976 F.

2d 176

UNITED STATES of America, Plaintiff-Appellee,

v.
Daniel Clement JONES, Defendant-Appellant.
No. 91-5298.

United States Court of Appeals,

Fourth Circuit.
Argued May 5, 1992.
Decided Sept. 18, 1992.

John Kenneth Zwerling, Moffitt, Zwerling & Kemler, P.C., Alexandria,

Va., argued (William B. Moffitt, Lisa B. Kemler, Alan J. Cilman, on
brief), for defendant-appellant.
Jacquelyn Irwin Custer, Asst. U.S. Atty., Charleston, W.Va., argued
(Michael W. Carey, U.S. Atty., on brief), for plaintiff-appellee.
Before PHILLIPS, MURNAGHAN, and NIEMEYER, Circuit Judges.
OPINION
NIEMEYER, Circuit Judge:

A jury convicted Daniel Clement Jones for possessing, transferring, and

transporting in interstate commerce two shotguns which he had modified to
function as machine guns and sold to federal undercover agents, in violation of
the National Firearms Act, 26 U.S.C. 5801-72. Jones now challenges his
conviction, contending principally that (1) he was entrapped as a matter of law,
(2) the undercover operation, constructed to "ensnare" him, was "so outrageous
as to shock the conscience of the court," thereby violating his right to due
process, and (3) the government's decision to charge him under the National
Firearms Act and not under the Gun Control Act of 1968, 18 U.S.C. 921-30,
violated due process because, he contends, an amendment to the Gun Control
Act rendered unenforceable the applicable provisions of the National Firearms
Act. He also maintains that the district court abused its discretion during the
course of trial in excluding certain evidence, in refusing to declare a mistrial on

the firearms counts after it admitted evidence on a money laundering count

which it then dismissed at the end of the government's case, and in failing to
give certain instructions to the jury. Concluding that Jones was not denied due
process and that the district court committed no reversible error, we affirm.
2

* During an undercover investigation conducted by the IRS into money

laundering operations thought to involve Donald E. Kramer, a businessman
from Cody, Wyoming, and Don Barton, a venture capitalist from Dallas, Texas,
Kramer referred the IRS to the defendant, Daniel Jones, as one who might
launder money and supply illegal weapons. Jones was a mechanical engineer
living in Texas who was seeking venture capital to market two inventions.
After referring the IRS to Jones, Kramer contacted Jones, informing him that
Kerry Anthony, an undercover informant for the government, had money to
invest and was also interested in obtaining weapons. Jones and Anthony
thereafter, in several telephone conversations, discussed investments and
weapons, and more particularly Jones' design to convert shotguns into machine
guns and his willingness to manufacture such conversion kits.

On July 19, 1990, Jones flew from Texas to Parkersburg, West Virginia, to
meet Anthony and Richard Kemp, an undercover agent of the Bureau of
Alcohol, Tobacco and Firearms, and to demonstrate his conversion design. In a
hotel room there, he altered the trigger assembly of a semi-automatic shotgun
using small pieces of metal, while he explained that the modification would
render the shotgun fully automatic and could not be detected without removing
the trigger assembly or firing the weapon. The three then went to a firing range
to test the weapon, which twice fired two shells with one pull of the trigger,
then returned to firing only single shots with each trigger pull. Jones diagnosed
the malfunction, concluding that a stronger spring was probably required.

On July 26, Anthony received a UPS package containing a trigger assembly

that, when substituted for the original, allowed Kemp to fire a semi-automatic
Remington shotgun continuously so long as the trigger was depressed. A few
days later, Kemp called Jones to confirm receipt of the assembly from Jones
and to congratulate him on his workmanship. During the course of negotiations
about money that followed, Kemp requested five more converted shotguns and
Jones indicated, more than once, his willingness to manufacture them. Kemp
and Jones also discussed the possibility that Kemp might invest in one of Jones'
companies and other prospects of future cooperation in the "long term." In a
follow-up telephone conversation, Jones agreed to drive to Parkersburg a few
days later with two modified shotguns and several nine-millimeter handguns.

On August 3, 1990, Jones drove to West Virginia with the two converted

shotguns, four handguns, and other items. In a hotel room in Parkersburg, he

met Anthony, Kemp, and local Deputy Sheriff Bruce Schuck, who was acting
as an associate of Kemp's. They first discussed Jones' remuneration, agreeing to
$2,000 for each of the converted shotguns, $1,000 for each of the handguns,
and $12,000 for Jones' start-up costs. They also agreed that Jones would supply
future lots of 20 to 30 converted shotguns at $1,400 each and 25 to 50 ninemillimeter handguns for $900 each. During these discussions, Kemp told Jones
that the money was "dope money," but Jones responded, "I don't care," and,
"As far as I'm concerned, you guys are working--this is going to the Contras...."
Kemp responded, "Well, that's cool. That's cool." When Anthony later said, "If
you want to call them Yaqui Indians Contras, we can call 'em anything you
want to," Jones answered, "I don't know nothing about any goddamn Indians....
Same thing Oliver North and Reagan have done, as far as I'm concerned." At
the meeting, Jones received $50,000 in cash to pay for the arms and other
merchandise and to fund the further production of weapons. As Jones left the
hotel room in possession of the cash, he was arrested.
6

The government indicted Jones in seven counts, two counts for possessing a
firearm made without the approval required by 26 U.S.C. 5822, in violation
of 26 U.S.C. 5861(c); two counts for transferring a firearm without the
approval required by 26 U.S.C. 5812(a), in violation of 26 U.S.C. 5861(e);
two counts for transporting a firearm which was not registered as required by
26 U.S.C. 5841, in violation of 26 U.S.C. 5861(j); and one count for money
laundering in violation of 18 U.S.C. 1956(a)(3). After the government
presented its case at trial, the district court directed a verdict of acquittal on the
money laundering count. Jones was convicted of the other counts and
sentenced to 15 months imprisonment.

At trial, Jones did not deny that he manufactured, transported and transferred
the modified shotguns without the requisite authorizations and registrations but
presented evidence to support his argument that he had been entrapped and that
he thought he was dealing with government agents seeking to acquire automatic
weapons. He also requested a mistrial on the ground that the admission of
evidence about drugs and money, pertinent to the dismissed charge of money
laundering, unduly prejudiced his defense on the weapons charges. From
adverse rulings on these points and on other rulings on evidence and jury
instructions, this appeal followed.

II
8

Jones' principal defense at trial and principal point on appeal is that he was
entrapped as a matter of law. Contending that his knowledge that his conduct

was criminal is essential to the government's effort to rebut an entrapment

defense, Jones asserts that he did not know that the conduct was criminal
because he thought he was supplying the converted shotguns to government
agents for use by the Contras in Nicaragua. He also contends that his decision
to commit the crime was the product of undue governmental persuasion
because of the large amounts of money it was offering at a time when he was in
need of money. The district court submitted the defense to the jury, and the jury
returned a guilty verdict. Jones argues that he should nevertheless be entitled to
the benefit of the entrapment defense as a matter of law.
9

The affirmative defense of entrapment recognizes that the government may

solicit or otherwise provide the opportunity to commit a crime for those
predisposed to do so but may not "implant in an innocent person's mind the
disposition to commit a criminal act, and then induce commission of the crime
so that the Government may prosecute." Jacobson v. United States, --- U.S. ----,
----, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 147 (1992); see also United States v.
Osborne, 935 F.2d 32, 37-38 (4th Cir.1991). Once a defendant meets his initial
burden of presenting evidence that the government induced him to commit the
crime, Osborne, 935 F.2d at 38; United States v. Akinseye, 802 F.2d 740, 743
(4th Cir.1986), cert. denied, 482 U.S. 916, 107 S.Ct. 3190, 96 L.Ed.2d 678
(1987), the government has the burden of proving "beyond reasonable doubt
that the defendant was disposed to commit the criminal act prior to first being
approached by Government agents." Jacobson, --- U.S. at ----, 112 S.Ct. at
1540; see Osborne, 935 F.2d at 38.

10

The government may meet its burden by demonstrating the defendant's ready
response to the inducement offered. See Jacobson, --- U.S. at ----, 112 S.Ct. at
1541; Osborne, 935 F.2d at 38. While such a response after lengthy efforts by
the government to induce the commission of a crime is not sufficient, Jacobson,
--- U.S. at ----, 112 S.Ct. at 1543, it is sufficient to show that " 'the defendant is
of a frame of mind such that, once his attention is called to the criminal
opportunity, his decision to commit the crime is the product of his own
preference and not the product of government persuasion.' " Osborne, 935 F.2d
at 38 (quoting Akinseye, 802 F.2d at 744).

11

Finally, if, as in this case, the issue of entrapment is submitted to the jury, the
jury's finding of guilt comprehends a finding of no entrapment. Consequently,
an appellate court may overturn this determination only if no rational trier of
fact could have found predisposition beyond a reasonable doubt, viewing the
evidence in the light most favorable to the prosecution. Akinseye, 802 F.2d at
744.

12

Jones contends that he did not know that his conduct was illegal because he
thought the machine guns were being purchased under federal authority for the
Contras in Nicaragua. His argument is based principally on a dialogue that took
place on August 3, 1990, during a tape-recorded meeting he had with Anthony,
the paid informant; Kemp, the undercover agent; and Schuck, the local sheriff
acting as Kemp's associate. Kemp told Jones that the purchase money for the
guns was "dope money," to which Jones replied, "I don't care." The
conversation continued:

13

Mr. Kemp: And we don't care about--I know you don't care, and I don't either.

14

Mr. Jones: As far as I'm concerned, you guys are working--this is going to the
Contras, and that's what I believe.

15

Mr. Kemp: Well, that's cool. That's cool.

16

Mr. Jones: Unintelligible--Contra aid.

17

Mr. Kemp: Okay.

18

While that conversation, and others similar to it, refer to the use by the Contras
of the weapons to be supplied by Jones, the jury could well have concluded that
Jones was adopting a posture to rationalize his involvement or developing a
cover to use if he were caught. This interpretation is corroborated by other
evidence of illegal conduct and intent.

19

The government offered evidence from which the jury could have concluded
that Jones was advised only that Anthony and Kemp were international drug
dealers. Indeed, the evidence indicates that Kramer told Jones in their initial
discussion that Anthony was a "shady customer ... on the wrong side of the
law." Jones' recognition of illegality is supported by the manner in which he
developed and demonstrated the shotgun conversion. When Jones first
demonstrated his conversion of a shotgun to a machine gun, he pulled out parts
concealed in fishing gear, in his billfold, and in other locations, and he pointed
out how the modification could not easily be detected. Moreover, Jones was
advised repeatedly, by direct statement and by suggestions, that the money he
was to receive was drug money. In short, the evidence is ample to permit a jury
to conclude, beyond a reasonable doubt, that Jones was aware of the fact that
his conduct was criminal.

20

More importantly, however, Jones' premise that the government was required,
in rebutting the entrapment defense, to show that Jones knew his conduct to be
criminal is incorrect. The core issue raised by the entrapment defense is
whether the defendant was predisposed to conduct which is criminal, regardless
of whether the defendant appreciated its criminality, and to prove
predisposition the government need not prove that the defendant knowingly
committed the crime. See Jacobson, --- U.S. at ---- n. 3, 112 S.Ct. at 1542 n. 3.

21

Jones also contends that the evidence was insufficient to show that he was
predisposed to commit the crime. He argues that he had no prior criminal
record and that his primary interest was to obtain venture capital for the
purpose of marketing his inventions. He points to the evidence of the on-going
negotiations between him and Anthony for a $1.5 million investment. A
reading of the record confirms Jones' contention that he expressed interest in a
substantial sum to be invested in his business, and even possibly that his
conduct was motivated by the prospect of receiving the investment. But the
record just as well supports a finding that Jones was also willing to convert
shotguns to machine guns for a fee without obtaining the required
authorizations.

22

The first time that Jones learned about Anthony's interest in weapons--when
Kramer passed on Anthony's general queries--Jones told Kramer that he wanted
to show Anthony a machine gun design he had and shortly thereafter he
discussed the design and investments with Anthony during several telephone
calls while Anthony was in Atlanta. On July 2, Jones agreed to "do a dry run,"
resulting in the malfunctioning sample conversion kit he delivered in person on
July 19 and the fully functioning conversion kit he sent by mail on July 26, all
before obtaining the needed governmental approval. More importantly, all of
this took place before he had agreed on the financial terms of the deal, which
Jones hoped would include an investment in his business. And, once the basic
agreement was reached on the financial terms on July 30, Jones willingly
delivered the two modified shotguns, giving rise to the offenses charged in this
case. On August 3, Jones also negotiated quantities and prices for future large
weapons shipments. No reluctance on Jones' part was shown when pursuing
any of these activities.

23

Jones points to his refusals to accept $50,000 from Anthony and Kemp, instead
of the charged price of $12,000, and he argues that an intimidating call from
Anthony to Kramer on July 30, relayed to Jones, caused him to go through with
the deal. Kramer, who cooperated with the government under a plea agreement
after Jones' arrest, did testify without contradiction that he felt intimidated by a

call from Anthony on July 30 and communicated his feeling to Jones. Yet Jones
himself made light of Kramer's reaction during his own conversation with
Anthony later that same day, and there was no evidence of intimidation by
Anthony or anyone else directed at Jones himself. More pertinently, however,
throughout the discussions in July, Jones expressed his reluctance to establish
financial relations which might entangle him ineluctably with Anthony and
Kemp, while nonetheless agreeing on July 2 to do a "dry run" and then
delivering the two conversion kits on July 19 and 26. Jones never suggested
that he was unwilling to supply Anthony and Kemp with the weapons they
sought.
24

The evidence amply supports finding that Jones initially responded positively
to the invitation to commit the crime, consistently pursued the plan during
further contacts with the government, and ultimately committed the offenses of
which he was charged. When considered in a light most favorable to the
government, the evidence is sufficient for a rational juror to find predisposition
beyond a reasonable doubt. See Akinseye, 802 F.2d at 744.

III
25

In addition to the statutory defense of entrapment, Jones claims that the

government's conduct of the undercover operation was "so outrageous as to
shock the conscience of the court" and consequently violated his Fifth
Amendment right to due process. See United States v. Russell, 411 U.S. 423,
431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973) (contemplating the
possibility that sufficiently outrageous governmental conduct might preclude
conviction, but rejecting it on the facts); Osborne, 935 F.2d at 36 (same). He
complains that the government allowed Anthony, an untrained confidential
informant whose only source of income was his investigative activities for the
government, to "ensnare" Jones in a series of unmonitored and unrecorded
conversations and that it pursued him despite his hesitations, ultimately
resorting to intimidation when offers of "obscene" sums of money proved
inadequate. This complaint has little support.

26

In United States v. Hunt, 749 F.2d 1078, 1087 (4th Cir.1984), cert. denied, 472
U.S. 1018, 105 S.Ct. 3479, 87 L.Ed.2d 614 (1985), we rejected a claim that an
undercover investigation of a state judge concerning judicial corruption was
"outrageous," even though government agents posing as criminals seeking
corrupt judicial protection pursued the judge despite his initial hesitations and
"leaned on" an intermediary to convince the judge to help them. We think the
facts of this case press the issue no further. As already discussed above, the
evidence reveals that Jones did not hesitate to provide automatic shotguns, but

merely held out for advantageous financial arrangements. Cf. Hunt, 749 F.2d at
1087 ("seeming lack of interest in money ... could reasonably be construed as
mere negotiating tactics"). Nor was he directly intimidated by government
agents; and, in light of Jones' negotiating position and the role of international
drug dealers being portrayed by Anthony and Kemp, it was reasonable for
Anthony to push the intermediary, Kramer, during the conversation on July 30.
Cf. Hunt, 749 F.2d at 1088 ("FBI agents ... had to make their undercover roles
convincing to their unwitting middleman").
27

Although in Hunt we noted that the government had targeted the judge after
receiving investigatorial leads pointing to judicial corruption, Hunt, 749 F.2d at
1087, we recently rejected the proposition that the government may not
conduct an undercover investigation without reasonable cause to suspect
criminal wrongdoing. Osborne, 935 F.2d at 35-36; see also United States v.
Steinhorn, 739 F.Supp. 268, 272 (D.Md.1990). But cf. United States v. Luttrell,
889 F.2d 806, 813 (9th Cir.1989) (requiring "reasoned grounds" to investigate a
particular individual), vacated in part, 923 F.2d 764 (9th Cir.1991) (en banc)
(rejecting the "reasoned grounds" requirement), cert. denied, --- U.S. ----, 112
S.Ct. 1558, 118 L.Ed.2d 207 (1992). In this case, Anthony's contacts with
Kramer and Jones were authorized by the IRS as the by-product of an ongoing
investigation of Donald Barton for money laundering. The suggestion that
Jones as a law-abiding citizen was targeted and corrupted by governmental
activity is unsupported.

IV
28

Jones also contends that the government's decision to charge him with
violations of the National Firearms Act, 26 U.S.C. 5801-72, denied him the
due process guaranteed him by the Fifth Amendment, because of a supposed
conflict between that act and a 1986 amendment to the Gun Control Act of
1968, 18 U.S.C. 922(o ), which outlaws possession or transfer of machine
guns manufactured after 1986, with certain exceptions.

29

There is no question that Jones' conduct in this case fell squarely within the
proscriptions of the National Firearms Act: Jones modified two shotguns to fire
automatically more than one shot with each pull of the trigger, rendering them
machine guns and hence "firearms" subject to the taxes and ancillary
regulations of the National Firearms Act. See 26 U.S.C. 5845(a), (b). Since
he never sought or received the written approval of the Secretary of the
Treasury to make the firearms, see 26 U.S.C. 5822, his knowing possession of
them constituted "possess[ing] a firearm made in violation of the provisions of
[the act]." 26 U.S.C. 5861(c). Since he never registered them in the National

Firearms Registration and Transfer Registry, see 26 U.S.C. 5841, their

transportation from Texas to West Virginia violated the proscription of
"transport[ing] ... any firearm in interstate commerce which has not been
registered as required by [the act]." 26 U.S.C. 5861(j). And, since the
Secretary never approved their transfer, see 26 U.S.C. 5812, their sale to the
undercover agents constituted "transfer[ing] a firearm in violation of the
provisions of [the act]." 26 U.S.C. 5861(e); see 26 U.S.C. 5845(j) ("The
term 'transfer' ... shall include selling....").
30

Nonetheless, Jones contends that the government should have charged him
under the Firearms Owners' Protection Act of 1986, Pub.L. No. 99-308, 100
Stat. 449, which amended the Gun Control Act of 1968 to make it unlawful
"for any person to transfer or possess a machinegun," not lawfully possessed
before May 19 of 1986, but provided an exception for transfers to and
possessions by or under the authorization of the United States. 18 U.S.C.
922(o ). He asserts that this effective ban on dealings with machine guns
coming into existence after May of 1986 rendered it impossible for him to
receive the authorizations required under the National Firearms Act. See 26
U.S.C. 5812, 5822 (mandating denial of authorizations if possession of the
firearm would be illegal for the person seeking authorization). Citing United
States v. Dalton, 960 F.2d 121 (10th Cir.1992), he concludes that, because the
Firearms Owners' Protection Act made compliance with the National Firearms
Act impossible, the provisions of the earlier act concerning machine guns either
were implicitly repealed by the later act or cannot be enforced without
constituting fundamental unfairness in violation of his Fifth Amendment right
to due process. Id. at 126 (finding irreconcilable punishment for the failure to
register a machine gun and the government's refusal to register it). Relying on
another due process argument, he also contends that the National Firearms Act
cannot be enforced because it has lost its constitutional basis as a taxing
provision. Id. at 124 (holding that a provision adopted under the power to tax
no longer has a constitutional basis when the subject of the provision can no
longer be taxed).

31

We cannot agree with either argument. "In the absence of some affirmative
showing of an intention to repeal, the only permissible justification for repeal
by implication is when the earlier and later statutes are irreconcilable." Morton
v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974)
(emphasis added). Here, neither the statutory language nor the legislative
history of the 1986 amendment of the Gun Control Act affirmatively expresses
a congressional desire to except machine guns from the earlier established
requirements of the National Firearms Act. And the two statutes are not
irreconcilable because, despite Jones' assertions to the contrary, Jones can

comply with both acts. While he may not be able to register newly-made
machine guns in which he deals, neither act requires him to deal in such guns.
Simply put, Jones can comply with both acts by refusing to deal in newly-made
machine guns. Cf. Minor v. United States, 396 U.S. 87, 96-97, 90 S.Ct. 284,
288-89, 24 L.Ed.2d 283 (1969) (rejecting argument that record-keeping
requirements of act taxing narcotics sales compelled self-incrimination when
applied to illegal sales, because defendant need not make illegal sales).
Similarly, Jones' ability to comply with both the National Firearms Act and the
Gun Control Act, as amended, vitiates his argument about fundamental
unfairness.
32

What Jones is really complaining about is that the amendment to the Gun
Control Act effectively rendered possession of certain guns automatic violations
of both the Gun Control Act and the National Firearms Act. Yet there is
nothing either inconsistent or unconstitutionally unfair about Congress' decision
to do so. And, faced with two equally applicable penal statutes, there is nothing
wrong with the government's decision to prosecute under one and not the other,
so long as it does not discriminate against any class of defendants, which Jones
does not allege. United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct.
2198, 2203-04, 60 L.Ed.2d 755 (1979); see also Ball v. United States, 470 U.S.
856, 859, 105 S.Ct. 1668, 1670, 84 L.Ed.2d 740 (1985) (noting prosecutor's
discretion to charge under either of two overlapping gun control statutes).
Consequently, Jones' convictions cannot be reversed simply because the
government charged him with his violations of the National Firearms Act and
not those of the Gun Control Act.

33

We are also not persuaded by the alternative ground for reversal in Dalton, 960
F.2d at 124-25, that the effective ban of machine guns made after May 1986
"undercut the constitutional basis of registration which had been the rule since"
the National Firearms Act was originally upheld under Congress' power to tax.
See Sonzinsky v. United States, 300 U.S. 506, 513-14, 57 S.Ct. 554, 555-56, 81
L.Ed. 772 (1937). Notwithstanding the effective ban on machine guns made
after 1986, the making of even illegal machine guns continues to be taxed. See
26 U.S.C. 5821; cf. Dalton, 960 F.2d at 125 (recognizing government's
assertion that it still taxes the making of illegal machine guns). The court in
Dalton considered the collection of a making tax irrelevant to a prosecution for
possession and transfer without requisite registration, if possession and transfer
are not taxed. Id. But this is too crabbed a view of the purposes of requiring
registration and authorizations for possession and transfer of firearms subject to
a making tax. For, clearly, knowing the chain of possession and transfer assists
in determining who made the firearm and hence is "supportable as in aid of a
revenue purpose." Sonzinsky, 300 U.S. at 513, 57 S.Ct. at 555; cf. United

States v. Matthews, 438 F.2d 715, 716-17 (5th Cir.1971) (upholding National
Firearms Act provision criminalizing possession of an unregistered gun, despite
inapplicability of a concurrent tax, because the registration requirement was
designed "to aid the collection of tax on any future transfer").
34

Moreover, even if the National Firearms Act's proscriptions concerning

machine guns were no longer supportable as within Congress' power to tax,
there can be no serious contention that their application in this case to two
machine guns which were transported between two states for sale exceeds
Congress' power to regulate interstate commerce. Cf. Minor, 396 U.S. at 98 n.
13, 90 S.Ct. at 289 n. 13 (noting that registration regulations amounting to a ban
on certain sales could be upheld under Commerce Clause, even if not within
power to tax).

V
35

Jones's other contentions merit only brief discussion.

36

He objects to the district court's refusal to instruct the jury to find Jones not
guilty if it finds that he made and sold the machine guns only for and to the
United States or believed that he sold the guns to government agents. Although
the National Firearms Act does exempt from its taxes both firearms businesses
conducted exclusively with the United States, 26 U.S.C. 5851(a), and the
making for and transfer to the United States of any firearms, 26 U.S.C.
5852(a), (b), neither exemption purports to relieve those exempted from the
taxes from the regulatory requirements adopted to aid in the enforcement of
these taxes against otherwise covered individuals and transactions. Moreover,
both exemptions explicitly require the Secretary's approval after written
application for exemption, which Jones never sought. See 26 U.S.C.
5851(b), 5852(f); 27 C.F.R. 179.90; see also United States v. Gillis, 474 F.2d
4, 5-6 (9th Cir.1973) (per curiam) (rejecting exemption defense to prosecution
for transfer to undercover federal agent of unregistered machine gun without
payment of required tax, because of defendant's failure to follow required
procedures). In light of our conclusion that Jones was properly charged under
the National Firearms Act and not under 18 U.S.C. 922(o ), the lack of the
evidentiary foundation for these instructions rendered the district court's refusal
to give them entirely correct. Cf. United States v. Hicks, 748 F.2d 854, 857 (4th
Cir.1984) (reversing because of refusal to give instruction of a defense "for
which there is a foundation in the evidence"). Similarly unsupported by the
evidence was Jones' proposed jury instruction No. 32, requiring acquittal if the
jury found Kramer to have "persuaded, improperly enticed or talked" Jones into
committing the crimes. And the instruction, to which Jones objected, about the

possibility that Kramer functioned occasionally as an agent of the government,

was more than adequate.
37

Jones also complains that the district court refused to allow him to question
Rev. Cleon Flanagan, one of Jones' former business partners, about an incident
when Jones turned down an offered investment because Jones had been told, in
Flanagan's presence, that the money was illicit. Exclusion of this testimony on
the ground that it was hearsay about whether the money was illicit may well
have been erroneous, since it was not offered to show that the money was illicit
but only to show that Jones turned down what appeared to be illicit, although
the testimony's admissibility on relevancy grounds is, at least, highly
questionable. In any case, any error was harmless since the evidence was
offered only to rebut the attenuated inference arising from the prosecution's
contextual evidence that Jones was willing to deal with people he knew to be
drug dealers, leaving us confident that " 'the judgment was not substantially
swayed by the error.' " United States v. Nyman, 649 F.2d 208, 211-12 (4th
Cir.1980) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct.
1239, 1248, 90 L.Ed. 1557 (1946)).

38

Finally, Jones contends that the district court should have declared a mistrial
because of the admission of evidence of the discussions concerning drugs and
investments, originally relevant to the money laundering charge, which was not
submitted to the jury. Since the discussions of drugs and investments were so
closely intertwined with those concerning the illegal shotguns and were
arguably admissible "to complete the story of the crime on trial by proving its
immediate context," United States v. Masters, 622 F.2d 83, 86 (4th Cir.1980)
(quotation omitted), we cannot consider the district court's refusal to declare a
mistrial an abuse of discretion. See United States v. Brooks, 957 F.2d 1138,
1143 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 3051, 120 L.Ed.2d 917
(1992).

VI
39

In summary, we conclude that the evidence amply supports the jury's finding
beyond a reasonable doubt that Jones was predisposed to possess, transport and
transfer illegal machine guns without obtaining prior governmental approval,
and neither the government's conduct of the undercover operation nor its
decision to charge Jones under the National Firearms Act rather than the Gun
Control Act violated Jones' right to due process. We also conclude that none of
Jones' procedural objections to the trial merit reversal. Accordingly, Jones'
convictions are affirmed.

40

AFFIRMED.