Marbs v. United States, 15735

• Citation: 250 F.2d 514
• Decision Date: 20 January 1958
• Docket Number: No. 15735,15736.,15735
• Parties: Oliver MARBS, Appellant, v. UNITED STATES of America, Appellee. Emil SARKIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

250 F.2d 514 (1957)

Oliver MARBS, Appellant, v. UNITED STATES of America, Appellee.

Emil SARKIS, Appellant, v. UNITED STATES of America, Appellee.

Nos. 15735, 15736.

United States Court of Appeals Eighth Circuit.

December 27, 1957.

Rehearing Denied January 20, 1958.

Merle L. Silverstein, St. Louis, Mo. (Rosenblum & Goldenhersh, St. Louis, Mo., were with him on the brief), for appellant Oliver Marbs.

Norman S. London, St. Louis, Mo. (Mark M. Hennelly, St. Louis, Mo., was with him on the brief), for appellant Emil Sarkis.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo. (Harry Richards, U. S. Atty., Wayne H. Bigler, Jr., and Robert E. Brauer, Asst. U. S. Attys., St. Louis, Mo., were with him on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTERHOUT, Circuit Judges.

GARDNER, Chief Judge.

Appellants Oliver Marbs and Emil Sarkis with one William C. Schulze were indicted on an indictment containing three counts. The first count charged appellants Marbs and Sarkis with offering a bribe to a United States Internal Revenue Agent, the second count charged appellants Marbs and Sarkis with giving such bribe to said agent, while the third count charged Marbs, Sarkis and Schulze with conspiring to offer and give such bribe. At the close of the government's testimony the government dismissed Count I of the indictment as to appellant Sarkis alone.

At the close of all the testimony each of the appellants and the defendant Schulze moved for judgment of acquittal, which motions were denied. The jury found appellant Marbs guilty as charged on all three counts, appellant Sarkis guilty on Counts II and III, and defendant Schulze guilty on Count III of the indictment. After verdict each of the defendants moved for judgment of acquittal notwithstanding the verdict or in the alternative for a new trial. These motions too were denied and judgment and sentences were thereupon entered pursuant to the verdicts of the jury.

The defendant Schulze has not appealed. The appellants have filed separate briefs. Appellant Marbs seeks reversal on the ground of entrapment. Appellant Sarkis seeks reversal on substantially the following grounds: (1) the court erred in admitting evidence of acts and declarations of alleged co-conspirators and in failing to instruct the jury to disregard such testimony, and (2) the court erred in denying his motion for judgment of acquittal interposed at the close of all the evidence and his motion for judgment notwithstanding the verdict or in the alternative for a new trial.

In his brief appellant Marbs does not challenge the sufficiency of the evidence to warrant the jury in finding him guilty as charged on all three counts of the indictment. He, however, contends that the court erred in its instructions to the jury on the question of entrapment. On the question of entrapment the court instructed the jury as follows:

"Defendant Marbs in this case has claimed that he was entrapped into doing the acts charged against him. Entrapment is recognized as a valid defense available to a person charged with the commission of a public offense under certain circumstances.

"If you find that a criminal design originated in this case, not with the defendants, but was conceived in the minds of the government witnesses, and the defendant Marbs was by persuasion, deceitful representation or inducement lured into the commission of a criminal act, then you should return a verdict of not guilty as to defendant Marbs. On the other hand, if you find that the criminal design, if there was one, originated with one or more of the defendants, then the defense of entrapment does not apply.

"Defense of an unlawful entrapment has been claimed by defendant Marbs. The Government has the burden of proving beyond a reasonable doubt that there was not an unlawful entrapment."

It is contended by Marbs that although the evidence was sufficient to prove that the criminal design originated with him there was evidence warranting the jury in finding that he abandoned this design and that thereafter the government agents induced him to execute his original design. An examination of the objection to the instruction interposed reveals that the question now argued was not specifically raised by the objection interposed. Nothing in the objection suggests that the court omitted to instruct the jury on the question of appellant Marbs' alleged abandonment of his design. The objection contains the following words:

"Defendants object to the giving of Government\'s Requested Instruction No. 4, on the grounds that that instruction eliminates the defense of entrapment, and even though the Court subsequently instructed the jury on the defense of entrapment that particular portion was omitted from this instruction which is in effect a verdict directing instruction on Count Two of the Indictment.

"* * * * * *

"The defendant Marbs will also object to the giving of the instruction on entrapment, it was unnumbered, because the instruction is inadequate to completely cover the defense particularly in that it excludes the application of entrapment on a certain contingency stated in the instructions, which contingency in and of itself is not sufficient to render the defense non-applicable."

Just what may have been in the mind of counsel in interposing the objection that "the instruction is inadequate to completely cover the defense particularly in that it excludes the application of entrapment on a certain contingency stated in the instructions, which contingency in and of itself is not sufficient to render the defense non-applicable" is not apparent. Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A.; McDonough v. United States, 8 Cir., 248 F.2d 725; McKenna v. United States, 8 Cir., 232 F.2d 431; Armstrong v. United States, 8 Cir., 228 F.2d 764; Schuermann v. United States, 8 Cir., 174 F.2d 397. Rule 30 of the Federal Rules of Criminal Procedure, supra, in part provides that:

"* * * No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."

This objection certainly did not call to the attention of the court nor opposing counsel that the instruction was objectionable because it did not cover the possibility that the appellant Marbs after having originated the criminal design may have repented. It is to be observed too that no instruction was requested specifically covering the question of alleged abandonment of his original criminal design. Conceding that "no specific case in point can be offered to the Court in support of appellant's contention", he cited the following authorities as enlightening by way of analogy: Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Butts v. United States, 8 Cir., 273 F. 35, 18 A.L.R. 143; Newman v. United States, 4 Cir., 299 F. 128. Since the case was submitted appellant Marbs calls our attention to the recent case of United States v. Klosterman, 3 Cir., 248 F.2d 191, 192, and great reliance is placed on this decision. The case is very readily distinguishable in its facts from the instant case. For instance, the issue presented in United States v. Klosterman, supra, is stated by the court as follows:

"* * * whether the criminal intent proceeded from government agents or whether these agents simply afforded opportunities to those already disposed to the alleged criminality."

Conceding that the issue of entrapment is usually a jury question the court states that the question becomes one of law where the evidence points to only one conclusion. In the course of the opinion it is said, inter alia:

"The inordinate amount of persuasion of Deeney by King indicates two elements in this case. It clearly discloses that Deeney was sincere in his attempt to abandon his original plan. It shows also that the criminal design and intent for the commission of the actual bribery originated not with him but rather with the government agents who engineered the persuasion and solicitation." (Italics supplied.)

Again, the court said:

"We do not think that the degree of persuasion is significant where the first approach is made by the agent of the law to an apparently innocent man."

It is very clear that the criminal design in United States v. Klosterman, supra, originated not with the defendant but with the government agents. After defendant there had been induced to enter the scheme by government agents he then attempted to withdraw. In the instant case, however, there is nothing to indicate that the original criminal design was that of the government agents and, as heretofore noted, it is conceded that the testimony was sufficient to warrant the jury in finding that the criminal design originated with appellant Marbs and we must assume that the jury so found. Neither is there any evidence supporting the contention that Marbs repented or by act or deed indicated that he had abandoned his original criminal design. It was he who delivered the bribe money, which he had presumably secured from appellant Sarkis, to the government agent. We think the court's instruction here challenged correctly stated the applicable law. The authorities cited by appellant Marbs are not to the contrary.

It is to be noted too that Marbs was convicted on Count I of the indictment of offering a bribe to an Internal Revenue Agent. There is not a scintilla of evidence indicating that he was entrapped into committing this offense; neither was there any evidence tending to show that he was entrapped into conspiring to offer the bribe as charged in Count III of the indictment upon which he was convicted and as one sentence was imposed against him on all counts, which sentence was within the maximum permissible for any of the separate counts and as the conviction was clearly sustainable as to Counts I and III, the judgment should be...