# Petition — Bocra v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0175%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 875 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0175%3A1. Public record. Not legal advice.