United States v. Anthony Melvin Azadian

436 F.2d 81 UNITED STATES of America, Plaintiff-Appellee, v. Anthony Melvin AZADIAN, Defendant-Appellant. No. 25772. United States Court of Appeals, Ninth Circuit. Jan. 11, 1971, Rehearing Denied April 1, 1971. Ronald Morrow (argued), Richard G. Sherman, Beverly Hills, Cal., for defendant-appellant. David P. Curnow (argued), Asst. U.S. Atty., Robert L. Meyer, U.S. Atty., David R. Nissen, Chief, Crim. Div., David P. Curow, Edward J. Wallin, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee. Before CHAMBERS, ELY and WRIGHT, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 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. 2 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…

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 *82 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.…

(dissenting):

I respectfully dissent. Despite anything which has been written to the contrary, I think it simply illogical that one can be found guilty of aiding and abetting in the commission of an offense which has been held not to have occurred. As our Brother Barnes wrote in United States v. Jones, 425 F.2d 1048 (9th Cir. 1970), which, incidentally, the majority ignores: “There is no question but there must be a guilty principal before there can be an aider or abettor.” See also Edwards v. United States, 286 F.2d 681 (5th Cir. 1960); United States v. Titus, 210 F.2d 210 (2d Cir. 1954); Karrell v. United States, 181 F.2d 981 (9th Cir.), cert. denied, 340 U.S. 891 , 71 S.Ct. 206 , 95 L.Ed. 646 (1950).

Even were this not the law, I would reverse Azadian’s conviction. The majority’s reasoning, as I understand it, is that the immunity granted to an entrapped principal should not extend to one who aided and abetted the commission of the otherwise criminal acts of the principal. In support of its position, the majority relies solely upon Carba-jal-Portillo v. United States, 396 F.2d 944 (9th Cir. 1968). In my humble opinion, however, that decision does not support the majority’s…