an existing but undisclosed criminal design, they may be employed with more reason to expose the continued existence of a criminal design already revealed.
Deeney's quick acquiescence in King's request of October 19 to meet the insurance man, of whom Deeney had previously spoken, and the prompt, joint appearance of Deeney and Stafford for the requested meeting were relevant circumstances. There was no evidence to show that Deeney's purported abandonment of the criminal design was ever communicated to Stafford, or that the latter had ever abandoned whatever design he had. Moreover, Stafford's ready response to King's request for a meeting, his complete familiarity with the scheme, his ability and readiness to discuss and decide upon details essential to the commission of the proposed crime, his desire for and expectation of substantial personal gain therefrom, and his communication to Klosterman, directly or indirectly, of the arrangements made by him for the bribe payment were enough, with all the attendant circumstances, to enable the jury to conclude that Stafford was a participant with Deeney in the original criminal design, had never abandoned it and was, indeed, no innocent person in whose mind the disposition to commit the crime had been implanted by public officers.
Klosterman and King had no direct communication. The commission of bribery by Klosterman resulted either from proposals by Stafford and Deeney or their intermediaries, or from his own disposition to bribe or from both. There was no direct evidence that Deeney and Stafford communicated with Klosterman. The clear inferences of communication, directly or indirectly, between Klosterman and Stafford and between Klosterman and Deeney arose from Klosterman's appearance at the Hotel Bartram at the appointed time, his complete knowledge of the arrangements effected by Stafford with King and his payment of the bribe in conformity therewith and with Deeney's assurance to King that same day.
If Klosterman's crime resulted from his own disposition to commit it when an opportunity was afforded, or if it resulted from proposals by Deeney or Stafford or both, acting in pursuance of a criminal design of their own, there could be no entrapment. Klosterman's defense of entrapment must rest necessarily upon prior entrapment of Deeney or Stafford or both and reliance by Klosterman upon the entrapping solicitations of Government officers communicated to him by Deeney or Stafford. There was no evidence to show upon what Klosterman relied, or whether any alleged solicitation by King was ever communicated to or known by him. Under this state of the evidence a substantial question of fact on the entrapment issue was presented which required its submission to the jury.
Among the reasons assigned by all the defendants in support of their motions for a new trial was the admission in evidence of Exhibit G-6. This exhibit was the wire recording of a conversation between King and the defendant, Deeney, relating to the bribery scheme. The recording was obtained by use of a device concealed, for that purpose, on King's person. Deeney was unaware that King was so equipped or that their conversation was being recorded. Since this conversation was being simultaneously recorded in the mind of King, whose recollection thereof was evidential, it would be illogical to hold that a recording of that conversation, which would be apt to be more accurate and complete than King's human recollection, should be excluded because Deeney had no knowledge that an electronic device was recording the same conversation heard by King. In light of the greater probabilities of accuracy and completeness of the recording, a defendant may as well be helped as harmed by such recording, depending upon the content and language of the entire conversation. Its weight was for the jury. The exhibit was clearly admissible under On Lee v. United States, 1952, 343 U.S. 747, 72 S. Ct. 967, 96 L. Ed. 1270; Goldman v. United States, 1942, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322; United States v. Schanerman, 3 Cir., 1945, 150 F.2d 941.
The defendant Klosterman assigns, as a further reason for new trial, the refusal of the trial judge to affirm his 9th request for charge which read as follows: 'Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt there must be an acquittal.' This request was contrary to Holland v. United States, 348 U.S. 121, 139, 75 S. Ct. 127, 137, 99 L. Ed. 150, in which the court said:
'The petitioners assail the refusal of the trial judge to instruct that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. There is some support for this type of instruction in the lower court decisions, * * * but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect, * * *.
'Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.'
The remaining reasons assigned in support of defendants' motions for new trial are either not pressed or without sufficient merit to require consideration.
Accordingly, prior to February 1, 1957, the United States Attorney will submit, upon Criminal No. 18684, a form of order denying the defendants' motions for judgment of acquittal and for new trial on Count II thereof, and counsel for Deeney and Stafford will submit forms of orders granting their motions for judgment of acquittal on Count I thereof and the like motion of Deeney upon Criminal No. 18659.