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United States v. Lewis

decided: August 13, 1971.


Waterman, Moore and Kaufman, Circuit Judges.

Author: Moore

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";*fn1 by the same token, without Wenig, Lewis had no case on the "inducement" aspect of his entrapment defense.*fn2 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."*fn3 The pertinent portion of the trial transcript dealing with the conversation, which is reproduced in the margin*fn4 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."*fn5 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."*fn6

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,*fn7 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,*fn8 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.*fn9 That burden consisted merely of showing "the Government's initiation of the crime and not * * * degree of pressure exerted."*fn10 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 cross-examination continues to be that it is limited to the "subject matter of the examination in chief,"*fn11 or in more modern parlance to "the limited scope of the direct examination."*fn12 While enforcement of this rule generally is within the trial court's discretion,*fn13 in a close case the rule must not be so strictly applied as to deprive the defense of an opportunity to present to the jury a vital element of the defense, here Government "inducement," an element of the entrapment defense on which the accused has the burden of proof.

Our inquiry is directed to whether the matter of the conversation was sufficiently opened up by the Government on Wenig's direct examination to entitle the defense to probe into whether it was Wenig rather than Lewis who provided the impetus for the fateful April 3 meeting. Just before the prosecutor asked the excluded question directing Wenig generally to recall the conversation, the following question was posed, "At this [March 27] meeting with Mr. Behar, did you have any conversation regarding David Lewis?" Wenig replied, "Yes, I did." The excluded question was then asked, objected to generally and sustained without comment by counsel or the Court. Questions regarding the subject matter of the pertinent part of the conversation were not picked up again until cross-examination of Wenig, when defense counsel asked, "Did you ask Agent Behar to have Lewis communicate with you?" The prosecutor objected, on the ground "that this is the same material that was objected to, when I tried to bring it out on direct examination, by Mr. Londin." The objection was sustained under the hearsay rule.

Under any generally accepted theory or definition of "scope,"*fn14 there is no doubt that the subject matter of the conversation was sufficiently opened up for searching inquiry on cross-examination.*fn15 The purpose of the question clearly was to lay the foundation for further questioning of Wenig on direct regarding the subject matter of that portion of the conversation. Rather than formulate a more narrowly framed question not violative of the hearsay rule, not a burdensome curative measure, the prosecution ceased to pursue that line of questioning and took up the matter of a March 30, 1967 telephone conversation with Behar (the contents of which also were not explored on direct), which provided the logical transition into the matter of the April 3 meeting, initially comprised of Wenig, Lewis and Behar. Thus, absent cross-examination as to the conversation, the jury was left by the prosecution with a strong and unrebutted inference that it was Lewis through corrupt middleman Behar, rather than Wenig through Behar, who arranged the April 3 meeting.

Wigmore points out that

"under the Federal rule, it is clear that nothing prohibits cross-examination to one's own case where the calling party has been allowed (ante ยง 1883) in his direct examination to bring out facts in rebuttal of a prospective ...

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