373 U.S. 427 (1963), 236, Lopez v. United States

Docket Nº:No. 236
Citation:373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462
Party Name:Lopez v. United States
Case Date:May 27, 1963
Court:United States Supreme Court

Page 427

373 U.S. 427 (1963)

83 S.Ct. 1381, 10 L.Ed.2d 462



United States

No. 236

United States Supreme Court

May 27, 1963

Argued January 14, 1963




In a Federal District Court, petitioner was convicted of attempting to bribe an Internal Revenue Agent in violation of 18 U.S.C. § 201. The Agent was investigating possible evasion of excise taxes on cabarets. On a visit to petitioner's inn, the Agent saw dancing in the bar and lounge, spoke to petitioner about it, and suggested that the inn might be liable for a cabaret tax. According to the Agent's testimony, petitioner suggested, after some discussion, that the Agent could drop the case, gave him $420, and promised more in the future. Petitioner also promised to file a return for the current quarter, and invited the Agent to return a few days later. When he kept that appointment, the Agent carried with him a pocket wire recorder which recorded his conversation with petitioner. The Agent produced an excise tax return form and started to explain it. Petitioner told the Agent that he wanted the Agent to be on petitioner's side, gave him some money, and promised more. At the trial, the Agent testified concerning his conversations with petitioner, and his testimony was corroborated by the admission in evidence of the recording of the last conversation. Petitioner's counsel did not request acquittal on the ground of entrapment, request any instruction on that subject, or object to the instructions actually given. He did object to the admission in evidence of the recording of the Agent's conversation with petitioner, on the ground that it was inadmissible as the fruit of a fraudulent entry into petitioner's private office in violation of the Fourth Amendment.


1. On the record in this case, entrapment was not shown as a matter of law; and, if there was any error in the trial court's instructions on this subject, it was not reversible error. Pp. 434-437.

2. Both the Agent's testimony pertaining to his conversation with petitioner and the wire recording of that conversation were properly admitted in evidence. Pp. 437-440.

(a) The Agent was not guilty of an unlawful invasion of petitioner's office in violation of hi rights under the Fourth Amendment

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simply because his apparent willingness to accept a bribe was not real. Pp. 437-438.

(b) The secret making of the wire recording of the conversation did not violate petitioner's rights under the Fourth Amendment. Pp. 438-439.

(c) This Court should not, in the exercise of its supervisory powers, prevent the introduction of the recording in evidence, since there was no manifestly improper conduct by federal officials. P. 440.

305 F.2d 825, affirmed.

HARLAN, J., lead opinion

MR. JUSTICE HARLAN delivered the opinion of the Court.

The petitioner, German S. Lopez, was tried in a federal court on a four-count indictment charging him with attempted bribery of an Internal Revenue Agent, Roger S. Davis, in violation of 18 U.S.C. § 201.1 The questions

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before us for review are: (1) whether the trial court's treatment of "entrapment" constituted reversible error; and (2) whether Davis' testimony relating to a conversation with petitioner on October 24, 1961, which formed the basis of the three counts of the indictment on which petitioner was [83 S.Ct. 1383] convicted, and a wire recording of that conversation, were properly admitted into evidence.

The evidence at the trial related to three meetings between Lopez and Davis that took place at Clauson's Inn, situated at North Falmouth, Massachusetts, and operated by Lopez under a lease. Davis, who was investigating possible evasion of excise taxes in the area, first visited the Inn on the afternoon of August 31, 1961, when he asked Lopez whether there was any dancing, singing or other entertainment in the evenings, and showed him an advertisement for the Inn which stated that there was. Lopez said there was no entertainment, and denied responsibility for the advertisement. Davis returned again that evening, and saw dancing in the bar and lounge. He described the Inn in a report to his superior the next day as a "potential delinquent," and said that he would "follow up."

Davis next returned to the Inn on October 21, when he again saw dancing in the bar and lounge, and spoke with Lopez. Davis' testimony about this meeting may be summarized as follows: early in the discussion, Davis told Lopez that he thought the establishment would be liable for a cabaret tax, and asked to see the books, but Lopez resisted, and suggested that they continue the conversation in his office. Once there, Lopez suggested that he would like to avoid all "aggravation," and to reach an "agreement." After Davis said he could not drop the matter, and would return the following week, Lopez said he didn't wish to "insult" Davis, and that he didn't know

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whether to take him into his "confidence." Receiving no reply, Lopez put some money on the desk, saying:

You can drop this case. Here's $200. Buy your wife a present. And I'll have more money for you at Christmas time. This is all I have now.

Davis balked, and Lopez urged him to take the money and to bring his wife and family for a weekend "as my guest." Following some questioning as to the extent of Lopez' business, during the course as which Davis estimated a year's tax as running to $3,000, Lopez added another $220 to the money on the desk, stating that he did not want to be bothered with returns for past years, but would file a return for the current quarter. More importunities on Lopez' part followed, and Davis finally took the money. Before Davis left, Lopez again said he would file a return for the current quarter, and asked Davis to come back on October 24.

Lopez, in his version of the events of October 21, admitted giving the $420 to Davis, but said the money was given in an effort to have Davis prepare his returns and get his books in proper order. According to Lopez' testimony, he told Davis that he would file returns from October 17 on, since, on that date, the Inn had changed its policy to one of entertainment.

After leaving the Inn, Davis reported the meeting to a fellow agent and to his superior, and turned over the $420 to a Regional Inspector. On the morning of October 24, he met with four Internal Revenue Inspectors, who instructed him to keep his appointment with Lopez, to "pretend to play along with the scheme," and to draw the conversation back to the meeting of October 21. Davis was then equipped with two electronic devices, a pocket battery-operated transmitter (which subsequently failed to work) and a pocket wire recorder, which recorded the conversation between Lopez and Davis at their meeting later in the day.

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According to the recording of that conversation, Davis suggested they talk in Lopez' office, and, once inside the office, Davis started to explain the excise tax form and to discuss the return. Before any computations were made, Lopez said he had never thought he needed to file a cabaret tax return, and the conversation then continued:

Lopez: . . . Whatever we decide to do from here on, I'd like [83 S.Ct. 1384] you to be on my side and visit with me. Deduct anything you think you should, and I'll be happy to . . . because you may prevent something coming up in the office. If you think I should be advised about it, let me know. Pick up the phone. I can meet you in town, or anywhere you want. For your information the other night I have to. . . .

Davis: Well, you know I've got a job to do.

Lopez: Yes, and Uncle Sam is bigger than you and I are, and we pay a lot of taxes, and if we can benefit something by it individually, let's keep it that way, and, believe me, anything that transpires between you and I, not even my wife or my accountant or anybody is aware of it. So I want you to feel that way about it.2

The two then discussed receipts and the potential tax liability for 1959-1961, and Lopez protested that Davis' estimates were very high, although he did not deny the fact of liability. After Davis said, "I don't want to get greedy or anything," Lopez gave him $200, and, later in the conversation, told Davis he could bring his family down for a free weekend and should "[c]ome in every so often and I'll give you a couple of hundred dollars every time you come in." At one point, Lopez said,

Now if you suggest that I should file returns from this point on, I'll do it. If you should suggest that, I can get by

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without doing it, then just drop in every so often, and I'll . . .

Lopez also confirmed that he had given Davis $420 on October 21.

Lopez, in his testimony, did not question the accuracy of the recording, and, in fact, said little more about the meeting of October 24 than that Davis had gone into a lot of figures, and that he (Lopez) had become emotionally upset because he felt that Davis "was not there for the purpose that he came in there for on October 21st." He did not suggest that Davis had induced him to offer any bribes.

The first of the four counts in the ensuing indictment charged that, at the meeting of October 21, Lopez gave Davis the $420 with intent to induce Davis, among other things, "to refrain from making an examination of the books and records relating to sales and receipts" at the Inn from 1959-1961.3 The remaining three counts related to the meeting of October 24, and charged three separate acts of attempted bribery, each for the purpose of influencing Davis to aid in concealing sales, receipts, and any cabaret tax due for the years 1959-1961. The acts were the giving of $200 to Davis (Count 2), the promise of an...

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