U.S. v. Conway, 74-2284

• Decision Date: 12 February 1975
• Docket Number: No. 74-2284,74-2284
• Citation: 507 F.2d 1047
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry CONWAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1047

507 F.2d 1047

UNITED STATES of America, Plaintiff-Appellee, v. Harry CONWAY, Defendant-Appellant.

No. 74-2284.

United States Court of Appeals, Fifth Circuit.

Feb. 12, 1975, Rehearing and Rehearing En Banc Denied April 2, 1975.

Owen A. Neff, Cicero C. Sessions, New Orleans, La., for defendant-appellant.

Anthony J. P. Farris, U.S. Atty., Ronald J. Waska, Mary L. Sinderson, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.

COLEMAN, Circuit Judge.

After trial to a jury, Harry Conway, defendant-appellant, was convicted on a two count indictment alleging in Count One a malicious attempt by means of explosives to bomb a building affecting interstate commerce, a violation of 18 U.S.C. 844(i), and in Count Two of traveling in interstate commerce with intent to promote the unlawful activity of arson in violation of Maryland laws and thereafter performing acts to facilitate the said unlawful activity in violation of 18 U.S.C., 1952(a)(3). Mr. Conway was fined $5,000 and placed on supervised probation for three years. We affirm.

Appellant owned an interpreting company in Greenwich, Connecticut. The prosecution centered around the testimony of Wiley F. Altman, operations manager of the Astrohall in Houston, Texas. Mr. Altman testified that he met the appellant in connection with a 1968 convention in the Astrohall, and that he had an association with appellant in two or three other conventions between 1968 and 1972.

The witness testified that during April, 1972, appellant handled the foreign language interpretation for a convention being held in the Astrohall; that on April 19 Mr. Conway came to his office 'out of the blue' with a proposition to seek Altman's assistance in blowing up a building in Landover, Maryland, which was owned by a business competitor of appellant. Conway added that he was on his way out of town, and instructed Altman to call him if he 'came up with anything'.

Altman testified that he intentionally gave Conway the impression he could find someone to bomb the building, and the next day called the Secret Service in Austin and related Conway's proposition. The witness was subsequently contacted by Houston police officers and by agents Lowry and Johnson of the Alcohol, Tobacco, and Firearms Division of the United States Treasury Department (ATF).

On May 9, 1972, appellant called Altman to find out what progress had been made pursuant to their conversation of April 19. Altman had been furnished tape recording equipment by the Houston police, and the conversation was recorded in the presence of three Houston police officers and the two ATF agents.

During the period May 9-May 26, 1972, Altman and Conway talked several times, and each conversation was recorded.

During the evening call of May 9, informer Altman advised appellant that he had found people (the people ultimately turned out to be ATF agents Lowry and Johnson) who could do the bombing. During ensuing conversations between May 9 and May 26, informer Altman initiated plans for Conway to take movie pictures of the target building which could be shown to the bombers. He also suggested that a $5,000 down payment be made to those who would blow up the building, with $5,000 to follow upon completion of the job, and another $5,000 be paid to himself as a finder's fee for getting the job done.

As suggested, appellant went to Maryland and filmed the target building, borrowed $15,000 in New York, and flew from New York to Houston on May 26, 1972. Altman met him at the airport, and took him to a local motel where Altman introduced agents Lowry and Johnson to Conway as the persons who would do the bombing in Landover, Maryland. Appellant twice showed the assembled group the movie pictures of the building to be bombed. He then handed $5,000 cash to one of the two agents, and $900 of the finder's fee to informer Altman.

All of the above events occurring in the motel room were recorded by Houston police officers and other ATF agents who occupied the adjoining room. At a prearranged signal, appellant was arrested.

As grounds for reversal, appellant contends:

I

The District Court erred in failing to enter a judgment of acquittal because

A. The facts established entrapment as a matter of law,

B. It was legally and factually impossible for him to commit the crime charged in Count I,

C. There is a fatal variance between Count II and the facts adduced at trial;

II

The jury was improperly instructed;

III

The trial court erred in admitting into evidence certain tape recordings;

IV

The trial court erred in failing to grant a mistrial following prejudicial statements made by the government prosecutor.

I

(A)

Appellant bases his entrapment argument on United States v. Bueno, 5 Cir., 1971, 447 F.2d 903. In that case there was uncontradicted testimony that the defendant, on trial for selling heroin to a government agent, had been furnished the contraband by a government informer. We held that the facts established entrapment as a matter of law because there was no dispute in the evidence that the government supplied the defendant with the means to commit the crime. Conway contends that the 'bombers' were supplied by the informer Altman, thus the case is controlled by Bueno.

Although Conway testified that informer Altman initiated and planned the bombing, Altman testified the plan originated with Conway. Undoubtedly, there was evidence from which the jury could find (as it did) that the bombing scheme originated with Conway.

The defendant's predisposition to commit the crime remains the test for entrapment, United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 36 L.Ed.2d 366; United States v. Register, 5 Cir., 1974, 496 F.2d 1072, 1081. The fact that officers or employees of the government afford opportunities or facilities for the commission of the offense will not defeat a prosecution, Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848.

As Mr. Justice Rehnquist noted in Russell, supra, 411 U.S. at 432, 93 S.Ct. 1637, infiltration and limited participation in some unlawful practices frequently affords the only means of their detection.

(B)

Appellant also contends that a judgment of acquittal should have been entered because it was legally and factually impossible for him to commit the crime charged in Count One-- attempting to bomb a building 'affecting interstate commerce'. He contends that an essential element of this crime is the use of an explosive, and that no showing was made of the existence or use of an explosive by anyone connected with the case.

The defenses of legal and factual impossibility are not applicable to this case. Legal impossibility occurs when the actions which the defendant performs, or sets in motion, even if fully carried out as he desires, would not constitute a crime. Thus, an indictment for attempted rape can be defeated by showing that the woman the defendant attempted to ravish was his wife. However, such is not the case here, since the activity Conway proposed was unquestionably illegal.

Factual impossibility denotes conduct where the objective is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing it about. The classic example is the thief who picks an empty pocket. When criminal liability has been imposed for attempt where factual circumstances precluded commission of the intended crime, proof of intent to commit a specific crime has generally been emphasized, United States v. Berrigan, 3 Cir., 1973, 482 F.2d 171. For a discussion of factual impossibility, see United States v. Roman, 356 F.Supp. 434 (1973), affirmed 2 Cir., 1973, 484 F.2d 1271, cert. denied, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1974); and W. LaFave & A. Scott, Handbook on Criminal Law 438, 445 (2d Ed., 1972).

The District Court properly declined to recognize impossibility as a defense. Appellant had completed his personal involvement in the case. All that was left for him to do was sit back and watch the bombing take place.

(C)

As a final basis for acquittal, appellant contends that there is a fatal variance between the government's allegations under Count Two of the indictment and the evidence adduced at trial.

Count Two of the indictment charged appellant with a violation of 18 U.S.C. 1952, which prohibits interstate travel with intent to carry on any 'unlawful activity'. The statute's applicable definition of unlawful activity includes 'extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States'. It is appellant's contention that at best, all the government established was an intent by him to travel in interstate commerce to procure the bombing of a building in Maryland, and that the evidence failed to disclose an intent by him to procure the burning of any building.

The record contains sufficient references to burning to indicate that Conway at least anticipated it, ant on occasion he seems to have used the words 'burning' and 'bombing' interchangeably. Informer Altman testified that when Conway initially approached him regarding the bombing, he said, 'I want the bastards blown up' or 'I want them burned out'. Conway later told Altman that '...