Marks v. United States, 5793.

• Decision Date: 12 January 1959
• Docket Number: No. 5793.,5793.
• Citation: 260 F.2d 377
• Parties: Henry MARKS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

260 F.2d 377 (1958)

Henry MARKS, Appellant, v. UNITED STATES of America, Appellee.

No. 5793.

United States Court of Appeals Tenth Circuit.

October 13, 1958.

Certiorari Denied January 12, 1959.

Everett M. Grantham, Albuquerque, N. M. (Grantham, Spann & Sanchez, Albuquerque, N. M., were with him on the brief), for appellant.

James A. Borland, U. S. Atty., Albuquerque, N. M., for appellee.

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

Certiorari Denied January 12, 1959. See 79 S.Ct. 315.

HUXMAN, Circuit Judge.

Appellant, Henry Marks, was indicted, tried and convicted by a jury in the United States District Court for the District of New Mexico of violating 18 U.S.C.A. § 201. The indictment charged that he offered and gave a bribe of $1,000 to an Officer of the United States, a Special Agent for the Internal Revenue Service, with intent to influence his decision in a matter pending before the Agent at the time. His appeal challenges the judgment of the Court on five grounds. The assignments of error will be considered in the following order.

It is urged that the Court erred in permitting the case to go to the jury, because of the insufficiency of the evidence to sustain a verdict of guilty. To resolve this question, it will be necessary to consider primarily the evidence of the prosecuting witness, Peter F. Geissler, and of appellant, Henry Marks. Geissler was an Agent of the United States Internal Revenue Department assigned to Albuquerque, New Mexico. In his official capacity, he was engaged in investigating the income tax returns of Hub Enterprises, Inc., of which Marks was the Managing Officer. During the investigation, Marks paid Geissler $1,000 in cash to influence his action in the investigation. The whole case turned on whether the giving of the bribe originated with Marks, or whether the suggestion of giving a bribe came first from Geissler, and whether Marks then took the bait offered by the Agent.

Geissler, the prosecuting witness, testified in substance as follows: On March 11, 1957, he and Agent Butler contacted Marks at appellant's place of business and informed him that the returns of Hub Enterprises for the years 1953, 1954 and 1955 were under investigation. On March 28, Geissler and Butler had a conference with Marks at his office with reference to certain records. A number of conferences were held between the parties, at which various matters pertinent to the investigation were discussed. On April 24, Geissler called Marks at his office to ascertain what progress he was making in securing certain required data. Marks replied that he was assembling the data and suggested they have a cup of coffee together. Geissler suggested they meet at the Court Cafe. Marks replied that it was too crowded and suggested they meet at the corner of Second and Silver. Before Geissler went to the meeting, he suggested to his Associates that he be searched. He was searched and all his money except forty-five cents was taken from him. Before meeting Marks, Geissler suggested that he be put under surveillance. He then left for the rendezvous where he met Marks. Marks suggested that they take a ride, but Geissler declined. Marks then suggested they have a cup of coffee at the City Cafe. They went to the Cafe where they occupied a booth. Marks asked how the investigation was coming. He inquired about Geissler's son's health, and also asked if he had a sewing machine. Geissler replied, "No," but that he could use one. Marks suggested that he would like to send one to the house. He also asked whether Geissler had a Frigidaire. He replied he had a second hand one and Marks suggested he could send a new one very cheap. Marks also inquired whether Geissler's wife was employed. When he was informed that she was a secretary but was unemployed, Marks stated that he and a group were forming a new concern and could use a secretary and would be glad to give his wife consideration. After considerable discussion, Marks said, "Pete, I would like to see this matter brought to a halt, to clean it up" and he said, "I would give you a thousand dollars to terminate the investigation." Geissler's reply was "That is up to you." Marks went to the bank to get the $1,000, and they agreed to meet at the Hilton Drug Store. About ten minutes later, they met at the Hilton Drug Store. After some colloquy, the money was passed across under the table. Geissler took it and informed Marks that he was under arrest. Marks was then delivered to the Federal authorities.

Wilson, a Special Agent, testified that he searched Geissler before he met Marks and took his money from him; that he kept Geissler under surveillance; that he saw him and Marks in the City Cafe; that he heard some of the conversation between Geissler and Marks in the booth; that he heard Marks say, "How is it going?" and Geissler replied, "Well, he was working on it"; that he heard the word sewing machine mentioned, but because of the noise he could not hear much of the conversation. He went to the Hilton Hotel, but did not see Geissler, and finally returned to the office.

With respect to the occurrences on the 24th, Marks testified that Geissler called him and asked about the closing costs on a house transaction and that he replied he would give him the information when it was furnished to him, and that Geissler then said, "Let's have a cup of coffee," to which he replied to come over and meet him at his place. Geissler replied that he would meet him at the corner of Second and Silver; that they met there and went from there to the coffee shop; that they sat down and both ordered a cup of coffee; that while sitting in the booth Geissler said, "Do you have a thousand dollars for me to close this case?"; that he replied "Well, I don't have a thousand dollars for you"; I said, "I would have to borrow the thousand dollars if you want a thousand dollars": and he said, "I have a sick kid and I don't make much money." He testified that Geissler also told him his wife wasn't working and he had a sick kid and was not making much money. Marks testified positively that he never offered Geissler any money to take care of the case and that the suggestion for the money came first from Geissler; that Geissler personally asked him for $1,000 to settle the case and that Geissler said, "I could make it good or bad for you."

Mrs. Marks testified that she listened in on an extension phone to the conversation on the 24th between Geissler and her husband, and that Geissler made the suggestion that he and Marks meet for coffee.

From the above outline of the evidence must be determined whether the Government made a case to go to the jury. There is no conflict or uncertainty in the applicable principles of law to determine the burden resting on the Government to make a jury case. There was a sharp and irreconcilable conflict in the evidence. Geissler testified positively that the first suggestion of a bribe came from Marks and that at no time had he suggested a pay-off to him. Marks, on the other hand, testified just as positively that the suggestion of the payment of $1,000 came from Geissler, and that at no time did he offer to pay him $1,000 to settle the case, and that he paid the $1,000 only after he had been first solicited by Geissler. If the jury believed Marks, there was entrapment, and he could not be convicted of the offense charged. On the other hand, if the jury believed Geissler, as it evidently did, Marks was guilty of the offense with which he was charged. The case was properly submitted to the jury for its determination.

It is urged that the Court erred in refusing to give appellant's instructions Number 1 and 2.¹ We do not consider whether appellant properly preserved his right to challenge the Court's instructions by making timely and proper objections thereto, because we believe the Court correctly instructed the jury as to the law of entrapment. A defendant is not entitled to have the Court instruct the jury in any particular words or in the language of his requested instruction.² If adequate and proper instructions are given, he has no cause for complaint.

The Court gave careful consideration to its instruction on entrapment. The substance of the Court's instruction was that if the jury believed from the evidence that Marks was induced to violate the law by the insistence, requests and persuasions of Geissler, then the verdict must be not guilty, because it was not the policy of the courts to uphold a conviction where the offense was committed through the instigation of the Government's agents. The Court told the jury that when an officer induces one to violate the law, who has no intention of committing crime, the Courts will not lend their aid in punishing a person thus lured into crime. But the Court said that if the defendant acted with a willingness and desire to violate the law and makes an offer, tender or gift as his own idea, then he would be guilty. This is the substance of what the Court told the jury and clearly states the principles applicable to entrapment. From the Court's instruction, the jury could have no difficulty in concluding that the decisive question was, did the offer of the bribe first originate in the mind of Marks or did he only offer the bribe after it was first suggested by Geissler. The complaint that the instruction did not specifically state that the Government must disprove entrapment beyond a reasonable doubt is not well taken. Throughout the instructions, the Court repeatedly told the jury that the Government must prove every element of the offense to the jury's satisfaction beyond a reasonable doubt. It was not necessary to repeat this admonition in every instruction.

Appellant complains because the Court refused to give his requested instruction Number 2, in which he requested the Court to tell the jury that in determining whether Marks was guilty of the charge it must not consider whether he was civilly or...