Petition for Writ of Certiorari — El Gawli v. United States

87-1726

Supreme Court, US

FiLED

APR 19 1988

No. JOSEPH Fe. SPANIOL, JR.

' GLERK

In The

Supreme Couwt of the United States

October Term, 1987

SULTAN EL GAWLI,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

ALAN L. ZEGAS

Attorney for Petitioner

20 Northfield Avenue

West Orange, New Jersey 07052

(201) 736-1011

i

QUESTION PRESENTED

Whether Petitioner is entitled to a new trial because the

instruction given by the trial judge on the defense of entrapment

permitted the jury to reject the defense without considering

Petitioner’s lack of predisposition to commit the crime, which this

Court has recognized is the principle aspect of the entrapment

defense?

il

TABLE OF CONTENTS

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Constitutional and Statutory Provisions Involved...........

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THE INSTRUCTION OF THE TRIAL COURT ON

THE ISSUE OF ENTRAPMENT WAS ERRONEOUS

AND DENIED PETITIONER DUE PROCESS OF

LAW BECAUSE IT COMPLETELY DISREGARDED

THE UNCONTRADICTED EVIDENCE OF

PETITIONER’S LACK OF PREDISPOSTION TO

COMMIT THE CRIME ALLEGED IN

EVALUATING THE ENTRAPMENT DEFENSE.

iene bas che nuh dade renee ee

Page

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Contents

TABLE OF CITATIONS

Cases Cited:

United States v. Castro, 776 F.2d 1118

(3rd Cir. 1985), cert. denied, U.S.

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Hampton v. United States,

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Nicola v. United States,

EMG MED ovis ose cscscecccccecsseces

Sherman v. United States,

Eee cc haccccevseesesncvedess

Sorrells v. United States,

ee aac endo cs cencccscveseses

United States v. Gambino,

788 F.2d 938 (3rd Cir.), cert. denied,

Paien )* |

United States v. Engler,

I MD oa ccc escensccdscsceess

United States v. Jannotti,

729 F.2d 213 (3rd Cir.),

cert. denied, 469 U.S. 880 (1984)... 2.2... 6... ee eee

“4 Fe eee

Page

iv

Contents

Page

United States v. M & M Incorporated,

See ce ET i Ss Bo cc dbencencdésddncsdandena 10

United States v. Russell,

ee I owhdsveccervceawessns chucectusuneete 5,6,7

United States v. Walker,

re a I SED 665s cccccecencsadesddeesesetues 10

United States v. Watson

ee Es SOEUR sweccccccsiadcavedsabdvesaves 7,8,9

Statutes Cited:

es Hs POD oa cd. déns du Gwaad x gcdi owen catekeusks 2

United States Constitution Cited:

PRE Siac icin catches died s kee ene eas sd cee nee 2

APPENDIX

January 19, 1988 Opinion of the United States

Court of Appeals for the Third Circuit Affirming

ne FE Ge GI ig Saco Ca uccescnsedctcticcsies la

February 25, 1988 Order of the United States

Court of Appeals for the Third Circuit Amending

the January 19, 1988 Opinion of the Court .............. 19a

Contents

Page

Order of the United States Court of Appeals

for the Third Circuit Denying Petition for

Rehearing and Suggestion for Rehearing in Banc......... 22a

Judgment of the United States Court of Appeals

Affirming the Judgment of Conviction ................. 23a

Constitutional and Statutory Provisions Involved

i i. nd AUedued SO mROR ERA OO R SNORE Ma nae 25a

No.

In The

Supreme Court of the United States

October Term, 1987

SULTAN EL GAWLI,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Sultan El Gawli prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the Third

District Circuit affirming the judgment of the United States

District Court for the District of New Jersey denying Petitioner a

new trial.

OPINIONS BELOW

The January 19, 1988 opinion of the United States Court of

Appeals affirming the judgment of the District Court may be

tv

found in the appendix of this petition (la).' On February 17, 1988,

the Court of Appeals denied a timely petition for rehearing and

suggestion for rehearing en banc (23a). On February 25, 1988, the

Court of Appeals amended its January 19, 1988 opinion (19a).

JURISDICTION

The United States Court of Appeals for the Third Circuit

entered its judgment affirming the judgment of the District Court

on January 19, 1988 (22a). A timely petition for rehearing and

suggestion for rehearing en banc was denied on February 17, 1988

(23a). The jurisdiction of this Court is invoked under Title 28

U.S.C. Sec. 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fifth Amendment to the Constitution of the United

States and Title 22 U.S.C. Sec. 2778(b) (2) are involved in this case.

These provisions are set out in the appendix to this Petition (26a).

STATEMENT OF THE CASE

On January 29, 1986, a one-count indictment was returned

against Petitioner charging him with conspiring to export without a

license certain articles designated on the United States Munitions

List. 22 U.S.C. Sec. 2778(b) (2). At trial, Petitioner asserted the

defense of entrapment. He introduced substantial evidence that he

was induced to engage in the alleged arms transaction by an

individual named Zakkary, who was cooperating with the

government, who had posed as an arms procurer, who had visited

References designated *‘a’’ are to the appendix to this Petition. References

designated **Da"’ are to the appendix submitted to the United States Court of

Appeals tor the Third Circut

Petitioner repeatedly to engage his trust and who had feigned being

stricken with cancer to elicit Petitioner’s sympathy and assistance.

(Da 546, 469).

In addition to offering evidence that he was induced by the

government to participate in an unlawful transaction, Petitioner

offered substantial evidence that he was not predisposed to commit

the crime and, in fact, had an unblemished background. The

proofs offered by Petitioner established that he is a middle-class

businessman who came to the United States from Egypt in 1968 in

order to avoid the violence and political turmoil of the middle-east

(Da5S09). During his first 1-1/2 years in this country, Petitioner

worked for little pay in a bakery (Da511). After marrying an

American citizen of Egyptian descent, Petitioner began his own

bakery, which thrived (Da512-13). In 1977, Petitioner became a

United States citizen (Da534).

Witnesses testified that Petitioner is a respected religious

leader, who is honest, trustworthy, generous, conservative and

non-violent (Dal92-97). Until his arrest for the charges leading to

this appeal, Petitioner had never been arrested or involved with the

police (Da570). Petitioner testified that he was not predisposed to

dealing with arms because he was an honest, peaceful businessman

who had never engaged in weapons trade.

Though Petitioner did admit that he served as an intermediary

for arms transactions involving Zakkary, he testified that he had

agreed to serve in that capacity only after Zakkary had first raised

the subject, had made relentless requests for Petitioner’s

participation, and had solicited Petitioner’s sympathy by feigning a

feigned cancerous condition.

Upon the conclusion of the trial, the trial judge instructed the

jury that the government bore the burden of proving beyond a

reasonable doubt that defendant was not entrapped (Da808-10).

Two hours after deliberations began, this instruction was repeated

to the jury, which had requested further insiruction on the issue of

entrapment (Da815).

The next day, the jurors again requested clarification of the

legal definition of entrapment. This time, the trial judge instructed

the jury, over the objection of defense counsel, that the government

had to disprove only one element of the entrapment defense

beyond a reasonable doubt in order to defeat the defense:

{I]t remains on the Government to prove

beyond a reasonable doubt that the defendant was

not induced by the Government to commit the

crime or they must prove beyond a reasonable

doubt that he was predisposed to commit the crime.

So the burden on either the issue of inducement or

predisposition remains on the Government beyond

a reasonable doubt.

(Da862-65). (emphasis supplied)

The Court also gave a restrictive definition of inducement. /d.

Ninety minutes after the supplementary instruction was given by

the Court, the jury convicted Petitioner. He was sentenced to a

two-year term of incarceration on September 3, 1986 (Da9), but

was permitted to remain free on bail pending appeal because of the

substantial issue arising out of the jury instruction on entrapment.

REASONS FOR GRANTING THE WRIT

This Petition raises a substantial issue on what the government

must prove in order to defeat the entrapment defense. This Court,

in Hampton v. United States, 425 U.S. 484, 488 (1976), and its

progeny, has repeatedly emphasized that the focus of the

entrapment defense is on the subjective predisposition of the accused

to commit the crime. The instruction given by the trial court

permitted the jury to completely ignore Petitioner’s lack of

predisposition and to instead focus in a vacuum, solely on the issue

of inducement, in evaluating the entrapment defense.

The instruction disregarded the fluidity of the concepts of

inducement and predisposition. Because these elements of entrapment

are fluid and not discrete, they must be examined together in order

for the jury to properly evaluate the validity of the defense. For

example, strong evidence of lack of predisposition would require

less of a showing of governmental inducement than would be the

case if there were strong evidence of predisposition to commit the

crime alleged. The fluidity of the concepts of inducement and

predisposition led the Third Circuit in a previous case, United

States v. Castro, 776 F.2d 1118, 1128 (3rd Cir. 1985), cert. denied,

U.S. , 106 S.Ct. 1233 (1986), to find that the

government must disprove both elements of the defense in order

for the jury to reject it. The decision in this case represents a radical

departure from the Third Circuit’s decision in Castro, as well as

from precedents of this Court which repeatedly empahsize that the

focus in entrapment cases should be on the subjective predisposition

of the accused to commit the crime alleged.

THE INSTRUCTION OF THE TRIAL COURT ON THE

ISSUE OF ENTRAPMENT WAS ERRONEOUS AND DENIED

PETITIONER DUE PROCESS OF LAW BECAUSE _ IT

PERMITTED THE JURY TO COMPLETELY DISREGARD THE

UNCONTRADICTED EVIDENCE OF PETITIONER’S LACK

OF PREDISPOSITION TO COMMIT THE CRIME ALLEGED IN

EVALUATING THE ENTRAPMENT DEFENSE.

a

The entrapment defense ‘‘focuses on the intent or predisposition

of the defendant to commit the crime.’’ Hampton v. United States,

425 U.S. 484, 488 (1976). See also United States v. Russell, 411

U.S. 423, 433 (1973). In determining whether entrapment has been

established, this Court emphasized in Sherman v. United States,

356 U.S. 369, 372, (1958), that a line must be drawn between ‘‘ihe

6

trap for the unwary innocent and the trap for the unwary

criminal.’’ The defense of entrapment is not defeated merely

because the government may afford opportunities for the commission

of the offense. Sorrells v. United States, 287 U.S. 435, 441 (1932);

Sherman v. United States, 356 U.S. 369, 372 (1958). Instead, it is

only ‘‘when the Government’s deception actually

implants the criminal design in the mind of the defendant that the

defense of entrapment comes into play.’’ United States v. Russell,

411 U.S. 423, 436 (1973).

In United States v. Castro, 776 F.2d 1118 (3rd Cir. 1985), cert.

denied, 475 U.S. 1029 (1986), the Third Circuit held that it was that

it was error for the trial court not to have charged the jury on the

inducement component of the entrapment defense. In so

concluding, the Court specifically noted that the government had the

burden of disproving ‘he entirety of defendant’s entrapment defense:

[O]nce the court decides to give an entrapment

charge, the court must instruct the jury that the

government must prove beyond a reasonable doubt

beth that the defendant was not induced by the

government to commit the crime and that he was

predisposed to commit the crime.

Id. at 1128 (citations omitted) (emphasis supplied).

Indeed, so emphatic was the Third Circuit in ruling that the

government had the burden of disproving the entirety of the

entrapment defense, that it stressed that a general instruction on

the issue of reasonable doubt would not be sufficient to cure an

entrapment instruction at variance with the one mandated in

Castro:

Further, failure to place this burden [of disproving

both elements of the entrapment defense] exclusively

on the government will not be cured by the presence

of a general charge that the government has the

burden of proving the defendant’s guilty beyond a

reasonabie doubt.

Id. (emphasis supplied).

The instruction given by the trial court here was not only at

variance with the law as set forth in the decisions of this Court and

the decision of the Third Circuit in Castro as well, but it permitted

the jury to consider the issue of inducement without at all considering

whether defendant was predisposed toward committing the crime

alleged. In case after case, this Court has stressed that the primary

focus of the defense of entrapment is on the predispostion of the

defendant. See, e.g., Hampton v. United States, 425 U.S. 484, 488

(1976); United States v. Russell, 411 U.S. 423, 429 (1973).

Inducement is merely an element of predisposition:

[T]he stronger the inducement, the more likely that

any resulting criminal conduct of the defendant was

due to the defendant’s own predisposition. Under

the unitary approach we require, inducement

therefore enters as an element of predisposition

which the government must disprove, rather than

as an independent element which the government

must prove.

United States v. Watson, 489 F.2d 504, 511 (3rd Cir. 1973).

(emphasis supplied).

In approving the instruction given by the trial judge, the Third

Circuit accepted the following unsound syllogism proposed by the

government:

|

8

Entrapment = inducement + no predisposition.

Therefore, Nonentrapment = no inducement or no

predisposition.

(20a).

Though the logic of the Third Circuit is superficially appealing, it

is flawed because it permits the jury to consider the elements of

inducement and predisposition in isolation. Indeed, the instruction

approved of by the appeals court permits the jury to avoid

completely any consideration of the issue of predisposition, which

the Third Circuit itself has repeatedly held is at the heart of the

entrapment defense. See, e.g., United States v. Gambino, 788 F.2d

938, 944 (3rd Cir.), cert. denied, U:S. , 107 S. Ct. 98

(1986) (‘‘key consideration’’ in entrapment is predisposition of the

accused); United States v. Jannotti, 729 F.2d 213, 225 (3rd Cir.

1984), cert. denied, 469 U.S. 880 (1984) (The ‘‘Supreme Court has

clearly held that entrapment is, at bottom, a question of the

defendant’s predisposition and not the government’s inducement,

although the latter is a relevant consideration.’’) United States v.

Watson, 489 F.2d 504, 511 (3rd Cir . 1973) (entrapment defense

involves essentially ‘‘a single element’’, predisposition).

What is particularly disturbing about the appeals court’s

analysis is that though the court recognzied in footnote 3 of its

opinion that the disjunctive instruction given by the trial judge

would result in an injustice to a defendant when there is strong

evidence of inducement and weak evidence of predisposition, the

panel ignored that the posited circumstances were identical to the

proofs here (15a). Indeed, there was no evidence in the record from

which a jury could reasonably conclude that defendant was

predisposed to commit the crime alleged. On the contrary, the

evidence showed that Petitioner was a deeply religious man and a

community leader and that the informant, by feigning cancer and

seeking Petitioner’s pity and friendship, induced Petitioner to

become his accomplice.

Had the jury been instructed that it was to consider whether

the government had met its burden of proof on both the issues of

inducement and predisposition, the jury would have concluded,

from the complete absence of evidence of predisposition, that the

government’s inducement provided the only reasonable means of

explaining Petitioner's behavior. The Court’s instruction,

however, permitted the jury to avoid any consideration whatever

of the issue of predisposition. The failure of the trial court to

charge the jury that the prosecutor had the burden of proof on

both elements of the entrapment defense thus conflicted with the

legal obligation of the government to disprove the entrapment

defense in its entirety. See United States v. Engler, 806 F.2d 425,

428 (3rd Cir. 1986) (government must disprove the elements of the

entrapment defense beyond a reasonable doubt); United States v.

Jannotti, 673 F.2d 578, 597 (3rd Cir.), cert. denied, 457 U.S. 1106

(1982) (‘‘government has the burden to disprove the whole

entrapment defense beyond a reasonable doubt); United States v.

Watson, 489 F.2d 504, 511 (3rd Cir. 1973) (government has burden

of disproving entrapment beyond a reasonable doubt).

In United States v. Jannotti, 729 F.2d 213, 225 (3rd Cir. 1984),

cert. denied, 469 U.S. 880 (1984), the Third Circuit had specifically

held that an instruction permitting the element of inducement to be

considered separate from the element of predisposition is error. In

Jannotti, the Court noted that the trial judge repeatedly

indicated that the defendants had a threshold

burden of showing inducement. Not only did this

incorrectly divide the burden between the defendants

and the government, but it also required an

independent consideration of the issue of

inducement, apart from the central issue of

predisposition.

Id. at 225.

10

The prejudicial danger created by the supplemental charge to

the jury is that the jury may never have considered whether the

government disproved the predisposition of the defendant beyond

a reasonable doubt. Had the jury charge properly emphasized that

the government had an obligation to prove defendant’s predisposition

to commit the crime alleged, an acquittal might well have resulted.

This is particularly so because the Petitioner had no prior criminal

record and there was ample evidence to create reasonable doubt about

Petitioner’s predisposition to commit the crime alleged.

Further, because the jury had earlier been instructed that the

government had the burden of disproving beyond a reasonable

doubt the entire entrapment defense, the jury may well have been

confused by the supplemental instruction. In such circumstances,

where two instructions are given to the jury and one is erroneous

and the other is correct, reversible error is committed because it is

impossible to tell which instruction the jury followed. Nicola v.

United States; 72 F. 2d 780, 787 (3d Cir. 1934); United States v.

Walker, 677 F. 2d 1014, 1016-1017 (4th Cir. 1982); United States v.

M&M _ Incorporated, 562 F.Supp. 651, 660 (M.D.Pa. 1983).

Particularly in a case such as this, where the erroneous instruction

follows the correct one, and the jury decides the case shortly after

receiving the erroneous instruction, reversal is mandated.

CONCLUSION

For the reasons set forth herein it is urged that a writ of

certiorari issue to review the judgment of the United States Court

of Appeals for the Third Circuit.

Respectfully submitted,

ALAN L. ZEGAS

Attorney for Petitioner

la

APPENDIX

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE THRID CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 86-5659

UNITED STATES OF AMERICA,

Appellee

Ve

GAWLI, SULTAN EL,

Appellant

On Appeal From the United States District

Court for the District of New Jersey

(D.C. Criminal No. 86-00034-01)

Argued October 6, 1987

Before: BECKER, SCIRICA and ROSENN,

Circuit Judges

(Filed January 19, 1988)

SAMUEL A. ALITO, JR.

United States Attorney

MARION PERCELL (Argued)

Assistant U.S. Attorney

SAMUEL P. MOULTHROP

Chief, Appeals Division

U.S. Attorney’s Office

Federal Building

970 Broad Street

Newark, NJ 07102

Attorneys for Appellee

.

Opinion

ALAN L. ZEGAS (Argued)

PATRICIA KERN

20 Northfield Avenue

West Orange, NJ 07502

Attorney for Appellant

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal from a conviction for.conspiracy to export

weapons without a license from the government 22 U.S.C.§

2778(b)(2) (1982), raises two important questions concerning

the entrapment defense. First, we must decide whether the

district court erred in failing to instruct the jury that the

government, to defeat an entrapment defense, had to prove

beyond a reasonable doubt both that the appellant was not

induced by the government and that he was predisposed to

commit the crime. The district court instructed the jury that

proof beyond a reasonable doubt of either element was

sufficient. Second, we must decide whether the district court

erred in its definition of inducement. Specifically, appellant

contents that the court’s examples of types of inducement

(‘‘including persuasion, fraudulent representation, threats,

coercive tactics, harassment, promises of reward or pleas

based on need, sympathy or friendship’’) were too limiting,

and that the district court’s instruction that ‘‘[a] solicitation,

request or approach by law enforcement officials to engage in

criminal activity, standing alone, is not an inducement,”’

misstates the law.

For the reasons that follow, we hold that the court’s

3a

Opinion

instructions were proper. The charge on the government’s

proof in defeating an entrapment defense correctly provided

that the government merely must disprove either element of

the entrapemnt defense beyond a reasonable doubt in order to

disprove the entire defense. Furthermore, we believe that the

district court’s charge on inducement properly defined that

element of the defense. We will therefore affirm the

judgment.

I]. FACTUAL AND PROCEDURAL HISTORY

Appellant Sultan El-Gawli first came to the United States

from Egypt in 1969 and became an American citizen in 1977.

El-Gawli is a businessman, who owns and operates, among

other enterprises, a travel agency. El-Gawli first met

Momdouh Zakkary Girguis (Zakkary), an Egyptian

businessman, in June 1985 when Zakkary purchased airline

tickets from El-Gawli’s travel agency. After returning from

his trip, Zakkary visited El-Gawli at the travel agency on July

31, 1981. Zakkary testified that at this meeting El-Gawli

initiated discussions about procuring arms for Palestinian

revolutionaries and asked Zakkary for assistance. Zakkary

testified further that although he in fact had no experience in

trading arms, he pretended to be familiar with arm sales in

order to determine whether El-Gawli seriously contemplated

purchasing arms. Zakkary testified that he perpetuated the

charade, and met with El-Gawli again in August and

September 1985 to continue discussions about weapon

acquisition and transport. In contrast, El-Gawli testified that

no discussion of arms transpired at the first several meetings

between El-Gawli and Zakkary. Because of the initial contact

between El-Gawli and Zakkary occured before the United

States became involved, no tapes exist of the initial meetings

between the two men. One of the key issues on which the

parties focused at trial was who had initiated the discussions

of arms sales.

4a ’

Opinion

On September 19, 1985, an auditor from the United

States Customs Service conducted a routine investigation of

Zakkary’s motor vehicle part import business. Zakkary

informed the auditor of his discussions with El-Gawli. As a

result of that discussion, in early October 1985, a special agent

of the United States Customs Service contacted Zakkary to

follow up on the information Zakkary had given to the

auditor. Zakkary agreed to cooperate in the government’s

investigation by posing as an arms procurer and by tape

recording his subsequent conversations with El-Gawli.

Zakkary ultimately tape recorded six in-person meetings and

five telephone conversations with El-Gawli.

The first tape recorded meeting between El-Gawli and

Zakkary, on November 8, 1985 consisted of Zakkary’s

describing to El-Gawli a supposed liaison with an American

soldier who could provide weapons. The next meeting

between El-Gawli and Zakkary occurred on November 12,

1985 but was not tape recorded. At that meeting El-Gawli

introduced Zakkary to a man named Said Hassan who was

later identified as the representative of the Palestine

Liberation Organiztion (PLO) in Saudi Arabia. According to

Zakkary, Hassan told Zakkary that he needed explosives and

detonation devices for the ‘‘revolution people”’ in the Middle

East. At trial there was much dispute about this unrecorded

meeting, especially over who initiated discussion of arms

sales. However, both versions of events agree that, as a result

of the meeting, Hassan and Zakkary decided to conduct all

further communication about the arms through El-Gawili,

who agreed to serve as an intermediary.

In a meeting on November 15, 1985, Zakkary quoted

prices to El-Gawli for the requested explosives and

detonating devices, and El-Gawli wrote down the information.

iene

Sa

Opinion

In addition, Zakkary and El-Gawli negotiated over additional

expenses for Zakkary. The parties agreed to a price of $12,000

for the arms and $13,000 for expenses. Additionally, at this

meeting Zakkary complained of financial difficulties.

El-Gawli explained that he would receive no remuneration,

stating: ‘‘] am doing this for the sake of God. I am personally

not going to gain anything out of it.’

In subsequent conversations Zakkary informed El-Gawli

of his fondness for him, of the fact that Zakkary had cancer,

and that Zakkary had used his automobile as collateral in the

weapons purchase. The negotiation on weapons deals also

continued. On December 5, 1985, Zakkary brought a sample

explosive to the travel agency and El-Gawli placed a call to

Saudi Arabia to tell the PLO representative that the explosives

were ready to be shipped. On December 13, 1985, El-Gawli,

with Zakkary present, met with Hassan to quote prices. On

December 17, 1985, Zakkary and El-Gawli met again to

discuss the possibility of procuring helicopters. El-Gawli was

arrested the following day. Both he and Said Hassan were

charged with conspiracy to export defense articles from the

United States without a license from the State Department.

Because Hassan was unavailable to stand trial, El-Gawli was

the sole defendant.

At trial, El-Gawli admitted that he had agreed to serve as

intermediary in the conspiracy to export explosives and that

he knew such activity was wrong. El-Gawli presented

character witnesses who testified that he was a respected

leader in the community, an honest, conservative, and non-

violent person. El-Gawli raised the affirmative defense of

entrapment. He claimed that he was not predisposed to

dealing with arms because he was an honest, peaceful

businessman who had never engaged in weapons trade.

Furthermore, he argued that Zakkary’s inducement in the

form of pleas based on friendship and pity, and concern that

ait

6a

Opinion

Hassan, a valued customer, might be annoyed with him, led

him to participate in a conspiracy that he was otherwise

disinclined to join.

The court instructed the jury as to the entrapment

defense, and neither El-Gawli nor the government objected to

the court’s original charge. After two hours of deliberation,

the jury, in considering the district court’s instructions

requested further instruction on the entrapment defense. The

court reread its original entrapment charge and the jury

returned to its deliberations. The next day the jurors renewed

their question. In response, over timely objection by defense

counsel, the court provided a supplementary charge which

derived from this court’s jurisprudence and United States v.

Burkley, 591 F.2d 903, 913 (D.C. Cir. 1978), cert. denied, 475

U.S. 1029 (1986) that ‘‘the government must prove beyond a

reasonable doubt both that the defendant was not induced by

the government to commit the crime and that he was

predisposed to commit the crime.’’ The prosecutor objected

to this portion of the charge and after brief discussion

convinced the court to instruct the jury that the government

only had to prove one element (either predisposition or lack

of inducement) beyond a reasonable doubt. In pertinent part,

the trial court instructed the jury that:

[w]hen we deal with entrapment as raised by the

defendant, it remains on the Government to prove

beyond a reasonable doubt that the defendant was not

induced by the Government to commit the crime or they

must prove beyond a reasonable doubt that he was

predisposed to commit the crime. So the burden on either

=

7a

Opinion

the issue of inducement or predisposition remains on the

Government beyond a reasonable doubt. | think your

concern is what does that mean. If the defendant had no

prior intent or predisposition to commit the offense

charged and was induced or persuaded to do so by law

enforcement officers or their agents, then he was

entrapped. Inducement by law enforcement officials may

take many forms, including persuasion, fraudulent

representation, threats, coercive tactics, harassment,

promises of reward or pleas based on need, sympathy or

friendship. A solicitation, request or approach by law

enforcement officials to engage in criminal activity,

standing alone, is not an inducement.

(emphasis supplied).

Ninety minutes after the district court issued its

supplemental instruction, the jury convicted El-Gawli of

conspiracy to export explosives without a license or approval

of the State Department. This appeal followed.

Il. DISCUSSION

El-Gawli contends that the district court’s supplementary

instruction constituted reversible error. He claims first, that

the district court gave an incorrect instruction as to the

government’s burden in negating an entrapment defense, and

second, that the district court erred in its instruction on

inducement, defining that term too narrowly.

We review the district court’s jury charges to decide

‘“‘whether taken as a whole and viewed in light of the

evidence,’’ the charges ‘‘‘fairly and adequately’ submit the

issues in the case to the jury.’” United States v. Fischbach &

Moore, Inc., 750 F.2d 1183, 1196 (3d Cir. 1984), cert denied,

470 U.S. 1029 (1985).

sr iacatatamaitaiatiicceailaiiiaeaiieaiiiliial

8a

Opinion

A. The Government’s Burden of Proof in

Negating the Entrapment Defense

To address the first issue, we will briefly review the status

of the entrapment defense in this jurisdiction. As we have

explained, ‘‘[e]ntrapment occurs when a defendant who was

not predisposed to commit the crime does so as a result of the

government’s inducement.’’ United States v. Jannotti, 673

F.2d 578, 597 (3d Cir.), cert. denied, 457 U.S. 1106 (982)

(Jannotti I) Under our jurisprudence, to make an entrapment

defense a defendant must come forward with some evidence

as to both inducement and non-predisposition. After the

defendant has made this showing, which is a burden of

production, the government then has the burden of proving

beyond a reasonable doubt that it did not entrap the

defendant. This court thus follows the so-called unitary

approach, whereby after the defendant has made his original

showing, the burden falls on the prosecution to prove beyond

a reasonable doubt that the defendant was not entrapped. See

United States v. Gambino, 788 F.2d 938, 943 (3d Cir.) cert.

deined, 107 S. Ct. 98 (1986); United States V. Jannotti, 729

F.2d 213, 224 (3d Cir.), cert. denied, 69 AU.S. 880 (1984)

(Jannotti II) (court giving entrapment charge ‘‘must follow

the ‘unitary’ approach, in which the burden to disprove ihe

entrapment defense as a whole, beyond a reasonabie doubt, is

placed exclusively on the government’’); Government of

Virgin Islands v. Cruz, 478 F.2d 712, 717 n.5 (3d Cir. 1973).

This court’s aproach is distinct from the ‘‘bifurcated

approach”’ adopted by the Courts of Appeals for the Disrict

of Columbia and the Second Circuit. See Jannotti IT, 729 F.2d

at 224 (explaining that under the bifurcated approach ‘‘the

jury must first consider whether the defendant has met his

9a

Opinion

burden on the issue of inducement’’). Jurisdictions that

employ the bifurcated approach have established a procedural

minuet by which the defendant need only come forth with

some evidence as to inducement, and then the burden shifts to

the government which can either rebut the evidence to

inducement, or prove beyond a reasonable doubt that the

defendant was predisposed to commit the crime. United

States v. Burkley, 591 F.2d 903, 914-15 (D.C. Cir. 1978), cert.

denied, 440 U.S. 966 (1979). In the final analysis, however,

courts adopting the bifurcated approach believe that ‘‘it is

appropriate to place on the defendant the ultimate burden of

showing government inducement of the crime, and thus the

possibility of entrapment.”’ /d. at 914 (citation omitted).

A major motivation for rejecting the bifurcated

approach was our disapproval of the fact that it required the

defendant to shoulder a substantial burden in making this

defense. See Jannotti II, 729 F. 2d at 224 (‘‘the unitary

approach is more consistent with the government’s ultimate

burden of proving the defendant’s guilt beyond a reasonable

doubt’’). Cf. Cruz, 478 F.2d at 717 (holding that a charge that

creates the erroneous impression that the defendant must

carry the burden of proof as to the positive elements of an

entrapment defense constitutes reversible error if properly

raised before the district court). By adopting the unitary

approach, we indicated our belief that the government had

the entire burden of disproving entrapment beyond a

reasonable doubt. Therefore, the extent of the defendant’s

burden constitutes the significant distinction between the two

approaches.

El-Gawli argues that the district court erred in charging

the jury that the government need only disporve one element

of the entrapment defense (the ‘‘or’’ charge). Instead,

ee

10a

Opinion

El-Gawli contends, the court should have instructed the jury

that the government had the burden of proving both that it

did not induce him and that he was not predisposed to

commit the crime (the ‘‘and’’charge). He argues that the

‘for’? charge contravenes our unitary approach because it

bifurcates the entrapment defense and fails to place the

burden on the government to disprove the whole defense.

El-Gawli’s logic is that because the entrapment defense

encompasses two elements, governmental inducement and

lack of predisposition, to defeat the entrapment defense, the

government must disprove both elements.

Furthermore, El-Gawli argues that the ‘‘or’’ charge

diverted the jury from the evidence concerning his best

argument, lack of predisposition. He submits that instead of

focusing on El-Gawli’s lack of predisposition, the jury was

able, through the alternative offered by the disjunctive

charge, to determine that the government did not induce him

to participate in the weapons conspiracy. Therefore, El-Gawli

claims the jury ignored the heart of his entrapment defense--

that he was a non-violent, respected citizen who was disclined

to participate in weapons deals or play spy.' El-Gawli claims

that far from constituting harmeless error, the instruction was

decisive in El-Gawii’s conviction. El-Gawli cites the fact that

it took the jury only ninety minutes to reach a verdict after the

court issued its supplementary instructions as an indication of

9

1. In his brief, El-Gawli emphasizes his contributions to society and his

leadership in the community. El-Gawli arrived in the United States penniless

and worked his way up from a baker’s assistant to a successful businessman

and respected community leader. He notes that no evidence whatsoever

exists to imply that his thriving enterprises are illegitimate. Furthermore, he

claims that he participated in the conspiracy only reluctantly to placate a

valued customer and then only in response to the relentless requests of

Zakkary whom he pittied.

lla

Opinion

the centrality of this supplementary charge to the guilty

verdict.

Finally, El-Gawli relies on our holding in Castro for the

propesition that this Court has explicitly required an ‘‘and’’

charge wherein the government must disprove both elements

of an entrapment defense beyond a reasonable doubt. He

cites our language in Castro, 776 F.2d at 1128, that ‘‘the

government must prove beyond a reasonable doubt both that

the defendant was not induced by the government to commit

the crime and that he was predisposed to commit the crime’’

as evidence that the district court erred in its charge on

entrapment.

The Government defends the ‘‘or’’ charge arguing that,

as a logical matter, it must only disprove one element of the

entrapment defense to disprove the entire defense. In making

its argument, the government presents the following logical

syllogism:

Entrapment = inducement + predisposition.

Therefore, Nonentrapment + no inducement or no

predisposition.

We find the logic of the government’s position compelling.

El-Gawli’s insistence that the jury was diverted from its true

inquiry by the ‘‘or’’ charge makes no sense. If, as El-Gawli

concedes in this brief and at oral argument, the jury found no

governmental inducement in this case, then what, if not some

predisposition on the part of El-Gawli, caused him to

participate in the conspiracy? El-Gawli has called to our

attention language from this court’s opinions noting the

importance of the government’s proving beyond a reasonable

doubt that the defendant was predisposed to commit the

crime. See, e.g., United States v. Gambino, 778 F.2d 938, 944

(3d Cir.), cert. denied, 107 S. Ct. 98 (1986) (predisposition is a

12a

Opinion

‘*key consideration’’); Jannotti I], 729 F.2d at 224 (The

‘Supreme Court has clearly held that entrapment is, at

bottom, a question of the defendant’s predisposition and not

the government’s inducement, although the latter is a relevant

consideration.’’) We think, however, that El-Gawli fails to

place these statements in proper context. Where the

government has induced the defendant to commit the crime,

the question of predisposition rightfully becomes crucial. The

government must, in those circumstances, demonstrate that it

was merely laying a trap for an ‘‘unwary criminal,’’ and not

seducing some otherwise upright citizen into lawless behavior.

Sherman v. United States, 356 U.S. 369, 372 (1958). In this

case, however, as El-Gawli himself concedes, the jury found

no governmental inducement. Therefore, the emphasis in the

caselaw on predisposition does not apply to this defendant.

Furthermore, we _ believe that El-Gawli makes a

fundamental, conceptual error in arguing that this court’s

adoption of the unitary approach mandates that the government

prove both elements. In instructing that the government must

disprove the whole defense of entrapment, we rejected the

bifurcated approach which requires the defendant to prove by

a preponderance of the evidence that he was induced in order

for the defense of entrapment to reach the jury. In this circuit,

that the government bears the entire burden does not affect

the fundamental truth that entrapment can be disproved in

one of two ways, either by proving beyond a reasonable doubt

that the defendant was not induced, or by proving beyond a

reasonable doubt that he was predisposed to commit the

crime.

13a

Opinion

We note that other courts of appeals, including those

that have adopted the unitary approach, use the ‘‘or’’

formulation. See United States v. Gunter, 741 F.2d 151, 153

(7thCir. 1984) (government must ‘‘prove beyond a reasonable

doubt that the defendant was predisposed or there was no

Government inducement’’) (emphasis added); Sagansky v.

United States, 358 F.2d 195, 203 (ist Cir.) (holding that the

government would meet its burden of defeating an

entrapment defense if it proved ‘‘beyond a reasonable doubt

either that there was in fact no inducement or that the

defendant was predisposed....’?) (emphasis added), cert.

denied, 385 U.S. 816 (1966). See also United States v. Rangel,

534 F.2d 147, 149 (9th Cir.) (ruling that even if evidence as to

predisposition was inadmissible, overwhelming evidence that

government had not induced defendant to commit the crime

sufficed to disprove entrapment defense), cert. denied, 429

U.S. 854 )1976).

El-Gawli’s argument for an ‘‘and’’ charge derives from

our decision in United States v. Castro, 776 F.2d 1118 (3d Cir.

1985), cert. denied, 475 U.S. 1029 (1986). Although the

argument is superficially appealing, it has, upon closer

scrutiny, little merit. In Castro, the government charged nine

defendants with attempting to sell drugs. Castro, one of the

defendants, argued that he was not predisposed to commit the

crime, and that he committed the crime only because of the

government’s inducement. In instructing the jury, the district

court noted that the government has presented ‘‘no evidence

that [Castro] was predisposed to drug activities.’’ 776 F.2d at

1127. Therefore, the district court instructed that the key

question in deciding the entrapment defense was whether the

jury could ‘‘interpret the evidence as establishing that Mr.

Castro was voluntarily and without any urging from the

l4a

Opinion

Government acting as an interpreter in the [drug]

transaction.’’ Jd. at 1127-28. Inexplicably, the district court

instructed the jury that the government must prove

predisposition beyond a reasonable doubt, but failed to give

an analogous instruction on the government’s burden for

proving inducement. On appeal, Castro asserted this as error,

and this court agreed that failure to clarify the government’s

burden constituted error.’ In acknowledging that the district

court had indeed erred in its charge to the jury, the Castro

court explained that:

once the court decided to give an entrapment chrage, the

court must instruct the jury that the government must

prove beyond a reasonable doubt both that the defendant

was not induced by the government to commit the crime

and that he was predisposed to commit the crime.

Id. at 1128 (citation omitted). We agree with El-Gawli that a

reading of this language from Castro could appear to indicate

that this court requires a conjunctive ‘‘and’’ charge on

entrapment, requiring the government to disprove both

elements. When viewed in context, however, it is plain that

Castro does not mandate the ‘‘and’’ charge, but merely

requires that whichever prong of the entrapment defense the

jury rejects, it must reject it beyond a reasonable doubt. In

Castro, the defendant’s entrapment argument centered upon

inducement, but as we have noted, the trial court only

instructed the jury about the government’s burden for

predisposition. In light of those facts, it is clear this court was

2. The Castro panel ultimately rejected the challenge because it had not

been raised by defendant’s counsel in the district court. Castro held that the

court’s charge was not so egregious that it rose to the level of plain error,

and therefore, given the posture of the challenge, refused to consider it.

xSS

Sn PPL REN 7 SERN ree Se “REARS IS,

15a

Opinion

holding that the district court had to instruct the jury about

the burden of proof for both elements, not that both elements

had to be proved in order to defeat an entrapment defense.

The government’s burden in disproving an affirmative

defense of entrapment should be viewed as a logical sequence.

Assuming the defendant has met his burden of coming forth

with some evidence on both elements of the entrapment

defense, the government may first attempt to prove beyond a

reasonable doubt that it did not induce the defendant to

commit the crime. If it can do so, the inquiry is over. Without

inducement by the government, there can be no entrapment.

Notably, that is exactly what happened in El-Gawli’s case. In

many cases, however, the government will have engaged in

some form of inducement. In such cases, the question of

predisposition is paramount and the government must prove

beyond a reasonable doubt that its inducement merely

facilitated the defendant who was ready and willing to commit

a similar crime.’

B. The District Court’s Instruction on Inducement

El-Gawli’s second argument, which he contends is

intimately related to his first point, concerns the definition of

3. Although we dismiss with no hesitation El-Gawli’s argument that he

deserved an ‘‘and’’ charge, we nevertheless note that there is one type of

case, not presented by El-Gawli, which presents a stronger argument for a

conjunctive charge. One could postulate a case in which the government’s

inducement was extraordinarily heavy and the predisposition of the

defendant was very slight. Under the ‘‘or’’ charge, the government could

disprove an affirmative defense of entrapment if it proved beyond a

reasonable doubt that the defendant, however slightly, was predisposed to

commit the crime. Under the facts so postulated, an ‘‘or’’ charge might

allow the government to dispose of an entrapment defense unfairly. We

think this dilemma can be solved, not by adopting El-Gawli’s ‘‘and’’ charge

approach, but rather by careful instruction to the jury on the definition of

predisposition and the government’s burden of proving it beyond a

reasonable doubt.

16a

Opinion

inducement that the judge offered to the jury. The logic of his

argument is as follows. El-Gawli claims that the overly

restrictive definition of inducement led the jury to find no

governmental inducement, which in turn led the jury to

disregard the essential question of predisposition. We have

already dismissed El-Gawli’s argument that the government

had to disprove both elements in order to disprove entrapment.

Nevertheless, we must address his specific argument that the

jury found no inducement because the district court erred in

explaining the legal standard.

First, El-Gawli objects to the court’s instruction that ‘‘[a]

solicitation, request or approach by law enforcement officials

to engage in criminal activity, standing alone, is not an

inducement.’’ El-Gawli argues that the quoted language

incorrectly states the law in this circuit. We disagree. El-Gawli

has cited no case from this court indicating that the quoted

charge inaccurately portrays the law. To the contrary, we hold

that this statement accurately summarizes the definition of

inducement. We note that at least two jurisdictions besides

the Court of Appeals for the District of Columbia, which

authorized this part of the charge, employ similar principles.‘

4. We also find it insignificant that this language originally appeared in

the ‘‘red book’”’ of jury instructions formulated by the Bar Association of

the District of Columbia and used by the District Court for the District of

Columbia. See Young Lawyers Section of the Bar Ass’n of the Dist. of

Columbia, Criminal Jury Instructions No. 505 at 333 (3d ed. 1978); Burkley,

591 F.2d at 913. El-Gawli makes the argument that it was unfair to him for

the district court to adopt a charge on inducement borrowed from a court

that utilizes the bifurcated approach. See supra typescript at 9-10 for a

discussion of the bifurcated approach. In the abstract, we agree with

El-Gawli that we should take care of adopting an instruction on inducement

from a jurisdiction that still employs the bifurcated approach, although not

for the reasons he suggests. However, we need not address this complex

ee eee he ee ee

17a

Opinion

See United States v. Barry, 814 F.2d 1400, 1402 n.2 (9th Cir.

1987) (‘‘Inducement requires more than mere suggestion or

solicitation by a government agent.’’) (citation omitted);

United States v. Velasquez, 802 F.2d 104, 106 (4th Cir. 1986)

(evidence of mere solicitation insufficient to meet even

defendant’s minimal burden of coming forth with more than

a scintilla of evidence of inducement); United States v. North,

746 F.2d 627, 631 (9th Cir. 1984) (allowing an instruction that

included language identical to the challenged instruction in El-

Gawli’s case), cert. denied, 470 U.S. 1058 (1985).

Furthermore, El-Gawli objects to the court’s charge that:

Inducement by law enforcement officials may take many

forms, including persuasion, fraudulent representation,

threats, coercive tactics, harassment, promises of reward

or pleas based on need, sympathy or friendship.

El-Gawli cites no caselaw from this or any other court

indicating any objection to the charge on inducement given by

the district court. We also note that this charge, or minor

variations on it, is given by other courts, including those that

use the unitary approach, in explaining the concept of

inducement to juries. See e.g., North, 746 F.2d at 631

(holding that a district court properly exercised its discretion

in instructing the jury that ‘‘undercover activity may take

many forms including persuasion, fraudulent representations,

threats, coercive tactics, harassment, promises of reward or

question or the strained logic of El-Gawli’s argument because, in this

particular case, we find the instruction perfectly in harmony with our

jurisprudence and we see no prejudice to the defendant.

18a

Opinion

pleas based on need, sympathy or friendship’’).

El-Gawli argues that the specific examples of inducement

in the charge did not encompass the full breadth of activities

that could constitute inducement. He does not, however,

explain how this charge damages his chances for a jury finding

of inducement, nor does he suggest additional examples that

the district court should have provided. Rather, he argues that

the district court should have reread its general explanation of

inducement without offering any examples at all. In light of

the jury’s confusion, we cannot agree. A list of examples,

when presented as such and not as a finite group of

possibilities, may be very helpful in explaining the concept of

inducement. If anything, it seems to us that the court’s

mention of ‘‘pleas based on frienship and need’’ would have

helped the jury find inducement had they credited El-Gawli’s

testimony. It is apparent to us that in this case, where the

appellant received absolutely no money for acting as a middle

man in a weapons transaction, the jury simply believed,

beyond a reasonable doubt, that he was not induced. We

therefore reject El-Gawli’s challenge.

Ill.

For the foregoing reasons, the judgment of the district

court will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Thrid Circuit

:

19a

ORDER OF UNITED STATES COURT

OF APPEALS FOR THIRD CIRCUIT AMENDING OPINION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 86-5659

UNITED STATES OF AMERICA,

Appellee

Ve

GAWLI, SULTAN EL,

Appellant

On Appeal From the United States

District Court for the

District of New Jersey

(D.C. Criminal No. 86-00034-01)

Argued October 6, 1987

Before: BECKER, SCIRICA and

ROSENN, Circuit Judges

(Filed January 19, 1988)

ORDER AMENDING OPINION

It is ORDERED that the slip opinion filed in the

above-captioned case is amended as follows:

On p. 10, carryover paragraph, 3rd line, REPLACE:

al

and that he was not predisposed to commit the crime (the

**and’’ charge).

WITH:

and that he was predisposed to commit the crime (the

**and’’ charge).

On p. 11, third full paragraph, REPLACE:

Entrapment = inducement + predisposition.

Therefore, Nonentrapment + no inducement or no

predisposition.

WITH:

Entrapment = inducement + no predisposition.

Therefore, Nonentrapment = no inducement or

predisposition.

on p. 12, first full paragraph, REPLACE:

In instructing that the government rmust disprove the

whole defense of entrapment, we rejected the bifurcated

approach which requires the defendant to prove by a

preponderance of the evidence that he was induced in

order for the defense of entrapment to reach the jury.

~

2la

ORDER

WITH:

In instructing that the government must disprove the

whole defense of entrapment, we rejected the bifurcated

approach which places upon the defendant the ultimate

burden of showing that he was induced.

s/ Edward R. Becker

Circuit Judge

DATED: February 25, 1988

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circua

22a

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 86-5659

UNITED STATES OF AMERICA,

Vv.

GAWLI, SULTAN EL,

Appellant

(D.C. Criminal No. 86-00034-01)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE -------------- DISTRICT OF NEW JERSEY

Present: BECKER, SCIRICA and ROSENN, Circuit Judges

JUDGEMENT

This cause came on to be heard on the record from the United

States District Court for the ---------- District of New Jersey

and was argued by counsel on October 6, 1987

On consideration whereof, it is now here ordered and adjudged

by this Court that the judgment of the said District Court entered

September 6, 1986, be, and the same is hereby affirmed.

ATTEST

Dated: January 19, 1988 : 4

Clerk

23a

ORDER OF UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

DENYING PETITION FOR REHEARING

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 86-5659

UNITED STATES OF AMERICA,

Appellee

v.

GAWLI, SULTAN EL,

Appellant

SUR PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING IN BANC

Present: SEITZ, WEIS, HIGGINBOTHAM, SLOVITER,

BECKER, STAPLETON, MANSMANN,

GREENBERG, HUTCHINSON, SCIRICA, COWEN,

and ROSENN,* Circuit Judges

The petition for rehearing filed by appellant Sultan El-Gawli

having been submitted to the judges who participated in the

decision of this Court and to all the other available circuit judges of

the circuit in regular active service, and no judge who concurred in

the decision having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not having

.. As to panel rehearing only.

24a

ORDER

voted for rehearing by the court in banc, the petition for

rehearing is denied.

BY THE COURT:

Circuit Judge

DATED: February 17, 1988

2Sa

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED IN THE CASE

CONSTITUTION OF THE UNITED STATES:

‘*Fifth Amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.’’

STATUTORY PROVISIONS:

**28 U.S.C. Sec. 2778 (b) (2)

Except as otherwise specifically provided in

regulations issued under subsection (a) (1), no defense

articles or defense services designated by the President

under subsection (a) (1) may be exported or imported

without a license for such export or import, issued in

accordance with this Act and regulations issued under this

Act, except that no license shall be required for exports or

imports made by or for an agecny of the United States

Government (A) for official use by a department or agency

of the United States Government, or (B) for carrying out

any foreign assistance or sales program authorized by law

and subject to the control of the President by other

means.