U.S. v. Jones

• Decision Date: 18 September 1992
• Docket Number: No. 91-5298,91-5298
• Citation: 976 F.2d 176
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Clement JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 176

976 F.2d 176

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Clement JONES, Defendant-Appellant.

No. 91-5298.

United States Court of Appeals, Fourth Circuit.

Argued May 5, 1992.

Decided Sept. 18, 1992.

John Kenneth Zwerling, Moffitt, Zwerling & Kemler, P.C., Alexandria, Va., argued (William B. Moffitt, Lisa B. Kemler, Alan J. Cilman, on brief), for defendant-appellant.

Jacquelyn Irwin Custer, Asst. U.S. Atty., Charleston, W.Va., argued (Michael W. Carey, U.S. Atty., on brief), for plaintiff-appellee.

Before PHILLIPS, MURNAGHAN, and NIEMEYER, Circuit Judges.

OPINION

NIEMEYER, Circuit Judge:

A jury convicted Daniel Clement Jones for possessing, transferring, and transporting in interstate commerce two shotguns which he had modified to function as machine guns and sold to federal undercover agents, in violation of the National Firearms Act, 26 U.S.C. §§ 5801-72. Jones now challenges his conviction, contending principally that (1) he was entrapped as a matter of law, (2) the undercover operation, constructed to "ensnare" him, was "so outrageous as to shock the conscience of the court," thereby violating his right to due process, and (3) the government's decision to charge him under the National Firearms Act and not under the Gun Control Act of 1968, 18 U.S.C. §§ 921-30, violated due process because, he contends, an amendment to the Gun Control Act rendered unenforceable the applicable provisions of the National Firearms Act. He also maintains that the district court abused its discretion during the course of trial in excluding certain evidence, in refusing to declare a mistrial on the firearms counts after it admitted evidence on a money laundering count which it then dismissed at the end of the government's case, and in failing to give certain instructions to the jury. Concluding that Jones was not denied due process and that the district court committed no reversible error, we affirm.

I

During an undercover investigation conducted by the IRS into money laundering operations thought to involve Donald E. Kramer, a businessman from Cody, Wyoming, and Don Barton, a venture capitalist from Dallas, Texas, Kramer referred the IRS to the defendant, Daniel Jones, as one who might launder money and supply illegal weapons. Jones was a mechanical engineer living in Texas who was seeking venture capital to market two inventions. After referring the IRS to Jones, Kramer contacted Jones, informing him that Kerry Anthony, an undercover informant for the government, had money to invest and was also interested in obtaining weapons. Jones and Anthony thereafter, in several telephone conversations, discussed investments and weapons, and more particularly Jones' design to convert shotguns into machine guns and his willingness to manufacture such conversion kits.

On July 19, 1990, Jones flew from Texas to Parkersburg, West Virginia, to meet Anthony and Richard Kemp, an undercover agent of the Bureau of Alcohol, Tobacco and Firearms, and to demonstrate his conversion design. In a hotel room there, he altered the trigger assembly of a semi-automatic shotgun using small pieces of metal, while he explained that the modification would render the shotgun fully automatic and could not be detected without removing the trigger assembly or firing the weapon. The three then went to a firing range to test the weapon, which twice fired two shells with one pull of the trigger, then returned to firing only single shots with each trigger pull. Jones diagnosed the malfunction, concluding that a stronger spring was probably required.

On July 26, Anthony received a UPS package containing a trigger assembly that, when substituted for the original, allowed Kemp to fire a semi-automatic Remington shotgun continuously so long as the trigger was depressed. A few days later, Kemp called Jones to confirm receipt of the assembly from Jones and to congratulate him on his workmanship. During the course of negotiations about money that followed, Kemp requested five more converted shotguns and Jones indicated, more than once, his willingness to manufacture them. Kemp and Jones also discussed the possibility that Kemp might invest in one of Jones' companies and other prospects of future cooperation in the "long term." In a follow-up telephone conversation, Jones agreed to drive to Parkersburg a few days later with two modified shotguns and several nine-millimeter handguns.

On August 3, 1990, Jones drove to West Virginia with the two converted shotguns, four handguns, and other items. In a hotel room in Parkersburg, he met Anthony, Kemp, and local Deputy Sheriff Bruce Schuck, who was acting as an associate of Kemp's. They first discussed Jones' remuneration, agreeing to $2,000 for each of the converted shotguns, $1,000 for each of the handguns, and $12,000 for Jones' start-up costs. They also agreed that Jones would supply future lots of 20 to 30 converted shotguns at $1,400 each and 25 to 50 nine-millimeter handguns for $900 each. During these discussions, Kemp told Jones that the money was "dope money," but Jones responded, "I don't care," and, "As far as I'm concerned, you guys are working--this is going to the Contras...." Kemp responded, "Well, that's cool. That's cool." When Anthony later said, "If you want to call them Yaqui Indians Contras, we can call 'em anything you want to," Jones answered, "I don't know nothing about any goddamn Indians.... Same thing Oliver North and Reagan have done, as far as I'm concerned." At the meeting, Jones received $50,000 in cash to pay for the arms and other merchandise and to fund the further production of weapons. As Jones left the hotel room in possession of the cash, he was arrested.

The government indicted Jones in seven counts, two counts for possessing a firearm made without the approval required by 26 U.S.C. § 5822, in violation of 26 U.S.C. § 5861(c); two counts for transferring a firearm without the approval required by 26 U.S.C. § 5812(a), in violation of 26 U.S.C. § 5861(e); two counts for transporting a firearm which was not registered as required by 26 U.S.C. § 5841, in violation of 26 U.S.C. § 5861(j); and one count for money laundering in violation of 18 U.S.C. § 1956(a)(3). After the government presented its case at trial, the district court directed a verdict of acquittal on the money laundering count. Jones was convicted of the other counts and sentenced to 15 months imprisonment.

At trial, Jones did not deny that he manufactured, transported and transferred the modified shotguns without the requisite authorizations and registrations but presented evidence to support his argument that he had been entrapped and that he thought he was dealing with government agents seeking to acquire automatic weapons. He also requested a mistrial on the ground that the admission of evidence about drugs and money, pertinent to the dismissed charge of money laundering, unduly prejudiced his defense on the weapons charges. From adverse rulings on these points and on other rulings on evidence and jury instructions, this appeal followed.

II

Jones' principal defense at trial and principal point on appeal is that he was entrapped as a matter of law. Contending that his knowledge that his conduct was criminal is essential to the government's effort to rebut an entrapment defense, Jones asserts that he did not know that the conduct was criminal because he thought he was supplying the converted shotguns to government agents for use by the Contras in Nicaragua. He also contends that his decision to commit the crime was the product of undue governmental persuasion because of the large amounts of money it was offering at a time when he was in need of money. The district court submitted the defense to the jury, and the jury returned a guilty verdict. Jones argues that he should nevertheless be entitled to the benefit of the entrapment defense as a matter of law.

The affirmative defense of entrapment recognizes that the government may solicit or otherwise provide the opportunity to commit a crime for those predisposed to do so but may not "implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Jacobson v. United States, --- U.S. ----, ----, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 147 (1992); see also United States v. Osborne, 935 F.2d 32, 37-38 (4th Cir.1991). Once a defendant meets his initial burden of presenting evidence that the government induced him to commit the crime, Osborne, 935 F.2d at 38; United States v. Akinseye, 802 F.2d 740, 743 (4th Cir.1986), cert. denied, 482 U.S. 916, 107 S.Ct. 3190, 96 L.Ed.2d 678 (1987), the government has the burden of proving "beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents." Jacobson, --- U.S. at ----, 112 S.Ct. at 1540; see Osborne, 935 F.2d at 38.

The government may meet its burden by demonstrating the defendant's ready response to the inducement offered. See Jacobson, --- U.S. at ----, 112 S.Ct. at 1541; Osborne, 935 F.2d at 38. While such a response after lengthy efforts by the government to induce the commission of a crime is not sufficient, Jacobson, --- U.S. at ----, 112 S.Ct. at 1543, it is sufficient to show that " 'the defendant is of a frame of mind such that, once his attention is called to the criminal opportunity, his decision to commit the crime is the product of his own preference and not the product of government persuasion.' " Osborne, 935 F.2d at 38 (quoting Akinseye, 802 F.2d at 744).

Finally, if, as in this case, the issue of entrapment is submitted to the jury, the jury's finding of guilt comprehends a finding of no entrapment. Consequently, an appellate court may overturn this determination only if no rational trier of fact could have found predisposition beyond a reasonable doubt, viewing the evidence in the light most favorable to the prosecution....