Before HAND, MEDINA and WATERMAN, Circuit Judges.
Defendants Louie and Wong, the two appellants, were charged with wilfully giving $150 to Dorris E. Yarbrough, an investigator of the Immigration and Naturalization Service of the United States Department of Justice, "with the intent to influence his decision and action on a matter at that time pending before him in his official capacity," and the jury found them guilty as charged, but with a recommendation for leniency. Each defendant was given a suspended sentence of two years imprisonment and they were placed on probation on condition that they cooperate with all agencies of the federal government.
It is claimed: (1) that no crime was proved and that the indictment should have been dismissed; (2) that entrapment was established as a matter of law; (3) that the jury was improperly induced to find appellants guilty; and (4) that it was prejudicial error to deny a pre-trial motion to compel the disclosure of a so-called "confession" signed by Wong and a transcript of questions put to him by an Assistant United States Attorney and his answers thereto.
We need not tarry long over the first point.Application had been made in San Francisco for the admission of two young Chinese as the sons of Louie. It developed at the trial that they were not his sons. On January 9, 1952, Louie, Wong and a third person appeared at the Immigration and Naturalization Service in New York City and their testimony, given through an interpreter, was taken by Yarbrough, a specialist in Chinese affairs, in the course of his duties as investigator; and the transcribed testimony was forwarded by Yarbrough to San Francisco for use by the immigration authorities there.
Later a letter was forwarded from San Francisco which led Yarbrough's superiors to assign to him the task of making a further investigation to determine whether a fraud was being perpetrated against the Government. In the course of this investigation Yarbrough called upon Louie and asked him whether his sons had been admitted. Louie replied that they had not. The substance of the ensuing conversation was that Yarbrough first raised the question of money by asking whether Louie had taken care of the interpreter. Louie said he had, but agreed to "cut him out" and give the money to Yarbrough. Wong, who spoke better English, was to follow this up, which he did by telephone, finally fixing the amount as $250, half of which was to be paid at once and the balance after the boys were admitted. What Yarbrough was to do was to "take more testimony and then write a letter to Washington." On May 1, 1952, Yarbrough, Louie and Wong met at a restaurant, and, in the view of several FBI men, Wong placed $150 in currency, covered by a napkin, in Yarbrough's hand, and appellants were arrested.
It is beyond dispute that Yarbrough was engaged on official government business*fn1 and that the payment was made to induce him to take some action which would, as appellants hoped, result in the admission of the two boys. There was ample basis for a finding of corrupt intent. It was of no moment that Yarbrough had no authority to grant or deny the application of the alleged sons for admission to the United States. Nor need we inquire into the question of how far he was subject to the orders of his superiors or what he could or could not have done to further the scheme of appellants to get the so-called sons of Louie past the immigration authorities in San Francisco.Yarbrough was an official investigator and appellants endeavored to influence him to neglect his duties by means of a bribe. There was plainly enough evidence to justify the submission of the case to the jury. United States v. Birdsall, 233 U.S. 223, 34 S. Ct. 512, 58 L. Ed. 930; United States v. Troop, 7 Cir., 235 F.2d 123; Wilson v. United States, 4 Cir., 230 F.2d 521; Krogmann v. United States, 6 Cir., 225 F.2d 220; Hurley v. United States, 4 Cir., 192 F.2d 297; Kemler v. United States, 1 Cir., 133 F.2d 235; United States v. Levine, 2 Cir., 129 F.2d 745; Whitney v. United States, 10 Cir., 99 F.2d 327; Cohen v. United States, 6 Cir., 294 F. 488, certiorari denied 264 U.S. 584, 44 S. Ct. 333, 68 L. Ed. 861.
While it is true that Yarbrough first brought up the subject of money, the very recital he gave of his conversations with Louie and Wong was enough to support a finding that there was no entrapment. The instructions to the jury on this issue were unexceptionable and clear. The predisposition to the commission of the crime charged is further to be inferred from what was said by appellants on the subject of "taking care of" the interpreter, and Wong's statement, "If this works, I have several more. There is one at Ellis Island now." And the suggestion that the money was paid as a mere "gratuity" has little to support it, as neither Louie nor Wong testified in his own defense.
But the jury were troubled over the case. On the first trial, in May, 1953, the jury became hopelessly deadlocked and they were discharged.We do not know what caused the long delay before the second trial in February, 1956. Despite the statements made by appellants which the prosecution calls "confessions," and which make it clear beyond cavil that the money was paid and that appellants hoped for some sort of assistance or at least lack of opposition on the part of Yarbrough, there were elements in the case including the testimony of the character witnesses, which undoubtedly caused some and perhaps many of the jurors to hesitate to vote for the verdict which was ultimately recorded in the trial now under review.
After receiving the instructions of the trial judge, the jury commenced its deliberations at 3:50 p.m. At 6:00 o'clock the jury returned to the box and submitted three questions which were pertinent to the issues and which the trial judge answered well enough. He then asked the jury whether they thought they could dispose of the case before 6:30 or wanted to go to dinner. He added, "I don't want to rush anybody; I want to give both sides a fair trial." The foreman replied, "We will try"; and the jury retired for further deliberations.
At 7:35 p.m., still without any recess for dinner, the jury returned and inquired,
"If we bring in a guilty verdict, can we find one defendant guilty in a lesser degree than the other?"
The trial judge said, "No," and further deliberations continued without pause until 9:20 p.m., when the jury submitted two further questions:
"Can we recommend leniency for one or both defendants? If not, can we bring in a verdict ...