filed as amended february 26 1988.: January 19, 1988.
On Appeal From the United States District Court for the District of New Jersey (D.C. Criminal No. 86-00034-01)
Becker, Scirica and Rosenn, Circuit Judges.
This appeal from a conviction for conspiracy to export weapons without a license from the government, 22 U.S.C. § 2778(b)(2) (1982), raises two important questions concerning the entrapment defense. First, we must decide whether the district court erred in failing to instruct the jury that the government, to defeat an entrapment defense, had to prove beyond a reasonable doubt both that the appellant was not induced by the government and that he was predisposed to commit the crime. The district court instructed the jury that proof beyond a reasonable doubt of either element was sufficient. Second, we must decide whether the district court erred in its definition of inducement. Specifically, appellant contends that the court's examples of types of inducement ("including persuasion, fraudulent representation, threats, coercive tactics, harassment, promises of reward or pleas based on need, sympathy or friendship") were too limiting, and that the district court's instruction that "[a] solicitation, request or approach by law enforcement officials to engage in criminal activity, standing alone, is not an inducement," misstates the law.
For the reasons that follow, we hold that the court's instructions were proper. The charge on the government's proof in defeating an entrapment defense correctly provided that the government merely must disprove either element of the entrapment defense beyond a reasonable doubt in order to disprove the entire defense. Furthermore, we believe that the district court's charge on inducement properly defined that element of the defense. We will therefore affirm the judgment.
I. FACTUAL AND PROCEDURAL HISTORY
Appellant Sultan El-Gawli first came to the United States from Egypt in 1968 and became an American citizen in 1977. El-Gawli is a businessman, who owns and operates, among other enterprises, a travel agency. El-Gawli first met Momdouh Zakkary Girguis (Zakkary), an Egyptian businessman, in June 1985 when Zakkary purchased airline tickets from El-Gawli's travel agency. After returning from his trip, Zakkary visited El-Gawli at the travel agency on July 31, 1981. Zakkary testified that at this meeting El-Gawli initiated discussions about procuring arms for Palestinian revolutionaries and asked Zakkary for assistance. Zakkary testified further that although he in fact had no experience in trading arms, he pretended to be familiar with arms sales in order to determine whether El-Gawli seriously contemplated purchasing arms. Zakkary testified that he perpetuated the charade, and met with El-Gawli again in August and September of 1985 to continue discussions about weapon acquisition and transport. In contrast, El-Gawli testified that no discussion of arms transpired at the first several meetings between El-Gawli and Zakkary. Because the initial contact between El-Gawli and Zakkary occurred before the United States became involved, no tapes exist of the initial meetings between the two men. One of the key issues on which the parties focused at trial was who had initiated the discussion of arms sales.
On September 19, 1985, an auditor from the United States Customs Service conducted a routine investigation of Zakkary's motor vehicle part import business. Zakkary informed the auditor of his discussions with El-Gawli. As a result of that discussion, in early October 1985, a special agent of the United States Customs Service contacted Zakkary to follow up on the information Zakkary had given to the auditor. Zakkary agreed to cooperate in the government's investigation by posing as an arms procurer and by tape recording his subsequent conversations with El-Gawli. Zakkary ultimately tape recorded six in-person meetings and five telephone conversations with El-Gawli.
The first tape recorded meeting between El-Gawli and Zakkary, on November 8, 1985 consisted of Zakkary's describing to El-Gawli a supposed liaison with an American soldier who could provide weapons. The next meeting between El-Gawli and Zakkary occurred on November 12, 1985 but was not tape recorded. At that meeting El-Gawli introduced Zakkary to a man named Said Hassan who was later identified as the representative of the Palestine Liberation Organization (PLO) in Saudi Arabia. According to Zakkary, Hassan told Zakkary that he needed explosives and detonation devices for the "revolution people" in the Middle East. At trial there was much dispute about this unrecorded meeting, especially over who initiated discussion of arms sales. However, both versions of events agree that, as a result of the meeting, Hassan and Zakkary decided to conduct all further communication about the arms through El-Gawli, who agreed to serve as an intermediary.
In a meeting on November 15, 1985, Zakkary quoted prices to El-Gawli for the requested explosives and detonating devices, and El-Gawli wrote down the information. In addition, Zakkary and El-Gawli negotiated over additional expenses for Zakkary. The parties agreed to a price of $12,000 for the arms and $13,000 for expenses. Additionally, at this meeting Zakkary complained of financial difficulties. El-Gawli explained that he would receive no remuneration, stating: "I am doing this for the sake of God. I am personally not going to gain anything out of it."
In subsequent conversations Zakkary informed El-Gawli of his fondness for him, of the fact that Zakkary had cancer, and that Zakkary had used his automobile as collateral in the weapons purchase. The negotiation on weapons deals also continued. On December 5, 1985, Zakkary brought a sample explosive to the travel agency and El-Gawli placed a call to Saudi Arabia to tell the PLO representative that the explosives were ready to be shipped. On December 13, 1985 El-Gawli, with Zakkary present, met with Hassan to quote prices. On December 17, 1985, Zakkary and El-Gawli met again to discuss the possibility of procuring helicopters. El-Gawli was arrested the following day. Both he and Said Hassan were charged with conspiracy to export defense articles from the United States without a license from the State Department. Because Hassan was unavailable to stand trial, El-Gawli was the sole defendant.
At trial, El-Gawli admitted that he had agreed to serve as an intermediary in the conspiracy to export explosives and that he knew such activity was wrong. El-Gawli presented character witnesses who testified that he was a respected leader in the community, an honest, conservative, and non-violent person. El-Gawli raised the affirmative defense of entrapment. He claimed that he was not predisposed to dealing with arms because he was an honest, peaceful businessman who had never engaged in weapons trade. Furthermore, he argued that Zakkary's inducement in the form of pleas based on friendship and pity, and concern that Hassan, a valued customer, might be annoyed with him, led him to participate in a conspiracy that he was otherwise disinclined to join.
The court instructed the jury as to the entrapment defense, and neither El-Gawli nor the government objected to the court's original charge. After two hours of deliberation, the jury, in considering the district court's instructions requested further instruction on the entrapment defense. The court reread its original entrapment charge and the jury returned to its deliberations. The next day the jurors renewed their question. In response, over timely objection by defense counsel, the court provided a supplementary charge which derived from this court's jurisprudence and United States v. Burkley, 192 U.S. App. D.C. 294, 591 F.2d 903, 913 (D.C. Cir. 1978), cert. denied, 440 U.S. 966, 59 L. Ed. 2d 782, 99 S. Ct. 1516 (1979). In its proposed charge to the jury the court had included language from United States v. Castro, 776 F.2d 1118, 1128 (3d Cir. 1985), cert. denied, 475 U.S. 1029, 89 L. Ed. 2d 342, 106 S. Ct. 1233 (1986) that "the government must prove beyond a reasonable doubt both that the defendant was not induced by the government to commit the crime and that he was predisposed to commit the crime." The prosecutor ...