Wager v. Pro

Decision Date27 July 1979
Docket NumberNos. 78-1444,s. 78-1444
PartiesJohn Arthur WAGER, Appellant, v. Maynard J. PRO. John Arthur WAGER v. Maynard J. PRO, Appellant, (two cases.) to 78-1446.
CourtU.S. Court of Appeals — District of Columbia Circuit

Kenneth M. Raisler, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and William H. Briggs, Jr., Asst. U. S. Attys., Washington, D.C., were on brief, for appellant in Nos. 78-1445 and 78-1446 and appellee in No. 78-1444.

Ed Wilhite, Washington, D.C., for appellee in Nos. 78-1445 and 78-1446 and cross appellant in No. 78-1444.

Before WRIGHT, Chief Judge, MacKINNON, Circuit Judge, and AUBREY E. ROBINSON, Jr., * United States District Court Judge for the District of Columbia.

Opinion for the Court filed by MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

In his complaint commenced in the Superior Court of the District of Columbia in 1973 Wager alleged that Pro was grossly negligent in ordering Wager to solicit a bribe from a defendant in a pending criminal case in which some of the evidence was then being examined by the Alcohol, Tobacco and Firearms Laboratory. Pro had the case removed to the United States District Court for the District of Columbia pursuant to 28 U.S.C. §§ 1442(a) and 1446 which furnishes the basis for federal jurisdiction. The District Court initially disposed of the case on summary judgment for Pro, finding that Wager and Pro were In pari delicto. Wager v. Pro, 391 F.Supp. 752 (D.D.C.1975). This Court reversed the summary judgment and remanded to the District Court. We find that two genuine issues of material fact existed based on the then record: (1) was the bribery scheme illegal or immoral, and (2) was Wager less at fault than Pro, assuming the illegality or immorality of the scheme. Wager v. Pro, 188 U.S.App.D.C. 1, 575 F.2d 882 (1976). The case was submitted to a jury, which returned a verdict for Wager in the sum of $3,360 plus costs. Both parties appeal this judgment.

I.

We set forth the facts most favorable to Wager, the prevailing party, but do not intend thereby to ignore the fact that Pro offered evidence that materially contradicted that of Wager. We express no opinion as to where the truth lies.

John A. Wager retired from the military in September, 1969. After numerous and varied short term jobs, Wager was hired in February, 1970 by Maynard J. Pro as a GS-5 Handwriting Analyst Trainee in the Alcohol, Tobacco and Firearms Laboratory (ATF) in Washington, D. C. Wager was to be trained to become a handwriting analyst. (Tr. 189-90). The sole function of the laboratory was to examine evidence such as handwriting samples. It had no criminal investigative powers or responsibilities (Tr. 150, 160).

Wager testified that on July 23, 1970 Pro discussed the pending Angelo Bruno case with him. The Bruno case was scheduled to go to trial in September, 1970, and ATF was performing certain document examinations in connection with that case. According to Wager, Pro told him how important the Bruno case was to the laboratory, but that the government evidence against Bruno was very weak. Pro then asked him to go to Philadelphia to see if he could induce Mr. Copper-Smith (Bruno's accountant and a defendant in the Bruno case) to bribe Wager. Pro was allegedly attempting to "get these people on something else." (Tr. 21)

Wager explained to Pro that he believed this act would constitute entrapment, which he considered to be immoral. However, because he was only a probationary employee, Wager claims he decided to go along with the scheme. They determined that Wager would give the individuals involved in the Bruno case worthless evidence to "drive them up the wall." (Tr. 22) Wager was instructed to let Copper-Smith know he was willing to accept money in return for the worthless information.

On the day following this conversation, Wager flew to Philadelphia and called Copper-Smith, who happened to be out of town. After failing to contact Copper-Smith Wager determined on his own that he should contact one of the other defendants in the Bruno case. Since he had forgotten their names, he went to the city's main library and researched the case. Upon finding a newspaper article regarding it, Wager got the name of an attorney who was a defendant in the case, a Mr. Levin. Wager then contacted Levin, met with him and told him how weak the defendant's case was. He offered to let him have the worthless ATF information. Levin told Wager he would get back to him on the matter.

Wager later made several calls to Levin, and then finally called Levin's attorney, Mr. Lorry, who asked Wager to send him some of the laboratory's evidence. Wager sent him a non-sensitive newsletter involving laboratory activities. Pursuant to another phone conversation with Mr. Lorry, Wager sent additional worthless evidence along with a letter requesting a $15,000 loan.

On August 18, 1970, Pro asked Wager to accompany him to the office of the Director of ATF. Wager testified that on the way to the office, Pro instructed Wager not to say anything about the scheme and Pro would handle it. Wager agreed not to say anything. In the Director's office Wager was arrested and later indicted on two counts of soliciting a bribe. Wager never explained the scheme to the police, and Pro never came forward with any information.

ATF terminated Wager from his position in August, 1970. He was tried in 1972 on the charge of soliciting a bribe and was acquitted by the jury. Wager contended that when Pro testified in Wager's criminal trial, he denied knowing anything about the scheme.

Wager testified that he believed the scheme was stupid and morally wrong, but not illegal. He knew he was enticing people to break the law, but he assumed Pro had the authority to order this. Wager opined that his action of sending worthless information to Levin would have sidetracked the defense in the Bruno case, and caused Levin to put on a defense that was patently wrong. (Tr. 90)

Raymond E. Makowski, prosecutor for the Department of Justice in the criminal case against Wager, testified that the scheme of a government official contacting defendants in an ongoing case in the hope of entrapping that individual into bribing the official constituted governmental misconduct. This would especially be true where contacting a defendant in a criminal case was completely outside the powers and responsibilities of the laboratory.

Donald Bacon, former Assistant Commissioner of Compliance for the Internal Revenue Service testified that Wager's scheme was "completely unheard of and highly improper." (Tr. 152) The ATF laboratory had no independent investigative functions, and no direct contact with defendants in pending investigations. Such a scheme, had it been successful, would have destroyed the laboratory's reputation.

Rex Davis, former Acting Director of ATF, also testified as to the impropriety of Wager's actions, noting that it was the clearest kind of entrapment and clearly outside the scope of the laboratory's activities.

II.

This is a very difficult case to treat as a negligence case because of the obvious intentional criminal conduct involved in the bribery scheme. When the trial court first disposed of the case on a motion for summary judgment, it did not reach the issue as to the basic nature of the tort, i.e. whether the plaintiff Wager stated a cause of action for gross negligence. Instead, it relied on the common-law principle that parties to an illegal or immoral transaction may not seek redress in a court for wrongs suffered as a result of the transaction. Wager v. Pro, 391 F.Supp. at 754. This is clearly the law in the District of Columbia for both tort and contract actions. See Hunter v. Wheate, 53 App.D.C. 206, 289 F. 604 (1923). The trial court impliedly determined that the bribery scheme was illegal and immoral, thus precluding Wager's recovery from Pro because they were In pari delicto.

On appeal, this Court likewise concentrated on the illegality and immorality and In pari delicto Issues. We reversed and remanded the case holding that whether an alleged entrapment scheme is illegal is a question of fact which involves the defendant's predisposition to commit crimes of the kind solicited. Wager v. Pro, 188 U.S.App.D.C. at 3, 575 F.2d at 884; Sherman v. United States, 356 U.S. 369, 382, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). We also determined that a finding that the parties were In pari delicto was not a complete defense. Instead, it triggers the question of whether one party was less at fault than another. If the answer to that question is affirmative, then it is still possible for the party less at fault to recover from the other. Wager v. Pro, 188 U.S.App.D.C. at 3-4, 575 F.2d at 884-85.

On remand, the trial court refused the defendant's request to instruct the jury as to the illegality of the bribery scheme. It submitted the question to the jury, instructing that if it found the parties' actions to be illegal or immoral, it should then decide the issue of comparative fault to determine Pro's ultimate liability. Pro appealed the trial court's action, arguing that it committed prejudicial error by not instructing the jury as to the illegality and immorality of the scheme. In so doing, the trial court allowed the jury to avoid deciding the comparative fault issue identified by this Court. After examining all of the evidence presented at trial, we agree with Pro and thus reverse and remand the trial court's judgment.

III.

This Court recently recognized that the entrapment defense in criminal trials is normally a jury question as to the defendant's predisposition to commit the crime. United States v. Burkley, 192 U.S.App.D.C. 294, 302, 591 F.2d 903, 911 (1978). However, we recognized the long-standing controversy in the Supreme Court on this issue, culminating in its most recent enunciation on the issue in Hampton v....

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