U.S. v. Lard, s. 83-1801

• Decision Date: 17 July 1984
• Docket Number: Nos. 83-1801,83-1807,s. 83-1801
• Citation: 734 F.2d 1290
• Parties: 15 Fed. R. Evid. Serv. 1459 UNITED STATES of America, Appellee, v. Pete Woodrum LARD and Lloyd Dean Rigsby, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1290

734 F.2d 1290

15 Fed. R. Evid. Serv. 1459

UNITED STATES of America, Appellee, v. Pete Woodrum LARD and Lloyd Dean Rigsby, Appellants.

Nos. 83-1801, 83-1807.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 11, 1984.

Decided May 15, 1984.

Rehearing En Banc Denied July 17, 1984.

Thomas E. Dittmeier, U.S. Atty., Henry J. Fredericks, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Richard J. Mehan, Jr., St. Louis, Mo., for appellant Pete Woodrum Lard.

James O'Brien, St. Louis, Mo., for Appellant Loyd Dean Rigsby.

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BRIGHT, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Appellants Pete Woodrum Lard and Lloyd Dean Rigsby were convicted on counts of conspiring to transfer (18 U.S.C. Sec. 371) and transferring (26 U.S.C. Sec. 5861(e)) an unregistered "firearm"--i.e., "a destructive device" referred to as a pipe bomb. ¹ Lard was also convicted on separate counts for making (26 U.S.C. Sec. 5861(f)) and possessing (26 U.S.C. Sec. 5861(d)) this destructive device. On appeal, Lard claims his conviction on all counts should be reversed because he was entrapped by an undercover government agent. Rigsby claims, as grounds for reversal, that there was insufficient evidence to support his convictions for conspiracy to transfer and transferring the destructive device. We agree with Lard's and Rigsby's claims and therefore reverse their conviction on all counts.

I. Facts

Most of the relevant facts are not in dispute. On March 15, 1982, undercover Agent Anderson, of the Federal Bureau of Alcohol, Tobacco & Firearms, along with undercover Agent Koelker, of the Illinois Division of Criminal Investigation, and Joey Lindsey, a government informant, went to defendant Rigsby's house to pick him up "to go drinking." Informant Lindsey had previously introduced Rigsby to the undercover agents. While the four were on their drinking trip, undercover Agents Anderson and Koelker told Rigsby they needed guns and asked him if he knew anyone who had guns for sale. Rigsby said he knew several people who might have guns. The four then, at Rigsby's direction, went to the house of a man believed to have a rifle for sale, but the man refused to sell the rifle. Rigsby then told the agents that an acquaintance of his, named "Pete"--who was in fact defendant Pete Lard--might have some guns for sale. However, Rigsby had not spoken to Lard for several months.

Agents Anderson and Koelker testified that when they arrived at defendant Lard's house, Rigsby first went in alone, stayed for eight minutes, returned to the car, and told the agents that Lard had a shotgun and detonator. According to Rigsby's and Lard's version, however, this initial meeting between Rigsby and Lard never took place. In any event, it is undisputed that Rigsby and Anderson eventually went into Lard's apartment, where Rigsby introduced Anderson to Lard. Anderson asked Lard if his shotgun was for sale, and Lard said it was not. Anderson then asked Lard if he had any other firearms for sale, and Lard replied he only had a small detonator. Lard got the detonator from his bedroom, showed it to Anderson, and offered to sell it for $100.00. After examining the detonator, Anderson said it was not powerful enough for what he had in mind and that the price was too high. Lard then showed Anderson some shotgun shells which could be taped to the detonator to produce a more powerful effect. Anderson was not impressed, again saying that $100.00 was too much money for some shotgun shells and a small detonator.

Anderson testified that, at this point of apparent impasse, Rigsby suggested that perhaps a pipe bomb would be more suitable for Anderson's purported purpose of blowing up a car. Rigsby and Lard testified, however, that Anderson was the one who brought up the idea of a pipe bomb. In any event, it is undisputed that Anderson implored Lard that he really needed a pipe bomb to accomplish his purpose. Lard then asked Agent Anderson if he could just sell him the small detonator and shotgun shells. Anderson answered that the small detonator was worth only $50.00. Lard then, after pausing for a few minutes, said he could make a pipe bomb, at a price of $100.00, and that the bomb would be ready about three hours later, at 6:00 p.m. Anderson and Rigsby then left.

Agents Anderson and Rigsby returned to Lard's apartment at 6:33 p.m. Lard showed them the pipe bomb, explaining how it could be attached to a car's radio, hot wire, engine coil, or gasoline tank. Anderson asked Lard what the bomb was made of, and Lard told him that it contained nails, some shotgun powder, some primer caps, and an electrical blasting cap. Anderson took the bomb, and headed back to the car, while Rigsby remained in the apartment long enough to ask Lard if he had any marijuana left. Rigsby emerged from the apartment a few minutes later, carrying a small plastic bag of marijuana which, according to Anderson, Rigsby claimed to have received "for his troubles." Rigsby testified that the bag contained "only seeds" and that he, the two agents, and Lard had smoked all of the "grass" while they were in Lard's apartment. The agents did not dispute this and the marijuana bag was never introduced at trial, nor was its value adduced.

On March 16, 1982, the pipe bomb was detonated by BAFT agents, who concluded that the bomb was a "destructive device" as that term is defined by 26 U.S.C. Sec. 5845(f). See supra note 1. Defendants Lard and Rigsby were then arrested.

II. Lard's Entrapment Defense

Lard contends that his convictions for conspiring to transfer, transferring, making, and possessing a destructive device-type firearm--i.e., the pipe bomb--should be reversed because he was entrapped by Agent Anderson.

The entrapment defense is based on the assumption that Congress did not intend to punish a defendant who has committed all the elements of a proscribed offense upon the inducement or instigation of government agents. United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 441, 452, 53 S.Ct. 210, 212, 216, 77 L.Ed. 413 (1932). As Mr. Justice Brandeis put it, "the Government may set decoys to entrap criminals. But it may not provoke or create a crime and then punish the criminal, its creature." Casey v. United States, 276 U.S. 413, 423, 48 S.Ct. 373, 376, 72 L.Ed. 632 (1928) (dissenting opinion). Thus, although the Supreme Court has sharply divided on the proper standard for applying the entrapment defense, it is generally agreed that "[t]he conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents." Lopez v. United States, 373 U.S. 427, 434, 83 S.Ct. 1381, 1385, 10 L.Ed.2d 462 (1963); Russell, 411 U.S. at 439, 93 S.Ct. at 1646 (Mr. Justice Stewart, dissenting). This basic underlying principle was reaffirmed in Sherman, 356 U.S. at 372, 78 S.Ct. at 820 (1958), where Chief Justice Warren stated, for the majority: "The function of law enforcement is the prevention of crime and the apprehension of criminal. Manifestly, that function does not include the manufacturing of crime."

However, the entrapment defense has no application where the government agents merely use stealth, strategy, or deception to trap an "unwary criminal" or merely provide the defendant with an opportunity or facility to commit the crime. Sherman, 356 U.S. at 372, 78 S.Ct. at 821; Sorrells, 287 U.S. at 441, 53 S.Ct. at 212. Rather, "[i]t is only when the Government deception actually implants the criminal design in the mind of the defendant that the defense or entrapment comes into play." United States v. Russell, 411 U.S. 432, 436, 93 S.Ct. 1643, 1645 (1973); Hampton v. United States, 425 U.S. 484, 489, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976); Sorrells, 287 U.S. at 442, 53 S.Ct. at 212. As the court stated in Sherman: "Entrapment occurs only when the criminal conduct was 'the product of the creative activity' of law enforcement officials .... To 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." Id., 356 U.S. at 372, 78 S.Ct. at 821, quoting Sorrells, 287 U.S. at 441, 451, 53 S.Ct. at 212, 216.

In United States v. Shaw, 570 F.2d 770, 772 (8th Cir.1978), the court, following the teachings of the Supreme Court, held that for a defendant to establish entrapment as a matter of law:

The evidence must clearly have indicated that a government agent originated the criminal design; that the agent implanted in the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government agent.

The key question is therefore whether the government agent caused or induced the defendant to commit a crime he was not otherwise predisposed--i.e., willing and ready--to commit whenever a propitious opportunity arose. See United States v. Jannotti, 673 F.2d 578, 597, 604 (3rd Cir.1982) (en banc); United States v. Borum, 584 F.2d 424, 427 (D.C.Cir.1978); United States v. Bradsby, 628 F.2d 901, 903 (5th Cir.1980). As the Supreme Court has indicated, the principal focus of this inquiry is upon the "intent or predisposition of the defendant to commit the crime." United States v. Russell, 411 U.S. at 429, 93 S.Ct. at 1641; Hampton v. United States, 425 U.S. at 488, 96 S.Ct. at 1649.

Determining a defendant's predisposition requires examination of the defendant's personal background to see "where he sits on the continuum between the naive first offender and the streetwise habitue." United States v. Townsend, 555 F.2d 152, 155 n. 3 (7th Cir.), cert. denied, 434 U.S. 897, 98 S.Ct. 277, 54 L.Ed.2d 184 (1977). It also requires considering the extent to which the...