U.S. v. Murphy

• Decision Date: 07 July 1988
• Docket Number: 86-2117,Nos. 86-2116,s. 86-2116
• Parties: 26 Fed. R. Evid. Serv. 59 UNITED STATES of America, Appellee, v. Noel MURPHY, a/k/a Noel O'Murchu, Defendant, Appellant. UNITED STATES of America, Appellee, v. Ciarin HUGHES, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

852 F.2d 1

26 Fed. R. Evid. Serv. 59

UNITED STATES of America, Appellee, v. Noel MURPHY, a/k/a Noel O'Murchu, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Ciarin HUGHES, Defendant, Appellant.

Nos. 86-2116, 86-2117.

United States Court of Appeals, First Circuit.

July 7, 1988.

Charles P. McGinty, Federal Defender Office, Boston, Mass., for appellant Noel Murphy.

Francis C. Newton, Jr., Boston, Mass., by Appointment of the Court, for appellant Ciarin Hughes.

Richard G. Stearns, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief for appellee.

Before BREYER and TORRUELLA, Circuit Judges, and FUSTE, ^* District Judge.

FUSTE, District Judge.

Defendants-appellants Noel Murphy and Ciarin Hughes were jointly convicted in the District of Massachusetts of conspiracy to export arms without a license, conspiracy to violate the domestic firearms laws, and unlawful dealing in firearms. ¹ The alleged errors they charge on appeal relate to the court's refusal to give an entrapment instruction, its refusal to grant judgments of acquittal on the conspiracy charges, and the admission of co-conspirator declarations. We affirm the rulings of the district court in all respects.

I. FACTUAL BACKGROUND

Defendants' convictions resulted from a fourteen-month relationship that developed between defendant Murphy and an undercover FBI agent, Joseph W. Butchka, posing as "Bill," an illicit arms dealer. Their association began on March 7, 1985, in a meeting arranged by a codefendant, and ended with their arrests on May 20, 1986, aboard an aircraft loaded with weapons and ammunition at Hanscom Airfield in Bedford, Massachusetts. ² The government's evidence consisted largely of the testimony of undercover agent Butchka and other law enforcement officers, as well as recorded and videotaped meetings of appellants and Butchka. The facts are, for the most part, uncontested. However, understanding the nature of this association requires a somewhat detailed account of the telephone calls, meetings, and discussions between appellants and Butchka during the relevant period.

Butchka first met with John MacDonald, who informed him that the Irish Republican Army ("IRA") was in the market for weapons. ³ At Butchka's request, MacDonald arranged a meeting with another person he said was interested in purchasing arms. The next day, March 7, 1985, MacDonald introduced Butchka to Murphy at a restaurant in Braintree, Massachusetts. The two spoke privately. Murphy first broached the subject of weapons with Butchka, later saying that he had been sent from Ireland to purchase arms. Butchka told Murphy he could supply him with two hundred M-16 rifles, but no deal was consummated. Murphy asked Butchka to call him again on March 12.

Butchka did call on the 12th, and at Murphy's instructions, made a series of weekly calls, but no deal was struck. During this time, Butchka once reached Murphy at a Belfast telephone number. Their conversations ended with Murphy telling Butchka that if he wanted to contact Butchka, he would "go the same route again." Butchka heard nothing, and on June 6, telephoned Murphy on the pretext that he heard Murphy wanted to reach him, but Murphy said "all [he] could do is wait." For the next several months, Butchka mainly contacted and met with MacDonald, and at one meeting Butchka showed MacDonald three M-16 rifles. Butchka later told MacDonald that "the more money I make, the more money you make," and to "get busy." Butchka several times asked MacDonald about Murphy's intentions. MacDonald expressed reservations about Murphy's ability to purchase arms.

On August 15, 1985, MacDonald informed Butchka that Murphy wanted to see him along with some "samples." Butchka met Murphy the next day in Braintree and showed him two M-16 rifles and one MP-5 submachine gun. Murphy requested to keep the guns, but Butchka refused. At the conclusion of their meeting, Murphy told Butchka to call him on September 4, saying that "I found a good contact and I definitely do not want to lose you." Four days later Butchka paid MacDonald $200.

Butchka called Murphy on September 4, and they eventually agreed to meet on September 18 at the Hyatt Regency Hotel in Cambridge. The meeting was videotaped. Butchka confronted Murphy with MacDonald's reservation that Murphy could not do business. Murphy attempted to reassure him, saying that "I found you Bill, they didn't find you ... See you're talking about an organization ... that is operating in a closed enemy environment, all around it." Murphy said he no longer wanted MacDonald involved, telling him to "look at me as your rep.... I can get into them and no one else around here can." Butchka offered a direct delivery to Ireland, and Murphy responded that "you, I mean, you're too good to be true, Bill, essentially. That might be, the, ah, factor that could turn the whole deal." They also discussed the weapons, M-16s and MP-5s. Murphy expressed his fear that Butchka "could be a fucking fed." Butchka responded that "If you say 'I don't think anything can be done,' I want you to be honest with me. Fine. Let's just say 'see you later?' OK?" Butchka agreed to meet with Murphy in October, and from then on MacDonald left the scenario.

The FBI undercover agent's next meeting with Murphy was on October 9, 1985. Murphy reported, "No good, Bill." Butchka replied, "So looks like it's over then, huh?" Murphy answered, "It's really up to you, Bill ... I mean ... I'm still gonna see it through." On November 1, Murphy told Butchka that he would "have to take a break from it, for a while." Butchka wanted to deal, but Murphy said that "I really don't want to." Butchka called on December 2, telling Murphy that he could include a Stinger missile in the deal, but needed a quick response. Murphy responded that "this might change things," but on December 13, 1985, told Butchka that if he hadn't heard from Murphy by a certain day, then they would "drop it completely."

They later agreed to meet at the Lafayette Hotel in Boston on January 7, 1986. Murphy explained that he had been attempting to purchase arms since he came to the United States four years earlier, and his motivations were to put an arms deal together in order to achieve a political position within the IRA, emphasizing that he could only do it with IRA backing. "I've been looking since I came out [to the U.S.] four years ago. And I've come up against, ah, dead ends all the time. The reason I'm so keen to put the deal together is I want to get into the organization at a level above the, let's say the, ah, first stage in the whole thing."

Conversations continued. Murphy introduced Butchka to Hughes on March 24, 1986, at the Westin Hotel in Boston, identifying him as his "Belfast contact," saying "It was through him [Hughes] that I had always hoped to get into the organization." The meeting was videotaped. Each side expressed apprehensions about the other, and the discussion turned to a dry run and a subsequent direct delivery to Ireland. Butchka expressed concern that they would not have a buyer once they reached Ireland, but the defendants pledged that they had contacts there. On April 23 Murphy agreed to pay $3,100 for a dry run. The next day a bargain was made: 100 M-16 rifles and 2 MP-5 submachine guns for $50,000, $13,000 for a missile, and $10,000 for a pilot. Murphy also paid $2,600 for the test flight. (Murphy paid the remaining $500 at a later meeting).

Further calls and meetings ensued, and on May 15, Butchka met Hughes and Murphy at the Embassy Suites Hotel in Boston to fine tune the deal. This meeting was also videotaped. The plan was to land at Shannon Airport in Ireland with the rifles and ammunition. Butchka offered a Redeye missile as a gift. Murphy decided to limit the off-load crew to six. Murphy and Hughes explained that nobody would be waiting for them in Ireland, and that the weapons would be stored in safe houses until the buyers took delivery.

After working out logistics, the discussion turned towards the year's negotiations. Butchka said it took a year to get to know Murphy, and Murphy replied: "If I had said to you ... I'll see you next year, what would you have said? But the thing about it is ... I had to, uh, deceive you because I had to keep your interest ... I knew when to lie."

The plan was executed on May 20, 1986, with government agents holding a plane filled with weapons at Hanscom Airfield in Bedford, Massachusetts. Murphy, Hughes, and five others arrived at the parking lot, and the five crew members were directed to a nearby hotel. Defendants and Butchka drove towards the airfield, and Murphy showed $20,000 in $100 bills. At Hanscom, an FBI agent posing as a pilot joined the group, and Murphy handed him the roll of bills while they drove to a jet parked in the field. The following sequence at the plane was taped. The group boarded the plane. Butchka showed defendants the Redeye missile, a canister of ammunition, and one of the crated M-16s. At this point, both Murphy and Hughes were arrested. FBI agents simultaneously arrested the five members of the off-load crew at the Stouffer Bedford Glen Hotel.

II. THE ENTRAPMENT ISSUE

Murphy and Hughes contend that the trial court unjustly denied them an entrapment instruction. After reviewing the above facts, we find the argument has no merit.

"[A] valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct." Mathews v. United States, --- U.S. ----, ----, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988) (holding that a defendant may simultaneously deny the offense charged and rely on the affirmative defense of entrapment). See also United States v. Coady, 809 F.2d 119, 122 (1st Cir.1987); United States v. Fera, 616 F.2d 590, 596 (1st Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2951, 64 L.Ed.2d 830 (1980); Kadis v....