United States v. Greenberg, 627

• Citation: 444 F.2d 369
• Decision Date: 16 June 1971
• Docket Number: Docket 35591.,No. 627,627
• Parties: UNITED STATES of America, Appellee, v. Herbert GREENBERG, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

444 F.2d 369 (1971)

UNITED STATES of America, Appellee, v. Herbert GREENBERG, Appellant.

No. 627, Docket 35591.

United States Court of Appeals, Second Circuit.

Argued February 9, 1971.

Decided June 16, 1971.

John R. Wing, Jack Kaplan, Asst. U. S. Attys., Whitney North Seymour, Jr., U. S. Atty., for appellee.

Kalman V. Gallop, New York City, for appellant.

Before FRIENDLY, Chief Judge, WATERMAN, Circuit Judge, and McLEAN, District Judge.^*

WATERMAN, Circuit Judge:

In a three-count indictment Herbert Greenberg, an agent of the Internal Revenue Service, was charged with having violated three different statutes. In the first count he was charged with bribery (18 U.S.C. § 201(b)); in the second with giving $200 otherwise than as provided by law to a public official for and because of official acts to be performed by the official (18 U.S.C. § 201(f)); and in the third with having failed to report a violation of the revenue laws (26 U.S. C. § 7214(a) (8)). He was tried to a jury and did not take the stand in his own defense. The third count was dismissed by the trial judge at the close of the government case. The remaining two counts were submitted to the jury which acquitted on the first count and returned a guilty verdict on the second. Appellant was sentenced to a six month term of imprisonment and fined $5000; he is presently free on bail. He appeals his conviction on Count Two and the only issues he presents upon his appeal relate to whether the trial judge acted properly in declining to submit for jury determination the question of whether appellant's criminal act was caused by a government entrapment.

This case arises out of the undercover investigation by the Inspection Service branch of the Internal Revenue Service into alleged corrupt practices by Internal Revenue Agents engaged in field audit work in the Jamaica, New York area. In furtherance of this investigation Harold Wenig of the Inspection Service assumed the role of a corrupt and dishonest agent who was willing to sell to other Internal Revenue Agents information contained in the Inspection Service files. He met Jack Brover on March 23, 1967 to discuss the sale of information regarding a special audit of a case in which Brover had accepted a substantial bribe. During the course of the meeting Wenig asked Brover if he knew Greenberg and, when Brover answered affirmatively, Wenig indicated that Greenberg's activities were also being investigated. Brover subsequently contacted Greenberg, informed him of the investigation, and commented on Wenig's willingness to sell information. Greenberg agreed to meet Wenig and arrangements for the meeting were then made by Brover during a telephone conversation with Wenig, in the course of which Brover assured Wenig that Greenberg understood the financial arrangements that Greenberg would be expected to comply with.

On April 7, 1967 Wenig met with Brover and Greenberg in Wenig's automobile. Wenig drove them around lower Manhattan while Greenberg, seeking to insure Wenig's trustworthiness, sought to identify acquaintances and associates that he and Wenig might know in common. After a short time Wenig stopped the car, parked it conveniently near four surveilling Inspection Service agents, and asked Greenberg to leave momentarily. Wenig then spoke privately with Brover, and when Greenberg reentered the car Brover left. Then, following some preliminary sparring, Wenig told Greenberg that the Inspection Service was interested in checking up on the field audit of Arthur and Lucille DeBevoise and of various corporations owned by them because the audit seemed incomplete and because bribes might have been accepted. Greenberg recalled the audit. He denied accepting a bribe, but admitted overlooking certain questionable claims. He expressed apprehension to Wenig, especially because he said he feared that the taxpayers' accountant had probably received funds from the taxpayers with which to make a bribe but had kept the money for himself and Greenberg thought that the accountant, if arrested, would claim that he had passed on the money. Greenberg admitted that he suspected other agents working on the case had "done something" and, as a result, he concluded he should go along rather than rock the boat.

Greenberg asked Wenig to continue to provide information and he asked for Wenig's private telephone number. Greenberg wondered whether Wenig could reach the investigating agent, but Wenig argued that this would be too risky. At this point Greenberg noted that perhaps the Mafia could reach him even if Wenig could not. Wenig thought aloud that the better course would be to await further developments, and Greenberg agreed.

Greenberg gave Wenig two $100 bills.

Four other I.R.S. inspectors observed this meeting and the conversation was recorded through devices secreted upon Wenig's person and hidden in his car.

On April 17, 1967 Wenig told Greenberg over the telephone that the DeBevoise corporations were being investigated for criminal tax fraud and that bringing in the Mafia to reach the investigating agent would not be wise. This was the only other time Wenig and Greenberg conversed. At trial the tape recording of the April 7 talks was admitted into evidence and was heard by the jury. Greenberg did not take the stand and sought to establish the defense that the Government had entrapped him into giving the money to Wenig. The trial judge ruled that, as a matter of law, there was insufficient proof of this to warrant the submission of that issue to the jury.

Greenberg contends that this ruling was prejudicially erroneous, that the issues relevant to his entrapment defense should have been submitted to the jury and that the failure to do so requires a new trial. We do not agree and affirm the conviction.

This circuit adheres to the bifurcated analysis...