United States v. Hollingsworth

The defendants, Pickard (a dentist) and Hollingsworth (a farmer), were convicted by a jury of money laundering and related offenses in violation of federal law, and were sentenced to 24 and 18 months in prison, respectively. A panel of this court held that the defendants had been entrapped as a matter of law, and were entitled to be acquitted. 9 F.3d 593 (7th Cir.1993). Rehearing en banc was granted on the petition of the government, which contended that the decision had created a new element of the defense of entrapment — “readiness”—and by doing so had radically altered the law of entrapment.

What is true is that until the Supreme Court’s recent decision in Jacobson v. United States, — U.S. -, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), the courts of appeals had been drifting toward the view, clearly articulated by the Second Circuit in United States v. Ulloa, 882 F.2d 41, 44 (2d Cir.1989), that the defense of entrapment must fail in any case in which the defendant is “willing,” in the sense of being psychologically prepared, to commit the crime for which he is being prosecuted, even if it is plain that he would not have engaged in criminal activity unless inveigled or assisted by the government. This drift in thinking reflected the semantic pull of the term “predisposition,” the central element of the defense of entrapment as articulated in the modern cases. The word is suggestive of pure willingness; and it is the suggestion picked up by Ulloa and other decisions. But the suggestion cannot in our view be squared with Jacobson. The defendant in that case was prosecuted for buying child pornography, and convicted. The pornography was furnished him by government agents, who were aware of his interest in preteen sex because he had bought magazines that catered to this interest but were not illegal. The purchase for which he was prosecuted was the culmination of a 26-month campaign by the government to interest Jacobson in buying magazines that, because they contained photographs of children engaged in sexual activity, violated the child pornography laws. It is unclear why the government took so long to spring the trap; for Jacobson at no time exhibited any reluctance to purchase such magazines; he may not even have known that they were illegal. Despite his lack of reluctance, emphasized by Justice O’Connor in her dissenting opinion, the Supreme Court reversed Jacobson’s conviction, holding that he had been entrapped as a matter of law.

The vote was close (five to four), and the majority opinion, written by Justice White, does not purport to break new ground, to overrule decisions like Ulloa, or to qualify language in previous decisions by the Supreme Court which might have been read to equate predisposition to intent. E.g., United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973). But it is not unusual for a court to change the law without emphasizing its departures from or reinterpretation of precedent; emphasis on continuity is characteristic of common law lawmaking even when innovative, and the doctrine of entrapment is a common law doctrine. Cases both in this and in other circuits, besides the panel decision in this case, recognize that Jacobson has changed the landscape of the entrapment defense. E.g., United States v. Groll, 992 F.2d 755, 760 (7th Cir.1993); United States v. Olson, 978 F.2d 1472, 1483 (7th Cir.1992); United States v. Mkhsian, 5 F.3d 1306, 1310-11 (9th Cir.1993). In Olson, a panel of this court, speaking through Judge Coffey, referred to “the new standard enunciated in Jacobson,” 978 F.2d at 1483, and in Groll another panel said that Jacobson had “breath[ed] new life into the entrapment defense.” 992 F.2d at 760. United States v. Beal, 961 F.2d 1512 (10th Cir.1992), upheld a judgment of acquittal, in a case factually much like the present one, on the basis of Jacobson. Cf. United States v. Skarie, 971 F.2d 317, 321 (9th Cir.1992). The facts of Jacobson were unquestionably peculiar, and the government’s tactics— which included “waving the banner of individual rights and disparaging the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit materials,” — U.S. at -, 112 S.Ct. at 1542 — bizarre and distasteful. Nevertheless, had the Court in Jacobson believed that the legal concept of predisposition is exhausted in the demonstrated willingness of the defendant to commit the crime without threats or promises by the government, then Jacobson was predisposed, in which event the Court’s reversal of his conviction would be difficult to explain. The government did not offer Jacobson any inducements to buy pornographic magazines or threaten him with harm if he failed to buy them. It was not as if the government had had to badger Jacobson for 26 months in order to overcome his resistance to committing a crime. He never resisted.

The vote in Jacobson, as we have noted, was close. If our dissenting colleagues had been members of the Supreme Court when the case was decided, it would no doubt have been decided differently. The decision is narrowly written, with emphasis on the particular tactics employed by the government, and should be cautiously construed. But we are naturally reluctant to suppose that the decision is limited to the precise facts before the Court, or to ignore the Court’s definition of entrapment, which concludes the analysis portion of the opinion and is not found in previous opinions, as “the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law.” Id. at-, 112 S.Ct. at 1543. That was Jacobson. However impure his thoughts, he was law abiding. A farmer in Nebraska, his access to child pornography was limited. As far as the government was aware, over the period of more than two years in which it was playing cat and mouse with him he did not receive any other solicitations to buy pornography. Id. at-, 112 S.Ct. at 1539. So, had he been “left to his own devices,” in all likelihood he would “have never run afoul of the law.” If the same can be said of Pickard and Hollingsworth, they too are entitled to be acquitted. Their willingness to commit the crimes to which the government invited them cannot be decisive. Predisposition requires more; otherwise not only the outcome of Jacobson but also the definitional passage that we quoted and that conspicuously omits mention of any mental state are difficult to make sense of.

Recently the First Circuit, struggling as are we to understand the scope of Jacobson, suggested that all it stands for is that the government may not, in trying to induce the target of a sting to commit a crime, confront him with circumstances that are different from the ordinary or typical circumstances of a private inducement. United States v. Gendron, 18 F.3d 955, 962 (1st Cir.1994). The court in Gendron thought that the government’s attempt to persuade Jacobson that he had a First Amendment right to consume child pornography had departed from typicality. We are not so sure. Just as the gun industry likes to wrap itself in the mantle of the Second Amendment, so the pornography industry likes to wrap itself in the mantle of the First Amendment. But however that may be, the government made no effort in this case to show that a real customer for money laundering would have responded to an advertisement to sell a Grenadan bank, which is what happened here as we are about to see.

We put the following hypothetical case to the government’s lawyer at the reargument. Suppose the government went to someone and asked him whether he would like to make money as a counterfeiter, and the reply was, “Sure, but I don’t know anything about counterfeiting.” Suppose the government then bought him a printer, paper, and ink, showed him how to make the counterfeit money, hired a staff for him, and got everything set up so that all he had to do was press a button to print the money; and then offered him $10,000 for some quantity of counterfeit bills. The government’s lawyer acknowledged that the counterfeiter would have a strong case that he had been entrapped, even though he was perfectly willing to commit the crime once the government planted the suggestion and showed him how and the government neither threatened him nor offered him an overwhelming inducement.

We do not suggest that Jacobson adds a new element to the entrapment defense — “readiness” or “ability” or “dangerousness” on top of inducement and, most important, predisposition. (As explained in the panel opinion, inducement is significant chiefly as evidence bearing on predisposition: the greater the inducement, the weaker the inference that in yielding to it the defendant demonstrated that he was predisposed to commit the crime in question. 9 F.3d at 597.) Rather, the Court clarified the meaning of predisposition. Predisposition is not a purely mental state, the state of being willing to swallow the government’s bait. It has positional as well as dispositional force. The dictionary definitions of the word include “tendency” as well as “inclination.” The defendant must be so situated by reason of previous training or experience or occupation or acquaintances that it is likely that if the government had not induced him to commit the crime some criminal would have done so; only then does a sting or other arranged crime take a dangerous person out of circulation. A public official is in a position to take bribes; a drug addict to deal drugs; a gun dealer to engage in illegal gun sales. For these and other traditional targets of stings all that must be shown to establish predisposition and thus defeat the defense of entrapment is willingness to violate the law without extraordinary inducements; ability can be presumed. It is different when the defendant is not in a position without the government’s help to become involved in illegal activity. The government “may not provoke or create a crime, and then punish the criminal, its creature.” Casey v. United States, 276 U.S. 413, 423, 48 S.Ct. 373, 376, 72 L.Ed. 632 (1928) (Brandéis, J., dissenting). Such cases, illustrated by Jacobson and by our counterfeiter hypothetical, are rare; we must decide whether this ease is one of them.

Pickard is an orthodontist practicing in Fayetteville, Arkansas. Hollingsworth is a farmer and businessman, also in Arkansas. Although Pickard’s dental practice was (and as far as we know still is) successful, he continually tried to augment his income by business ventures, all of which failed. The last and most disastrous failure began in 1988 when he and Hollingsworth decided to become international financiers — a vocation for which neither had any training, contacts, aptitude, or experience. Pickard formed a Virgin Islands corporation, CIAL (Compag-nie d’Investement de Les Antilles Limitee), to conduct international banking. The corporation was financed by capital contributions totaling $400,000. Almost all the money came from Pickard and his family, but Holl-ingsworth and a Taiwanese investor made small contributions. With this money, the corporation advertised for customers and obtained two foreign banking licenses, one Gre-nadan. No customers were obtained through advertising or otherwise, and with the enterprise steadily losing money the corporation decided to sell the Grenadan license to raise additional working capital. Pickard placed a classified ad in the May 4,1990, issue of USA Today offering to sell the unused license for $29,950. The ad listed CIAL’s phone number and told callers to ask for “Bill.”

U.S. customs agent J. Thomas Rothrock, working out of the Indianapolis office of the customs service, was that very day attending a seminar on money laundering. Rothrock read USA Today and his eye lit on Pickard’s ad. Knowing that foreign banks are sometimes used for money laundering, Rothrock “assumed that someone who wanted to sell one would possibly be interested in money laundering.” This was an odd assumption: if a foreign banking license is a useful thing to use for money laundering, why would someone interested in money laundering want to sell it? In any event, there is no evidence that Pickard’s intention in offering his Grena-dan banking license for sale was to get into the money-laundering business.

On May 11 Rothrock called the phone number listed in the ad. He left a message for “Bill,” but no one returned the call. He called again on the seventeenth and this time Pickard returned his call. Using the pseudonym of “Tom Hinch,” Rothrock told Pickard that he had money from an organization and wanted to deposit it offshore. Pickard responded that he had a bank for sale, and other vehicles or instruments for achieving “Hindi’s” purposes that might be less expensive than a bank; and in a later call he described a variety of international financial services, all lawful. Hinch explained that his organization had a lot of cash, that the profit margin generated by the organization’s activities was very large, and that the organization wanted to accumulate cash and deposit it somewhere. Pickard pointed out that a cash deposit of less than $10,000 would not have to be reported to federal banking authorities and hence that a larger sum could be broken up into smaller ones and deposited in different banks; alternatively the whole sum could be deposited outside the United States. Rothrock expressed interest in the first maneuver. After this conversation, which occurred on May 18, Rothrock opened a formal investigation “to determine the past and present unlawful activities of William Pick-ard” and his corporation. There were no such activities; and in a subsequent conversation with Rothrock, Pickard retracted the suggestion that the money might be deposited outside the United States, remarking that that would violate the law. It bears emphasizing that there is no evidence that Pickard realized that “structuring” a large cash deposit to avoid federal reporting requirements would also violate the law. Since the panel decision, the Supreme Court has held that “structuring” is a specific-intent crime — unless the “strueturer” knows that what he is doing is illegal, he is not guilty. Ratzlaf v. United States, — U.S. -, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). The line between evading and avoiding regulatory requirements is a fine one, and one who crosses it unknowingly is not a criminal.

Pickard asked “Hinch” for assurance that the cash wasn’t from drug sales and that Hinch himself was not a federal agent or informer, and Hinch gave him the requested assurances. In another telephone conversation, this one at the end of May, Pickard asked Hinch whether he wanted Pickard merely to “clean and polish” funds or for “extended services”; Hinch was evasive. In subsequent conversations Pickard turned coy, indicating that he was interested only in a long-term banking relationship.

Matters were at a standstill between August 20, 1990, the date of the last of the conversations in which Pickard expressed his lack of interest in providing spot services, and February 9, 1991, when Rothrock, having obtained $200,000 in sting money from his superiors, called Pickard, told him he was “getting overwhelmed and I’m gonna be in need of your services,” and arranged to meet Pickard in St. Louis ten days later. In this, their first face to face meeting, “Hinch” explained that the source of his cash was the smuggling of guns to South Africa. They agreed that Pickard would travel to a hotel • room in Indianapolis where he would be shown $20,000 plus Pickard’s fee of $2,405 in cash. Pickard would arrange a wire transfer of $20,000 to Hinch’s bank account and after the transfer was confirmed would take possession of the cash. The transaction took place on April 3, 1991, and subsequent transactions brought the total transferred in this manner to $200,000. Hollingsworth made one of the trips to Indianapolis, bringing back $30,000 in cash for Pickard in exchange for $405 in fee and expenses — all that Holl-ingsworth ever realized from the dealings with Hinch, so far as the record discloses. A further transaction was scheduled for September 13, at which Pickard was to transfer $235,000 for Hinch, but when Pickard showed up he was arrested. Hollingsworth was arrested at the same time back in Arkansas. When arrested Pickard was carrying false-name passports for himself and Hollings-worth issued by the mythical “Dominion of Melehizedek.” So far as appears, before becoming involved with Hinch neither Pickard nor Hollingsworth had ever engaged in financial or for that matter any other wrongdoing, the Melchizedekian passports having been obtained after Hinch appeared on the scene; and we know from Jacobson that a criminal predisposition induced by government action cannot be used to defeat an entrapment defense. Jacobson v. United States, supra, - U.S. at - and n. 2, 112 S.Ct. at 1541 and n. 2; United States v. Hart, 963 F.2d 1278, 1283 and n. 1 (9th Cir.1992). Nor did CIAL ever attract a single customer other than Hinch — who also was the only person who responded to the ad for the Grenadan banking license.

When Rothrock called Pickard on February 9, after a silence of five and a half months, Pickard’s international-finance business was on the verge of closing; he had no customers. Had the government left Pickard “to his own devices” — had Rothrock left him alone after their inconclusive initial conversations — in all likelihood Pickard, a middle-aged man who so far as anyone knows had never before committed any crime, would never have committed a money-laundering or related offense. “The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime.” Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958). Rothrock and his superiors manufactured Pickard’s and Holl-ingsworth’s crimes. They turned two harmless, though weak, foolish, and in Pickard’s case at least, greedy, men into felons.

There is no evidence that before “Hinch” began his campaign to inveigle them into a money-laundering scheme either Pickard or Hollingsworth had contemplated engaging in such behavior. Compare United States v. Hudacek, 7 F.3d 203, 205 (11th Cir.1993). No significance can be attached to their obtaining foreign banking licenses; they could not have obtained American licenses — they hadn’t the background, resources, or connections. When the opportunity to become crooked international financiers beckoned, they were willing enough, though less willing than Jacobson had been to violate the federal law against purchasing child pornography through the mails — Jacobson never evinced reluctance, even though he had received no financial inducements. Pickard and Holl-ingsworth had no prayer of becoming money launderers without the government’s aid. Their solicitations for financial business had produced a tiny investor, but'no customers. Their corporation was running out of money when they placed the ad in USA Today for the Grenadan banking license. No one responded to the ad, except “Hinch.” Suppose he hadn’t responded. What would Pickard and Hollingsworth have done next? Whatever it takes to become an international money launderer, they did not have it. Had Hinch not answered the ad, Pickard would soon have folded his financial venture. It would have joined his other failures — his movie theaters that failed, his amusement park that failed, his apartment building that failed, his attempt to market cookbooks written by his wife that failed. By the time he turned with quixotic persistence to international banking he had already lost almost $300,000 in his business ventures. He plunged his remaining life savings and those of his family into CIAL. They were rapidly hemorrhaging when Hinch popped up. Had it not been for that contrived ray of hope Pickard would have been forced to abandon international financing in order to avoid financial ruin. He was a threat to himself and his family. He was never a threat to society. All this is even clearer with respect to Hollingsworth, who functioned in CIAL purely as a minor investor and factotum.

It would be different if CIAL had had an up-and-running bank, for then it would have had a realistic opportunity to engage in money laundering, in much the same way that a public official to whom a government undercover agent or informant might offer a bribe would have a real opportunity to sell his office, as in United States v. Jenrette, 744 F.2d 817, 822 (D.C.Cir.1984). Pickard and Hollingsworth didn’t have a bank or a public office or any other facility that made it even remotely likely that they would have engaged in criminal activity if the government had not set their minds to it.

The point is not that Pickard and Hollings-worth were incapable of engaging in the act of money laundering. Obviously they were capable of the act. All that was involved in the act was wiring money to a bank account designated by the government agent. Anyone can wire money. But to get into the international money-laundering business you need underworld contacts, financial acumen or assets, access to foreign banks or bankers, or other assets. Pickard and Hollingsworth had none. (Notice that no use was made of the Grenadan banking license.) Even if they had wanted to go into money laundering before they met Hinch — and there is no evidence that they did — the likelihood that they could have done so was remote. They were objectively harmless.

We do not wish to be understood as holding that lack of present means to commit a crime is alone enough to establish entrapment if the government supplies the means. Only in punishing speech is the government limited to preventing clear and present dangers. Suppose that before Hinch chanced on the scene (for Jacobson makes clear, as we have noted, that a predisposition created by the government cannot be used to defeat a defense of entrapment), Pickard had decided to smuggle arms to Cuba but didn’t know where to buy a suitable boat. On a hunch, a government agent sidles up to Pickard and gives him the address of a boat dealer; and Pickard is arrested after taking possession of the boat and setting sail, and is charged with attempted smuggling. That would be a case in which the defendant had the idea for the crime all worked out and lacked merely the present means to commit it, and if the government had not supplied them someone else very well might have. It would be a case in which the government had merely furnished the opportunity to commit the crime to someone already predisposed to commit it. Jacobson v. United States, supra, — U.S. at -, 112 S.Ct. at 1541; United States v. Kussmaul, 987 F.2d 345, 349-50 (6th Cir.1993). Kussmaul, a post-Jacobson child-pornography sting ease, notes that the defendant “professed a familiarity with the film business and claimed frequently to order adult films through the mails.” Id. at 350. A person who is likely to commit a particular type of crime without being induced to do so by government agents, although he would not have committed it when he did but for that inducement, is a menace to society and a proper target of law enforcement. The likelihood that he has committed this type of crime in the past or will do so in the future is great, and by arranging for him to commit it now, in circumstances that enable the government to apprehend and convict him, the government punishes or prevents real criminal activity. The government’s inducement affects the timing of the offense; it does not create the offense by exploiting the susceptibility of a weak-minded person. The defense of entrapment reflects the view that the proper use of the criminal law in a society such as ours is to prevent harmful conduct for the protection of the law abiding, rather than to purify thoughts and perfect character.

Our two would-be international financiers were at the end of their tether, making it highly unlikely that if Hinch had not providentially appeared someone else would have guided them into money laundering. No real criminal would do business with such tyros. Or so it appears; perhaps the government could have shown that a Grenadan banking license has no other use but money laundering and that sooner or later Pickard and Hollingsworth would have gotten into money laundering even without the government’s aid. No attempt was made to show this; and we remind that the government’s acknowledged burden is to prove beyond a reasonable doubt that a defendant who raises a colorable defense of entrapment, as Pickard plainly did, has not in fact been entrapped. Jacobson v. United States, supra, — U.S. at -, 112 S.Ct. at 1540.

We have spoken mainly so far of Pickard. Hollingsworth, without quite saying that he himself was entrapped, argues that it would be “fundamentally unfair” to convict him if Pickard’s defense of entrapment succeeds. The government’s brief construes this as an argument for entrapment and responds that Hollingsworth was entrapped not by Roth-rock but by Pickard and that private entrapment doesn’t count. If Hollingsworth waived entrapment by putting all his eggs in the “fundamental fairness” basket — and maybe he did waive it, United States v. Bradley, 820 F.2d 3, 7 n. 5 (1st Cir.1987) — the government bailed him out by waiving waiver. United States v. Caputo, 978 F.2d 972, 975 (7th Cir.1992). So we proceed to the merits.

There is no defense of private entrapment. United States v. Jones, 950 F.2d 1309, 1315, (7th Cir.1991); United States v. Manzella, 791 F.2d 1263, 1269 (7th Cir.1986); United States v. Emmert, 9 F.3d 699, 703 (8th Cir.1993). A person hired to commit a crime cannot defend on the ground that the hirer offered him so much money that it broke down his resistance. Such a plea is actually an argument for a heavier sentence, in order to offset the inducement. The severe punishments that Congress has imposed for violation of the federal drug laws may reflect the profitability of drug trafficking: the more profitable a crime, the more costly must the punishment be to the criminal in order to deter him from committing it.

But Pickard did not induce Hollingsworth to commit a real crime. He transmitted Rothrock’s inducement to commit a phony crime. Relative to Hollingsworth he was Rothrock’s agent, albeit an unwitting one. At reargument the government’s lawyer acknowledged that if Rothrock had suggested that Pickard associate another person with him in his scheme of money laundering, the government might be liable for vicarious inducement. One case so holds, United States v. Klosterman, 248 F.2d 191, 196 (3d Cir.1957), and a number of others, illustrated by United States v. Hernandez, 995 F.2d 307, 313 (1st Cir.1993); United States v. Neal, 990 F.2d 355, 358 (8th Cir.1993); United States v. Hodges, 936 F.2d 371, 372 (8th Cir.1991), and United States v. Bradley, 820 F.2d 3, 8 (1st Cir.1987), so suggest. The result follows directly from the unquestioned principle that the defense of entrapment is available even when the government agent who does the entrapping is an informant rather than a government employee. Sherman v. United States, supra, 356 U.S. at 373-74, 78 S.Ct. at 821-22. Rothrock did not suggest, but he did induce, the association of Hollingsworth with Pickard in the scheme that Rothrock had hatched; and that we think is enough to make Pickard Rothrock’s agent in entrapping Hollingsworth. To acquit Pickard but convict Hollingsworth would produce the absurdity of acquitting the principal while sending the agent to prison for 18 months even though the principal had rendered no assistance to the government, the agent did not have a longer criminal record (no evidence was presented at trial that either defendant had had any previous scrapes with the law), and no other circumstance authorizing heavier punishment of the lesser criminal was present either. There is nothing unlawful about acquitting the principal and convicting the agent, Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), but we are entitled to doubt a view of doctrine that would make this result inevitable.

It is true that in Manzella a panel of this court left open the question whether there is a doctrine of vicarious entrapment. 791 F.2d at 1269-70. When Manzella came down, the Second Circuit had held that there was such a doctrine. United States v. Valencia, 645 F.2d 1158, 1168-69 (2d Cir.1980). Since then, the First Circuit has held that there isn’t, United States v. Bradley, supra, 820 F.2d at 8, and the Second Circuit has retrenched, United States v. Pilarinos, 864 F.2d 253, 256 (2d Cir.1988) — yet with the important qualification that if “ ‘the government’s inducement was directly communicated to the ... [defendant]’ by an unwitting middleman,” the defendant would be entitled to submit his entrapment defense to the jury. Id. The court called this “derivative entrapment.” Perhaps the most accurate statement of the current law is that while there is no defense of either private entrapment or vicarious entrapment, there is a defense of derivative entrapment: when a private individual, himself entrapped, acts as agent or conduit for governmental efforts at entrapment, the government as principal is bound. This principle follows as we said from the unquestioned principle that the entrapment defense will lie whether the government uses its own employee as the stinger or an informant.

The concern with recognizing a defense of vicarious entrapment is that it might enormously complicate the trial of criminal eases. We share that concern, and hence do not endorse the doctrine. United States v. Marren, 890 F.2d 924, 931 n. 2 (7th Cir.1989). In any case in which a government undercover agent or informant had been used, defendants with whom he had not dealt face to face or even over the phone could argue with more or less plausibility that the real criminals with whom they had dealt had merely been transmitting the inducements furnished by the agent or informant. Our case is different. Just as Pickard was entrapped by Agent Rothrock, so was Hollingsworth, even if on some occasions Rothrock was as it were speaking to Hollingsworth through Pickard rather than speaking to Hollingsworth directly. We add that if the first person whom the government entraps expands, embroiders, or elaborates the scheme proposed to him by the government, the accomplices with whom he associates himself in the larger scheme cannot shelter under his entrapment defense; nor, we believe, could he; nor could they if, independently of any embroidery by the first “entrapee,” they had been predisposed to join in the scheme, as in Carbajal-Portillo v. United States, 396 F.2d 944, 947 (9th Cir.1968).

The appeals and cross-appeals raise other issues, but on the view we take of the case they are moot. The judgment is reversed with directions to acquit the defendants.

REVERSED.