Before DUFFY and CASTLE, Circuit Judges, and MAJOR, Senior Circuit Judge.
The indictment herein charged that defendant Madda gave the sum of $200 to Erwin I. Katz, an assistant United States attorney, with intent to influence Katz' decision and action with respect to a case entitled Janus v. United States, in violation of 18 U.S.C. § 201(b). The Janus case involved a claim under the Federal Tort Claims Act, and was pending before Judge Hoffman in the United States District Court for the Northern District of Illinois, Eastern Division.
In the instant case, the jury found the defendant guilty of the charge and this appeal is from the judgment of conviction.
Before the trial in the District Court, defendant filed motions for discovery and inspection and to suppress evidence; also to transfer the cause to the Executive Committee of the District Court for reassignment. These motions were denied.
Three days before the trial, and about two and a half months after the motion to transfer the case had been denied, a subpoena was served on Judge Hoffman at the instance of the defendant, requesting the judge's appearance as a witness at the trial. Judge Hoffman was tendered an unsigned check for $4.16 purporting to be witness fees. A motion to quash the subpoena was granted. Defendant then appeared before this Court and petitioned for a writ of mandamus to compel Judge Hoffman to respond to the subpoena. The petition was denied by us. No effort was made to call Judge Hoffman as a witness during the course of the trial.
Defendant claims that it was Katz who first made the suggestion as to the bribe, and one of his defenses in the trial below was that of entrapment. It therefore becomes necessary to review in some detail, the testimony of Katz as to what was said by him and by the defendant leading up to the passing of the bribe money from defendant to Katz.
Katz testified defendant, Madda, a Chicago Transit attorney, told him he was handling the Janus case on the side, and asked Katz not to call him at the Chicago Transit Authority office but rather at the law offices of Attorney Fred Krol with whom he was working. Katz informed Madda he had authority to settle cases up to $3000 without prior approval of the Department of Justice.
On December 17, 1963, Katz saw defendant in Judge Hoffman's courtroom, and had a conversation with him in the corridor near the courtroom. Katz told defendant he would raise his settlement offer from $300 to $500 on the basis of a nuisance value. Defendant declined. On the afternoon of the same day, Katz telephoned defendant to tell him of a change in the trial date of the Janus case from December 18 to December 19. Defendant then asked for a meeting to further discuss a possible settlement. Katz replied that he was leaving his office at 3 p.m. to get a prescription filled at a drug store, and that he would stop by defendant's office. Defendant suggested that he come to Mr. Krol's office which Katz did, and there, for the first time, met Attorney Krol.
Katz refused to increase his offer of $500. Defendant said "We've got to settle this case. We don't want to try this case." Katz testified that as Krol was answering a telephone call, defendant Madda said to him "We've got to settle this case, Erv. We don't want to try this one. If you give us two thousand, we'll give you two hundred." Katz testified he made no direct answer, but in further conversations, refused to settle the case for more than $500, and that when Krol answered a second phone call, defendant stated to him "If you give us two thousand, we'll give you two hundred." Katz replied "I'll call you tomorrow."
Katz proceeded directly to the office of the United States attorney and contacted the Chief of the Criminal Division.After conferring with him, the latter placed a call to the office of the Federal Bureau of Investigation (FBI). Shortly thereafter, Special Agent Bloom of the FBI called Katz.
The following day, Bloom searched Katz, made an inventory of the contents of his pockets and, with Katz' consent, attached a tape recorder to his person. He instructed Katz in its use. Katz proceeded to the Jockey Club bar in the Morrison Hotel where he met defendant Madda. Katz testified he and defendant seated themselves side by side at the bar and engaged in conversation. Special agents of the FBI were in the room and observed them. Defendant ordered a drink for Katz and asked him "Are we going to trial or not or what?" Katz responded "You made an offer yesterday. Were you serious?" Madda took a cocktail napkin and wrote on it "O.K. on the deal." Defendant slid the napkin to Katz who said "O.K." and wrote on the napkin "Mine before." Defendant took the napkin and tore it into small pieces and placed the pieces in an ashtray on the bar. These pieces were later retrieved by Katz. The napkin was reconstructed in part and the words hereinbefore quoted are clearly legible. The napkin, after identification, was marked Government Exhibit 3, and was received in evidence.
Katz testified to a further conversation at the bar. The defendant asked Katz "Is it O.Kay if you wait until tomorrow?" Katz said to Madda "You made an offer yesterday. Were you serious?" Defendant replied "Erv, you scare me. I think you got a tape recorder on you or something." Katz said he lifted his arm and said "Sure, it is right up my sleeve" and defendant replied "No, seriously Erv, it scares me a little, but I have nothing to prove it."
Katz testified discussion was had with respect to details in settling the Janus case and having it dismissed in court. Then defendant wrote on another piece of the cocktail napkin "If you say you'll settle this case for $2000, I'll make the call and get $200." Katz then asked "How do I know you are not setting me up for something here?" The defendant denied the suggestion. Then Madda said "We'll settle this for $2000, okay?" and Katz replied "Fine, we'll settle it for $2000," and asked defendant if he wanted to make the call now to which defendant replied "Yes." The defendant then took the second piece of the ...