Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Cr. Nos. 85-00005-01, 85-00049-01, 85-00049-01, 85-00006-01
Before: ALDISERT, Chief Judge, and HIGGINBOTHAM and HUNTER, Circuit Judges.
We have cross appeals emanating from a prosecution for selling protected wildlife in violation of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703, 707(b)(2)*fn1 and for selling explosives in violation of 18 U.S.C. §§ 2, 842(b). At nos. 85-5818 and 85-5819, David Engler appeals from sentences imposed on convictions, contending that the government entrapped him as a matter of law, that he was denied due process as guaranteed by the Fifth Amendment because of "outrageous" conduct of government agents, and that the court erred in an evidentiary ruling at trial. At nos. 85-5834 and 85-5835, the government appeals from the district court's post-trial dismissal of indictments on the basis that the strict liability felony provision of the Migratory Bird Treaty Act, 16 U.S.C. § 707(b)(2), violates the due process clause.
Whatever has been our history as a nation of hunters and trappers, it is clear that Congress has declared that modern outdoorsmen and outdoorswomen may not interfere with migrating birds, and that the taking and sale of these birds is illegal. Edward Engler was prosecuted for violating the Migratory Bird Treaty Act on the basis of the following circumstances.
In September 1982, David Kirkland, an undercover agent for the United States Fish and Wildlife Service, met with Edward Engler and Elwood Laudenslager at a "trapper's rendezvous" near North Bend, Pennsylvania. Kirkland represented that he was a dealer in animal parts (e.g. bear claws, raccoon tails) and discussed the possibility of purchasing animal parts from Engler and Laudenslager. Over the next several months, Kirkland and other Fish and Wildlife agents purchased animal and bird parts as well as whole birds from Engler and Laudenslager. Between May 15, 1983 and January 16, 1985, Engler sold the agents birds or bird parts that were protected under the Migratory Bird Treaty Act. Engler and Laudenslager also sold dynamite to the agents.
A grand jury returned three indictments against Engler. The first two charged him with one count of selling or aiding and abetting the sale of stolen explosives in violation of 18 U.S.C. §§ 2, 842(b), and with fifteen counts of selling migratory birds or bird parts in violation of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703, 707(b)(2). The third charged Engler with one explosives count and one migratory bird count. After a jury trial, Engler was found guilty on all counts. In response to post-trial motions, the district court dismissed the counts brought pursuant to the Migratory Bird Treaty Act but denied Engler's motions for judgment of acquittal and new trial on the remaining counts. We shall first address Engler's contentions.
The first basis of Engler's appeal from the district court's denial of motions for judgment of acquittal or for new trial is his contention that he had established his entrapment as a matter of law because the government failed to introduce evidence sufficient to prove his predisposition to commit the offenses charged. See United States v. Williams, 705 F.2d 603, 613 (2d Cir.), cert. denied, 464 U.S. 1007, 78 L. Ed. 2d 708, 104 S. Ct. 524 (1983). On review of the district court's denial of a motion for judgment of acquittal on this issue, the appellate court must apply the same standard that the district court should have used initially:
In ruling on a motion to overturn a jury's finding of predisposition the trial court must view the evidence in the light most favorable to the prosecution, and resolve all reasonable inferences therefrom in its favor . . . Viewing the evidence in this light, the trial court must uphold the jury's verdict unless no reasonable jury could conclude beyond a reasonable doubt that the defendant was predisposed to commit the offense for which he was convicted.
To be entitled to an entrapment charge in this circuit, "a defendant must first present evidence both that the government initiated the crime . . . and that the defendant was otherwise not predisposed to commit the crime." United States v. Gambino, 788 F.2d 938, 943 (3d Cir.), cert. denied, 479 U.S. 819, 55 U.S.L.W. 3232, 93 L. Ed. 2d 36, 107 S. Ct. 8 (1986). Once the defendant has profferred such evidence, the burden shifts to the government to disprove the elements of the entrapment defense beyond a reasonable doubt. Jannotti, 673 F.2d at 597. Entrapment is established as a matter of law only "where the evidence is undisputed that the defendant had no predisposition to commit the crimes with which he is charged, and was induced to do so only by the trickery, persuasion or fraud of the government . . . " Gambino, 788 F.2d at 944.
We are satisfied that the government introduced sufficient evidence to allow a jury reasonably to conclude that Engler was predisposed to take protected birds for commercial purposes in violation of the MBTA and to engage in illegal sales of explosives. Special Agent David Kirkland testified, for example, that it was Engler -- not the government agents -- who initiated discussions concerning the sale of hawk claws to Kirkland. App. at 226. Notwithstanding Kirkland's admonition that such sales were illegal, id., Engler subsequently telephoned Kirkland and offered to sell hawk claws. Id. at 64-65; see also id. at 226-233.
The government also introduced evidence that Engler initiated discussions with Kirkland concerning the sale of dynamite. See, e.g., app. at 112-15, 294. Engler does not seriously dispute this. He seems to concede that the government introduced sufficient evidence to establish his predisposition regarding the first sale of dynamite, see br. for appellant at 16, yet he fashions a novel argument. He contends that the fact of his predisposition at the time of the first dynamite sale does not establish his predisposition at the time of the second dynamite sale. We must reject this argument. "'[A]n existing course of criminal conduct similar to the crime for which the defendant is charged'" may be introduced to meet the government's burden of proof on predisposition. Gambino, 788 F.2d at 945. Evidence of Engler's initial offer and sale of dynamite is thus sufficient to demonstrate Engler's predisposition to make the second sale. Moreover, a "defendant's predisposition is not to be assessed 'as of that time when he committed the crime,'" because predisposition "refers to the state of mind of a defendant before government agents make any suggestion that he should commit a crime." Williams, 705 F.2d at 618. Engler concedes that the government introduced evidence of his predisposition during the critical time, that is, before the alleged inducement. Accordingly, we conclude that Engler's suggestion that the government failed to introduce evidence sufficient to establish his predisposition at the time of the second dynamite sale is without merit.
Finally, Engler's reliance on United States v. Dion, 762 F.2d 674 (8th Cir. 1985), rev'd in part, 476 U.S. 734, 106 S. Ct. 2216, 90 L. Ed. 2d 767 (1986), is misplaced. There, the government contended that the defendant had been predisposed to violate the MBTA because he had "readily and willingly responded to a mere opportunity to kill an eagle for profit." Id. at 686. The court disagreed, finding that the government "had not merely given [the defendant] an opportunity to take or kill an eagle but [had] encouraged [him] to do so by the agents' repeated direct and indirect solicitation over a nearly two-year period." Id. Such circumstances are not present here; on the contrary, the government introduced evidence that Engler actually initiated negotiations for the sale of protected birds.
Engler next contends that the district court erred by denying his motions for acquittal because the conduct of the government agents was so "outrageous" as to violate due process. Similarly, he argues that the district court erred by failing to instruct the jury on his due process defense. Our standard of review is plenary.
In United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973), the Court indicated, in dictum, that under some circumstances, "the conduct of law enforcement agents [could be] so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction . . . " Subsequently, however, a plurality of the Court indicated that the "due process defense" is unavailable where, as here, the defendant willingly commits the crime. Hampton v. United States, 425 U.S. 484, 490, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976) ("The remedy of the criminal defendant with respect to the acts of Government agents, which, far from being resisted, are encouraged by him, lies solely in the defense of entrapment.").
On appeal, Engler merely characterizes the undercover activities of the government as outrageous; he fails to make even the requisite allegations that "the Government activity in question violate[d] some protected right of the defendant." Id. To the extent that Engler contends the government's actions harmed him, his allegations are merely duplicative of his entrapment defense contentions. Such allegations may not provide an independent basis for a defense or acquittal. Id. at 489-91; see also United States v. Jannotti, 673 F.2d at 608 ("We must be careful not to undermine the [Supreme] Court's consistent rejection of the objective test of entrapment by permitting it to reemerge cloaked as a due process defense.").
The government agents' conduct here is easily distinguished from those unusual circumstances that have been held to violate due process. See United States v. Twigg, 588 F.2d 373, 381 (3d Cir. 1978) (DEA agents "deceptively implanted the criminal design in [defendant's] mind," and then "set him up, encouraged him, provided the essential supplies and technical expertise and when he . . . encountered difficulties in consummating the crime . . . assisted in finding solution."); Greene v. United States, 454 F.2d 783, 786-87 (9th Cir. 1971) (government agent involved in illegal activities for over two years supplied materials operator, and location for illegal still and was sole purchaser of all liquor produced). Engler has not introduced evidence of such government conduct as would "shock the conscience of the Court," United States v. Beverly, 723 F.2d 11, 13 (3d Cir. 1983) (per curiam), or otherwise compel it to ...