Major, Senior Circuit Judge, and Kiley and Cummings, Circuit Judges.
MAJOR, Senior Circuit Judge.
Defendant was charged in a one-count indictment with a violation of Title 18 U.S.C.A. Sec. 201(b), by corruptly giving, offering and promising the sum of two hundred dollars to Eugene Robinson, an Internal Revenue agent, with intent to influence his decision on matters then pending before him in his official capacity, with intent to influence him to allow and make opportunity for commission of a fraud on the United States, and to induce him to violate his lawful duty, all in respect to defendant's tax liability.
Defendant was tried to the court without a jury and found guilty. From the judgment entered thereon, he appeals to this court.
We see no point in making a detailed statement of the evidence inasmuch as only issues of law are raised on this appeal. We think it sufficient to state that Robinson was assigned to make an examination of defendant's income tax returns, and for that purpose met and conversed with him on several occasions. At one of their meetings defendant gave Robinson two hundred dollars and two bottles of Scotch whiskey in a briefcase. According to the government's theory, supported by the testimony of Robinson, this was for the purpose of influencing him in his official capacity. Defendant admitted making the gifts but offered an explanation which, if it had been credited, would have exculpated him from criminal responsibility.
Tape recordings of conversations between Robinson and defendant were made without the latter's knowledge and, over objection, were introduced in evidence at the trial. Robinson consented to have the conversations recorded and, together with two other government agents who overheard them, was permitted to testify as to what was said. One tape recording was of a telephone conversation which related to the making of an appointment for Robinson to visit defendant at his place of business, and the other was a conversation at the pre-arranged meeting, when defendant made the payment to Robinson.
Defendant here in his original brief, filed November 14, 1967, stated the contested issues as follows:
"1. Was the Court's denial of defendant's several motions made pursuant to Rule 16(a) of the Federal Rules of Criminal Procedure for production of two tape recordings of conversations of defendant with the Internal Revenue Agent, made without defendant's knowledge, prejudicial and reversible error?
"2. Were the Court's rulings excluding all evidence showing defendant's actual non-liability for taxes during the years in question, prejudicial and reversible error?"
On April 11, 1968, defendant with leave of this court filed a supplemental brief in which he raised the following issue:
"Whether the admission into evidence over objections of tape recordings made without defendant's knowledge by means of a microphone hidden on the body of a Government Agent's person was reversible error since it denied defendant's rights under the 4th Amendment to the Constitution of the United States of America."
Defendant's contention on this issue is based in the main on a decision of this court in United States v. White, 405 F.2d 838, now pending before the Supreme Court on petition for certiorari filed by the government and granted April 7, 1969, 394 U.S. 957, 89 S. Ct. 1305, 22 L. Ed. 2d 559. All issues argued here by defendant were appropriately raised in the district court and ruled on adversely to defendant. The court gave no reason for its ruling, merely stating, "All the motions made at this time by counsel for the defendant are denied."
Rule 16, entitled "Discovery and Inspection," provides:
"(a) Defendant's Statements; Reports of Examinations and Tests; Defendant's Grand Jury Testimony. Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, (2) results of reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody or control of the government, ...