Petition — Bocra v. United States

Supreme Court of the Huited

a.

; October Term, 1980

No.

WILLIAM BOCRA,

Petitioner,

ad

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UMTED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

JOHN R. PADOVA

RICHARD D. SOLO

SOLO, PADOVA & LISI

Attorneys for Petitioner

2nd Floor - 1201 Chestnut Street

Philadelphia, Pennsylvania 19107

(215) 568-1828

ie

LUTZ APPELLATE PRINTERS, INC.

law and Financial Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

(201) 257-6850 (212) 840-9494. (215) 563-5587 (202) 783-7288

2771

Supreme Court of the United States

ye

October Term, 1980

No.

WILLIAM BOCRA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

The petitioner, William Bocra, prays that this Court issue

its writ of certiorari to review the judgment and opinion of the

United States Court of Appeals for the Third Circuit which

affirmed judgment imposing a three-year prison term for

violation of the bribery statute, 18 U.S.C. §201(b).

QUESTIONS PRESENTED

1. Where the circuit court recognizes government

participation in and encouragement of bribery and no criminal

predisposition to commit bribery independent of this bribe was

shown, should not judgment of acquittal be ordered?

ii

2. Does conviction of a taxpayer for bribery of an Internal

Revenue agent not offend due process where the government,

through its most prolific bribee, stimulated, invited, participated

in and encouraged the commission of the bribery?

3. Was petitioner not improperly stripped of effective

assistance of counsel and deprived of a fair trial by the district

court rulings permitting only minimal discovery regarding the

extent and character of the involvement of the chief witness

against him in at least a dozen other bribery cases and

prohibiting any use of what evidence was developed about that

witness’ involvement at trial?

iii

TABLE OF CONTENTS

Page

Questions Presented .......seseceeeeeereeeeeereceeeees i

Table of Contents ...ccccciccccccccccccvvecccccccccces iii

BOR GE CHIRON. ov ccdesccctdcceeetvseetsevecssneehus iv

iW | BPPEP TT ULERI Cre CLEP Cee TT |

PURO. seh ace ccs ensue boduins ba dne th obesbe pemedeas + l

Constitutional and Statutory Provisions Involved ......... |

SAMAMMOM CE CAE CAGD. cincvavcdccesdacewedodecssedacens 3

Reasons for Granting the Writ:

I. The decision below conflicts with applicable

decisions of this Court by eliminating the defense of

entrapment for the unwary innocent. ...........+. 7

II. The court below decided an important question of

federal law which has not been settled by the

Supreme Court, as noted in the concurring opinion

of Justice Powell in Hampton v. United States, 425

U.S. 484 (1975) and which Justice Powell there

asserted should be settled by the Supreme Court . 8

III. The decision of the court below conflicts with

applicable decisions of this Court and courts of other

circuits regarding discovery of materials and their

use in cross-examination of petitioner’s chief accuser

SD CEM CONE. as co ce ctanccncss cee smh canbe 10

Bi TO ic Ke hen tVe aide dkbenninnmesous 10

iv

Contents

Page

B. Cross-Examination of Agent Lemp ......... 11

Conclusion ....... Vai wkend > kes cakngeas ce vives Renee 11

TABLE OF CITATIONS

Cases Cited:

Alderman v. United States, 394 U.S. 165 (1969) ......... 10

Alford v. United States, 287 U.S. 687 (1931) ............ 11

Davies v. Alaska, 415 U.S. 306 (1974) wnccccccccccccions 11

Hampton v. United States, 425 U.S. 484 (1975) .......... 8

Sherman v. United States, 356 U.S. 369 (1958) .......... 7

Smith v. Minois,'390 U.S. 129 (1968) ...ccpececcvccesede 11

United States v. Birdie Harris, 501 F.2d 1 (9th Cir. 1974). 11

United States v. Dansker, 537 F.2d 40 (3rd Cir. 1976) .... Il

United States v. Garrett, 542 F. 2d 23 (6th Cir. 1976) .... II]

United States v. Klosterman, 248 F.2d 191 (1957) ........ 7

United States v. Lewis, 447 F.2d 134 (2nd Cir. 1971) ..... 11

United States v. Lipton, 467 F.2d 1161 (2nd Cir. 1972) ... Il

United States v. Pfeiffer, 539 F.2d 668 (8th Cir. 1976) .... Il

VJ

Contents

Page

United States v. Rosenberg, Criminal No. 80-16 (U.S.D.C.-

WED aa dinivcedcdes dunt outesqaspatessbkheeesenee S. * 10

United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978) ..... 9

Statutes Cited:

18 U.S.C. §201(b) (1976) .........4.. CoNCcbecdueebnee 2, 4, 5

ERs, MEMEEED ccccccccccsccccecsceeeevesness new |

United States Constitution Cited:

FTO ch

MAME PRROMGMIOME 2... cccccccccccccrccccccessesesesess l

Rules Cited:

Federal Rules of Evidence, Rules 403 and 404 ........... 5

APPENDIX

Opinion of the United States Court of Appeals for the Third

Cisoult (Unreported) a .icccccccccsvcccndestbcccseses la

Order Amending Slip Opinion ........ccceeeeeeeeeeeces 20a

I

OPINION BELOW

The unreported opinion of the court of appeals is set forth

in the Appendix. No post-trial opinion was filed by the District

Court for the District of New Jersey.

JURISDICTION

The judgment of the Court of Appeals for the Third Circuit

was entered on May 29, 1980. A timely petition for rehearing en

banc was denied on June 26, 1980. This petition for certiorari

was filed within thirty (30) days of the date of denial of the

petition for rehearing. Jurisdiction is invoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY -PROVISIONS

INVOLVED

The Fifth Amendment to the United States Constitution:

“No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of

War or public danger; nor shall any person be

subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.”

The Sixth Amendment to the United States Constitution:

“In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial,

2

by an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously

ascertained by law, and to be informed of the

nature and cause of the accusation; to be

confronted with the witnesses against him; to

have compulsory process for obtaining witnesses

in his favor, and to have the Assistance of

Counsel for his defence.”

18 U.S.C. §201(b) (1976):

“Whoever, directly or indirectly, corruptly

gives, offers or promises anything of value to any

public official...or offers or promises any

public official. ..to give anything of value to

any other person or entity with intent —

(1) to influence any official act; or

(2) to influence such public official... to

commit or aid in committing, or collude in, or

allow, any fraud, or make opportunity for the

commission of any fraud, on the United States;

or

(3) to induce such public official. ..to do or

not to do any act in violation of his lawful

C..6:."

3

STATEMENT OF THE CASE

IRS Agent Lemp, a man who had received more bribe

offers from taxpayers than anyone in the history of the service,'

was sent to audit one of several small corporations owned by

petitioner’s family. Lemp’s audit of the corporations started in

the summer of 1978 and was dropped abruptly on November 17,

1978 when a bribe offer, made by petitioner and taped by Agent

Lemp, was consummated.? During the many months the audit

had continued, Lemp applied a kind of “Chinese torture”,

strikingly similar to the modus operandi (according to affidavits

he filed with the service to obtain electronic surveillance

equipment) in other cases where bribe offers were made to him.

The opinion of the court of appeals recognizes that I emp’s

conduct constituted at the very least reasonable doubt

concerning the existence of governmental inducement to

1. The bribe offers, which set a record, occurred in a three-year period.

The evidence shows that Agent Lemp was working on several audits, all

resulting in bribe offers, at one time. It also appears that the same people from

the IRS Inspection Service (the section to which bribe offers are reported) were

involved in all the cases, aad the prosecutor, in at least several of the cases, was

the Assistant U.S. Attorney who has handled the prosecution of this case. The

IRS records on which petitioner sought discovery were examined, in camera,

and largely denied .» petitioner’s counsel, and what patterns counsel was able

to develop were kept from the jury by the trial court’s restrictive rulings on

both direct examination and cross-examination. Petitioner has no way of

determining whether all records were submitted to the trial judge, Judge

Coolahan, for in camera inspection. However, on June 16, 1980, Judge Stern

of the same district court, dismissed the bribery case of United States v.

Rosenberg, Criminal No. 80-16 (U.S.D.C. — NJ), for prosecutorial

misconduct for failing to provide full records on Lemp’s bribes. In the

Rosenberg case Lemp was the principal witness for the government and the

rest of the prosecutorial “team” was essentially the same. The U.S. Attorney

who tried Bocra supervised.

2. After indictment, the U.S. Attorney, using subpoena power to prepare

his case, “completed” the audit.

4

bribery.’ Finally, the pressure of a seemingly unending audit and

the unquestioned signals that only “payola” would result in a

favorable end to the audit “got to” petitioner’s brother. He and

Lemp structured an arrangement where the Bocra family would

buy a boat and make it available for Lemp’s use — subject to

petitioner’s approval. Lemp, anticipating such approval at a

dinner meetirg with petitioner, applied for and received

electronic surveillance equipment. Lemp’s and petitioner’s

recorded conversation demonstrates that a bribe previously

fashioned by Lemp and petitioner’s brother (modified by

eliminating the ongoing relationship) was approved by

petitioner. When petitioner started to withdraw from the bribe,

Agent Lemp held him in, arguing that he had nothing to fear

from an equally culpable Lemp.

Petitioner was indicted and convicted of a violation of 18

3. At page 17a of the opinion Judge Rosenn admits “Although we betieve

the question is close and troublesome . . . we cannot say that as a matter of

law [sic] the evidence established entrapment” and at page 18a he castigates the

government by stating:

“...we are disturbed by a course of governmental

conduct here which appears to prey on the weakness of a

taxpayer. The primary mission of the Internal Revenue

Service is... not to encourage a taxpayer to commit

crime . . . we do not condone a government agent’s conduct

apparently calculated to raise a taxpayer’s anxiety and to

cultivate a climate for potential bribery. We see no reason

why there should be undue delays in an audit accompanied

by frequent social contact with the taxpayer. There is no

justification for the development of a first name relationship

with the taxpayer in the course of an audit and the social

involvement of the distaff side of the agent’s and taxpayer's

families to create an ambience which subjects even the

honest taxpayer to unnecessary temptation. The agent’s

duty is to conduct his audit promptly, efficiently and fairly,

not to probe the lack of strength of the taxpayer's

character.” (see Appendix, 18a-19a).

5

U.S.C. §201(b) for bribing Lemp and was sentenced to a three-

year prison term. The defense rested squarely on entrapment and

the prosecutor asserted non-initiation or predisposition. To

bolster the defense, petitioner’s counsel had sought discovery of

the IRS files on 12 other bribery cases involving Lemp. The

defense was only allowed copies of some, but not all, of the

affidavits filed by Lemp so he could obtain electronic

surveillance equipment and other parts of the files on two of

these cases. The district court made an “in camera” inspection

of what the government submitted to it but decided against

further disclosures to defendant. The defendant was barred

from use of any of what had been disclosed, either as direct

evidence or in the cross-examination of Lemp, his chief accuser,

because he had not shown a “sufficient” pattern by Lemp, under

Rules 403 and 404 of the Federal Rules of Evidence. The

prosecutor was allowed, on the other hand, to show, in order to

establish “predisposition to bribery”, that the petitioner had

been arrested for a barroom brawl and had been indicted (but

not convicted) on the charge of transporting a stolen tractor in

interstate commerce.°

The panel assigned to hear petitioner’s appeal by the Court

of Appeals for the Third Circuit repeatedly asserted how

troubled it was by the case — by the restriction on petitioner’s

cross-examination of Lemp, by doubts whether the government

and not the petitioner had initiated the crime, by doubts whether

the petitioner was predisposed criminally to commit the crime.

The panel “solved” its problem by totally changing the normal

4. In United States v. Rosenberg, supra, the U.S. Attorney who

prosecuted Bocra and supervised Rosenberg, conceded to Judge Stern that the

self-same material on Lemp, withheld from Bocra, should have been submitted

to the defendant’s trial counsel by the U.S. Attorney assigned to the Rosenberg

case.

5. He also was allowed to introduce evidence that the petitioner’s brother

had tried to offer someone a bribe.

6

rules of evidence, the prior guidelines on the defense of

entrapment and the normal burdens of proof. It avoided the

reasonable doubts, which it acknowledged fili this record, on

non-initiation, by saying the defendant did not establish that the

government initiated the crime “as a matter of law”(page 17a of

opinion). It eliminated the burden placed on the government to

show predisposition to commit bribery independently of the

inducement to offer this bribe by accepting as proof of

predisposition to bribe the fact that the petitioner may have

tested the water to ease the pain of the audit by appealing to

friendship he unwittingly thought he had with Lemp® before

making the bribe offer. The decision of the court of appeals in

this case eliminates the defense of entrapment, not just for the

unwary criminal, but also for the unwary innocent. No one can

dare assert that he was enticed to commit a crime if the pre-

requisite admission of commission itself gives the government a

license to entice.

A petition for rehearing was denied, but one circuit court

judge’ would have granted a rehearing.

6. At page l6a of the opinion the court says, in its only statement

regarding predisposition, “Lemp’s version of the fact was that Bocra, by

providing free lunches and requesting favorable tax treatment, clearly indicated

a predisposition to commit bribery.” Assuming the court below is saying

Lemp’s version of the res gestae showed predisposition and not that Lemp was

opining on predisposition, the mentioned activity hardly justifies a conclusion

of criminal disposition, let alone criminal predisposition. Parenthetically,

Lemp’s testimony was not that petitioner provided free lunches, but that

petitioner once suggested that the accountant and Lemp should have gone to a

family-owned restaurant for lunch.

7. Judge Gibbons.

7

REASONS FOR GRANTING THE WRIT

I.

The decision below conflicts with applicable decisions of

this Court by eliminating the defense of entrapment for the

unwary innocent.

In Sherman v. United States, 356 U.S. 369 (1958), the

Supreme Court drew “a line... between the trap for the

unwary innocent and a trap for the unwary criminal.” (id. at

372). That line is the independent predisposition to commit

crimes of a similar nature. Moreover, as noted by the Third

Circuit Court of Appeals itself in United States v. Klosterman,

248 F. 2d 191 (1957) the focus may not logically be upon the

disposition to commi< the very crime for which the defendant is

on trial because “... the defense of entrapment would never

prevail, since that defense must presuppose the commission of a

crime. . . .” While giving lip service to Sherman, supra, the court

below destroys the burden placed on the government that it

prove beyond a reasonable doubt (if it cannot prove that it was

not guilty of any misconduct in participating in the commission

of and encouraging the crime) that the defendant was

predisposed to commit the crime. In the instant case, the circuit

court asserts the existence of governmental misconduct which

encouraged the petitioner to commit the crime. It castigates the

Internal Revenue Service’s conduct “calculated to raise taxpayer

anxiety and to cultivate a climate for potential bribery . . . [for]

undue delays in an audit accompanied by frequent social contact

with the taxpayer...the development of a first name

relationship with the taxpayer in the course of an audit and the

social involvement of the distaff side of the agent’s and

taxpayer’s families to create an ambience which subjects even the

honest taxpayer to unnecessary temptation.” The court below

criticizes the Internal Revenue Service for probing “the lack or

strength of the taxpayer’s character.” (Appendix, 18a-19a). To

prove predisposition, in avoidance of the impact of this

governmental misconduct which led to the crime, the court

points to petitioner’s predisposition, proven by the agent’s

assertion that petitioner provided “free lunches and requested

favorable tax treatment.” Assuming, arguendo, that buying an

agent lunch and requesting him to “go easy” in the tax audit

constitutes criminality, it still relates only to the res gestae of this

crime and, if allowed to be proof of criminal predisposition, it

would utterly wipe out the line which must be drawn between

the unwary criminal and the unwary innocent.* The admission of

the commission of this crime (induced by the government)

becomes the proof of the justification for government

misconduct. The public policy which permits entrapment can

only find justification in law enforcement against already

existing and independent criminal activity. It can have no

justification in situations where no prior history of criminal

activity is shown. No person, with an otherwise unblemished

record, could assert the entrapment defense to bribery if his very

admission of the bribe would justify his entrapment. Such

circuity can find no justification in law enforcement.

The court below decided an important question of federal

law which has not been settled by the Supreme Court, as noted

in the concurring opinion of Justice Powell in Hampton vy.

United States, 425 U.S. 484 (1975) and which Justice Powell

there asserted should be settled by the Supreme Court.

In Hampton v. United States, supra, the appellant had

admitted his predisposition to engage in the sale of contraband

but he asserted that government participation with him in the

purchase and sale of heroin deprived him of d= process of law

and necessitated setting aside his conviction. Eight justices

8. The res gestae of an entrapment may reveal an ongoing criminal

enterprise as it often does in contraband cases and, therefore, independent

disposition — not the situation where the res gestae itself is offered as the sole

basis to show predisposition to commit this type of crime.

9

participated in the decision. The conviction was affirmed by a

five-to-three vote. Justice Rehnquist announced the decision of

the Court and wrote an opinion, joined in by Chief Justice

Burger and Justice White. In his opinion Justice Rehnquist

indicated that the due process defense, which would flow from

governmental participation in the commission of the crime, was

not available to the predisposed criminal. Justice Powell, joined

by Justice Blackmun, in an opinion which concurred in the

result, was not prepared to extend the holding of the Court

beyond cases involving sale of contraband.? He suggested that

the nature of an offense other than dealing in contraband might

very well require an opposite conclusion on the limits of

government involvement in the commission of the crime as a

matter of due process.

The instant case provides a factual situation in which the

needs of government agencies in a non-contraband case may be

tested in an appropriate way against constitutional standards of

fair play. The lower courts will unquestionably be facing this

issue and be in need of guidance in the highly publicized

“Abscam” indictments.

The court below tested the due process argument, which

petitioner asserted, solely against its own decision in United

States v. Twigg, 588 F. 2d 373 (3rd Cir. 1978), a contraband

case. It focused entirely, however, on a comparison of the degree

of outrageousness of governmental misconduct in the case of

Twigg, supra, and the instant case, without concerning itself

with the differences in problems of law enforcement between a

bribery case and a contraband case, the important due process

consideration alluded to by Justice Powell. The Internal

Revenue’ Service, as noted by the court below, is a tax collecting

agency and, unlike the Narcotics Division of the Treasury

Department, has no need to stimulate criminal activity.

9. Mr. Justice Powell indicated that government overinvolvement even in

contraband cases, might reach “such proportions as to bar conviction of a

predisposed defendant as a matter of due process.” (id. 493).

10

The decision of the court below conflicts with applicable

decisions of this Court and courts of other circuits regarding

discovery of materials and their use in cross-examination of

petitioner’s chief accuser in a criminal case.

A. Discovery

The decision of the court below permits the substitution of

an in camera examination of L~mp’s activities in other bribery

cases for defendant’s own examination and analysis. Petitioner

urged that the ruling of this Cowrt in Alderman v. United States,

394 U.S. 165 (1969), was violated by the trial court’s ruling. The

circuit court set a limitation on A/derman to situations involving

electronic surveillance. This distinction without a difference is, in

any event, inapplicable to this case since each of the 12 Lemp

bribery cases involve electronic surveillance.'® As a result of the

10. In United States v. Rosenberg, supra, Judge Stern rejected the

appropriateness of an in camera submission to him of the Lemp materials,

which Judge Coolahan took in camera. He stated:

“THE COURT: They were all Brady. They should

have all been turned over to Bender [counsel for

Rosenberg], not to the Judge. I should have had no role to

play. I was ignorant. I go from case to case. I don’t have the

benefit of speaking to agents before trial, nor a defendant

before trial. I don’t investigate cases on behalf of the

government or on behalf of the defendant. I haven’t spoken

to other defense attorneys or other prosecutors. I haven't

seen or heard a single witness in this case. I was in the least

good position to make a judgment as to whether anything

was Brady, particularly when it was admitted by everybody

that it was Brady.

The thing to do is not to submit to me. The thing to do

is not to fight from barrier to barrier, from ditch back to

redoubt, fighting and scratching and crawling trying to keep

it away from the defense attorney. The thing to do under the

Sixth Amendment to the Constitution and the Fifth, as well

— why is that wrong?”

The United States Attorney agreed with Judge Stern (T821).

limitations on discovery, petitioner was unable fully to confront

his chief prosecutor, Agent Lemp.

B. Cross-Examination of Agent Lemp

At the trial of the case, the petitioner sought to cross-

examine Agent Lemp by using Agent Lemp’s own affidavits,

prepared so that he might obtain electronic surveillance in other —

bribery cases. These affidavits would have provided the jury with

a better understanding of Agent Lemp’s character, motivation,

intent and credibility. The court below approved the limitation

imposed on petitioner’s cross-examination. This restriction

violates the protection afforded a criminal defendant by the

Sixth Amendment of the Constitution: Davies v. Alaska, 415

U.S. 308 (1974); Smith v. Illinois, 390 U.S. 129 (1968); Alford v.

United States, 287 U.S. 687 (1931); United States v. Garrett, 542

F. 2d 23 (6th Cir. 1976); United States v. Pfeiffer, 539 F. 2d 668

(8th Cir. 1976); United States v. Dansker, 537 F. 2d 40 (3rd Cir.

1976); United States v. Birdie Harris, 501 F.2d 1 (9th Cir. 1974);

United States v. Lipton, 467 F. 2d 1161 (2nd Cir. 1972); United

States v. Lewis, 447 F. 2d 134 (2nd Cir. 1971).

CONCLUSION

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the Third Circuit issued in this

case.

Respectfully submitted,

John R. Padova

Richard D. Solo

SOLO, PADOVA & LISI

Attorneys for Petitioner

APPENDIX

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT (UNREPORTED)

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 79-2271

UNITED STATES OF AMERICA

u's

BOCRA, WILLIAM, Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

D.C. Crim. No. 79-00094

Argued February 21. 1980

Before: ROSENN. SLOVITER. Circuit Judges. and

LAYTON. District Judge”

(Opinion Filed May 29. 1980)

JOHN R. PADOVA. ESQUIRE ( Argued)

Solo. Padova & Lisi

1201 Chestnut Street

Philadelphia. Pennsylvania 19107

Attorneys for Appellant

Ot Counsel

SAMUEL V. CONVERY. JR.. Esquire

137 Main Street

Metuchen. New Jersev 08840

Honorable Caleb R. Lavton. 3rd. Senior United States District

Judge tor the District of Delaware. sitting by designation.

2a

Opinion

ROBERT J. DEL TUFO

United States Attorney

BARRY TED MOSKOWITZ ( Argued)

- Assistant United States Attorney

Federal Building

Newark, New Jersev 07101

Attorneys for Appellee

OPINION OF THE COURT

ROSENN. Circuit Judge.

Appellant William Bocra was convicted of bribing

an agent of the Internal Revenue Service (IRS) in viola-

tion of 18 U:S.C. §201(b) (1976)' and was sentenced to

i three-vear prison term. At trial, Bocra’s main defense

was that he was the victim of entrapment by the IRS

agent. In this direct appeal from the imposition of sen-

tence. 28 U.S.C. §1291 (1976), Bocra charges, inter

alia. that he was denied a fair trial because the tria!

judge refused to allow him to introduce either as direct

cvidence or by cross-examination for impeachment pur-

poses. the IRS agent’s involvement in a number of other

1. 18 U.S.C. §2010b) (1976):

Whoever. directly or indirectly. corruptly gives. offers or

promises anything of value to any public official. . . or offers

or promises any public official. . . to give anything of value to

any ocher person or entity with intent —

(1) to influence any official act: or

(2) tw influence such public official . . . to commit or aid in

committing, or collude in. or allow, any fraud. or make opportu-

nity for the commission of anv fraud. on the United States: or

(3) toinduce such public official. . . to do or not to do any act

in Violation of his lawful duty. .

o

shall be fined more than $10,000 or imprisoned for not more

than two veurs. or both.

3a

Opinion

cases in which taxpavers were charged with attempting

to bribe him in violation of section 201(b). We attirm.

I.

This case arose out of the audit of two companies

owned and operated by the William Bocra family. Wil-

liam) Bocra was president of BBT Maintenance. Inc.

(BBT) and vice-president of Perth Amboy Iron Works

(Perth Amboy). The 1976 corporate income tax return of

BBT became the subject of an IRS audit and in February

1978. Arthur Lemp. an IRS agent. was assigned to the

case. Lemp. in the course of his audit. examined various

BBT records and discovered that Perth Ambov was a re-

lated corporation. He then determined that it would also

be necessary to audit the Perth Ambovy return for the tis-

cal vear ending Mav 31. 1977. This audit. however. was

not commenced until August 1978.

‘It was during the course of the Perth Ambov audit

that Lemp began to develop a personal relationship with

Bocra. his family. and the company accountant. On Au-

gust 1. 1978. Lemp commenced his Perth Amboy audit

and met Theodore Bocra (Theodore). appellant's brother

for the first time. Lemp accompanied Theodore and Wil-

liam Platter (Platter). the company accountant. to lunch

on the first dav of the audit. Theodore suggested to

Lemp that they play golf sometime but Lemp declined

the invitation due to the ongoing audit. Theodore paid

for the lunch except for a tip which Lemp left.

Lemp’s audit of Perth Ambov uncovered a financial

relationship with a restaurant known as Farrington

Manor (the Manor) owned by the Bocra tamilv. Lemp re-

quested a list of shareholders of the Manor and a list ot

loans which Perth Amboy had made to it. William Bocra

asserted that Perth Ambov had done some construction

work for the Manor but that it had been done on week-

ends using only scrap materials. Lemp was interested in

obtaining documentation of expenses deducted by Perth

4a

Opinion

\imbov in connection with the construction. but never

received the desired information.

The evidence at this point is sharply disputed by the

parties. At an August 7, 1978 meeting with William and

lheodore Bocra and Platter. Lemp claims the Bocras re-

quested him to go easy on them in the audit. Both Theo-

dore and William Bocra vigorously denied any request

lor favorable treatment. Lemp and Platter ate lunch to-

ucther but Lemp paid his share. William Bocra subse-

quently invited Lemp and his wife as his guests. to din-

ner at the Farrington Manor on August 11. The parties

dispute whether William or Lemp initiated this invita-

tion but Lemp tentatively agreed to the dinner. Lemp.

however. immediately notified the IRS Inspection Serv-

icc. Which has jurisdiction over attempted bribes. and

reported the dinner invitation. He was instructed to at-

tend the dinner and report any attempted bribes. The

dinner party. however, was cancelled due to William

Bocra’s illness.

Lemp continued his audit of Perth Amboy and revis-

ited the company on August 30, 1978. Bocra instructed

latter to take Lemp to lunch at the Farrington Manor

which Lemp savs he accepted because he wanted to ex-

umine the construction performed by Perth Amboy and

lnecause the IRS had requested him to continue to moni-

tor anv bribe attempts. Lemp received no bill for the

lunch. Lemp agreed to continue the audit at Platter’s of-

lice to reduce the time required for the audit.

Due to delavs in locating records, however. Lemp

did not resume the audit until November 9, 1978, when

le returned to Perth Amboy’s office. There he met Theo-

dore who told him that the necessary records were at

Platter’s office. Lemp remained at Perth Amboy, howev-

cr. for the bulk of the morning and talked with Theo-

dore. The parties sharply dispute the conversation.

Theodore claimed he told Lemp about an article in a

newspaper concerning dishonest government employ-

ccs. Which greatly upset Lemp. Lemp’s version of the

Sa

Opinion

conversation suggested that this conversation manifest-

ed Theodore's interest in offering a bribe.

Theodore invited Lemp to lunch. Before lunch.

Lemp asked him if he could fix a broken tire iron which

Theodore agreed to do. At lunch. Lemp claims Theodore

again requested easy treatment and that he would like a

“no change” report.* Lemp stated he had no reason to

make such a recommendation. Lemp testified that

Theodore then asked him to discuss the matter with Wil-

liam and suggested a dinner party at Farrington Manor

the next night. The remainder of the luncheon conver- —

sation centered on Lemp’s sailing avocation and Theo-

dore expressed a desire to learn how to sail with a corre-

sponding invitation to Lemp to use his boat in exchange

tor lessons. Theodore’s version of the conversation was

that Lemp clearly indicated that he wanted a boat. Theo-

dore claimed that he told William Bocra after this con-

versation that Lemp was trving to “shake them down.”

Lemp reported the renewed dinner invitation to IRS

Inspection Service and submitted an affidavit detailing

his conversation with Theodore. Lemp and his wife at-

tended the dinner on November 10 as William Bocra's

guests. Lemp agreed with the Inspection Service to wear

a concealed tape recorder and transmitter to the dinner.

No conversation relating to a bribe occurred at dinner.

William Bocra. however. suggested to Lemp that they

take an after-dinner stroll around the grounds. In the

course of their stroll. William and Lemp discussed the

audit with Lemp informing him that only $5.000 was

owed on the BBT audit. Bocra told Lemp how he could

not alford any financial difficulty at the time. Lemp then

recounted his conversation with Theodore the day be-

fore and asked William what he wanted to do. After

warning Lemp about the potential serious consequences

2. A “ne change” report is one in which the auditor recom-

mends that no additional tax is owed,

6a

Opinion

ol their conversation. William suggested that Lemp

might like a boat. Lemp recounted the conversation he

had with Theodore about the sailboat. Bocra said he

would get Lemp a boat or whatever else he wanted if

Lemp helped Theodore out on the audit. Lemp stated he

could not recommend a no change report. Bocra then

suggested an audit result of a small tax owed and offered

Lemp $2.500 for this result. Lemp indicated that he

would accept. Bocra again emphasized the seriousness

ol the conversation and Lemp manifested his under-

standiny that it was a crime to give and receive a bribe.

The two agreed to meet on November 17 at which time

Lemp was to have the audit report completed.

Lemp reported the bribe offer to IRS Inspection

Service. On November 17 Lemp arrived at Bocra'’s Perth

‘Amboy office and presented the requested favorable au-

dit report. Bocra signed the audit report and signed a

check for the small sum owed. Bocra then took Lemp for

a short drive and indicated that the $2,500 was placed

behind the sunvisor. Lemp took the money and immedi-

ately turned it over to the IRS Inspection Service.

William Bocra was indicted on March 16, 1979, on

briberv charges under 18 U.S.C. §201(b)( 1). Bocra’s de-

lense was that Lemp had entrapped him into making the

bribe. Defense counsel was aware that Lemp had been

involved in other bribery cases arising out of taxpayer

audits and filed a pretrial discovery motion for a sum-

marv of all other bribe attempts involving Lemp. The de-

lense sought access to these materials in an effort to es-

tablish that Lemp had been the solicitor and William

Bocra the innocent victim of an entrapment. The motion

was opposed by the United States Attorney on the

uyround that the requested material was collateral and

that except in three pending cases, the taxpayers had

cach pled guilty to bribery. The prosecutor submitted

the materials to the court for in camera inspection and

liled a motion in limine seeking to preclude Bocra from

mentioning the other bribe cases involving Lemp.

7a

’ Opinion

The district court ruled that under United States v.

McClure, 546 F.2d 670 (5th Cir. 1977). evidence of a

systematic campaign of inducements to commit crimes

' was admissible to negate criminal intent. Because the

material sought by Bocra related directly to his entrap-

ment defense, the court ordered that copies of all IRS

files involving bribery cases in which Lemp was involved

and an indictment returned be turned over to the de-

tense by June 25, 1979. He also ordered the Government

to produce three files for in camera inspection relating to

bribery cases involving Lemp in which no indictment

had yet been returned. The court, however. indicated

that the Government was free to file for a protective or-

der for the IRS material, which the Government

promptly filed. After completing his in camera inspec-

tion of the newly submitted material. Trial Judge

Meanor ordered that the defense receive only two re-

ports concerning Lemp and other bribes, but did advise

the defense that some of the materials submitted in cam-

era also related to a bribery case involving Lemp. This

material revealed that Lemp had been involved in sever-

al other bribe cases. The judge also granted the Govern- ©

ment’s motion for a protective order for the rest of the

material.

Trial commenced on June 27, 1979. The court is-

sued a bench opinion granting the Government's motion

in limine to prohibit the defense from using the informa-

tion relating to other bribery cases and Lemp. The court

ruled that the evidence at that time fell short of showing

a systematic campaign of solicitation prerequisite for ad-

_missibility under Fed.R.Evid. 404(b) and that the proba-

tive value of the evidence was outweighed by the poten-

tial jury confusion resulting from exploration of

collateral issues under rule 403. The court left open the

possibility for the defense to proffer testimony relating to

the other Lemp bribe cases to establish relevancy. Bocra

did proffer the testimony of two taxpayers who had pled

Opinion

guiltv to bribing Lemp, but after hearing it out of the

presence of the jury. the trial judge ruled again that the

evidence was inadmissible either as part of Bocra’s

case-in-chief or for purposes of impeaching Lemp. Bocra

was subsequently convicted and this appeal followed.

II.

Bocra raises numerous contentions on appeal. He

contends principally that (1) the district court should

have ruled as a matter of law that he was entrapped by

Lemp: (2) the conduct of Lemp was so outrageous as to

bar the conviction on fifth amendment due process

grounds under our decision in United States v. Twigg,

588 F.2d 373 (3d Cir. 1978); and (3) the court erred in

limiting discovery of Lemp’s involvement with other

briberv cases and in prohibiting the defense from intro-

ducing such evidence in its case-in-chief or on

cross-examination of Lemp. We will first examine

Bocra’s evidentiary argument concerning the restric-

tions on his exploration of Lemp’s involvement in other

bribery cases. If the district court erred in this ruling,

Bocra would have been denied an opportunity to present

all of his evidence on entrapment to the jury. Only if the

jurv properly had all the evidence on entrapment before

it. will it become necessary to examine Bocra’s legal and

constitutional contentions on entrapment.

The key to the successful establishment of an en-

trapment. defense is proof that the defendant was not

predisposed to commit the crime and that the criminal

intent in fact originated with the Government. See

Hampton v. United States, 425 U.S. 484 (1976); United

States v. Russell, 411 U.S. 423 (1973); United States v.

Twigg, 588 F.2d 373 (3d Cir. 1978). Bocra sought mate-

rials relating to Lemp’s involvement with other taxpayer

bribe cases to establish a pattern of solicitation by Lemp

which would cast doubt on Bocra’s predisposition to

9a

Opinion

commit bribery. Bocra argues first that the district court

erred in conducting an in camera inspection of the ma- |

terials relating to the other bribery cases and that gov-

ernment files should have been turned over directly to

the detense.

When defense counsel makes an appropriate dis-

covery request. the Government must respond bv turn-

ing over the materials directly (o the defendant or to the

trial judge. United States v. Agurs, 427 U.S. 97. 106

(1976). The submission of discovery materials to the

court for an in camera inspection and decision as to

which materials are discoverable is commonly used

when the Government’s need for preserving contiden-

tialitv over the materials must be balanced with the de-

fendant’s constitutional right to evidence material to his

detense. See United States v. Nixon, 418 U.S. 683. 94

S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v.

_ Brown, 539 F.2d 467, 470 (Sth Cir. 1976); United States

v. Scolnick, 392 F.2d 320, 327 (3d Cir. ), cert. denied sub.

nom, Brooks v. United States, 392 U.S. 931 (1968). In

order to overturn an in camera inspection, the defendant

must show that the district court abused its discretion in

denying access to requested materials. United States v.

Swanson, 509 F.2d 1205, 1209 (8th Cir. 1975).

The Government sought to protect the confidential-

itv of the IRS files involving Lemp and taxpayers who

_ were charged with bribery in other cases. Bocra claims it

was error for the court to proceed to an in camera in-

spection because the questions involved in establishing

entrapment are not susceptible to in camera review. He

contends that only defense counsel can make a determi-

nation of which data are relevant to the defense. Bocra

relies on Alderman v. United States, 394 U.S. 165

(1969), where the Supreme Court held that despite the

Government’s asserted confidentiality claim, in camera

inspection of materials obtained by electronic surveil-

lance was inappropriate. The Court stated: “(|T]he task is

too complex, and the margin for error too great. to relv

10a

Opinion

wholly on the in camera judgment of the trial court to

identify those records which might have contributed to

the Government's case.” Id. at 182 (footnote omitted).

However. the Court did note that it was speaking in

terms of the unique complexity of electronic surveil-

lance cases: “In both the volume of the material to be ex-

amined and the complexity and difficulty of the judg-

ments involved, cases involving electronic surveillance

will probably differ markedly from those situations in the

criminal law where in camera procedures have been

found acceptable to some extent.” Id. at 182-83 n.14.

We are not convinced that the issue of entrapment

or the examination of prosecutorial evidence in

' non-electronic surveillance cases is so complex as to

make in camera inspection inappropriate. The court is

asked to review the materials with an eve to anything

_ which might indicate that the intent to commit the brib-

erv offense was implanted by the Government. Although

such evidence may be subtle, we do not believe an able

and experienced trial judge was incapable of making an

intelligent evaluation of the materials necessary to the

defense. Under these circumstances, we cannot say the

district court abused its discretion in conducting an in

camera inspection of the government files relating to

Lemp’s involvement with other taxpayer bribe cases.

Nor do we believe the court erred in not releasing

the bulk of the Government's files on Lemp’s activities

with other taxpavers. We have carefully inspected the in

camera materials and have found nothing that indicates

the district court erred in its rulings. Accordingly. we re-

ject any suggestion that Bocra was denied materials

critical to the presentation of his defense.

The district court did release two government files

to Bocra. The Government filed a motion, however, to

prohibit Bocra from introducing any evidence either on

direct or cross-examination relating to Lemp’s involve-

ment with other taxpayers. It asserted that such evi-

i aa is A le a I I CR CN i aT AA BR Re ee oe MRC Ai

lla

Opinion

dence relating to Lemp's character was impermissible

under Fed.R.Evid. 404(b) and that its probative value

was outweighed by its prejudicial effect under

Fed.R.Evid. 403, The trial court sustained the Govern-

ment’s position at the outset of the trial but left open the

possibility that Bocra could make a proffer of the evi-

dence implicating Lemp in other bribe cases. Such a

proffer was made at the close of Bocra's cross-

examination of Lemp. The proffered evidence consisted

of the testimony of two taxpayers who had pled guilty to

bribing Lemp. The Government renewed its objection to

the introduction of this testimony. The court sustained

the objection and ruled:

The proof provided and described fails to show

that the defendant's alleged bribe of Agent Lemp

was part of a systematic campaign of bribe solicita-

tion by Agent Lemp. Accordingly, the proffered evi-

dence does not fall within an exception of the gener-

al exclusion of Federal rule of evidence 404(b).

Additionally and previously noted, in the pre-

liminary ruling on this motion, I further find that

the marginal probative value of the evidence does

not outweigh the substantial risk that it would con-

fuse the issues, mislead the jury, and consume

undue time. Thus, the evidence should also be ex-

cluded under Federal rule of evidence 404 |sic].

Bocra asserts that the proffered testimony was admissi-

ble under Fed.R.Evid. 404 and that even if it is not, he

should have at least been permitted to impeach Lemp’s

testimony through exploration of Lemp’s involvement in

the other taxpaver bribe cases.

The general evidentiary rule is that character evi-

dence is inadmissible for purposes of showing that a per-

son “acted in conformity therewith on a particular occa-

sion. . . .” Fed. R.Evid. 404(a). An exception exists,

however, when the character evidence is used as “proof

of motive. opportunity. intent. preparation, plan, knowl-

12a

Opinion

edye. identity. or absence of mistake of accident.”

Fed. R. Evid. 404(b). The Fifth Circuit in United States

uv. McClure, supra, 546 F.2d at 673-74, held: “|Under

Fed. R. Evid. 404(b2)| evidence of a svstematic cam-

paign of threats and intimidation against other persons

is admissible to show lack of criminal intent by a defend-

unt who claims to have been illegally coerced.” Bocra

maintains that the proffered testimony of the two tax-

_ pavers who bribed Lemp was evidence of a systematic

campaign by Lemp of soliciting taxpayer bntes thereby

negating any predisposition on Bocra’s part to bribe

Lemp. .

Although Bocra’s desired use of the protfered testi-

mony under rule 404(b) appears superticiallv plausible,

a close examination of the proffered evidence reveals

that the district court did not abuse its discretion in ex-

cluding the proffered testimony. Both witnesses were

. unable to testify that it was Lemp who solicited the

bribe.’ Neither presented an entrapmen: defense as

both pled guilty to bribing Lemp. We have varefuily ex-

amined the proffered testimony and agree vith the dis-

trict court that it is iegally insufficient to establish a

scheme of solicitation of taxpayer bribes »y Lemp. At

best, the testimony raises 2 mere speculative inference

that because Lemp was involved in other bribery cases,

he was a solicitor of bribes. We see nothing concrete in

the record to establish Lemp’s role as such and agree

that the marginal probative value of the protfered testi-

3. The first witness, Costello, testified on cross-examination:

Q. “To be frank with us. Mr. Costello, you can’t rerhember who

lirst brought up about pay ng Agent Lemp money; is that

correct?

A. 1 wouldn't be telling the truth if I said I did or he did.

Bocra’s second witness, Peirano, was able to testify only that Lemp's

silence made him believe a bribe was a possibility and that in fact it

was Peirano’s accountant who first brought up a bribe possibility.

13a

Opinion

mony was outweighed by the risks of jurv confusion

which would result from Bocra’s collateral evidentiary

excursion into Lemp's involvement with other taxpay-

ers. Accordingly. we hold that the court did not err in

barring Bocra from introducing the proffered testimony

as part of his defense.

The district court's restriction on Bocra’s cross-

examination of Lemp, however. is more troublesome.

Bocra also wanted to impeach Lemp’s credibility by

questions relating to Lemp's involvement in other cases.

The district court banned any such cross-examination,

apparently for the same reasons it excluded the prof-

fered testimony as part of Bocra’s defense.

The yoverning rule of evidence is Fed.R.Evid.

608(b) which provides:

Specific instances of the conduct of a witness,

for the purpose of attacking or supporting his credi-

bility, other than conviction of crime as provided in

rule 609, may not be proved by extrinsic evidence.

They may, however, in the discretion of the court, if

probative of truthfulness or untruthfulness, be in-

quired into on cross-examination of the witness (1)

concerning his character for truthfulness or un-

truthfulness. .. .

This rule would permit Bocra to question Lemp about

the other taxpayer bribe cases, if the court in the exer-

cise of its discretion determined that they were probative

of Lemp’s truthfulness or untruthfulness. Under no cir-

cumstances would Bocra be able to introduce the prof-

-fered testimony of the two taxpayers for impeachment

purposes without violating the extrinsic evidence prohi- .

bition of the rule. If Lemp denied soliciting other taxpay-

er bribes, Bocra would have to “take his answer” and

would not be able to introduce rebuttal testimony. See

Carter v. Hewitt, No. 79-1423 (3d Cir. Feb. 27, 1980),

slip op. at 14-15; United States v. Robinson, 530 F.2d

l4a

Opinion

1076, 1079 (D.C. Cir. 1976); 3 Weinstein’s Evidence.

1608/05] at 608-22 (1°79).

We must consider whether the district court abused

its discretion in prohibiting Bocra from cross-examining

Lemp as to his involvement with the other taxpayers.

Weinstein states: “Since Rule 608(b) is intended to be

restrictive. . . the inquirv on cross-examination should

be limited to. . . specific modes of conduct which are

generally agreed to indicate a lack of truthfulness.” 3

Weinstein, supra. 4 608(05] at 608-28. The Advisory

Committee note to Rule 608(b) comments: ;

Particular instances of conduct. . . may be in-

quired into on cross-examination of the principal

witness himself. . . . Effective cross-examination

demands that some allowance be made for going

into matters of this kind, but the possibilities of

abuse are substantial. Consequently safeguards are

erected in the form of specific requirements that the

instances inquired into be probative of truthfulness

or its opposite. . . . Also, the overriding protection

of Rule 403 requires that probative value not be

outweighed by danger of unfair prejudice, confu-

' sion of issues, or misleading the jury... .

From the foregoing, it is evident that the type of inquiry

into. specific conduct of the witness for impeachment

purposes is quite limited.

~ The classic example of a permissible inquiry would

be an incident in which the witness had lied. Bocra,

however, does not desire to journey into Lemp’s involve-

ment with other taxpayers for purposes of evaluating his

untruthfulness, but rather to show that Lemp was a so-

licitor of bribes. There is no allegation that Lemp was

untruthful in the other bribery cases. At best a specula-

tive inference would be raised that Lemp was involved in

too many bribe cases to make the charge that he solicit-

ed the bribes unwarranted. We see any cross-

15a

Opinion

examination of Lemp with respect to his involvement

with other taxpayer bribes as only marginally probative

of truthfulness. Indeed, Bocra seeks to establish through

cross-€xamination that which has been ruled inadmissi-

ble on direct — namely that Lemp was involved in a pat-

tern of solicitations. Rule 608(b) is meant to tie into Rule

403 and we believe the district court could have appro-

-priately concluded that the probative value of the

cross-examination was outweighed by the risk of confus-

ing the jury by collateral exploration. We therefore can-

not say that the trial judge abused his discretion in re-

fusing to allow Bocra to cross-examine Lemp about the

other bribery cases.

Our conclusion that Bocra was not erroneously de-

prived of the use of evidence relating to his entrapment

defense requires us to explore whether on the evidence.

the district court should have directed a judgment of ac-

quittal on grounds of entrapment.

We are asked to consider whether Bocra was en-

trapped as a matter of law. In order to defeat an entrap-

ment defense, the Government must prove bevond a rea-

sonable doubt that it did not initiate the crime or that the

defendant was predisposed to commit it. The kev inquiry

is a subjective one: did the intent to commit a crime orig-

inate with the defendant or with the Government. The

Supreme Court has held:

|T\|he fact that officers or emplovees of the Govern-

ment merely afford opportunities or facilities for the

commission of the offense does not defeat the pros-

ecution. Artifice and strategem may be emploved to

catch those engaged in criminal enterprises. .

The appropriate object ot this permitted activity. fre-

quently essential to the enforcement of the law, is to

reveal the criminal design:. . . . A different ques-

tion is presented when a criminal design originates

16a

Opinion

with the officials of the Government. and thev im-

plant in the mind of an innocent person the disposi-

tion to commit the alleged offense and induce its

commission in order that they prosecute.

Sorrells v. United States, 287 U.S. 4335. 441-42 (1932).

The Court has on several occasions reaftirmed this sub-

jective locus on the defendant's predisposition to com-

mit the crime as the essential element of the entrapment

defense. See. e.g.. Hampton, supra: United States v.

Russell, 4141 U.S. 423 (1973): Lopez v. United States.

373 U.S. 427 (1963): Sherman v. United States, 356

U.S. 369 (1958).

The determination of where a criminal intent origi-

nates. however. is at times difficult. particularly when

‘the Government takes an active role in cultivating the

opportunities in which the defendant's criminal intent is

allowed to gestate. As Chief Justice Warren stated in

Sherman, supra, 356 U.S. at 372. “a line must be drawn

between the trap for the unwary innocent and a trap for

the unwary criminal.” In Sherman, the Court reversed a

narcotics conviction because a government informant

had persuaded the defendant. who had been attempting

to avoid narcotics. to obtain for him a source of drugs.

The Court in overturning the conviction stated: “|T|he

Government plavs on the weaknesses of an innocent

party and beguiles him into committing crimes which he

otherwise would not have attempted. Law enforcement

does not require methods such as this.” Id. at 376.

We must accordingly consider whether Bocra pos-

sessed an independent criminal disnosition. to bribe

Lemp or whether Lemp in tact induced Bocra to make a

bribe he otherwise would not have made. The evidence

was highly disputed at trial. Lemp’s version of the facts

was that Bocra, by providing tree lunches and request-

ing favorable tax treatment. clearly indicated a predispo-

sition to commit briberv. Lemp merelv created the op-

portunity for Bocra to commit the bribe. Bocra’s version

17a

Opinion

was that Lemp carefully and purposely set him up by de-

veloping a personal relationship and by making direct

overtures indicating his interest'in taking a bribe.

The question of entrapment depended essentially

on the credibility of the witnesses and was properly sub-'

mitted to the jurv which rejected Bocra’s defense. Al-

though we believe the question is close and trouble-

some. we have made a thorough review of the evidence

in this case. and we cannot sav that as a matter of law

the evidence established entrapment. The jurv was in

the best position to evaluate the credibility of the wit-

nesses. and they quite properly could have rejected

Bocra’s version of the facts in favor of the version re-

counted by Lemp. We therefore hold that the defendant

has not shown entrapment as a matter of law.

IV.

Bocra argues that the conduct of Lemp was so

egregrious that a conviction is barred by the fifth amend-

ment’s guarantee of due process of law. He relies on our

decision in Twigg, supra, 588 F.2d at 378-79, which in-

dicated that “although proof of predisposition to commit

the crime will bar application of the entrapment defense,

fundamental fairness will not permit any defendant to be

convicted of a crime in which police conduct was ‘outra-

geous.’”’ Bocra asserts that the IRS’ conduct here, espe-

cially since the tax audit was discontinued following the

bribe, was so outrageous as to violate due process no-

tions of fundamental fairness.

Bocra’s complaint is that Lemp approached him

when he had no involvement in uny criminal activity.

and in essence, Lemp manufactured a crime without

anv reason to believe that Bocra was about to engage in

anv criminal activity. He claims that Lemp calculatedlv

used the IRS audit powers to delav the audit. thereby

placing a great strain on the Bocras which was exploited

through subtle suggestions that favorable tax treatment

could be available at a price.

18a

Opinion

The Government responds by arguing that Lemp's

conduct simply did not rise to the level of the outrageous

found in Twigg. In Twigg. the facts were undisputed. A

government informant approached the defendant with a

scheme for illegal drug manulacturing which the de-

lendant agreed to enter. The Government provided

much of the materials necessary for the project and ac-

tively participated in the drug manutacture. In the in-

stant case. there is no evidence that the audit was initiat-

ed to trap Bocra into making a bribe. The disputed facts

at best reveal Lemp’s willingness not to cut off anv bribe

attempt. Although Lemp did not actively discourage a

bribe. it is not clear from the record that he induced it.

We do not conclude that Lemp’s behavior in this

cause Was So OuLrageous as to bar conviction on due proc-

ess grounds of fundamental fairness. We view his ac-

tions as significantly less egregious than the Govern- .

ment’s activity in Twigg. We accordingly reject Bocra’s

claim that his conviction must be barred on due process

vrounds.

Nonetheless, we are disturbed by a course of gov-

crnmental conduct here which appears to prey on the

weaknesses of a taxpaver. The primarv mission of the

Internal Revenue Service is to collect federal taxes. not

to encourage a taxpaver to commit crime. Our system of

tax collection depends to a verv large degree on taxpaver

honesty. An attempt to avoid tax liabilitv through bribery

is indeed reprehensible. but certain aspects of the

agent’s conduct in this case also bear comment. Al-

though we are constrained to conclude that Lemp’s con-

duct does not bar the defendant's conviction under the

prevailing federal rule of entrapment. we do not condone

a government agent's conduct apparently calculated to

raise taxpaver's anxiety and to cultivate a climate for po-

tential briberv. We see no reason why there should be

undue delays in an audit accompanied by frequent social

contact with the taxpaver. There is no justification for

19a

Opinion

the development of a first name relationship with the

taxpaver in the course of an audit and the social involve-

ment of the distaff side of the agent's and taxpaver's

families to create-an ambience which subjects even the

honest taxpayer to unnecessary temptation. The agent's

duty is to conduct his audit promptly. efficiently. and

fairly. not to probe the lack or strength of the taxpaver’s

character.

Ff

Bocra raises several other contentions which we

have examined and find to be without merit. ' The judy-

ment of the district court will be affirmed.

A True Copy:

Teste:

Clerk of the Vnited States Court of Appeals

lor the Third Cireaut

4. Bocra claims the district court erred in admitting evidence

of Perth Ambov's tax deficiency as to show Bocra’s motive to bribe:

that the court erred in admitting lor impeachment purposes evi-

dence of a bribe by Theodore Bocra: that the court erred in allowing

admission of his prior arrest for a barroom brawl.

20a

ORDER AMENDING SLIP OPINION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79-2271

UNITED STATES OF AMERICA

| v.

WILLIAM BOCRA, Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

D.C. Crim. No. 79-00094

Argued February 21, 1980

Before: ROSENN, SLOVITER, Circuit Judges, and

LAYTON, District Judge*

(Opinion Filed May 29, 1980)

ORDER AMENDING SLIP OPINION

It is ORDERED that the slip opinion in the above

filed May 29, 1980, be and is hereby amended as fol-

lows: ‘

Page 2, footnote 1, delete the last paragraph follow-

ing the ellipsis and substitute therefor:

Shall be fined not more than $29,000 or three times

the monetary equivalent cf the thing of value,

whichever is greater, or imprisoned for not more

than fifteen years, or both,....

*Sitting by designation.

2la

Order

Page 7, paragraph 1, line 17, delete “Trial Judge

Meanor” and substitute therefor ‘Trial Judge Coola-

han.”

BY THE COURT:

MAX ROSENN

Circuit Judge

Dated: June 18, 1980

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

rT