U.S. v. Mayo

• Decision Date: 08 April 1983
• Docket Number: Nos. 631,D,632,s. 631
• Citation: 705 F.2d 62
• Parties: UNITED STATES of America, Appellee, v. Harold F. MAYO, Jr. and Mark A. McGarghan, Defendants-Appellants. ockets 82-1256, 82-1258.
• Court: U.S. Court of Appeals — Second Circuit

Page 62

705 F.2d 62

UNITED STATES of America, Appellee, v. Harold F. MAYO, Jr. and Mark A. McGarghan, Defendants-Appellants.

Nos. 631, 632, Dockets 82-1256, 82-1258.

United States Court of Appeals,

Second Circuit.

Argued Dec. 14, 1982.

Decided April 8, 1983.

Jeanne Baker, Cambridge, Mass. (Baker & Fine, Cambridge, Mass., John J. Bergeron, Desautels & Bergeron, Inc., Burlington, Vt., of counsel), for defendant-appellant Mayo.

Stephen S. Blodgett, Burlington, Vt. (James R. Crucitti, Blodgett & Watts, Burlington, Vermont, of counsel), for defendant-appellant McGarghan.

Sheila M. Ware, Asst. U.S. Atty., George J. Terwilliger, III, Asst. U.S. Atty., D. Vt., Montpelier, Vt. (George W.F. Cook, U.S. Atty., Holly K. Harris, Asst. U.S. Atty., Dist. of Vt., Montpelier, Vt., of counsel), for appellee U.S.A.

Before OAKES, VAN GRAAFEILAND and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Harold F. Mayo, Jr. and Mark A. McGarghan, two of six defendants below, appeal their convictions for assorted violations of the federal firearms laws. After a five week jury trial before Judge Coffrin of the United States District Court for the District of Vermont, Mayo was found guilty on four counts of receipt of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(h) (1976) (counts 3 through 6); two counts of unlawful transfer of a machine gun in violation of 26 U.S.C. Sec. 5861(e) (1976) (counts 11 and 13); one count of unlawful possession of a machine gun in violation of 26 U.S.C. Sec. 5861(d) (1976) (count 12); one count of dealing in firearms without a license in violation of 18 U.S.C. Sec. 922(a)(1) (1976) (count 16); two counts of aiding and abetting violations of 18 U.S.C. Sec. 922(a)(1) (1976) (counts 17 and 18); and one count of conspiracy to commit the above offenses in violation of 18 U.S.C. Sec. 371 (1976) (count 20). McGarghan was found guilty of unlawfully transferring a machine gun (count 13); unlawfully dealing in firearms without a license (count 17); conspiring to violate the firearms laws (count 20); and aiding and abetting violations of the firearms laws (counts 5, 6 and 16). Mayo was sentenced to four concurrent one-year terms of imprisonment plus five years probation. McGarghan received three concurrent six month prison terms plus three years probation.

I

In early 1980, agents of the United States Bureau of Alcohol, Tobacco and Firearms (BATF) were investigating possible firearms violations by John P. Cleary, the operator of a retail firearms business in Williston, Vermont named Cleary and Company. ¹ In the course of the BATF investigation, an agent was informed by a Cleary and Company employee that Neil Chamandy, a Canadian citizen, was in the area trying to peddle modern firearms. An undercover BATF agent approached Chamandy and learned that he had tried to sell several modern weapons to Cleary. BATF secured Chamandy's help in its investigation and armed him with a transmitter to Chamandy, who held himself out as a wealthy firearms broker and collector with a particular interest in antique firearms, called Cleary on July 11, 1980, and the two agreed to meet in Vermont later that month. When they met on July 28, Cleary purchased two of the four modern guns Chamandy had for sale. Cleary offered to introduce Chamandy to Harold Mayo who was reputed to have an extensive antique firearm business. Like Cleary, Mayo also had been convicted previously of violating the federal firearms law and, as a consequence, was not licensed to deal in modern firearms. Although 18 U.S.C. Sec. 922(a)(1) (1976) makes it illegal to deal in firearms without a license, and 18 U.S.C. Sec. 922(h) (1976) makes it unlawful for a convicted felon to receive firearms from interstate commerce, antique weapons can be lawfully traded without a license. Antique firearms are excepted from the definition of "firearm" in 18 U.S.C. Sec. 921(a)(3) (1976), and include generally guns manufactured on or before 1898 as well as replicas of guns manufactured on or before 1898. 18 U.S.C. Sec. 921(a)(16) (1976). Although Mayo could not lawfully purchase the weapons Chamandy had for sale, Cleary suggested that perhaps they could transact some business. Mayo agreed to meet with them that night at Cleary and Company.

record subsequent conversations with Cleary and others. ²

Mayo arrived with a car trunk filled with both antique and modern weapons. From this assortment Chamandy purchased two Colt .22 caliber derringers for $250. This transaction formed the basis of counts 3 and 4 of the indictment. The recorded conversations showed that Mayo hoped to conduct further business with Chamandy: "I want to do a lot of business. I don't want to do $50 and it's all over.... Understand what I mean. I love buying. I don't like selling...." (R115). However, Mayo declined to purchase Chamandy's modern weapons: "I wouldn't take them as a gift.... I really wouldn't.... I just don't know where ... to go with them." (R146).

Mayo was eager to sell guns the following day. He described an array of firearms to Chamandy that were available for purchase. When Chamandy asked if Mayo could acquire "Teddy Roosevelts"--Winchester .30-.30 caliber commemorative rifles--Mayo responded: "Yeah and I can get 'em today." (R156). Chamandy also requested .32 caliber revolvers. Mayo said he had many, "about eight of them right now." (R163). Chamandy was pleased. He told Mayo: "I'll be very honest with you[,] I came with like twenty five thousand dollars in cash and I wanted to spend it. I will spend it with you." (R164).

Mayo located several available "Teddy Roosevelts" soon thereafter. He did not acquire the guns, however, because as the tapes showed he "wasn't supposed to have those, cause they're the modern type, ya know?" (R195). But, he reassured Chamandy that he would "get somebody to go get them, ya know?" (R197). They agreed to meet on August 7 in Burlington, Vermont to transact business. Mayo also hoped to introduce Chamandy to other gun-dealing friends.

Chamandy arrived in Burlington the morning of August 7 and took a room in a local motel. Mayo arrived at the motel that afternoon, his car loaded with firearms. Chamandy purchased nine guns from this collection, among them the two Teddy Roosevelt commemorative rifles that were the subjects of counts 5 through 8. Mayo was suspicious of Chamandy, but not so much so that he would refuse to deal with him The following day, during one of several recorded phone conversations, Chamandy expressed interest in obtaining a machine gun. Mayo jumped at the opportunity: "I know where there's one. You could own ... one today." (R350). Mayo stated the price and offered to arrange delivery, but he insisted that he "wouldn't put [his] hand on it." (Id.) That afternoon, per Mayo's arrangement, he and Chamandy visited the homes of co-defendants John Crabbe and Frank Cota. Chamandy purchased modern guns from each. Later that evening, Mayo and Chamandy met co-defendant George Manieri in a parking lot. ³ Chamandy retrieved a German Schmeisser submachine gun from the front seat of Manieri's pickup truck and left in its place an envelope containing $325. Mayo ultimately pocketed some of the money. This transaction was the subject of counts 10 and 11. Afterwards, Mayo brought up the subject of a British Sten machine gun available for $225: "I just wanted to let ya know, ... I took the liberty to find out, ya know?" (R536).

                Mayo said:  "I figure .... [i]f I'm going to go to jail, I might just as well take the chance."    (R213)
                

Chamandy returned to Burlington on August 21. He was met this time by Mayo and co-appellant Mark McGarghan. The three retired to a motel room which Chamandy testified "was covered in guns .... on the floor ... on the dresser, guns everywhere." Trial Tr. at 1095. McGarghan testified that there were at most thirteen weapons in the motel room. Some of the guns were modern, others were antique. While Chamandy examined the merchandise, McGarghan left the room and went to a silver Camaro parked outside. The car had been seen earlier that day at Mayo's residence with Mayo and McGarghan standing nearby. BATF later discovered that the car was rented in McGarghan's name. McGarghan carried a box containing a British Sten submachine gun from the trunk of the Camaro and brought it back to the motel room. Chamandy's purchase of this weapon formed the basis of counts 12 and 13. Chamandy's subsequent contact with both Mayo and McGarghan is not relevant to this case.

II

A. Entrapment

At trial counsel for Mayo and McGarghan claimed that their clients were small-town antique gun dealers enticed by a wealthy Canadian gun collector into selling several modern firearms in the hope of securing the Canadian's lucrative antique gun business. Both defendants asked the district court to charge the jury on the entrapment defense. Its refusal to deliver the requested charge is asserted as reversible error.

An entrapment defense raises the questions:

(1) did the agent induce the accused to commit the offence charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it.

United States v. Sherman, 200 F.2d 880, 882-83 (2d Cir.1952); see United States v. Jannotti, 673 F.2d 578, 597 (3d Cir.1981), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). The defendant bears a "relatively slight" burden in showing inducement. United States v. Henry, 417 F.2d 267, 269 (2d Cir.1969), cert. denied, 397 U.S. 953, 90 S.Ct. 980, 25 L.Ed.2d 136 (1970). He need demonstrate only that the government initiated the crime. United States v. Riley, 363 F.2d 955, 958 (2d Cir.1966). When inducement has been shown, the burden is cast on the government to establish by "substantial evidence," United States v. Licursi, 525 F.2d 1164, 1168 (2d Cir.1975), that the...