GOODRICH, Circuit Judge.
This is an appeal by a defendant who was convicted of violating § 4047(e) (4) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 4047(e) (4). The most important question raised is whether on the facts proved in the case for the government a verdict of guilty under this subsection can be sustained.
The defendant, at the time of the acts charged against him, was a deputy collector for the Bureau of Internal Revenue. His business was to collect unpaid taxes owed by taxpayers in the zone in Philadelphia to which he was assigned. By virtue of his position he had no authority to compromise or settle claims, nor did he have any authority to have anything to do with the accounts of taxpayers who resided outside his district. The proof adduced by the government against the defendant was that he conspired with persons unknown to induce a taxpayer, named Dr. Mogavero, to pay $20,000 in cash to the defendant and others in order to forestall the prosecution for income tax evasion which the doctor was given to understand was to be brought against him. Dr. Mogavero did not live in the district where defendant operated. It was not shown that either defendant or any of the persons alleged to be involved in the conspiracy had any authority to settle cases, stop prosecutions or furnish other of the alleged protective devices that the doctor was offered. But the evidence presented could lead to the conclusion that an object of the conspiracy was improperly to influence government officials who did have the capacity to do these things, and that at the very least the defendant himself was corrupted as a result of the illegal agreement. There was testimony, also, which the jury could believe, that the conspiracy reached the place where $20,000 in cash was actually put by the doctor into the defendant’s hands just before the latter was apprehended.
On these facts may the conviction of the defendant be sustained? Section 4047(e) lists ten “unlawful acts of revenue officers or agents.” They differ in [553]*553description and it is a dangerous generalization to say that the same rules apply to all of them.1 For instance, clause (1) describes, as a subject for punishment, an agent “who is guilty of any extortion or willful oppression under color of law.” Clause (3) penalizes an officer “who willfully neglects to perform any of the duties enjoined on him by law.”
Clause (4) is the one here concerned. The opening words of § 4047(e) describe the persons to whom (e) is applicable. The words are: “Every officer or agent appointed and acting under the authority of any revenue law of the United States * * * ” The words of clause (4), with which we are involved here, are: “Who conspires or colludes with any other person to defraud the United States * * * ” Then follow other provisions, with the penalty of fine and imprisonment specified in the closing lines of the section.
That a conspiracy to stop prosecution for tax violation and to corrupt government employees is a conspiracy to defraud the United States we think no one would doubt. But can a revenue agent who has no official authority to start or stop a prosecution or, as a matter of fact, to do anything affecting a particular taxpayer’s account, violate the section when he does what the jury could have found the defendant did here in concert with strangers totally outside the service ? We think that it is enough that a defendant who is in fact a revenue officer shows his own corruption or intent to corrupt the service by participating in an unlawful project which concerns an internal revenue matter.
A similar argument is made that, notwithstanding actual authority, in order to give the phrase “officer or agent appointed or acting under the authority of any revenue law” full effect, it should be interpreted to mean that the agent at least must purport to act as a revenue officer at the time he enters into the conspiracy. To this there are two answers. One is that even without the appellant’s gloss the words themselves are not two ways of saying the same thing. A man may be appointed and not be acting either because he has not qualified or because he is away on sick leave or something of the kind. The other answer is that when the Congress meant to require that the revenue officer be acting under purported authority or color of authority it said so as it did in clause (1) which deals with extortion.
The point here involved is not settled by authority. Judge Ganey, when this defendant was prosecuted under clause (10) of the section, thought that under this clause for an agent to be convicted he must have had authority, or at least color of authority, “to compromise, adjust or settle the taxpayer’s violation or alleged violation of law.” United States v. Waldin, D.C.E.D.Pa.1951, 139 F.Supp. 156, 158. But the conduct described in that particular clause (10) is much more definite and narrow than the conduct proscribed in the clause which we are now considering.
Judge Lord, in an opinion rendered upon a motion to dismiss earlier in these proceedings (D.C.E.D.Pa.1956, 138 F. Supp. 791, 795-796), thought that the clause involved here was applicable to an agent whether he pretended to act in his capacity as agent or not and whether he made known his authority or. purported authority to the taxpayer-
We think Judge Lord was right in-holding this particular part of § 4047' applicable to a revenue agent who does the forbidden things. It is quite clear that subsection (e) of 4047 has to do with conduct forbidden to revenue officers and agents. It purports to impose sanctions for a departure from standards of conduct applicable to their offices. It covers quite a number of types of forbidden conduct. When the lawmakers wanted to put the requirement that the person act under color of office in order to commit the offense they said so. In other clauses the very nature of the for[554]*554bidden conduct would involve a representation at least on the part of the agent that he was acting in his official capacity. This was Judge Gáney’s case in the prosecution under clause (10).
But we think that the language describing conspiracy as forbidden conduct does not require any such qualifications and we do not think we should put it into the statute.
The point just discussed was squarely raised by counsel for the defendant in a requested instruction which said:
“If you find beyond a reasonable doubt that there was in existence a conspiracy and that the defendant was one of the conspirators, you must find that any acts of the defendant were done while he was acting under the authority of his office before you can find the defendant guilty as charged of violation of 26 U.S.C.A. Section 4047(e) (4), and also you must find the defendant entered into the conspiracy while acting under the color of authority of his- office,”
Judge Grim, who tried the case, denied-this request and in denying defendant’s motion for a new trial relied upon what Judge Lord had decided, 138 F.Supp. 791, in denying the motion to dismiss, D.C. E.D.Pa.1957,149 F.Supp. 912.
We agree with Judges Lord and Grim so far as clause (4) is concerned. The view we take makes it immaterial whether Dr. Mogavero believed or did not believe that the defendant was an agent of the department acting within his authority, was an agent of the department acting outside his authority, or was an agent at all. It is sufficient that the defendant was in fact a revenue agent at the time of what the jury found was the misconduct.
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GOODRICH, Circuit Judge.
This is an appeal by a defendant who was convicted of violating § 4047(e) (4) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 4047(e) (4). The most important question raised is whether on the facts proved in the case for the government a verdict of guilty under this subsection can be sustained.
The defendant, at the time of the acts charged against him, was a deputy collector for the Bureau of Internal Revenue. His business was to collect unpaid taxes owed by taxpayers in the zone in Philadelphia to which he was assigned. By virtue of his position he had no authority to compromise or settle claims, nor did he have any authority to have anything to do with the accounts of taxpayers who resided outside his district. The proof adduced by the government against the defendant was that he conspired with persons unknown to induce a taxpayer, named Dr. Mogavero, to pay $20,000 in cash to the defendant and others in order to forestall the prosecution for income tax evasion which the doctor was given to understand was to be brought against him. Dr. Mogavero did not live in the district where defendant operated. It was not shown that either defendant or any of the persons alleged to be involved in the conspiracy had any authority to settle cases, stop prosecutions or furnish other of the alleged protective devices that the doctor was offered. But the evidence presented could lead to the conclusion that an object of the conspiracy was improperly to influence government officials who did have the capacity to do these things, and that at the very least the defendant himself was corrupted as a result of the illegal agreement. There was testimony, also, which the jury could believe, that the conspiracy reached the place where $20,000 in cash was actually put by the doctor into the defendant’s hands just before the latter was apprehended.
On these facts may the conviction of the defendant be sustained? Section 4047(e) lists ten “unlawful acts of revenue officers or agents.” They differ in [553]*553description and it is a dangerous generalization to say that the same rules apply to all of them.1 For instance, clause (1) describes, as a subject for punishment, an agent “who is guilty of any extortion or willful oppression under color of law.” Clause (3) penalizes an officer “who willfully neglects to perform any of the duties enjoined on him by law.”
Clause (4) is the one here concerned. The opening words of § 4047(e) describe the persons to whom (e) is applicable. The words are: “Every officer or agent appointed and acting under the authority of any revenue law of the United States * * * ” The words of clause (4), with which we are involved here, are: “Who conspires or colludes with any other person to defraud the United States * * * ” Then follow other provisions, with the penalty of fine and imprisonment specified in the closing lines of the section.
That a conspiracy to stop prosecution for tax violation and to corrupt government employees is a conspiracy to defraud the United States we think no one would doubt. But can a revenue agent who has no official authority to start or stop a prosecution or, as a matter of fact, to do anything affecting a particular taxpayer’s account, violate the section when he does what the jury could have found the defendant did here in concert with strangers totally outside the service ? We think that it is enough that a defendant who is in fact a revenue officer shows his own corruption or intent to corrupt the service by participating in an unlawful project which concerns an internal revenue matter.
A similar argument is made that, notwithstanding actual authority, in order to give the phrase “officer or agent appointed or acting under the authority of any revenue law” full effect, it should be interpreted to mean that the agent at least must purport to act as a revenue officer at the time he enters into the conspiracy. To this there are two answers. One is that even without the appellant’s gloss the words themselves are not two ways of saying the same thing. A man may be appointed and not be acting either because he has not qualified or because he is away on sick leave or something of the kind. The other answer is that when the Congress meant to require that the revenue officer be acting under purported authority or color of authority it said so as it did in clause (1) which deals with extortion.
The point here involved is not settled by authority. Judge Ganey, when this defendant was prosecuted under clause (10) of the section, thought that under this clause for an agent to be convicted he must have had authority, or at least color of authority, “to compromise, adjust or settle the taxpayer’s violation or alleged violation of law.” United States v. Waldin, D.C.E.D.Pa.1951, 139 F.Supp. 156, 158. But the conduct described in that particular clause (10) is much more definite and narrow than the conduct proscribed in the clause which we are now considering.
Judge Lord, in an opinion rendered upon a motion to dismiss earlier in these proceedings (D.C.E.D.Pa.1956, 138 F. Supp. 791, 795-796), thought that the clause involved here was applicable to an agent whether he pretended to act in his capacity as agent or not and whether he made known his authority or. purported authority to the taxpayer-
We think Judge Lord was right in-holding this particular part of § 4047' applicable to a revenue agent who does the forbidden things. It is quite clear that subsection (e) of 4047 has to do with conduct forbidden to revenue officers and agents. It purports to impose sanctions for a departure from standards of conduct applicable to their offices. It covers quite a number of types of forbidden conduct. When the lawmakers wanted to put the requirement that the person act under color of office in order to commit the offense they said so. In other clauses the very nature of the for[554]*554bidden conduct would involve a representation at least on the part of the agent that he was acting in his official capacity. This was Judge Gáney’s case in the prosecution under clause (10).
But we think that the language describing conspiracy as forbidden conduct does not require any such qualifications and we do not think we should put it into the statute.
The point just discussed was squarely raised by counsel for the defendant in a requested instruction which said:
“If you find beyond a reasonable doubt that there was in existence a conspiracy and that the defendant was one of the conspirators, you must find that any acts of the defendant were done while he was acting under the authority of his office before you can find the defendant guilty as charged of violation of 26 U.S.C.A. Section 4047(e) (4), and also you must find the defendant entered into the conspiracy while acting under the color of authority of his- office,”
Judge Grim, who tried the case, denied-this request and in denying defendant’s motion for a new trial relied upon what Judge Lord had decided, 138 F.Supp. 791, in denying the motion to dismiss, D.C. E.D.Pa.1957,149 F.Supp. 912.
We agree with Judges Lord and Grim so far as clause (4) is concerned. The view we take makes it immaterial whether Dr. Mogavero believed or did not believe that the defendant was an agent of the department acting within his authority, was an agent of the department acting outside his authority, or was an agent at all. It is sufficient that the defendant was in fact a revenue agent at the time of what the jury found was the misconduct.
' The defendant makes a further contention that error was committed when the judge did not strike out evidence relating to the payment of the $20,000. When the defendant was tried under clause (10) before Judge Ganey, the money which was used in the transaction and a list of the serial numbers on the bills were in court and presented in evidence. In the meantime, the money had been returned to Dr. Mogavero and the list of serial numbers on the bills had been lost. Now defendant urges that if the money itself was not produced evidence concerning it should have been refused or stricken out.
At the trial there was testimony from three government agents about this money. They described going to the bank with Dr. Mogavero and getting the money, checking the amounts, making a list of the serial numbers, wrapping the currency in paper and giving the package to the doctor just a short time before the doctor handed it to the defendant. This testimony, it should be emphasized, came from the very persons who had done all these things with the money.
The only basis on which defendant’s motion could be sustained is to allege that there'is such a thing as a best evidence rule that requires in every law suit the best possible evidence to prove a given point. There is no such rule and all the modern authorities say so. The confusion got into the law when Baron Gilbert back in 1726 made some incautious statements broad enough to be the basis, for misunderstanding of what “the best evidence rule” is. The rule itself is properly confined to writings and is so understood by all the well considered authorities.2 It may well have been that had the money and the list been produced the testimony might have been stronger, although the jury found it strong enough. There, was no error by the trial judge in this.
The defendant also complained of the refusal of the judge to give a requested instruction on entrapment. There are two answers to this objection. One is that any suggestion of entrapment on the evidence is so thin as to be [555]*555almost fanciful. Another answer is that the instruction was phrased in terms which took the entrapment question out of the hands of the jury on an insufficient basis of fact. There is nothing to the entrapment point.
The judgment of the district court will be affirmed.