United States v. Lauchli

• Decision Date: 05 December 1966
• Docket Number: 15587.,No. 15586,15586
• Citation: 371 F.2d 303
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Albert LAUCHLI, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

371 F.2d 303 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. Richard Albert LAUCHLI, Jr., Defendant-Appellant.

Nos. 15586, 15587.

United States Court of Appeals Seventh Circuit.

December 5, 1966.

COPYRIGHT MATERIAL OMITTED

Robert B. Oxtoby, Springfield, Ill., Robert A. Sprecher, Chicago, Ill., for appellant.

Richard E. Eagleton, U. S. Atty., Springfield, Ill., for appellee.

Before DUFFY, Senior Circuit Judge, and KILEY and CUMMINGS, Circuit Judges.

CUMMINGS, Circuit Judge.

This appeal concerns defendant's conviction of violations of the National Firearms Act of 1934 (26 U.S.C. Sections 5801-5862) and Federal Firearms Act of 1938 (15 U.S.C. Sections 901-909). Under the earlier statute, the defendant was found guilty of manufacturing firearms without paying the requisite tax and without registering. He was also found guilty of transferring machine guns without paying the applicable tax, without obtaining the prescribed written orders from the transferees and without affixing tax stamps to the orders.

Under the 1938 statute, the defendant, as a previously convicted felon, was found guilty of shipping parts from partially scrapped Thompson sub-machine guns to Denver, Colorado, and Omaha, Nebraska. Finally, he was found guilty of receiving firearm parts from Baltimore, Maryland, and Provo, Utah.

Sentence was suspended on four of the 1934 Act Counts; as to the remaining eight Counts, four under each statute, defendant received concurrent sentences of two and one-half years each.

The defense of entrapment as a matter of law is the principal ground urged on appeal with respect to the National Firearms Act Counts. In order to comprehend this defense, it is necessary to set forth the facts in some detail.

In February 1964, defendant Richard Lauchli drove a truckload of weapons and operable parts from his machine shop in Collinsville, Illinois, to the Cicero, Illinois, home of his friend Charles Von Kriegsfield, who was purchasing them from Lauchli. On that occasion, Thomas Mosley, a bus driver for the Chicago Transit Authority, was also visiting the home of Von Kriegsfield. Mosley, who was a Government informer,¹ told Lauchli that a General Joseph Camillo was parked outside Von Kriegsfield's home and was interested in purchasing guns. Lauchli said that he was not interested in meeting the General. Mosley pointed out that the General wanted to purchase fully operative guns rather than the unassembled guns that Lauchli had brought to Von Kriegsfield's house. General Camillo was actually Fortino Gutierrez, an investigator for the Alcohol and Tobacco Tax Unit of the Treasury Department. Lauchli testified that he was not interested in dealing with Camillo at first because Camillo was a customer of Lauchli's friend Von Kriegsfield. Later Lauchli decided that he would be interested in ridding himself of Von Kriegsfield as a middleman.

On April 3, 1964, Mosley and General Camillo called on Lauchli at his home in Collinsville, Illinois. They said they had obtained his name and address by copying them from his truck outside Von Kriegsfield's house during their February visit there. At this time, the defendant offered to sell the General 100 Thompson machine guns without barrels. The guns would not be operable without barrels. Lauchli suggested that the General contact J. Hall Sharon in Kalispell, Montana, for the barrels. Lauchli believed the General to be an anti-Castro Cuban or Chilean.

On the next day, Camillo told Lauchli that he was unable to reach Sharon in Montana. Lauchli said that if the General and Mosley bought the firearms he had left at Von Kriegsfield's house in Chicago, Lauchli would obtain the necessary barrels and put 100 Thompson machine guns in firing condition. Camillo agreed to buy the Chicago stock in order to complete the bargain for the machine guns.

On April 9th, the defendant told Mosley and Camillo that he had ordered the barrel stocks from Montana and that the guns would be ready on May 3rd. On April 29th, Lauchli confirmed that Sharon had already sent the barrels from Montana. On that date, Camillo bought a Bren machine gun from Lauchli, although Lauchli was unable to find the necessary bipod to make the gun operate automatically. At this time, Lauchli instructed Mosley and Camillo to ask for "Gary Patrick" whenever telephoning Lauchli. The cladestine nature of Lauchli's activities was also reflected in his advertised statement to would-be Thompson demilitarized machine-gun customers that their names would not be divulged.

On May 12th, Mosley and Camillo again visited Lauchli at his Collinsville machine shop. During the interval, Lauchli had found the bipod for the Bren. He fired it automatically for his visitors after attaching the bipod at his father-in-law's farm. On May 18th, from Chicago, Mosley and Camillo telephoned Lauchli, who told them the guns were not yet ready. They told Lauchli that their truck was already enroute to Collinsville and the guns would have to be ready the next day.

On May 19th, Camillo and Mosley and their driver, James Scott, appeared in a truck at Lauchli's Collinsville machine shop. The unassembled Thompson and Browning machine guns had been sorted into piles and Lauchli was ready to sell them to Camillo and Mosley for the agreed price of $150 apiece or a total of $17,000. During the interval from April 5th until May 19th, Lauchli had been busy, personally and through others, putting the guns into workable condition. Mosley and Camillo invited Lauchli to join them at a farm near Wapella, Illinois, where they agreed to pay Lauchli the $17,000 after Lauchli assembled and fired some of the machine guns. Lauchli did not consider the Thompson machine guns to be firearms as they left his premises but thought they would become so after assembly. At the Wapella farm, Lauchli assembled seven of the machine guns, of which three fired single shots and one fired automatically. Before defendant assembled the seven machine guns, he and his friend Donald Sturgis searched the various farm buildings for possible observers. During this search, the defendant and Sturgis were heavily armed. Sturgis remained armed and stood guard the whole time they were on the farm.

Lauchli and Sturgis fled the Wapella farm with the $17,000 after being frightened away by a low-flying private plane. When they left the farm, three of the machine guns were still assembled there. Before leaving, Lauchli gave Camillo an instruction booklet explaining how to assemble the guns.

In addition to the Thompson and Browning machine guns he sold Mosley and Camillo, Lauchli still has 1,000 demilitarized machine guns spread over two states. Lauchli has refused to divulge their whereabouts.

In his testimony Lauchli admitted that he had previously pleaded guilty to unlawful possession of firearms in violation of the National Firearms Act of 1934 and had been fined $100 for that violation in 1957. Lauchli also admitted that he had been convicted upon a guilty plea of stealing 23 bazookas from the Jefferson Proving Grounds in Madison, Indiana, resulting in his receiving a suspended sentence of two years and a $500 fine in 1960. He was also violating the Federal Firearms Act of 1938 shortly before the transactions with Mosley and Camillo. See infra, p. 313.

Entrapment Defense

In his motion for a new trial, the defendant asserted that the trial court improperly denied his motion for acquital made at the conclusion of the evidence in view of defendant's allegedly unlawful entrapment as a matter of law. We conclude that the District Court correctly left this question to the jury.

The leading entrapment case is Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. There the Supreme Court pointed out that it is permissible for Government officers or employees to use artifice and stratagem to catch those engaged in criminal enterprises. However, it is impermissible for them to "implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." 287 U.S. at pages 441, 442, 53 S.Ct at page 212. Chief Justice Hughes observed that there was sufficient evidence to warrant a finding that defendant had no previous disposition to violate the National Prohibition Act "but was an industrious, law-abiding citizen * * * otherwise innocent" 287 U.S. at page 441, 53 S.Ct at page 212). Accordingly, the Court concluded that the trial judge had erroneously refused to submit the entrapment issue to the jury.

The next entrapment case to be decided by the Supreme Court was Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. There the Court adhered to the Sorrells emphasis upon the predisposition of the defendant. Sherman had been trying to overcome the narcotics habit but was enticed into an illegal sale and return to the habit of use. Although the jury had rejected the entrapment defense in Sherman, the Supreme Court reversed, commenting that otherwise "the Government plays on the weaknesses of an innocent party and beguiles him into committing crimes which he otherwise would not have attempted." 356 U.S. at page 376, 78 S.Ct. at page 822. Entrapment as a matter of law was established by the undisputed testimony of the Government informer. However, the Sherman case reaffirmed the Sorrells rule that the entrapment issue is normally for a jury and does not constitute a defense if "the defendant's criminal conduct was due to his own readiness" (idem.)²

Entrapment was last considered by the Supreme Court in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, where the entrapment defense was left to the jury. The Court refused to reexamine its previous rulings that the entrapment question is for the jury and must take into account the predisposition of the defendant. In affirming the conviction, the Court noted that the Government agent was affording the defendant "an opportunity for the...