LOPEZ v. UNITED STATES

Print this transcript Transcript: 

Argument of Edward J. Davis

Chief Justice Earl Warren: Petitioner Versus United States number 236 on the docket.

Mr. Davis?

Mr. Edward J. Davis: Mr. Chief Justice may it please the Court.

This case here is here on certiorari on question one; the petitioner relies on Rule 52(b) of the Federal Rules of Criminal Procedure.

The petitioner was indicted on four counts, on bribery charges alleged to have been committed in violation of Title 18 U.S.C., Section 201.

The petitioner was found not guilty on count one, which alleged that the petitioner bribed United States Revenue Agent, Roger S. Davis on October 24, 1961 and violated [Inaudible] to refrain from making an examination of books and records relating to sales and receipts of the bar and lounge at Clauson's Inn, Falmouth, Massachusetts in the years 1959 and 1960 and the first two quarters of the year 1961 from computing tax on said sales and receipts and reporting the same to the Internal Revenue Service.

The tax alleged is a cabaret exercise tax that would attach if the operation was conducted with the entertainment of singing or dancing in connection with the playing of the orchestra or jukebox.

There was evidence at the trial to support the charge in count one that the petitioner offered Agent Davis a bribe of $420 on October 21, 1961.

On the record of the trial, there was no dispute that the petitioner gave and Agent Davis received $420 on October 21, 1961.

The issue was, whether it was given and received as a bribe and the jury decided that is was not a bribe under the charge.

Counts two, three and four alleged that the petitioner bribed Agent Davis on October 24, 1961 with intent to influence him to conceal from the government the sales and receipts of any cabaret tax due thereon for the petitioner's operation of the bar and lounge at Clauson's Inn for the years 1959, 1960, 1961 and thereafter.

The jury returned guilty verdicts in counts two, three and four.

The uncontroverted facts established by the government's evidence are set out for record references on pages 6 to 16 of the petitioner's brief.

The facts show as follows: First of all, the record is darn of any activity in the petitioner's business operation at Clauson's Inn, showing that the petitioner conducted, held out or knowingly permitted the singing or dancing entertainment that would create the tax liability prior to October 16, 1961, at which time the policy was changed to offer such entertainment as shown on the books of the petitioner and on the defendant's Exhibit D in the record.

Further at the trial, Government Agent Davis testified that he knows no basis for a cabaret tax liability on the operation prior to August 31, 1961.

The Revenue Inspection Service organized a plan to entrap the petitioner by arranging for Agent Davis to go to Clauson's Inn on October 24, 1961 and meet with the petitioner at the petitioner's private office according to their stated purpose, to relate back, the conversation of Davis and the petitioner to the meeting of October 21, 1961.

Agent Davis testified that his agreement with the petitioner was to return to the premises so that he could file a return if due.

Agent Davis came to Clauson's Inn on October 24, 1961 in concert with other agents with a Minifon on his person.

Invited himself into the petitioner's office and the Minifon recorded what the petitioner and Agent Davis said and did at the meeting.

The Minifon recording is an evidence over objection and shows at the outset of the meeting of October 24, 1961, that the plan was frustrated by a statement of the petitioner stating, “I never did thought a cabaret tax, I never thought there was a need of it.”

This statement registered the mind of the petitioner then and there with the force of a verbal act.

Notwithstanding this statement, agent Davis proceeded to convert his operation into the making of cabaret tax claims, false and fictitious in view of the fact that he knew of no basis of cabaret tax for 1959, 1960 and 1961 prior to August 31, 1961.

And that these statements of fact of claims were grossly false and grotesque in relation to the petitioner's operation.

Agent Davis stated to the petitioner at this meeting on October 24, 1961, a claim of tax penalties, which was false on the facts.

Immediately following this claim of penalty, agent Davis made the thrust for the bribe, “Now, I don't want to get greedy or anything, but well what would you be gaining?”

In effect, the request for the bribe and the bribe resulted pursuant to the request.

As under Sherman against United States conduct of the government agents relevant and important and the conduct cannot be disclaimed by the government, with respect to the facts that I have stated here, I would ask the Court's attention for the following.

Referring to the meeting of October 21, 1961 the testimony of Agent Davis was, “I told him,” referring to the petitioner, “I asked him how much money was on the desk and he said $420.

About that time I picked the money up, it was about 10 o'clock.

I put it in my pocket and left his office.”

When Agent Davis left Clauson's Inn with the $420 that Saturday night, he was in a predicament.

Obviously, he was in violation of regulations of his department in any event.

Under the regulations, if there was an indication of a bribe, he was to change the subject, close the file and leave.

He had been attached to the Internal Revenue Service for two years and was in account of it.

His visit at Clauson's on October 21, 1961 was routine.

A policeman investigating a matter is routine would consider it as unthinkable, to take a bribe without a corroborating witness and then attempt to explain it to a superior.

And the facts in this case, he testified that he first talked with a fellow agent after leaving the inn on the night of October 21, 1961 and then later, with his Group Chief at the instance of a fellow agent.

At the time, Agent Davis on his own testimony had no basis for an excise tax on the petitioner's operation, for any time prior to August 31, 1961 and he did not state to the petitioner on October, 21, 1961 that he owed any amount prior to October 16, 1961.

His superiors even know or ought to have known these facts and also the agreement of Agent Davis with the petitioner that he was to return to the premises.

So that he, the petitioner, could file the return if due, before they started up with the task force equipped with Schmidt and Minifon devices to entrap the petitioner.

On the testimony, none of the Revenue Service Agents know of any basis that the petitioner owed any excise tax on the operation.

Consequently, there is involved in this plan, an operation of the Revenue Inspection Service Agents in concert with Agent Davis and imputable to Agent Davis at least, the relief of his own situation.

In relation to the invading of the petitioner's mind by Agent Davis with lies to setup a false promise for tax liability to ensnare and provoke him into criminality, it is submitted is diabolic in aspect and sounds [Inaudible].

Under Sorrells and Sherman, entrapment symbolizes instigation of a crime by government officers.

Also, the defense of entrapment is properly invoked from the officers of the law. Induce a person to commit a crime, which he would not otherwise have committed.

Agent Davis from the facts of this case instigated, incited, persuaded and induced the petitioner to make the bribe in circumstances where the agent created a false framework of facts in the petitioner's mind of cabaret tax liability, impossible to have been conceived by the petitioner.

Chief Justice Earl Warren: Was the issue of entrapment raised at the trail?

Mr. Edward J. Davis: And because in my argument I brought it up and the Judge charged on the Law of Entrapment.

Chief Justice Earl Warren: Well, when the evidence was introduced, was there any objection on the grounds of entrapment?

Mr. Edward J. Davis: No, not as such, not until the time of the argument and of course, my argument here is, on the facts as established by the government's case, with the government's evidence, having been raised with the argument and the Judge having charged on it, we are properly here on that issue.

May I proceed, Your Honor?

Chief Justice Earl Warren: Yes you may, yes certainly.

Mr. Edward J. Davis: The offense --

Justice John M. Harlan: The issue was submitted to the jury, was not?

Mr. Edward J. Davis: It was submitted to the jury.

Justice John M. Harlan: Improper instructions?

Mr. Edward J. Davis: Improper instructions as will be shown under question two.

Justice Potter Stewart: Did you request instructions in addition?

Mr. Edward J. Davis: No, that's here on Rule 52(b) also, that's here on Rule 52(b) here also.

Justice Potter Stewart: Well, is the answer then no, you did not request instructions?

Mr. Edward J. Davis: The answer is no.

Justice Potter Stewart: And did you object to the instructions given?

Mr. Edward J. Davis: No, I did not.

The offense on the facts on the record could not have been committed without the construction of these false premises by Agent Davis implanting them in the mind of the petitioner and these acts of Agent Davis manifest the construction and creation of the crime by Agent Davis.

It could not be found on any basis whatsoever that the petitioner was pursuing a criminal design with respect to the charges in counts two, three and four and specially, such a design which he had already conceived with relation to the events of the meeting of October 24, 1961.

Chief Justice Earl Warren: Did the defendant testify in the case?

Mr. Edward J. Davis: Yes, he did.

Chief Justice Earl Warren: Did he testify that he was entrapped?

Mr. Edward J. Davis: He did not.

He testified in effect that he was nervous and didn't know much about what happened, it was all been taken in the Minifon and the entire --

Chief Justice Earl Warren: He didn't know it was being taken on the Minifon?

Mr. Edward J. Davis: Oh no, he didn't know.

Chief Justice Earl Warren: Well, did he say he was entrapped into giving this money?

Mr. Edward J. Davis: My only answer is that, he testified as to the second meeting of October 24 in effect that there were a lot of claims and charges and he in effect didn't realize the whole part of it and he couldn't testify too much on it.

I'll have to refer to the record on that as to what he said.

Justice Tom C. Clark: And he knew he was an agent?

Mr. Edward J. Davis: What's that?

Justice Tom C. Clark: And he knew he was an agent?

Mr. Edward J. Davis: Oh yeah.

And he knew that the government agent was there under precise agreement to come there to make out that is the petitioner was to make out a return if due that was the exact agreement.

The government in its brief --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Edward J. Davis: He didn't dispute that.

There was no dispute about that and on the issue, he was found not guilty of a bribe on count one.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Edward J. Davis: The judge went very far in his instructions in that respect, I'll say that.

I don't think that there are any intendments the way with respect to of the fact was, he was found not guilty of the charge, that's right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Edward J. Davis: Very pointedly sir.

The government in its brief, I'm glad Your Honor brought that up, I think I can answer it at this time, the government in its brief imputes to the petitioner two alleged misconceptions, first in effect that the equivalent of count one was an adjudication of evidence requiring the rejecting of the government's evidence and accepting the petitioner's version.

On the contrary, the petitioner's position was that the government's evidence in the case as I stated it, establishes entrapment as a matter of law.

Secondly, the government imputes to the petitioner in its brief that by reason of the acquittal on count one the case must be judged as though no bribe offer had been made by the petitioner on October 21.

Again, the petitioner answers, that no such assumption has been made as an effect of acquittal on count one, but that the offer of the bribe is in effaced, because there was entrapment on the government's evidence.

If in fact the crime of bribery were to be committed on October 21, 1961 under Sorrells and Sherman, it would be the duty of officials to detect and procure the evidence, but not to instigate and create a new such crime or another crime on October 24, 1961.

This principle was the holding in Sam Yick against the United States, 240 Federal, cited in Sorrells with approval where a Chinese attempted to bribe an officer relating to smuggling Chinese.

Well there apart, enticed the accused to combine with him in illegal smuggling of Chinese and then charged him with a lot of crime.

This was held to constitute entrapment.

In the case of United States against Klosterman, 248 Federal second set out at length in the brief, the petitioner's brief, it was decided as a matter of law, there was illegal entrapment on the facts where a federal agent was charged with bribery to close an income tax case.

Klosterman predicated his decision on Sorrells and the case has particular significance to the petitioner's case here.

Klosterman on the basis of Sorrells stated the issue as whether or not the criminal intent proceeded from the government agents of whether or not these agents simply afforded opportunities to one already disclosed to be alleged criminality.

Klosterman decided that the test to be applied under the principles governing illegal entrapment is, “Was the defendant a man otherwise innocent who would not have committed the crime, but for official solicitation or was he predisposed to pursue a criminal desire, which he have already conceived.”

Justice Arthur J. Goldberg: [Inaudible]

Mr. Edward J. Davis: October 24th.

Justice Arthur J. Goldberg: 24th.

Mr. Edward J. Davis: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Edward J. Davis: I am coming down to that Your Honor please in my second question.

As the Court said in Klosterman, an alleged bribe in connection with an income tax matter is not a recurring crime in a series.

The defendant Revenue Agent Deeney in the case actually conceived the plan to participate in a bribe to close a tax case and approached a fellow agent that they act together on it, a fact, which the Court deemed a criminal act by itself.

Later agent Deeney events the intention to withdraw and as shown by the excessive persuasion, he abandoned the intent and the particular intent for the commission of the bribery was thus originated and engineered by the government officers.

The Court so held and so said.

In the instant case there was more than excessive persuasion by the government agent.

He originated and engineered the false framework of facts as to tax liability in the petitioner's mind, which was relation to persuasion was recklessly and grossly false, grotesquely in oddment with respect to the subject matter and the petition.

A brief examination of the record on pages 84 and 85 at a glance will show this.

On the facts, it could be not found that the defendant was pursuing a criminal design, which he had already conceived with relation to the events of October 24, 1961, or a general or a special intent to commit the alleged bribe when the government agent conceived and planned it on October 24, 1961 and in terms of causality, it is inescapable that the crime would not have been committed but for official solicitation.

Now, if Your Honor please, I will turn to question two.

Justice John M. Harlan: Before you leave that, do you know [Inaudible]

Mr. Edward J. Davis: My answer, Your Honor, is two-fold.

First of all, on the established evidence, if they did take the evidence into consideration, that the entrapment as a matter of law, so it should have been beyond that consideration.

Now secondly, if the question would have to come up afresh with a severance of a trial, it might very well be objected to on the basis in the view of the acquittal as a fragmentation of evidence.

But our position here is that on the evidence and it's clear on the Minifon that was introduced by the government and the government's witness that on the events taking place on October 24, 1961 those facts show entrapment as a matter of law irrespective of what occurred on October 21, 1961, that is my position.

Now if I may turn to the charge and may I ask the Court's attention to page 27 of the petitioner's brief?

The quote at the bottom of the page charged, now the law with respect to entrapment is this.

“If a government agent by improper means or over-bearing persuasion or wrongful conduct induces a person of ordinary firmness to commit a crime, which he would not otherwise commit, then under those circumstances, the defendant is to be acquitted, not because he did not do something wrongful, but because he was induced to do a wrongful act, which he would not otherwise have done.”

Now on the third paragraph, on page 28, the burden of proof with respect to entrapment is on the defendant.

Now, it is to be noted that there was no issue as to how an ordinary person would have reacted or done in the position of the defendant.

The issue was whether the defendant was entrapped, not whether an ordinary person would have been, and this is expressly filed and held in United States against Monroe 257 Federal predicating in on Sherman in this Court.

Justice William O. Douglas: Were there any exceptions to this exemption?

Mr. Edward J. Davis: No there not Your Honor.

Justice William O. Douglas: Did you offer instructions on this Court and they refused?

Mr. Edward J. Davis: No I did not.

Further, the burden of proof must be allocated.

The burden is upon the defendant to produce evidence that government agents induced him to commit the crime, and whenever this has been brought up by the defendant, the government must prove beyond a reasonable doubt that inducement was not the cause, the creator of the crime and I cite United States and Laundry and Lefkowitz against United States as appears on page 29.

Now may I ask the Court's attention to pages 30 and 31, and I say this whole matter is clearly elucidated by Judge Learned Hand in the case of United States against Sherman 200 Federal.2d.

May I ask your honor's attention particularly to page 31?

Judge Learned Hand is speaking of the charge to the jury -- of the Court to the jury where the jury had returned for instructions and the judge concluded his charge as follows.

“The law says you can't trick anyone into it by artifice or fraud such as giving a fabulous offer, or telling somebody that you are in excruciating pain and you must have it, or some such inducement that would put the idea into somebody's head where it never existed before.”

Continuing in the words of Judge Learned Hand, “With those as the last words on the subject the jury retired and came back almost at once with a verdict of guilty.

So far it concerns the defense, that is the inducement, it was complete without "trickery" or "fraud."

It includes soliciting, proposing, initiating, broaching or suggesting the commission of the offence charged.

Now on the matter -- the issue was whether the defendant was entrapped not whether an ordinary person would have been, the Court continues, “We are not sure whether the idea that must not have existed before in somebody's head, we assume this meant the accused was the idea of committing the particular offence charged.

If so, it added nothing to inducement simpliciter.”

And the Court goes on, “No view can we find that the cause was presented to the jury in such terms that they could apply the law as we understand it, and the error, which went to the very heart of the prosecution, was grave enough to be noticed, although the defense had not accepted to it.

Fed.Rules Crim.Proc.Rule 52(b).

Justice Arthur J. Goldberg: [Inaudible]

Mr. Edward J. Davis: Yes, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Edward J. Davis: Well, I think I can move into it directly by saying and I base it what I have set forth in my brief.

Now the law with respect to entrapment is this, “if a government agent by improper means or over-bearing persuasion or wrongful conduct induces a person of ordinary firmness to commit a crime.“

I think that shows error with respect to the matter of putting it into on the thesis of an ordinary man, but in any event, there is no question about it, on the judge's charge on the burden of proof, as I have stated in connection with Mr. Judge Learned Hand had said.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Edward J. Davis: I think the trouble with that Your Honor is that he didn't allocate proof, and if so, it wasn't allocated exactly on the charge.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Edward J. Davis: That's right.

Now, Your Honor, I would like to address myself to question three.

Agent Davis testified with respect to the meeting of October 24, 1961 on inquiry by the Court calling for precise statement.

What I agree to was to return to the premises so that he the petitioner could file a return “If Do”.

Thus the government Agent Davis' indifference to the private office of the petitioner under a precise agreement to transact clearly defined legal government business with the petitioner.

And his presence there represented to the petitioner, this time with the Minifon on this person under instructions from his superiors, he invited himself into the petitioner's private office with the purpose of business doing crime.

At the trial, admission of the testimony of the Agent Davis on the Minifon recording was objected to, as evidence obtained by unreasonable search under the Fourth Amendment.

If the evidence were excluded, the case in counts two, three and four would trail for lack of proof.

Under application of Gouled and Silverman, the evidence was obtained via unreasonable search under the Fourth Amendment and not to have been excluded under the exclusionary rule of evidence.

On the facts, the condition of the status to the planned operating to entrap was a misrepresentation of the agent's status.

He thus gained entrance to the office by misrepresentation of status and his presence there was by stealth and subterfuge, but the agent saw and heard the occurrences recorded on the Minifon proceeded from the creative activity of the agent and the stealth thus secured his presence there.

Justice William J. Brennan: Mr. Davis, this Minifon, is that a trade name?

Mr. Edward J. Davis: Yes, it's an electronic device that is attached to the person, the agent in this case and it records waves and it could be transferred outside, but it records -- it is a two-fold affair.

It records right on the machine what is said and done on this machine.

Justice William J. Brennan: On a tape or something?

Mr. Edward J. Davis: On a wired recorder.

Justice William J. Brennan: And it is a trade name?

Mr. Edward J. Davis: It's a trade name.

Under the circumstances, I have about three or four minutes on this constitutional question.

Your honor, please may I have it.

Chief Justice Earl Warren: You may.

Mr. Edward J. Davis: Thank you very much.

Well, the intention by the agent by direction of his superiors in the office of the petitioner under the deception with the Minifon on this person.

I argue, was such as to exercise powers in reality more there if an additional government agent were upon the premises by stealth in concert with Agent Davis to procure evidence as to what was said and done.

It is submitted that Agent Davis was in the office by stealth without permission by reason of misrepresentation of status on the Gouled versus United States.

Now I have cited in my brief, the case of United States against Lefkowitz on page 46.

And in effect, the holding there that where there was a misrepresentation of status by a federal agent.

Evidence in the nature of information as extracted from papers not covered by the agent's status was in violation of the Fourth and Fifth Amendments as decided by Boyd.

Now that the context of the profession extents from prying or spying into the private papers in the home or office was specifically argued by counsels for Gouled in the brief on which Charles Evan Hughes was Consulate.

It was so argued by Serjeant Glynn with great force in Entick against Carrington cited in Silverman and the principle so like it was approved by that Court.

The principle says to invasion of privacy enunciated by Entick and Carrington were of course approved and formed the foundation of Boyd.

On coming to this that this principle and the principles enunciated in Gouled -- more or so three minutes --

Chief Justice Earl Warren: You may take two minutes more.

Mr. Edward J. Davis: -- to the statement in Silverman admitted to as an essential to the holding of the case.

“This Court is never held at a federal officer may without warrant or without consent physically entrench into a man's office or home there secretly observe or listen and relate at the man's subsequent criminal trial what was seen or heard.”

It is submitted that the entrenching by agent Davis under the deception stated with a Minifon on his presence on the misrepresentation of his status was the invasion of a constitutionally protected area by stealth with physical powers and reality more powerful that if an additional government agent were upon the premises by stealth in concert with agent Davis to procure evidence as to what was said and done and as Silverman was prohibited by the Fourth Amendment.

Shall I have a minute?

Chief Justice Earl Warren: All right, finish it up.

Mr. Edward J. Davis: The government relies on, On Lee versus United States, 343 Untied States.

Chief Justice Earl Warren: Are you reading from your brief?

Mr. Edward J. Davis: Not from my brief, from notes.

There are three elements of essential difference.

You know, On Lee, first the agent was not a federal officer or employee and was a stool pigeon employed through the other.

Secondly, the stool pigeon used an electronic device to record this in the Chinese laundry open to the public.

Third, there was the question of relationship.

There was absent the relationship with a federal officer in a private office to have conducted a brief and legal tax business with United States, which by deception was converted to a plan to entrap.

This relationship I argue comes within purview of the statement by Mr. Justice Stewart in Lanza against the State of New York, in which he said with respect to an area immunized by the constitution, the relationship was the line [Inaudible] would particularize confidentiality, must continue to receive safety and protection.

Chief Justice Earl Warren: Mr. Claiborne.

Argument of Louis F. Claiborne

Mr. Louis F. Claiborne: Mr. Chief Justice, may it please the Court.

On the issue of entrapment, I think the full answer is disclosed by an analysis of the testimony in the record.

I won't go through it in detail.

I simply want to point out that there were only fourth times when entrapment can be claimed.

There were four visits by agent to the premises, Clauson's Inn.

The first time was on August 31st around noon.

At that time no entrapment is claimed, no offer was made, no bribe was received.

Later that same evening August 31st there was a second visit, but during this visit there was by agreement in the testimony, no conversation between the agent and petitioner and we come to October the 21st in the evening.

At that time as I understand the petitioner's argument both in his brief and today, no entrapment is claimed.

It is however true that the agent accepted $420 from the petitioner, but he did so according to his testimony after refusing it several times and without in anyway inducing it.

This in our minds establishes the petitioner's willingness to bribe the agent and is the beginning of the criminal design to settle his tax liability through bribe.

The same design continues three days later on October the 24th when there is second meeting.

Chief Justice Earl Warren: Before you get to that Mr. Claiborne, what was the defendant's explanation as to the October 21st payment of 400 and some dollars?

Mr. Louis F. Claiborne: He says he was paying that amount to the agent in order that the agent on his own time prepare returns for the petitioner.

However, the testimony shows that the petitioner was in his words anxious to get a friendly and not a belligerent agent.

On Page 111 of the record, the following occurred.

Well, it's on Page – well, page 111.

Now up to that, I'm reading from the third question down, now up to that time, had there been any talk in any connection whatsoever that money of any kind, this is petitioner testifying, not up to that time sir, he is testifying on direct examination and answering questions from his own counsel.

Chief Justice Earl Warren: Petitioner's testimony.

Mr. Louis F. Claiborne: Petitioner's testimony thought in answer to his own counsel's questions.

Next question, now after that statement that [Inaudible] was made, what next occurred, what was said by you and what was said by him.

Petitioner answers, “Well, I said to Mr. Davis, I said, I don't know how to ask you this, but I would rather have you as a friendly agent than a belligerent one,” something to that effect.

I said, “Would you be willing to help me to prepare and form a cabaret tax whenever it comes due and whatever is necessary to make it up, if you wish to do this and on your own time, I will pay for it.”

This is the Petitioner's own explanation of the reason to which he gave the $420.

But according to the Petitioner himself, this is volunteered by him before there is any question of money as the beginning to, before the subject of money even comes up.

We think it's therefore clear that the idea of transfer of money for whatever purpose originated in the Petitioner's mind.

Justice Arthur J. Goldberg: This is on October 21st?

Mr. Louis F. Claiborne: This is on October 21st.

Now, as I understand it, the Petitioner makes no claim with respect to October 21st, but he makes no claim that he was entrapped on that day.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Louis F. Claiborne: I think Your Honor's question to Petitioner's counsel resolved that point, however, the acquittal as to October 21st in view of the Judge's instructions merely shows that the jury did not believe that the money was given for the purpose of preventing the agent from examining the books, but it did not show that the money may not have been given for another purpose such as suppressing the tax liability regardless of the books.

As a matter of fact, the tax liability wouldn't have appeared in the books.

Now, getting to October the 24th, everyone agrees, I take it that the only testimony with regard to that date which the jury can have considered is the recording itself, recording is complete.

It was authenticated.

There has never been any question about it being a true and accurate recording of the events that took place on that date.

Now as I understand, the petitioner, his only referenced even for October the 24th, his the only pinpointed reference to any claim of entrapment is after the agent goes through a long series of computations and ends up with a figure of $10,000 or $12,000 as liability and makes some remark at that point “I don't want to be greedy.”

I think it's important to point out what had already occurred on that same date according to the same recording before any such statement was made.

On page 81 of the record, the recording is reproduced in the record from pages 80 to 94, this is right at the beginning.

The Agent walks in, the Petitioner asking to have lunch, the Agent refuses, suggests they go into the office, they do so.

The Agent then says, how long you have been in business, the Petitioner replies, two and a half years, but no facts or figures have yet been detailed.

And at this point, according to the transcripts of the recording, at page 81 towards the bottom, Lopez says, “I want you to have my confidence and I want to have your confidence too.”

Davis says “Well, what is it.”

Lopez says again, “Listen, I want you to understand 100% confidential, I want you to place as much confidence in me too” and then this interruption and turning to page, we get a further statement by Lopez.

“Whatever we decide to do from hereon, I'd like you to be on my side and visit with me.

Deduct anything you think you should and I'll be happy too, because you may prevent something coming up in the office,” and so forth.

Clearly there, the bribe offer is already being made long before the statement complained of which appears on page 85 towards the bottom of the page.

I think the record so clearly dispels any notions of entrapment as a matter of law that I need not pursue that point.

There is a claim that the instructions were erroneous.

One of the members of the Court has already suggested that the instruction as to burden of proof may well be cured by the general instruction on burden of proof, which appears at page 129 of the record.

But in any event, even conceding that there was an error in the charge, we take the position that entrapment was not an issue in the case at all.

It was not even a tax issue, need not have been submitted to the jury.

The judge in submitting it to the jury was merely responding to the oral argument of the defendant.

He was perhaps giving defense counsel, something harmless for nothing.

He gave the petitioner more than he received in our view.

It's perfectly clear that on October 24th, the Defendant, the Petitioner was trapped.

A trap was set for him, in the sense that the evidence of bribe, which had already taken place was deliberately set up, but this is a thoughtcrime in saying that he was entrapped in the legal sense.

This is simply obtaining evidence, it wasn't putting in his mind the idea of committing the offense.

Chief Justice Earl Warren: Is there any difference to the opinion as to whether the agent actually fabricated a claim of taxes against this man and that it was purely fictitious, it didn't exist at all except in the mind of the Agent?

Mr. Louis F. Claiborne: Your Honor, the testimony of the agent is very clear that on two prior occasions he had observed that [Inaudible] which just --

Chief Justice Earl Warren: I can't quite hear you Mr. Claiborne.

Mr. Louis F. Claiborne: I'm sorry.

Chief Justice Earl Warren: Would you speak little louder?

Mr. Louis F. Claiborne: The Agent's testimony is very clear that he had on two previous occasions, October the 31st at noon and in evening August 31st, at noon and the evening and again on October the 21st, witnessed dancing in the premises, which would subject the Petitioner to cabaret tax.

Now even this County, the agent's testimony, the recording shows that the petitioner admits the dancing had taken place long before October 16th because he makes a reference to the summer months.

He says, it's very difficult to stop the dancing on weekends on Saturday nights.

So he is -- by his own means or by the recording, clearly aware of the fact that there had been dancing going on that he hasn't been able to stop it, but this does subject him to tax liability.

The extent of the liabilities, the accuracy of the figures maybe subject to dispute, but the fact of a genuine liability I think is beyond question.

Chief Justice Earl Warren: How far back did the agent attempt to trace that?

Was it to prior years?

Mr. Louis F. Claiborne: The claim was made for 1959, 1960 and 1961 all of which is occurring in the fall of 1961.

The reason for choosing 1959 is that, that is when the Petitioner began an operation at those premises.

Chief Justice Earl Warren: Is there anything in the record at all to show that in 1959 or 1960 that he was acting, he was running a cabaret, in the sense that he'd have to be taxed for it?

Mr. Louis F. Claiborne: Well, there is this, Your Honor that when the agent is making these computations to the petitioner, all this is attested by the recording, the Petitioner does not disclaim a liability for prior years, he might say -- as he now says, all this dancing only started recently, I didn't have it back in 1959, but he says no such thing.

He acquiesces in the computation going back to March of 1959, when he took over the operation.

So there is no claim that there was a change in status except his belated claim that on October 16, 1961, it was changed.

But that belied by the admission that it occurred during the summer months.

Chief Justice Earl Warren: So it's a position where the government that it cannot be truthfully said, that this agent fabricated a false claim of tax liability against the petitioner?

Mr. Louis F. Claiborne: That is correct Your Honor that is the government's position.

To conclude on this point, the court I think already aware the petitioner's claim is very belated.

He did not defend on a theory of entrapment.

He made no motion for judgment of acquittal on the ground of entrapment or for that matter on any other ground.

Justice Potter Stewart: When you say he did not defend on the basis of entrapment, what precisely do you mean, this is not something that you have to allege in your -- it's on the original pleadings like this, not covered by a pleading of not guilty, isn't it?

Mr. Louis F. Claiborne: I understand that Your Honor, but his own testimony did take the stand always was “I didn't do it.

The money I gave was for preparing my tax return".

He might have said granted that I gave the money in response to a request for a bribe that it wasn't my idea, it was the agent's idea.

He might have defended on the ground.

Justice John M. Harlan: Through his own testimony.

Mr. Louis F. Claiborne: Through his own testimony.

And then of course his attorney could have raised the issue more directly by suggesting a charge, which he did not, by asking the judge to charge on his own, which he did not.

By arguing even to the jury less ambiguously than he did, charged to jury, I mean the closing argument of the defense counsel is not in the record.

However, we have filed the copy of it with the Court since the question has come up as to a possible raising of the issue there.

And finally of course, the defendant did not accept the charge given and the errors he now complains of were only raised on appeal.

Now turning to the second issue in the case, the use -- well, as I understand the petitioner's argument, he objects not only to the introduction of the recording, but he objects equally to testimony of the agent with respect to the conversation that was recorded.

Nevertheless, we treat the two questions somewhat separately.

As to the agent himself, clearly he was guilty of no trespass in entering the petitioner's office.

He used no force, no threats, no substitute.

He didn't even make an affirmative misrepresentation.

He had previously identified himself as a revenue agent, he was well known to be a revenue agent.

He did, however, misrepresent his purpose, if you will, in that he didn't say, “I will reveal what you tell me” but that is the extent of any misrepresentation.

It is certainly less than the misrepresentation On Lee on the question of trespass by misrepresentation.

We of course feel this case is governed by the On Lee decision.

Now as per the instruments, it is argued that the instrument was an uninvited guest, the instrument itself was a trespasser.

Again, the instrument here is no more trespasser other than the instrument you know On Lee.

You know On Lee, it was transmitting device, here it was a recording device.

Properly speaking, the instrument is more an extension of the agent than a separate third person.

It merely duplicates by an electrical recording what the agent himself mentally records.

But even if there were a trespass, we could not understand the need to exclude the evidence, because there was no connection between the trespass if there was one and the evidence obtained, which was not physical evidence taken from a room, this was not eavesdropping on a private conversation that was peculiar to that room.

The bribe offer could just as well have taken place elsewhere.

In fact, the defendant was apparently willing to discuss the bribe at lunch in the dinning room.

It was the petitioner's -- it was the agent's suggestion that they go into the office and his only reason for so suggesting was that he have been told, he'd get better acoustical results on his machine if he did it in the quiet of the office.

It wasn't privacy of the office, it was a quiet of the office that was helpful to his mechanical recording.

There is another fact which removes this case from any question of invasion of privacy in our view and that is that conversation which the machine overhears is not one between two strangers to the machine.

It's not eavesdropping on a private conversation between two people neither of whom knows that he is being overheard.

One of the parties to the conversation from the beginning intends to divulge.

The other party knows that he is talking to a Federal Law Enforcement Officer.

He knows that he bears the risk that there maybe a breach of this confidence that he is divulging.

He takes the calculated risk and that risk is in no way augmented because the conversation is also being recorded.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Louis F. Claiborne: But Your Honor, I would have to admit that the problem of proof is facilitated by the use of the machine, but --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Louis F. Claiborne: From the point of view has been -- from the point of view of invasion of privacy, I don't think the machine changes the situation.

One party, the agent is going to divulge the conversation in any event.

He is going to publish it.

He is going to destroy whatever privacy existed.

The fact that another or a machine is going to duplicate this publication does not affect the question of privacy in my view.

It certainly is useful to the government.

In fact, it's indispensable to the government in many such cases to obtain a second witness whether it'd be a live witness or machine.

Justice Arthur J. Goldberg: Is there a constant reaction to [Inaudible]

Mr. Louis F. Claiborne: Your Honor, I refer to the Chief Justice's opinion in Rathbun, it is part of the risk that in case of a telephone someone will be on the extension.

I suppose that the use of such device as the Minifon is not so unusual as to make it not also part of the risk when you're attempting to bribe a public official.

I think a good answer to the point was given by the Court of Appeals for the Ninth Circuit in the Todisco case, which we cite in our brief, but addressing itself particularly the points Your Honor made the court said this.

“The right which appellant here says would seem to be little more than the right to rely upon the agent's apparent inability to produce proof beyond his own testimony of the substance of the conversation in which he engaged.

This has little relation to an intrusion upon privacy, which is the problem at the heart of the constitution of issues presented by Easter.”

We do defend the procedure used here, we defend it because it is necessary and proper procedure for government agents, especially in cases where otherwise the testimony would be as if they hadn't hit.

We conclude by saying that the governmental activity in this case is in all respects correct, proper.

There is no occasion to invoke an exclusionary rule.

There has been no violation of the constitution.

There has been no violation of Federal Law.

There has been no violation of the Federal rule.

There hasn't been a violation of state Law for that matter.

Therefore, there is no reason to exclude the evidence received.

For these reasons, we think the judgment should be affirmed.