United States v. Lewis, 74

• Decision Date: 13 August 1971
• Docket Number: No. 74,Docket 34626.,74
• Citation: 447 F.2d 134
• Parties: UNITED STATES of America, Appellee, v. David J. LEWIS, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

447 F.2d 134 (1971)

UNITED STATES of America, Appellee, v. David J. LEWIS, Appellant.

No. 74, Docket 34626.

United States Court of Appeals, Second Circuit.

Argued September 15, 1970.

Decided August 13, 1971.

Gary P. Naftalis, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., and William B. Gray, Asst. U. S. Atty, New York City, on the brief), for appellee.

Jerome J. Londin, New York City (Carro, Spanbock & Londin, and Allen Green, New York City, of counsel), for appellant.

Before WATERMAN, MOORE and KAUFMAN, Circuit Judges.

MOORE, Circuit Judge:

Appellant, David J. Lewis, appeals from a judgment of conviction, entered after a jury trial, on both counts of the indictment against him. Count 1 charged Lewis with giving an Inspector of the Internal Revenue Service (IRS) $200 to induce him to furnish information from confidential files of the IRS in violation of Section 201(b) of Title 18, United States Code. Count 2 was based on the same facts but charged that the $200 was given for official acts being performed by the Investigator, namely, the investigation of misconduct and corruption on the part of IRS employees, in violation of subparagraph (f) of Section 201.

On motion the Court dismissed Count 2 as a lesser offense included in Count 1. Our review is thus limited to the alleged errors during the trial which may have affected the conviction on Count 1. Count 1 alleges that the $200 payment was to induce a public official (the official was Harold Wenig Wenig, an undercover agent of the IRS and an Inspector in the office of the Regional Inspector) "to do an act in violation of his lawful duty, to wit, to furnish information from the offices and confidential files of the Inspection Service, Office of the Regional Inspector, 50 Church Street, New York, N. Y." The indictment must be read on the assumption that it was Wenig's lawful duty not to furnish information and that Lewis' alleged bribe was to cause Wenig to fail to comply with this duty. If there be a crime, it must be found under Section 201(b) (3), namely, inducement of an act "in violation of his lawful duty" — in short, Wenig was not supposed to disclose anything in the confidential files, or in other words disclosure was unlawful.

Lewis argues that he was entrapped as a matter of law and that the Trial Court (1) erroneously excluded evidence that the impetus for his alleged payment of money to Wenig came from the Government and (2) erroneously admitted into evidence testimony bearing no relationship to the charges against him. We reverse and remand for a new trial.

These claimed errors are best discussed as the facts are developed in chronological order. The defense of entrapment and governmental impetus thereunder depend upon the circumstances under which Lewis and Wenig first met on April 3, 1967, when the $200 is alleged to have been passed. It is undisputed that Lewis had never met Wenig until another IRS agent, Louis Behar (a mutual friend who has pleaded guilty to making illegal payments to Wenig), brought Lewis to Wenig's automobile on April 3. To Lewis' entrapment defense, these circumstances were highly significant and probative. The Government apparently was desirous of having the Wenig-Behar and Wenig-Lewis conversations tape-recorded. Certain of these recorded conversations were admitted at trial; others were excluded. The first recording was of a conversation on March 27, 1967, between Wenig and Behar. Lewis was not present, but he claims that this conversation shows how he was brought into the picture, hence, the relevance of this tape to his entrapment defense. Its exclusion, he asserts, was highly prejudicial.

Exclusion of the March 27, 1967 Conversation

"Without Wenig the Government had no case";¹ by the same token, without Wenig, Lewis had no case on the "inducement" aspect of his entrapment defense.² The key to that defense lay in a portion of the recorded conversation which occurred on March 27, 1967, between Wenig and Behar. Through an offer of proof (the transcript of the conversation) and the introduction of testimony through Wenig relating to that portion of the conversation referring to Lewis, the defense hoped "to establish entrapment by showing that the impetus for the April 3, 1967 Wenig-Lewis meeting came from Wenig and not Lewis."³ The pertinent portion of the trial transcript dealing with the conversation, which is reproduced in the margin⁴ is summarized below.

The prosecutor appears to have endeavored to anticipate the defense on the issue of "inducement" by opening up the matter of the conversation through Wenig on direct examination. In the face of a sustained general objection to a question defective in form only ("Can you tell the jury what you recall of your conversation with Lewis sic Behar regarding David Lewis on that date?"), the prosecutor dropped the subject. On cross-examination, the subject was sought to be reopened when Wenig was asked whether he had asked Behar "to have Lewis communicate with you."⁵ An objection was raised and sustained on the ground of hearsay. When Wenig was next asked whose initial idea and suggestion it was that Wenig meet Lewis, the prosecutor again objected and was sustained on the grounds of hearsay and exceeding the scope of the direct examination, despite the defense's strenuous argument that its line of questioning was for a narrowly limited, important and proper purpose.

During the continued cross-examination of Wenig following this initial colloquy at the side bar, defense counsel twice sought to elicit testimony or introduce other evidence regarding Behar's role in allegedly procuring Lewis for contact with Wenig. Each time the court sustained the Government's objection "for the reasons indicated at the side bar." On the second attempt, defense counsel asked the court "to have marked as a court exhibit the transcript of the Behar-Wenig meeting of March 27, 1967, so that the record will be complete." The court stated, "I don't see any necessity for marking it." At the end of trial, in support of his motion to set aside the jury's verdict, defense counsel handed up a 35-page copy of the transcript referred to, in order to demonstrate that counsel's earlier offer of proof regarding the conversation — i. e., that "if Mr. Wenig were asked what he said to Mr. Behar about Mr. Lewis, Mr. Wenig would have testified that he asked Mr. Behar to bring Mr. Lewis. * * *" — was accurate and had "substance to it." The Court had the transcript marked as "Court Exhibit 1 on motion for a new trial," but denied the motion on the ground that "the conversations between Wenig and Behar were at best peripheral and not sufficiently material."⁶

The transcript reveals the following. Wenig showed Behar a list of names and asked him, "Do you know any of these names here?" The first name on the list was that of Lewis. Behar responded, "David Lewis is the only one I think I know." Behar then asked, "On Dave Lewis, you want me to talk to him?" Wenig answered, "If you know him?" When Behar said he would talk to his group chief, a Mr. Block, about Lewis, Behar added, "I don't know Lewis to talk to." Wenig, undaunted, responded, "Oh but Block knows Lewis." Behar concluded with, "Well, maybe I can find somebody else that knows, maybe Moe Wacks knows."

It would thus appear that the web was woven on March 27, and that Lewis was brought by Behar to Wenig on April 3 at Wenig's instance, contrary to the prosecution's theory and Wenig's testimony that it was Lewis who initiated contact with Wenig through Behar. Given Lewis' defense of entrapment, it is difficult to conceive how a defense attempt to elicit testimony tending to show Government impetus for the commission of the alleged crime can be regarded as "peripheral."

In Lopez v. United States,⁷ the Supreme Court stated,

"The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents. * * Thus before the issue of entrapment can fairly be said to have been presented in a criminal prosecution there must have been at least some showing of the kind of conduct by government agents which may well have induced the accused to commit the crime." (Emphasis in the original.)

In United States v. Morrison,⁸ a panel of this court expanded on the nature and thus the conduct of the entrapment defense:

"We take this opportunity to restate what was implicit in our former decision United States v. Pugliese, 346 F.2d 861 (2 Cir. 1965): assuming that the government has initiated or set in motion the acts of the defendant, the entrapment defense probes not only the predisposition of the defendant to commit the crime with which he is charged, but alternatively, the conduct of the government in promoting the commission of the crime."

Moreover, with respect to the question whether Behar, as Wenig's agent, induced Lewis to commit the crimes, the defense had the burden of proof.⁹ That burden consisted merely of showing "the Government's initiation of the crime and not * * * degree of pressure exerted."¹⁰ Lewis was improperly denied a critical opportunity to meet this burden by the Trial Court's refusal to permit cross-examination of Wenig with respect to the conversation regarding Lewis, and the jury was thereby precluded from considering the impact of alleged Government instigation as well as Lewis' alleged predisposition to commit the crime charged. This clearly was far from "harmless error."

The Government argues that both of the Trial Court's stated reasons for preventing defense counsel from cross-examining with respect to the conversation, as it bore on who initiated contact as between Wenig and Lewis, were correct. These grounds were that the line of questioning went beyond the scope of the Government's direct examination and that in any event Wenig's testimony would be inadmissible hearsay.

This court's rule with respect to the scope of...