313 F.

2d 641

Paul A. GORIN, Defendant, Appellant,

v.
UNITED STATES of America, Appellee.
Henry GRILLO, Defendant, Appellant,
v.
UNITED STATES of America, Appellee.
Saul GLASSMAN, Defendant, Appellant,
v.
UNITED STATES of America, Appellee.
Nos. 5997-5999.

United States Court of Appeals First Circuit.

February 20, 1963.

COPYRIGHT MATERIAL OMITTED Francis J. DiMento, Boston,

Mass., with whom DiMento & Sullivan, Boston, Mass., was on brief, for
Paul A. Gorin, appellant.
Manuel Katz, Boston, Mass., with whom Paul T. Smith, Boston, Mass.,
was on brief, for Henry Grillo, appellant.
James D. St. Clair, Boston, Mass., with whom Blair L. Perry and Hale &
Dorr, Boston, Mass., were on brief, for Saul Glassman, appellant.
John J. Curtin, Jr., Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U.
S. Atty., William F. Looney, Jr., and Paul A. M. Hunt, Asst. U. S. Attys.,
were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH,
Circuit Judges.
WOODBURY, Chief Judge.

These three appellants and one Nathaniel Bergman of Hartford, Connecticut,

were indicted by a grand jury in the court below on three counts. Count 1

charges the three appellants and Bergman with conspiring (1) to bribe one
Charles J. McCaffrey, an employee of the Internal Revenue Service of the
United States Department of the Treasury, and (2) to defraud the United States
in its governmental functions by depriving it of McCaffrey's conscientious,
honest and faithful service in violation of Title 18 U.S.C. 371. Count 2
charges Bergman and the appellants Glassman and Gorin with giving
McCaffrey $10,000 with intent to influence his decision and action on a matter
at the time pending before him in his official capacity, in short with bribery, in
violation of Title 18 U.S.C. 201. Count 3 describes Grillo as a United States
officer acting in connection with the revenue laws of the United States and
charges him alone with conspiring with the other three, who were named as coconspirators but not as co-defendants, to defraud the United States in its
governmental functions in violation of Title 26 U.S.C. 7214 (a) (4).
2

Following the denial of a number of preliminary motions to be discussed

presently, the four defendants were tried by jury on pleas of not guilty, were
found guilty as charged and were sentenced. All appealed, but Bergman
withdrew his appeal before hearing.

Before the trial began each defendant moved to dismiss the indictment and to
strike the entire panel of petit jurors on the ground that both the grand and petit
jurors had been improperly selected. The motions were denied after a hearing at
which evidence was taken.

The evidence adduced shows that the jury commissioners of the United States
District Court for the District of Massachusetts selected persons for service as
jurors from the jury lists of the various cities and towns in Massachusetts, that
the City of Boston was within the part of the district designated by the district
court under Title 28 U.S.C. 1865(a) as the source from which the jurors with
whom we are here concerned were drawn, and that the Boston Election
Commission, the body charged by local law with the annual preparation of jury
lists for the City of Boston, picked jurors at random from the lists of registered
voters in the various wards of the city and then, by reference to the list of
inhabitants prepared annually by the city police department, weeded out those
exempt by law because of their occupations, such as clergymen, lawyers or
doctors, and following this by personal interviews weeded out those physically
or mentally unfit for jury service and those with an inadequate command of the
English language. The contention is that the jury commissioners' method of
selection, resting as it does in part upon the method of selection used in Boston
by the Boston Election Commission (it does not appear whether the same
method of selection was used by local authorities in the other cities and towns
of the part of the district involved), violates 1861 of Title 28 U.S.C. quoted in

material part in the margin1 because it automatically excludes citizens who are
not registered to vote. The argument is that eligible voters who have not
registered constitute a definite group or class in the community, that is to say,
an apolitical or politically dormant group, and that exclusion of that class or
group from jury service results in juries which do not represent "a cross-section
of the community" as required, so it is said, by Thiel v. Southern Pacific Co.,
328 U.S. 217, 220, 66 S. Ct. 984, 985, 986, 90 L.Ed. 1181 (1946).
5

The argument rests upon too literal a reading of the phrase quoted above, for it
has never been the law that a jury must represent a true cross-section of the
community. See Report of the Committee on the Operation of the Jury System
to the Judicial Conference of the United States, September 1962 at page 6.
Certain groups, as by 1862 and 1863 of Title 28 U.S.C., are and time out of
mind have been exempted from jury duty, some for the general public interest,
such as public officials or members of the armed forces, and others, such as
convicted felons, minors and persons unable to understand the English
language, for the effective operation of the jury system. And the Court in the
Thiel case clearly recognized the established practice of exempting certain
persons from jury service by explaining that what it meant by the sentence
wherein it used the phrase "a cross-section of the community" was only that
prospective jurors must be selected by court officials without systematic and
intentional exclusion of any economic, social, religious, racial, political or
geographical group in the community.

For a variety of reasons we reject the argument that eligible persons who do not
register to vote constitute a "political" group in the community. In the first
place the group does not include only the politically inert. It includes also the
politically alert who may perhaps have lived for a year or more in the district
but not long enough in their ward to be eligible to register to vote. In the second
place, the group has no distinct or definable outlines, for in addition to persons
who have just moved into a ward, it includes not only the completely apathetic
but also those who might register to vote only when interested in a particular
election. It includes persons of varying shades of political interest. And in the
third place we think the Court in referring to a political group in the Thiel case
meant the members of some defined political party or group.

This does not mean blanket endorsement of jury selection directly or indirectly
from voting lists. It means that voting lists may be used as the basis for jury
selection unless it appears that in the community there is systematic and
intentional exclusion from those lists of a particular economic, social, religious,
racial, geographical or political group. When such a showing is made some
other basis of selection must be used. Here, however, the appellants have not

shown that in Boston any enumerated class is systematically and

intententionally discriminated against in registering to vote. Indeed the
evidence is quite to the contrary. The appellants' contention fails for lack of any
evidence of discrimination in the preparation of the lists of Boston voters.
Compare United States v. Hoffa, 196 F.Supp. 25 (S.D.Fla., 1961), with United
States v. Greenberg, 200 F.Supp. 382 (S.D.N.Y., 1961).
8

Also before trial the appellants severally moved to dismiss the indictment
because it had been returned by grand jurors calculatedly prejudiced against
them by government-inspired publicity. We think the court below very properly
denied the motions.

The appellants characterize the publicity of which they complain as "massive,"

and describe it as "blanketing" the Commonwealth of Massachusetts. It boils
down, however, to news releases printed in local newspapers and repeated in
substance over radio and television on August 26, 1961, the day two of the
appellants and Bergman were arrested, and for the next two days, purporting to
quote the Attorney General as extolling the vigor, skill and integrity of the
Internal Revenue Service and as saying that the Charles J. McCaffrey
mentioned in the indictment had reported Glassman's offer to bribe him to his
superiors and upon their instructions had pretended to go along with the plan
and "is a courageous American and typifies the loyalty and integrity of the men
of the Internal Revenue Service."

10

The appellants admit that their contention "presupposes" that there is either a
right under the Fifth Amendment of the Constitution of the United States to be
indicted by grand jurors free of calculated government-instigated prejudice or
else that proper standards for enforcement of the criminal law in the federal
courts sanction only indictment by a grand jury uninfluenced by improper
forces generated by the prosecutor. They must also "presuppose" that they do
not need to show that in fact the grand jury which indicted them did not
perform its sworn duty to act with impartiality but instead was actuated by
government-inspired bias and prejudice. We are not prepared to grant these
"presuppositions." So far as we are aware, none has the sanction of any decision
of the Supreme Court of the United States and all have been rejected in one or
another carefully considered opinion of a lower federal court. See United States
v. Nunan, 236 F.2d 576, 592 et seq. (C.A.2, 1956), cert. den. 353 U.S. 912, 77
S.Ct. 661, 1 L.Ed.2d 665 (1957); Beck v. United States, 298 F.2d 622 (C.A.9,
1962), cert. den., 370 U.S. 919, 82 S.Ct. 1558, 8 L.Ed.2d 499 (1962); United
States v. Dioguardi, 20 F.R.D. 33 (S.D.N.Y., 1956); United States v. Hoffa, 205
F.Supp. 710 (S.D.Fla., 1962). But even if we should accept the
"presuppositions," which we by no means imply, we would still reject the

appellants' contention.
11

We do not approve of pretrial publicity, particularly when it emanates from

prosecuting officials. In the interest of fair trial it is better avoided. But the
publicity here complained of was minor. It was not continuous but was pretty
much a single-shot affair. And although it related to serious crimes involving
corruption of public officials, it did not relate to a spectacular crime likely to
arouse strong public emotion, excitement or passion such as murder or rape.
Nor did the publicity vilify or heap opprobrium on the appellants. It only
endorsed the character, and thereby inferentially the credibility, of the
government's principal witness. We do not think the publicity complained of
was serious enough to warrant the drastic remedy of dismissing the indictment,
if, indeed, that remedy is available at all.

12

Pretrial motions for severance were also made and denied and similar motions
were repeated intermittently throughout the trial but in every instance denied.

13

Clearly joinder of the defendants in the indictment was proper under Criminal
Rule 8(b). To obtain severance it was, therefore, incumbent on the appellants to
make such a strong showing of prejudice as to invoke the discretionary remedy
provided in Criminal Rule 14 entitled "Relief from Prejudicial Joinder." This
the appellants have undertaken to do for a variety of reasons.

14

Glassman and Grillo argue for severance for the reason that the testimony of
co-defendants is essential to their defense and, they say, it is not available to
them unless each defendant is tried separately so that they can put codefendants on the stand. The argument is unrealistic. There is no reason to
think that a co-defendant would be any more willing to waive his constitutional
privilege against self-incrimination when called as a witness at a separate trial
than he would be willing not to insist upon his privilege as a defendant not to
take the stand. Moreover, in Olmstead v. United States, 19 F.2d 842, 847-848,
53 A.L.R. 1472 (C.A.9, 1927), affirmed as to other matters 277 U.S. 438, 48
S.Ct. 564, 72 L.Ed. 944 (1928), it was held that the inability of a defendant in a
conspiracy case to use the testimony of co-defendants in his defense is not
enough to show abuse of discretion in refusing a motion for severance.

15

Another argument for severance was particularly emphasized by counsel for

Grillo in the court below. It deserves mention since it applies to some extent to
all appellants and was advanced for all in this court. Grillo's argument below
was that at the trial he would be confronted with so much testimony of so many
acts and statements of other defendants not in his presence and without his

authorization or knowledge that in spite of limiting instructions2 the jury could

not possibly overcome the prejudicial effect of the testimony or consider his
case on its own individual merits.
16

Grillo's fear is not unfounded. See the late Mr. Justice Jackson's concurring
opinion in Krulewitch v. United States, 336 U.S. 440, 445, particularly at 453,
69 S.Ct. 716, 719, 723, 93 L.Ed. 790 (1949). But no case has been cited to us
and we are not aware of any holding that it was an abuse of discretion not to
grant severance for the reason advanced. While the potentiality of prejudice
certainly exists, it is far greater when the number of conspirators involved is
large. The prejudice asserted in this case seems pale indeed when compared
with the prejudice involved when fifty-nine conspirators were tried without
severance in Capriola v. United States, 61 F.2d 5, 11 (C.A.7, 1932), cert. den.
Walsh v. United States, 287 U.S. 671, 53 S.Ct. 315, 77 L.Ed. 579 (1933), or
seventy-five in Allen v. United States, 4 F.2d 688, 698-699 (C.A.7, 1925). It is
well established that the granting of a motion for severance lies in the discretion
of the trial judge. Stilson v. United States, 250 U.S. 583, 585-586, 40 S.Ct. 28,
63 L.Ed. 1154 (1919). In the absence of a far stronger showing than is made in
this case we would not be warranted in finding that discretion had been abused.

17

Our function as an appellate court is to examine the record with care to make
sure that the trial court minimized possible prejudice. This we have done, and
from a reading of the record it seems obvious to us that the trial judge went to
no little pains to give appropriate limiting instructions at the outset of the trial,
throughout its course, and finally and at length in his charge, which counsel for
Grillo admits in his brief, was "literally correct on this point." We do not
believe that it was incumbent on the court below to interrupt the trial with
limiting instructions every time the name of an absent co-conspirator was
incriminatingly mentioned. In this four-defendant conspiracy case we can
repeat what Circuit Judge Hincks said in the eighteen-defendant case of United
States v. Stromberg, 268 F.2d 256, 265 (C.A.2, 1959), cert. den. Lessa v.
United States, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959), that is to say:
"* * * we think it by no means a task of insuperable difficulty for the jury to
comply with the judge's instructions and determine as to each defendant the
issue of membership in a single continuing conspiracy on the basis of the
independent evidence i. e., the evidence as to his own acts and admissions."

18

We come now to the trial itself.

19

At its outset in accordance with the practice sanctioned by Criminal Rule 24(a)
the voir dire examination for prospective jurors was conducted not by counsel
but by the court. The appellants do not challenge the practice. And they

concede that a trial judge undoubtedly has "a broad discretion as to the
questions to be asked" of prospective jurors, subject only "to the essential
demands of fairness." Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct.
470, 471, 75 L.Ed. 1054 (1931).3 Their contention is that the "essential
demands of fairness" required the trial judge to ask prospective jurors a variety
of specific questions to determine possible bias or prejudice, such as whether
they had any prejudice against lawyers or against persons "with income tax
problems," whether they would think someone guilty because he had been
charged with crime and arrested, whether they would give more credence to a
government agent than to a lay witness and whether they would have any
prejudice against a client because his counsel objected to the admission of
evidence. We see no abuse of discretion in failing to put these questions to
prospective jurors. As to these matters the court's general questions coupled
with its charge afforded the appellants ample protection.
20

Particularly, however, the appellants object to the refusal of the court to ask
prospective jurors specifically whether they had read or heard of the statement
attributed to the Attorney General with respect to the integrity and courage of
Charles J. McCaffrey discussed hereinabove, and, if they had, whether the
statement would affect their judgment in passing upon McCaffrey's credibility
as a witness. The questions were not impertinent. But the court below may well
have felt that putting the specific question would call the publicity to mind and
perhaps do appellants more harm than good. Under the circumstances of this
case, particularly the "one-shot" nature of the publicity, we think the court gave
the appellants adequate protection when it allowed jurors to sit upon receiving a
"No" answer to the question: "Are any of the jurors familiar with the facts of
this case, either personally or through the press, radio, or television or any other
means?"

21

We come now to consideration of the facts adduced at the trial.

22

Nathaniel Bergman was an attorney-at-law practicing in Hartford, Connecticut.

In 1959 a special agent attached to the Hartford District Office of the Internal
Revenue Service, IRS hereinafter, began an investigation of Bergman's income
tax returns for preceding years. Bergman retained local counsel and in
February, 1961, he also retained the appellant Paul Gorin, who was a lawyer
practicing in Boston in the field of federal taxation. On May 1, 1961, the
Intelligence Division of the Boston Regional Office received the special agent's
report of his examination of Bergman's tax returns recommending criminal
prosecution of Bergman and his wife for tax evasion. Regional Intelligence
agreed with this recommendation and forwarded the case to the Enforcement
Branch of the Boston Regional Counsel's office, wherein lay the duty on

review to recommend for or against criminal prosecution in federal tax cases

arising in the area.
23

The head of the Enforcement Branch at this time was the Charles J. McCaffrey
to whom we have referred. He had come to Boston from similar duty in San
Francisco in July 1959 and by April 1960 had met the appellant Glassman, who
was a lawyer in the general practice in Boston specializing "more or less" in the
law of real property. Both were retired officers of the United States Marine
Corps and they first met at an organizational meeting of a Marine Corps
Reserve voluntary training unit (hereinafter VTU) consisting of reserve officers
who were lawyers. Glassman was the commanding officer of the unit;
McCaffrey was the training officer and next in command. Their relationship
became cordial.

24

At this point the testimony diverges rather sharply. Glassman, who took the
stand in his own defense, testified that on several occasions prior to the end of
May 1961 when he and McCaffrey met socially, or at VTU meetings, or to plan
the training program for the unit, they discussed the general nature of each
other's work and McCaffrey urged him to take some courses and develop a tax
practice, saying that the field was lucrative. Glassman said that he replied: "My
practice just hasn't tended toward that," to which McCaffrey answered: "Well,
just remember if you ever do hit a case you've got a good friend up there."
Glassman also testified that when he and McCaffrey met at a social function in
March 1961 McCaffrey expressed envy when he learned that Glassman was
about to go to Europe, said that he wished he and his wife could do the same
and commented: "You can't save any money when you're working for the
government and have a big family." And Glassman testified that on May 26,
1961, when he met with McCaffrey to discuss the quarterly training schedule
for the VTU McCaffrey again recommended a tax practice as profitable and
said: "You know Paul Gorin, don't you?" Glassman said that he answered that
he knew Gorin casually, to which he said McCaffrey replied: "He is certainly
doing all right for himself. Saul, you should be doing some of that tax work. I
am really in a position to help you out. Why don't you see Gorin and tell him
you have got a good friend up at Enforcement. I think you can do yourself a lot
of good."

25

McCaffrey agreed that prior to the end of May 1961 he and Glassman had
discussed each other's professional work, in the course of which he had learned
that Glassman was primarily a real estate lawyer. Furthermore, McCaffrey
admitted that he knew that Glassman did not have a Treasury card that entitled
him to represent clients before official bodies in the Treasury Department on
tax matters, and he also admitted that he had recommended a tax practice to

Glassman as profitable and had suggested that Glassman take some tax courses
and enter that field. McCaffrey, however, categorically denied making the other
remarks attributed to him by Glassman.
26

We turn now to the critical period of the alleged conpiracy, which began during
the last days of May 1961. Glassman testified that he had known Paul Gorin for
over ten years and that they were on a first name basis. He said that he
happened to meet Gorin casually on May 27 and asked him if he had a tax fraud
case that was going to prosecution. Glassman said that Gorin answered: "Yes.
What do you know about it?" to which Glassman said he replied: "Nothing, but
if you need any help I've got a good friend up in Enforcement I could talk to."
Arrangements were then made to discuss the matter further the following week
and by appointment they met again on May 31. At that time, according to
Glassman, Gorin identified the case he had referred to as a net worth case
involving Nathaniel Bergman of Hartford, Connecticut, and asked Glassman if
he thought he could "do anything." Glassman said he replied that he did not
know but that he had "a good friend up in Enforcement" and that he would
speak to his "friend" and "see what he has to say." Gorin asked: "When?" and
Glassman replied: "I don't know. As soon as I can. I will call you."

27

McCaffrey and Glassman agree that Glassman did indeed telephone to

McCaffrey on May 31. However, their versions of the telephone conversation
differ. Glassman said that he told McCaffrey that he wanted to talk about the
Bergman case and that McCaffrey replied that the case had been assigned to
one of the men in his office but he would look into it and call Glassman.
McCaffrey testified that in that telephone conversation Glassman said he
wanted to talk about a case but did not identify it, and that the request made
him "uneasy" because he knew that Glassman had no power of attorney in any
case in his office and therefore had "no right to talk to me about any case."
McCaffrey also said that because of his "uneasiness" he did not attend a VTU
meeting that night and immediately reported the telephone conversation to a
senior attorney in Regional Counsel's office whom he asked to make a
memorandum of his disclosure "just in case something happened."

28

On the next day, June 1, Glassman telephoned McCaffrey again 4 and in that
conversation, according to McCaffrey, for the first time identified the Bergman
case as the one in which he was interested. Both agreed that later in the day
Glassman went to McCaffrey's office. Their version of what there transpired
differs. Glassman testified that McCaffrey greeted him with the remark: "Well
Saul, I see that you've talked to friend Gorin," and then proceeded to disclose
facts and figures of the Bergman case to show that it would be prosecuted on a
net worth basis and that it involved a very substantial sum in deficiencies.

Glassman said that he asked McCaffrey: "Look, Mac, is this a case I should get
involved in? Do you have to recommend prosecution or is this a case that can
go either way?" to which he said McCaffrey replied that from what he knew of
the Bergman case there had been other cases coming from Connecticut "that
looked much worse and we recommended no prosecution." Glassman testified
that he told McCaffrey that from the figures disclosed "this looks like a case
where I can get a substantial fee if I can do Bergman some good," and that both
agreed that they would look into the case further to "see how it shapes up."
Glassman also testified that McCaffrey admitted that he ought not to be talking
about the case because Glassman had no power of attorney and that when he
asked if he should obtain one McCaffrey replied: "If anything develops you can
work through Gorin. I know I can always talk to you as a friend."
29

McCaffrey agreed that he discussed the Bergman case face to face with
Glassman on June 1. And he admitted that at the meeting he gave Glassman the
amount of civil deficiencies involved in the case and that in doing so he
violated the Regulations because Glassman had no power of attorney.
Furthermore, he admitted that he would not have discussed the case with
Glassman had he been a stranger. But he denied making the remarks attributed
to him by Glassman and he said that Glassman in the course of the meeting
dropped the remark that in view of the sums involved "there should be enough
of a fee in it for all of us." McCaffrey said he replied noncommittally to this
remark and that as they parted Glassman said: "I will contact you before I set
my fee in this matter."

30

McCaffrey testified that these remarks so aroused his suspicions that he

immediately reported them to his superior officer, the Regional Counsel, saying
that he thought Glassman might be intending to offer him a bribe, and that the
Regional Counsel because of the doubtful meaning of Glassman's remarks
agreed to let McCaffrey handle the matter in his own way. Although
McCaffrey's report to his superior should have been in writing, his conduct was
otherwise in accord with the Internal Revenue Manual which requires an IRS
employee when approached with an offer of a bribe to make such reply as will
hold the matter in abeyance and immediately make a full report in writing to a
superior.

31

Meetings and telephone conversations followed between Glassman and Gorin,

Gorin and Bergman, Glassman, Gorin and Bergman and Glassman and
McCaffrey which do not need to be described in detail. It will suffice to say that
on the evidence it might well be found that in the course of them Glassman
convinced Gorin and Bergman that he indeed had a friend "up in Enforcement"
and that Bergman, Glassman and Gorin were not averse to offering that "friend"

a bribe to "kill" the case against Bergman. And there is evidence of remarks
made during the first half of June by Glassman to McCaffrey not too subtly
hinting that a bribe might be forthcoming if McCaffrey would recommend
against prosecuting Bergman for tax evasion, to which, according to Glassman,
McCaffrey lent definite encouragement.
32

At any rate on June 15 McCaffrey reported to his superior that he thought

Glassman had bribery in mind and also made the same report to the Inspection
Service, the internal police force of the IRS charged among other matters with
the duty of investigating bribery of IRS employees, which at once sent an
inspector to Boston from New York to handle the case. The inspector told
McCaffrey under no circumstances to initiate a contact but to "go along" with
the persons involved, to meet them whenever they chose and to give them any
document they wanted. And he also installed an array of electronic equipment
in McCaffrey's office, in his car and at times on McCaffrey himself, whereby
conversations in McCaffrey's presence could be recorded. After June 20, all
McCaffrey's conversations with Glassman, Gorin and Bergman were
electronically recorded with the exception of two telephone calls from
McCaffrey to Glassman, one on July 7, and another on July 10, and a
conversation on July 27 between Gorin and McCaffrey on a golf course. Other
telephone conversations were recorded only on McCaffrey's side. These
recordings were introduced into evidence and portions of them were played to
the jury.

33

Further meetings between two or more of the four, McCaffrey, Glassman,

Gorin and Bergman, followed, which there is no need to recount in detail. It
will suffice to say that the upshot of the meetings was that on June 27
Glassman gave McCaffrey $5,000 in bills in return for a rough draft of a
criminal action memorandum, known as a CAM, recommending against
prosecution of Bergman for tax evasion, and that on June 28 Glassman gave
McCaffrey a like amount in exchange for a finished draft of the document.
There is ample evidence that Glassman obtained the money from Gorin who in
turn had obtained it from Bergman, and that all well knew the purpose for
which the money was to be used. Glassman admitted on the stand that the
money was paid to McCaffrey as a bribe.

34

To state the facts in greater detail would expand this opinion inordinately.
Although we might go into far greater detail, we think we have stated enough to
show that there was evidence from which the jury could properly find that
Glassman, Gorin and Bergman had engaged in the conspiracy charged in the
first count of the indictment and had given McCaffrey a bribe as charged in the
second count. We also think that we have recounted enough to show a factual

basis for the defense, Glassman's sole defense, of entrapment.5

35

We turn now to the case against Grillo.

36

Grillo was the Executive Assistant to the Assistant Regional Commissioner,

Intelligence, for the Boston Region. As such he was second in command of the
IRS unit to which McCaffrey as head of the Enforcement Branch of the
Regional Counsel's Office submitted his recommendations against prosecutions
for tax evasion. Although Grillo's duties were primarily administrative he
assumed the duties of his superior, the Assistant Regional Commissioner, when
the latter was not in his office, one of whose duties was to pass upon
recommendations against the criminal prosecution of tax evaders.

37

There is ample evidence of remarks made by Glassman and Gorin, but not in
Grillo's presence, to tie him into the conspiracy. For instance, there is evidence
that on the afternoon of June 27 when McCaffrey went to Glassman's office to
deliver the rough draft of his recommendation against prosecuting Bergman
criminally, Glassman asked where the recommendation would be sent and
when McCaffrey replied that it would go to the Assistant Regional
Commissioner, Intelligence, and mentioned Grillo as a man in that office
Glassman said: "That is the man. He has been approached and he is ready for
it." And there is evidence that on a later occasion Glassman asked McCaffrey to
let him know before the recommendation against prosecution went out in final
form "so they can tell Grillo that it's on it's way over and he can grab it."
Furthermore, there is evidence that at a meeting in McCaffrey's office on the
afternoon of August 14, 1961, at which McCaffrey, Bergman and Gorin were
present, McCaffrey, referring to Grillo, asked Gorin: "Have you given him
anything?" to which Gorin replied: "He has a balance with me of $20,000," and
"He has built himself a new house, and I have got about $10,000 worth of
furniture in there," and also: "On this case I have given him $1,500, and I
promised him $2,500 more if the case is killed." On the same occasion Gorin is
reported by McCaffrey to have said that Grillo, or Henry, "gave me information
on this case long before it came in here, and before I talked to Bergman about
it."

38

All of this evidence is, of course, quite inadmissible against Grillo unless and
until there is independent evidence, that is, evidence of Grillo's own acts or
admissions, connecting him with the conspiracy. We find enough such evidence
in McCaffrey's account of a meeting in his office on August 15, 1961, with
Gorin and Grillo. At that meeting, after McCaffrey and Grillo had briefly
discussed another case, Gorin is reported by McCaffrey to have said that he
wanted the others either to know or to remember, that he could not recall which,

"that we are here as friends, f-r-i-e-n-d-s," spelling out the last word for
emphasis. Following this introduction McCaffrey testified that Grillo said that
in his superior's absence he could not act on McCaffrey's memorandum against
prosecuting Bergman without getting into "difficulty," perhaps "serious
difficulty," that he had not expected such a strong protest to McCaffrey's
memorandum from the IRS office in Hartford to which it had been referred and
that he was finding it difficult in view of that protest to convince his superior
and others in his office to approve McCaffrey's recommendation. And
McCaffrey testified that with reference to the criminal prosecution of Bergman,
Grillo said: "I would like to see it go by the board more than anyone else."
Furthermore, McCaffrey testified, and the electronic recording of the meeting
corroborates, that at the meeting Grillo participated actively in the discussion of
arguments to advance in answer to the protest from Hartford to McCaffrey's
memorandum and at the close of the meeting Gorin said: "Well, Henry, you've
got the pitch now. The three of us are working together," to which Grillo
replied: "I wish to hell I'd known it before."
39

Perhaps by straining the jury might have put an innocent interpretation on these
remarks and acts of Grillo. But certainly the jury did not have to do so. The
above evidence is clearly enough to warrant the jury's finding that Grillo was a
participant in the conspiracy.

40

The appellants objected below to the introduction in evidence of the tape and
wire recordings to which reference has been made. Since the electronic devices
used were installed in McCaffrey's office, in his car and on his person, the
recordings were not obtained through physical intrusion as in Silverman v.
United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed. 2d 734 (1961). Therefore,
the appellants do not argue that the recordings were obtained in violation of the
Fourth Amendment. Apparently conceding the authority of Goldman v. United
States, 316 U.S. 129, 135, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), their contention
is that the recordings are in so many places inaudible as to be unintelligible and
therefore untrustworthy as evidence.

41

The court below followed the procedure approved in Monroe v. United States,
98 U.S.App.D.C. 228, 234 F.2d 49, 55 (1956), cert. den. 352 U.S. 873, 77 S.
Ct. 94, 1 L.Ed.2d 76 (1956), of having the recordings played in the presence of
counsel but not in the presence of the jury in order to rule on possible
objections. After hearing the recordings their admissibility lay in the trial
court's sound discretion. Monroe v. United States, supra; Cape v. United States,
283 F.2d 430, 435 (C.A.9, 1960); Todisco v. United States, 298 F.2d 208, 211
(C.A.9, 1961), cert. den. 368 U.S. 989, 82 S.Ct. 602, 7 L.Ed.2d 527 (1962).
Although we have not listened to the recordings we have read the transcription

of them in the record. While it appears that parts of them are inaudible, we
cannot say that the parts which are not are without evidentiary value, or that the
inaudible parts are so substantial as to make the rest more misleading than
helpful. In short, we cannot say that the trial court abused its discretion in
admitting the recordings in evidence.
42

Now we turn to the charge, specifically to the charge on the issue of

entrapment.

43

The court below told counsel at the close of their arguments that it was going
"to follow Learned Hand" and charge the jury that the burden was on the
defendants to prove inducement. In summing up its general instructions on the
issue it did so by saying: "Let me repeat that now. The two questions: Did an
agent of the government induce the accused to commit the offense in the
indictment? If so, was the accused ready and willing, without persuasion, and
awaiting a propitious opportunity to commit the offense? On the first question
the accused has the burden of proof. On the second, the prosecution has the
burden of proving it beyond a reasonable doubt."6

44

The appellants concede that the court's formulation of the two questions and its
summary of them was correct. But they contend that it was error to cast the
burden of proving the first question upon them.7 They argue that the defense of
entrapment is analogous to the defense of insanity. Wherefore they concede
that the government need not offer evidence to disprove entrapment as part of
its case in chief. But they say that once they have come forward with
substantial evidence of entrapment the burden is on the government to disprove
the defense beyond a reasonable doubt.

45

The Supreme Court has not adverted to the question.

46

In Sorrells v. United States, 287 U.S. 435, at page 451, 53 S.Ct. 210 at page
216, 77 L.Ed. 413 (1932), the Court for the first time recognized entrapment as
a defense to a criminal charge,8 saying:

47

"The predisposition and criminal design of the defendant are relevant. But the
issues raised and the evidence adduced must be pertinent to the controlling
question whether the defendant is a person otherwise innocent whom the
Government is seeking to punish for an alleged offense which is the product of
the creative activity of its own officials. If that is the fact, common justice
requires that the accused be permitted to prove it. The Government in such a
case is in no position to object to evidence of the activities of its representatives

in relation to the accused, and if the defendant seeks acquittal by reason of

entrapment he cannot complain of an appropriate and searching inquiry into his
own conduct and predisposition as bearing upon that issue."
48

And the Court held that when the evidence of the conduct of the government's
representatives was conflicting it was error to refuse to submit the issue of
entrapment to the jury.

49

These basic principles were affirmed in Sherman v. United States, 356 U.S.
369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). In that case involving illegal sales of
narcotics, the Court, 356 U.S. at page 371, 78 S.Ct. at page 820, 2 L.Ed.2d 848
said: "At the trial the factual issue was whether the informer had convinced an
otherwise unwilling person to commit a criminal act or whether petitioner was
already predisposed to commit the act and exhibited only the natural hesitancy
of one acquainted with the narcotics trade." Then, 356 U.S. on page 372, 78
S.Ct. on pages 820-821, 2 L.Ed.2d 848, citing with approval and quoting from
the Sorrells case, the Court noted that it did not constitute entrapment for
government agents merely to afford opportunities or facilities for the
commission of an offense but that entrapment occurred "only when the criminal
conduct was `the product of the creative activity' of law-enforcement officials.
(Emphasis supplied.)" Wherefore, the Court said: "To determine whether
entrapment has been established, a line must be drawn between the trap for the
unwary innocent and the trap for the unwary criminal."

50

In drawing this line on the principles outlined in the Sorrells case, the Court in
Sherman, 356 U.S. at page 373, 78 S.Ct. at page 821, 2 L.Ed.2d 848 said:

51

"On the one hand, at trial the accused may examine the conduct of the
government agent; and on the other hand, the accused will be subjected to an
`appropriate and searching inquiry into his own conduct and predisposition' as
bearing on his claim of innocence."

52

In short, if an accused asserts that he is a lamb who has been led astray he must
be prepared to face evidence that he is a wolf on the prowl.

53

The above cases clearly sanction Judge Learned Hand's formulation of the two
questions of fact presented by the defense of entrapment which the court below
followed in its charge to the jury. For convenience they can be called the
primary issue of inducement and the rebuttal issue of predisposition. And the
cases also clearly indicate, as the appellants herein concede, that to raise the
defense of entrapment the burden is upon them to come forward with evidence

of inducement. We also assume from the language used as well as by

application of general legal principles that the burden is on the government to
come forward with evidence of predisposition. The cases, however, do not even
indirectly mention the question of burden of persuasion on the issues. Nor do
the cases give us guidance to decide the question by indicating the basis upon
which the defense rests.9
54

The lower federal courts have variously allocated the burden of persuasion,
usually with little if any helpful analysis. Indeed, in many of the cases it is
uncertain whether when speaking of the burden of proof the court is referring to
the burden of coming forward with evidence or the burden of persuasion. We
shall undertake our own analysis.

55

The defense of entrapment is certainly analogous to the defense of insanity in

that the burden of coming forward with evidence in order to raise the defense
rests upon the accused. But at this point we think the analogy ceases.

56

The defense of insanity asserts that the mental condition of the accused is such
that he is incapable of harboring criminal intent. The defense, therefore,
negatives an essential element of the crime. And it is fundamental doctrine that
the government must prove every essential element of the crime alleged beyond
a reasonable doubt. The defense of entrapment, on the other hand, does not
negative an element of the crime, or assert that the accused has not engaged in a
criminal activity. By the defense the accused may admit his crime, as Glassman
did on cross-examination when he admitted that he gave McCaffrey $10,000
"as a bribe," or he may rely upon his right to require the government to prove
the case against him beyond a reasonable doubt, and in either event ask to be
relieved of its consequences because of the unsavory tactics of representatives
of the government.10 Stated another way, the defense of entrapment is not
interjected to establish the absence of an essential element of the crime but to
present facts collateral or incidental to the criminal act to justify acquittal on the
ground of an overriding public policy to deter instigation of crime by
enforcement officers in order to get a conviction.11 Since by the defense the
accused is asking to be relieved of the consequences of his guilt, if found or
admitted, by objecting to the tactics of the representatives of the government,
we think that one who raises the defense should be required not only to come
forward with evidence but should also be required to establish inducement by a
preponderance of the evidence.

57

We think reason commends this conclusion. And it is in accord with 2.13

entitled Entrapment, Subsection (2), of the Proposed Official Draft of the
American Law Institute's Model Penal Code, dated May 4, 1962, which

provides with an exception not here material that "a person prosecuted for an
offense shall be acquitted if he proves by a preponderance of evidence that his
conduct occurred in response to an entrapment." See also the discussion of this
provision in Tentative Draft No. 9, of the Model Penal Code, supra, 1959, at
the bottom of page 20 and the top of page 21.
58

We think the charge of the court below was correct as far as it went. It did not,
however, in our opinion, go far enough, for it did not tell the jury anything
about the quantum of the proof required. It merely informed the jury that the
accused had the "burden of proof" without explaining that the burden was met
by proof by a preponderance of the evidence.

59

Although this omission was brought to the court's attention after the charge, it
did not see fit to elaborate. We think this was prejudicial error. The only burden
of proof mentioned anywhere in the charge was the burden on the government
to prove the essential elements of its case beyond a reasonable doubt. But from
this we cannot assume, as the government argues, that the jury would apply this
standard only to the government's case and never to the defendants. On the
contrary we think that since proof beyond a reasonable doubt was the only
standard mentioned, the jury would naturally infer in the absence of instruction
otherwise that when "burden of proof" was mentioned that was the standard
they were to apply, not only to the government but also to the defendants. There
must be a new trial as to all three appellants.12

60

Many other questions have been argued on these appeals. We pass them for
various reasons, some for insubstantiality, and others because they are unlikely
to arise at another trial or at least are unlikely to arise in the same form or in the
same context.

61

Judgments will be entered vacating and setting aside the judgments of the
District Court and remanding the cases to that Court for a new trial.

Notes:
1

"Any citizen of the United States who has attained the age of twenty-one years
and who has resided for a period of one year within the judicial district, is
competent to serve as a grand or petit juror * * *."

That is to say, instruction that such testimony is not admissible as against Grillo
until the government has first established not only the existence of a conspiracy

but also Grillo's membership in it

3

In this case there is no question of racial prejudice, as in Aldridge, or as in

Frasier v. United States, 267 F.2d 62, 66 (C.A.1, 1959)

This is McCaffrey's version. Glassman testified that McCaffrey called him, said
that he had the Bergman files on his desk and that Glassman could come over
"anytime."

We reject the government's contention that there was no adequate evidence

from which the jury could find that Gorin and Glassman had been entrapped
and we also reject the latter's contention that the evidence shows entrapment as
a matter of law

Judge Learned Hand, writing for his court in United States v. Sherman, 200
F.2d 880, 882-883 (C.A.2, 1952), said: "Therefore in such cases two questions
of fact arise: (1) did the agent induce the accused to commit the offence
charged in the indictment; (2) if so, was the accused ready and willing without
persuasion and was he awaiting any propitious opportunity to commit the
offence. On the first question the accused has the burden; on the second the
prosecution has it."

They, of course, do not complain of the charge as to the burden of proof on the
second question

It also held that the defense did not have to be pleaded in bar but could be
raised under the plea of not guilty

See Mr. Justice Frankfurter's opinion concurring in the result in Sherman, in

which Justices Douglas, Harlan and Brennan concurred, 356 U.S. page 378, 78
S.Ct. pages 823-824, 2 L.Ed.2d 848

10

It is inconsistent for an accused to take the stand and deny the commission of
the crime charged and then assert his right to a charge on the defense of
entrapment. See Sylvia v. United States, 1 Cir., 312 F.2d 145. However, where
there is evidence of governmental inducement, it is not fatally inconsistent for
an accused to keep silent in the hope that the jury will not find that the
government has proved its case beyond a reasonable doubt, but ask that the jury
be charged on the defense of entrapment if it should find the commission of the
allegedly criminal acts. The law allows this much inconsistency. See
Henderson v. United States, 237 F.2d 169, 172-173 (C.A.5, 1956)

11

See the separate opinion of Mr. Justice Roberts, Mr. Justice Brandeis and Mr.
Justice Stone concurring, in Sorrells v. United States, 287 U.S. 435, 456, 53

S.Ct. 210, 77 L.Ed. 413 et seq

12

We find no adequate support for the government's contention that Grillo

waived entrapment as a defense and is estopped from asserting it now