Appeals from judgment of convictions on six counts of aiding and abetting the bribery of Immigration and Naturalization Service officers, 18 U.S.C. §§ 2, 201(b), and one count of conspiracy to bribe INS officers and to defraud the United States, 18 U.S.C. § 371, following a jury trial in the Southern District of New York before Judge Inzer B. Wyatt. Affirmed.
Lumbard and Van Graafeiland, Circuit Judges, and Bonsal, District Judge.*fn* Van Graafeiland, Circuit Judge.
Fred Steinberg and Dennis Riese appeal from judgments of convictions entered on May 21, 1976 by Judge Inzer B. Wyatt of the Southern District following an eight day jury trial. Their principal claim on appeal is that they were victims of entrapment and should have been acquitted as a matter of law. We affirm the convictions.
Counts 2 through 7 of the indictment charged Steinberg and Riese with offering bribes to public officials in violation of 18 U.S.C. § 201(b); free meals were the bribe alleged in count 2, and $1000 in cash was the bribe alleged in each of the last five counts. Count 1 charged the defendants with conspiring to violate § 201(b) and to defraud the United States by unlawfully influencing the course of investigations by the Immigration and Naturalization Service. 18 U.S.C. § 371. The principal evidence against the defendants at trial came from testimony by two of the INS agents whom they attempted to influence and tape recordings of several meetings with the agents.
Agent John Volpe of the INS testified that on March 19, 1975 he and other INS agents went to a Brew Burger restaurant at Third Avenue and 59th Street in Manhattan to investigate reports that the restaurant was employing illegal aliens. While the agents were questioning restaurant employees, Steinberg appeared and identified himself as the night supervisor of all Brew Burger restaurants. He asked Volpe whether Volpe could overlook some of the illegal aliens, whether they could "work something out," and whether Volpe could notify him in advance of future raids. Steinberg also bragged that he had an illicit parking arrangement with city officials. Upon returning to INS headquarters, Volpe reported the conversation with Steinberg to his superiors, who instructed him to pursue his investigation of both Steinberg and the Brew Burger chain.
On March 31, Volpe, his partner, Agent Joel Moskowitz (who also testified at trial), and other INS officers went to another Brew Burger at Seventh Avenue and 34th Street. Shortly after their arrival, Steinberg appeared at the scene and again asked if something could be worked out. Agent Moskowitz replied, "No. Don't you ever say that again or you will be in big trouble," and walked away from the conversation. Steinberg then asked Agent Volpe not to arrest his girlfriend, who was one of the illegal aliens at the restaurant; Agent Volpe agreed and wrote out a pass to protect Steinberg's girlfriend from any future arrests. On April 9, at the request of his INS supervisor, Volpe prepared a memorandum of this March 31 conversation with Steinberg.
On April 29, Volpe and several colleagues raided a Brew Burger restaurant at 109 East 42nd Street, and Volpe requested the restaurant manager to contact Steinberg on the telephone. In the conversation that followed, Steinberg asked Volpe not to hit any more Brew Burgers that evening. Volpe agreed and then suggested a subsequent meeting with Steinberg to discuss the subject of "working something out." Following this April 29 conversation Volpe and Moskowitz had a series of meetings with FBI agents and an Assistant United States Attorney, and agreed to wear recording devices at all future meetings with Steinberg. They were instructed to see if Steinberg was going to offer them money and to "jump on the bandwagon" if he asked for "green cards."*fn1
On May 6, Volpe and Moskowitz went to a Brew Burger at Seventh Avenue and 32nd Street and asked the manager to telephone Steinberg as arranged. When Steinberg arrived and complained that the agents were really " blitzing" the Brew Burger chain, Volpe responded that he was there to work out a deal to remedy that situation. It was during this conversation that appellant Riese first appeared on the scene. Riese's father owned the Brew Burger chain, and he was Steinberg's fellow supervisor. Riese suggested a cooperative venture with the agents: "If we knew that you were coming there are certain people who we really don't mind losing out on. . . . Then we could set it up for you to look good. Take some people out." He also asked if there were any way the agents could help him to get a green card for one of his managers, explaining that Brew Burger had tried to obtain such a card once before for a manager but had been turned down. Volpe replied: "But you see, you didn't have a hook . . . . I am a nice hook, you know." Then:
Riese - "You ought to have some dinner on us a couple of times, ha, ha, you know, we can do the same hook."
Moskowitz - "The thing what you got to do . . . ."
Riese - "I don't know if you guys like, er, basketball or hockey tickets, we can get a lot of them"
Volpe - "We will see, you know, there's . . . ."
Riese - "I mean stuff like that. I give them out to all my friends."
Riese and Steinberg each reiterated the offer of free meals a few minutes later. The agents rejected Riese's suggestion, however, indicating that money was the best way to return any favors. Riese responded that this was "the worst thing" and that he was "very, very, very reluctant to do it." The agents replied that they too had been reluctant at first, but that now they knew how to play the angles like a lawyer so as to guarantee results. Volpe said: "We are not being crooked." As the conversation continued, however, Riese continued to express reluctance about the payment of money bribes, and the meeting concluded without a money bribe being offered.
Following this meeting Riese informed his supervisor, Eamonn Dolan, of the substance of the INS agents' request. Dolan, who testified for the government at trial, instructed Riese not to interfere with INS removal of illegal aliens from Brew Burger restaurants and not to have any further contact with the agents.
On May 14, Volpe, Moskowitz, and Steinberg met at a Brew Burger restaurant at Third Avenue and 52nd Street. Steinberg told the agents that the company should not fund any bribes because of the risks involved, but he offered to find Brew Burger employees who would themselves be willing to pay $1000 each to obtain green cards. It was ultimately agreed that Steinberg would locate five interested aliens, check their backgrounds to make sure that they had no criminal records or other blemishes that would impede the certification process, and arrange for himself and Riese to sign the required employment certificates.
On May 22, the agents met with Steinberg and Riese during another raid of a Brew Burger at Second Avenue and 42nd Street. The conversation turned to the subject of green cards:
Riese - "And you'll give them a card and they'll give you the . . . ."
Volpe - "I need a photo. When I give you the forms you gotta tell them to go to the Five and Ten and get four pictures for half a buck. Tell them to give me at least three of them in case I mess one up or something, or one of the cards gets messed up downstairs. They always want two or three photos, right?"
Steinberg - "Then they'll give you the money?"
Volpe - "Give us the money when we give them the form."
Riese - "I don't know anything about this. I don't know what you're talking about money, shit, Fred, you must know what he's talking about."
Steinberg - "Ha, ha, ha, ha, ha."
Later in the conversation, Riese asked that the agents arrange for fewer aliens to be arrested at each successive raid in order to be able to justify to INS superiors an eventual phasing out of Brew Burger raids.
When Riese left, Volpe and Moskowitz gave Steinberg a ride to the lot where his car was parked.During the ride, Steinberg announced that he himself intended to sign all the employment certification forms because Riese wanted not to get involved. However, since the FBI had asked for additional incriminating evidence on Riese, Volpe told Steinberg there might be problems processing the applications if they were all signed by the same person. Steinberg said he would try to persuade Riese to change his mind. It was also agreed that in view of Steinberg's services as intermediary, his girlfriend should receive her green card without payment.
The agents next met with Steinberg on May 27, gave him the application forms for green cards, and explained how they should be filled out. Steinberg returned the completed forms a few days later. Some were signed by him and some by Riese.*fn2
On June 12, as arranged, Steinberg and his girlfriend came to the Commodore Hotel where Volpe and Moskowitz gave Steinberg's girlfriend a green card. The other aliens also arrived at prescribed times, paid $1000 to the agents, and received their green cards. Steinberg, his girlfriend and all the aliens were arrested as they left the hotel. Riese was arrested the same day.
Neither Steinberg nor Riese took the stand at trial or presented any witnesses on his own behalf. The jury found both defendants guilty on all seven counts; Judge Wyatt suspended the imposition of sentence and placed both defendants on probation for three years under the Youth Corrections Act, 18 U.S.C. § 5010, which can be applied to young adult offenders under 18 U.S.C. § 4209.
The defense of entrapment is designed to protect innocent persons from being convicted for crimes that government agents have unfairly tricked or persuaded them into committing. "The controlling question [is] whether the defendant is a person otherwise innocent whom the Government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials." Sorrells v. United States, 287 U.S. 435, 451, 77 L. Ed. 413, 53 S. Ct. 210 (1932). Two stages of inquiry are involved. First, the defendant must prove by a preponderance of the evidence that the crime charged was initiated or induced by a government agent. United States v. Braver, 450 F.2d 799, 801-03 (2d Cir. 1971), cert. denied, 405 U.S. 1064, 31 L. Ed. 2d 794, 92 S. Ct. 1493 (1972). Thereupon the burden shifts to the government to prove beyond a reasonable doubt that the defendant was predisposed to commit the offense. Sherman v. United States, 356 U.S. 369, 373, 2 L. Ed. 2d 848, 78 S. Ct. 819 (1958); United States v. Licursi, 525 F.2d 1164, 1167-69 (2d Cir. 1975); United States v. Rosner, 485 F.2d 1213, 1221-22 (2d Cir. 1973), cert. denied, 417 U.S. 950, 41 L. Ed. 2d 672, 94 S. Ct. 3080 (1974); United States v. Sherman, 200 F.2d 880, 882 (2d Cir. 1952). Since in this case a correctly-charged jury found both defendants guilty, we should reverse only if we are convinced that the evidence of predisposition was too scanty to support a conviction by reasonable jurors.
The evidence of appellant Steinberg's predisposition was substantial. From the outset he entreated the agents to "work something out," and made frequent requests for prior notifications of INS raids. He actively participated in the development of the green card purchase plan, and was an indispensable intermediary between the agents and the aliens who purchased the cards. As part of the deal, Steinberg's girlfriend received an illegal green card free.
On the first two counts the evidence against Riese was equally strong. In his first meeting with the agents, Riese himself proposed the plan of setting up some aliens so as to make the agents look good while at the same time benefiting Brew Burger. Later in the same conversation, without prompting, Riese twice offered to bribe the agents with free meals and sports tickets if they would help in obtaining a green card. Riese was also the first to suggest that the agents should arrest fewer aliens at each successive Brew Burger raid and eventually stop raiding altogether.
There was also sufficient evidence for the jury to find predisposition on counts 3 through 7. In Riese's first meeting with the agents, he was ready and willing to offer them illegal bribes to obtain special consideration. Although Riese said on several occasions that he did not want to be a party to any cash bribes, this does not necessarily mean that he had a determination not to become involved in anything illegal; he may simply have been worried at the thought of money bribes and the increased risk of being caught. Riese was not bullied into making a snap judgment; if he felt he was being pressured into an illegal bribery scheme against his will, he had ample time to consult with others in the restaurant chain, which was owned by his family. He ignored the advice of his immediate superior, Dolan, who instructed him to have nothing to do with the agents. Riese's ultimate acquiescence in the bribery scheme may have been motivated by friendship with Steinberg or sympathy for the aliens involved, but it was not unreasonable for the jury to conclude that Riese all along was simply searching for a way to circumvent the law at minimum risk. Since the jury listened to the tapes, they could give intonations, pauses, and other oral clues such weight as they thought proper. Impressed by the seriousness of money bribes, Riese may have been attempting to protect himself by expressing reluctance, feigning ignorance, and leaving it to his fellow supervisor, Steinberg, to lead. We thus conclude that the evidence supported convictions of both defendants on all counts.
The judges of the majority are no less sensitive to overreaching by government investigators and prosecutors than is our dissenting brother. But we believe that twelve jurors who saw and heard the witnesses and saw the defendants throughout the eight days of trial are far better judges of the facts than we who sit in a more rarified atmosphere reading a black and white appellate record.Surely jurors are as sensitive to claims that agents of the government have used unfair methods in obtaining evidence and leading otherwise innocent persons to violate the law. The very same sentiments which the dissent so eloquently expresses were argued to the jury and nevertheless they were persuaded beyond a reasonable doubt of the defendants' guilt. Under the circumstances we think it would be going beyond the appropriate limits of judicial review for three appellate judges to second-guess the unanimous verdict of twelve jurors.
Nevertheless, appellants argue that the actions by the government's agents in this case were so reprehensible an invasion of their right to be left alone that automatic acquittals are required as a matter of due process of law or under the supervisory power of the federal court. The Supreme Court has not yet decided whether truly outrageous overreaching by government investigators in an entrapment case might warrant an acquittal regardless of a defendant's personal guilt. See Hampton v. United States, 425 U.S. 484, 491-95, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976) (Powell, J., concurring). We, likewise, need not resolve that legal issue here, as the investigative techniques used in this case were certainly not improper. The agents simply pursued and expanded on corrupt suggestions that were initially made by one of the defendants.*fn3
Appellants' other contentions can be disposed of briefly. The prosecutor's jury summation did no more than marshal the evidence and draw reasonable inferences therefrom. This is permissible and did not deprive appellants of a fair trial. United States v. Wilner, 523 F.2d 68, 73 (2d Cir. 1975). Appellant Steinberg urges that the government should have been required to prove the chain of possession of the tape recordings from the time they were made to the time of trial. No statute or court rule imposes such a burden on the government, and the testimony of Volpe as to the authenticity and accuracy of the tapes laid a sufficient foundation for their admission. United States v. Knohl, 379 F.2d 427, 440 (2d Cir.), cert. denied, 389 U.S. 973, 19 L. Ed. 2d 465, 88 S. Ct. 472 (1967). Finally, Judge Wyatt did not abuse his discretion in failing to ask specific questions proposed by appellant Steinberg for the voir dire examination of prospective jurors. United States v. Reed, 526 F.2d 740, 741-42 (2d Cir. 1975), cert. denied, 424 U.S. 956, 47 L. Ed. 2d 361, 96 S. Ct. 1431 (1976). Judge Wyatt's questions substantially covered the area of Steinberg's requests, and there has been no demonstration of prejudice resulting from the failure to ask the questions in the suggested form.