U.S. v. Kaminski

• Decision Date: 21 March 1983
• Docket Number: No. 82-1413,82-1413
• Citation: 703 F.2d 1004
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond E. KAMINSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1004

703 F.2d 1004

UNITED STATES of America, Plaintiff-Appellee, v. Raymond E. KAMINSKI, Defendant-Appellant.

No. 82-1413.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 21, 1983.

Decided March 21, 1983.

Michael B. Nash, Chicago, Ill., for defendant-appellant.

William A. Spence, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL, POSNER and COFFEY, Circuit Judges.

PELL, Circuit Judge.

Defendant was convicted after a jury trial of travelling in interstate commerce to promote an unlawful activity, arson, in violation of 18 U.S.C. Sec. 1952(a)(3), transporting an explosive in interstate commerce unlawfully to damage and destroy a building in violation of 18 U.S.C. Sec. 844(d), and maliciously attempting to damage and destroy, by means of an explosive, a building used in interstate commerce in violation of 18 U.S.C. Sec. 844(i). Defendant relied upon the defense of entrapment at trial and now argues that the evidence demonstrated that he was entrapped as a matter of fact and law. We must assume that the jury chose to accept the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

I Facts.

In January or February of 1981 defendant accompanied his girlfriend during a visit to Northwest Parish Credit Union in an attempt to reclaim her automobile, which had been repossessed. In the course of this visit defendant spoke with James Kramer, a/k/a James Seider, an employee of the credit union. Unbeknown to defendant, Kramer was also employed as an informant for the Bureau of Alcohol, Tobacco, and Firearms (ATF). Defendant mentioned that he was looking for work and was interested in buying and selling cars. A week later defendant again visited the credit union and told Kramer that he needed money and would be willing to repossess cars and was not particular about the legality of his employment. Defendant returned a few days later and spoke with Kramer, mentioning that he was experienced at blowing up and burning buildings and would be willing to put his skills to work for Kramer. Kramer said that he would keep this in mind. Defendant repeated this offer in March. Kramer informed Special Agent Hal Walker of ATF's Arson for Profit Group that defendant purported to be an arsonist for hire.

Defendant did not return to the credit union until September, when he came to buy a car for his mother. During this visit defendant explained that he had been in Texas during the summer and had been employed to blow up a building. Because of his exploits in Texas defendant had been forced to make a hasty return to Chicago and was in need of money. Defendant repeated this story to an undercover agent who was working with Kramer. The agent later tried unsuccessfully to verify defendant's claim that a building had been blown up in Texas. Kramer told defendant that he knew someone who might be interested in hiring an arsonist.

On October 1, 1981, Kramer introduced defendant to agent Walker during a telephone conversation. Walker told defendant that he was looking for someone to blow up buildings and would be interested in talking with defendant. Later that afternoon Walker made a telephone call to defendant and said that he needed someone "to take down a building." When asked about his experience defendant replied, "I've burned 'em. I've never blown 'em up." Defendant expressed interest in meeting Walker and discussing the possibility of destroying the building. This conversation was recorded, as were all subsequent conversations.

Walker and defendant met the next day at a bar to discuss business. Walker said that he wanted to hire a professional arsonist, which prompted defendant to boast about his credentials as an arsonist. Defendant explained how he could start a fire that would appear to be an electrical accident or the result of a furnace explosion. He also claimed to have burned three buildings and repeated his account of working in Texas "making things go wrong" in a building. Walker was suitably impressed and mentioned that there might be more jobs in the future if the first went well. Defendant promised that he would not back out of the deal, and Walker said that he would pay defendant $1,000 for destroying the building.

After several telephone conversations, Walker and defendant agreed to meet at an all-night diner before driving into Wisconsin to examine the tavern defendant was to destroy. Defendant failed to make the meeting because of mechanical problems with his car, but assured Walker the next day that he was not withdrawing from the job. On October 13 the two men drove to Wisconsin to visit the tavern. During the trip defendant discussed his experiences and explained that he preferred to use lighter fluid because, unlike gasoline, it left no chemical residue to indicate arson. Defendant also mentioned that he was attempting to get in touch with a professional arsonist who could teach him how to use timers to start fires. Walker volunteered to finance defendant's "education." They inspected the tavern and agreed to rendezvous at a diner in Richmond, Illinois, that morning.

Walker and defendant met at the diner, where Walker paid $500 to defendant and arranged to pay the remaining $500 after the tavern was destroyed. Defendant took a key to the tavern and, after bending his license plates to avoid detection, drove his own car into Wisconsin. Defendant was arrested by surveillance agents after letting himself into the building and removing one of two cans of lighter fluid from his coat pocket. After being advised of his rights he offered to make a deal, explaining that this was his first arson job and that he was working for "Hal" (Walker's first name). When he saw Walker enter the tavern he exclaimed "you set me up." Walker asked about the arson in Texas, but defendant, prophetically, would only reply, "I can't tell you that. They will kill me. I will just have to go to jail."

At trial defendant confirmed that he had met with Walker and admitted the accuracy of the recorded conversations, but claimed that none of what he told Walker concerning his expertise as an arsonist was true. Defendant also claimed that he had never been to Texas and that one of the buildings he claimed to have burned never existed. He explained that his knowledge of various arson techniques came from working at a gas station and at an engineering firm and from talking with firemen. He testified that he had made up the story about Texas to stop Kramer from "pestering" him, although he admitted that Kramer had never "pestered" him about starting fires. Defendant also admitted that he had not been pressured by Walker and had had plenty of opportunities to withdraw from the scheme but had continued to meet with Walker because he was interested in burning the building. He also conceded that he had agreed to destroy the tavern before knowing how much he would be paid.

II Entrapment.

Defendant argues that the evidence established entrapment as a matter of fact and law. In making this argument defendant has confused the defense of entrapment with the separate defense of governmental misconduct in violation of due process. As a first step in an examination of the distinction between the two defenses we turn to the four major entrapment decisions of the United States Supreme Court.

In the first of these cases, Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), defendant was persuaded to sell illegal liquor to a government agent by repeated appeals to defendant's sympathy for a fellow war veteran. The majority of the Court, reversing the trial court's refusal to submit the defense of entrapment to the jury, held that as a matter of statutory construction the defense of entrapment was raised by the introduction of evidence that the crime was committed at the instigation of the Government and that the defendant was not predisposed to commit the offense. Under this analysis entrapment is a question of fact to be decided by the jury. In a separate opinion three members of the Court argued that the defense of entrapment should focus upon the extent of the Government's misconduct and was grounded in the judiciary's power to "protect itself and the government from such prostitution of the criminal law." 287 U.S. at 457, 53 S.Ct. at 218. Under this objective test the defendant's character is irrelevant. The minority argued that it was the duty of the court, not the jury, to close its doors to prosecutions founded upon governmental misconduct in inducing or creating crime.

This difference of opinion was repeated in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1952), in which the majority held that "[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." 356 U.S. at 372, 78 S.Ct. at 820. A minority of the Court argued for an objective test of the Government's conduct that would not consider the predisposition of the defendant. Both groups agreed that entrapment was established as a matter of law when the uncontroverted evidence disclosed that defendant sold narcotics to an informer only after numerous pleas to defendant's empathy for one suffering the ravages of withdrawal overcame defendant's initial reluctance. There was no persuasive proof of defendant's predisposition and defendant made no profit from the sales. In effect the Government had created a criminal out of a person attempting to break his addiction simply for the sake of arresting him.

Although the members of the Court have changed, the disagreement over the source and scope of the entrapment defense remains. In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the majority held that entrapment is limited to those situations in which the "Government's deception...