U.S. v. Teleguz

• Decision Date: 24 July 2007
• Docket Number: No. 06-1751.,06-1751.
• Citation: U.S. v. Teleguz, 492 F.3d 80 (1st Cir. 2007)
• Parties: UNITED STATES of America, Appellee, v. Ivan TELEGUZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

492 F.3d 80

UNITED STATES of America, Appellee, v.Ivan TELEGUZ, Defendant, Appellant.

No. 06-1751.

United States Court of Appeals, First Circuit.

Heard May 9, 2007.

Decided July 24, 2007.

William S. Smith, for appellant.

Kevin O'Regan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before BOUDIN, Chief Judge, LYNCH and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

Ivan Teleguz of Lancaster, Pennsylvania, participated in an interstate business, the selling of firearms.He sold firearms to Carlos Ortiz, a cooperating witness for the FBI in Springfield, Massachusetts.All told, over a fifteen-month period ending in October 2002, Teleguz and his co-defendants sold to Ortiz twenty-five firearms, thirteen of which had obliterated serial numbers.

Teleguz was charged with federal conspiracies both to deal firearms without a license, see18 U.S.C. §§ 371,922(a)(1)(A), and to possess firearms with obliterated serial numbers, seeid.§§ 371, 922(k), as well as three separate counts of possession of firearms with obliterated serial numbers, seeid.§ 922(k).His co-defendants, Aleksei Safanov, Roman Zhirnov, Andrey Buynovskiy, and Michael Quickel, all pled guilty, and Quickel testified against Teleguz.A jury convicted Teleguz on all counts.The district court sentenced Teleguz to fifty-one months' imprisonment, to be followed by three years of supervised release, and a special monetary assessment of $500.

Teleguz attacks his conviction, arguing that the district court erred (1) in denying his request for an entrapment instruction and in precluding him from arguing entrapment at closing, (2) in denying his motion to dismiss the possession counts on interstate commerce grounds, (3) in denying his motions to suppress his post-arrest statement, and (4) in denying a motion for judgment of acquittal as a matter of law as to the possession counts.We affirm.We adhere to our prior rule that 18 U.S.C. § 922(k) is a constitutional exercise of Congress's Commerce Clause powers, seeUnited States v. Diaz-Martinez,71 F.3d 946, 953(1st Cir.1995), and hold that this result is not overruled by Jones v. United States,529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902(2000), or United States v. Morrison,529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658(2000).

I.FACTS

A. Ortiz's Firearms Purchases

Ortiz was paid by the FBI to assist in criminal investigations.In this case, Ortiz received approximately $80,000.

In the early summer of 2001, FBI Special Agent Robert Lewis asked Ortiz to "keep an eye out and an ear out for criminal activity amongst Russian individuals in the Springfield area."Ortiz's inquiries of some members of the Russian community ultimately led to the criminal firearms transactions charges in this case.At various times, Ortiz represented that he had his own customers for guns.

The first firearms transaction occurred in July 2001.Ortiz went to a local gun store, where he was approached by Buynovskiy.Buynovskiy asked Ortiz if he was interested in purchasing some rifles.Ortiz was interested; he consulted the FBI and then gave Buynovskiy a $200 deposit.On July 2, Buynovskiy and Zhirnov met with Ortiz in a parking lot, where Ortiz purchased two rifles and ammunition for $1,800.The source of at least one of these weapons was Teleguz.More than a year earlier, in the spring of 2000, Teleguz had purchased one of these rifles from an acquaintance in Pennsylvania.

The FBI investigation was interrupted by the events of September 11, 2001, but then resumed in the spring of 2002.On April 6, 2002, Ortiz purchased two firearms from Buynovskiy and Safanov.He purchased an additional firearm from Safanov on May 20, 2002.

On June 24, 2002, Ortiz and Safanov, at Safanov's suggestion, drove together to Pennsylvania to buy guns from Teleguz.The two went to Teleguz's house in Ephrata, Pennsylvania, where Ortiz purchased four firearms.The serial number on one of the four firearms had been obliterated by grinding.The two returned to Massachusetts with the firearms.

On July 16, 2002, Ortiz went to Safanov's apartment in Springfield and purchased another five firearms.Serial numbers on three of these firearms had been removed.

On August 25, 2002, Teleguz, who had traveled to Massachusetts, met Ortiz in a Springfield parking lot and sold Ortiz another eight firearms, six of which had their serial numbers obliterated.Teleguz asked Ortiz to send him money for the firearms by mail.The defendant gave Ortiz an envelope with his name and Pennsylvania address written on it.On August 27, 2002, Ortiz instead sent Teleguz a wire transfer for $1,500 as additional payment for the firearms purchased two days earlier.

On August 30, 2002, Teleguz again met with Ortiz in Springfield.This time, defendant sold Ortiz two semi-automatic pistols with obliterated serial numbers.Ortiz paid Teleguz $1,200.

On October 3, 2002, at Teleguz's direction, Ortiz met with Zhirnov in Springfield.Zhirnov sold Ortiz a firearm whose serial number had been removed.The next day, Ortiz wired $850 to Teleguz in payment for the firearm.

B. Quickel's Firearms Purchases for Teleguz

Quickel testified that in July and August 2002, he purchased firearms for Teleguz, at defendant's request.Quickel used his own identification at legitimate firearms stores in Pennsylvania.Teleguz had told him that Teleguz could not purchase the firearms in his own name.Typically, Teleguz went with Quickel to the firearms stores, told Quickel which firearms to buy, and gave Quickel money to purchase the firearms.Quickel would carry the firearms out of the store himself, and then hand them over to Teleguz.The defendant paid Quickel $100 for each rifle and $200 for each pistol purchased.

The government introduced into evidence six transaction records detailing Quickel's firearms purchases in Pennsylvania on behalf of Teleguz.The records showed that Quickel purchased fifteen firearms from July 8 through August 28, 2002.All of the firearms had serial numbers at the time of purchase.

ATF Special Agent Patrick Burns testified about the guns Quickel purchased for Teleguz which were ultimately sold to Ortiz.Burns testified that Ortiz purchased nine firearms that were similar to firearms Quickel purchased for Teleguz.All nine of the firearms had obliterated serial numbers when they were sold to Ortiz.As to four of the firearms, the similarity to Quickel's purchases was limited to the manufacturer and type of firearm.As to the remaining five firearms, the government was able to raise partial serial numbers which matched the serial numbers associated with the firearms purchased by Quickel.

II.ANALYSIS

A.Denial of Request for Entrapment Instruction and Preclusion from Arguing Entrapment at Closing

Teleguz's primary argument is that he was entitled to an entrapment instruction because the evidence shows that Ortiz was an insistent buyer who was doggedly persistent, and this amounted to improper inducement of Teleguz.Teleguz also argues that the district court erred in precluding him from arguing entrapment to the jury at closing.Teleguz preserved his objections at trial; we review the denial of the entrapment instruction de novo, United States v. Sanchez-Berrios,424 F.3d 65, 76(1st Cir.2005), and review the limitations placed on defendant's closing argument for abuse of discretion, United States v. Wood,982 F.2d 1, 4(1st Cir.1992).

The entrapment defense is not a doctrine of constitutional dimension or one expressly created by statute.United States v. Russell,411 U.S. 423, 432-33, 93 S.Ct. 1637, 36 L.Ed.2d 366(1973);see alsoUnited States v. Luisi,482 F.3d 43, 52(1st Cir.2007).Rather, it is a judicially created doctrine which recognizes that "Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations."Sherman v. United States,356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848(1958).

The question is whether a reasonable jury could view the evidence as establishing that defendant was entrapped.SeeUnited States v. Rodriguez,858 F.2d 809, 812(1st Cir.1988).If so, Teleguz was entitled to an entrapment instruction; if not, there was no error in the district court's denial of defendant's request.

The entrapment defense consists of two prongs.Luisi,482 F.3d at 52.The first prong requires a showing of improper government inducement.United States v. Gamache,156 F.3d 1, 9(1st Cir.1998).The second prong requires that the defendant have had a lack of predisposition to commit the offense.Id.Because entrapment is a judicially created doctrine, courts have been careful not to contravene congressional intent to punish those who commit the offense; that, in turn, requires that the doctrine take into account the practical problems faced by federal law enforcement.SeeLuisi,482 F.3d at 52-53.

Our case law stating that a defendant has a low entry-level burden for obtaining an entrapment instruction, Gamache,156 F.3d at 9, should not be misunderstood (as defendant here misunderstands).In assessing whether the entry-level burden for an instruction has been met, we look at the evidence most charitably to the defendant and determine whether it is sufficient for a reasonable jury to conclude that there was entrapment.SeeRodriguez,858 F.2d at 813.

In this case, no reasonable jury could conclude that there was any improper government inducement.Defendant's argument is based on an erroneous understanding of (1) what it takes to show improper inducement, (2) the personal nature of the entrapment defense, and (3) the scope of the record to be considered.

Acceptance of Teleguz's arguments would so water down the concept of improper inducement as to delete the requirement of impropriety from the equation.Admittedly, sometimes a judgment on what is sufficient to make a plausible claim of improper inducement can be a close call....