United States v. Anthony Melvin Azadian

436 F.2d 81

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 1, 1971
• Docket: 25772_1
• Status: Published

Opinions

EUGENE A. WRIGHT, Circuit Judge:

Appellant was convicted, under 18 U. S.C. §§ 2 and 201(c), of aiding and abetting the bribing of a public official, an employee of a draft board. On appeal, he urges that his conviction cannot stand because the principal in the case was found not guilty by reason of entrapment. We disagree and affirm.

Three persons were prosecuted on a multi-count indictment. Diane Daniel was an employee of Local Group B in Pasadena, California, and had access to Selective Service files in that office. Gary Stevens Langley was a registrant with Local Board 94, located at the same address. Appellant Azadian was a friend of Miss Daniel.

Langley was to report for a physical examination on May 23, 1969. His father, Gene Langley, was a correctional counselor at Chino State Prison. Before the reporting date, the senior Langley importuned one. Paul Lewallen to assist in changing his son’s draft status. Le-wallen was a parolee and one of Langley’s former charges at the prison and known to be acquainted with Miss Daniel. He was also a government informant.

Lewallen called upon Miss Daniel and there followed ' conversations between them, the two Langleys and Azadian. Lewallen was the intermediary. All agreed that Gary would not report for his physical examination and that a letter with a false explanation would be sent to his draft board. Because of their joint efforts in transmitting this false information to the board, he and Miss Daniel were convicted of one count charging them with conspiring to defraud the United States. Appellant was found not guilty on that count.

Two days after Gary failed to take his physical examination, Lewallen became a cooperating informant for the Federal Bureau of Investigation. His conversations with the defendants and Gene Langley were recorded. Miss Daniel was reluctant to talk with Lewallen and referred him to Azadian. It was agreed between Miss Daniel, Azadian and Gene Langley that Gary’s draft classification would be changed.

The amount of the bribe was not agreed upon, Gene Langely suggesting that a referral system be developed by which Azadian would receive five other registrant clients who would pay, for similar service, $1,000 to $2,000. Azadi-an wanted cash as well as the referrals and Lewallen ultimately paid him $2,000 in F.B.I. funds, representing that the money came from Gene Langley.

According to Azadian, Miss Daniel was reluctant to consummate the plan. She had been recently promoted, was fearful of an F.B.I. investigation, had been opposed to the plan initially and did not want Azadian to accept the money. Azadian replied that $2,000 was too good to turn down and he hoped to persuade her to change her mind. However, she did not alter Gary’s file or classification.

Clearly, Azadian wanted to consummate the matter when Miss Daniel hoped to withdraw, and he wanted to use her to assist future prospects. She was charged with a violation of 18 U.S.C. § 201(c), i. e., directly or indirectly soliciting, accepting, receiving or agreeing to receive something of value in return for using influence in her official actions. Azadian was charged, under 18 U.S.C. § 2, with aiding and abetting her. He was found guilty but the district court found that Miss Daniel had been entrapped and dismissed that charge against her.

Can Azadian’s conviction of aiding and abetting be sustained when his principal, Miss Daniel, has been found not guilty because of entrapment? We conclude that it can.

In Carbajal-Portillo v. United States, 396 F.2d 944 (9th Cir. 1968), the principal (Carbajal) was entrapped while the aider and abettor (Vega) was not. The aider and abettor expressed a willingness to go forward that was not affected by the circumstances under which the principal was entrapped.

In affirming the conviction of the aider and abettor the court said:

“The defense of entrapment is not available to everyone who is induced, against his prior disposition, to commit a crime. It is available only where such inducement was by, or was occasioned by, a Government agent. It is made available not because inducement negatives criminal intent and thus establishes the fact of innocence ; but because Government agents should not be permitted to act in such a fashion. The defense does not so much establish innocence as grant immunity from prosecution for criminal acts concededly committed. Here Carbajal goes free because what was done to him was done by a Government agent. Vega must face the consequences of his criminal conduct because the Government agent played no part in inducing his crime.” Id. at 948.

Azadian was not entrapped. He desired and intended to go forward when his principal announced an intent to withdraw. The defense of entrapment is not available to him because the rule in this circuit requires that he admit the criminal act before he can successfully assert that he was entrapped. Ortega v. United States, 348 F.2d 874 (9th Cir. 1965).

Appellant’s other argument concerning the alleged inconsistency between the indictment and the conduct of the parties has been considered but is deemed lacking in merit. See Hurley v. United States, 192 F.2d 297 (4th Cir. 1951).

The decision of the district court is affirmed.