U.S. v. Ordner

• Decision Date: 18 April 1977
• Docket Number: No. 592,D,592
• Parties: UNITED STATES of America, Plaintiff-Appellee. v. William M. ORDNER, Jr., Defendant-Appellant. ocket 76-1428.
• Court: U.S. Court of Appeals — Second Circuit

Page 24

554 F.2d 24

UNITED STATES of America, Plaintiff-Appellee. v. William M. ORDNER, Jr., Defendant-Appellant.

No. 592, Docket 76-1428.

United States Court of Appeals, Second Circuit.

Argued Jan. 4, 1977.

Decided April 18, 1977.

James A. Moss, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., Audrey Strauss, Asst. U. S. Atty., for the Southern District of New York, New York City, of counsel), for plaintiff-appellee.

Charles J. Irwin, Newark, N. J., for defendant-appellant.

Before MOORE, OAKES and TIMBERS, Circuit Judges.

MOORE, Circuit Judge:

Appellant William M. Ordner, Jr., is a licensed commercial 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. ¹ 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. ² 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 "THREE" unlawful possession of 502 .25 caliber "Pen Guns" (26 U.S.C. §§ 5842, 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 to modification after a 90-day study to be conducted pursuant to 18 U.S.C. § 4205(c) and (d).

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 possession 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 Government informer. He had been arrested by Special Agent Joseph Kelly of the Bureau of Alcohol, Tobacco and Firearms 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 Armonk, New York.

Romano contacted Ordner and made arrangements for him to meet the "contractor" whom Romano had mentioned at their earlier meeting. On August 25, 1975, Romano 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.

Ordner and Romano entered the house and were met by Stagg, Kelly, and another Special Agent, who were introduced respectively as "Mr. S", "Joe Keen", and "Mr. S's bookkeeper". When Ordner asked about the blasting work, "Mr. S" 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 ailment. 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 meetings which took place over the next month, but their versions 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, ³ 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. ⁴ Kelly testified further that Ordner offered on more than one occasion to supply the "family" with other types of guns; the Government introduced a tape recording of one such conversation between Ordner and Kelly. ⁵

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 authorities. Romano's death added to the aura of fear surrounding 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, COERCION AND 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 or potential. Nor is there any proof that he was under surveillance of any kind or for any purpose. To the contrary, 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 indicative 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, Romano 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 Waxman 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 chieftain "Mr. S". 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) 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 Romano's "dying wish" that Ordner succeed him as a member of the "family" a wish that Stagg emphasized by kissing Ordner on both checks. 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 upstairs.

The thespian talents of this Kelly-directed task force were eminently successful. To them it was "a kind of an act" and "the But entrapment as a matter of law is not so easily disposed of.

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).

Even assuming that Romano, to stay in the Government's good graces, had to find a "victim" and that he reported 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 enticement, 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, 91 S.Ct. 1659, 29 L.Ed.2d 149 (1971); United States v....