Medina, Waterman and Smith, Circuit Judges.
Codefendants, Jacobs and Spieler, were charged, first, with conspiring to bribe an Internal Revenue Service agent to influence an IRS investigation and so to obstruct justice in violation of 18 U.S.C. §§ 201, 1503 (18 U.S.C. §§ 371, 2), and, second, with offering a bribe to the agent, 18 U.S.C. § 201.*fn1
They were tried to a jury which returned verdicts of guilty against both defendants on both counts. Jacobs received concurrent sentences of one year on each count. Spieler was given suspended concurrent one-year prison terms and placed on probation for one year. Jacobs was released on his own recognizance pending the outcome of this appeal.
On appeal from the judgments of conviction they both advance the following claims: (1) the evidence was insufficient to convict them for attempted bribery or for conspiracy to bribe; (2) certain portions of the court's charge to the jury constituted reversible error; and (3) the use, without first having obtained a warrant authorizing the use, of electronic transmitting and recording equipment to overhear and record conversations violated their rights under the Fourth Amendment. In addition, appellant Spieler contends that he was a victim of a government plan of entrapment, and, also, that the court improperly denied his motion for a new trial predicated on "newly discovered evidence." We affirm both convictions.
The fateful progression of events and circumstances that ultimately led to appellants' indictments began in 1966 when the Regional Inspector's Office of the Internal Revenue Service in New York City undertook an investigation into an alleged attempt by a Martin Siegel and a Harold Adler to bribe a Revenue Agent, Gerald Stone, in connection with an audit of the 1964 and 1965 federal income tax returns of television comedian Alan King. Siegel, who served as King's accountant, and Adler, who was a theatrical agent for King, were subsequently indicted by a grand jury in mid-1967. Appellant Spieler, an attorney, represented Siegel in that grand jury proceeding. Appellant Jacobs, a businessman working in Manhattan, was a friend of and sometimes a lender of money to Spieler. Brian Bruh, a Special Agent of the IRS Intelligence Division, who was the Government's principal witness at the Jacobs and Spieler trial, completes the cast of characters. Agent Bruh was friendly with Jacobs. They had lived near each other in Brooklyn and Bruh had occasionally commuted in Jacob's car to and from work with Jacobs.
On April 4, 1967, Jacobs telephoned Agent Bruh and asked Bruh to meet him at his office the following morning. Bruh complied, and thus began a series of meetings between the two.
The jury found that the Government had proved beyond a reasonable doubt that the objective which Jacobs and Spieler sought to attain by contacting Bruh was to arrange a way to get Martin Siegel out of trouble with the law by enlisting the efforts of Bruh to that end and by the strategic placement of bribe monies to be raised through the efforts of Jacobs and Spieler. The story is best unfolded by relating the substance of what occurred during each of the meetings.
The Meetings of April 5 between Jacobs and Agent Bruh
Jacobs explained his purpose for wanting to meet with Bruh by saying that Jacobs's attorney and long-time friend had given him a description of an agent handling a case of bribery against Martin Siegel. Jacobs was positive the described agent was Brian Bruh, and further related (according to Bruh's recollection at trial) that:
Bruh asked Jacobs if he realized the seriousness of what he was proposing, but Jacobs replied that he did not regard anything about their discussion as illegal, that he considered Bruh his friend, and that he would report to his attorney that Bruh "just wasn't interested." Bruh left.
The matter did not end there, however, for Bruh, after having talked the situation over with his supervisor and after having reported the conversation to the Internal Revenue Inspection Service, returned to Jacobs's office that afternoon. Upon seeing Bruh, Jacobs expressed the hope that Bruh was not upset by the morning's discussion and said, as if coaxing were needed, that he knew that Bruh was interested in buying a house and "here was a chance * * * to make a lot of money." After Jacobs asked him if he were "really interested," Bruh replied that he would be, but first wanted to know what he was expected to do and how much was being offered for his help. Jacobs then dialed a telephone number and left word for a "Mr. Spieler" to return his call. Before Bruh left Jacobs told him the name of the attorney involved was Irving Spieler and that he would be in touch with Bruh again after he had talked with Spieler.
The Meeting of April 11 between Jacobs and Bruh
Prior to proceeding to Jacobs's office for another meeting Agent Bruh was equipped with a transmitting and recording device concealed on his person for the purpose of recording what might be said.*fn2 After some preliminary conversation, Jacobs said, "Spieler would like to know if Siegel was going to be indicted, and, if he was, he would like the indictment quashed." Jacobs then explained that Bruh could "perpetrate a fraud" on Siegel and Spieler by "getting $5,000 as a fee in advance and then, if the Government voluntarily decides not to indict Siegel, [Bruh] could always say that [he] killed the indictment and keep the money." Bruh replied by asking if $5,000 was what was being offered. Jacobs said that he had not as yet discussed the amount of the offer with Spieler, but that Bruh "could name [his] own price." Jacobs also told Bruh that Jacobs would be the one to transfer the money because Spieler "trusted him completely." Bruh was then assured that he would receive his money in advance and that Spieler would be the one to put up the money. Jacobs suggested that Bruh familiarize himself with Siegel's file and "determine how an indictment could be stopped." As a parting word Jacobs cautioned, "Be careful and don't get into trouble."
Agent Bruh was again outfitted with electronic eavesdropping devices and went to Jacobs's office.*fn3 Jacobs informed Bruh that he had talked with Spieler and that Spieler wanted Bruh's opinion. Bruh said that there was "a definite case" against Siegel, that he knew the IRS inspector handling the investigation, and because "it involves another fellow," $5,000 would not be enough. Bruh wanted to know what amount Spieler would be willing to offer and whether he should go ahead and contact the investigator handling the case. Jacobs then tried several times to reach Spieler on the phone to ...