United States v. Weiser

• Decision Date: 13 November 1969
• Docket Number: No. 181,Docket 33572.,181
• Citation: 428 F.2d 932
• Parties: UNITED STATES of America, Appellee, v. Frederick WEISER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

428 F.2d 932 (1969)

UNITED STATES of America, Appellee, v. Frederick WEISER, Defendant-Appellant.

No. 181, Docket 33572.

United States Court of Appeals, Second Circuit.

Argued October 1, 1969.

Decided November 13, 1969.

Irving Anolik, New York City, for defendant-appellant.

John R. Wing, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, Peter L. Zimroth, and Leonard M. Marks, Asst. U. S. Attys., on the brief), for appellee.

Before F R I E N D L Y, SMITH and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

Frederick Weiser, a former internal revenue agent, appeals from a judgment of conviction on various counts growing out of the alleged bribery of another internal revenue agent. After a six-day trial before Irving Ben Cooper, J., and a jury in the United States District Court for the Southern District of New York, appellant was convicted of conspiring to bribe inspector Harold Wenig (Count 1), 18 U.S.C. § 371; of bribing Wenig (Count 2), 18 U.S.C. § 201(b); of aiding and abetting three other agents in bribing Wenig (Counts 4, 5 and 6), 18 U.S.C. § 201(b); and of failing to report violations of the revenue laws which he knew the other agents were committing (Counts 10, 11 and 12), 26 U.S.C. § 7214(a) (8).¹ Judge Cooper imposed concurrent sentences of 18 months imprisonment on each count. Appellant makes a number of arguments for reversal of his conviction. Finding none of them sufficiently persuasive, we affirm.

I.

The point appellant presses most insistently is that he was entrapped; this claim grows out of the unusual facts of the case, to which we turn. Weiser's indictment arose out of an investigation by the Internal Revenue Service into corruption on the part of its own agents. In the course of that undercover inquiry, inspector Wenig assumed the role of a dishonest inspector willing to sell confidential information to internal revenue agents under investigation. In the fall of 1966, defendant Weiser became aware that Sidney Romanoff, a co-worker who was under investigation, was obtaining confidential information from Wenig concerning his own case. At that time, Weiser knew that he himself had been under investigation because a car wash owned by his wife and the wives of two other revenue agents was suspected of being a cover for illicitly received bribe monies. On November 2, 1966, Romanoff told Wenig that Weiser was interested in meeting him to obtain information concerning Weiser's case; it was Romanoff, not Wenig, who first mentioned Weiser. On December 5, Wenig told Romanoff that he had obtained some information for Weiser. Romanoff arranged a meeting on the next day, and told Wenig that Weiser was prepared to pay $100 for the information. As arranged, Wenig met Weiser and Romanoff at Roosevelt Field Shopping Center on Long Island. Romanoff introduced Weiser to Wenig and left them alone together. Weiser then gave Wenig $100 cash; Wenig showed him a Xerox copy of interview questions concerning the car wash investigation. They reviewed the questions and discussed answers designed to get Weiser through the anticipated interview. Weiser agreed to use the code name "Caruso" for contacting Wenig at his office. They met for a second time on December 13 to discuss "new information" which Wenig had discovered concerning alleged large cash expenditures by Weiser (for furniture, carpeting, basement improvements and a maid). Weiser assumed that this information was directed at proving wrongdoing on a "net worth" theory. He told Wenig that most of the items were incorrect, except for a $1,500 cash expenditure for furniture. Weiser said that the investigator would have a difficult time tracing the furniture, and discussed the possibility of claiming that his mother had given him the money on her deathbed. At this same meeting, Wenig mentioned another of Weiser's co-workers who was under investigation, Marvin Kramer. Weiser said that Kramer was a "good boy" and that Wenig ought to help him. On December 15, Weiser called Wenig to tell him that Kramer wanted to get information. At a meeting the next afternoon, Weiser and Wenig discussed in Kramer's absence the information concerning Weiser which had been revealed at the last meeting. Weiser also told Wenig that Kramer had the money ready. Then, in the absence of Weiser, Kramer gave Wenig $100 in cash in exchange for confidential information concerning his case. Weiser later performed similar go-between services for agents Max Kurman and Cesare Viviano. Weiser mentioned them to Wenig, introduced them to him, and they paid Wenig $200 in cash each for information relating to their own cases. Weiser actually was interviewed by the Inspection Service in January 1967; he found the information provided by Wenig to be so useful that he paid him an additional unsolicited $50 in cash following the interview.

II.

Based upon these facts, appellant argues that he was entrapped as a matter of law. Entrapment occurs when the Government induces the commission of an offense and the defendant was not "ready and willing without persuasion" to commit it and was not merely "awaiting any propitious opportunity" to do so. See United States v. Sherman, 200 F.2d 880, 882-883 (2d Cir. 1952). The burden is on the accused to prove the first element of the defense which "goes simply to the Government's initiation of the crime and not to the degree of pressure exerted." See United States v. Riley, 363 F.2d 955, 958 (2d Cir. 1966). The burden of proving the second element — often termed propensity — is on the Government. See, e.g., United States v. Smalls, 363 F.2d 417, 419 (2d Cir. 1966), cert. denied, 385 U.S. 1027, 87 S.Ct. 755, 17 L.Ed.2d 675 (1967). Appellant does not argue that the jury was improperly charged on these distinctions. Instead he says that what happened to him was a "classic illustration of premeditated entrapment * * * as a matter of law" and that the trial judge should have so ruled. We do not agree. There is evidence in the record that appellant, not Wenig, made the initial suggestion that he meet with Wenig to find out what "information" the latter might have about appellant. Moreover, even if the original solicitation had come from the Government, Weiser's propensity — indeed eagerness — to commit various crimes was clear. It was Weiser, after all, who clearly initiated the $50 bribe which is the subject of Count 2 of the indictment, and the record supports a finding that Weiser's efforts as go-between were his own idea and, in any event, willingly undertaken. Under those circumstances, the argument that he was entrapped as a matter of law is simply contrary to the record; the issue was one for the jury to determine. Apparently, what appellant is really suggesting is that it was improper or immoral for the Government to allow defendant to pay Wenig, whom he labels a "Judas Goat," for "phony" information. The immorality escapes us. Whether Weiser was truly being investigated by the Service is not the point, although apparently he was. The issue is whether Weiser was himself willing to bribe and to help others to bribe an internal revenue agent if the opportunity arose and, as to this, the jury verdict is conclusive.

Appellant also claims that unfortunate personal experiences were then causing him so much emotional strain that he could not resist an offer to relieve his tension, but this goes to the defense of mental illness discussed below. Cf. United States v. Henry, 417 F.2d 267 (2d Cir., 1969). As a final and peripheral argument on the entrapment issue, appellant argues that the court improperly prevented him, on his cross-examination of Wenig, from finding out the name of the "acquaintance" who introduced Wenig to co-conspirator Romanoff. However, the judge did allow inquiry into whether the person was a government agent and into Wenig's "method of operation" generally, the obviously relevant facts for defendant's entrapment argument.

III.

Appellant also argues that compelling him to be examined by a goverment psychiatrist violated his fifth amendment rights. Early in the trial, Weiser's counsel revealed that defendant would raise mental incapacity as a defense and said that his treating psychiatrist would testify on the issue. A few days later, Judge Cooper granted the Government's request that Weiser be examined by its own psychiatric expert; the examination took place the next day. During the trial, Dr. Edward H. Einhorn, the defendant's psychiatrist, related in detail Weiser's severe personal and family problems at the time of the crimes for which he was tried, as did Weiser himself. Dr. Einhorn gave as his opinion that Weiser could not resist the temptation to commit the crimes, i.e., that he lacked the requisite capacity, under the test of United States v. Freeman, 357 F.2d 606, 622 (2d Cir. 1966), to "conform his conduct to the requirements of law." The government expert, Dr. David Abrahamsen, gave a contrary professional opinion. In returning a guilty verdict, the jury obviously accepted the latter view, an option clearly open to them on the conflicting evidence.

Appellant argues that we should reverse the finding of criminal responsibility, but this borders on the frivolous. The real questions concern the court's order requiring Weiser to submit to a psychiatric examination and allowing Dr. Abrahamsen to testify as to the results of it.

Absent any constitutional infirmity, the district court had the power to order defendant to submit to the examination. In United States v. Driscoll, 399 F.2d 135, 139 (2d Cir. 1968), we said that "a strong case can be made for the existence" of such power, citing, inter alia, United States v. Albright, 388 F.2d 719 (4th Cir. 1968), and Alexander v. United States, 380 F.2d 33 (8th Cir. 1967). In United States v. Baird, 414 F.2d 700, 710 (2d Cir. 1969), that estimate was confirmed, and the district court's power to order a psychiatric examination was justified by the...