United States v. Braver, 1031

• Decision Date: 28 October 1971
• Docket Number: Docket 71-1392.,No. 1031,1031
• Citation: 450 F.2d 799
• Parties: UNITED STATES of America, Appellee, v. Irving BRAVER and Morton Lehrer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

450 F.2d 799 (1971)

UNITED STATES of America, Appellee, v. Irving BRAVER and Morton Lehrer, Defendants-Appellants.

No. 1031, Docket 71-1392.

United States Court of Appeals, Second Circuit.

Argued July 1, 1971.

Decided October 28, 1971.

Jay H. Topkis, New York City (Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison, New York City, Kenneth C. Bass, III, Washington, D. C., Gary N. Jacobs, New York City, on the brief), for defendants-appellants.

Rudolph W. Giuliani, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for Southern District of New York, Jon A. Sale, Asst. U. S. Atty., on the brief), for appellee.

Before FEINBERG and MANSFIELD, Circuit Judges, and BARTELS, District Judge.^*

FEINBERG, Circuit Judge:

Irving Braver and Morton Lehrer appeal from a judgment of conviction, entered after a trial in the United States District Court for the Southern District of New York before Lloyd F. MacMahon, J., and a jury. Both were convicted on two counts,¹ bribing a government official in violation of 18 U.S.C. § 201(b), and conspiracy to bribe in violation of 18 U.S.C. § 371. Each was sentenced on the conspiracy count to six months imprisonment and a $10,000 fine and on the substantive count to a concurrent six month sentence and a $20,000 fine. Appellants are presently at liberty on their own recognizance. On appeal, they challenge the charge given by the trial judge on entrapment and his failure to grant a continuance on the last day of trial.

The facts of this case, as could have been found by the jury, arose from the activities of Harold Wenig, an undercover agent of the Internal Revenue Service (IRS). At the time in question, Wenig had posed as a corruptible IRS inspector.² In June 1967, Wenig told an IRS agent, Sidney Romanoff,³ that the IRS was investigating the defendants' accounting firm and inquired whether Romanoff knew Braver or Lehrer. Romanoff, who had "moonlighted" for the firm, said that he did. Wenig then informed him that information concerning the investigation of the firm would be available for a price. During the early part of July, Romanoff relayed the message to the defendants and, after some hesitation, Braver indicated that they would purchase the information for $500 although they were not sure it would have any value to them.

On July 13, Romanoff met Wenig in Manhattan where Romanoff copied information pertaining to the investigation of defendants' firm that Wenig read to him. Romanoff paid Wenig $500 in cash for this information and explained that he was advancing the money for the defendants. Wenig then offered to sell for $1,000 additional information about proposed grand jury questions. Immediately after this meeting, Romanoff delivered the information to Lehrer and asked if the defendants would be interested in the grand jury questions. Lehrer said that he would think about it. Approximately one week later Braver visited Romanoff at his home and reimbursed him for the $500 paid to Wenig.

On July 20, Wenig informed Romanoff that he would be interviewing clients of defendants' firm and Romanoff requested the list of the taxpayers. When questioned by Romanoff, Lehrer expressed no interest in the grand jury questions but told Romanoff that, as part of the $500 already paid, he and Braver were entitled to the list of the taxpayers. Romanoff again requested the list as a personal favor from Wenig and, on August 4, Wenig delivered it. A few days later Romanoff gave the list to Braver. There was no further exchange of money and the defendants never met Wenig.

I

Appellants' central argument concerns the district court's charge on entrapment. That charge, quoted in the margin,⁴ bifurcated the defense of entrapment into two elements, inducement and propensity. The judge instructed the jury that the defendants had the burden of proving inducement by a fair preponderance of the evidence and that the Government had to prove propensity beyond a reasonable doubt. Appellants recognize that this analysis of the entrapment defense is based upon Judge Learned Hand's opinion in United States v. Sherman, 200 F.2d 880 (2d Cir. 1952).⁵ However, arguing that "This Court has never approved instructions modeled on Sherman,"⁶ appellants urge us to reconsider that approach in light of the First Circuit decision in Kadis v. United States, 373 F.2d 370 (1967). Essentially, appellants argue that dividing entrapment into two issues and placing the burden on the defendant to prove inducement is error because it conflicts with the constitutionally mandated presumption of innocence and because it is unduly prejudicial.⁷

Appellants point out that the Sherman decision reversed the trial court for errors in the instructions given there and did not specifically approve the charge used in this case. But it is late in the day to argue that this court has not since approved that charge. A few weeks before this case was argued, we said in United States v. Greenberg, 444 F.2d 369, 371 (2d Cir. 1971), that "This circuit adheres to the bifurcated analysis of entrapment defined in United States v. Sherman. * * *" Even more recently, in United States v. Nieves, 451 F.2d 836, 837 (2d Cir., 1971), we specifically relied on the Sherman inducement-propensity analysis.

Moreover, we believe that this circuit has approved a defendant's burden of proof as charged in this case. Judge Hand did not specifically define the quantum of proof in Sherman and only stated that on the issue of inducement "the accused had the burden." 200 F.2d at 882. Arguably, Judge Hand may have been referring only to the burden of coming forward with evidence, rather than a burden of persuasion. See C. McCormick, Law of Evidence §§ 306, 307 (1954). But such an argument does not amount to very much. In the passage quoted in note 5 supra, Judge Hand contrasted the defendant's "burden" with that of the Government. Almost immediately following that sentence, the opinion stated that on the inducement "issue defendant had the affirmative." Id. at 883. Then the opinion said that the "prosecution had the burden upon the issue of propensity, it had to satisfy the jury." Id. From this it is apparent that a defendant's burden of proof must be at least the "preponderance" or "more-likely-than-not" standard. In United States v. Thomas, 351 F.2d 538 (2d Cir. 1965), this court indicated that the burden was by a "preponderance of the evidence," and the opinions in United States v. Guidice, 425 F.2d 886, 889-891 (2d Cir.), cert. denied sub nom., Fontana v. United States, 400 U.S. 842, 91 S.Ct. 85, 27 L.Ed.2d 77 (1970), and United States v. Bishop, 367 F.2d 806, 809 n. 3 (2d Cir. 1966), clearly assume that the defendant has to meet that standard of proof. See also United States v. Lewis, 447 F.2d 134 (2d Cir., 1971); United States v. Weiser, 428 F.2d 932, 934 (2d Cir. 1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1606, 29 L.Ed.2d 119 (1971). Nothing said in United States v. Cohen, 431 F.2d 830 (2d Cir. 1970), United States v. Henry, 417 F.2d 267 (2d Cir. 1969), cert. denied, 397 U.S. 953, 90 S.Ct. 980, 25 L.Ed.2d 136 (1970), or United States v. Pugliese, 346 F.2d 861 (2d Cir. 1965), indicates the contrary. At most those opinions indicate that a defendant's burden may be reconsidered in an appropriate case or that, to meet his burden, a defendant need prove no more than "the government agent initiated the payment." United States v. Cohen, 431 F.2d 830, 832 n. 2 (2d Cir. 1970).

Appellants also argue that instructions based upon Sherman are constitutionally deficient and prejudicially confusing. As to the former, the claim is that placing upon the defendant the burden of proving inducement denies him due process. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970), relied upon by appellants, held that:

The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

Without discussing the various rationales for the entrapment defense,⁸ it is enough to say that the law of this circuit is that the defense "does not negative any of the essential elements of the crime." United States v. Greenberg, 444 F.2d 369, 372 (2d Cir. 1971). See also United States v. Riley, 363 F.2d 955 (2d Cir. 1966); Final Report of the National Commission on Reform of Federal Criminal Laws, Proposed New Federal Criminal Code § 702 (1971) Proposed Federal Criminal Code.

As to the alleged confusion created by the Sherman instructions, appellants have a number of arguments. First, they claim that a lay jury cannot really distinguish in the same case between proof beyond a reasonable doubt and proof by a preponderance of the evidence. Second, they say that the central issue in entrapment cases is "whether the crime was the product of government activity—or the response of a ready and willing individual merely awaiting an opportunity to commit the crime" and that considering "the initiation of the criminal activity apart from the defendants' willingness to engage" in it is "an unrealistic separation."⁹ Finally, they claim that on the facts of this case, where the evidence of government initiation was both sufficient under United States v. Riley, 363 F.2d 955 (2d Cir. 1966), and uncontradicted, submitting the issue to the jury was error because this gave the jury the impression that the evidence before it was insufficient to prove inducement.

Taking the last of these arguments first, we do not agree that because the evidence was so overwhelmingly against the Government on the issue of inducement, it was prejudicial error to submit the issue to the jury at all. The basic premise that the submission itself indicated to the jury that there was not enough evidence to prove inducement is logically unsound. One might argue with equal force that submission to the jury implies just the opposite. Moreover, no clear request was made to the judge to withdraw the...