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United States v. Pingleton

March 24, 1972


Hastings, Senior Circuit Judge, Kiley, Circuit Judge, and Gordon,*fn* District Judge.

Author: Hastings

HASTINGS, Senior Circuit Judge.

Defendant James Charles Pingleton was indicted by a federal grand jury on two counts for the unlawful sale and possession of a Colt M-16 machine gun, on or about April 17, 1969, in violation of Title 26, U.S.C.A. ยงยง 5861(e) and (d),*fn1 respectively. A jury found defendant guilty on both counts. Following denial of post trial motions, a judgment of conviction was entered. Defendant was ordered committed for two years, and in addition to pay a fine of $1,000 and costs; execution of the sentence was suspended; defendant was ordered placed on probation for three years, with a provision that he be incarcerated for the first 30 days thereof. Defendant appeals. We affirm.

The issues raised on appeal relate to the claim of entrapment; the alleged improper cross-examination by the prosecutor of defendant's character witnesses; and the prosecutor's alleged inflammatory remarks in closing argument to the jury.

Considering the evidence in the light most favorable to the Government, as we are required to do, the jury, being the judge of the credibility of the witnesses and the weight to be assigned to the evidence, could reasonably have found the following narrative statement of the relevant facts to be true.

Defendant first became a federally licensed firearms dealer in March, 1966 and conducted his business from his residence in a Chicago suburb, in addition to other regular employment. Emilio Gaspari was a fellow firearms dealer and had known defendant since 1965. Kenneth Borcia, a special investigator for the federal Alcohol, Tobacco and Firearms Division, was at the Chicago residence of Gaspari in the early part of April, 1969. While there, Gaspari telephoned defendant and they had a conversation concerning the possible sale of fifteen machine guns.

On the evening of April 17, 1969, Agent Borcia and Gaspari called on defendant at his home. A conversation took place in which defendant said to Agent Borcia, "You are lucky you didn't bite for the fifteen machine guns that I told Gaspari about that I had for sale." In answer to Borcia's question, defendant further said, "Well, if you had wanted all fifteen of them at once, I would have expected you to have been a federal agent and I never would have had you down tonight."

Defendant then told Borcia he could not obtain a Browning automatic rifle for him but that he could get him a M-16 machine gun for $475. Defendant left the room to make a telephone call to check on the availability of the M-16. He returned shortly and advised Borcia he could get the gun but that Borcia would have to buy it from him (defendant) because the owner did not know Borcia and therefore did not trust him. Upon the defendant's suggestion, Borcia and Gaspari went out to a restaurant to eat. When they returned, defendant had possession of the M-16. Borcia had only $290 with him. He borrowed $100 from Gaspari and paid the $390 to defendant, promising to pay the remaining $85. Defendant said at that time he knew the gun was stolen. Later that evening Agent Borcia, accompanied by Gaspari, left defendant's home with the M-16.

A week later, on April 24, 1969, Agent Borcia returned to defendant's home in the evening and paid the balance of $85 on the purchase price of the M-16. On May 6, 1969, Borcia was again in defendant's home to purchase ammunition. On September 17, 1969, Borcia was in defendant's home, purchased a shotgun and pistol from defendant and had dinner with defendant and his wife at their residence. During these several meetings with defendant, Borcia, in order to deceive defendant, misrepresented that he liked to hunt and fish; that his parents owned several restaurants; and in general left the impression that he was an unemployed "playboy."

Defendant testified in his own behalf and, as corroborated by his wife, stated that Agent Borcia met with him at his home three times before April 17, 1969. Cook County Sheriff's patrolman Richert corroborated their testimony that their first meeting was sometime in January, 1969. Agent Borcia testified, however, that Richert was present at Borcia's first meeting with defendant, but asserted that it was in fact on April 17, 1969 and that he had never spoken to defendant before that date.

Defendant and his wife testified they had served dinner to Agent Borcia in their home sometime in February, 1969, while Borcia said it was on September 17, 1969, five months after the transfer and possession of the M-16 on April 17, 1969. Borcia had made notes relating to the occurrences going back to April 17, 1969, which he later destroyed after making a written report concerning such matters about one year later.

Defendant was introduced to Agent Borcia by Gaspari. He sought to impeach Gaspari because the latter was then under an indictment in Detroit, Michigan for conspiracy to violate a federal statute.

Thus, it appears conclusively that the testimony of Agent Borcia and defendant was in conflict principally concerning the time of the various occurrences. The jury, in its allowable discretion, obviously believed Agent Borcia, rather than defendant and his witnesses.

Defendant was arrested in May, 1970 for the unlawful possession and transfer of the M-16 machine gun purchased on April 17, 1969. The instant ...

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