Bribery

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7212- Interference with Administration of Internal Revenue Laws: Bribery

 

 [61-2 USTC ¶9748] United States of America , Appellee v. Abraham Kabot, Defendant-Appellant

(CA-2), U. S. Court of Appeals, 2nd Circuit, Docket No. 26965, 295 F2d 848, 11/13/61, Affirming an unreported decision of the District Court

[18 U. S. C. 201]

Crimes: Offering and giving bribe to Revenue Agent.--Conviction of appellant for offering and giving a bribe to an Internal Revenue Agent was affirmed. The Court found no merit in the appellant's numerous allegations of error, the principal allegations involving entrapment and the admissibility of evidence obtained through use of an electronic recording device concealed on the person of the Revenue Agent.

Edward R. Cunniffe, Assistant United States Attorney, New York, N. Y. (Arnold N. Enker, Assistant United States Attorney, Robert M. Morgenthau, United States Attorney, One Wall St., New York, N. Y., on brief), for appellee. Henry G. Singer, 16 Court, Brooklyn, N. Y. (Maurice Edelbaum, New York , N. Y., on brief) for appellant.

Before: LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.

SMITH, Circuit Judge:

This is an appeal from concurrent eighteen month sentences for offering and giving a $25,000 bribe to one Keyser, an Internal Revenue Agent to influence him in an income tax matter. 18 United States Code, Section 201. The judgment is affirmed.

Appellant attacks the conviction on numerous grounds, including the denial of a pre-trial motion to dismiss the indictment for unnecessary delay in filing, the failure to call Gillis, an Internal Revenue Agent, as a witness, refusal to produce statements and grand jury testimony of Gillis and one Sweeney, an investigating agent who died during the trial, the admission in evidence of recordings of Kabot's conversations with Keyser, the exclusion of a recording of a conversion between Keyser and Gillis, instructions to the jury on character evidence and on evidence relating to the merits of the tax case, and refusal of instructions on a theory of enticement. We find no reversible error.

[The Facts]

Appellant Abraham Kabot was accountant for Salomon and Bart van Berg, diamond merchants, and their wives and for two New York corporations which they controlled, Van Berg Diamonds, Inc. and Rough Diamond Co., Inc., as well as for other clients, may of whom were also in the diamond business. One Keyser was an agent of the Internal Revenue Service in the International Operations Division, stationed in Washington, D. C. An agent of the Service in Puerto Rico reported that there was a question concerning the withdrawal by Salomon van Berg from a Puerto Rican van Berg corporation, Brilliants, Inc. of $2,000,000 and of allocation of profits and expenses between Brilliants, Inc., and Van Berg Diamonds, Inc., to which Brilliants sold virtually all its output. Keyser was thereupon in July 1958 assigned to audit the individual returns of the van Bergs for 1954 through 1957, the corporate returns of Van Berg Diamonds for the same years, and the corporate returns of Rough Diamonds, Inc. for the fiscal years 1955, 1956 and 1957. Keyser telephoned Salomon van Berg for an appointment. Van Berg had Kabot call Keyser back and an appointment was made for September 8. On that date Keyser came to New York , called on Kabot at Kabot's office and explained the two major questions pending. He then went with Kabot to van Berg's office and explained the issues to van Berg.

Keyser on the 8th mentioned to Kabot that he had an acquaintance with one Gillis, an agent in the New York Internal Revenue office. On or about the 9th of September Keyser mentioned to Gillis' superior that he was acquainted with Gillis, who was called in to greet Keyser. Keyser was at van Berg's office conducting the audit on September 9 and 10, returning to Washington September 12. Keyser had arranged to come back to New York September 29. Someone representing himself as Keyser's superior, Moysey, called Kabot and told him rather abruptly that there was too long a delay. The appointment was moved up to September 25. In the latter part of September and in October Keyser was at the van Berg office about a dozen times. At about this time, according to Kabot, Gillis stopped in at Kabot's office and told Kabot that Keyser wanted him to know that he was a pretty good agent and could get very rough. On being asked how Keyser would like it if the conversation were reported, Gillis was said to have asked Kabot to forget about it; and to have pleaded with Kabot not to say anything to Keyser. Sometime after Gillis had talked with Kabot, Keyser called Gillis and had dinner at Gillis' house. Keyser testified that there was no mention of the case at Gillis' house. On October 27 Gillis was invited to and did accompany Keyser and Kabot to lunch.

About October 9 Keyser had told Kabot and van Berg that he was going to recommend that the $2,000,000 withdrawal be taxed as a dividend to van Berg and that he would work up a figure on the reallocation of profits and expenses between the Puerto Rican and New York corporations. He also mentioned another questioned item of a $300,000 credit on the books of Van Berg Diamonds. Keyser returned to Washington , coming back to New York on October 27. He informed Kabot that he was recommending that the $2,000,000 withdrawal and $300,000 credit be taxed as dividends resulting in an added individual tax of $1,929,000, and that the corporate tax be increased $460,000 as a result of reallocation of profits and expenses. Kabot asked if the case could be disposed of at Keyser's level. Later, walking back after a visit to van Berg's office, according to Keyser, Kabot said that he apologized for bringing the matter up, but that Gillis said it would be all right to ask if there was anything he could do to make everybody happy and dispose of the case without carrying it to a higher level.

On considering the conversation overnight, on October 28 Keyser decided that Kabot was referring to a bribe, and so informed his Washington office. He was instructed not to lead Kabot on, but that if he was offered a bribe he was to pretend to go along with the scheme. Investigating agents then placed a concealed Minifon recording device on Keyser's person, turning it on before he went in to Kabot's office on October 28. Keyser and Kabot talked about the case at some length, for more than an hour. A recording of the conversation was in evidence at the trial and was played for the jury. Kabot was shown Keyser's work sheets. According to Keyser, after considerable discussion of the issues Kabot told Keyser that if he would cooperate he would speak to the van Bergs and maybe make it worth while. The recording reflects mention by Kabot of the van Bergs making it worth while. Later, dropping his voice so that it is inaudible on the recording Kabot told Keyser, according to Keyser's version, that if he could put this through without a dividend and just with some reasonable allocation of expenses he thought he could "get around 25 grand." The recording, after the voices again became audible, bears out Keyser's testimony that Keyser mentioned that he had a family to think of, that there was a risk. Kabot told him not to worry, the risk was his too, they could work it out, to think it over. Keyser said he would. Kabot then said he would get up some figures Keyser could use in his report.

On October 29 or 30 according to Kabot, Gillis reappeared at Kabot's office and told Kabot that Keyser had informed Gillis that Kabot and Keyser had come to a settlement of the case, to which Kabot replied that Keyser had not exactly indicated to Kabot that it was settled, but that he, Kabot, hoped so.

On October 30 Keyser, with a concealed Minifon, took Gillis out for coffee. The recording of this conversation was made available to the defense but excluded from evidence. This episode is discussed below.

Sometime prior to November 13 Kabot telephoned Keyser, told him the figures were ready and arranged to meet November 13. Keyser, again with a concealed Minifon, went to Kabot's office. The recording was later accidentally spoiled. Keyser's version, denied by Kabot, is as follows: Kabot asked whether Keyser had given any thought to their previous conversation. Keyser, on instructions from his superiors, stated that he had returned because Kabot had promised $25,000 if Keyser would revise the reports. Keyser instructed Kabot to tell the van Bergs he could make it about $25,000 additional tax for each of the three years. Keyser then returned to his hotel. Kabot later came to Keyser's room, and in a conversation recorded by agents in the next room over microphones and wires planted in Keyser's room, asked the procedures to be used in submitting Keyser's reports. Kabot then said to give him a couple of days to make the necessary arrangements.

On November 17 Keyser telephoned Kabot and arranged to meet November 19. On the morning of the 19th he went to Kabot's office with a concealed Minifon. The recording's audibility is in dispute. According to Keyser he showed Kabot his proposed reports and agreed to a further downward revision, telling Kabot it was based on Kabort's statement that he would get Keyser $25,000. Kabot is claimed by Keyser to have instructed Keyser to go back to the hotel and revise the reports. According to Keyser, Kabot explained that then both would get in a taxi and leave Kabot's office, that Kabot would have the money and give it to Keyser while in the cab, and that Kabot would then leave the cab and Keyser could go on. After lunch together, Keyser returned to Kabot's office for his briefcase, then went back to the hotel to revise the report.

At 3:00 p. m. Keyser was searched by the agents, a concealed Minifon placed on him and put in operation, and he returned to Kabot's office. He showed Kabot some forms and gave him others. In front of Kabot's office the two took a cab. According to Keyser, while riding in the cab, Kabot opened a briefcase and took therefrom a white manila envelope tied with string, which he gave to Keyser. The cab stopped, Kabot got out, and on a signal from Keyser was arrested by agents who had them under surveillance. They also pretended to arrest Keyser. The white envelope had inside it another envelope containing $25,000 in currency. Kabot denied any knowledge of the envelope or money.

Kabot was arraigned before a United States Commissioner November 19, 19 58 upon a complaint charging him with violation of 18 U. S. C. §201 and held to answer in $10,000 bail, which he furnished. The Commissioner's hearing was adjourned about 20 times without opposition from Kabot. Meantime, extensive investigation was carried on to determine if others were involved. Evidence was presented to the January 1960 Grand Jury, which returned an indictment of Kabot on March 8, 19 60. Kabot was arraigned on the indictment March 25, 19 60, stood mute, a plea of not guilty was entered by direction of the court, and bond was continued in the same amount. On April 14, 19 60 appellant filed motions to dismiss, for bill of particulars and for inspection of documents. May 26, 19 60 appellant's counsel requested trial adjournment to the first week in October 1960. On June 28, 19 60 the motion to dismiss the indictment was denied, and the motions for bill of particulars and for inspection were denied in part and granted in part. On December 28, 19 60, new counsel for appellant filed an affidavit requesting an adjournment of trial. On March 8, 19 61 trial was begun. Trial was concluded on March 24, 19 61, the jury finding Kabot guilty on both counts.

[Delay Between Indictment and Trial]

Appellant cannot complain of the 16 month period between his arrest November 19, 19 58 and his indictment March 8, 19 60, or the one year period between indictment and the date of trial, March 8, 19 61. He did not waive preliminary hearing. He acquiesced in repeated adjournments for the purpose of further investigation by the government of possible involvement of others and possible mitigating circumstances surrounding his own actions. He did not move before the Commissioner for prompt hearing. After indictment his counsel twice requested adjournment of trial dates. Delay caused by or consented to by a defendant is not unreasonable. The right to a speedy trial is deemed waived if not promptly asserted. United States v. Lustman, 258 F. 2d 475, 478 (2 Cir. 1958), cert. denied 358 U. S. 880 (1958). There is, moreover, no showing of prejudice to appellant from the delay. The one witness, Sweeney, who died during the course of the trial had been available when appellant had requested adjournments of the trial date. There is no indication that his testimony would in any way have aided appellant.

[Witness]

The prosecution was under no obligation to call Gillis as a witness. It made known to the defense that Gillis was available and that it did not intend to call him. Under the circumstances it was for the defense to call him or not as it chose. Cenedella v. United States [55-2 USTC ¶9586], 224 F. 2d 778 (1 Cir. 1955), cert. denied 350 U. S. 901. Under the circumstances here, where the evidence presented left Gillis' part in the affair obscure, it might have been desirable for the court to call him. Compare United States v. Lutwak, 195 F. 2d 748 (7 Cir. 1952), aff. Lutwak v. United States , 344 U. S. 604. Since he was available and could have been called by the defense, however, it was within the discretion of the court not to call him as a court's witness. United States v. D'Ercole, 225 F. 2d 611 (2 Cir. 1955); United States v. Paccione, 224 F. 2d 801 (2 Cir. 1955), cert. denied 350 U. S. 896.

[Statements of Nonwitnesses]

Since neither Gillis nor Sweeney testified, the defense was clearly not entitled to inspection of their grand jury testimony, or to statements and reports they made to the investigators. Jencks v. United States , 353 U. S. 657 (1959), 18 U. S. C. §3500(a). "This section [subsection (a)] manifests the general statutory aim to restrict the use of such statements to impeachment." Palermo v. United States (1959) [59-2 USTC ¶9532], 360 U. S. 343, 349, rehearing den. 361 U. S. 855.

[Recording]

The grounds upon which the Keyser-Gillis recording was sought are unclear on the record. Nevertheless the recording might have been allowed in evidence. Gillis did not testify. Keyser did, and was cross examined as to his conversation with Gillis on the basis of his memoranda of October 30 and December 1, 19 58, Defendant's Exhibits B and A, which the court had admitted in evidence. So far as the recording was intelligible, therefore, it might properly have been admitted. This court has listened to the recording. The recording was, however, largely unintelligible due to background noises. It does appear that Keyser asked Gillis for some advice and mentioned that he thought Kabot might have something in mind, and that Gillis replied that it was very possible. Nothing else was sufficiently audible to determine exactly what Gillis meant or whether Gillis was talking about Kabot or his experience with accountants in generall. There appeared to be nothing in the meager amount of intelligible conversation at all inconsistent with Exhibit B, which was in evidence and used by appellant's counsel in cross examination of Keyser. Since so small a part of the conversation was intelligible from the recording, and its meaning not clear, it was not error to keep it from the jury. If it be considered error, it appears harmless in the circumstances.

[Fourth Amendment]

The other recordings, which were admitted in evidence, of conversations between Keyser and Kabot, were important to the government's case, supporting as they did in detail much of Keyser's testimony concerning the offer of the bribe, and the lack of solicitation by Keyser of any offer in the conversations up to that point. The appellant contends that the making and use of the recordings were an unconstitutional search and seizure and a violation of defendant's right to due process of law. Appellant's contention is not valid. Clearly the Supreme Court has held, although over vigorous dissent, that neither the constitutional protection against unreasonable searches and seizures nor the Communications Act prevent the use of recordings of conversations between government agents and persons suspected of criminal activity, absent any treaspass or unauthorized tapping of telephone or telegraph wires. On Lee v. United States , 343 U. S. 747 (1952). See The Problem of Electronic Eavesdropping (1961), Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association. Neither the plainting of the microphones in Keyser's hotel room with his consent, and their use by the agents in the next room, nor the Minifons carried by Keyser amounted to treaspass within the definition of the majority in On Lee, or approach the physical invasion of another's dwelling without consent perpetrated with the spike mike whose fruits were excluded in Silverman v. United States, 365 U. S. 505 (1961). The recordings were properly admitted in evidence.

[Entrapment]

Defendant also contends that the charge was erroneous in telling the jury that there was no issue in the case about enticement, inducement or entrapment. We find it unnecessary to consider the government's argument that the defense, being inconsistent with a denial of all criminal activity, is not available to one relying on such a denial. This question need not be reached because of the absence of sufficient evidence to raise a question of entrapment for the jury; to have charged on entrapment would only have created undesirable confusion.

The only testimony in the case as to the origin of the idea of the offer of October 28 is that of Keyser and Kabot. Keyser's testimony puts the first tentative suggestion in Kabot's statement during the walk on October 27, a statement Kabot explains as an innocent reference to clearing up the case in a normal manner at the agent's level. Whichever version the jury believed, there was no suggestion that the idea of bribery was initiated by Keyser. The only evidence from which any inference of suggestion of a crime could conceivably be drawn would be the equivocal statements of Gillis as reported by Kabot. These seem to us insufficient to base any inference of government effort to incite Kabot to crime. The inferences which may be drawn from the claimed conduct of Gillis in relation to Keyser amount at most to an attempt at extortion from Kabot or van Berg. If the jury were to find that such a crime was in the minds of Gillis or of Gillis and Keyser it would be no defense to Kabot. Entrapment involves the action of overzealous government agents acting for the government inciting an innocent man to crime. Extortion on the other hand is based on conduct by dishonest employees attempting action against the government.

The actions of Keyser and the investigating agents after the bribe offer of October 28 was made, were legitimate efforts to apprehend one already embarked on a course of criminal conduct. There is no evidence either from the testimony of the agents or of defense witnesses that after Kabot's apparent suggestion of the bribe was reported by Keyser on October 28 and Keyser was acting under instructions, any pressure was exerted by the government to make Kabot go through with the offer or payment. No suggestion of any kind was made by Keyser, on any version of the evidence, until the actual offer of October 28, and thereafter, while Keyser referred at times to the amount promised, there is nowhere evidence of a desire of Kabot to withdraw from the scheme or of efforts of Keyser to hold him to the proposition against Kabot's wishes. There is here no evidence of entrapment. Lunsford v. United States, 200 F. 2d 237 (10 Cir. 1952), Marks v. United States, 260 F. 2d 377 (10 Cir. 1958), cert. denied 358 U. S. 929, United States v. DeMarie [55-2 USTC ¶9755], 226 F. 2d 783 (7 Cir. 1955), Sabbatino v. United States, 298 Fed. 409 (2 Cir. 1924), cert. denied 266 U. S. 602 (1924). "* * * the fact that officers or employees of the Government merely afford opportunity or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises." Sorrells v. United States , 287 U. S. 435, 441 (1932). Lacking sufficient evidence of entrapment, denial of the requested instruction was not error. United States v. DiDonna, 276 F. 2d 956 (2 Cir. 1960).

[Character Evidence]

Appellant attacks the charge on character evidence, specifically the following portion thereof: "It may be that those with whom he had come in contact with (sic) previously have been misled and he did not reveal to them his true character." This portion may not be considered alone, however. Taken as a whole, ¹ the charge properly places the evidence of good character before the jury to be weighed with all other evidence in the case in determining the guilt or innocence of the defendant. United States v. Crosby , -- F. 2d -- (2 Cir. 1961), slip op. 2681, 2717.

[Merits of Tax Matter]

Finally, objection is made to the instruction to the jury to disregard the question of the merits of the tax case. This instruction was entirely proper in light of the need for guiding the jury through a mass of complex testimony. Considering the charge as a whole, there was nothing in it tending to make the jury believe that it could not consider the existence of the tax claim and Kabot's ideas about its seriousness with reference to the issue of Kabot's motivation. There was no request for an affirmative instruction on this point, and no attack is here made on its absence.

[Religious Prejudice]

The charge warning against religious prejudice was not requested by appellant and might better have been left out. It apparently was given in an excess of caution because of mention of religious holidays in the testimony. We cannot say that it was prejudicial.

[Source of Money]

The charge emphasized the question before the jury of where the $25,000 in evidence came from. It was a central issue in the case and it was not error to call it to the jury's attention in the charge. We find no reversible error in the charge.

No other issues appear to merit discussion.

The judgment of conviction is affirmed on both counts.

¹ "Now, there has been testimony here to the previous good character of the defendant. You should consider such evidence of character together with all the other facts and all the other evidence in the case in determining the guilt or innocence of the defendant. Evidence of good character may in itself create a reasonable doubt where without such evidence no reasonable doubt would have existed. But if on all the evidence you are satisfied beyond a reasonable doubt that the defendant is guilty, a showing that he had previously enjoyed a reputation of good character, does not justify or excuse the offense and you should not acquit a defendant merely because you believe he is a person of good repute. It may be that those with whom he had come into contact with previously have been misled and he did not reveal to them his true chacater."

[Concurring Opinion]

LUMBARD, Chief Judge (concurring):

I concur with everything Judge Smith says with the exception of his statement that it might have been desirable for the court to have called Gillis as a witness with reference to his obscure part in the case. It seems to me the trial judge exercised good judgment in not following this will-o'-the-wisp and thus emphasizing an extraneous matter which neither party saw fit to explore further or to clarify. The issue was Kabot's guilt; it was not whether Gillis might have been engaging in some questionable activity. The only possible relevance of Gillis' testimony would have been on some theory of extortion, but extortion was never claimed by Kabot and it was never in the case. The trial judge used good judgment in leaving matters as they were, especially as the defense never even requested such action during the trial.

 

 

[61-2 USTC ¶9749]Vincent D. Todisco, Appellant v. United States of America , Appellee

(CA-9), U. S. Court of Appeals, 9th Circuit, No. 17,311, 298 F2d 208, 11/6/61, Affirming unreported District Court Decision

[18 U. S. C. §201]

Crimes: Offering bribe to Revenue Agent--The conviction of the defendant of attempting to bribe an Internal Revenue Agent was affirmed. The court held tape recordings of a bribe offer were admissible. There was no entrapment as a matter of law, and the defendant's rights against self-incrimination were not violated.

Maurice J. Hindin, 6506 Wilshire Blvd. , Los Angeles , Calif. , for appellant. Francis C. Whelan, United States Attorney, 485 S. Spring St., Thomas R. Sheridan, Chief, William Bryan Osborne, Assistant United States Attorney, Assistant Chief, Criminal Division, Los Angeles, Calif., for appellee.

Before HAMLIN, MERRILL and KOELSCH, Circuit Judges.

MERRILL, Circuit Judge:

Appellant, following jury trial, was adjudged guilty of attempting to bribe an Internal Revenue agent in violation of 18 U. S. C. §201. He has appealed from that judgment.

Appellant is an attorney at law practicing in Fresno , California . In March, 1960, he was representing a client in attempting to negotiate a compromise settlement of tax liability as assessed by the tax court. In these negotiations the Internal Revenue Service was represented by Agent Earl K. Oto.

In the course of negotiations appellant had made several statements to Oto assuring him of rewards in the event of a favorable settlement. These overtures were reported by Oto to his superiors. On March 29 and 31 and on April 1, 4 and 5, 1960, conversations took place between appellant and Oto in the former's law office, during all of which Oto was equipped with a Fargoe device, being a miniature radio transmitter. The conversations in their entirety were transmitted and recorded at the point of reception. The upshot of these conversations was an agreement that upon Oto's acceptance of a settlement appellant's fee of $500.00 was to be split between them.

The agreement was never carried through, but on April 6 appellant was arrested.

On trial appellant's position was that commencing in the fall of 1959 Oto had been soliciting him for a bribe and that he had been leading Oto on; that Oto had informed the revenue service only after he became alarmed and suspicious. The government's case rested almost entirely upon the tape recordings of Oto's conversations with appellant. Over appellant's objections and motion to suppress, these tapes were received in evidence.

Appellant's principal contentions upon this appeal relate to the admissibility of these tapes. Upon three grounds appellant contends that they were inadmissible.

First, appellant contends that the recording of his conversations violated the Fourth and Fifth Amendments of the United States Constitution.

In the eavesdropping area constitutional problems are usually couched in terms of whether the conduct under scrutiny amounted to an unlawful search and seizure. The answer to this question in turn, in this area, is largely dependent upon whether entry upon the premises amounted to trespass. That it did not in the case before us is established by On Lee v. United States, 1951, 343 U. S. 747.

In that case an old acquaintance of the defendant who was, without the defendant's knowledge, serving as an undercover agent of the United States Bureau of Narcotics, and who was equipped with a hidden device for radio transmission, engaged defendant in conversation in defendant's laundry. Damaging admissions were thus secured and recorded. They were held admissible. The court emphasized that the agent was present with the defendant's consent and rejected the theory (also advanced by this appellant) that the true purpose of the visit, unknown to the defendant and unconsented to by him, constituted the agent's presence a trespass ab initio.

Appellant asserts that the decision of the Supreme Court in Silverman v. United States, 1961, 365 U. S. 505, demonstrates that the thinking of the court respecting eavesdropping has undergone a change since its decision in On Lee.

In Silverman a spike was driven into the wall of defendant's premises by means of which the police were able, through an electronic device, to reach and record defendant's conversations within the room. This evidence was heid inadmissible.

On Lee was expressly distinguished, however. The court stated at page 510:

"But in both Goldman and On Lee, the Court took pains explicitly to point out that the eavesdropping had not been accomplished by means of an unauthorized physical encroachment within a Constitutionally protected area."

The court's principal concern in the eavesdropping cases is the protection of the right of privacy. As stated in Silverman v. United States , supra at page 511:

"The Fourth Amendment, and the personal rights which it secures have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."

No such right is threatened here. In discussing the subject of wiretapping with the consent of one party to the conversations, Professor Schwartz points out in "On Current Proposals to Legalize Wiretapping," 103 Pennsylvania Law Review 157, 166:

"The risk to which the non-consenting party is subjected is not really a wiretapping risk but the risk of betrayal by the other party who acquiesced in the tap, a risk inherent in any form of communication with him."

Bradley and Hogan, in "Wiretapping: From Nardone to Benanti and Rathbun," 46 Georgetown Law Journal 418, 440, state:

"If the recipient of the information is free to betrary the confidence of the other party, what difference should the form of the betrayal make? If he can repeat what he hears, if he can make notes of what he is told, if he can make a record of the conversation, is it not logical that he ought to be allowed to let a third person do these things for him?"

The right which appellant here asserts would seem to be little more than the right to rely upon Oto's apparent inability to produce proof beyond his own testimony of the substance of the conversation in which he engaged with appellant. This has little relation to an intrusion upon privacy which is the problem at the heart of the constitutional issues presented by eavesdropping.

We conclude that no constitutional right of appellant was violated by the manner in which the tapes were secured or by their admission into evidence.

The second ground upon which appellant rests his contention that the tapes were inadmissible is that the evidence was secured contrary to federal statute. 47 U. S. C. §301 provides that "no person shall use or operate any apparatus for the transmission of * * * communications * * * by radio * * * except * * * with a license in that behalf granted under the provisions of this chapter." Oto had no license.

The United States asserts that this section cannot be read to apply to the use of a Fargoe device. This issue we do not reach. Even if a license be required for the operation of such a device, the failure to secure one can hardly be held to render inadmissible evidence secured by such an operation. Where illegally obtained evidence is held inadmissible, it is in those cases in which it was obtained in violation of some federally protected right of the defendant and where public policy against its admission can be said to exist. As stated in Nardone v. United States, 1939, 308 U. S. 338, 340:

"Any claim for the exclusion of evidence logically relevant in criminal prosecutions is heavily handicapped. It must be justified by an over-riding public policy expressed in the Constitution or the law of the land. In a problem such as that before us now, two opposing concerns must be harmonized: on the one hand, the stern enforcement of the criminal law; on the other, protection of that realm of privacy left free by Constitution and law but capable of infringement either through zeal or design. In accommodating both these concerns, meaning must be given to what Congress has written, even if not in explicit language, so as to effectuate the policy which Congress has formulated."

Here the purpose of the licensing law is to prevent interference with radio communications. No right of the defendant was violated by the lack of license. No policy against admission of evidence secured by the radio operation can be said to arise from such lack. We conclude that operation of the Fargoe device without license constituted no bar to the admissibility of the tapes.

The third ground for appellant's attack on the admissibility of the tapes is that no proper foundation was laid in that they were identified only by Oto and that the officer on the receiving end did not testify. Further, appellant contends that the recordings were so fragmentary and unintelligible as to render them of no reliable probative force.

In Monroe v. United States, D. C. Cir., 1956, 234 F. 2d 49, 55, it was held:

"Unless the unintelligible portions were so substantial as to render the recording as a whole untrustworthy the recording is admissible and the decision should be left to the sound discretion of the judge.

"Here the trial judge followed the correct procedure of having the records played out of the presence of the jury so that he could rule on any objection raised by defendants before the jury heard the recording."

In this case, prior to the playing of any recording before the jury, the trial judge listened to the recordings out of the presence of the jury and had Oto identify the voices which were heard on the tapes. In each instance Oto identified the voices that were to be heard, identified the place where the recording was made and the date and the persons present. Furthermore, he testified in each instance that these recordings were accurate in that he had listened to them shortly after the conversation took place. With but few exceptions it would appear that the tapes have been transcribed in their entirety.

No abuse of discretion appears. The probative force was for the jury to assess.

We conclude that it was neither error nor abuse of discretion to admit the tapes in evidence.

Appellant next contends that the course of conduct established by the evidence constituted entrapment as a matter of law.

The issue of entrapment was presented to the jury. Appellant asserts that there were no factual issues to be decided by the jury upon this question and that the judge should have ruled upon it in his favor. We disagred. An essential issue was whether Oto had, as appellant contended on trial, first planted the idea of a bribe in appellant's mind. We cannot say that this fact so conclusively appears from the record as to render the issue of entrapment one of law.

Appellant contends that to make use against him of his conversations with Oto is to violate his right against self-incrimination. But appellant was not confessing to a crime. He was committing one. Even if there were self-incrimination, it was wholly voluntary. There is obviously no merit to this contention.

Finally, appellant contends that the district court committed error in denying his motion for a bill of particulars prior to trial. He points out that on March 31, 19 60, a complaint was filed against him by a federal agent charging him with attempted bribery; that he was never prosecuted on this complaint; that he was subsequently indicted on one court charging an offense committed "on or about April 6, 19 60." He asserts that this created an uncertainty as to the scope of the transactions or conversations upon which the government intended to rely and that it was to meet this situation that he moved for a bill of particulars. That motion was opposed by the United States and denied by the district court.

The United States denies that this constituted abuse of discretion. Even assuming that it did, however, we find no prejudice to appellant. He was fully aware at all times of the scope of Oto's participation and the potential scope of his testimony. He listened to the recordings upon which the government proposed to rely before the first witness was called. We conclude that failure to grant a bill of particulars does not warrant reversal.

Affirmed.

 

 

[66-2 USTC ¶9767] United States of America , Appellee v. William Marks, Jr., Defendant-Appellant

(CA-2), U. S. Court of Appeals, 2nd Circuit, Docket No. 30498, 368 F2d 566, 11/9/66, Aff'g an unreported District Court decision

[1954 Code Sec. 7214(a)(2)]

Crimes: Offenses by U. S. employees: Aiding and abetting: bribery.--The taxpayer's convictions for bribery of an IRS agent and aiding and abetting an IRS agent to commit an unlawful act were affirmed. The court rejected his contention that the use of the uncorroborated testimony of his accomplices was improper along with his contention that his cross-examination was improperly limited.

Otto G. Obermaier, 60 E. 42nd, New York, N. Y., Robert M. Morgenthan, United States Attorney, Michael W. Mitchell, Assistant United States Attorney, New York, N. Y., for appellee. Maurice Edelbaum, 250 Broadway, New York , N. Y., for appellant.

Before WATERMAN, HAYS and ANDERSON , Circuit Judges.

PER CURIAM:

Appellant was convicted by jury verdict on two counts of bribing employees of the Internal Revenue Service and on two counts of aiding and abetting these employees in violating 26 U. S. C. §7214(a)(2).

Appellant contends that the federal rule permitting conviction on the uncorroborated testimony of accomplices is not one of invariable application, but that it is the "better practice" to require corroboration and that the circumstances of the present case call for the use of this "better practice." An identical contention was advanced in United States v. Armone, 363 F. 2d 385, 402 (2d Cir. 1966) and was rejected by this court in an opinion which cited United States v. Kelly, 349 F. 2d 720 (2d Cir. 1965), cert. denied, 384 U. S. 947 (1966). In the present case the trial judge instructed the jury that the government's witnesses were accomplices and that:

"You must, therefore, scrutinize their testimony with special care and act upon it with caution."

Appellant also argues that his trial was unfair because the court prevented the defense from cross-examining accomplice witnesses as to other occasions on which they had accepted bribes. Defendant was permitted to bring out that the government's witnesses had been convicted for accepting bribes, that they had not yet been sentenced and that they were testifying in the hope of avoiding jail sentences. It was well within the trial judge's discretion to limit further cross-examination on the issue of credibility. United States v. Irwin, 354 F. 2d 192 (2d Cir. 1965), cert. denied, 383 U. S. 967 (1966).

Affirmed.

 

 

 

 

 

[80-1 USTC ¶9252] United States of America , Appellee v. Max L. Shulman, Appellant

(CA-2), U. S. Court of Appeals, 2nd Circuit, Docket No. 79-1340, 624 F2d 384, 2/21/80 , Affirming unreported District Court decision

[Code Sec. 7212]

Crimes: Bribery: Evidence: Sufficiency of: Admissibility: Constitutionality of investigation.--The appellate court upheld the taxpayer's conviction for aiding and abetting the offer of a bribe to an IRS agent. In holding that the evidence was legally sufficient to sustain the taxpayer's conviction, the court rejected the taxpayer's claim that he should not have been convicted since the offer to bribe had taken place prior to his involvement. The court also found that tape recordings of various conversations between the taxpayer and a witness and between government witnesses were properly admitted into evidence by the district court. Finally, the court rejected the taxpayer's contention that the government's investigation and prosecution of the taxpayer's case were violative of his due process rights.

Robert B. Fiske, Jr., United States Attorney, Federico E. Virella, Jr., Howard W. Goldstein, Assistant United States Attorneys, New York , N. Y. 10007, for appellee. E. Barrett Prettyman, Jr., Carol A. Mutter, Nancy G. Yates, Hogan & Hartson, 815 Connecticut Ave., N. W. Washington D. C. 20006, for appellant.

Before SMITH, FEINBERG and TIMBERS, Circuit Judges. ^*

TIMBERS, Circuit Judge: After an eleven day jury trial in the Southern District of New York, Charles L. Brieant, District Judge, appellant Max L. Shulman was convicted on one count of aiding and abetting the offer of a bribe to an Internal Revenue Service employee in violation of 18 U. S. C. §§ 201(b) and 2 (1976). ¹ On appeal, appellant urges (1) that the evidence was legally insufficient to sustain his conviction for aiding and abetting; (2) that the district court erred in admitting tape recordings of certain conversations between appellant and a witness and in charging the jury with respect to appellant's admissions on those tapes; (3) that the district court erred in admitting tape recordings of certain conversations between government witnesses as prior consistent statements; and (4) that the conduct of the government in investigating and prosecuting the case deprived appellant of due process. After careful examination of appellant's claims, we conclude that they are without merit. We affirm.

I. At trial, evidence was adduced from which the jury could have found as follows. Max L. Shulman, the Chairman of the Board of Mays Department Stores, had served since February 1976 as an executor of the estate of his mother-in-law, Celia Weinstein. As executor, Shulman hired Henry Brooks, a private real estate appraiser, to appraise various real properties which comprised the Weinstein estate. After Brooks made his appraisal, Charles Rocoff, an IRS appraiser, was assigned to review Brooks' valuations and to determine the fair market value of the properties. Rocoff appraised the properties at more than twice the amount of Brooks' valuations. ²

On August 23, 1978 Brooks and Rocoff met for lunch at Brooks' office. When Brooks complained about the IRS valuation of the Weinstein properties, Rocoff told Brooks that he wanted to be paid to lower the IRS valuation. Brooks told Rocoff that he would see what could be done. On September 21 Brooks and Rocoff met again. Rocoff told Brooks once more that he wanted to be paid to lower his valuation of the properties. He further stated that he would accept $7500 to do so. Brooks told Rocoff that he would ask the Weinstein family for $10,000. Out of this amount, Brooks said that he would give $7500 to Rocoff and keep $2500 for himself. Brooks stated that he would find out if the money could be arranged and then get back to Rocoff.

In October 1978 Brooks met with Shulman. ³ Brooks informed Shulman that the IRS valuation figures could be lowered, but that the IRS agent wanted to be paid off for lowering them. Shulman responded, "Okay, see what you can do and come back with some figures." Brooks agreed and left. He then met with Rocoff and told him that "the money that he wanted was . . . available, and [Rocoff] should start working on the figures and get them lowered."

Brooks and Rocoff subsequently met on several occasions in October and early November to discuss the valuation of the Weinstein properties. On November 13, however, Brooks was taken into custody by IRS agents in connection with an investigation of corruption in the Internal Revenue Service Valuation Group. After being questioned about various other bribes, Brooks agreed to cooperate with the government and signed a cooperation agreement. Brooks then consented to the tape recording of several of his meetings and telephone conversations with Rocoff ⁴ during which the two discussed Rocoff's bribe to lower the valuation of the Weinstein properties. On November 27 Brooks met Rocoff. Rocoff supplied Brooks with lowered valuation figures; ⁵ at the same meeting Brooks gave Rocoff money which he said had been provided by the Weinstein family, but which in fact had been provided by the government. After departing with the money, Rocoff was arrested. He, too, decided to cooperate with the government and signed an agreement to that effect.

On December 7 Brooks, wearing a recording device, met with Shulman. Brooks referred to their earlier meeting in October at which Shulman had told Brooks to "see what you can do and come back with some figures." They then discussed the valuation figures lowered by the IRS agent. Shulman, after expressing some dissatisfaction over the amount of money required to bribe the agent, agreed to supply $10,000 to pay off Rocoff.

On December 11 Brooks met again with Shulman. ⁶ Brooks asked Shulman if he remembered their earlier meeting (i. e., the one in October) where they had "agreed maybe we can do something." Shulman acknowledged that he remembered the discussion. Shulman then gave Brooks an envelope containing $10,000 in cash which both men counted. Brooks left the meeting and turned the money over to government agents.

On March 9, 1979 the indictment upon which Shulman was tried was returned in the Southern District of New York charging him with the offenses stated above. ⁷ The trial began on March 12, 1979 and concluded on March 26, 1979 when the jury convicted him on the aiding and abetting count. On September 4, 1979 he was sentenced to a term of imprisonment of a year and a day and was fined $20,000. Execution of the prison sentence was suspended and he was ordered to serve a one year term of probation. From the judgment of conviction entered September 4, 1979 , this appeal has been taken.

II. In the light of these facts and prior proceedings, we turn first to Shulman's claim that the evidence was insufficient to sustain his conviction for aiding and abetting the offer of a bribe to Rocoff in October 1978. ⁸ Shulman argues that the evidence established that an illegal bribe offer was made by Brooks to Rocoff in August or September 1978, before Shulman told Brooks to "see what you can do and come back with some figures." Shulman argues, therefore, that he should not have been found guilty of aiding and abetting the bribe offer because the offer was completed prior to his involvement.

A person cannot be found guilty of aiding and abetting a crime that already has been committed. E.g., United States v. Freeman, 498 F. 2d 569, 575 (2 Cir. 1974); Roberts v. United States , 416 F. 2d 1216, 1221 (5 Cir. 1969). We do not believe, however, that the record establishes that the offer of a bribe to Rocoff in fact was completed before Shulman and Brooks met in October. Prior to the October meeting Brooks had no authority to offer a bribe on behalf of Shulman. At that time Brooks also had no money to offer as a bribe and he had no promise that any money would be available. The jury therefore was justified in viewing the pre-October meetings between Brooks and Rocoff simply as acts of preparation which established Rocoff's willingness to accept a bribe, the amount of the bribe sought by Rocoff, and Brooks' willingness to solicit the bribe from Shulman. Since approval by Shulman of the actual offer of a bribe was required, however, Brooks had no authority or ability to pay off Rocoff before the October meeting with Shulman. United States v. Jacobs, 431 F. 2d 754, 760 (2 Cir.), cert. denied, 402 U. S. 950 (1970) (offer of bribe was complete when defendant "expressed an ability and desire to pay" bribe). Only after Shulman authorized the payment of a bribe at the October meeting, and Brooks so informed Rocoff, was the actual offer of a bribe completed.

Shulman alternatively argues that, even if the offer of a bribe was not completed prior to Shulman's October conversation with Brooks, the evidence nevertheless was legally insufficient to support his conviction for aiding and abetting the offer of a bribe. In support of this argument, Shulman asserts that Brooks' testimony should be held to be incredible as a matter of law and that the district court committed plain error in failing to instruct the jury on the meaning of aiding and abetting. We are unconvinced by either aspect of this argument.

Viewing the evidence in the light most favorable to the government, as we must at this stage of the case, Glasser v. United States, 315 U. S. 60, 80 (1942), the jury surely could have found that Shulman gave Brooks carte blanche authority to negotiate a bribe with Rocoff. Brooks testified that during the October meeting he told Shulman that "the agents want to get paid off", and Shulman replied, "Okay, see what you can do and come back with some figures." Brooks then met with Rocoff and told him that "the money that he wanted was . . . available, and [Rocoff] should start working on the figures and get them lowered." If the jury believed Brooks' testimony, ⁹ then clearly there was sufficient evidence to establish that Shulman aided and abetted the offer of a bribe to Rocoff.

Presumably recognizing that Brooks' testimony, if credited by the jury, indeed was sufficient to support the jury verdict, Shulman contends that Brooks' testimony should be held to be incredible as a matter of law. We disagree. Under our system of jurisprudence, as noted above, normally the resolution of issues of credibility is exclusively the province of the jury. United States v. Taylor, 464 F. 2d 240, 245 (2 Cir. (1972); United States v. Weinstein, 452 F. 2d 704, 713-14 (2 Cir. 1971), cert. denied, 406 U. S. 917 (1972). While theoretically the testimony of a witness might be so incredible that no reasonable juror could believe him, see Lyda v. United States, 321 F. 2d 788, 794-95 (9 Cir. 1963), we cannot characterize Brooks' testimony here as such. Much of his testimony was corroborated by Rocoff and by Shulman's own tape recorded admissions. Furthermore, at the close of the government's case and again in a post-trial motion, Shulman moved for a judgment of acquittal on the ground that Brooks' testimony was incredible as a matter of law. Judge Brieant, who was in the best position to judge the credibility of the witness, including his demeanor, ruled that Brooks' testimony could not be characterized as legally incredible. ¹⁰ Appellant invites us to overturn the judgment of both the jury and the district judge on the credibility of a witness which they observed at trial and which we did not. The record does not support appellant's claim. We decline the invitation.

Finally, with respect to his claim that the evidence was insufficient to sustain his conviction for aiding and abetting the offer of a bribe to Rocoff, appellant contends that the district court committed plain error in failing to instruct the jury on the meaning of "aiding and abetting", citing the government's "strained theory" of the crime charged and the "issue of Brooks' credibility". We hold this claim to be without merit. Judge Brieant declined to give the usual aiding and abetting charge ¹¹ because the government's evidence did not show that Shulman merely associated himself with Brooks' criminal conduct; rather the government's theory of the crime was that Shulman caused Brooks to bribe Rocoff. In view of the nature of the government's case, the judge saw no need to charge the jury on the traditional concepts of "mere presence" at the scene of a crime or "negative acquiescence" in the commission of a crime. United States v. MacDougal-Pena, 545 F. 2d 833, 835-36 (2 Cir. 1976); United States v. Garguilo, 310 F. 2d 249, 254 (2 Cir. 1962); United States v. Hill, 464 F. 2d 1287, 1289 (8 Cir. 1972). Instead, the judge read to the jury the language of 18 U. S. C. §§ 2 and 201(b) and charged that Shulman could be convicted only if the jury concluded beyond a reasonable doubt that Shulman, acting through Brooks, caused the offer of a bribe to be made to Rocoff. Before a verdict of builty could be returned, the court charged, the jury was required to find that Shulman "counseled or commanded or caused Brooks to make a corrupt offer to Rocoff." Read as a whole, the court's charge required the jury, before it could convict, to find not only that Shulman actively participated in the bribe offer, but that he was the actual proponent of the bribe. As such, the charge as given was more favorable to Shulman than the charge on aiding and abetting which he now claims was required. We surely cannot say that the district judge committed plain error in instructing the jury on this issue.

III. We turn next to appellant's claims of error with respect to the admission in evidence of certain tape recordings of conversations between Shulman and Brooks. He claims that the district court erred in admitting tape recordings of such conversations on December 7 and December 11, 1978 . He further claims that this error was compounded by what he asserts as the court's erroneous charge on the legal significance of "admissions" made by Shulman on the tapes. We find no merit in either claim.

During the direct examination of Brooks, the government offered in evidence two tape recorded conversations between Brooks and Shulman which Brooks had recorded in December 1978. The purpose of the tapes was to corroborate Brooks' testimony that he and Shulman had made a prior agreement (i. e., at their October meeting) to bribe the IRS agent. The court allowed the tapes in evidence on the ground that they constituted admissions and adoptive admissions by appellant. ¹² The court gave repeated instructions to the jury that the tapes were not evidence of any crime committed in December but were received only to support the government's version of the October agreement between Brooks and Shulman.

On appeal, Shulman argues (1) that the tapes in fact did not contain any admissions adopted by him and hence were received in evidence improperly, and (2) that, even if certain portions of the taped conversations were construed as adoptive admissions, the fact the the entire tapes were received in evidence was prejudicial error, since major portions of the tapes did not relate to his October meeting with Brooks. ¹³

We consider first the claim that the December tapes did not contain admissions adopted by appellant. ¹⁴ The challenged tapes contained both Shulman's own statements and statements by Brooks made in Shulman's presence which Shulman either expressly adopted (i. e., by responding "right" or by agreeing in some similar manner) or else implicitly adopted by failing to object. Appellant concedes, as he must, that his own statements were admissible as non-hearsay admissions regardless of whether such statements were against his interest when made. Fed. R. Evid. 801(d)(2)(A); United States v. Rios Ruiz, 579 F. 2d 670, 676 (1 Cir. 1978); 4 Weinstein's Evidence §801(d)(2)(A)[01] (1979). Appellant argues, however, that adoptive admissions stand on a different footing. He contends that "an adoptive admission . . . must reflect the defendant's agreement with a third party's statement which incriminates the defendant." Since none of Brooks' statements incriminated him, so the argument goes, these taped statements did not gualify as adoptive admissions.

There is no express requirement in the Federal Rules of Evidence that a party can adopt only those statements which either incriminate him or are otherwise against his interest. Fed. R. Evid. 801(d)(2)(B). ¹⁵ Similarly, the legislative history of Rule 801 does not support the view that adoptive admissions are limited to incriminating statements by third parties. We note, however, that the substantive content of a third party statement is not irrelevant to the characterization of a defendant's conduct as an adoption of that statement. Where the defendant's adoption of another person's statement purportedly is manifested by silence, or other ambiguous conduct, courts will consider the incriminatory content of the statement in order to determine whether the defendant actually has adopted the statement by his silence. The rationale of such cases is that a person ordinarily will respond to an incriminatory or defamatory statement with a denial, or at least with some indication that he objects to the statement as untrue. United States v. Flecha, 539 F. 2d 874, 876-77 (2 Cir. 1976); McCormick, Law of Evidence §270 (2d ed. 1972). But where the party unambiguously manifests adoption of another person's statement, the content of the statement need not be against his interest. ¹⁶

In any event, we hold that the statements by Brooks in Shulman's presence in fact were against Shulman's interest, inasmuch as they tended to show that Brooks and Shulman had engaged in prior discussions involving the offer of a bribe to an IRS agent. Contrary to appellant's contentions, these statements clearly were relevant, probative evidence, and were properly admitted.

In the December 7 tape, for example, Brooks made several references to their corrupt October conversation which Shulman did not contradict. Brooks then stated that the IRS agent wanted a payoff. Shulman did not object or express surprise; he merely responded, "What's the payment?" When told that the payment sought was $10,000, Shulman readily agreed to pay this amount. From this tape, the jury surely could infer that Shulman and Brooks had made a prior agreement in October to bribe the IRS agent, and in December were simply arranging the exact amount of the bribe.

Likewise the December 11 tape tended to show that an illegal agreement of offer a bribe had been made by Shulman and Brooks in October. In this tape Brooks said to Shulman, "Do you remember back in September, October when I first discussed this with you?" Shulman responded, "Right." Brooks then elaborated, "You know, you know we agreed maybe we can do something." Again Shulman responded, "Right." After this exchange, Brooks and Shulman counted the $10,000 payment. This tape contained express manifestations by Shulman that he acquiesced in the truth of Brooks' statements. Furthermore, the conversations tended to support the government's case that the original agreement to offer a bribe had been made in October. The tapes, therefore, were highly probative of crucial issues at trial. We hold that the district court did not err in admitting these tapes in evidence.

This brings us to appellant's related claim that the district court abused its discretion in admitting the entirety of the tapes rather than excluding those portions which did not refer directly to the October meeting. Appellant contends that the court committed reversible error by allowing the jury to hear segments of the tapes dealing with the valuation of the Weinstein properties, the request for the $10,000 payment, Shulman's agreement to pay the $10,000, and the counting of the money which Shulman delivered to Brooks.

For several reasons, we find this claim to be without merit. First, Shulman never requested the district court to excise those portions of the tapes which he now contends were prejudicial. Second, it was within the discretion of the district court to admit much of the material on the tapes as background material to aid the jury in understanding the events surrounding the taped conversations, even though it did not bear directly on the bribe offer. United States v. Lubrano, 529 F. 2d 633, 637 (2 Cir. 1975), cert. denied, 429 U. S. 818 (1976); United States v. Ruggiero, 472 F. 2d 599, 607 (2 Cir.), cert. denied, 412 U. S. 939 (1973). Third, the district court repeatedly gave limiting instructions, cautioning the jury that the tapes were to be considered only insofar as they tended to show an illegal agreement in October between Brooks and Shulman. The court carefully instructed the jury that Shulman was not on trial for anything he did in December. Finally, but most importantly, the challenged portions of these conversations clearly were probative of the issue of Shulman's prior involvement in or knowledge of the bribe offer. If an agreement to offer a bribe had not been reached in October between Brooks and Shulman, then it is unlikely that Shulman would have agreed so readily to a specific amount for the bribe and have delivered the money to Brooks in December. In view of the foregoing, we hold that the district court did not abuse its discretion in admitting the December tapes in their entirety.

Finally, on this aspect of the appeal, appellant argues that the district court compounded its error in admitting the tapes in evidence by giving an erroneous charge on the legal significance of "admissions" made by Shulman on the tapes. Since we hold that the court properly admitted the tapes, there was no error to compound. Moreover, we believe that the court's charge on admissions was proper. ¹⁷

Judge Brieant instructed the jury that "[a]dmissions or statements by a defendant are among the most effectual proofs in law." He further stated that the jury was "entitled to give weight to the defendant's admission in this case . . . as truth of the facts you find that he has admitted voluntarily . . .." The district judge did not suggest to the jury that Shulman ever had admitted his guilt. Rather, he correctly equated "admissions" with "statements", see Fed. R. Evid. 801, and correctly instructed the jury that it should determine for itself what weight to give the facts which the jury found Shulman had admitted. We hold that the charge was both legally correct and fair to Shulman.

IV. We turn next to appellant's claim that the district court also erred in edmitting tape recordings of certain conversations between Brooks and Rocoff. Appellant contends that, since these conversations took place after Brooks had begun cooperating with the government, ¹⁸ the conversations should not have been admitted as prior consistent statements.

At the outset, we note that there is a substantial question whether appellant has preserved his right to raise this claim on appeal. At trial, he objected to the admission of the Brooks-Rocoff tapes on the ground that, since the conversations took place after the alleged conspiracy had terminated, ¹⁹ they were not declarations of co-conspirators. The district court agreed, but ruled that the tapes nevertheless were admissible because they were probative of Brooks' and Rocoff's credibility. The court stated that it would give a limiting instruction to the jury to this effect ²⁰ and Shulman did not object.

As each tape was admitted in evidence, Shulman made a general objection without further explanation. Only in his post-trial motion did he advance his theory that the statements were inadmissible because they did not meet the specific requirements for prior consistent statements. In view of Shulman's failure during trial to specify his reasons for objecting to the admission of these conversations, there is substantial merit in the government's argument that Shulman has waived his right to assert this claim on appeal. United States v. Rubin, --, -- (2 Cir. 1979), slip op. 4561, 4583-86 (Sept. 6, 1979); United States v. Maultasch, supra, 596 F. 2d at 24.

We find it unnecessary, however, to rest our decision on this procedural ground. Assuming arguendo that the objection by appellant was sufficient, we hold that the Brooks-Rocoff conversations in fact were properly admitted as prior consistent statements for the limited purpose of bolstering the credibility of the government's witnesses.

In United States v. Quinto [78-2 USTC ¶9633], 582 F. 2d 224 (2 Cir. 1978), we set forth a three-part test under Fed. R. Evid. 801(d)(1)(B) for determining the admissibility of prior consistent statements. First, the prior statement must be consistent with the witness' in-court testimony. Second, the prior statement must be offered to rebut an express or implied charge against the witness of recent fabrication or improper motive. Third, it must be demonstrated that the statement was made prior to the time that the supposed motive to falsify arose. Id. at 233-34; United States v. Check, 582 F. 2d 668, 680-81 (2 Cir. 1978).

In the instant case, the Brooks-Rocoff conversations met all three requirements. First, the conversations were consistent with the in-court testimony of Brooks and Rocoff, supporting their version of the events which formed the basis of the crime charged against Shulman. Second, the conversations were offered to rebut implicit defense charges that the testimony of the witnesses was fabricated. The defense claimed that Brooks and Rocoff were "confessed liars" who would "do anything to save themselves". The defense argued that "pressure" was put on Brooks and Rocoff to "tailor their story" to fit the government's case, and that "personal advantage [had] flowed to [Brooks] for changing the truth to a lie." Third, the Brooks-Rocoff conversations took place prior to the time that the supposed motive to falsify arose. Whatever motive Rocoff had to falsify his testimony could not have arisen prior to the date of his confrontation with federal agents and his decision to cooperate with the government; yet all of the conversations in question took place before these events. Similarly, although Brooks was cooperating with the government during this period, the defense itself suggested that his supposed motive to falsify did not arise when Brooks signed the cooperation agreement on November 16, but instead arose some two weeks after Brooks began cooperating with the government, or about December 1. It was at that point, according to the defense, that Brooks--who until then had not implicated Shulman--"changed his story [because] it served his interest." Yet the taped conversations took place between November 20 and November 27, prior to Brooks' decision, according to the defense, to "chang[e] the truth to a lie."

We hold that the Quinto requirements were satisfied in this case, ²¹ and that the tapes of the Brooks-Rocoff conversations were properly admitted even if the objections to their admission made by the defense at trial were sufficiently specific to preserve the issue on appeal.

V. Finally, we come to appellant's claim that the conduct of the government in this case "was so outrageous as to violate fundamental principles of due process and bar conviction." This claim can be disposed of summarily.

The prosecution of Shulman arose out of a lengthy and extensive government investigation of corrupt activities within the Internal Revenue Service Valuation Group. The investigation culminated in December 1978 with the filing of seven indictments charging numerous persons, including Shulman, with bribery and related offenses. Appellant claims that the government "was aware of this corruption and yet chose to ignore it, allowing further crimes to be committed and more individuals to be ensnared in connection with those crimes." Specifically, appellant charges that the government knew that Brooks and Rocoff were corrupt, yet nevertheless decided to "look the other way" as Brooks and Rocoff "implicate[d] the defendant in one of their schemes." We find no basis for condemning the government's handling of the investigation. The government's decision to continue the investigation and to gather further evidence rather than immediately arrest the first handful of suspects which came to light does not strike us as improper or unusual. On the contrary, it was a sound investigative procedure and clearly within the government's discretion. We also reject appellant's contention that the government sent Brooks out to entrap him. The government sent Brooks to Shulman in December to seek corroboration of Brooks' story that Shulman had authorized him in October to bribe Rocoff. We have carefully examined all of appellant's charges of governmental impropriety in this case and we conclude that they are wholly unfounded. We hold that the government's conduct of this case was not improper and most certainly was not "outrageous". In no sense can it be said to constitute a bar to conviction.

VI. To summarize, we hold that:

(1) The evidence was legally sufficient to support the jury's verdict finding appellant guilty;

(2) The district court did not err in admitting the tape recordings of the December conversations between appellant and Brooks, or in instructing the jury on admissions contained on the tapes;

(3) The district court did not err in admitting the tape recordings of conversations between Rocoff and Brooks as prior consistent statements; and

(4) The conduct of the government during the investigation and prosecution of this case was not improper.

Appellant was convicted of a serious offense after a fair trial on the basis of substantial evidence, including his own admissions.

Affirmed.

^* Pursuant to §0.14 of the Rules of this Court, this appeal is being determined by Judges Feinberg and Timbers who are in agreement on this opinion. Judge Smith, who heard the argument, unfortunately died on February 16, 1980 . Prior to his death Judge Smith voted to affirm and was in agreement with his colleagues on all issues in the case. He did not have the opportunity, however, to see this opinion prior to his death.

¹ Shulman also was charged with one count of conspiring to defraud the United States and to offer a bribe in violation of 18 U. S. C. §371 (1976). After the close of the government's case, Judge Brieant entered a judgment of acquittal on this count on the ground that the government had failed to prove any overt acts committed pursuant to the alleged conspiracy.

² Brooks valued the various properties at $4,521,612; Rocoff valued the same properties at $9,723,409.

³ At trial the government asserted that this meeting took place either in late September or early October. Shulman himself testified that he met with Brooks on October 6.

⁴ Videotapes also were made of some of the Rocoff-Brooks meetings.

⁵ Brooks' recapitulation sheet showed that the valuation figures provided by Rocoff had been lowered from approximately $9.7 million to approximately $5.4 million.

⁶ This meeting also was tape recorded.

⁷ This March 9, 1979 indictment superseded an indictment filed March 5, 1979 . The March 5, 1979 indictment itself had superseded the original indictment in the case, filed December 18, 1978 .

⁸ Shulman was not charged with the commission of any crime arising out of his transactions with Brooks in December 1978. The actual transfer of the bribe money from Shulman to Brooks in December took place in Brooklyin which is in the Eastern District of New York. As to this, venue did not lie in the Southern District of New York.

⁹ Shulman testified that Brooks never told him during the October meeting that the agents wanted to be "paid off" and that he never responded "Okay, see what you can do. . . ." The resolution of such a conflict in the testimony of course is one of the classic functions of the jury. Here the jury chose not to believe Shulman.

¹⁰ Appellant argues that Judge Brieant improperly considered Brooks' testimony in a separate case, United States v. Stahl, 78 Cr. 892-LBS, in ruling that Brooks' testimony in the instant case was not legally incredible. Judge Brieant's reference to the Stahl case, when read in context, fairly should be regarded as no more than an incidental reference to another case in which Brooks proved believable. We do not read Judge Brieant's reference to Stahl as suggesting that he relied on Brooks' testimony there in reaching his decision on Shulman's motion in the instant case.

¹¹ The usual charge actually was requested by the government; Shulman did not submit a requested charge on the issue. Furthermore, Shulman did not object to the charge as given.

¹² Originally, the district court admitted the December 11 tape but excluded the December 7 tape. Prior to the playing of the December 11 tape, however, the defense informed the court that it wanted to offer the December 7 tape as part of its own case. In view of this defense strategy, the district court reversed its earlier ruling and allowed the government to introduce the December 7 tape as well as the December 11 one. The court subsequently expressed its belief that the December 7 tape, like the December 11 one, could be viewed as supporting the government theory that Brooks and Shulman had discussed the offer of a bribe at their October meeting.

¹³ As stated above, Shulman was charged only with aiding and abetting the offer of a bribe in October. Although the bribe was further discussed and the payoff money was delivered to Brooks by Shulman in December, these latter events were not part of the crime for which Shulman was indicted. Appellant therefore claims that the December 7 and December 11 tapes document "additional crimes", rather than the one charged, with resulting prejudice to him.

¹⁴ We assume arguendo that appellant has preserved his right to challenge on appeal the admission of both tapes. In indicating that he intended to introduce the December 7 tape as part of his own case, note 11 supra, appellant may well have waived any objection he had to the admission of that tape. See United States v. Maultasch, 596 F. 2d 19, 26 (2 Cir. 1979).

¹⁵ Rule 801(d)(2)(B) provides simply that a "statement is not hearsay if . . . [t]he statement is offered against a party and is . . . a statement of which he has manifested his adoption or belief in its truth."

The broad language of this rule is in sharp contrast to the hearsay exception for "statements against interest" made by unavailable declarants. Fed. R. Evid. 804(b)(3). Rule 804(b)(3) excepts a statement from the hearsay rule if it is "[a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true."

¹⁶ The cases cited by appellant are not to the contrary. United States v. Fantuzzi, 463 F. 2d 683, 690 (2 Cir. 1972); United States v. Metcalf, 430 F. 2d 1197, 1199 (8 Cir. 1970); Arpan v. United States , 260 F. 2d 649, 655 (8 Cir. 1958). These cases support the view that the incriminating content of a third party statement is relevant only to the determination of whether the defendant's silence or other conduct constitutes adoption of the statement.

¹⁷ Neither the government nor the defense submitted a requested instruction on admissions. At the conference called by the judge to discuss the proposed charge, however, the judge informed both sides of the instructions that he intended to give the jury on admissions. Shulman did not object to any of the language in the proposed instructions.

The portion of the charge on admissions as given was as follows:

"Admissions or statements by a defendant are among the most effectual proofs in law. They constitute the strongest sort of evidence against the party making the admissions or statements of the facts, and you are entitled to give weight to the defendant's admission in this case whether made on the stand while testifying before you during the trial, or made in a tape recording, or made in any conversation with a witness whose version of the conversation you believe as truth of the facts you find that he has admitted voluntarily, and knowledgeably, either on the stand before you while he was testifying or in conversations which you may find he had with other witnesses and in which the other witnesses in your opinion have truthfully reported to you; or which he has said in conversations appearing on tape."

After the charge was given, Shulman requested that the court give a supplemental charge, instructing the jurors that it was their job to determine if, in fact, he had made any admissions of the crime charged. The court declined, explaining that the charge had not suggested that Shulman ever made admissions of the crime charged, but had simply indicated that Shulman may have made admissions of certain facts. We agree with the court's handling of this request.

¹⁸ Brooks was first taken into custody and questioned by IRS agents on November 13, 1978 . He signed the cooperation agreement on November 16. The taped conversations in question took place between November 20 and November 27.

¹⁹ See note 1, supra.

²⁰ The court subsequently instructed the jury on several occasions that the conversations were admitted solely to assist the jury in assessing the credibility of Brooks and Rocoff.

²¹ Furthermore, even if Brooks' statements had not met the Quinto requirements, they would have been admissible in order to place Rocoff's statements in context. The district court made it clear that the limiting instructions applied to Rocoff's statements on the tapes as well as to Brooks' statements.

 

 

 

 

[80-2 USTC ¶9521] United States of America v. William Bocra, Appellant

(CA-3), U. S. Court of Appeals, 3rd Circuit, No. 79-2271, 623 F2d 281, 5/29/80 , Affirming unreported district court decision

[Code Sec. 7212]

Interference with administration: Bribery of IRS agent: Entrapment defense: Evidence: Conviction upheld.--The taxpayer's conviction for bribing an IRS agent was upheld although the court did criticize the agent's delay of the taxpayer's audit because it seemed calculated to prey on the anxiety of the taxpayer. However, the evidence presented did not establish entrapment as a matter of law nor was the agent's conduct so egregious as to constitute a violation of due process notions of fundamental fairness. The district court did not abuse its discretion in refusing to allow the taxpayer to introduce as either direct evidence or by cross-examination the IRS agent's involvement in a number of other cases in which bribery attempts were charged.

Robert J. Del Tufo, United States Attorney, Barry Ted Moskowitz, Assistant United States Attorney, Newark, N. J. 07101, for appellee. John R. Padova, 1201 Chestnut Street, Philidalephia, Pa. 19107, Samuel V. Convery, Jr., 137 Main Street, Metuchen, N. J. 08840, for appellant.

Before ROSENN, SLOVITER, Circuit Judges, and LAYTON, District Judge ^*

Opinion of the Court

ROSENN, Circuit Judge:

Appellant William Bocra was convicted of bribing an agent of the Internal Revenue Service (IRS) in violation of 18 U. S. C. §201(b) (1976) ¹ and was sentenced to a three-year prison term. At trial, Bocra's main defense was that he was the victim of entrapment by the IRS agent. In this direct appeal from the imposition of sentence, 28 U. S. C. §1291 (1976), Bocra charges, inter alia, that he was denied a fair trial because the trial judge refused to allow him to introduce either as direct evidence or by cross-examination for impeachment purposes, the IRS agent's involvement in a number of other cases in which taxpayers were charged with attempting to bribe him in violation of section 201(b). We affirm.

[Facts]

I. This case arose out of the audit of two companies owned and operated by the William Bocra family. William Bocra was president of BBT Maintenance, Inc. (BBT) and vice-president of Perth Amboy Iorn Works ( Perth Amboy ). The 1976 corporate income tax return of BBT became the subject of an IRS audit and in February 1978, Arthur Lemp, an IRS agent, was assigned to the case. Lemp, in the course of his audit, examined various BBT records and discovered that Perth Amboy was a related corporation. He then determined that it would also be necessary to audit the Perth Ambody return for the fiscal year ending May 31, 1977 . This audit, however, was not commenced until August 1978.

It was during the course of the Perth Amboy audit that Lemp began to develop a personal relationship with Bocra, his family, and the company accountant. On August 1, 1978 , Lemp commenced his Perth Amboy audit and met Theodore Bocra (Theodore), appellant's brother for the first time. Lemp accompanied Theodore and William Platter (Platter), the company accountant, to lunch on the first day of the audit. Theodore suggested to Lemp that they play golf sometime but Lemp declined the invitation due to the ongoing audit. Theodore paid for the lunch except for a tip which lemp left.

Lemp's audit of Perth Amboy uncovered a financial relationship with a restaurant known as Farrington Manor (the Manor) owned by the Bocra family. Lemp requested a list of shareholders of the Manor and a list of loans which Perth Amboy had made to it. William Bocra asserted that Perth Amboy had done some construction work for the Manor but that it had been done on weekends using only scrap materials. Lemp was interested in obtaining documentation of expenses deducted by Perth Amboy in connection with the construction, but never received the desired information.

The evidence at this point is sharply disputed by the parties. At an August 7, 1978 meeting with William and Theodore Bocra and Platter, Lemp claims the Bocras requested him to go easy on them in the audit. Both Theodore and William Bocra vigorously denied any request for favorable treatment, Lemp and Platter ate lunch together but Lemp paid his share. William Bocra subsequently invited Lemp and his wife as his guests to dinner at the Farrington Manor on August 11. The parties dispute whether William or Lemp initiated this invitation but Lemp tentatively agreed to the dinner. Lemp, however, immediately notified the IRS Inspection Service, which has jurisdiction over attempted bribes, and reported the dinner invitation. He was instructed to attend the dinner and report any attempted bribes. The dinner party, however, was cancelled due to William Bocra's illness.

Lemp continued his audit of Perth Amboy and revisited the company on August 30, 1978 . Bocra instructed Platter to take Lemp to lunch at the Farrington Mannor which Lemp says he accepted because he wanted to examine the construction performed by Perth Amboy and because the IRS had requested him to continue to monitor any bribe attempts. Lemp received no bill for the lunch. Lemp agreed to continue the audit at Platter's office to reduce the time required for the audit.

Due to delays in locating records, however, Lemp did not resume the audit until November 9, 1978 , when he returned to Perth Amboy 's office. There he met Theodore who told him that the necessary records were at Platter's office. Lemp remained at Perth Amboy , however, for the bulk of the morning and talked with Theodore. The parties sharply dispute the conversation. Theodore claimed he told Lemp about an article in a newspaper concerning dishonest government employees, which greatly upset Lemp. Lemp's version of the conversation suggested that this conversation manifested Theodore's interest in offering a bribe.

Theodore invited Lemp to lunch. Before lunch, Lemp asked him if he could fix a broken tire iron which Theodore agreed to do. At lunch, Lemp claims Theodore again requested easy treatment and that he would like a "no change" report. ² Lemp stated he had no reason to make such a recommendation. Lemp testified that Theodore then asked him to discuss the matter with William and suggested a dinner party at Farrington Mannor the next night. The remainder of the luncheon conversation centered on Lemp's sailing avocation and Theodore expressed a desire to learn how to sail with a corresponding invitation to Lemp to use his boat in exchange for lessons. Theodore's version of the conversation was that Lemp clearly indicated that he wanted a boat. Theodore claimed that he told William Bocra after this conversation that Lemp was trying to "shake them down."

Lemp reported the renewed dinner invitation to IRS Inspection Service and submitted an affidavit detailing his conversation with Theodore. Lemp and his wife attended the dinner on November 10 as William Bocra's guests. Lemp agreed with the Inspection Service to wear a concealed tape recorder and transmitter to the dinner. No conversation relating to a bribe occurred at dinner. William Bocra, however, suggested to Lemp that they take an afterdinner stroll around the grounds. In the course of their stroll, William and Lemp discussed the audit, with Lemp informing him that only $5,000 was owed on the BBT audit. Bocra told Lemp how he could not afford any financial difficulty at the time. Lemp then recounted his conversation with Theodore the day before and asked William what he wanted to do. After warning Lemp about the potential serious consequences of their conversation, William suggested that Lemp might like a boat. Lemp recounted the conversation he had with Theodore about the sailboat. Bocra said he would get Lemp a boat or whatever else he wanted if Lemp helped Theodore out on the audit. Lemp stated he could not recommend a no change report. Bocra then suggested an audit result of a small tax owed and offered Lemp $2,500 for this result. Lemp indicated that he would accept. Bocra again emphasized the seriousness of the conversation and Lemp manifested his understanding that it was a crime to give and receive a bribe. The two agreed to meet on November 17 at which time Lemp was to have the audit report completed.

Lemp reported the bribe offer to IRS Inspection Service. On November 17 Lemp arrived at Bocra's Perth Amboy office and presented the requested favorable audit report. Bocra signed the audit report and signed a check for the small sum owed. Bocra then took Lemp for a short drive and indicated that the $2,500 was placed behind the sunvisor. Lemp took the money and immediately turned it over to the IRS Inspection Service.

William Bocra was indicted on March 16, 1979 , on bribery charges under 18 U. S. C. §201(b)(1). Bocra's defense was that Lemp had entrapped him into making the bribe. Defense counsel was aware that Lemp had been involved in other bribery cases arising out of taxpayer audits and filed a pretrial discovery motion for a summary of all other bribe attempts involving Lemp. The defense sought access to these materials in an effort to establish that Lemp had been the solicitor and William Bocra the innocent victim of an entrapment. The motion was opposed by the United States Attorney on the ground that the requested material was collateral and that except in three pending cases, the taxpayers had each pled guilty to bribery. The prosecutor submitted the materials to the court for in camera inspection and filed a motion in limine seeking to preclude Bocra from mentioning the other bribe cases involving Lemp.

The district court ruled that under United States v. McClure, 546 F. 2d 670 (5th Cir. 1977), evidence of a systematic campaign of inducements to commit crimes was admissible to negate criminal intent. Because the material sought by Bocra related directly to his entrapment defense, the court ordered that copies of all IRS files involving bribery cases in which Lemp was involved and an indictment returned be turned over to the defense by June 25, 1979 . He also ordered the Government to produce three files for in camera inspection relating to bribery cases involving Lemp in which no indictment had yet been returned. The court, however, indicated that the Government was free to file for a protective order for the IRS material, which the Government promptly filed. After completing his in camera inspection of the newly submitted material, Trial Judge Meanor ordered that the defense receive only two reports concerning Lemp and other bribes, but did advise the defense that some of the materials submitted in camera also related to a bribery case involving Lemp. This material revealed that Lemp had been involved in several other bribe cases. The judge also granted the Government's motion for a protective order for the rest of the material.

Trial commenced on June 27, 1979 . The court issued a bench opinion granting the Government's motion in limine to prohibit the defense from using the information relating to other bribery cases and Lemp. The court ruled that the evidence at that time fell short of showing a systematic campaign of solicitation prerequisite for admissibility under Fed. R. Evid. 404(b) and that the probative value of the evidence was outweighed by the potential jury confusion resulting from exploration of collateral issues under rule 403. The court left open the possibility for the defense to proffer testimony relating to the other Lemp bribe cases to establish relevancy. Bocra did proffer the testimony of two taxpayers who had pled guilty to bribing Lemp, but after hearing it out of the presence of the jury, the trial judge ruled against that the evidence was inadmissible either as part of Bocra's case-in-chief or for purposes of impeaching Lemp. Bocra was subsequently convicted and this appeal followed.

[Entrapment]

II. Bocra raises numerous contentions on appeal. He contends principally that (1) the district court should have ruled as a matter of law that he was entrapped by Lemp; (2) the conduct of Lemp was so outrageous as to bar the conviction on fifth amendment due process grounds under our decision in United States v. Twigg, 588 F. 2d 373 (3d Cir. 1978); and (3) the court erred in limiting discovery of Lemp's involvement with other bribery cases and in prohibiting the defense from introducing such evidence in its case-in-chief or on cross-examination of Lemp. We will first examine Bocra's evidentiary argument concerning the restrictions on his exploration of Lemp's involvement in other bribery cases. If the district court erred in this ruling, Bocra would have been denied an opportunity to present all of his evidence on entrapment to the jury. Only if the jury properly had all the evidence on entrapment before it, will it become necessary to examine Bocra's legal and constitutional contentions on entrapment.

The key to the successful establishment of an entrapment defense is proof that the defendant was not predisposed to commit the crime and that the criminal intent in fact originated with the Government. See Hampton v. United States , 425 U. S. 484 (1976); United States v. Russell, 411 U. S. 423 (1973); United States v. Twigg, 588 F. 2d 373 (3d Cir. 1978). Bocra sought materials relating to Lemp's involvement with other taxpayer bribe cases to establish a pattern of solicitation by Lemp which would cast doubt on Bocra's predisposition to commit bribery. Bocra argues first that the district court erred in conducting an in camera inspection of the materials relating to the other bribery cases and that government files should have been turned over directly to the defense.

When defense counsel makes an appropriate discovery request, the Government must respond by turning over the materials directly to the defendant or to the trial judge. United States v. Agurs, 427 U. S. 97, 106 (1976). The submission of discovery materials to the court for an in camera inspection and decision as to which materials are discoverable is commonly used when the Government's need for preserving confidentiality over the materials must be balanced with the defendant's constitutional right to evidence material to his defense. See United States v. Nixon, 418 U. S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974); United States v. Brown, 539 F. 2d 467, 470 (5th Cir. 1976); United States v. Scolnick [68-2 USTC ¶9466], 392 F. 2d 320, 327 (3d Cir.), cert. denied sub. nom, Brooks v. United States, 392 U. S. 931 (1968). In order to overturn an in camera inspection, the defendant must show that the district court abused its discretion in denying access to requested materials. United States v. Swanson [75-1 USTC ¶9191], 509 F. 2d 1205, 1209 (8th Cir. 1975).

The Government sought to protect the confidentiality of the IRS files involving Lemp and taxpayers who were charged with bribery in other cases. Bocra claims it was error for the court to proceed to an in camera inspection because the questions involved in establishing entrapment are not susceptible to in camera review. He contends that only defense counsel can make a determination of which data are relevant to the defense. Bocra relies on Alderman v. United States, 394 U. S. 165 (1969), where the Supreme Court held that despite the Government's asserted confidentiality claim, in camera inspection of materials obtained by electronic surveillance was inappropriate. The Court stated: "[T]he task is too complex, and the margin for error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the Government's case," Id. at 182 (footnote omitted). However, the Court did note that it was speaking in terms of the unique complexity of electronic surveillance cases: "In both the volume of the material to be examined and the complexity and difficulty of the judgments involved, cases involving electronic surveillance will probably differ markedly from those situations in the criminal law where in camera procedures have been found acceptable to some extent." Id. at 182-83 n. 14.

We are not convinced that the issue of entrapment or the examination of prosecutorial evidence in non-electronic surveillance cases is so complex as to make in camera inspection inappropriate. The court is asked to review the materials with an eye to anything which might indicate that the intent to commit the bribery offense was implanted by the Government. Although such evidence may be subtle, we do not believe an able and experienced trial judge was incapable of making an intelligent evaluation of the materials necessary to the defense. Under these circumstances, we cannot say the district court abused its discretion in conducting an in camera inspection of the government files relating to Lemp's involvement with other taxpayer bribe cases.

Nor do we believe the court erred in not releasing the bulk of the Government's files on Lemp's activities with other taxpayers. We have carefully inspected the in camera materials and have found nothing that indicates the district court erred in its rulings. Accordingly, we reject any suggestion that Bocra was denied materials critical to the presentation of his defense.

The district court did release two government files to Bocra. The Government filed a motion, however, to prohibit Bocra from introducing any evidence either on direct or cross-examination relating to Lemp's involvement with other taxpayers. It asserted that such evidence relating to Lemp's character was impermissible under Fed. R. Evid. 404(b) and that its probative value was outweighed by its prejudicial effect under Fed. R. Evid. 403. The trial court sustained the Government's position at the outset of the trial but left open the possibility that Bocra could make a proffer of the evidence implicating Lemp in other bribe cases. Such a proffer was made at the close of Bocra's cross-examination of Lemp. The proffered evidence consisted of the testimony of two taxpayers who had pled guilty to bribing Lemp. The Government renewed its objection to the introduction of this testimony. The court sustained the objection and ruled:

The proof provided and described fails to show that the defendant's alleged bribe of Agent Lemp was part of a systematic campaign of bribe solicitation by Agent Lemp. Accordingly, the proffered evidence does not fall within an exception of the general exclusion of Federal rule of evidence 404(b).

Additionally and previously noted, in the preliminary ruling on this motion, I further find that the marginal probative value of the evidence does not outweigh the substantial risk that it would confuse the issues, mislead the jury, and consume undue time. Thus, the evidence should also be excluded under Federal rule of evidence 404 [sic].

Bocra asserts that the proffered testimony was admissible under Fed. R. Evid. 404 and that even if it is not, he should have at least been permitted to impeach Lemp's testimony through exploration of Lemp's involvement in the other taxpayer bribe cases.

The general evidentiary rule is that character evidence is inadmissible for purposes of showing that a person "acted in conformity therewith on a particular occasion. . . ." Fed. R. Evid. 404(a). An exception exists, however, when the character evidence is used as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake of accident." Fed. R. Evid. 404(b). The Fifth Circuit in United States v. McClure, supra, 546 F. 2d at 673-74, held: "[Under Fed. R. Evid. 404(b)(2)] evidence of a systematic campaign of threats and intimidation against other persons is admissible to show lack of criminal intent by a defendant who claims to have been illegally coerced." Bocra maintains that the proffered testimony of the two taxpayers who bribed Lemp was evidence of a systematic campaign by Lemp of soliciting taxpayer bribes thereby negating any predisposition on Bocra's part to bribe Lemp.

Although Bocra's desired use of the proffered testimony under rule 404(b) appears superficially plausible, a close examination of the proffered evidence reveals that the district court did not abuse its discretion in excluding the proffered testimony. Both witnesses were unable to testify that it was Lemp who solicited the brief. ³ Neither presented an entrapment defense as both pled guilty to bribing Lemp. We have carefully examined the proffered testimony and agree with the district court that it is legally insufficient to establish a scheme of solicitation of taxpayer bribes by Lemp. At best, the testimony raises a mere speculative inference that because Lemp was involved in other bribery cases, he was a solicitor of bribes. We see nothing concrete in the record to establish Lemp's role as such and agree that the marginal probative value of the proffered testimony was outweighed by the risks of jury confusion which would result from Bocra's collateral evidentiary excursion into Lemp's involvement with other taxpayers. Accordingly, we hold that the court did not err in barring. Bocra from introducing the proffered testimony as part of his defense.

[Restrictions on Cross-Examination]

The district court's restriction on Bocra's cross-examination of Lemp, however, is more troublesome. Bocra also wanted to impeach Lemp's credibility by questions relating to Lemp's involvement in other cases. The district court banned any such cross-examination, apparently for the same reasons it excluded the proffered testimony as part of Bocra's defense.

The governing rule of evidence is Fed. R. Evid. 608(b) which provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness . . ..

This rule would permit Bocra to question Lemp about the other taxpayer bribe cases, if the court in the exercise of its discretion determined that they were probative of Lemp's truthfulness or untruthfulness. Under no circumstances would Bocra be able to introduce the proffered testimony of the two taxpayers for impeachment purposes without violating the extrinsic evidence prohibition of the rule. If Lemp denied soliciting other taxpayer bribes, Bocra would have to "take his answer" and would not be able to introduce rebuttal testimony. See Carter v. Hewitt, No. 79-1423 (3d Cir. Feb. 27, 1980 ), slip op. at 14-15; United States v. Robinson, 530 F. 2d 1076, 1079 (D. C. Cir. 1976); 3 Weinstein's Evidence, ¶608[05] at 608-22 (1979).

We must consider whether the district court abused its discretion in prohibiting Bocra from cross-examining Lemp as to his involvement with the other taxpayers. Weinstein states: "Since Rule 608(b) is intended to be restrictive . . . the inquiry on cross-examination should be limited to . . . the specific modes of conduct which are generally agreed to indicate a lack of truthfulness." 3 Weinstein, supra, ¶608[05] at 608-28. The Advisory Committee note to Rule 608(b) comments:

Particular instances of conduct . . . may be inquired into on cross-examination of the principal witness himself . . .. Effective cross-examination demands that some allowance be made for going into matters of this kind, but the possibilities of abuse are substantial. Consequently safeguards are erected in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite. . . . Also, the overriding protection of Rule 403 requires that probative value not be outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury . . ..

From the foregoing, it is evident that the type of inquiry into specific conduct of the witness for impeachment purposes is quite limited.

The classic example of a permissible inquiry would be an incident in which the witness had lied. Bocra, however, does not desire to journey into Lemp's involvement with other taxpayers for purposes of evaluating his untruthfulness, but rather to show that Lemp was a solicitor of bribes. There is no allegation that Lemp was untruthful in the other bribery cases. At best a speculative inference would be raised that Lemp was involved in too many bribe cases to make the charge that he solicited the bribes unwarranted. We see any cross-examination of Lemp with respect to his involvement with other taxpayer bribes as only marginally probative of truthfulness. Indeed, Bocra seeks to establish through cross-examination that which has been ruled inadmissible on direct--namely that Lemp was involved in a pattern of solicitations. Rule 608(b) is meant to tie into Rule 403 and we believe the district court could have appropriately concluded that the probative value of the cross-examination was outweighed by the risk of confusing the jury by collateral exploration. We therefore cannot say that the trial judge abused his discretion in refusing to allow Bocra to cross-examine Lemp about the other bribery cases.

[Entrapment As Matter of Law]

III. Our conclusion that Bocra was not erroneously deprived of the use of evidence relating to his entrapment defense requires us to explore whether on the evidence, the district court should have directed a judgment of acquittal on grounds of entrapment.

We are asked to consider whether Bocra was entrapped as a matter of law. In order to defeat an entrapment defense, the Government must prove beyond a reasonable doubt that it did not initiate the crime or that the defendant was predisposed to commit it. The key inquiry is a subjective one: did the intent to commit a crime originate with the defendant or with the Government. The Supreme Court has held:

[T]he fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and strategem may be employed to catch those engaged in criminal enterprises. . . . The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design: . . . A different question is presented when a criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they prosecute.

Sorrells v. United States , 287 U. S. 435, 441-42 (1932).

The Court has on several occasions reaffirmed this subjective focus on the defendant's predisposition to commit the crime as the essential element of the entrapment defense. See, e.g., Hampton , supra; United States v. Russell, 411 U. S. 423 (1973); Lopez v. United States, 373 U. S. 427 (1963); Sherman v. United States, 356 U. S. 369 (1958).

The determination of where a criminal intent originates, however, is at times difficult, particularly when the Government takes an active role in cultivating the opportunities in which the defendant's criminal intent is allowed to gestate. As Chief Justice Warren stated in Sherman , supra, 356 U. S. at 372, "a line must be drawn between the trap for the unwary innocent and a trap for the unwary criminal." In Sherman , the Court reversed a narcotics conviction because a government informant had persuaded the defendant, who had been attempting to avoid narcotics, to obtain for him a source of drugs. The Court in overturning the conviction stated: "[T]he Government plays on the weaknesses of an innocent party and beguiles him into committing crimes which he otherwise would not have attempted. Law enforcement does not require methods such as this." Id. at 376.

We must accordingly consider whether Bocra possessed an independent criminal disposition to bribe Lemp or whether Lemp in fact induced Bocra to make a bribe he otherwise would not have made. The evidence was highly disputed at trial. Lemp's version of the facts was that Bocra, by providing free lunches and requesting favorable tax treatment, clearly indicated a predisposition to commit bribery. Lemp merely created the opportunity for Bocra to commit the bribe. Bocra's version was that Lemp carefully and purposely set him up by developing a personal relationship and by making direct overtures indicating his interest in taking a bribe.

The question of entrapment depended essentially on the credibility of the witnesses and was properly submitted to the jury which rejected Bocra's defense. Although we believe the question is close and troublesome, we have made a thorough review of the evidence in this case, and we cannot say that as a matter of law the evidence established entrapment. The jury was in the best position to evaluate the credibility of the witnesses, and they quite properly could have rejected Bocra's version of the facts in favor of the version recounted by Lemp. We therefore hold that the defendant has not shown entrapment as a matter of law.

[Fifth Amendment]

IV. Bocra argues that the conduct of Lemp was so egregious that a conviction is barred by the fifth amendment's guarantee of due process of law. He relies on our decision in Twigg, supra, 588 F. 2d at 378-79, which indicated that "although proof of predisposition to commit the crime will bar application of the entrapment defense, fundamental fairness will not permit any defendant to be convicted of a crime in which police conduct was 'outrageous.'" Bocra asserts that the IRS' conduct here, especially since the tax audit was discontinued following the bribe, was so outrageous as to violate due process notions of fundamental fairness.

Bocra's complaint is that Lemp approached him when he had no involvement in any criminal activity, and in essence, Lemp manufactured a crime without any reason to believe that Bocra was about to engage in any criminal activity. He claims that Lemp calculatedly used the IRS audit powers to delay the audit, thereby placing a great strain on the Bocras which was exploited through subtle suggestions that favorable tax treatment could be available at a price.

The Government responds by arguing that Lemp's conduct simply did not rise to the level of the outrageous found in Twigg. In Twigg, the facts were undisputed. A government informant approached the defendant with a scheme for illegal drug manufacturing which the defendant agreed to enter. The Government provided much of the materials necessary for the project and actively participated in the drug manufacture. In the instant case, there is no evidence that the audit was initiated to trap Bocra into making a bribe. The disputed facts at best reveal Lemp's willingness not to cut off any bribe attempt. Although Lemp did not actively discourage a bribe, it is not clear from the record that he induced it.

We do not conclude that Lemp's behavior in this case was so outrageous as to bar conviction on due process grounds of fundamental fairness. We view his actions as significantly less egregious than the Government's activity in Twigg. We accordingly reject Bocra's claim that his conviction must be barred on due process grounds.

[Agent's Conduct]

Nonetheless, we are disturbed by a course of governmental conduct here which appears to prey on the weaknesses of a taxpayer. The primary mission of the Internal Revenue Service is to collect federal taxes, not to encourage a taxpayer to commit crime. Our system of tax collection depends to a very large degree on taxpayer honesty. An attempt to avoid tax liability through bribery is indeed reprehensible, but certain aspects of the agent's conduct in this case also bear comment. Although we are constrained to conclude that Lemp's conduct does not bar the defendant's conviction under the prevailing federal rule of entrapment, we do not condone a government agent's conduct apparently calculated to raise taxpayer's anxiety and to cultivate a climate for potential bribery. We see no reason why there should be undue delays in an audit accompanied by frequent social contact with the taxpayer. There is no justification for the development of a first name relationship with the taxpayer in the course of an audit and the social involvement of the distaff side of the agent's and taxpayer's families to create an ambience which subjects even the honest taxpayer to unnecessary temptation. The agent's duty is to conduct his audit promptly, efficiently, and fairly, not to probe the lack of strength of the taxpayer's character.

V. Bocra raises several other contentions which we have examined and find to be without merit. ⁴ The judgment of the district court will be affirmed.

^* Honorable Caleb R. Layton, 3rd, Senior United States District Judge for the District of Delaware, sitting by designation.

¹ 18 U. S. C. §201(b) (1976):

Whoever, directly or indirectly, corruptly gives, offers or promises anything of value of any public official . . . or offers or promises any public official . . . to give anything of value to any other person or entity with intent--

(1) to influence any official act; or

(2) to influence such public offical . . . to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(3) to induce such public official . . . to do or not to do any act in violation of his lawful duty, . . .

* * *

shall be fined more than $10,000 or imprisoned for not more than two years, or both.

² A "no change" report is one in which the auditor recommends that no additional tax is owed.

³ The first witness, Costello, testified on cross-examination:

Q. To be frank with us, Mr. Costello, you can't remember who first brought up about paying Agent Lemp money; is that correct?

A. I wouldn't be telling the truth if I said I did or he did.

Bocra's second witness, Peirano, was able to testify only that Lemp's silence made him believe a bribe was a possibility and that in fact it was Peirano's accountant who first brought up a bribe possibility.

⁴ Bocra claims the district court erred in admitting evidence of Perth Amboy 's tax deficiency as to show Bocra's motive to bribe: that the court erred in admitting for impeachment purposes evidence of a bribe by Theodore Bocra; that the court erred in allowing admission of his prior arrest for a barroom brawl.

 

 

[63-1 USTC ¶9295]Paul A. Gorin, Defendant, Appellant v. United States of America, Appellee Henry Grillo, Defendant, Appellant v. Same Saul Glassman, Defendant, Appellant v. Same

(CA-1), U. S. Court of Appeals, 1st Circuit, Nos. 5997, 5998, 5999, 313 F2d 641, 2/20/63, Vacating judgment of District Court (opinion unreported) and remanding

[1954 Code Secs. 7213 and 7214(a)(4)]

Interference with administration of revenue laws: Bribery of IRS officer: Entrap ment: Burden of proof.--A conviction of two attorneys and an IRS officer of attempting to bribe the head of the Enforcement Branch of the Regional Counsel's office if he would recommend against prosecution of a fourth individual for tax evasion was reversed on the ground that the trial judge's instruction on the defense of entrapment did not go far enough. It merely informed the jury that the defendants had the burden of proving entrapment, without explaining that the burden of proof was met by a preponderance of the evidence. Since the only burden of proof mentioned in the instruction was that the Government had to prove its case beyond a reasonable doubt, the jury could infer that this standard also applied to the defendants. Other alleged errors as to selection of the jurors, pretrial publicity, examination of prospective jurors, and denial of motions for severance were found to be without merit.

Francis J. DiMento, 75 State St., Boston 9, Mass. (DiMento & Sullivan, 75 State St., Boston 9, Mass., with him on brief), for Gorin; Manuel Katz, 209 Washington St., Boston, Mass. (Paul T. Smith, 209 Washington St., Boston, Mass., with him on brief), for Grillo; James D. St. Clair, 60 State St., Boston 9, Mass. (Blair L. Perry, Hale & Dorr, 60 State St., Boston 9, Mass., with him on brief), for Glassman, appellants. John J. Curtin, Jr., Assistant United States Attorney, Boston, Mass. (W. Arthur Garrity, Jr., United States Attorney, William F. Looney, Jr., Paul A. M. Hunt, Assistant United States Attorneys, Boston, Mass., with him on brief), for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

Opinion of the Court

WOODBURY, Chief Judge:

These three appellants and one Nathaniel Bergman of Hartford , Connecticut , were indicted by a grand jury in the court below on three counts. Count 1 charges the three appellants and Bergman with conspiring (1) to bribe one Charles J. McCaffrey, an employee of the Internal Revenue Service of the United States Department of the Treasury, and (2) to defraud the United States in its governmental functions by depriving it of McCaffrey's conscientions, honest and faithful service in violation of Title 18 U. S. C. §371. Count 2 charges Bergman and the appellants Glassman and Gorin with giving McCaffrey $10,000 with intent to influence his decision and action on a matter at the time pending before him in his official capacity, in short with bribery, in violation of Title 18 U. S. C. §201. Count 3 describes Grillo as a United States officer acting in connection with the revenue laws of the United States and charges him alone with conspiring with the other three, who were named as co-conspirators but not as co-defendants, to defraud the United States in its governmental functions in violation of Title 26 U. S. C. §7214(a)(4).

Following the denial of a number of preliminary motions to be discussed presently, the four defendants were tried by jury on pleas of not guilty, were found guilty as charged and were sentenced. All appealed, but Bergman withdrew his appeal before hearing.

Before the trial began each defendant moved to dismiss the indictment and to strike the entire panel of petit jurors on the ground that both the grand and petit jurors had been improperly selected. The motions were denied after a hearing at which evidence was taken.

[Method of Selecting Jurors]

The evidence adduced shows that the jury commissioners of the United States District Court for the District of Massachusetts selected persons for service as jurors from the jury lists of the various cities and towns in Massachusetts, that the City of Boston was within the part of the district designated by the district court under Title 28 U. S. C. §1865(a) as the source from which the jurors with whom we are here concerned were drawn, and that the Boston Election Commission, the body charged by local law with the annual preparation of jury lists for the City of Boston, picked jurors at random from the lists of registered voters in the various wards of the city and then, by reference to the list of inhabitants prepared annually by the city police department, weeded out those exempt by law because of their occupations, such as clergymen, lawyers or doctors, and following this by personal interviews weeded out those physically or mentally unfit for jury service and those with an inadequate command of the English language. The contention is that the jury commissioners' method of selection, resting as it does in part upon the method of selection used in Boston by the Boston Election Commission (it does not appear whether the same method of selection was used by local authorities in the other cities and towns of the part of the district involved), violates §1861 of Title 28 U. S. C. quoted in material part in the margin ¹ because it automatically excludes citizens who are not registered to vote. The argument is that eligible voters who have not registered constitute a definite group or class in the community, that is to say, an apolitical or politically dormant group, and that exclusion of that class or group from jury service results in juries which do not represent "a cross-section of the community" as required, so it is said, by Thiel v. Southern Pacific Co., 328 U. S. 217, 220 (1946).

The argument rests upon too literal a reading of the phrase quoted above, for it has never been the law that a jury must represent a true cross-section of the community. See Report of the Committee on the Operation of the Jury System to the Judicial Conference of the United States , September 1962 at page 6. Certain groups, as by §§ 1862 and 1863 of Title 28 U. S. C., are and time out of mind have been exempted from jury duty, some for the general public interest, such as public officials or members of the armed forces, and others, such as convicted felons, minors and persons unable to understand the English language, for the effective operation of the jury system. And the Court in the Thiel case clearly recognized the established practice of exempting certain persons from jury service by explaining that what it meant by the sentence wherein it used the phrase "a cross-section of the community" was only that prospective jurors must be selected by court officials without systematic and intentional exclusion of any economic, social, religious, racial, political or geographical group in the community.

For a variety of reasons we reject the argument that eligible persons who do not register to vote constitute a "political" group in the community. In the first place the group does not include only the politically inert. It includes also the politically alert who may perhaps have lived for a year or more in the district but not long enough in their ward to be eligible to register to vote. In the second place, the group has no distinct or definable outlines, for in addition to persons who have just moved into a ward, it includes not only the completely apathetic but also those who might register to vote only when interested in a particular election. It includes persons of varying shades of political interest. And in the third place we think the Court in referring to a political group in the Thiel case meant the members of some defined political party or group.

This does not mean blanket endorsement of jury selection directly or indirectly from voting lists. It means that voting lists may be used as the basis for jury selection unless it appears that in the community there is systematic and intentional exclusion from those lists of a particular economic, social, religious, racial, geographical or political group. When such a showing is made some other basis of selection must be used. Here, however, the appellants have not shown that in Boston any enumerated class is systematically and intentionally discriminated against in registering to vote. Indeed the evidence is quite to the contrary. The appellants' contention fails for lack of any evidence of discrimination in the preparation of the lists of Boston voters. Compare United States v. Hoffa, 196 F. Supp. 25 (S. D. Fla., 1961), with United States v. Greenberg, 200 F. Supp. 382 (S. D. N. Y., 1961).

[Publicity]

Also before trial the appellants severally moved to dismiss the indictment because it had been returned by grand jurors calculatedly prejudiced against them by government-inspired publicity. We think the court below very properly denied the motions.

The appellants characterize the publicity of which they complain as "massive," and describe it as "blanketing" the Commonwealth of Massachusetts . It boils down, however, to news releases printed in local newspapers and repeated in substance over radio and television on August 26, 19 61, the day two of the appellants and Bergman were arrested, and for the next two days, purporting to quote the Attorney General as extolling the vigor, skill and integrity of the Internal Revenue Service and as saying that the Charles J. McCaffrey mentioned in the indictment had reported Glassman's offer to bribe him to his superiors and upon their instructions had pretended to go along with the plan and "is a courageous American and typifies the loyalty and integrity of the men of the Internal Revenue Service."

The appellants admit that their contention "presupposes" that there is either a right under the Fifth Amendment of the Constitution of the United States to be indicted by grand jurors free of calculated government-instigated prejudice or else that proper standards for enforcement of the criminal law in the federal courts sanction only indictment by a grand jury uninfluenced by improper forces generated by the prosecutor. They must also "presuppose" that they do not need to show that in fact the grand jury which indicted them did not perform its sworn duty to act with impartiality but instead was actuated by government-inspired bias and prejudice. We are not prepared to grant these "presuppositions." So far as we are aware, none has the sanction of any decision of the Supreme Court of the United States and all have been rejected in one or another carefully considered opinion of a lower federal court. See United States v. Nunan [56-2 USTC ¶9876], 236 F. 2d 576, 592 et seq. (C. A. 2, 1956), cert. den., 353 U. S. 912 (1957); Beck v. United States [62-1 USTC ¶9227], 298 F. 2d 622 (C. A. 9, 1962), cert. den., 370 U. S. 919 (1962); United States v. Dioguardi [58-2 USTC ¶9541], 20 F. R. D. 33 (S. D. N. Y., 1956); United States v. Hoffa, 205 F. Supp. 710 (S. D. Fla., 1962). But even if we should accept the "presuppositions," which we by no means imply, we would still reject the appellants' contention.

We do not approve of pretrial publicity, particularly when it emanates from prosecuting officials. In the interest of fair trial it is better avoided. But the publicity here complained of was minor. It was not continuous but was pretty much a single-shot affair. And although it related to serious crimes involving corruption of public officials, it did not relate to a spectacular crime likely to arouse strong public emotion, excitement or passion such as murder or rape. Nor did the publicity vilify or heap opprobrium on the appellants. It only endorsed the character, and thereby inferentially the credibility, of the government's principal witness. We do not think the publicity complained of was serious enough to warrant the drastic remedy of dismissing the indictment, if, indeed, that remedy is available at all.

[Motions for Severance]

Pretrial motions for severance were also made and denied and similar motions were repeated intermittently throughout the trial but in every instance denied.

Clearly joinder of the defendants in the indictment was proper under Criminal Rule 8(b). To obtain severance it was, therefore, incumbent on the appellants to make such a strong showing of prejudice as to invoke the discretionary remedy provided in Criminal Rule 14 entitled "Relief from Prejudicial Joinder." This the appellants have undertaken to do for a variety of reasons.

Glassman and Grillo argue for severance for the reason that the testimony of codefendants is essential to their defense and, they say, it is not available to them unless each defendant is tried separately so that they can put co-defendants on the stand. The argument is unrealistic. There is no reason to think that a co-defendant would be any more willing to waive his constitutional privilege against self-incrimination when called as a witness at a separate trial than he would be willing not to insist upon his privilege as a defendant not to take the stand. Moreover, in Olmstead v. United States, 19 F. 2d 842, 847-48 (C. A. 9, 1927), affirmed as to other matters, 277 U. S. 438 (1928), it was held that the inability of a defendant in a conspiracy case to use the testimony of co-defendant in his defense is not enough to show abuse of discretion in refusing a motion for severance.

Another argument for severance was particularly emphasized by counsel for Grillo in the court below. It deserves mention since it applied to some extent to all appellants and was advanced for all in this court. Grillo's argument below was that at the trial he would be confronted with so much testimony of so many acts and statements of other defendants not in his presence and without his authorization or knowledge that in spite of limiting instructions ² the jury could not possibly overcome the prejudicial effect of the testimony or consider his case on its own individual merits.

Grillo's fear is not unfounded. See the late Mr. Justice Jackson's concurring opinion in Krulewitch v. United States, 336 U. S. 440, 445, particularly at 453 (1949). But no case has been cited to us and we are not aware of any holding that it was an abuse of discretion not to grant severance for the reason advanced. While the potentiality of prejudice certainly exists, it is far greater when the number of conspirators involved is large. The prejudice asserted in this case seems pale indeed when compared with the prejudice involved when fifty-nine conspirators were tried without severance in Capriola v. United States, 61 F. 2d 5, 11 (C. A. 7, 1932), cert. den. 287 U. S. 671 (1933), or seventy-five in Allen v. United States, 4 F. 2d 688, 698-99 (C. A. 7, 1925). It is well established that the granting of a motion for severance lies in the discretion of the trial judge. Stilson v. United States , 250 U. S. 583, 585-86 (1919). In the absence of a far stronger showing than is made in this case we would not be warranted in finding that discretion had been abused.

Our function as an appellate court is to examine the record with care to make sure that the trial court minimized possible prejudice. This we have done, and from a reading of the record it seems obvious to us that the trial judge went to no little pains to give appropriate limiting instructions at the outset of the trial, throughout its course, and finally and at length in his charge, which, counsel for Grillo admits in his brief, was "literally correct on this point." We do not believe that it was incumbent on the court below to interrupt the trial with limiting instructions every time the name of an absent co-conspirator was incriminatingly mentioned. In this four-defendant conspiracy case we can repeat what Circuit Judge Hincks said in the eighteen-defendant case of United States v. Stromberg, 268 F. 2d 256, 265 (C. A. 2, 1959), cert. den. 361 U. S. 863 (1959), that is to say: ". . . we think it by no means a task of insuperable difficulty for the jury to comply with the judge's instructions and determine as to each defendant the issue of membership in a single continuing conspiracy on the basis of the independent evidence--i. e., the evidence as to his own acts and admissions."

We come now to the trial itself.

[Examination of Prospective Jurors]

At its outset in accordance with the practice sanctioned by Criminal Rule 24(a) the voir dire examination for prospective jurors was conducted not by counsel but by the court. The appellants do not challenge the practice. And they concede that a trial judge undoubtedly has a "broad discretion as to the questions to be asked" of prospective jurors, subject only "to the essential demands of fairness." Aldridge v. United States , 283 U. S. 308, 310 (1931). ³ Their contention is that the "essential demands of fairness" required the trial judge to ask prospective jurors a variety of specific questions to determine possible bias or prejudice, such as whether they had any prejudice against lawyers or against persons "with income tax problems," whether they would think someone guilty because he had been charged with crime and arrested, whether they would give more credence to a government agent than to a lay witness and whether they would have any prejudice against a client because his counsel objected to the admission of evidence. We see no abuse of discretion in failing to put these questions to prospective jurors. As to these matters the court's general questions coupled with its charge afforded the appellants ample protection.

Particularly, however, the appellants object to the refusal of the court to ask prospective jurors specifically whether they had read or heard of the statement attributed to the Attorney General with respect to the integrity and courage of Charles J. McCaffrey discussed hereinabove, and, if they had, whether the statement would affect their judgment in passing upon McCaffrey's credibility as a witness. The questions were not impertinent. But the court below may well have felt that putting the specific question would call the publicity to mind and perhaps do appellants more harm than good. Under the circumstances of this case, particularly the "one-shot" nature of the publicity, we think the court gave the appellants adequate protection when it allowed jurors to sit upon rceiving a "No" answer to the question: "Are any of the jurors familiar with the facts of this case, either personally or through the press, radio, or television or any other means?"

[Statement of Facts]

We come now to consideration of the facts adduced at the trial.

Nathaniel Bergman was an attorney-at-law practicing in Hartford , Connecticut . In 1959 a special agent attached to the Hartford District Office of the Internal Revenue Service, IRS hereinafter, began an investigation of Bergman's income tax returns for preceding years. Bergman retained local counsel and in February, 1961 he also retained the appellant Paul Gorin, who was a lawyer practicing in Boston in the field of federal taxation. On May 1, 19 61, the Intelligence Division of the Boston Regional Office received the special agent's report of his examination of Bergmen's tax returns recommending criminal prosecution of Bergman and his wife for tax evasion. Regional Intelligence agreed with this recommendation and forwarded the case to the Enforcement Branch of the Boston Regional Counsel's office, wherein lay the duty on review to recommend for or against criminal prosecution in federal tax cases arising in the area.

The head of the Enforcement Branch at this time was the Charles J. McCaffrey to whom we have referred. He had come to Boston from similar duty in San Franciso in July 1959 and by April 1960 had met the appellant Glassman, who was a lawyer in general practice in Boston specializing "more or less" in the law of real property. Both were retired officers of the United States Marine Corps and they first met at an organizational meeting of a Marine Corps Reserve voluntary training unit (hereinafter VTU) consisting of reserve officers who were lawyers. Glassman was the commanding officer of the unit; McCaffrey was the training officer and next in command. Their relationship became cordial.

At this point the testimony diverges rather sharply. Glassman, who took the stand in his own defense, testified that on several occasions prior to the end of May 1961 when he and McCaffrey met socially, or at VTU meetings, or to plan the training program for the unit, they discussed the general nature of each other's work and McCaffrey urged him to take some courses and develop a tax practice, saying that the field was lucrative. Glassman said that he replied: "My practice just hasn't tended toward that," to which McCaffrey answered: "Well, just remember that if you ever do hit a case you've got a good friend up there." Glassman also testified that when he and McCaffrey met at a social function in March 1961 McCaffrey expressed envy when he learned that Glassman was about to go to Europe, said that he wished he and his wife could do the same and commented: "You can't save any money when you're working for the government and have a big family." And Glassman testified that on May 26, 19 61, when he met with McCaffrey to discuss the quarterly training schedule for the VTU McCaffrey again recommended a tax practice as profitable and said: "You know Paul Gorin, don't you?" Glassman said that he answered that he knew Gorin casually, to which he said McCaffrey replied: "He is certainly doing all right for himself. Saul, you should be doing some of that tax work. I am really in a position to help you out. Why don't you see Gorin and tell him you have got a good friend up at Enforcement. I think you can do yourself a lot of good."

McCaffrey agreed that prior to the end of May 1961 he and Glassman had discussed each other's professional work, in the course of which he had learned that Glassman was primarily a real estate lawyer. Furthermore, McCaffrey admitted that he knew that Glassman did not have a Treasury card that entitled him to represent clients before official bodies in the Treasury Department on tax matters, and he also admitted that he had recommended a tax practice to Glassman as profitable and had suggested that Glassman take some tax courses and enter that field. McCaffrey, however, categorically denied making the other remarks attributed to him by Glassman.

We turn now to the critical period of the alleged conspiracy, which began during the last days of May 1961. Glassman testified that he had known Paul Gorin for over ten years and that they were on a first name basis. He said that he happened to meet Gorin casually on May 27 and asked him if he had a tax fraud case that was going to prosecution. Glassman said that Gorin answered: "Yes. What do you know about it?" to which Glassman said he replied: "Nothing, but if you need any help I've got a good friend up in Enforcement I could talk to." Arrangements were then made to discuss the matter further the following week and by appointment they met again on May 31. At that time, according to Glassman, Gorin identified the case he had referred to as a net worth case involving Nathaniel Bergman of Hartford , Connecticut , and asked Glassman if he thought he could "do anything." Glassman said he replied that he did not know but that he had "a good friend up in Enforcement" and that he would speak to his "friend" and "see what he has to say." Gorin asked: "When?" and Glassman replied: "I don't know. As soon as I can. I will call you."

McCaffrey and Glassman agree that Glassman did indeed telephone to McCaffrey on May 31. However their versions of the telephone conversation differ. Glassman said that he told McCaffrey that he wanted to talk about the Bergman case and that McCaffrey replied that the case had been assigned to one of the men in his office but he would look into it and call Glassman. McCaffrey testified that in that telephone conversation Glassman said he wanted to talk about a case but did not identify it, and that the request made him "uneasy" because he knew that Glassman had no power of attorney in any case in his office and therefore had "no right to talk to me about any case." McCaffrey also said that because of his "uneasiness" he did not attend a VTU meeting that night and immediately reported the telephone conversation to a senior attorney in Regional Counsel's office whom he asked to make a memorandum of his disclosure "just in case something happened."

On the next day, June 1, Glassman telephoned McCaffrey again ⁴ and in that conversation, according to McCaffrey, for the first time identified the Bergman case as the one in which he was interested. Both agreed that later in the day Glassman went to McCaffrey's office. Their version of what there transpired differs. Glassman testified that McCaffrey greeted him with the remark, "Well, Saul, I see that you've talked to friend Gorin," and then proceeded to disclose facts and figures of the Bergman case to show that it would be prosecuted on a net worth basis and that it involved a very substantial sum in deficiencies. Glassman said that he asked McCaffrey: "Look, Mac, is this a case I should get involved in? Do you have to recommend prosecution or is this a case that can go either way?" to which he said McCaffrey replied that from what he knew of the Bergman case there had been other cases coming from Connecticut "that looked much worse and we recommended no prosecution." Glassman testified that he told McCaffrey that from the figures disclosed "this looks like a case where I can get a substantial fee if I can do Bergman some good," and that both agreed that they would look into the case further to "see how it shapes up." Glassman also testified that McCaffrey admitted that he ought not to be talking about the case because Glassman had no power of attorney and that when he asked if he should obtain one McCaffrey replied: "If anything develops you can work through Gorin. I know I can always talk to you as a friend."

McCaffrey agreed that he discussed the Bergman case face to face with Glassman on June 1. And he admitted that at the meeting he gave Glassman the amount of civil deficiencies involved in the case and that in doing so he violated the Regulations because Glassman had no power of attorney. Furthermore, he admitted that he would not have discussed the case with Glassman had he been a stranger. But he denied making the remarks attributed to him by Glassman and he said that Glassman in the course of the meeting dropped the remark that in view of the sums involved "there should be enough of a fee in it for all of us." McCaffrey said he replied noncommittally to this remark and that as they parted Glassman said: "I will contact you before I set my fee in this matter."

McCaffrey testified that these remarks so aroused his suspicions that he immediately reported them to his superior officer, the Regional Counsel, saying that he thought Glassman might be intending to offer him a bribe, and that the Regional Counsel because of the doubtful meaning of Glassman's remarks agreed to let McCaffrey handle the matter in his own way. Although McCaffrey's report to his superior should have been in writing, his conduct was otherwise in accord with the Internal Revenue Manual which requires an IRS employee when approached with an offer of a bribe to make such reply as will hold the matter in abeyance and immediately make a full report in writing to a superior.

Meetings and telephone conversations followed between Glassman and Gorin, Gorin and Bergman, Glassman, Gorin and Bergman and Glassman and McCaffrey which do not need to be described in detail. It will suffice to say that on the evidence it might well be found that in the course of them Glassman convinced Gorin and Bergman that he indeed had a friend "up in Enforcement" and that Bergman, Glassman and Gorin were not averse to offering that "friend" a bribe to "kill" the case against Bergman. And there is evidence of remarks made during the first half of June by Glassman to McCaffrey not too subtly hinting that a bribe might be forthcoming if McCaffrey would recommend against prosecuting Bergman for tax evasion, to which, according to Glassman, McCaffrey lent definite encouragement.

[Entrapment]

At any rate on June 15 McCaffrey reported to his superior that he thought Glassman had bribery in mind and also made the same report to the Inspection Service, the internal police force of the IRS charged among other matters with the duty of investigating bribery of IRS employees, which at once sent an inspector to Boston from New York to handle the case. The inspector told McCaffrey under no circumstances to initiate a contact but to "go along" with the persons involved, to meet them whenever they chose and to give them any document they wanted. And he also installed an array of electronic equipment in McCaffrey's office, in his car and at times on McCaffrey himself, whereby conversations in McCaffrey's presence could be recorded. After June 20, all McCaffrey's conversations with Glassman, Gorin and Bergman were electronically recorded with the exception of two telephone calls from McCaffrey to Glassman, one on July 7 and another on July 10, and a conversation on July 27 between Gorin and McCaffrey on a golf course. Other telephone conversations were recorded only on McCaffrey's side. These recordings were introduced into evidence and portions of them were played to the jury.

Further meetings between two or more of the four, McCaffrey, Glassman, Gorin and Bergman, followed, which there is no need to recount in detail. It will suffice to say that the upshot of the meetings was that on June 27 Glassman gave McCaffrey $5,000 in bills in return for a rough draft of a criminal action memorandum, known as a CAM, recommending against prosecution of Bergman for tax evasion, and that on June 28 Glassman gave McCaffrey a like amount in exchange for a finished draft of the document. There is ample evidence that Glassman obtained the money from Gorin who in turn had obtained it from Bergman, and that all well knew the purpose for which the money was to be used. Glassman admitted on the stand that the money was paid to McCaffrey as a bribe.

To state the facts in greater detail would expand this opinion inordinately. Although we might go into far greater detail, we think we have stated enough to show that there was evidence from which the jury could properly find that Glassman, Gorin and Bergman had engaged in the conspiracy charged in the first count of the indictment and had given McCaffrey a bribe as charged in the second count. We also think that we have recounted enough to show a factual basis for the defense, Glassman's sole defense, of entrapment. ⁵

[Evidence Against IRS Officer]

We turn now to the case against Grillo.

Grillo was the Executive Assistant to the Assistant Regional Commissioner, Intelligence, for the Boston Region. As such he was second in command of the IRS unit to which McCaffrey as head of the Enforcement Branch of the Regional Counsel's Office submitted his recommendations against prosecutions for tax evasion. Although Grillo's duties were primarily administrative he assumed the duties of his superior, the Assistant Regional Commissioner, when the latter was not in his office, one of whose duties was to pass upon recommendations against the criminal prosecution of tax evaders.

There is ample evidence of remarks made by Glassman and Gorin, but not in Grillo's presence, to tie him into the conspiracy. For instance, there is evidence that on the afternoon of June 27 when McCaffrey went to Glassman's office to deliver the rough draft of his recommendation against prosecuting Bergman criminally, Glassman asked where the recommendation would be sent and when McCaffrey replied that it would go to the Assistant Regional Commissioner, Intelligence, and mentioned Grillo as a man in that office Glassman said: "That is the man. He has been approached and he is ready for it." And there is evidence that on a later occasion Glassman asked McCaffrey to let him know before the recommendation against prosecution went out in final form "so they can tell Grillo that it's on it's way over and he can grab it." Furthermore, there is evidence that at a meeting in McCaffrey's office on the afternoon of August 14, 19 61, at which McCaffrey, Bergman and Gorin were present, McCaffrey, Referring to Grillo, asked Gorin: "Have you given him anything?" to which Gorin replied: "He has a balance with me of $20,000," and "He has built himself a new house, and I have got about $10,000 worth of furniture in there," and also: "On this case I have given him $1,500, and I promised him $2,500 more if the case is killed." On the same occasion Gorin is reported by McCaffrey to have said that Grillo, or Henry, "gave me information on this case long before it came in here, and before I talked to Bergman about it."

All of this evidence is, of course, quite inadmissible against Grillo unless and until there is independent evidence, that is, evidence of Grillo's own acts or admissions, connecting him with the conspiracy. We find enough such evidence in McCaffrey's account of a meeting in his office on August 15, 19 61, with Gorin and Grillo. At that meeting, after McCaffrey and Grillo had briefly discussed another case, Gorin is reported by McCaffrey to have said that he wanted the others either to know or to remember, that he could not recall which, "that we are here as friends, f-r-i-e-n-d-s," spelling out the last word for emphasis. Following this introduction McCaffrey testified that Grillo said that in his superior's absence he could not act on McCaffrey's memorandum against prosecuting Bergman without getting into "difficulty," perhaps "serious difficulty," that he had not expected such a strong protest to McCaffrey's memorandum from the IRS office in Hartford to which it had been referred and that he was finding it difficult in view of that protest to convince his superior and others in his office to approve McCaffrey's recommendation. And McCaffrey testified that with reference to the criminal prosecution of Bergman, Grillo said: "I would like to see it go by the board more than anyone else." Furthermore, McCaffrey testified, and the electronic recording of the meeting corroborates, that at the meeting Grillo participated actively in the discussion of arguments to advance in answer to the protest from Hartford to McCaffrey's memorandum and at the close of the meeting Gorin said: "Well, Henry, you've got the pitch now. The three of us are working together," to which Grillo replied: "I wish to hell I'd known it before."

Perhaps by straining the jury might have put an innocent interpretation on these remarks and acts of Grillo. But certainly the jury did not have to do so. The above evidence is clearly enough to warrant the jury's finding that Grillo was a participant in the conspiracy.

[Admissibility of Recordings]

The appellants objected below to the introduction in evidence of the tape and wire recordings to which reference has been made. Since the electronic devices used were installed in McCaffrey's office, in his car and on his person, the recordings were not obtained through physical intrusion as in Silverman v. United States, 365 U. S. 505 (1961). Therefore, the appellants do not argue that the recordings were obtained in violation of the Fourth Amendment. Apparently conceding the authority of Goldman v. United States, 316 U. S. 129, 135 (1942), their contention is that the recordings are in so many places inaufible as to be unintelligible and therefore untrustworthy as evidence.

The court below followed the procedure approved in Monroe v. United States, 234 F. 2d 49, 55 (C. A. D. C., 1956), cert. den. 352 U. S. 873 (1956), of having the recordings played in the presence of counsel but not in the presence of the jury in order to rule on possible objections. After hearing the recordings their admissibility lay in the trial court's sound discretion. Monroe v. United States, supra; Cape v. United States, 283 F. 2d 430, 435 (C. A. 9, 1960); Todisco v. United States [61-2 USTC ¶9749], 298 F. 2d 208, 211 (C. A. 9, 1961), cert. den. 368 U. S. 989 (1962). Although we have not listened to the recordings we have read the transcription of them in the record. While it appears that parts of them are inaudible, we cannot say that the parts which are not are without evidentiary value, or that the inaudible parts are so substantial at to make the rest more misleading than helpful. In short, we cannot say that the trial court abused its discretion in admitting the recordings in evidence.

[Burden of Proving Entrapment]

Now we turn to the charge, specifically to the charge on the issue of entrapment.

The court below told counsel at the close of their arguments that it was going "to follow Learned Hand" and charge the jury that the burden was on the defendants to prove inducement. In summing up its general instructions on the issue it did so by saying: "Let me repeat that now. The two questions: Did an agent of the government induce the accused to commit the offense in the indictment? If so, was the accused ready and willing, without persuasion, and awaiting a propitious opportunity to commit the offense? On the first question the accused has the burden of proof. On the second, the prosecution has the burden of proving it beyond a reasonable doubt." ⁶

The appellants concede that the court's formulation of the two questions and its summary of them was correct. But they contend that it was error to case the burden of proving the first question upon them. ⁷ They argue that the defense of entrapment is analogous to the defense of insanity. Wherefore they concede that the government need not offer evidence to disprove entrapment as part of its case in chief. But they say that once they have come forward with substantial evidence of entrapment the burden is on the government to disprove the defense beyond a reasonable doubt.

The Supreme Court has not adverted to the question.

In Sorrells v. United States, 287 U. S. 435 (1932), the Court for the first time recognized entrapment as a defense to a criminal charge, ⁸ saying at page 451:

"The predisposition and criminal design of the defendant are relevant. But the issues raised and the evidence, adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent whom the Government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials. If that is the fact, common justice requires that the accused be permitted to prove it. The Government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue."

And the Court held that when the evidence of the conduct of the government's representatives was conflicting it was error to refuse to submit the issue of entrapment to the jury.

These basic principles were affirmed in Sherman v. United States, 356 U. S. 369 (1958). In that case involving illegal sales of narcotics, the Court at page 371 said: "At the trial the factual issue was whether the informer had convinced an otherwise unwilling person to commit a criminal act or whether petitioner was already predisposed to commit the act and exhibited only the natural hesitancy of one acquainted with the narcotics trade." Then, on page 372, citing with approval and quoting from the Sorrells case, the Court notes that it did not constitute entrapment for government agents merely to afford opportunities or facilities for the commission of an offense but that entrapment occurred "only when the criminal conduct was 'the product of the creative activity' of law-enforcement officials. (Italics supplied.)" Wherefore, the Court said: "To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal."

In drawing this line on the principles outlined in the Sorrells case, the Court in Sherman at page 373 said:

"On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an 'appropriate and searching inquiry into his own conduct and predisposition' as bearing on his claim of innocence."

In short, if an accused asserts that he is a lamb who has been led astray he must be prepared to face evidence that he is a wolf on the prowl.

The above cases clearly sanction Judge Learned Hand's formulation of the two questions of fact presented by the defense of entrapment which the court below followed in its charge to the jury. For convenience they can be called the primary issue of inducement and the rebuttal issue of predisposition. And the cases also clearly indicate, as the appellants herein concede, that to raise the defense of entrapment the burden is upon them to come forward with evidence of inducement. We also assume from the language used as well as by application of general legal principles that the burden is on the government to come forward with evidence of predisposition. The cases, however, do not even indirectly mention the question of burden of persuasion on the issues. Nor do the cases give us guidance to decide the question by indicating the basis upon which the defense rests. ⁹

The lower federal courts have variously allocated the burden of persuasion, usually with little if any helpful analysis. Indeed, in many of the cases it isuncertain whether when speaking of the burden of proof the court is referring to the burden of coming forward with evidence or the burden of persuasion. We shall undertake our own analysis.

The defense of entrapment is certainly analogous to the defense of insanity in that the burden of coming forward with evidence in order to raise the defense rests upon the accused. But at this point we think the analogy ceases.

The defense of insanity asserts that the mental condition of the accused is such that he is incapable of harboring criminal intent. The defense, therefore, negatives an essential element of the crime. And it is fundamental doctrine that the government must prove every essential element of the crime alleged beyond a reasonable doubt. The defense of entrapment, on the other hand, does not negative an element of the crime, or assert that the accused has not engaged in a criminal activity. By the defense the accused may admit his crime, as Glassman did on cross-examination when he admitted that he gave McCaffrey $10,000 "as a bribe," or he may rely upon his right to require the government to prove the case against him beyond a reasonable doubt, and in either event ask to be relieved of its consequences because of the unsavory tactics of representatives of the government. ¹⁰ Stated another way, the defense of entrapment is not interjected to establish the absence of an essential element of the crime but to present facts collateral or incidental to the criminal act to justify acquittal on the ground of an overriding public policy to deter instigation of crime by enforcement officers in order to get a conviction. ¹¹ Since by the defense the accused is asking to be relieved of the consequences of his guilt, if found or admitted, by objecting to the tactics of the representatives of the government, we think that one who raises the defense should be required not only to come forward with evidence but should also be required to establish inducement by a preponderance of the evidence.

We think reason commends this conclusion. And it is in accord with §213 entitled Entrapment, Subsection (2), of the Proposed Official Draft of the American Law Institute's Model Penal Code, dated May 4, 19 62, which provides with an exception not here material that "a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment." See also the discussion of this provision in Tentative Draft No. 9, of the Model Penal Code, supra, 1959, at the bottom of page 20 and the top of page 21.

We think the charge of the court below was correct as far as it went. It did not, however, in our opinion, go far enough, for it did not tell the jury anything about the quantum of the proof required. It merely informed the jury that the accused had the burden of proof" without explaining that the burden was met by proof by a preponderance of the evidence.

Although this omission was brought to the court's attention after the charge, it did not see fit to elaborate. We think this was prejudicial error. The only burden of proof mentioned anywhere in the charge was the burden on the government to prove the essential elements of its case beyond a reasonable doubt. But from this we cannot assume, as the government argues, that the jury would apply this standard only to the government's case and never to the defendants'. On the contrary we think that since proof beyond a reasonable doubt was the only standard mentioned, the jury would naturally infer in the absence of instruction otherwise that when "burden of proof" was mentioned that was the standard they were to apply, not only to the government but also to the defendants. There must be a new trial as to all three appellants. ¹²

Many other questions have been argued on these appeals. We pass them for various reasons, some for insubstantiality, and others because they are unlikely to arise at another trial or at least are unlikely to arise in the same form or in the same context.

Judgments will be entered vacating and setting aside the judgments of the District Court and remanding the cases to that Court for a new trial.

¹ "Any citizen of the United States who has attained the age of twenty-one years and who has resided for a period of one year within the judicial district, is competent to serve as a grand or petit juror. . . ."

² That is to say, instruction that such testimony is not admissible as against Grillo until the government has first established not only the existence of a conspiracy but also Grillo's membership in it.

³ In this case there is no question of racial prejudice, as in Aldridge, or as in Frasier v. United States, 267 F. 2d 62, 66 (C. A. 1, 1959).

⁴ This is McCaffrey's version. Glassman testified that McCaffrey called him, said that he had the Bergman files on his desk and that Glassman could come over "anytime."

⁵ We reject the government's contention that there was no adequate evidence from which the jury could find that Gorin and Glassman had been entrapped and we also reject the latter's contention that the evidence shows entrapment as a matter of law.

⁶ Judge Learned Hand, writing for his court in United States v. Sherman, 200 F. 2d 880, 882-83 (C. A. 2, 1952), said: "Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it."

⁷ They, of course, do not complain of the charge as to the burden of proof on the second question.

⁸ It also held that the defense did not have to be pleaded in bar but could be raised under the plea of not guilty.

⁹ See Mr. Justice Frankfurther's opinion concurring in the result in Sherman , in which Justices Douglas, Harlan and Brennan concurred, page 378.

¹⁰ It is inconsistent for an accused to take the stand and deny the commission of the crime charged and then assert his right to a charge on the defense of entrapment. See Sylvia v. United States, decided by this court January 22, 19 63. However, where there is evidence of governmental inducement, it is not fatally inconsistent for an accused to keep silent in the hope that the jury will not find that the government has proved its case beyond a reasonable doubt, but ask that the jury be charged on the defense of entrapment if it should find the commission of the allegedly criminal acts. The law allows this much inconsistency. See Henderson v. United States , 237 F. 2d 169, 172-73 (C. A. 5, 1956).

¹¹ See the separate opinion of Mr. Justice Roberts, Mr. Justice Brandeis and Mr. Justice Stone concurring, in Sorrells v. United States 287 U. S. 435, 456 et seq.

¹² We find no adequate support for the government's contention that Grillo waived entrapment as a defense and is estopped from asserting it now.

 

[64-2 USTC ¶9845]Henry Grillo, Defendant, Appellant v. United States of America, Appellee Saul Glassman, Defendant, Appellant v. Same Paul A. Gorin, Defendant, Appellant v. Same

(CA-1), U. S. Court of Appeals, 1st Circuit, Nos. 6256, 6262, 6264, 336 F2d 211, 9/17/64, Affirming an unreported District Court decision

[1954 Code Secs. 7213 and 7204(a)(4)]

Interference with administration of revenue laws: Bribery of IRS officer: Entrapment: Miscellaneous assignments of error.--Following a second conviction (after remand on the issue of entrapment), the court overruled miscellaneous assignments of error in the conviction of bribery of an IRS officer, including the charge that evidence was wrongfully admitted and that an improper search was permitted.

Manuel Katz, Paul T. Smith, 209 Washington, Boston, Mass., for Henry Grillo; James D. St. Clair, Hale and Dorr, 60 State St., Boston, Mass., for Saul Glassman; Francis J. DiMento, 75 State, Boston, Mass., for Paul A. Gorin, appellants. W. Arthur Garrity, Jr., United States Attorney, John J. Curtin, Jr., William F. Looney, Jr., Assistant United States Attorneys, Boston , Mass. , for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

Opinion of the Court

WOODBURY, Chief Judge:

This court on a previous appeal considered and rejected a number of contentions advanced by these appellants. We remanded, however, for a new trial for what we considered to be an error in the charge with respect to the burden of proof on the issue of entrapment. Gorin v. United States [63-1 USTC ¶9295], 313 F. 2d 641 (C. A. 1, 1963). At the second trial and court charged in accordance with our opinion but the appellants fared no better and they have again appealed.

We reaffirm our previous holdings. Only a few matters require consideration on this appeal.

[Entrapment Was Properly Before Jury]

In our opinion on the previous appeal we set out the charges laid against these defendants-appellants and the facts adduced at the first trial in some detail. Repetition here would serve no useful purpose. It will suffice to say that entrapment was a principal if not the major issue at both trials. On the previous appeal the appellants contended that the evidence established entrapment as a matter of law whereas the government contended that the evidence failed even to raise the issue. We rejected both contentions and agreed with the district court that the evidence as to entrapment raised an issue for the jury. The same contentions are presented on this appeal and again we reject them. The principal difference between the evidence at the two trials is that the defendant Glassman elected to testify at the first trial but did not take the stand at the second. This weakened the evidence of entrapment. Perhaps it weakened that evidence to the point of supporting the government's contention. But we can give the appellants the benefit of the doubt, as the district court did by submitting the issue to the jury a second time.

Another contention now advanced is that the court delow erred in not striking and withdrawing from the consideration of the jury certain alleged overt acts on the ground that the evidence established that the alleged conspirators who perpetrated the acts had been entrapped into committing them. We reject the contention. The most that can be said of the evidence is that the government agents left the door unlocked for the perpetrators of the acts to lift the latch and walk in. That is not entrapment.

Another contention is that the court below erred in admitting in evidence a verbatim copy of notations on a piece of yellow paper found in Glassman's possession when he was arrested.

[Evidentiary Considerations]

Glassman was taken into custody on a warrant of arrest, the validity of which is not challenged, by an inspector of the Internal Revenue Inspection Service of the United States Treasury Department and a Deputy United States Marshal. The arresting officers took Glassman to the United States Marshal's office in Boston and asked him to put his personal effects on a desk. Glassman complied. The inspector then asked Glassman to empty the contents of his wallet. Glassman did so in part but the inspector, noticing that some papers were still in Glassman's wallet, asked to see them all. Glassman said that the papers remaining in his wallet were personal and unimportant, but the inspector said he would like to seem them anyway. Thereupon Glassman produced a sheet of yellow paper with figures and notations on it showing the division of Bergman's fee between the alleged conspirators and the dates and amounts of the payments made by Glassman to McCaffrey as sated in our previous opinion. The inspector copied the yellow paper verbatim and the copy was admitted in evidence over the appellants' objections.

[No Illegal Search]

The appellants do not contend that the search of Glassman's person upon his arrest was illegal. Nor can they. "Where one had been placed in the custody of the law by valid action of officers, it was not unreasonable to search him." United States v. Rabinowitz, 339 U. S. 56, 60 (1950), citing Weeks v. United States, 232 U. S. 383, 392 (1914).

Their contention is that the yellow paper was a private document wanted only as an item of evidence to aid in obtaining a conviction and as such could not be lawfully seized under the rule of United States v. Lefkowitz, 285 U. S. 452 (1932), and similar cases. We do not agree. It seems to us that the memorandum was as admissible in evidence as the books of account and utility bills held properly admitted in Marron v. United States, 275 U. S. 192 (1927), or the false documents held admissible in Abel v. United States, 362 U. S. 217 (1960). But however that may be, there was no rummaging about for the paper as in Lefkowitz. The agent saw papers remaining in Glassman's wallet and Glassman handed the yellow paper over voluntarily by acceding without objection to the officer's civil request to look at it. There is no evidence that the arresting officers used any threats or held out any promises of reward to obtain the paper or to copy it. Nor can it be assumed that Glassman handed over the paper in ignorance of his rights, or that he was intimidated by the mere request of the officers. Glassman was a member of the Massachusetts Bar and a colonel in the United States Marine Corps Reserve. If he had any right to refuse inspection of the yellow paper, he waived it by voluntarily giving the paper to the officer.

The appellants' objections to the admission and exclusion of evidence present no questions of substance whatever. The rulings made were either clearly correct as a matter of law or well within the discretion of the district judge. Discussion of the rulings in detail would serve no useful purpose.

Judgment will be entered affirming the judgments of the District Court.

 

 

 

[80-2 USTC ¶9652] United States of America , Plaintiff-Appellee v. George H. Badger and Betty M. Mildenhall, Defendants-Appellants

(CA-10), U. S. Court of Appeals, 10th Circuit, No. 78-1935, No. 78-1936, 3/4/80 , Affirming unreported District Court decision

[Code Sec. 7212]

Interference with the administration of the Internal Revenue laws: Bribery of an agent.--The convictions of a taxpayer who was under investigation for criminal violations of federal tax laws and an IRS typist on charges of bribery of an IRS agent and aiding and abetting were affirmed and their motion to suppress evidence obtained through IRS monitoring of their telephone and nontelephone conversations was properly denied. The IRS substantially complied with all relevant electronic monitoring regulations. Further, the defendants were not entitled to entrapment instructions at trial because they denied that they had the requisite intent to commit bribery.

Ronald L. Rencher, United States Attorney, Max D. Wheeler, Assistant United States Attorney, Salt Lake City, Utah 84101, for plaintiff-appellee. Glenn C. Hanni, Robert A. Burton, Strong & Hanni, 9 Exchange Place, Salt Lake City, Utah 84111, for George H. Badger. Sumner J. Hatch, Hatch & McCaughey, 72 East 400 South Street, Salt Lake City, Utah 84111, for Betty M. Mildenhall.

Before DOYLE, BREITENSTEIN and MCKAY, Circuit Judges.

BREITENSTEIN, Circuit Judge:

Defendants-appellants were jointly charged in a one-count indictment with violation of 18 U. S. C. §201(b)(1) and (2), bribery of public official, and 18 U. S. C. §2, aiding and abetting. The jury found each guilty and each appeals. We affirm.

Defendant Badger was under investigation for possible criminal violations of the federal tax laws. Thomas L. Harkness, the IRS special agent in charge of the investigation, suspected defendant Mildenhall of misconduct and so informed his supervisor. The ensuing observations of the two defendants included electronic surveillance of various conversations.

The IRS regulations provide that telephone conversations may be monitored with the approval of a regional IRS officer. The monitoring of nontelephone conversations requires approval at both national and regional levels. Provision is made for authorization in emergency situations. United States v. Caceres , 440 U. S. 741, 744-746.

The monitoring related to both telephone and nontelephone conversations. Defendants asserted that such monitoring violated various IRS regulations, and filed a motion to suppress. After a lengthy evidentiary hearing, the court found that IRS substantially complied with all relevant regulations and denied the motion to suppress. In Caceres the question related to the suppression of evidence obtained by electronic surveillance which was conceded to violate the IRS regulations. The Court held that such evidence was not to be excluded because of the violation of regulations. The Court said, Id. at 754-755:

"In view of our conclusion that none of respondent's constitutional rights has been violated here, either by the actual recording or by the agency violation of its own regulations, our precedents enforcing the exclusionary rule to deter constitutional violations provide no support for the rule's application in this case."

In Caceres the regulation violations were conceded. In the case at bar, they are not and the trial court found substantial compliance. Caceres controls. The motion to suppress was properly denied and the evidence was properly received.

The defendants claim error because of the refusal of the trial court to instruct on entrapment. It must be recognized that entrapment is a relatively limited defense, rooted "in the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the Government." United States v. Russell, 411 U. S. 423, 435. After reviewing Sorrells v. United States, 287 U. S. 435, and Sherman v. United States, 356 U. S. 369, the Court said that these two cases recognize "that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution." Russell, 411 U. S. at 435. Citing Lewis v. United States, 385 U. S. 206, 208-209, the Court said that the mere fact of deceit will not defeat a prosecution, "for there are circumstances when the use of deceit is the only practicable law enforcement technique available." 411 U. S. at 435-436. In Russell the Court declined to overrule the holding of the prior cases that "the principal element in the defense of entrapment was the defendant's predisposition to commit the crime." 411 U. S. at 433.

With these principles in mind, we examine the record. Through an interview with Tatum, a geologist who had done some work for Badger, Harkness became aware of a possible leak of information in the Badger investigation. Harkness suspected Mildenhall, a typist in the IRS Salt Lake City office. He knew that Badger and Mildenhall were acquainted. On September 15, 1977 , Mildenhall whispered to Harkness that Badger would be willing to pay $100,000 to have the investigation closed and that payment could be arranged through Badger's "Swiss banking friends." Harkness immediately reported this incident to his supervisor and made a memorandum covering it.

Arrangements were made for the interception of telephone calls and the electronic monitoring of nontelephonic conversations. Harkness and Mildenhall had previously complained to each other about their supervisor. Harkness was instructed to call Mildenhall on a tapped telephone and discuss their problems with the supervisor, but not to mention a bribe. The telephone call was made and in the course of the conversation Mildenhall said, "You ought to go and make a deal with George [Badger]." Harkness testified further with reference to the telephone conversation:

"A. We discussed the case a little further and then she said, 'Now you wouldn't be willing to take a bribe, would you, Tom?' and I said, 'Well I don't know, I really wouldn't--I didn't know.'

Q. Did you initiate any discussion about the bribe during that second conversation?

A. No. I did not.

Q. What was the first word mentioned about this bribe or about a payoff first?

A. She said that I should go to George and make a deal with him."

Subsequently, Mildenhall arranged clandestine meetings of herself, Badger, and Harkness. On September 20 the three met in Mildenhall's home. The conversations were recorded. Badger suggested several ways in which Harkness might be rewarded, and asked how he could know whether the case was closed and Harkness said, "Really the only way you could know if either you had a copy of the final closing report or if Betty told you that the case was closed."

Harkness testified that later Mildenhall said that Badger was going to pay him, Harkness, $20,000 to close the criminal case. With knowledge of his superiors, Harkness prepared a fictitious closing report, and showed it to Mildenhall.

On September 29, Harkness, outfitted with electronic recording equipment, met in Mildenhall's home with her and Badger. Badger placed 10 $100 bills on a table and said, "It would be best if he delivered the other $19,000 to a Swiss bank account so that there would be no record of it." Harkness gave a copy of a closing report to Mildenhall who handed it to Badger. Mildenhall then gave the $1,000 to Harkness, saying, "Here's your money." The statements of the parties at this meeting were all recorded.

IRS agent DeBoer identified the tapes of the telephonic and nontelephonic conversations and they were received in evidence. The defendants were arrested in Mildenhall's home and the 10 $100 bills confiscated.

Badger did not testify at the trial. The only witness in his behalf was Gilchrist, an accountant, who testified that with Badger's knowledge and approval he gave various documents to the IRS agents who were investigating Badger. During the argument on the instructions, counsel for Badger said:

"Your honor, since we were last in session here I have been out talking with my client, talking with my associate, Mr. Burton, and while we do not agree with the Court's interpretation of what the Tenth Circuit law is, we do not want for the record to say that defendant Badger is prepared to admit that he did do all the acts that were necessary to constitute the crime of bribery but that he lacked the requisite intent because he was entrapped and we renew our request then that the Court in light of that give the entrapment instruction." (Emphasis supplied.)

Mildenhall testified in her own behalf. With reference to her September 15 conversation with Harkness, Mildenhall said that Harkness asked, "Do you think George [Badger] would make a deal with me?" She replied, "Sure, why don't you get him to give you $100,000. Maybe he'll set you up a Swiss bank account." She further testified that her remark was made "jokingly" and was "flippant." She got in touch with Badger and arranged for him and Harkness to meet in her home on September 20th. She further said that she thought that the discussion between Harkness and Badger was friendly and related to help that Badger might give Harkness to leave IRS and enter the private practice of accountancy. She denied handing the money to Harkness at the September 29 meeting and said that she thought that it was a retainer for CPA work. The trial court summarized Mildenhall's position thus:

"* * * she also denies any wrongdoing, and purpose of wrongdoing.--She thought that it was all legitimate and proper."

Each defendant requested an instruction on entrapment. The government does not question the form of the requested instruction. The argument of each defendant is that the denial of the requisite intent does not preclude an entrapment instruction. The court refused to give the entrapment instruction saying that it was bound by the decision of the Tenth Circuit in Munroe v. United States, 10 Cir., 424 F. 2d 243.

In Munroe, the defendants admitted the acts and denied the intent, saying that they believed the acts to be legal. An en banc court considered the case and without any dissent held that the defendants were not entitled to entrapment instructions, saying, Id. at 244:

"The law is well settled in this circuit that if the defendant denies the commission of the crime charged, the defense of entrapment is not available to him. Appellants urge that, in this case, because they do not deny the making of the [drug] sales, the above entrapment rule should not be applied. We cannot agree."

We perceive no controlling distinction between Munroe and the situation presented by the instant defendants. At the most they, as did the Munroe defendants, contest the illegality of the pertinent acts. Munroe was an en banc decision of this court. The panel hearing this case cannot overrule an en banc decision of the court.

The defendants say that in the Tenth Circuit the law on entrapment is unclear. See discussion in United States v. Shameia, 6 Cir., 464 F. 2d 629, 630, cert. denied 409 U. S. 1076, and compare Martinez v. United States, 10 Cir., 373 F. 2d 810, 811-812, with United States v. Gurule, 10 Cir., 522 F. 2d 20, 23. Specifically, defendants contend that Munroe is wrong and must be reconsidered in the light of such cases as the en banc Ninth Circuit decision in United States v. Demma, 9 Cir., 523 F. 2d 981. Any reconsideration of Munroe must be by the court en banc.

Affirmed as to each defendant.

Dissenting Opinion

MCKAY, Circuit Judge, dissenting:

Earlier in the consideration of this case, I concurred in the court's opinion and disposition because I believed it was unnecessary at this stage to reach the question of whether Munroe v. United States, 424 F. 2d 243 (10th Cir. 1970) (en banc), should be reexamined. On further reflection, I have concluded that an abridged statement of my views should be set forth at this time rather than deferred to some uncertain time in the future. My views lead me to the conclusion that the disposition reached by the majority is incorrect, although I confess that only the en banc court, not this panel, has the authority to reach the correct result.

The controlling issue for me is the availability of the entrapment defense where a defendant admits all of the conduct but denies the requisite criminal intent. It is true that in Munroe this court held that the intent as well as other elements must be admitted before the instruction may be given. ¹ Unfortunately, none of the Supreme Court or Tenth Circuit antecedents of Munroe involved facts which would test the analytical difference between the admission of the general conduct and the admission of criminal intent. ² They did of course use unnecessarily sweeping language which in effect said "all elements" must be admitted for the assertion of the entrapment defense. While the en banc Tenth Circuit may well have considered those analytical differences, the opinion on its face does not reveal that process, but rather clearly appears to rely on the language of those earlier cases. If we attempt to rationalize the required admission of criminal intent with the giving of an entrapment instruction, I do not believe we can continue to adhere to the rule of Munroe.

The defense of entrapment historically and analytically is precisely a challenge to the existence of intent. What it says is that the person did not have the requisite criminal intent until the government overcame his will. Thus the only intent in the case legally becomes the government's, not the defendant's. It defies logic to suggest that one must admit the criminal intent when the legally acknowledged defense is that the intent-forming mechanisms were overcome by the wiles of the government. It is one thing to require the admission that the party was conscious of the physical conduct being engaged in and that he consciously pursued that course of conduct; it is quite another to admit that his frame of mind met the standards of criminal intent defined in our cases. It is clear that the latter is the only admission that the defendants in this case refused to make. A conclusion that admission of intent is a prerequisite to the entrapment defense is not only illogical, but leads to the mischief of confusing instructions to juries. In effect they will be instructed on the elements of intent, followed by an instruction that the defendant has admitted the elements of that intent, followed by another instruction that the defendant denies the voluntary formation of that intent because his will was overcome by the government. For these reasons and the reasons more fully explored by the Ninth Circuit in United States v. Demma, 523 F. 2d 981 (9th Cir. 1975), I believe this case should be set en banc and that Munroe should be overturned insofar as it fails to make the essential distinction between the admission of criminal intent and the admission of the other elements of the charged crime as a prerequisite to asserting the entrapment defense.

¹ Munroe apparently also requires an admission that the committed acts were illegal in order to assert the entrapment defense. Intent as it is usually understood--i. e., intent to perform the specific acts--had been conceded, but Munroe denied that his actions constituted crimes. 424 F. 2d at 244.

² For example, in Sorrells v. United States, 287 U. S. 435 (1932), the first Supreme Court entrapment case, scienter was not even an element of the alleged offense. In Sherman v. United States, 356 U. S. 369 (1958), a government informer's own testimony established the existence of entrapment as a matter of law. In Martinez v. United States, 373 F. 2d 810 (10th Cir. 1967), the defendant received an entrapment instruction. Rowlette v. United States, 392 F. 2d 437 (10th Cir. 1968), merely quotes conclusory language from Martinez . In United States v. Freeman, 412 F. 2d 1181 (10th Cir. 1969), the defendant had denied the physical conduct alleged in the indictment. United States v. Russell, 411 U. S. 423 (1973), the foremost post-Munroe statement of the Supreme Court, merely reemphasized that the focus in entrapment cases is on the defendant's predisposition to commit the crime, not on the government's overall involvement in the criminal scheme.