that

appellant's theft was based on a false and fraudulent repre-

sentation or pretense, notwithstanding that the value of the

article stolen made the theft classified as petty (§13-663B).

The prior conviction therefore was for a crime which involved

dishonesty as that term is used in FED. R. EVID. 609(a).

The District Court did not err in admitting the evidence of

the prior conviction. ’

The judgment of the District Court is AFFIRMED.