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United States v. Bocra

decided: May 29, 1980.

UNITED STATES OF AMERICA
v.
BOCRA, WILLIAM, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Crim. No. 79-00094

Before Rosenn and Sloviter, Circuit Judges, and Layton, District Judge.*fn*

Author: Rosenn

Opinion OF THE COURT

Appellant William Bocra was convicted of bribing an agent of the Internal Revenue Service (IRS) in violation of 18 U.S.C. § 201(b) (1976)*fn1 and was sentenced to a three-year prison term. At trial, Bocra's main defense was that he was the victim of entrapment by the IRS agent. In this direct appeal from the imposition of sentence, 28 U.S.C. § 1291 (1976), Bocra charges, inter alia, that he was denied a fair trial because the trial judge refused to allow him to introduce either as direct evidence or by cross-examination for impeachment purposes, the IRS agent's involvement in a number of other cases in which taxpayers were charged with attempting to bribe him in violation of section 201(b). We affirm.

I.

This case arose out of the audit of two companies owned and operated by the William Bocra family. William Bocra was president of BBT Maintenance, Inc. (BBT) and vice-president of Perth Amboy Iron Works (Perth Amboy). The 1976 corporate income tax return of BBT became the subject of an IRS audit and in February 1978, Arthur Lemp, an IRS agent, was assigned to the case. Lemp, in the course of his audit, examined various BBT records and discovered that Perth Amboy was a related corporation. He then determined that it would also be necessary to audit the Perth Amboy return for the fiscal year ending May 31, 1977. This audit, however, was not commenced until August 1978.

It was during the course of the Perth Amboy audit that Lemp began to develop a personal relationship with Bocra, his family, and the company accountant. On August 1, 1978, Lemp commenced his Perth Amboy audit and met Theodore Bocra (Theodore), appellant's brother for the first time. Lemp accompanied Theodore and William Platter (Platter), the company accountant, to lunch on the first day of the audit. Theodore suggested to Lemp that they play golf sometime but Lemp declined the invitation due to the ongoing audit. Theodore paid for the lunch except for a tip which Lemp left.

Lemp's audit of Perth Amboy uncovered a financial relationship with a restaurant known as Farrington Manor (the Manor) owned by the Bocra family. Lemp requested a list of shareholders of the Manor and a list of loans which Perth Amboy had made to it. William Bocra asserted that Perth Amboy had done some construction work for the Manor but that it had been done on weekends using only scrap materials. Lemp was interested in obtaining documentation of expenses deducted by Perth Amboy in connection with the construction, but never received the desired information.

The evidence at this point is sharply disputed by the parties. At an August 7, 1978 meeting with William and Theodore Bocra and Platter, Lemp claims the Bocras requested him to go easy on them in the audit. Both Theodore and William Bocra vigorously denied any request for favorable treatment. Lemp and Platter ate lunch together but Lemp paid his share. William Bocra subsequently invited Lemp and his wife as his guests to dinner at the Farrington Manor on August 11. The parties dispute whether William or Lemp initiated this invitation but Lemp tentatively agreed to the dinner. Lemp, however, immediately notified the IRS Inspection Service, which has jurisdiction over attempted bribes, and reported the dinner invitation. He was instructed to attend the dinner and report any attempted bribes. The dinner party, however, was cancelled due to William Bocra's illness.

Lemp continued his audit of Perth Amboy and revisited the company on August 30, 1978. Bocra instructed Platter to take Lemp to lunch at the Farrington Manor which Lemp says he accepted because he wanted to examine the construction performed by Perth Amboy and because the IRS had requested him to continue to monitor any bribe attempts. Lemp received no bill for the lunch. Lemp agreed to continue the audit at Platter's office to reduce the time required for the audit.

Due to delays in locating records, however, Lemp did not resume the audit until November 9, 1978, when he returned to Perth Amboy's office. There he met Theodore who told him that the necessary records were at Platter's office. Lemp remained at Perth Amboy, however, for the bulk of the morning and talked with Theodore. The parties sharply dispute the conversation. Theodore claimed he told Lemp about an article in a newspaper concerning dishonest government employees, which greatly upset Lemp. Lemp's version of the conversation suggested that this conversation manifested Theodore's interest in offering a bribe.

Theodore invited Lemp to lunch. Before lunch, Lemp asked him if he could fix a broken tire iron which Theodore agreed to do. At lunch, Lemp claims Theodore again requested easy treatment and that he would like a "no change" report.*fn2 Lemp stated he had no reason to make such a recommendation. Lemp testified that Theodore then asked him to discuss the matter with William and suggested a dinner party at Farrington Manor the next night. The remainder of the luncheon conversation centered on Lemp's sailing avocation and Theodore expressed a desire to learn how to sail with a corresponding invitation to Lemp to use his boat in exchange for lessons. Theodore's version of the conversation was that Lemp clearly indicated that he wanted a boat. Theodore claimed that he told William Bocra after this conversation that Lemp was trying to "shake them down."

Lemp reported the renewed dinner invitation to the IRS Inspection Service and submitted an affidavit detailing his conversation with Theodore. Lemp and his wife attended the dinner on November 10 as William Bocra's guests. Lemp agreed with the Inspection Service to wear a concealed tape recorder and transmitter to the dinner. No conversation relating to a bribe occurred at dinner. William Bocra, however, suggested to Lemp that they take an after-dinner stroll around the grounds. In the course of their stroll, William and Lemp discussed the audit with Lemp informing him that only $5,000 was owed on the BBT audit. Bocra told Lemp how he could not afford any financial difficulty at the time. Lemp then recounted his conversation with Theodore the day before and asked William what he wanted to do. After warning Lemp about the potential serious consequences of their conversation, William suggested that Lemp might like a boat. Lemp recounted the conversation he had with Theodore about the sailboat. Bocra said he would get Lemp a boat or whatever else he wanted if Lemp helped Theodore out on the audit. Lemp stated he could not recommend a no change report. Bocra then suggested an audit result of a small tax owed and offered Lemp $2,500 for this result. Lemp indicated that he would accept. Bocra again emphasized the seriousness of the conversation and Lemp manifested his understanding that it was a crime to give and receive a bribe. The two agreed to meet on November 17 at which time Lemp was to have the audit report completed.

Lemp reported the bribe offer to the IRS Inspection Service. On November 17 Lemp arrived at Bocra's Perth Amboy office and presented the requested favorable audit report. Bocra signed the audit report and signed a check for the small sum owed. Bocra then took Lemp for a short drive and indicated that the $2,500 was placed behind the sunvisor. Lemp took the money and immediately turned it over to the IRS Inspection Service.

William Bocra was indicted on March 16, 1979, on bribery charges under 18 U.S.C. § 201(b)(1). Bocra's defense was that Lemp had entrapped him into making the bribe. Defense counsel was aware that Lemp had been involved in other bribery cases arising out of taxpayer audits and filed a pretrial discovery motion for a summary of all other bribe attempts involving Lemp. The defense sought access to these materials in an effort to establish that Lemp had been the solicitor and William Bocra the innocent victim of an entrapment. The motion was opposed by the United States Attorney on the ground that the requested material was collateral and that except in three pending cases, the taxpayers had each pled guilty to bribery. The prosecutor submitted the materials to the court for in camera inspection and filed a motion in limine seeking to preclude Bocra from mentioning the other bribe cases involving Lemp.

The district court ruled that under United States v. McClure, 546 F.2d 670 (5th Cir. 1977), evidence of a systematic campaign of inducements to commit crimes was admissible to negate criminal intent. Because the material sought by Bocra related directly to his entrapment defense, the court ordered that copies of all IRS files involving bribery cases in which Lemp was involved and an indictment returned be turned over to the defense by June 25, 1979. He also ordered the Government to produce three files for in camera inspection relating to bribery cases involving Lemp in which no indictment had yet been returned. The court, however, indicated that the Government was free to file for a protective order for the IRS material, which the Government promptly filed. After completing his in camera inspection of the newly submitted material, Trial Judge Coolahan ordered that the defense receive only two reports concerning Lemp and other bribes, but did advise the defense that some of the ...


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