dissenting:
When that great English lyricist and lawyer, Sir William Gilbert, wrote that a policeman’s lot is not a happy one, he knew whereof he spoke. Our law enforcement officers are calumniated by criminals, castigated by their attorneys, excoriated by the media, and criticized by the courts. Because we expect our lawmen to have the patience of Job and the wisdom of Solomon, much of our criticism, I am convinced, is unjustified and unfair. However, when a law enforcement officer forgets that his job is to apprehend criminals — not to create them, to prevent crime — not to incite it, he merits no words of approbation from any judge. Butts v. United States, 273 F. 35, 38 (8th Cir. 1921). This, I believe, is such a case.
Two eager, young immigration officers, playing at being policemen, cozened, wheedled and bedevilled two equally young men, innocent of any previous criminality, into committing unlawful acts from which they stood to gain not one penny for themselves. Although my lone voice cannot repair the harm which has been done, it can express my disapproval of the tactics which have branded these young men with the ineradicable tag of “criminal”.
Without again recounting the facts as set forth in the majority opinion, I would merely add some illuminating details which have been omitted. It is clear from the record *516that early in 1975 the INS began a series of raids against the Brew Burger chain. INS agents’ first contact with either defendant took place on March 19, when they met defendant Steinberg. It is undisputed that at that meeting Steinberg asked whether they could “work something out” and whether he could be advised in advance of future raids so that he could make arrangements for other employees to cover for arrested aliens. It is also undisputed that this was not an unusual request and that no inducement or bribe of any sort had been offered or suggested by Mr. Steinberg. One of the INS witnesses testified that at the close of this conversation he believed Mr. Steinberg to be a decent, honest young man.
It is undisputed that during the second meeting with Steinberg on April 9 there was again no offer of a bribe. Despite this fact, a memorandum prepared by Agent Volpe following the meeting contained the caption “Attempting to Gain Immigration Benefits by Offering a Bribe to a Service Officer.”1 It was at this meeting that the conversation concerning Steinberg’s girlfriend took place and she was given a pass by Agent Volpe. To make the record complete, it should be pointed out that a pass simply permitted the holder to come voluntarily to the INS office and thus avoid arrest, and the giving of such a pass was common practice in the department and wholly within the regulations. As will be discussed later, Mr. Steinberg’s concern for the welfare of this young lady proved to be a most potent weapon for the INS agents in their pressure campaign to entice Mr. Stein-berg into an illicit scheme.
The authorities to whom the INS agents reported apparently decided that an opportunity to catch a well-known chain of restaurants in criminal activity might be presenting itself. They fitted Agent Volpe with a recording device and instructed him to go out and “play a crooked cop”. Play one, he did. He and his colleagues commenced a “blitz” campaign against Brew Burger restaurants, orchestrated with an unremitting effort to seduce Mr. Steinberg and later Mr. Riese into some form of criminal wrongdoing.
In the months leading up to the arrest of the defendants, every contact between them and Agent Volpe was initiated by Volpe. This was true of both the April 29 and May 6 meetings described in the majority opinion. The May 6 meeting was recorded, so that there can be no dispute as to what was said. It merits a somewhat more detailed review than was given in the majority opinion. In the first place, it should be pointed out that Volpe and his partner Moskowitz went to the meeting with the specific and agreed intention of trying to get Steinberg to offer them money. When Mr. Steinberg joined Mr. Volpe, as the latter had requested, he said to him, “You know you really blitzed me there for awhile.” Mr. Volpe’s reply was:
Yeah. Well that’s what we are here to talk to you about. See if we can slow that down somehow, you know.
During the conversation which followed, Volpe not only repeatedly emphasized the damage which the agents could cause to the Brew Burger chain and its employees but managed also to work the conversation around to Steinberg’s girlfriend. When informed by Steinberg that she had a weak heart, Volpe’s response was;
“A weak heart? Or a broken one if she gets sent back.” To complete the unlovely picture of what would happen to Stein-berg’s girlfriend if she was arrested and sent to the Brooklyn Navy Yard Immigration Jail, Volpe described her prospects in that institution as follows:
Over there when you cut somebody loose, the chances of a female getting screwed up over there is very good.
These “investigative techniques”, my colleagues say, were “certainly not improper”. *517I most respectfully disagree. This was not investigation, it was instigation; and it sullies the good name of every conscientious law enforcement officer in the country to characterize it as proper.
When Mr. Riese appeared on the scene during the continuance of the agents’ “investigation”, they attempted to include him in their pressure tactics. Their efforts, and his response thereto, can be best portrayed by the following more complete excerpts from the tape recording which was being made:
Volpe: Yeah, that’s it, so, so listen, you know we were blitzing, ya know, now I’m running the show at night so .
Steinberg: You are running the show?
Volpe: Yeah, see now we can, ah we can cool everything down completely, and you can keep whatever you want coming, you know, like .
Riese: Oh, I want, I wanna, I want to get them out of there, out of the stores, I, uh, I — I don’t want them around. I don’t want to be breaking any laws.
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Volpe: Well listen, you said ya know, a couple of times you want to try and get rid of some of the bad guys and you want to rotate your good help out and around. Well that’s why I came over, to have a few beers with you, to see if we can work something out about it, because like I said, now I am where I want to be. I am a honcho. There’s no problem.
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Volpe: Like you were saying, with your car, you park it anywhere, you know, you got the PD on your side, right? You talked about Lindsay and all that’s fine. I don’t even want to know about it, that’s your gig, but a, ya know, if we can work things out where it is in a monetary situation, we don’t have to worry no more. I don’t think you know the guy who owns this place, he loses a little asset here, it’s not gonna, it’s not going to kill his pocketbook, help ours, not kill his.
Volpe: You know, in a monetary situation there is no problem. You can, you can, we can see you there somewhere in a place when we come and talk to you, so you talk to me, shake my hand, and it is all done. You take who you want and that’s it, so that’s it.
Steinberg: Money.
Riese: Yet you are worried about risking something and that’s the worst thing.
Volpe: But that’s the only thing that we can work.
Riese: The worst thing.
Volpe: That’s the only way we can work it out though, there is no other way because it can’t go any place, walk in and walk out, and not pay for a dinner or anything like that, it’s impossible.
Moskowitz: Look, we have explored all the situations before you even came down here, otherwise we would have been coming down and taking people out.
Moskowitz: You guys, you guys are more or less .
Volpe: This, this is the only way because we can see this is the way it is done other places.
Moskowitz: We, we’ve got our jobs but, I have certain circumstances that put me in a situation where there’s more things that I need.
Riese: What do you mean?
Moskowitz: I have been on this job roughly a year, two years, with IRS, it’s good money as long as you are willing to live within the means. I am getting married, more or less, I want more for her than I can give her on my pay, not talking big money, you know.
Riese: I don’t want you guys to think that ahh, I want favors and I am not going to come through on that because just like you have a lot to, you know, at stake, we have got an awful lot at stake, you know. I’m not naive. It came to my mind, the whole conversation, and I am really, I am very, very, very reluctant to do it.
Moskowitz: Yeah, we were also.
Volpe: You’re reluctant! We are more reluctant than you. We talked about this *518for a week now, you know, and like I proved to him, it works, that’s all I can say and he can bear me out, he knows it works.
Moskowitz: We more or less guarantee results.
Volpe: You can keep on with it. You got to remember that your green card, that’s a biggy, and we can do it, it can eventually be done. That’s bigger than giving that piece of paper to you now. You know what I’m saying, because that’s going through, like ahh, eight or ten channels where my name or his name is going to be on something and it’s got to be golden on paper, otherwise, they are going to kick it back, we can make it golden.
Moskowitz: We know the setup of the Immigration Service, he better than I, he has been there longer, more or less, if you are, I am not saying you have to get crooked, more or less, if you know the angles.
Volpe: We are not being crooked.
Moskowitz: That’s why guys run after lawyers. That’s why this guy charges them $2,000, he knows the angles, the angles don’t always work, but most of the time, if you know what you are doing, right, you get results.
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Volpe: Well how about the chain, like we were talking before, the chain itself has got to be worth it to you, so that you don’t get botched up and kicked around all the time.
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Volpe: So you don’t have to give us the money, give it to, you know, somebody else to give it to us, one of the, somebody you can trust, somebody you got, er confidence in, not even him.
Riese: I would like not to be a part of that, I mean, I just have too much at stake to be a party to that.
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Moskowitz: You know, you know, what damage we do when we come in, right?
Steinberg: Yeah.
Volpe: You are going to know what it is worth to you?
Moskowitz: Can you put a monetary amount on it? What disruption it causes?
Volpe: It is up to you guys.
The majority opinion states that following the May 6 meeting Mr. Riese informed his supervisor of the agents’ demand for money. In fact, he did more than that. He advised his supervisor that the demand would be refused. His exact language, as set forth in a letter, was as follows:
I expect Brewburgers to be hit very hard by immigration officials beginning Tuesday, May 13. On that date, Fred Stein-berg and I will meet for a second time, and we will be refusing a certain deal that they wish to make. I expect they will be angry at our refusal, and there will be reprisals.
I quote this language to point up the tragedy of a citizen of our great country having to worry about the anger of a law enforcement officer, arising out of the citizen’s refusal to pay a demanded bribe.
During the May 12 meeting between the agents and Steinberg, Volpe brought up the subject of green cards,2 and Steinberg said that his girl might be willing to buy one. This, of course, is not surprising considering the glowing prospects for her future which the agents had painted. It was thereafter that the scheme was hatched wherein aliens would pay $1,000 to Volpe and Moskowitz in return for a green card. Mr. Steinberg did not want to get personally involved in this illicit transaction. He said, “I’ll send the people to you. You guys can do whatever you want with them.” The exact conversation which then ensued was as follows:
Volpe: Alright. We’re gonna have to get somebody to sign these things. Somebody, somewhere along the line is gonna have to sign the labor certs. Be*519cause you want to make it legit. That’s what I’m saying. This is gonna be strict legit. This isn’t gonna be phony or nothing.
Steinberg: Yeah.
Moskowitz: We’re doing it and we’re playing the angles the way the lawyer would do, but we’re playing it cheaper. Same thing a lawyer would do. So.
Yolpe: Instead of having the lawyer get the labor cert, your attorney box, there’s no name, you did it yourself. That’s all, no big deal. (1-second UNINTELL.) But, uh, other than that, we’re gonna make it totally legit.
Volpe: Brew and Burger is sponsoring twenty or ten, fifteen, or Brewery is sponsoring five, somebody else is sponsoring. ’Em all on the up and up.
Moskowitz: Whoever you can sign for yourself, you know what I mean?
Volpe: If we’re signing them, and because they’re gonna be labor certifications they gotta sign them. Somebody who’s going to sponsor them, because when it gets reviewed, they’re gonna say “This guy’s getting a card and, er . . ”
Steinberg: They’ll have to get their own sponsors.
Volpe: Uh.
Steinberg: They have to get their own sponsors.
Volpe: For labor certification, they’re gonna need ya know — well, they can ask you guys.
Moskowitz: If any of them are managers and such.
Volpe: A manager can’t sign a labor cert for himself, being the manager of the place. See, we need an authorized agent’s signature of a worker, not a worker, but one of the honchos in the place where he is gonna be employed.
Steinberg: Uh huh.
Volpe: ■ See, like I said before, you get a mechanic washing cars. Some guy in a cab company signing for him, that’s no good.
Steinberg: Yeah.
Volpe: If you people really want these people to work for you, there’s no problem.
The most illustrative excerpt from this entire tape recorded the following whispered aside from Volpe to Moskowitz while Steinberg was temporarily absent:
Volpe: I’m trying to angle him. If we can get Dennis to sign we’ll have all the people together and we want some of these guys there too. (Pause) A thousand dollars a green card, 20 people get twenty people at one time, we’ll take it and bust them.
“I’m trying to angle him.” This is a normal investigative technique of a conscientious police officer?
So that there is no question about the May 22 transaction, Mr. Riese did not “meet” with the INS agents; he lived only a few blocks away from a Brew Burger which was being blitzed and apparently happened by during the course of the raid. The majority opinion correctly quotes Mr. Riese’s surprised reaction, even down to the four letter word, when he learned that money was going to be paid to the agents.
When Riese left, Volpe and Moskowitz gave Steinberg a ride to the lot where his car was parked. During the ride, Steinberg informed the agents that he himself intended to sign all the employment certification forms. Volpe then admonished him that there would be problems processing the applications if they were all signed by the same person. Believing the plan in jeopardy without Riese’s participation, Steinberg responded, “Well, I’ll just take care of it and I’ll say Dennis, he doesn’t want to get involved in anything not legal. So I’ll say you just sign, these people came to you looking for a green card and you fill out the labor certification.”
The following excerpt from Agent Volpe’s testimony illustrates the entire ten- or of the conversation between him and the defendants on that day:
Q. You wanted to make sure that these people knew that all of this was legal, didn’t you? You wanted Mr. Stein-*520berg and Mr. Riese to think that everything you were doing was legal, didn’t you?
A. Yes, ma’am.
Volpe also admitted on cross-examination that prior to the May 22 meeting, the FBI had told him that more evidence was needed in order to inculpate Riese. The FBI instructed Volpe to try to get Riese to sponsor the illegal aliens by signing labor certification cards, and this apparently motivated Volpe to tell Steinberg that the applications could not be processed if Riese did not sign some of the cards. Mr. Volpe was a successful advocate. Mr. Riese did sign several application forms although he knew that the applicants involved would be required to pay Agent Volpe $1,000. One of the applicants testified that Riese told her he did not want to get involved. Another testified that Riese told him he didn’t want to do it but would do it to help him. Mr. Riese told the same applicant that this was “not a right thing to do.”
The following tape recorded exchange between Volpe and Moskowitz following their delivery of the green card to Steinberg’s girlfriend at the Commodore Hotel appropriately brings their “investigative” activities to a close:
Volpe: They got ripped off?
Moskowitz: Yea, I feel like a Judas.
They got “ripped off” ! By whom? By two representatives of the United States Department of Justice. 8 U.S.C. § 1101(a)(34).
In United States v. Archer, 486 F.2d 670, 676-77 (2d Cir. 1973) we said:
[T]here is certainly a limit to allowing governmental involvement in crime. It would be unthinkable, for example, to permit government agents to instigate robberies and beatings merely to gather evidence to convict other members of a gang of hoodlums. Governmental “investigation” involving participation in activities that result in injury to the rights of its citizens is a course that courts should be extremely reluctant to sanction. Prosecutors and their agents naturally tend to assign great weight to the societal interest in apprehending and convicting criminals; the danger is that they will assign too little to the rights of citizens to be free from government-induced criminality. (Footnote omitted).
In United States v. Toscanino, 500 F.2d 267, 275 (2d Cir. 1974) we went a step further and said that due process “extends to the pretrial conduct of law enforcement authorities.” In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), the Supreme Court refused to extend this rule to an entrapment case where the government supplied the illegal drugs and the “police, the government informer, and the defendant acted in concert with one another.” Id. at 490, 96 S.Ct. at 1650. This, however, is not such a case. If there was a concert here, the government agents were the conductors and the defendants responded to their persuasive batons. I cannot vote to affirm a conviction based on such governmental activities, and, if I read Hampton correctly, I do not believe that the majority of that court would. See, e.g., Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).
Were I not voting to reverse both convictions, because of the misconduct of the government’s agents, I would nonetheless vote to reverse as to the defendant Riese because the Government has failed as a matter of law in sustaining its burden of proving criminal predisposition on his part. See United States v. Klosterman, 248 F.2d 191, 195 (3d Cir. 1957). The majority washes away Riese’s continued expressions of unwillingness by saying that “he may simply have been worried at the thought of money bribes and the increased risk of being caught.” The answer to this argument is that lack of predisposition is not dependent upon the motive which brings it into being. The very reasons which the majority derides, predispose many of our citizens to walk the straight and narrow path.
Rather than extend this discussion to undue length, I will simply conclude with a quote from one of the last taped conversa*521tions between Steinberg and Volpe which preceded the defendant’s arrest:
Steinberg: Listen, I’ve got a problem. I signed my half, Dennis was reluctant to sign his.
Volpe: Hmmmm.
Steinberg: And thirty seconds ago I convinced him that he had better sign them.
If this quoted language accurately describes predisposition, then perhaps Webster should cease using “inclination” as its synonym.
I vote to reverse the judgments of conviction and to dismiss the indictments.
. “Q. Do we have it clearly, then, that when this was written you had never received an offer of a bribe from Mr. Steinberg or anybody else connected with this restaurant; right?
A. Yes, sir.”
. A “green card”, Immigration Form 1-151, is issued to every alien lawfully admitted into the United States for permanent residence. 8 C.F.R. § 101.3.