555 F.2d 152 (7th Cir. 1977), 75-1401, United States v. Townsend

Docket Nº:75-1401.
Citation:555 F.2d 152
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jonathan TOWNSEND, Defendant-Appellant.
Case Date:May 10, 1977
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 152

555 F.2d 152 (7th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jonathan TOWNSEND, Defendant-Appellant.

No. 75-1401.

United States Court of Appeals, Seventh Circuit

May 10, 1977

Argued Oct. 1, 1976.

Rehearing and Rehearing En Banc Denied June 7, 1977.

Page 153

Michael B. Constance, Belleville, Ill., for defendant-appellant.

Henry A. Schwarz, U. S. Atty., Clifford J. Proud, Asst. U. S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Before SWYGERT and CUMMINGS, Circuit Judges, and WOLLENBERG, Senior District Judge. [*]

CUMMINGS, Circuit Judge.

After a jury trial, defendant was convicted on four counts of a six-count indictment 1 charging firearm offenses occurring on January 24 and January 30, 1974, in violation of 26 U.S.C. §§ 5861(c), 5861(d), 5821(a) and 5871. The firearms involved were two sawed-off shotguns, and he received five-year concurrent imprisonment sentences on the first and third counts. On the remaining counts he was sentenced to five years' probation to be served consecutively to the completion of the sentence on Counts I and III.

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On appeal, defendant contends that the Government did not prove him guilty beyond a reasonable doubt because it failed to rebut his entrapment testimony and that the evidence showed entrapment as a matter of law. He also contends that the trial court erroneously permitted the Government to impeach him with prior convictions which were over ten years old. We reject these contentions and therefore affirm.

Special Agent James Warren of the Illinois Bureau of Investigation was the Government's first witness. On January 24, 1974, he was visiting informer Ulysses "Ted" Core in his apartment at 533 Collinsville Avenue in East St. Louis, Illinois. During Warren's visit to Core's apartment, defendant Townsend, who had the adjoining apartment, was admitted. When a discussion occurred about a sawed-off shotgun, defendant stated that he had a particular shotgun ready for sale because he had worked on it the previous night. Defendant told Warren he would obtain the gun and left with Core to do so. When they returned, Core set a blue and red tote bag containing the gun on the floor. Defendant took the gun from the bag and gave it to Warren, requesting $80 for it. Thereupon Warren gave the money to Core, who passed it to defendant, who then pocketed it. Warren said that Government Exhibit 1 was the shotgun he purchased from defendant and that it had a barrel length of less than 18 inches.

Warren was also present in Core's apartment on January 30, 1974. Defendant arrived and asked Warren if he was interested in purchasing another shotgun for $90, this one being a double-barreled shotgun. Warren asked defendant if he might look at the gun. When defendant returned with the gun, he asked Warren and Core to come on the back porch to avoid Core's other visitors. Defendant had a corrugated box at his feet on the back porch and took the gun therefrom at Warren's request and gave it to Warren for $90, which defendant requested Warren to hand to Core, who in turn handed it to defendant, who then pocketed it. Warren said that Government Exhibit 2 was the shotgun he purchased from defendant on January 30 and that the double barrel lengths were 11 inches.

On cross-examination, Warren testified that he had been at the Collinsville Avenue apartment building twenty or thirty times before the January 24 transaction. Core worked for the Illinois Bureau of Investigation as an informer and was paid on a case-by-case basis. Warren thought that the Bureau was withholding prosecutions of Core although he did not know what the charges against Core were. Warren admitted that when he went to the Collinsville Avenue address on January 24 he was wired for sound and intended to purchase a shotgun from defendant. Similarly, on January 30, he was wired for sound and went to the same building to buy another shotgun from defendant. Warren conceded that he gave the cash to Core who thereupon handed it to Townsend because the defendant would not take the cash at first.

Special Agent Robert Biby of the Illinois Bureau of Investigation surveyed the Core and Townsend apartments on January 24 and 30 and corroborated much of Warren's testimony about the firearms. He thought that Core, who was unemployed, had been paid $100 cash for his work as an informer in each of these transactions. He added that the Illinois Bureau of Investigation had no pending charges against Core but that other police organizations did and that the Bureau would speak up for him because of his cooperation.

Special Agent William J. Lukowski of the Bureau of Alcohol, Tobacco, and Firearms testified that on May 15, 1974, he fired Government Exhibits 1 and 2. They were in operating condition, and neither had been registered with the National Firearms Registration and Transfer Record. 2 When he arrested defendant in November 1974, he interviewed Warren but the Illinois Bureau

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of Investigation did not permit him to interview Core.

Defendant then testified on his own behalf and stated that he had known Core for eleven years but did not know that he was an informant for the Illinois Bureau of Investigation, although he had heard so and had confronted Core with the rumor which Core specifically denied. He said that Core brought him a firearm toward the end of January 1974 and asked him to keep it for Core, because he was having trouble with his "old lady," until he could sell it. Townsend retained the weapon 2-4 days prior to Warren's January 24 visit. On that date, Core told defendant to get "that piece" ready because the "dude" was coming to pick it up. Later that day, at Core's request, defendant came to Core's apartment and met Warren, whom defendant had seen at Core's apartment twice before. They talked about the gun, and defendant and Core went to defendant's apartment where Core told defendant to ask $80 for the gun and infer that it was defendant's weapon. Core carried the weapon back to his apartment where defendant told Warren that he and Core had agreed on $80 for the weapon. After Warren gave the money to Core, he and Townsend went back to defendant's apartment to split the money evenly, since Core owed defendant money.

On another occasion, defendant visited Warren at Core's apartment and delivered a weapon that he had received a day or a day and a half before from Core. The weapon was in a cardboard box which defendant took outside and put on Core's porch before knocking on Core's door. Core came out to discuss the price to ask for the gun, and then Warren came out and paid Core for the gun, with Townsend receiving $25 or $30 later when Core brought it to defendant's apartment. Defendant admitted that he was an "ex-police character," had been convicted of burglary in Missouri in 1958 and in Illinois in 1959 and had been convicted in Illinois of armed robbery in 1962.

On cross-examination, defendant admitted that he had kept the first weapon sold to Warren for two or three days and knew that it was a sawed-off shotgun. He kept the second weapon for 23 or 24 hours. On being presented on direct with Government Exhibit 2 at trial, Townsend first said that "(i)t looks familiar" but then immediately recanted by saying that he had never seen it "before in his life." On cross, the defendant reiterated that he had never seen Exhibit 2. He said that "piece" means gun in black ghetto language, and that the term was also used by persons familiar with firearms. He said he had been involved in firearms all his life and had been in service when he was 16. He added that he had been arrested with a firearm within five or ten years and had no qualms about having a gun because he was authorized to have one.

The defendant's motion for acquittal at the close of all the evidence was denied and the issue of entrapment was submitted to the jury which returned a guilty verdict as to all four counts.

I

Defendant's principal argument is that the Government did not prove him guilty beyond a reasonable doubt, for it assertedly failed to prove predisposition beyond a reasonable doubt to rebut his testimony of entrapment. 3 Nothing in United

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States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, or Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113, would compel the Government to prove Townsend's predisposition by the testimony of informer Core, as the dissent suggests. Here the evidence was such that, viewing it most favorably to the Government under Glasser, 4 the jury could find predisposition on Townsend's part. There was ample testimony by Illinois Bureau of Investigation Agent Warren to show lack of any reluctance on Townsend's part. Thus he testified that defendant entered Core's apartment on January 24 and said the sawed-off shotgun was ready because he had worked on it the night before. Defendant said a butt would make the gun too bulky to conceal. He told Warren he would get the gun, leaving with Core to fetch it. Subsequently Core returned with a tote bag, but Townsend took the gun from the tote bag and gave it to Warren, advising him to be careful because it was loaded. He requested $80 for it, saying the only problem with the gun was that it did not have a handle but he had planned to cut the stock down to pistol-grip size and pour lead into the handle to give it weight and balance. Townsend took the money that Warren handed Core and put it in his pocket. On January 30, Townsend asked Warren if he was interested in purchasing a double-barreled sawed-off shotgun for $90. Townsend obtained it from his apartment and gave it to Warren on Core's back porch. Warren handed the money to Core, who gave it to Townsend who proceeded to pocket the cash. Defendant testified that he kept...

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