United States of America, Appellee, v. Vincent Ingenito, Appellant, 531 F.2d 1174 (2d Cir. 1976)

Appellant Vincent Ingenito was convicted, after a jury trial in the United States District Court for the Eastern District of New York before Judge Jack B. Weinstein, of dealing in firearms without a license in violation of 18 U.S.C. § 922(a) (1). Appellant, who was sentenced to a prison term of three years, argues that we should overturn his conviction because: (1) The trial judge committed plain error in failing to instruct the jury that it must acquit Ingenito if it found that a government informer had supplied him with the firearms; and (2) the special attorney who presented the case to the grand jury exceeded his authority in obtaining the indictment of appellant. We reject both of these claims and we affirm the judgment of conviction.

* The jury could justifiably have found the following relevant facts. In June 1974, Frank DuBois (a/k/a Frank Davis) told federal authorities in Brooklyn that Ingenito was offering guns for sale. DuBois then arranged a meeting at a Brooklyn parking lot later that month between federal undercover agent Bartholomew Aversano and Ingenito. At that time, Ingenito sold the agent a pistol and some ammunition for $200 cash. At a second meeting two days later, appellant sold the agent another pistol for $164 cash, and the two discussed the possible sale of other weapons, including a machine gun. Ingenito was subsequently arrested.

At trial, Ingenito argued that he had been entrapped by the Government's informer, DuBois.¹  Ingenito testified that DuBois had supplied him with the guns and persuaded him to sell the weapons to Agent Aversano. Ingenito also claimed that he gave DuBois most of the money from the sales. DuBois, testifying as a government witness, denied that he persuaded Ingenito to make the sale, supplied weapons to him, or received any money from the sales. On the entrapment issue, the court charged that when the evidence showed government inducement, then the Government had to establish beyond a reasonable doubt that Ingenito had been predisposed to sell the guns. There was no objection to this charge, and the jury returned a guilty verdict.

II

Appellant now claims that the judge should have charged that the jury had to acquit him if it found, as Ingenito claimed, that the government informer had supplied him with the guns he sold to the agent. This, according to appellant, would constitute entrapment as a matter of law. Appellant concedes that he did not request this charge at trial, but argues that this does not matter because the judge's failure to so charge was plain error.

Appellant raises his basic point in what appear to be two slightly different arguments. The first is that the nonconstitutional defense of entrapment should focus exclusively on the Government's conduct--at least where the Government furnishes defendant the contraband necessary to commit the alleged crime--without regard to defendant's predisposition. The second argument is that due process precludes conviction of a defendant to whom the Government has furnished the indispensable contraband for commission of the crime. The issues raised by these claims have been the subject of considerable attention both by courts and commentators. In 1973, the Supreme Court rejected similar arguments in United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366. In that case, a government agent had supplied to defendant Russell a rare chemical used in the manufacture of methamphetamine, commonly known as 'speed.' Thereafter, Russell was convicted of the unlawful manufacture and sale of that drug. The Ninth Circuit dismissed the indictment because of 'an intolerable degree of governmental participation in the criminal enterprise.' 459 F.2d 671, at 673. The Supreme Court reversed, declining either to change the usual entrapment test or to hold that the 'law enforcement conduct' in that case violated due process. 411 U.S. at 432, 93 S. Ct. at 1643, 36 L. Ed. 2d at 373.

The issue, however, has not disappeared. Shortly after the Court's decision in Russell, the Fifth Circuit distinguished it on the ground that the chemical supplied there by the government agent was not illegal contraband. United States v. Oquendo, 490 F.2d 161, 163 (1974). In that circuit, therefore, the law continues to be that a defendant must be acquitted if the undercover agent supplies him with the narcotics he then sells. See United States v. Mosley, 496 F.2d 1012, 1016, pet. for reh. en banc denied, 505 F.2d 1251 (1974); United States v. Bueno, 447 F.2d 903 (1971). The Third Circuit has adopted the same view. United States v. West, 511 F.2d 1083 (1975). On the other hand, various other courts of appeals do not read Russell so narrowly and reject the proposition that the Government's conduct in supplying contraband bars a conviction. United States v. Hampton, 507 F.2d 832 (8th Cir. 1974); United States v. McGrath, 494 F.2d 562 (7th Cir. 1974); United States v. Jett, 491 F.2d 1078 (1st Cir. 1974). See Comment, Criminal Procedure: Entrapment Rationale Employed to Condemn Government's Furnishing of Contraband, 59 Minn. L. Rev. 444 (1974).

The issue is again before the Supreme Court, which granted certiorari in Hampton, supra, in March 1975, 420 U.S. 1003, 95 S. Ct. 1445, 43 L. Ed. 2d 761, and heard argument in that case in December 1975, 44 U.S.L.W. 3343. The Government urges us not to defer disposition of this appeal until Hampton is decided because that case is, in any event, distinguishable; the guns allegedly supplied by DuBois to Ingenito here were not 'inherently unlawful merchandise' or contraband while the narcotics supplied in Hampton were. Appellant replies that the distinction is not persuasive because the weapons here, like narcotics, are contraband under federal law. We need not enter this fray because we agree with the Government that we should not hold up our decision, but for a different reason.

It is conceded that appellant never asked for the charge he now claims Judge Weinstein should have given. Thus, under Fed. R. Crim. P. 30,²  the point would ordinarily be waived. Appellant relies, however, on the saving language of Fed. R. Crim. P. 52(b) that 'Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.' However, it must be recalled that there was a sharp factual conflict at trial over whether DuBois had supplied guns to Ingenito. If the jury believed DuBois's testimony that he had not, then the basic premise of appellant's argument for entrapment as a matter of law would fail. It is at least likely that the jury did accept the testimony of DuBois on this issue rather than that of Ingenito, because the verdict probably reflects a rejection in other respects of Ingenito's version of the events. Of course, we cannot be sure that the jury believed DuBois's story that Ingenito obtained the guns from someone else. But we obviously also cannot be sure of the opposite, that is, that DuBois supplied the guns to appellant. That proposition is the factual basis of appellant's argument that he was entrapped as a matter of law. Moreover, the validity of the legal rule for which appellant contends is, as shown above, in sharp dispute, and has not been adopted as yet in this circuit. Cf. United States v. Rosner, 485 F.2d 1213, 1221--23 (2d Cir. 1973), cert. denied, 417 U.S. 950, 94 S. Ct. 3080, 41 L. Ed. 2d 672 (1974); United States v. Archer, 486 F.2d 670, 674--77 (2d Cir. 1973). Under these circumstances, although we express no view on the merits of appellant's basic legal contention, we do not see how we can find that the district judge committed plain error here. Lopez v. United States, 373 U.S. 427, 436, 83 S. Ct. 1381, 1386, 10 L. Ed. 2d 462, 468 (1963). Accordingly, we reject his first argument for overturning his conviction.

III

Appellant also claims that his indictment was invalid because the special attorney of the Department of Justice Organized Crime Strike Force, who presented evidence to the grand jury, had not been properly authorized to do so under 28 U.S.C. § 515(a).³  We recently considered an attack on the authority of a Strike Force attorney in In re Persico, 522 F.2d 41 (1975). The claim there was that the language of the attorney's authorizing commission was too broad to satisfy the requirement of section 515(a) that an attorney 'specially appointed by the Attorney General' be 'specifically directed' to conduct a legal proceeding. In an extremely thorough opinion by District Judge Weinstein,⁴  we analyzed the background and purpose of that section and the decisions construing it. In rejecting the attack there on the necessarily flexible and comprehensive power of the Strike Force to deal effectively with the full range of organized crime activity, we concluded that section 515(a) 'should be read to support an indictment wherever it is reasonable to do so,' that 'The 'specifically directed' phrase in Section 515(a) should not be so niggardly construed as to interfere with the federal government's ability to efficiently administer its criminal laws,' and that a Strike Force attorney's authority to conduct grand jury proceedings 'need not be embodied in a single written authorization, but may be and organizations to the Department unknown have violated in the abovenamed through a chain of command within the Department.' 522 F.2d at 63, 64, 66.

Appellant attempts to distinguish Persico on the ground that here the attorney's commission, which is reproduced in the margin,⁵  was too narrow rather than too broad. It is true that the letter does not specifically include 18 U.S.C. § 922(a) (1) in the list of various statutes allegedly violated. However, this omission is not fatal. We believe that the purpose of the specific enumeration was to illustrate the type of violation to be investigated and not to limit the prosecutor unduly. Moreover, the letter directed him 'to conduct . . . any kind of legal proceeding . . . including grand jury proceedings . . . which United States Attorneys are authorized by law to conduct.' And finally, the catch-all phrase 'other criminal laws of the United States' was sufficient in this context to authorize investigation into violations of section 922(a) (1).

The principal authority appellant cites for the proposition that the indictment should be dismissed is an unpublished opinion, United States v. O'Gorman (E.D.N.Y. 1975), which relied on our statement in In re Persico, 522 F.2d at 63, that 'the government faces a danger when commissions are too specific and narrow.'⁶  For the reasons given above, we do not believe that the full import of Persico supports this construction of the letter of authorization in this case. Accordingly, we concur in the conclusion of Judge Weinstein below that the Strike Force attorney here had the authority to appear before the grand jury.

The conviction is affirmed.