U.S. v. Perl

Decision Date22 September 1978
Docket NumberNo. 77-1416,77-1416
Citation584 F.2d 1316
PartiesUNITED STATES of America, Appellee, v. William R. PERL, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Nathan Lewin, Washington, D.C. (Miller, Cassidy, Larroca & Lewin, Washington, D. C., on brief), for appellant.

Richard D. Bennett, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee.

Before WINTER, Circuit Judge, FIELD, Senior Circuit Judge, and HALL, Circuit Judge.

WINTER, Circuit Judge:

William R. Perl was convicted of willfully attempting to damage property utilized by foreign officials in violation of 18 U.S.C. § 970, of unlawfully receiving a firearm purchased outside the State of Maryland in violation of 18 U.S.C. § 922(a)(3), and of conspiring with unknown persons to commit these crimes in violation of 18 U.S.C. § 371. He was fined $12,000, given a two-year suspended sentence, and placed on three years' supervised probation. On appeal he urges a number of grounds of reversal, principally that the district court erroneously declined to give an entrapment instruction, that it erroneously instructed the jury on a defense not asserted at trial, and that it prejudicially confused the jury by its instructions on the conspiracy count. We agree that there was reversible error in the conspiracy conviction. The initial charge on this count was erroneous and the district court's attempt to cure the error was ineffective and likely left the jury in a state of confusion prejudicial to defendant. We therefore reverse defendant's conviction on the conspiracy count and award him a new trial. As to defendant's other contentions, however, we find no error and therefore affirm his conviction on both substantive counts.

I.

The defendant, Dr. William R. Perl, has long been active in Jewish affairs, both in Europe and in this country, and, as a survivor of the Nazi persecutions, he has been particularly concerned about the welfare of Jews living in the Soviet Union. Among the organizations in which he has been active is the Jewish Defense League (JDL). He was a founder of the Washington, D. C., chapter of that organization and, at the time that the events material to the instant case commenced, was serving as its president. Both he and the Washington Chapter have a reputation for non-violence.

Sometime in 1973, an Israeli expatriate named Reuven Lev-tov attended a meeting of the Washington Chapter of the JDL held at the home of Dr. Perl. By all accounts, Reuven Lev-tov was and is a shadowy and intriguing figure. After ten years in the Israeli Navy, where he was a member of its elite "special forces," Lev-tov joined the Israeli foreign service and was assigned duty at the Israeli embassy in Washington as chauffeur and apparent bodyguard to the ambassador. In 1965, he married an American citizen and shortly thereafter was dismissed from service at the Israeli Embassy. In 1968, he returned to Israel for a three-year period before settling permanently in this country in 1971. He subsequently became a specialist in electrolysis, maintaining an office in Washington, D. C. Recently he renounced his Israeli citizenship, after having become an American citizen some ten years earlier.

At trial, Lev-tov testified that by 1973 he had come to feel bad about acts of terrorism perpetrated in the name of various Jewish causes and became determined to take some action to combat its spread. To this end, he conceived a plan to induce a leading Jewish figure to join him in committing some violent act. Before the commission of the act, however, it was Lev-tov's intention to turn his accomplice over to the authorities. He apparently chose as his victim Dr. Perl and, with this plan in mind, attended the 1973 JDL meeting at Dr. Perl's home.

At the conclusion of this meeting, Lev-tov managed to engage Dr. Perl in private conversation. Lev-tov made known his own concern for the plight of Soviet Jews and his availability to help carry out any act of violence suitable to Dr. Perl. Dr. Perl gave Lev-tov no encouragement, stating, according to Lev-tov, that "we don't do things like that here in Washington."

Nothing more occurred until the spring of 1976, by which time Dr. Perl had developed Parkinson's Disease and was under constant medication. On April 10, 1976, Dr. Perl and Lev-tov met at a motel in the Maryland suburbs and agreed that an appropriate form of protest would be to shoot out the windows of the apartments of two Soviet officials living in Prince George's County, Maryland. It was agreed that Lev-tov would do the actual shooting and that Dr. Perl would publicize the event and announce that it was the responsibility of the JDL. At a subsequent meeting, it was agreed that Dr. Perl would also supply the weapon and ammunition. Dr. Perl then took steps to obtain a rifle from JDL sources in New York. He was successful in these efforts and, on May 6, turned the weapon over to Lev-tov, and, on May 7, the ammunition to fire it. May 23, a Sunday, was fixed as the date for the shooting.

On May 19, Lev-tov went to the Israeli Embassy, there telling an official that he had been asked to shoot out the windows of two apartments belonging to Soviet officials. He was advised to contact "the authorities." However, before Lev-tov could make such contact he was approached at his office by two FBI agents who had been alerted to the situation by an attache at the Israeli Embassy. Lev-tov made a detailed statement to the agents concerning his association with Dr. Perl, and it was agreed that Lev-tov would continue with the plan. He was instructed to wear a body recorder at his next meeting with Dr. Perl, which was to take place on May 22. The recording was later introduced as evidence against Dr. Perl at trial. On May 23, the planned shooting was carried out with a weapon and blanks provided by the FBI.

On June 29, 1976, Dr. Perl was indicted for his role in the incident. Trial was held in November, 1976. Dr. Perl was convicted on three of the four counts on which he was charged, and this appeal followed.

II.

Dr. Perl freely admits that he participated in the plan to shoot out the windows of the Soviet officials and that he provided Lev-tov a weapon for this purpose. At trial, his only defense was that he was entrapped by Lev-tov and that, therefore, no criminal liability should attach. In keeping with this theory of the case, the defense proposed three alternative entrapment instructions to the district court. The trial court rejected all three, instructing the jury flatly that "entrapment is not a defense in this case."

On appeal, defendant makes two separate arguments with respect to the entrapment defense. First, he contends that government involvement in the scheme to entrap should not be treated as a necessary element in the federal defense of entrapment and urges us to adopt this as the law of this circuit. Second, defendant argues that even if some government involvement is required, there exists sufficient evidence of such involvement in the instant case to entitle him to jury consideration of the defense. We do not agree with either contention.

The cases are legion which either hold directly or state as dictum that "(e) ntrapment cannot result from the inducements of a private citizen but must be the product of conduct by governmental agents." United States v. Garcia, 546 F.2d 613, 615 (5 Cir.), Cert. denied, 430 U.S. 958, 97 S.Ct. 1608, 51 L.Ed.2d 810 (1977). 1 On numerous occasions this court, without ever directly so holding, has clearly expressed its view that federal law does not recognize the defense of private entrapment. United States v. Tharpe, 443 F.2d 12, 13 (4 Cir.), Cert. denied, 404 U.S. 866, 92 S.Ct. 80, 30 L.Ed.2d 110 (1971); United States v. DeVore, 423 F.2d 1069, 1071 (4 Cir. 1970), Cert. denied, 402 U.S. 950, 91 S.Ct. 1604, 29 L.Ed.2d 119 (1971); United States v. Comi, 336 F.2d 856, 860 (4 Cir. 1964), Cert. denied, 379 U.S. 992, 85 S.Ct. 704, 13 L.Ed.2d 611 (1965); United States v. Sizer, 292 F.2d 596, 599 (4 Cir. 1961); Crisp v. United States, 262 F.2d 68, 69 (4 Cir. 1958).

Despite this vast array of precedent, defendant urges us to recognize a private-entrapment defense. Under defendant's theory, no showing of government involvement in the scheme to entrap need be made if there otherwise exists evidence that defendant was "induced to commit a crime he had no predisposition to commit solely and exclusively in order to have him handed over to the authorities." Defendant's Proposed Instruction No. 23. While we recognize that at least two states have adopted the defense of private entrapment, 2 we believe that federal courts must require some showing of government involvement in the alleged scheme to entrap before the defense is recognized.

Entrapment, as it exists in federal law, is a statutory defense. "It is rooted . . . in the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense but was induced to commit them By the Government." United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973) (emphasis added). This view of legislative intent has remained firm since the Supreme Court first recognized entrapment as a federal defense in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). There, Chief Justice Hughes wrote:

We are unable to conclude that it was the intention of the Congress in enacting (a criminal) statute that its processes of detection and enforcement should be abused by the instigation By government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them.

287 U.S. at 448, 53 S.Ct. at 215. Similarly, in Lopez v. United States, 373 U.S. 427, 434, 83 S.Ct. 1381, 1385, 10 L.Ed.2d 462 (1963), the Court observed that "(t)he conduct with which the...

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