United States v. Buddy G. Rector

Citations: 111 F.3d 503; 1997 U.S. App. LEXIS 6758; 1997 WL 174806Docket: 96-1952

Court: Court of Appeals for the Seventh Circuit; April 11, 1997; Federal Appellate Court

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Buddy G. Rector was convicted of seven federal firearms offenses and sentenced to 210 months in prison, which he is appealing. His appeal raises issues regarding his counsel's effectiveness, the federal prosecution's conduct, the court's denial of a downward adjustment for acceptance of responsibility, and the classification of his criminal history. The conviction is affirmed, but the case is remanded for resentencing.

Rector, a convicted felon, illegally purchased and sold firearms on multiple occasions between 1991 and 1992, violating 18 U.S.C. 922(g)(1). He falsely claimed on the required firearms transaction records (form 4473) that he had no prior convictions punishable by imprisonment exceeding one year. After selling a .22 caliber Marlin rifle and attempting to sell a Colt .357 magnum revolver—while indicating he would alter the serial number—the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) became involved following a neighbor's report. After waiving his rights, Rector admitted to his actions, leading to a search of his residence where additional firearms were found.

Initially arrested for receiving stolen property under state law, he later pleaded guilty to that charge. Subsequently, a federal grand jury indicted him on five counts of being a felon in possession of a firearm and two counts of making false statements on a firearms transaction form.

Rector testified at trial that between October and December of 1991, he consulted town marshal Roberts, who allegedly informed him he could legally possess firearms for hunting and target practice. The record does not clarify whether Roberts corroborated or contradicted this testimony, nor if he testified at all. Despite the defense's attempts to establish a basis for "entrapment by estoppel," Rector's counsel did not submit a jury instruction for this defense, although the argument was made during summation. Rector was convicted on all counts and sentenced to 210 months in prison.

On appeal, Rector contended he received ineffective assistance of counsel due to the failure to request a jury instruction on "entrapment by estoppel." While Rector admitted the facts leading to his conviction, he believed he was acting lawfully based on the marshal's advice. His counsel indicated to the jury that Rector had checked with law enforcement before his actions but did not formally submit the entrapment by estoppel instruction, potentially to avoid the risk of being rebuffed by the court. 

Under the Strickland standard, the focus is on whether the alleged ineffective assistance was prejudicial. Since it would not have been appropriate to give the entrapment by estoppel instruction regardless, there was no demonstrated prejudice from counsel's omission.

Entrapment by estoppel is a rarely available affirmative defense requiring that the misleading party be a state official who actively misleads the defendant, and that the defendant's reliance on this misinformation is both actual and objectively reasonable. In this case, Rector claims a town marshal informed him that federal law permitted firearm ownership for hunting or target practice. However, Rector acknowledges that allowing state law enforcement statements as a defense would contradict existing legal authority. 

The court emphasizes that the assessment of reliance must be objective, rejecting Rector's subjective belief about the marshal's authority. It clarifies that a defendant cannot claim entrapment by estoppel based on mistaken beliefs that are not objectively reasonable, as this would allow for defense claims based on ignorance or naivety. 

Rector also argues that the marshal had apparent authority to provide legal advice, but this assertion is flawed as it relies on his belief rather than any actions by the federal government indicating such authority. The law states that individuals dealing with government entities are expected to know the law and cannot rely on agents' conduct that contradicts it. 

Furthermore, for entrapment by estoppel to apply, any reliance must be in good faith. The court finds this undermined by Rector's possession of a stolen firearm and his false statements on federal forms regarding his felony status. Additionally, the alleged conversation with the marshal occurred after his initial firearm purchase, further weakening his defense. 

Consequently, the court concludes that Rector has not provided sufficient facts to support a departure from legal precedent regarding entrapment by estoppel, and his counsel's failure to pursue this defense does not constitute ineffective assistance of counsel.

Sham prosecution, as referenced in legal discussions, particularly in Bartkus v. Illinois, has been largely dismissed by courts, with the exception being considered extremely narrow. In the case at hand, the prosecution did not constitute a sham; instead, it demonstrated the desired cooperation between state and federal authorities. The ATF's involvement is noted as beneficial, especially for firearms investigations, which smaller police departments may struggle to manage. The state charge of receipt of stolen property was separate from the federal charge of possession by a felon, indicating no overlap that would raise double jeopardy concerns. Additionally, it is common for federal indictments to follow state prosecutions due to procedural differences and the federal government's discretion in pursuing charges after state punishment.

Rector contends the court erred by denying a downward adjustment for acceptance of responsibility during sentencing. He asserts he admitted all relevant conduct from the outset but the court found no clear evidence of remorse or acceptance of responsibility. Under U.S.S.G. 3E1.1, acceptance of responsibility is typically not granted to defendants who go to trial and deny guilt, only later admitting guilt post-conviction. Although Rector claims he admitted the essential elements of guilt, he maintained an entrapment defense which does not equate to acceptance of responsibility. The court noted that asserting entrapment implies a denial of personal culpability, countering any claim of remorse. Consequently, the court's refusal to grant the adjustment was justified.

Regarding Rector's criminal history category, the presentence report enhanced his category due to a state conviction for possessing a stolen firearm, which Rector did not contest at trial. The government conceded this was an error, acknowledging that excluding the state conviction would lower his category from V to IV, subsequently reducing the sentencing range from 210-262 months to 188-235 months. The government argued that if this error is found to be clear, the case should be remanded for resentencing, as the issue is now non-justiciable due to their concession.

Rector, a convicted felon, violated federal law by possessing firearms while engaging in a trade for cash and a ferret, as well as by providing false information on federal gun purchase forms. His defense of entrapment by estoppel, based on advice from a low-level state official, was rejected because a state official cannot bind the federal government, and Rector's reliance on the advice was not in good faith due to prior misconduct, including advising a coworker to alter a gun's serial number. The prosecution was not considered a "sham prosecution." The court affirmed his conviction and the denial of an acceptance of responsibility adjustment in his sentence but acknowledged a government error in calculating his criminal history category, leading to a remand for resentencing. It is noted that while ineffective assistance of counsel claims are typically discouraged on direct appeal due to insufficient records, they can be raised in certain circumstances. Relevant case law is cited to illustrate that entrapment by estoppel is not applicable when misleading advice comes from state officials rather than federal authorities.