Lunsford v. United States, 4491.

Decision Date30 October 1952
Docket NumberNo. 4491.,4491.
Citation200 F.2d 237
CourtU.S. Court of Appeals — Tenth Circuit

A. W. Trice, Ada, Okl. (Busby, Harrell & Trice, Ada, Okl., on the brief), for appellant.

Edwin Langley, U. S. Atty., Muskogee, Okl. (Paul Gotcher, Asst. U. S. Atty., Muskogee, Okl., on the brief), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

HUXMAN, Circuit Judge.

An indictment containing three counts was returned against appellant, Gail Lunsford, in the United States District Court for the Eastern District of Oklahoma. Counts One and Two charged that on July 27, 1951, he made two separate offers of a bribe of $50 to Bernard R. Holmes, Deputy Collector of Internal Revenue. Count Three charged that on August 8, 1951, he paid Holmes a bribe of $100 to induce him to violate his official oath with respect to an audit of defendant's income tax return. A jury trial resulted in a verdict of not guilty on Counts One and Two and of guilty on Count Three.

Appellant contends that the acquittal on the counts charging the offering of a bribe conclusively established that issue of fact for all purposes of the trial. From this it is argued that since it is essential that an offer to pay a bribe must first be established to sustain the conviction of paying a bribe, the jury's acquittal of charges of offering to pay a bribe precludes the finding that a bribe was paid. Assuming without deciding that this is correct, it does not apply to the facts of this case. Counts One and Two related to an alleged transaction on July 27, while Count Three charged giving a bribe on August 8. Here not only is there a difference in time but also a difference in the essential elements of the offenses charged. The jury may well have concluded that the evidence did not support the charge that appellant offered to bribe the officer on July 27, but evidently did conclude that on August 8 thereafter he did bribe the officer. It is, therefore, obvious that the acquittal on the first and second counts is not a bar to a prosecution of the offense charged in Count Three.

Appellant further contends the evidence is insufficient to sustain the verdict on Count Three. There was a sharp conflict in the evidence offered by the Government and that given by Lunsford. Since our review is limited to a determination whether there is substantial evidence supporting the verdict, we review only that evidence and the inferences reasonably to be drawn therefrom, which tend to support the verdict.1

Mr. Holmes, the Collector, testified that he had an appointment with appellant on July 27, 1951, to review his income tax records; that after working on them for some time he stated that it appeared there was a shortage of approximately $7,000 to $8,000; that appellant remarked that since collectors only make "spinach" he would give him $50 to "make it as easy as possible on me." Holmes further testified that later in the day appellant again insisted that he take $50, assuring him that he could be trusted; that no one would be the wiser and that the two had better feather their nest while the time was right. Holmes testified that he refused the offer and secretly notified his superior. He was advised to make another appointment with appellant. This he arranged for August 8. At that time the officers had wired the room where the meeting was to be held with a wire recorder, so the conversation could be recorded. There was also a Treasury Department agent sitting in front of the open door leading to the room where the interview was to be held. The results of the recording were poor and admittedly the recording had little probative value. So also the Treasury Department agent could hear too indistinctly to give evidence of much value.

Holmes testified that at the meeting on August 8 appellant again offered him $50 as a bribe, to which he replied that that was a small amount "to be sticking my neck out for" but that for $100 he would close out Lunsford's account; that Lunsford agreed and left the office to secure the sum in cash; that upon his return he paid Holmes the $100 cash, at which time the Collector gave him a properly signed form indicating that no additional tax was due. The testimony by Holmes, if believed, as it no doubt was, clearly established that the $100 was paid as a bribe and not as a settlement of any tax liability due from appellant.

Appellant raised the defense of illegal entrapment in the trial court, as he does here. He contends that since the jury found he was not guilty of offering a bribe on July 27 the Government officials had...

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  • United States v. Raff
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • February 21, 1958
    ...v. Marcus, 3 Cir., 1948, 166 F.2d 497, at pages 501, 502; Pipkin v. United States, 5 Cir., 1957, 243 F.2d 491; Lunsford v. United States, 10 Cir., 1952, 200 F.2d 237, 238. 7 See Note 52 A.L.R. 816. On interpreting statutes, see United States v. Universal C.I.T. Credit Corp., 1952, 344 U.S. ......
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    ...v. United States, 363 F.2d 169, 174 (9th Cir. 1966); Waker v. United States, 344 F.2d 795, 796 (1st Cir. 1965); Lunsford v. United States, 200 F.2d 237, 239-240 (10th Cir. 1952). No predisposition can be shown here from a prior record, for of course, Curry has none. But the following quotat......
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    ...v. Michelson, 2 Cir., 1948, 165 F.2d 732, 733, affirmed 1948, 335 U.S. 469, 470-471, 69 S.Ct. 213, 93 L.Ed. 168; Lunsford v. United States, 10 Cir., 1952, 200 F.2d 237, 238, an offer to bribe is a separate offense. According to the weight of authority, an actual tender of the bribe is not n......
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    ...first showing that there are reasonable grounds to believe that defendant is predisposed to commit the offense. See Lunsford v. United States, 200 F.2d 237 (10th Cir. 1952); Ryles v. United States, 183 F.2d 944 (10th Cir. 1950), cert. denied 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 637; Heath v......
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