Petition — John M. Murphy v. United States
Supreme Court brief1983
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82-1187 ——
No.
IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1982
JOHN M. Murpny,
Petitioner,
Wa
UNITED STATES OF AMERICA.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
MICHAEL E. TIGAR
(Counsel of Record)
SAMUEL J. BUFFONE
JOHN J, PRIVITERA
TIGAR & BUFFONE, P.C.
1302 18th Street, N.W.
Washington, D.C. 20036
(202) 785-8900
Counsel for Petitioner
PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C,
i
QUESTIONS PRESENTED
1. Does a supplemental jury instruction under the
gratuity statute, 18 U.S.C. § 201(g), adequately define
the intent and receipt elements of the offense when it:
a. Belatedly allows consideration of constructive
rather than direct receipt and fails to define any stand-
ards applicable to such a theory;
b. Requires only that the accused knew that money
was passed to a third party and not that he knew it was
passed for his benefit; and
ce. Fails to distinguish between illegal and con-
stitutionally protected activity?
2. May sufficient evidence of guilt under charges of
acceptance of an unlawful gratuity and conspiracy to ac-
cept a bribe be based on inferences drawn from the ex-
ercise of constitutionally protected rights by a Con-
gressman to meet with the public and his Congressional
colleagues?
3. Does the deliberate creation by the government of
ambiguous, unreliable and misleading evidence, which it
later urges is evidence of criminality, violate the due
process rights of the accused?
TABLE OF CONTENTS
-age
rE fd ics buh wos 6000006500600 nes i
ae ce eer iblsn ohaeaeseesebesseses 2
TELS cae bh4 46444004000 0200 088 000v 08 2
i i CAM) cecwepeccecccsecscevessescs 2
REASONS FOR GRANTING THE WRIT ......0.0e0eeeeeees 5
I. THE SUPPLEMENTAL INSTRUCTION ON INTENT AND
RecerPt MisstaTeED THE LAW, WAs CONFUSING AND
MISLEADING AND FAILED To DISTINGUISH BETWEEN
ILLEGAL AND CONSTITUTIONALLY PROTECTED ACTIVI
ee ete ei reece eeeneyeteeveteens 5
II. PETITIONER'S FIRST AMENDMENT RIGHTS WERE
VIOLATED By THE INFERENCE OF GUILT FRoM THE
EXERCISE OF CONSTITUTIONALLY PROTECTED
TE asda s ceesh oe nececseresercesss 13
II]. THE DELIBERATE IMPAIRMENT OF ACCURATE
Fact-FINDING IN ABSCAM VIOLATED PETITIONER'S
BU, PROCESS FRIGHTS ccc cccccccccccccccccccvces 18
ee Os vaca sede sténboctaceoceccecesese 23
APPENDICES:
A. United States Court of Appeals for the Second Cir-
cuit Opinion Affirming Judgment of Conviction,
United States v. Myers, 692 F.2d 823 (2d Cir. 1982) la
B. United States Court of Appeals for the Second Cir-
cuit Order Denying Petition For Rehearing ..... Sla
C. Collogquy And Supplemental Jury Instruction On
The Receipt And Intent Elements of 18 U.S.C.
icsos cchse cb sbesevesscseescass 83a
D. Portion Of Defendant Murphy's Proposed Jury In-
TEs ccGpecnesicericcensssccseceees 102a
iii
TABLE OF AUTHORITIES
CASES: Page
Alcorta v. Texas, 355 U.S. 28 (1957) .......cceeeeees 19
Berger v. California, 393 U.S. 314 (1969) ........6.4.. 19
Bollenbach v. United States, 326 U.S. 607 (1946) ..... 6
Bond v. Floyd, 385 U.S. 116 (1966) .........ceeeeeee 16
Brady v. Maryland, 373 U.S. 83 (1963) ..........445 19
Buckley v. Valeo, 424 U.S. 1 (1976) ..... cece eee ee ees 13
Dutton v. Evans, 400 U.S. 74 (1970) 2.0... eee ee 19
Eastern R.R. Presidents Conference v. Noerr Motor
eg rrr ere 17
Foster v. California, 394 U.S. 440 (1968) .........08. 20
Giglio v. United States, 405 U.S. 150 (1972)... ee. 19
Liberty Lobby, Inc. v. Pearson, 390 F.2d 489 (D.C, Cir.
PUNE ds cu bubh scot hbia vase eeareenasesearecos 10, 16
Manson v. Brathwaite, 432 U.S. 98 (1977) «0.6.6.6... 20
Mooney v. Holohan, 294 U.S. 103 (1985) .........06. 19
NAACP v. Clairborne Hardware Co., U.S. ,73
L.Ed.2d 1215, 102 S.Ct. 3409 (1982) ........... 15, 16
Napue v. Illinois, 360 U.S. 264 (1959)... . ccc eee eee 19
Noto v. United States, 367 U.S. 290 (1961) .......... 15
Ohio v. Roberts, 448 U.S. 56 (1980) ........ cece eee 19
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ..... 19
Stirone v. United States, 361 U.S. 212 (1960) ........ 12
Stovall v. Denno, 388 U.S. 293 (1967) .......ceeeeees 20
United States v. Agurs, 427 U.S. 97 (1976) .......... 19
United States v. Brewster, 408 U.S. 501 (1972) ....... 6, 7
United States v. Brewster, 506 F.2d 62 (D.C. Cir.
DOOUE: Ri vidTGs EATER CNAME CS ERS Ra baaeeoneees 6, 8, 11
United States v. Bufalino, 285 F.2d 408 (2d Cir. 1960) 15
United States v. Campbell, 684 F.2d 141 (D.C. Cir. 1982) 6
United States v. Gallishaw, 428 F.2d 760 (2d Cir. 1970) 12
United States v. Harary, 457 F.2d 471 (2d Cir.
DUE uA Wie cheaed Cake ke canaendeemeraasuasenre 8, 11
~~
iv
Table of Authorities Continued
Page
United States v. Harriss, 347 U.S. 612 (1954) ...... 10, 16
United States v. Irwin, 354 F.2d 192 (2d Cir. 1965), cert.
denied, 383 U.S. 967 (1966) ...... ccc cece eee ee ll
United States v. Johnson, 419 F.2d 56 (4th Cir. 1969),
cert. denied, 397 U.S. 1010 (1970) ............85. 7
United States v. Kelly, 539 F. Supp. 368 (D. D.C. 1982) 3
United States v. Marion, 404 U.S. 307 (A971) ........ 19
United States v. Myers, 527 F. Supp. 1206 (E.D.N.Y.
MEE Ae ChRic Gee Ne ANE se bee Gabo waeedauare acne’ 2
United States v. Myers, 692 F.2d 823 (2d Cir. 1982) passim
United States v. Ronder, 639 F.2d 931 (2d Cir. 1981). 12
United States v. Spock, 416 F.2d 165 (ist Cir, 1969)... 15
Yates v. United States, 354 U.S. 298 (1957) .......... 15
STATUTES:
Sa eS aac euhne avi esbecederes 1, 6, 8, 11, 14
PR PED aes becededseeuccrevastaveseuas passim
ss MP aa PENS eke desc cient ow kee eneee ta l
EE cee c CLIC i ANd ened week hav NaNoes KOR l
aM POE tcdehdsadebearsienscavcdyayeca'esne |
es Se ENED 6 ce seh es bA00s oad iare rneesceeess 2
gt Ld) See ore ee rere rer reer ll
OTHER AUTHORITIES:
Bribery, Graft, and Conflicts of Interest, H. Rep. No.
748, 89th Cong., Ist Sess. (1961) ......ccccceeves ll
Note, Ca wx: n Contributions and the Federal Bribery
Law, 42 Harv. L. Rev. 451 (1978) ...........06 8, 11
IN THE
Supreme Court of the United States
OCTOBER TERM, 1982
No.
JOHN M. Murpuy,
Petitioner,
Vv.
UNITED STATES OF AMERICA.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioner John M. Murphy, who served for nine suc-
cessive ternis as Representative of the Seventeenth Con-
gressional District of New York in the United States
Congress, prays that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for
the Second Circuit, which affirmed the judgment of con-
viction of the United States District Court for the East-
ern District of New York sentencing him to a term of
imprisonment of three years. Following a jury trial, peti-
tioner was acquitted of charges of bribery (18 U.S.C.
§ 201(c)), and interstate travel (18 U.S.C. § 1952). He
was convicted of the offenses of conspiracy (18 U.S.C.
§ 371); acceptance of an unlawful gratuity (18 U.S.C.
§ 201(g)), and conflict of interest (18 U.S.C. § 203(a)). On
appeal the conviction under the conflict of interest charge
was reversed. United States v. Myers, 692 F.2d 823 (2d
Cir. 1982).
2
OPINIONS BELOW
The opinion of the court of appeals, affirming in part
and reversing in part, is reprinted as Appendix A and
reported as United States v. Myers, 692 F.2d 823 (2d Cir.
1982). A timely petition for rehearing was denied on
November 17, 1982, in an order reprinted as Appendix B.
The opinion of the district court denying pretrial and
post-trial motions is reported as United States v. Myers,
527 F. Supp. 1206 (E.D.N.Y. 1981).'
JURISDICTION
The timely petition for rehearing was denied on
November 17, 1982. This Court has jurisdiction under 28
U.S.C. § 1254(1).
STATEMENT OF THE CASE
In February of 1980, massive governmental press leaks
implicated Congressman John M. Murphy in the
ABSCAM investigation.* Beginning with the press leaks
and continuing through the trial and appeal of this case,
the government has focused on an October 20, 1979 video-
tape of a meeting attended by petitioner. Gov.Ex. 13B.
At the meeting a closed briefcase containing $50,000 was
passed to Howard Criden, a co-defendant and govern-
ment cultivated middleman.’
'The district court opinion is reprinted in the appendix to the
Petition for a Writ of Certiorari filed by co-defendant Frank Thomp-
son, Jr.
* The term ABSCAM refers to the undercover operation conducted
by the Department of Justice in which the institution of the Congress
of the United States was targeted for a proactive “sting” operation.
The background of the operation is described at length in United
States v. Myers, 692 F.2d 823 (2d Cir. 1982), App. A.
*Criden, an attorney, was severed pretrial and pursuant to an
agreement with the government has not been tried under this indict-
ment.
3
During the course of the videotaped meeting Congress-
man Murphy was not told that money was contained in
the briefcase and at no point in the meeting was it made
clear to him that money was being offered or passed to
Criden. The conduct of the meeting was controlled by the
government and staged in a manner contrary to the overt
discussion of and displays of bribe money to other
ABSCAM targets. See, United States v. Myers, 692 F.2d
at 844, App. 43a; United States v. Kelly, 539 F. Supp. 363
(D. D.C. 1982), appeal filed, No. 82-1660 (D.C. Cir. 1982).
Criden left the meeting in possession of the briefcase. No
evidence was introduced that Murphy later received any
portion of the $50,000.'
Two notes from the jury, delivered during the final
hours of lengthy deliberations, indicated its confusion
over the receipt element of the gratuity offense. Murphy
Court Exs. 32, 37; Murphy Tr. 3235, 3236, 3252; App.
83a.° The court had initially instructed the jury that the
receipt element of the gratuity charge would be satisfied
if it found that the money passed in the briefcase from
Amoroso to Criden was “for the benefit of and eventually
received by Murphy.” Murphy Tr. 3138, 3139, 3125. The
notes revealed that at least some members of the jury
were considering a theory of conviction based on a lay-
man’s notion of constructive receipt by Criden for Mur-
phy. Murphy Court Ex. 37; App. 83a.
‘As late as November 19, 1979, the government believed it had
insufficient evidence of a section 201 violation by Murphy, D.P. Ex.
39A, and later paid Criden $5,000 merely for delivering Murphy toa
second meeting. In the crucial videotape of that meeting made Janu-
ary 10, 1980, Murphy was flatly accused of receiving money on
October 20, and unequivocally denied having done so. Gov. Ex. 33B-
3.
> Citations to the transcript portions of the record are: Testimony
in the Murphy-Thompson trial, Murphy Tr. —_; Testimony in the
Due Process Hearing, D.P. Tr. —.
1
An extended colloquy regarding the proper response to
the jury’s note ensued and is reprinted in the Appendix as
App. C. Throughout the exchange, Murphy’s counsel
took the position that the jury’s constructive possession
theory was a substantial variance from the case as tried
and from the concessions made at the pre-charge confer-
ence by the prosecutor. A motion was made for a mistrial,
or in the alternative, to reopen, call Howard Criden under
a grant of immunity, and reargue the case if the court
gave any answer other than “no.” App. 87a, 91a.
Counsel argued that the eleventh hour introduction of
the constructive receipt theory did not permit Murphy to
adequately defend against the new theory unless he was
given an opportunity to reargue the point to the jury and
introduce new evidence. App. 87a, 91a. The court denied
both motions, App. 95a, and a request that the court
write out its supplemental charge before giving it. App.
92a. The court said he would “wing it,” App. 92a, and
ad-libbed an instruction that the jury could disregard the
earlier instruction on eventual receipt by Murphy of a
portion of the money and could construe the passing of the
briefcase to Criden as satisfying the receipt “for himself”
element of the offense.
Consolidated post-trial hearings were held with all
other defendants in ABSCAM cases previously tried by
the court to hear testimony relating to claims that the
government’s conduct of the investigation violated due
process of law. The court entered a memorandum and
order denying Congressman Murphy’s post-trial mo-
tions, and rejecting various claims of due process viola-
tions. United States v. Myers, supra, 527 F. Supp. 1206.
On appeal Murphy challenged the sufficiency of evi-
dence of receipt. The court of appeals found sufficient
evidence under the theory that Murphy had acted in an
5
extremely guarded manner during the October 20 meet-
ing because he was following “ground rules” which re-
quired that there be no mention or display of money, that
the money be passed directly to Criden and that only the
most oblique references to illegal conduct and acknowl-
edgements by the Congressman were to be made.
The court of appeals also rejected due process chal-
lenges based on the deliberate creation of ambiguous
evidence under a theory that the undercover agents had
been deliberately ambiguous in their attempt to follow
the supposed “ground rules.”
REASONS FOR GRANTING THE WRIT
I. THE SUPPLEMENTAL INSTRUCTION ON INTENT
AND RECEIPT MISSTATED THE LAW, WAS CON-
FUSING AND MISLEADING AND FAILED TO DISTIN-
GUISH BETWEEN ILLEGAL AND CONSTITUTION-
ALLY PROTECTED ACTIVITIES.
The court’s supplemental instruction on the receipt and
intent elements of the unlawful gratuity count’ raises
fundamental issues which justify consideration by this
Court. The supplemental instruction confused the diffi-
cult tripartite distinction between bribery, unlawful gra-
tuity and innocent—indeed constitutionally protected—
conduct. It did so by hopelessly obscuring the critical
intent and receipt elements of the offense.
While these issues have never been directly addressed
by this Court the opinion below is inconsistent with dis-
‘The gratuity statute, 18 U.S.C. § 201(g), punishes as a felony:
Whoever, being a public official, former public official, or
rson selected to be a public official, otherwise than as provided
y law for the proper discharge of official duty, directly or
indirectly asks, demands, exacts, solicits, seeks, accepts, re-
ceives, or agrees to receive anything of value for himself for or
because of any official act performed or to be performed by him.
6
cussion of the intent requirements of the gratuity statute
in United States v. Brewster, 408 U.S. 501, 527 (1972) and
in conflict with decisions of the United States Court of
Appeals for the District of Columbia Circuit, United
States v. Campbell, 684 F.2d 141 (D.C. Cir. 1982); United
States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974). The
unique facts presented by the ABSCAM investigative
techniques, the application of a constructive receipt theo-
ry to a gratuity prosecution and the first amendment
implications of such prosecutions involving elected offi-
cials raise important questions of federal law which
should be resolved by this Court.
Supplemental instructions present unique problems
because of their impact, coming late in a jury’s delibera-
tions, and must therefore be framed with clarity and
precision to avoid the probability of substantial prejudice.
See Bollenbach v. United States, 326 U.S. 607 (1946). In
analyzing the gratuity section the District of Columbia
Circuit has recognized the absence of clarity on the face of
the statute and the extreme difficulty of composing ade-
quate instructions under it. See United States v. Brews-
ter, 506 F.2d at 67, 78-79; United States v. Campbell, 684
F.2d at 155. The trial court’s ad-libbed supplemental
instruction on the critical issues of intent and receipt was
not framed with the necessary clarity and precision and,
in fact, misstated the law.
Framing such instructions is especially difficult when
issues of both bribery under § 201(c) and gratuity under
§ 201(g) are present. The instructions must then make
the distinction between bribery, gratuity, and innocent
conduct. The District of Columbia Circuit has suggested
that the court emphasize the intent element of the gratui-
ty statute in drawing these distinctions. L’nited States v.
Brewster, 506 F.2d at 72, 82. This Court has recognized
that the requisite intent is present if the elected official
7
received “money with knowledge that the donor was
paying him compensation for an official act.” United
States v. Brewster, 408 U.S. at 527. Cf. United States v.
Johnson, 419 F.2d 56, 60 (4th Cir. 1969), cert. denied, 397
U.S. 1010 (1970) (“Because the receipt of money may or
may not be condoned by the statute [predecessor of
293(a)], it is reasonable to assume that Congress intended
knowledge of the nature or purpose of the receipt to be a
necessary element of the crime.”)
The court’s initial charge, while not a model of clarity,
did define intent and endeavored to make the tripartite
distinction. Much of the problem was ameliorated by the
initial charge’s emphasis on eventual receipt of money by
Murphy. By requiring that the jury find that he eventual-
ly received a portion of the money transferred in the
closed briefcase to Howard Criden the court effectively
eliminated questions both of whether he had received the
money “for himself” and if he knew the reason why the
money was passed to Criden. If Murphy physically re-
ceived a portion of the payoff it was beyond dispute that
the money was at that point for his benefit and that he
knew it was intended for him.’
The eleventh hour supplemental instruction, by
eliminating the requirement of eventual receipt, and
approving the jury’s confused layman’s conception of con-
structive receipt, removed these protections. Once the
“eventually received” language was removed from the
instruction it was imperative that the critical elements of
receipt and intent be defined with precision for the jury.
7 Petitioner has consistently maintained that he never received any
of the money and has made no claim that it was a campaign contribu-
tion.
8
Rather than provide this necessary precision, the sup-
plemental instruction focused on Murphy’s knowledge on
October 20 that money was contained in the closed brief-
case and permitted the jury to convict without any finding
that he knew that the money was intended for his benefit
or passed to Criden for or because of an official act to be
performed by him.
The court’s supplemental instruction diluted the intent
requirement to an unacceptable level, confused the
requirement of receipt for himself, and permitted convic-
tion for lawful, constitutionally protected, behavior.
While § 201(c), bribery, provides that it is unlawful for
any public official to accept anything of value “for himself
or for any other person or entity” the gratuity section
requires more direct receipt “for himself.”* No guidance
was given to the jury for determining how a constructive
receipt theory could satisfy the “for himself” requirement
despite its confused reference to undefined terms of
“direction and control” and “executor.” App. 88a.
The court’s supplemental instruction also only required
a finding that Murphy knew that money was in the brief-
case when it was passed to Criden on October 20 to
provide the necessary criminal intent. This element of
intent was emphasized at several points during the in-
struction and was reiterated during a final re-instruction.
App. 98a, 100a, 10la. The jury was not told that it need
find that Murphy Anew that the money transferred to
* This critical distinction has been relied on by courts in finding that
§ 201(g) is a lesser included offense of § 201(c) and in saving the
statute from vagueness and overbreadth. See United States v.
Brewster, 506 F.2d at 76-78; United States v. Harary, 457 F.2d 471
(2d Cir. 1972). See also Note, Campaign Contributions and Federal
Bribery Law, 42 Harv. L. Rev. 451 (1978).
9
Criden was transferred for his (Murphy's) benefit. The
opinion below did not address this argument raised by
Murphy on appeal but merely found that the sup-
plemental instruction did not alter the requirement that
the money be received for the benefit of the defendant."
692 F.2d at 852, App. 63a.
The instruction, therefore, permitted a conviction of
Murphy if he merely knew that money was passed to
Criden even if he remained unaware that it was intended
for his (Murphy’s) benefit. The supplemental instruction
not only approved of the jury’s confused interpretation of
intent and receipt but encouraged it.
By permitting conviction without a finding that Mur-
phy knew that the money was transferred to Criden for
his benefit the jury was permitted to convict for lawful
and constitutionally protected activity. The right to peti-
tion was recognized as a fundamental right in the Declara-
tion of Independence and carried forward into the first
amendment to the Constitution. Basic to our form of
representative democracy is that elected representatives
will be open and available to all. The powerful and the
oppressed, the rich and the poor and those on the fringes
of society all have an equivalent right to express their
views to elected representatives. The first amendment
protection afforded to those who seek to persuade con-
gressional action to favor their private or personal ends
*The court of appeals apparently misunderstood the critical dis-
tinction between the receipt requirements of the gratuity statute and
the broader language of the bribery statute. In a confused footnote it
indicated some understanding of this concept but then stated:
Section 201(g), punishing rooupt t of an unlawful gratuity, is
limited to receipt by the public official ‘for himself,’ and ‘for any
other person or entity’ as provided in Section 201(c), punishin
bribery. 692 F.2d at 852, n.24. App. 68a, n Si lempnesie added},
10
was recognized in Liberty Lobby, Inc. v. Pearson, 390
F.2d 489, 491 (D.C. Cir. 1967). See also United States v.
Harriss, 347 U.S. 612, 635 (1954) (Jackson, J. dissenting).
In the October 20 meeting Howard Criden functioned
as an intermediary whose role was ‘to bring interested
individuals together with an elected representative. This
type of activity is not illegal and is closely akin to the
normal function of paid lobbyists who express the views
of third parties to elected representatives and arrange
introductions and meetings at which such views can be
expressed. Such activities do not violate 18 U.S.C.
§ 201(g) unless the payment to the lobbyist is for the
Congressman and the Congressman knows this to be the
case. If the requirement that the Congressman know that
the payment is for him is removed and there is no require-
ment that he later take physical possession of any portion
of the payment received by the intermediary, the statute
would sweep within its reach constitutionally protected
activity."
This case presents a factual matrix uniquely suited to resolving
fundamental issues concerning the gratuity statute. Congressman
Murphy represented a district lying at the heart of the Port of New
York, hence investment by foreign interests—particularly in
shipping—would naturally be of concern to him. On foreign policy
matters, Congressman Murphy was a firm advocate of United States
support for the former governments of Nicaragua and Iran, and the
present government of South Korea. See Exhibits B & C to defendant
Murphy's Motion to Dismiss the Indictment for Violation of the
‘Speech or Debate’ Clause of the Constitution. The FBI agents ex-
ploited these political views by likening the plight of their fictitious
sheik to President Somoza and the Shah, saying that the sheik might
well need to flee his country. At no time during the October 20, 1979
meeting did Congressman Murphy agree to sponsor any legislation
or do any other act to assist the sheik. He merely sympathized with
ll
These concerns are similar to the concerns expressed in
United States v. Brewster, 506 F.2d at 79, relating to the
possible reach of the gratuity statute to legitimate cam-
paign contributions. See Note, Campaign Contributions
and Federal Bribery Law, 42 Harv. L. Rev. 451 (1978).
The supplemental instruction was confusing and mis-
leading. Coming as it did late in the jury’s deliberation
and containing its repeated emphasis of Murphy’s knowl-
edge of what was in the briefcase to the exclusion of any
other element of intent it constituted error." In addition,
their plight, and suggested that the existing immigration law might
permit entry; he suggested the representatives get Mr. Criden to
look into the matter. Thus, Murphy’s attendance at the meeting was
consistent with his constitutionally-prescribed duties; by contrast,
the FBI agents sought to use his known political views as a fulerum to
propel him into the appearance of criminality.
'' The deficiencies in the charge constitute plain error within the
meaning of F.R.Crim.P. 52. The legislative history of the reenact-
ment of the bribery and gratuity statutes indicates that a significant
difference between the offense of bribery, 201(c) and gratuity,
201(g), is that the former may be punished if a government official
receives anything of value for himself or any other person or entity
while the gratuity statute is limited to receipt for himself. The receipt
for himself requirement was referred to in the legislative history as
direct receipt. Bribery, Graft, and Conflicts of Interest, H. Rep. No.
748, 89th Cong. Ist Sess. pp. 18-19 (1961), The offense of unlawful
gratuity has been interpreted as a statute forbidding tipping of
government officials. United States v. Irwin, 354 F.2d 192 (2d Cir.
1965), cert. denied, 383 U.S. 967 (1966), In United States v. Harary,
457 F.2d 471, 476, n.11 (2d Cir, 1972), the court expressed its opinion
that the gratuity offense was designed primarily to apply to situa-
tions where payment is made after official action is taken and a
corrupt bargain is absent or unprovable. Notions of constructive
receipt, unless brought under a clearly defined conduit theory, ef.
United States v. Brewster, 506 F.2d at 81, are therefore at odds with
the intent of the statute and their eleventh hour introduction, as in
this trial, must be viewed as plain error.
12
the theory of constructive receipt was at variance with
the indictment and bill of particulars, see Stirone v.
United States, 361 U.S. 212 (1960), contrary to the
government’s theory and therefore to the defense chal-
lenge of the government’s case, and in contradiction of the
statutory requirements of 18 U.S.C. § 201(g).
The Issue Was Preserved For Review.
The court of appeals found that Murphy had failed to
show any prejudice arising from error in the sup-
plemental instruction. 692 F.2d at 853; App. 64a. It also
found that the failure to request clarification of the ele-
ments of constructive receipt waived any objections to
the absence of standards governing that concept. 692
F.2d at 853; App. 64-65a. The prejudice from a sup-
plemental instruction that misstates the law and permits
conviction for a lawful activity is obvious. Lengthy objec-
tions were made by counsel.
The colloquy regarding the supplemental instruction
covers thirty-two pages of transcript in which it is made
quite clear to the court defense counsel's belief that a
constructive receipt charge was inconsistent with the
case as tried." See App. C. In addition, petitioner Murphy
moved for a mistrial and for leave to reopen and call
Howard Criden as an immunized witness. App. 87a, 91a.
These motions were made in the context of an objection to
the supplemental instruction based on defense counsel's
2 Objections made in the heat of trial to supplemental instructions
cannot be expected to be made with the same precision as they might
be months later in an appellate court. See United States v. Ronder,
639 F.2d 931, 935 (2d Cir. 1981); United States v. Gallishaw, 428 F.2d
760 (2d Cir. 1970). The record, however, indicates that sufficient
objection was made.
13
view that the court should not permit consideration of any
constructive receipt theory. Once a constructive receipt
theory was introduced the only remedy available was to
reopen and reargue this new issue to the jury.
Il. PETITIONER'S FIRST AMENDMENT RIGHTS WERE
VIOLATED BY THE INFERENCE OF GUILT FROM
THE EXERCISE OF CONSTITUTIONALLY PRO-
TECTED RIGHTS.
The investigation and prosecution of Congressman
Murphy impermissibly infringed upon the first amend-
ment protected rights of communication with and by
elected representatives to a degree and in a fashion
completely unjustified by any legitimate government
purpose of detecting and punishing wrongdoing by public
officials."
The peculiar facts of this case provide this Court with
an opportunity to resolve the difficult constitutional prob-
lems which a prosecutor, a trial judge, and most
importantly, an elected public official, face in ascertaining
the line between unlawful conduct and protected activity.
In the prior section of this Petition we have shown how an
elected official, such as petitioner, meeting with in-
dividuals interested in his district and areas of his past
legislative concern," and aware that an intermediary is
paid to facilitate or arrange the meeting, cannot be guilty
'S A claim that legislation is designed to curb official corruption is
not a universal solvent of first amendment concerns. See Buckley v.
Valeo, 424 U.S. 1 (1976).
' In pretrial filings Murphy introduced extensive proof of his past
legislative involvement in issues raised by the agents during the
October 20 meeting including his efforts to aid heads of states and
foreign political leaders with asylum probleins. See n.10, supra.
l4
of a 201(g) offense without some clear indication of his
intent to commit an unlawful act.
In a case such as this where speech and symbolic con-
duct are relied on as evidence of guilt, and the very speech
and conduct at issue is in a constitutionally protected
area, it is even more important that a clear line be drawn
between criminality and protected activity. The gratuity
statute on its face, and as applied in this case, failed to
provide this guidance. Under the bribery (18 U.S.C.
§ 201(c)) count, of which petitioner was acquitted, the
requirement that the receipt be with a corrupt intent
draws a bright line between illegality and constitutionally
protected activity.
In order to secure the gratuity statute from unconstitu-
tional application the intent element must be clearly de-
fined and the prosecution must steer wide of the pro-
tected activity. In the framing and prosecution of the
conspiracy and gratuity charge in this case the govern-
ment charted a course into the heart of the protected
rights.
Lacking clear evidence of guilt, the prosecution's case
proceeded on the theory that Murphy's guilt could be
inferred from constitutionally protected activity. His
meeting with persons seeking his advice and assistance as
an elected representative, Murphy Tr. 2885, 3024, and
the very existence of meetings or phone contacts with
members of Congress, with no indication of what was
discussed, Murphy Tr. 2569, 2854, 3026, were relied on by
the prosecution as evidence of guilt. The prosecutor in his
summation repeatedly asked the jury to draw inferences
of guilt from constitutionally protected activity. See, e.g.,
Murphy Tr. 2806, 2854, 2885, 2024, 3027-28.
15
The defense tendered an instruction that would have
required the jury to distinguish between these protected
activities and guilt which was denied. (Portion of Mur-
phy’s requested instruction 8 reprinted as App. D, App.
102a). The Court of Appeals, in affirming the conviction,
relied on inferences of guilt arising from uncertain, am-
biguous speech and the exercise of constitutional rights.
692 F.2d at 844-45, 858-59; App. 44a-47a, 76a-77a. While
such inferences are inappropriate in any conspiracy case,
cf., United States v. Bufalino, 285 F.2d 408 (2d Cir. 1960)
(conspiratorial conversations may not be inferred from
the mere fact that parties met), they are particularly
inappropriate here.
The government’s theory was at odds with the well-es-
tablished principle that where first amendment protected
activity is intertwined with allegations of criminality, a
defendant’s specific intent may be inferred only from his
own words and conduct and not merely from association
with others. See NAACP v. Clairborne Hardware Co.,
—_—. _ U.S. ——, 73 L.Ed. 1215, 102 S.Ct. 3409 (1982);
Noto v. United States, 367 U.S. 290 (1961); Yates v.
United States, 354 U.S. 298 (1957); United States v.
Spock, 416 F.2d 165 (1st Cir. 1969). The enormity of the
court of appeals’ error goes beyond the standards it ap-
plied and can only be appreciated in the context of the
facts of this case. In view of the important constitutional
issues and the failure to draw for the jury any clear
differentiations between constitutionally protected activ-
ity and criminality, we urge that this Court take the
unusual step of reviewing the sufficiency of the evidence.
In the past this Court has recognized its obligation to
review the entire record in a case where issues are pres-
ent requiring differentiation between constitutionally
protected speech and illegal conduct. See NAACP v.
Clairborne Hardware Co., _— U.S. ——, 73 L.Ed.2d.
16
1215, 1238, n.50, 102 S.Ct. 3409, 3427, n.50 and cases
cited."
The expression and communication of views by a legis-
lator is at the core of the first amendment. Bond v. Floyd,
385 U.S. 116, 136-137 (1966). The duties of a Con-
gressman require contact and exchange of information
with members of the public who oftimes are advocating
special interest. The process of meeting with an elected
representative in order to persuade him or her to take
official action that may serve a special interest is constitu-
tionally protected. United States v. Harriss, 347 U.S.
612, 635 (1954) (Jackson, J. dissenting). As Chief Justice
(then Judge) Burger has written:
While the term “lobbyist” has become encrusted
with invidious connotations, every person or group
engaged ... in trying to persuade Congressional
action is exercising the First Amendment right of
petition.
Liberty Lobby, Inc. v. Pearson, 390 F.2d 489, 491 (D.C.
Cir. 1967).
A necessary corollary to the right of petition must be
the right of the Congressman to freely meet with those
seeking his favor. This Court has recognized that those
seeking personal advantage from a legislator are an im-
In its serutiny of the sufficiency of the evidence, the court of
appeals relied on impermissible inferences from constitutionally pro-
tected activity. While we will not dwell at length in this Petition on
the sufficiency of the evidence and urge the Court to grant this writ
and review the record in its entirety we will comment briefly on
unfounded inferences relied on by the court of appeals. We urge the
Court to review at a minimum the videotape of the critical October
20, 1979 and January 10, 1980 meetings. Gov. Exs. 13B, 33B-3. Peti-
tioner has initiated efforts to certify portions of the record to this
Court to permit such review.
17
portant source of information critical to the functioning of
a representative democracy. Eastern R.R. Presidents
Conference v. Noerr Motor Freight, 365 U.S. 127, 137-40
(1961).
To establish intent and receipt the prosecutor focused
on the apparently innocent conduct of petitioner and cast
him as a sophisticated bribe taker who acted accordingly.
Murphy Tr. 3027-28, 3034-37. His status as a senior Con-
gressman and his routine contacts with his fellow legisla-
tors were pointed to as reasons why he did not, like other
ABSCAM defendants, readily acknowledge the payment
of a bribe. His willingness to leave his district con-
gressional office, travel with a Philadelphia lawyer in-
troduced to him by a congressional colleague and attend a
meeting with wealthy individuals who wished to invest in
his district and call upon his experience in dealing with
foreign political figures expelled from their homelands
were cited as evidence of criminality.
In the view of the court of appeals Murphy’s apparently
innocent conduct was part of a well-orchestrated con-
spiracy of silence. It relied first on the fact that Murphy
had made few if any incriminating statements and had
given only the most casual acknowledgements to oblique
references to money. It then combined this with the
similarity of a comment made by Thompson at the time
that a closed briefcase was passed to Howard Criden in
his presence to a somewhat similar comment made by
Congressman Murphy. This slender evidence of guilt was
elevated to the level of sufficiency by the court of appeals
based on its finding that Criden and Thompson had met
with Murphy and briefed him to act in just this fashion.
The evidence that such a briefing occurred was twofold.
First, the court relied on the fact that Thompson had met
18
with Murphy prior to the October 20 meeting. It cited no
basis for finding that illegal conduct was discussed."
Second, the court of appeals relied on an October 17, 1979
tape recording in which Howard Criden stated that he
planned to meet with Murphy and go over the ground
rules and that he assumed that Thompson had spoken to
Murphy."
In the context of the first amendment protection
afforded to Congressman Murphy’s meeting with in-
dividuals assumed to be interested in constitutionally
protected access to him as a legislator, such evidence
cannot be found sufficient to convict. The mere statement
of a future intent to meet and discuss ground rules is too
slender a reed to overcome the constitutionally protected
nature of the meeting.
Il. THE DELIBERATE IMPAIRMENT OF ACCURATE
FACT-FINDING IN ABSCAM VIOLATED PETITION-
ER’S DUE PROCESS RIGHTS.
We have already shown how the prosecutor, trial judge
and court of appeals applied a constitutionally-
impermissible standard to Congressman Murphy’s con-
duct.
Our third question puts in issue the government’s de-
liberate creation of ambiguous, unreliable and misleading
evidence which was later the basis of these impermissible
inferences. This conduct violated fundamental due proc-
ess values designed to protect the integrity of the truth-
seeking process.
‘The meeting was scheduled in Murphy’s congressional appoint-
ment calendar and conducted in his congressional office.
'" See discussion of this tape at p. 22, infra.
19
Where government agents control the production of
evidence, which they intend to later introduce at a crimi-
nal trial, their obligation to the integrity of the truth-
seeking process of the court requires that they attempt to
minimize ambiguities in the critical events that they will
later argue form the basis of criminal liability. Where
such ambiguities are deliberately or recklessly in-
troduced the government creates risk of erroneous fact
finding. Such action constitutes a deprivation of due proc-
ess rights requiring dismissal where it impairs the basic
reliability of the fact-finding process.
This Court has defined the essence of due process
rights as the “integrity of the fact-finding process,” Ohio
v. Roberts, 448 U.S. 56, 64 (1980), quoting Berger v.
California, 393 U.S. 314, 315 (1969); the “accuracy of the
truth-determining process,” Dutton v. Evans, 400 U.S.
74, 89 (1970); and the “truth-seeking function of the trial
process,” United States v. Agurs, 427 U.S. 97, 104 (1976).
See also Schneckloth v. Bustamonte, 412 U.S, 218, 238-39
(1973).
The integrity of the fact-finding process in criminal
proceedings is protected by establishing various limits on
prosecutorial practices. See Giglio v. United States, 405
U.S. 150 (1972); United States v. Marion, 404 U.S. 307
(1971); Brady v. Maryland, 373 U.S. 83 (1963),
The due process limits on the actions of prosecutors are
well defined in relation to the introduction of tainted
evidence. A prosecutor may not knowingly use such evi-
dence at trial, Mooney v. Holohan, 294 U.S. 103 (1935),
or knowingly allow false testimony to go uncorrected,
Napue v. Illinois, 360 U.S. 264 (1959). It is likewise a
violation of due process to present evidence, which, while
not affirmatively false, is misleading and calculated to
interfere with the truth-seeking function at trial. Alcorta
v. Texas, 355 U.S. 28 (1957).
20
Similarly, due process limitations have been placed on
the quality of evidence a prosecutor may present against
a defendant. This Court has recognized constitutional
limits on the admission of eyewitness identification evi-
dence where the police or prosecutor may have arranged
impermissibly suggestive identification procedures.
Manson v. Brathwaite, 482 U.S. 98 (1977); Foster v.
California, 394 U.S. 440 (1969); Stovall v. Denno, 388
U.S. 293 (1967).
Given the simple purpose of the October 20 meeting—
to offer a cash bribe in return for legislative favors—and
the agents’ complete control over the events, the ambi-
guities introduced by the agents establish either a preme-
ditated and deliberate effort to produce misleading evi-
dence of guilt or a reckless disregard for the truth-
seeking process:
— Themoney was not shown to Congressman Mur-
phy, no sum of money was mentioned, no refer-
ence was made to the contents of the briefcase.
— Murphy did not handle the briefcase or leave
with it, and when it became obvious that Criden
would leave with it, no effort was made to alert
ig 20d to either the presence of the money in
the briefcase or question him about Criden’s
authority to accept it for him.
— No effort was made to determine what, if any-
thing, Murphy was told in advance of the meet-
ing by Howard Criden or Congressman
Thompson.
— Any discussion that tended to indicate innocence
or a lack of knowledge of the — purpose of
the meeting was steered away from by ques-
tions designed to move the conversation to other
areas.
Each critical element of the transaction was clouded in
ambiguities by the on-camera agents. The government
21
agents camouflaged the illegal purpose of the meeting
with references to investments in Murphy’s district and
immigration problems which closely paralleled the politi-
cal asylum work done by Murphy in the past.
This ambiguous evidence was then introduced by the
prosecutor. In summation the very ambiguities created
by the agents were cited as compelling evidence of Mur-
phy’s guilt. Such disregard for the integrity of the truth-
seeking process requires full review by this Court.
The court below recognized that due process limits of
fundamental fairness placed some limits on the deliberate
creation of ambiguous evidence but found that the limits
were not exceeded in this case. If found that while the
Murphy transaction was more ambiguous than any other
ABSCAM transaction it had reviewed, the ambiguities
arose out of the government’s efforts to follow the defend-
ant’s “ground rules.” United States v. Myers, 692 F.2d at
844; App. 48a-45a.
This finding is belied by the record. At the due process
hearing, both FBI supervisory agent John Good, who was
the highest ranking official on the site during the Murphy
October 20 meeting, and FBI field Agent Anthony Amor-
oso, who was the principal undercover agent with sole
responsibility for conducting the on-camera activities,
testified that they did not deal with Congressman Mur-
phy any differently than any other target. They testified
that no special arrangements or decision about how to
pass money or conduct the conversation with Murphy
took place in advance of the meeting. The conduct of the
meeting was instead left to Agent Amoroso to control as
he saw fit during its progress. D.P. Tr. 2728-2735, 2762-
2766, 3922-3924. There is no support for the court of
appeals’ finding that these agents were deliberately
ambiguous because of an effort to follow “ground rules.”
22
The record provides a similar lack of support for any
indication that Murphy knew the supposed “ground
rules” or had agreed to abide by them. In the October 17
phone conversation relied on by the court of appeals
Criden merely indicates that he is planning to meet with
Murphy, and his asswmption that Thompson must have
spoken with Murphy." In the court of appeals’ citation to
the conversation a critical line was deleted. Criden states
“T’ve got to you know, give them the bullshit,” describing
what he intends to do when he meets with Murphy. Gov.
Trial Ex. 12/12A, p. 4.
We urge this Court to view the v? .cutape of the Octo-
ber 20 meeting with Congressman Murphy. It not only
demonstrates the absence of sufficient evidence of the
receipt “for himself” element of the gratuity charges but
also demonstrates the high degree of ambiguity in-
troduced by the agents.
'* This tape was not reviewed by the agents prior to the October 20
meeting and could not have served as the basis for any understanding
that Murphy expected them to follow the ground rules. D.P. Tr.
2780, 3210, 3905.
23
CONCLUSION
For all of the above reasons, it is respectfully prayed
that the writ of certiorari be granted.
Respectfully submitted,
MICHAEL E. TIGAR
(Counsel of Record)
SAMUEL J. BUFFONE
JOHN J. PRIVITERA
TIGAR & BUFFONE, P.C.,
1302 18th Street, N.W.
Washington, D.C. 20036
(202) 785-8900
Counsel for Petitioner
Dated: January 17, 1983
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
~
Nos. 904, 905, 906, 907, 840, 841, 855
—August Term, 198)
(Argued April 5, 1982 Decided September 3, 1982)
Docket Nos. 81-1342, 1343, 1344, 1446, 1345, 1346, 1347
—-
UNITED STATES OF AMERICA,
Appellee,
_—Vo
MICHAEL O. MYERS, ANGELO J. ERRICHETTI,
Louis JOHANSON, and HowarD L. CRIDEN,
Defendants-Appellants.
—a-
UNITED STATES OF AMERICA,
Appellee,
_V—
FRANK THOMPSON, JR. and JOHN M. MURPHY,
Defendants-Appellants.
2a
UNITED STATES OF AMERICA,
Appellee,
—_—\—
Ray\iOnD F. LEDERER,
Defendani-Appellant.
Before:
LUMBARD, FRIENDLY and NEWMAN,
Circuit Judges.
om
Appeals from judgments of conviction entered in the
District Court for the Eastern District of New York
(George C. Pratt, Judge), after three separate jury trials
in which four United States Congressmen and three other
defendants were found guilty of violations of 18 U.S.C.
§§ 201(c), 201(g), 203(a), and 371, arising out of the
Abscam investigation. Judgments affirmed on all counts
as to al] appellants, except Count Three (section 203(a))
of the indictment against John M. Murphy, which is
reversed and remanded for a new trial.
1
NEIL JOKELSON, Philadelphia, Pa. (Rochelle
Newman, Jokelson and Rosen, Phila-
delphia, Pa., on the brief), for defen-
dant-appellant Myers.
3a
RayMOND A. Brown, Newark, N.Y. (Henry F.
Furst, Newark, N.Y., on the brief), for
defendant-appellant Errichetti.
JOHN J. Durry, Philadelphia, Pa. (Steven H.
Gifis, Alan Dexter Bowman, Princeton,
N.J., on the joint brief for Myers, Erri-
chetti, and Johanson), for defendant-ap-
pellant Johanson.
RICHARD BEN-VENISTE, Washington, D.C.
(Ben-Veniste & Shernoff, Washington,
D.C., on the brief), for defendant-appel-
lant Criden.
TIMOTHY SAVAGE, Philadelphia, Pa., for de-
JSendant-appellant Lederer.
DANIEL H. POLLITT, Chapel Hill, N.C., and
Frank Askin, Newark, N.Y. (Neal
Rutledge, Washington, D.C., on the
brief), for defendant-appellant Thomp-
son,
MICHAEL E. TiIGAR, Washington, D.C. (Sam-
uel J. Buffone, Linda Huber, Tigar, Buf-
fone & Doyle, Washington, D.C., on the
brief), for defendant-appellant Murphy.
EDwWaRD KORMAN, U.S. Atty., and Lawrence
Sharf, Sp. Atty., Brooklyn, N.Y.
(Thomas P. Puccio, Atty-in-Charge, Or-
ganized Crime Strike Force, Edward A.
McDonald, Sp. Atty., Gregory J. Wal-
lance and Vivian Shevitz, Asst. U.S. At-
tys., Brooklyn, N.Y., on the briefs), for
appellee.
m~
da
NEWMAN, Circuit Judge:
In United Siaies v. Mvers, 638 F.2d 932 (2d Cir.), cert.
denied, 449 U.S. 986 (1980) (Mvers J), we ruled that the
Government had not violated the defendant's constitu-
tional rights as a Niember of Congress by requiring him to
stand trial on charges of bribery arising out of an under-
cover “sting” operation now well known to the nation as
Abscam. See also United States v. Murphy, 642 F.2d 699
(2d Cir. 1980). The Myers ruling, made in advance of
trial, was based on the face of the indictment that had
been returned. Now before us are appeals from judg-
ments of conviction entered in the Eastern District of
New York (George C. Pratt, Judge), after three separate
jury trials in which four Congressmen and three co-defen-
dants were found guilty of various offenses related to
corruption of public office arising out of the Abscam
investigation. Nos. 81-1342, 81-1343, 81-1344, and 81-
1446 are appeals from convictions in the joint trial of
appellants Michael O. Myers, formerly Congressman
from the First District of Pennsylvania; Angelo J. Erri-
chetti, formerly Mayor of Camden, New Jersey; Louis
Johanson, formerly a member of the City Council in
Philadelphia, Pennsylvania; and Howard L. Criden, a
law partner of Johanson’s. No. 81-1347 is an appeal! from
the conviction of appellant Raymond F. Lederer, formerly
Congressman from the Third District of Pennsylvania, at
a separate trial. Nos. 81-1345 and 81-1346 are appeals
from the convictions of Frank Thompson, Jr., formerly
Congressman from the Fourth District of New Jersey, and
John M. Murphy, formerly Congressman from the Seven-
teenth District of New York, at a joint trial. Though some
of the three trials present distinct issues, all seven appel-
lants raise questions of such similarity that we have found
it appropriate to consider all of the claims in one opinion.
va
For the reasons that follow, we have concluded thai all of
the judgments should be affirmed on all counts, with the
exception of Count Three of the indictment against
Murphy, as to which we reverse and remand for a new
trial.
I,
Myers, Errichetti, Johanson, and Criden were charged
in a three-count indictment. Count One alleged a con-
spiracy in violation of 18 U.S.C. § 371 (1976) to defraud
the United States and to violate 18 U.S.C. § 201, punish-
ing bribery and the receipt of bribes by public officials
including Members of Congress. This count alleged that
the conspiracy sought to defraud the United States of the
Government’s right (a) to the honest service of Congress-
man Myers “in relation to matters before the House of
Representatives performed free from corruption”; (b) to
have the “official action” of Congressman Myers “in
attempting to influence decisions of departments and
agencies of the United States in relation of matters of
immigration and residence performed free from corrup-
tion”; (c) to have the immigration laws “administered
honestly and impartially, free from improper and undue
pressure and influence”; and (d) to have officials enforc-
ing the immigration laws “perform their official duties
free from impairment and obstruction by the exercise
upon them of corrupt. . . pressure and iniluence.” The
conspiracy to violate section 20) was alleged to consist of
the defendants’ agreeing to demand and receive money
for Congressman Myers in return for the Congressman’s
“being influenced in his performance of official acts.”
Count Two alleged bribery in violation of 18 U.S.C.
§ 201(c) and § 2. This count alleged that Congressman
6a
Myers, aided and abetted by the other co-defendants,
agreed to receive and received money “in return for” his
“being influenced in his performance of official acts as a
member of Congress. to wit, his decisions and actions ina
maiter involving immigration. residency and citizenship
of foreign nationals which might at any time be pending
or which might by law be brought before the House of
Representatives and departments” of the Government.
Count Three alleged that all four defendants traveled in
interstate commerce to carry on the unlawful activity of
bribery, in violation of 18 U.S.C. § 1952 and § 2.
The charges stemmed from an elaborate undercover
“sting” operation conducted by the Federal Bureau of
Investigation. Three FBI] agents and a private citizen, all
acting in an undercover capacity, purported to be repre-
sentatives of two Middle Eastern sheiks operating a ficti-
tious entity known as Abdul Enterprises, Ltd. The under-
cover operatives let it be known that their principals were
interested in investing money in the United States and
immigrating to this country. The core allegation against
Myers and his co-defendants was that on August 22,
1979, Myers received $50,000 in return for his promise to
introduce private immigration bills permitting the sheiks
to remain in the United States and to take other necessary
action including intervention with the State Department.
A jury trial was begun on August 11, 1980, and con-
cluded on August 29, 1980. The jury convicted all four
defendants on all three counts. Errichetti and Criden were
each sentenced to concurrent terms of six years’ imprison-
ment and fines totalling $40,000. Myers and Johanson
were each sentenced to concurrent terms of three years’
imprisonment and fines totalling $20,000.
In a separate indictment, Lederer was charged, along
with Errichetti, Johanson, and Criden, in a four-count
fa
indictment. Three of the counts paralleled the conspiracy,
bribery, and interstate travel counts of the Mvers’ indict-
ment. In addition. a fourth count alleged receipt of an
unlawful gratuity by Lederer, in violation of 18 U.S.C.
$ 20l(g). This count alleged that Lederer, aided and
abetted by his co-defendants, agreed to receive and re-
ceived money “for and because of” the performance of
his official duties in a matter involving immigration of
foreign nationals. The core allegation in this indictment
was that on September 11, 1979, Lederer received $50,000
in return for his promise to help the sheiks with their
immigration problems. Lederer’s co-defendants were
severed from his case after their convictions in the Myers
case. Lederer’s trial began January 5, 1981, and con-
cluded January 9, !981. The jury convicted Lederer on all
four counts. He was sentenced to concurrent terms of
three years’ imprisonment and fines totalling $20,000.
In a third indictment, Thompson and Murphy were
charged, along with Criden and Joseph Silvestri, a New
Jersey businessman, in a five-count indictment. Counts
One, Two, and Four paralleled the conspiracy, bribery,
and interstate travel counts of the Myers’ indictment.
Coumt Three charged a so-called conflict of interest, in
violation of 18 U.S.C. § 203(a). This count alleged that
Thompson and Murphy, aided and abetted by Criden,
agreed to. receive and received money “as compensation
for services to be rendered before departments, agencies
and officers of the executive branch of the Government”
in a matter involving immigration of foreign nationals.
Count Five, paralleling a count of the Lederer indict-
ment, charged receipt of an unlawful gratuity, in violation
of 18 U.S.C. § 201(g). The core allegation in this indict-
ment was that on October 20, 1979, Murphy received
$50,000, subsequently shared with Thompson, in return
Sa
for their promises to help the sheiks with their immigra-
tion problems. The charges against Criden and Silvestri
were severed by agreement from the charges against
Thompson and Murphy. Triai (the second in the sequence
of three) began on November 10. 1980, and concluded on
December 3, 1980. Before the case went to the jury, Judge
Pratt dismissed Count Four charging unlawful interstate
travel. The jury found Thompson guilty on Counts One,
Two, and Five charging conspiracy, bribery, and receipt of
an unlawful gratuity; he was found not guilty on Count
Three charging conflict of interest. Murphy was found —
guilty on Counts One, Three, and Five charging ‘con-
spiracy, conflict of interest, and receipt of an unlawful
gratuity; he was found not guilty on Count Two charging
bribery. Thompson was tentatively sentenced to the max-
imum allowable terms, pursuant to 18 U.S.C. § 4205(c),
pending further consideration of his medical condition. '
Murphy was sentenced to concurrent terms of three years’
imprisonment and fines totalling $20,000.
In the interim between the conclusion of the three trials
and the sentencing of all appellants, Judge Pratt con-
ducted a consolidated hearing to consider various claims
by all seven appellants that the Government’s conduct in
the Abscam investigation and in the prosecution of the
charges at trial violated rights protected by the Due
Process Clause of the Fifth Amendment. In considering
ihese allegations, Judge Pratt took testimony during a
16-day “due process” hearing conducted in January and
February, 1981. Judge Pratt also permitted the seven
appellants to rely upon evidence pertinent to their due
! Imposition of a tentative sentence pursuant to 18 U.S.C. § 4208(c)
(1976) does not alter the finality of the judgment of conviction for
purposes of our appellate jurisdiction. Corey v. United States, 375
U.S. 169, 174-76 (1963) (construing predecessor statute).
Ya
process claims that had been presented in other proceed-
ings stemming from the Abscam investigation. These
included the record of the trial and the “due process”
hearing concerning charges against former United States
Senator Harrison A. Williams, Jr., of New Jersey, in the
Eastern District of New York, and the trial and “due
process hearing records of charges against former Phila-
delphia Councilmen Harry P. Jannotti and George X.
Schwartz in the Eastern District of Pennsy!vania (John P.
Fullam, Judge),° against former Congressman John W.
Jenrette and a co-defendant in the District of Columbia
(John G. Penn, Judge), and against former Congressman
Richard Kelly and two co-defendants in the District of
Columbia (William B. Bryant, Judge).’ Based upon this
comprehensive record, Judge Pratt, in a detailed and
thoughtful opinion, denied the due process contentions of
the seven appellants as well as their multitude of other
claims attacking the validity of their convictions. United
States v. Myers, 527 F. Supp. 1206 (E.D.N.Y. 1981).
II.
The background of the Abscam operation is described
by Judge Pratt as follows:
2 Judge Fullam set aside the jury verdicts that had been returned
against Jannotti and Schwartz, United States v. Jannotti, 501 F. Supp.
1182 (E.D. Pa. 1980), but on appeal the Third Circuit reinstated the
verdicts, United States v. Jannorti, 673 F.2d $78 (2d Cir. 1982) (en
banc), cert. denied, §0 U.S.L.W. 2903 (U.S. June 7, 1982).
3 Judge Bryant set aside the jury verdicts that had been returned
against Kelly and his co-defendants and ordered a new trial for the
co-defendants. L’nited States v. Kelly, $39 F. Supp. 363 (D.D.C. 1982),
appeal docketed, No. §2-1660 (D.C. Cir. June 15, 1982).
10a
“Abscam” is the code word given by the Federal
Bureau of Investigation to an undercover “sting”
Operation conducted out of the FBI office at Haup-
pauge, Long Island, New York, under the supervi-
sion of agent John Good. Abscam began after
Melvin Weinberg in 1977 was convicted in the West-
ern District of Pennsylvania on his plea of guilty to
fraud. In return for a sentence of probation Wein-
berg agreed to cooperate with the FBI in setting up
an undercover operation similar to the London In-
vestors, Lid. “business” that Weinberg had used with
remarkable success before his arrest and conviction
in Pittsburgh.
For most of his life Weinberg had been a “con
man” operating in the gray area between legitimate
enterprise and crude criminality. For a number of
years in the 1960s and early 1970s, he had been listed
_ as an informant by the FBI and had provided his
contact agent from time to time with intelligence
about various known and suspected criminals and
criminal activities in the New York metropolitan area
and elsewhere, for which he had received in return
occasional small payments of money. When he was
arrested on the charge that led to his guilty plea, his
informant status was cancelled, later to be reinstated
after his guilty plea and agreement to cooperate with
the FBI.
As agent-in-charge of the FBI’s Long Island office
Good was, at all times, the supervising agent for
Abscam. Initially, Weinberg worked directly under
special agent John McCarthy who later was replaced
‘by special agent Anthony Amoroso. Both McCarthy
and Amoroso worked undercover with Weinberg.
lla
The genera] pattern of the “scam” or “sting”
operation reflected Weinberg’s earlier theme of rep-
resenting wealthy Arab interests who had large sums
of cash available for business opportunities in this
country. When operating outside the law in Hunt-
ington, Long Island as London Investors, Weinberg’s
method had been a “front-end scam” for real estate
investment wherein he would promise to obtain large
loans for his victims and pick-up “appraisal” or
“processing” fees of several thousand dollars, but
without ever producing the final loans.
Although not identical to London Investors, the
initial plan developed by Weinberg and the FBI was
similar. Weinberg was to present himself as a business
agent for “Abdul Enterprises”, an organization
backed by two extremely wealthy Arab sheiks look-
ing for American outlets for their cash. He would
pass the word of big money available for deals to
other con men and people who move between the
legitimate and illegitimate. If criminal proposals ap-
peared, appropriate action would be taken by the
FBI.
Weinberg and the agents set up business in an
office in Holbrook, Long Island. The FBI’s code
name “Abscam” came from the first two letters of
“Abdul”, combined with the word “scam”.
At first Abscam’s focus was upon stolen and
forged securities and stolen art work. Other “invest-
ment” opportunities soon presented themselves, and
quickly the investigation turned itself toward Atlan-
tic City and the gambling casinos which were then
being proposed and constructed. As word spread
about Weinberg’s contact with virtually inexhaustible
Arab funds, Angelo Errichetti, who was both mayor
l2a
of Camden, New Jersey, and a New Jersey state
senator, came on the scene. Errichetti claimed to
have extraordinary influence in obtaining gambling
casino licenses, power over the commissioners who
issued the licenses, connections with organized crime,
ability to deal in narcotics, guns and counterfeit
securities, as well as intimate knowledge of which
members of the New Jersey legislature could be
bought.
Errichetti brought to the undercover agents How-
ard Criden, a Philadelphia lawyer seeking to pro-
mote a gambling casino in Atlantic City. In July of
1979, Errichetti and Criden met with Weinberg and
Amoroso on the sheiks’ yacht in Florida to discuss
financing for the proposed casino that a client of
Criden’s wanted to build. In the course of the dav
Amoroso and Errichetti discussed the problem that
might be faced by the sheiks should a revolution
occur in their country and should they want to come
to the United States as permanent residents.
Amoroso told Errichetti that he thought cooperation
of public officials would be needed and that money
would be no problem.
Immediately after this conversation Errichetti and
Criden formed an alliance in which they undertook
to produce for Amoroso and Weinberg public offi-
cials who, in return for money, were willing to use
their influence with the government on the sheiks’
behalf. Meetings were arranged at various locations
in New York, Philadelphia and Washington where
the FBI monitored the proceedings with concealed
videotape cameras the microphones. Where video-
tape was not feasible, audio recordings were used.
$27 F. Supp. at 1209-10.
l3a
Once the focus of Abscam shifted to the “asylum
scenario,”* as the parties at the trials characterized the
plan to have Abdul Enterprises offer cash to public
officials in return for help on immigration matters, events
rapiciv unfolded. leading to the incidents on which the
charges against the seven appellants were based. After
returning to Philadelphia from the cruise on the yacht,
Criden told his law partners, Johanson and Ellis Cook,
that Errichetti had told him they could make substantial
sums Of money if they knew any Congressmen who would
be willing to meet the sheik or his representatives. Cook
testified for the Government under a grant of immunity.
Criden reported that the money, $100,000, would be paid
directly to each Congressman and then shared with the
Jaw partners. The purpose, according to Criden and
Johanson, was that by meeting and paying the Congress-
man, the sheik would have a “friendly face,” someone
“that sort of owed him a favor” and would “help the
sheik come into this country” and also help members of
his family. Criden suggested that Johanson should contact
Myers and Lederer, since Johanson knew both Congress-
men. Johanson then contacted Myers and reported that
Myers was willing to attend the proposed meeting.
4 There is room for dispute as to who originated what came to be
called the “asylum scenario,” the willingness of Abdul Enterprises to
pay money to public officials in return for help with future immigra-
tion problems that the sheiks might encounter. Weinberg testified
before Judge Fullam that the idea first occurred to him while on the
yacht on July 26, 1979, as a result of a suggestion of Criden. Agent
Amoroso testified before Judge Fullam and Judge Pratt that he
thought of the idea the previous day as a result of a newspaper article
about the immigration problems of former Nicaraguan President
Anastasio Somoza. The Government argued to Judge Bryant that the
idea was originated by Errichetti. Criden, and Myers. At least a
general reference to the idea was broached by Weinberg to George
Katz, a defendant in another Abscam case, in a recorded telephone
conversation held on July 14, 1979.
lda
The Payment to Myers. The first meeting with Myers
took place on August 22, 1979, at the Travelodge Interna-
tiona! Hotel near Kennedy Airport on Long Island.
Myers. Johanson, Criden. and Erricherti drove from New
Jersey anc Pennsyivania to the Pan American terminal at
the airport, where they met for a brief conversation. As
all four understood, only Myers and Errichetti were to
attend the hotel meeting with the sheik’s representative.
Just prior to the meeting the FBI instructed Weinberg to
inform Errichetti in the hotel lobby that the previously
mentioned figure of $100,000 had been reduced to
$50,000. Errichetti and Myers then met with Amoroso
(who used the name Tony DeVito) and Weinberg in a
hotel room. The meeting was recorded on videotape.
Early in the conversation, Myers boasted of his influence
in Congress. When Amoroso mentioned his conversation
on the yacht with Errichetti concerning the sheiks’ possi-
ble immigration problems, Myers replied, “Absolutely.
Where I could be of help in this type of a matter, first of
all, is private bills that can be introduced.” Myers ex-
plained that delay was important in immigration matters
and said, “(I]f 1 wanta keep somebody in the country, all
I do is introduce a private bill.” Later in the conversation,
Amoroso told Myers that his employer was planning
major investments in the United States, possibly including
something in Philadelphia. Myers agreed with Amoroso
that such an investment in his district would give him “a
little protection,” and added that it would provide a
reason to go “full force and, ah, not that I won’t
otherwise,” and the “perfect opportunity to raise hell
before Congress.” Ar the end of the meeting Amoroso
handed Myers an envelope containing $50,000 in $100
bills. Amoroso said, “Spend it well”; Myers replied,
“Pleasure.”
l5a
After leaving the hotel, Errichetti met briefly with
Criden at Kennedy Airport. Criden then returned to his
law office in Philadelphia with the envelope Amoroso
had handed to Myers. Criden reported to Cook that
Errichetti had taken $15,000 for himself. Shortly thereaf-
ter Myers and Johanson arrived and conferred with
Criden. Cook was then told that Myers had agreed to
take only $15,000; of the remaining $20,000, Criden
received $9,000 or $9,500, Johanson received $6,000 or
$6,500, and Cook received $4,500.
At a subsequent meeting on January 24, 1980, at the
Barclay Hotel in Philadelphia, Myers and Criden met
with two other FBI undercover agents, posing as repre-
sentatives of the sheiks. These agents were Michael Wald
(using the name Michael Cohen) and Ernest Haridopo-
lous (using the name Ernie Poulos). Myers vehemently
complained about ending up with only $15,000, after
expecting to retain $50,000 for himself out of an antici-
pated payment of $100,000. As Myers pointed out, “Who
am I goin’ to complain to. . . my congressman[?)” The
undercover agents mollified Myers with an offer to pay
an additional $35,000, which Myers said would be agree-
able. On February 2, 1980, the date set for the additional
payment, Myers was questioned at his home by FBI
agents who identified themselves and said they were
investigating the activities of Criden, Errichetti, Wein-
berg, DeVito (Amoroso), and Cohen (Wald). Myers de-
nied knowing Weinberg, DeVito, or Cohen. The same day
FBI agents interviewed Johanson. He admitted driving to
Kennedy Airport for the August meeting and receiving a
stack of cash. He said he realized the seriousness of this
type of activity, but could not resist the chance to make
easy money.
l6a
Claims at the Myers Trial. Myers acknowledged at his
trial that he had retained $15,000 of the $50,000 handed
to him by Amoroso. His defense, also adopted by his
three co-defendants, was that all of his statements to
Amoroso and Weinberg at the hotel on Long Island and
to Wald and Haridopolous at the hotel in Philadelphia
were what he termed “playacting.” Myers, the only defen-
dant of the four on trial to testify, claimed that Weinberg
had told Errichetti, and Errichetti had told Mvers, that
nothing would ever have to be done for the sheiks in
connection with immigration. According to Mvers, Erri-
chetti told him just prior to the August 22 meeting what
he should say to impress the sheik’s representatives.
Myers claimed he did not intend to fulfill any of the
promises he made at the meeting. Over the Government’s
objection, Judge Pratt instructed the jury that they
should convict the defendants at the Myers trial of brib-
ery only if they found that Myers was not “playacting.”
The jury’s verdicts constitute a rejection of Myers’ de-
fense.
The Payment to Lederer. The initial contact with Led-
erer, as with Myers, was made by Johanson. He told
Cook that Lederer had been briefed on the sheik’s immi-
gration problem, on the sheik’s interest in investing in
Philadelphia, and on the requirement that the Congress-
man personally receive the $50,000 being offered. Cook
testified that Lederer said he “would gladly do it for Lou
[Johanson] and all he wanted was a $5,000 contribution
for the spring primary.” On September 11, 1979, Lederer
and Errichetti met with Amoroso and Weinberg at the
Hilton Inn near Kennedy Airport. The meeting was re-
corded on videotape. Lederer said that Errichetti had
briefed him on the sheik’s immigration problems. When
Amoroso said, “I understand that you can introduce
17a
legislation,” Lederer replied, “Right, a bill. Private bill.
Sure.” Lederer then raised a concern that people might
ask, “Why all at once does 2 Philadelphia Congressman
want to help somebody... ?” It would be “so much
nicer.” he continued, if the sheik had a “legitimate in-
terest” in the port of Philadelphia.” At the end of the
meeting. Amoroso handed Lederer a bag containing
$50,000 in $100 bills, commenting, “I hope you don’t
mind a brown paper bag with this in’’ and adding, ‘“‘!
hope you spend it well.’
The next day Criden met with Cook in Philadelphia
and handed him two envelopes. One, marked “RL” (Ray-
mond Lederer), contained $5,000; the other, marked
“EC” (Ellis Cook), contained $4,500. Criden told Cook
that $20,000 had gone to Errichetti, $5,000 to “Mel and
Tony” (Weinberg and Amoroso), and the remaining
$15,500 to Criden and Johanson. Later Johanson de-
livered Lederer’s $5,000 share to the Congressman. On
February 2, 1980, Lederer was questioned by FBI agents
about the September 11, 1979, meeting. He denied that
Errichetti was present, that private immigration bills were
_ discussed, and that he had received a package or a brown
paper bag.
Claims at the Lederer Trial. Lederer acknowledged at
his trial that he had been given $5,000 of the $50,000
handed to him by Amoroso. His sole defense was that he
had been entrapped and that there was no evidence of his
predisposition to commit any offenses. The jury, charged
with respect to the entrapment defense, rejected it by their
verdicts.
The Payments to Thompson and Murphy. \n Septem-
ber, 1979, Criden met Silvestri, the New Jersey business-
man, in Florida and, knowing of Silvestri’s contacts
lSa
among Democratic politicians in New Jersey, inquired
about Congressmen who might be willing to meet the
sheik’s representatives. Silvestri suggested Congressman
Thompson. On October 4, Silvestri introduced Criden to
Thompson, at which time Criden and Thompson spoke
privately. That evening Criden told Weinberg that
Thompson had agreed to assist and would meet Weinberg
and Amoroso in Washington on October 9. Criden told
Cook that he had made arrangements so that Thompson
would not personally have to take the “package.”
Thompson and Criden met with Amoroso and Weinberg
on the morning of October 9 at a townhouse on W Street
maintained by FBI agents. The meeting was videotaped.
The discussion centered on the use of private immigration
bills to prevent or at least delay deportation. When
Amoroso stated, “That’s what the money is for,” Thomp-
son replied, “I’m not looking for any money.” The
discussion of private immigration bills continued. Wein-
berg said the sheik wanted friends he could depend on, to
which Thompson replied, “I don’t know how many more
ways I could say it.” At this time no money was trans-
ferred.
Later that day Criden returned to the W Street house
for a further discussion with Weinberg and Amoroso.
This meeting was videotaped. Criden complained that at
the morning session Amoroso had altered their agree-
ment, which, he claimed, called for no mention of money
and Criden simply receiving a package. Weinberg and
Amoroso denied making such an arrangement, stating
that they were willing to have Criden take the package as
long as Thompson acknowledged the money. Criden de-
murred, arguing that Thompson was too experienced and
suspicious and could not be expected to act like Mvers
19a
and Lederer. Criden agreed to talk with Thompson and
telephoned to arrange a meeting with the Congressman.
On the evening of October 9. Thompson and Criden
returned to the W Street house and met again with
Amoroso. The meeting was videotaped. Criden said,
“Frank understands the situation.” Amoroso said,
“There’s the briefcase,” pointing to a briefcase containing
$50,000 in $100 bills. Thompson said to Criden, “You
look after that for me will you?” Thompson and Criden
then said they would bring others whom they ‘vould
carefully screen. Later the group discussed possible in-
vestments of the sheik’s money’in New Jersey. Thompson
suggested some possibilities, noting that such investments
would put him in a position to justify his support of the
sheik. Amoroso, recalling the morning conversation, said
that they had then been “shadow boxing,” to which
Thompson replied, “Well, you nave to be careful.”
Thompson said the first Congressman he might send
would be his “pal” from New York, meaning Congress-
man Murphy. Thompson said he would “brief” his pal
beforehand. As the meeting ended, Thompson and Cri-
den both momentarily lifted the handle of the briefcase,
and Criden carried it out.
The next morning Criden told Cook in Philadelplhia
how the $50,000 was to be divided. Thompson had taken
$20,000,‘ Errichetti would receive $10,000, Silvestri,
$3,500, “Mel and Tony,” $5,000, and $10,000 for Criden,
Johanson, and Cook, leaving $1,500 unaccounted for.
$ At trial the Government contended thai its evidence showed that
Thompson had received a portion of the money delivered at the
October 9 meeting, but his violation of the bribery and unlawful
gratuity statutes was based entirely on the claim that he had received a
‘portion of the money delivered to Murphy and Criden at the October
2U meeting.
20a
On October 10, Thompson met with Congressman
Murphy in Murphy's office. After Thompson returned
from a brief trip, he arranged for Murphy to meet Criden
on October 19, and a meeting with the sheik’s representa-
tives was arranged for October 20. Murphy and Criden
met with Amoroso and Weinberg at the Hilton Inn near
Kennedy Airport on October 20. The meeting was video-
taped. The discussion centered on the sheik’s anticipated
immigration problems. Amoroso said that his employers
felt it was worth “whatever they have to put out” to
obtain assistance. Amoroso explained that his emplover
had said, “[TJake the money, go find the people that can,
can do this for me.” Criden replied, “All you have to do
is get a hold of me. I will get a hold of Jack [Murphy].”
Later, Weinberg said, commenting on the apparent ab-
sence of any problem, “As long as the man says he’s
going to take care of it. That’s what counts.” Murphy
answered, “Yeah.” Weinberg then made clear that it
would be a “different deal” if any help was needed for
anyone other than the two employers that had been
mentioned. “{I]n other words,” Amoroso explained,
“these, what we’re, what we're coming up front with, the
money for is just for these two guys.” Murphy answered,
“Yeah.” At the end of the meeting Amoroso picked up a
briefcase containing $50,000 in $100 bills. Criden said,
“Why don’t you give that to Jack.” Murphy said, “How-
ard why don’t you take care of that.”*
6 The Government contends that a close listening of the videotape
reveals Murphy to have said, “Howard why don’t vou take care of that
for me?” The Government's transcript of the tape, shown to the jury,
contained this version. Murphy's transcript, also shown to the jury,
omitted the final words “for me.” Our listening of the tape did not
catch the words “for me,” though it was surely proper to permit the
jury to decide for themselves. Whether or not Murphy's line ended
with “for me.” the echo from the Thompson-Criden dialogue of
October 9 is unmistakable.
2la
On October 22, Criden, carrying the briefcase contain-
ing $£0.000, met with Cook in Philadelphia and explained
the expected division of the money. $25,000 would be
delivered to Thompson, of which Murphy would receive
$15.000; Errichetti would receive $10,000, “Mel and
Tony,” $5,000, and Criden, Johanson, and Cook, the
remaining $10,000. Later that day Thompson telephoned
Criden and arranged for Criden to meet him at a motel in
New Jersey. Upon his return to Philadelphia, Criden told
Cook that he had delivered the money to Thompson.
Subsequent events cast further light on the issue, se-
riously contested at the Thompson-Murphy trial, as to
whether either Thompson or Murphy had received money
at or as a result of the October 20 meeting. On November
8, Thompson gave Criden the name of Congressman
John Murtha of the Twelfth District of Pennsylvania as a
next “candidate” for the sheik’s representatives. Criden
passed Murtha’s name along to Amoroso and Weinberg
later that day at the conclusion of a meeting the three of
them had with Laurence Buser, a friend of Murphy’s. The
- purpose of this meeting was to discuss a proposed ship-
ping deal to be financed by the sheiks in which Murphy,
according to Buser, would be a “silent partner.” Thomp-
son then undertook to recruit Murtha. As Murtha testi-
fied at trial, Thompson told him, in a discussion on the
floor of the House of Representatives, about the wealthy
Arabs who might need assistance on immigration matters.
In a second conversation with Murtha on the House floor,
Thompson told Murtha that there would be $50,000 in
“walking around money” for Congressmen willing to
help. Thompson told Murtha he had already enlisted
Murphy in the venture. Ultimately, no money was ever
paid to Murtha.
22a
On January 10, 1980, Murphy, Buser. and Criden met
with Amoroso and Weinberg at the W Street house. The
meeting was videotaped. The discussion concerned the
proposed shipping deal, as to which Murphy said he was
“notin.” Later Amoroso spoke privately with Murphy. In
this conversation Murphy acknowledged the dangers of
speaking about money and then, in the Government’s
view, engaged in plavacting of his own in denying receipt
of any money. Murphy told Amoroso, “[{A]ny time
money’s mentioned where a public official is mentioned,
there—there’s automatically an ability to link ‘em to
something illegal or to taking a consideration for some-
thing, uh, that he’s supposed to do or use his office to do
and there’s, no public official would ever be involved in
anything like that. . . . Particularly Thompson, myself,
or Murtha. We'd never do anything like that. See?”
Amoroso said, “[Y]ou’re being coy with me.” Murphy
said, “Sure.” Then when Amoroso said he had been
reluctant to give Murphy money, Murphy said, “You
didn’t, you didn’t give me any money... . 1 never,
received any money from anyone.” The conversation
continued with the two discussing future plans for
Murphy to meet the sheik. After this meeting Murphy
requested a private investigator to check out Weinberg,
“DeVito,” and Abdul Enterprises. Murphy said he
thought they were either phonies or government agents.
On February 2, 1980, FBI agents questioned Thompson
about his October 9 meeting with Amoroso and Wein-
berg. Thompson denied that immigration matters had
been discussed and denied that anyone had received a
briefcase.
Claims at the Thompson-Murphy Trial. At trial
Thompson denied receiving any money. He testified that
23a
his sole purpose is going to the meetings with the sheik’s
representatives and arranging introductions to Murphy
and Murtha was to attract investments to his and their
districts. He claimed that he thought the briefcase handed
to Criden at the October 9 meeting had contained invest-
ment proposals. Murphy neither testified nor presented
defense witnesses at trial. His defense, as argued in
summation, was that he had not received any money.
Ill.
We turn first to a series of broad claims asserted, with
slight variations, by some or all seven of the appellants as
grounds for rejecting the lawfulness of their convictions.
These are claims that in several] distinct, though related,
respects these convictions were obtained in violation of an
outer limit of fairness guaranteed by the Due Process
Clause of the Fifth Amendment to all persons whenever
the Government of the United States acts to detect and
prosecute criminal activity. Some of the claims are reen-
forced by the contention that the Abscam investigation
and prosecution of Congressmen, and those chaged with
aiding and abetting them and conspiring with them, also
violated constitutional protections of Members of Con-
gress, either contained explicitly in the Speech or Debate
Clause, U.S. Const. art. I, § 6, or implicitly in the
doctrine of separation of powers.
A. Lack of Prior Suspicion.
Appellants contend that it is unconstitutional for the
Executive Branch of the Government to predicate the
conviction of a Member of Congress upon a criminal
Opportunity created by agents of the Executive Branch, in
the absence of probable cause, or perhaps some lesser
2da
standard of suspicion, to believe that the Congressman
has previously engaged in criminal activity. The argument
emphasizes the risk of abuse: if the practice is permitted,
it might be directed at Congressional targets selected for
political reasons, and such political targeting, though
violating the First Amendment, see United States v.
Steele, 46) F.2d 1148, 1151 (9th Cir. 1972), would be
difficult to establish and therefore too readily available
for use by malevolent officials. The argument also sug-
gests that it is simply not the constitutional business of
the Executive Branch to test the virtue of Members of a
coordinate branch of government. .
In Myers ] we canvassed the considerations supporting
and opposing this claim and concluded that while the
claim raised important issues of public policy appropriate
for the attention of the Executive and Legislative Bran-
ches, it did not present a court with a ground for
declaring that the Constitution had been violated, 635
F.2d at 938-39. Our reflection upon the issue has been
deepened by the passage of time and focused more
sharply by the vast record assembled on these appeals,
but our conclusion has not been altered. The Constitution
permits Congress to apply the criminal law enforcement
process to a Member’s acceptance of a bribe. United
States v. Brewster, 408 U.S. 501 (1972). A Congressman is
as entitled as any other citizen to the constitutional and
statutory protections that limit the power of the Govern-
ment to investigate and prosecute criminal offenses. But,
? Several appellants in fact contend that in these cases the Government
targeted the defendant Congressmen for political or other impermissi-
ble reasons, This claim is flatly contradicted by the evidence. The
Government had no role whatever in the selection of any of the four
Congressmen involved in these appeals. Criden and Johanson selected
Congressmen Myers and Lederer. Silvestri selected Congressmen
Thompson. Thompson selected Congressman Murphy.
25a
with the exception of section 6 of Article 1, which explic-
itly affords immunity to Senators and Congressmen “for
any Speech or Debate in either House” and privilege from
arrest for most criminal offenses during attendance at
sessions of Congress, the Constitution does not provide
Members of the Legislative Branch with any extra protec-
tions beyond those guaranteed to all] citizens. Specifically,
Members of Congress enjoy no special constitutional rule
that requires prior suspicion of criminal activity before
they may be confronted with a governmentally created
Opportunity to commit a crime.
What is available in such circumstances is the tradi-
tional defense of entrapment, which prevents conviction
of a person induced to commit a crime unless the prosecu-
tion can establish the person’s predisposition to commit
the crime. See Sherman v. United States, 356 U.S. 369
(1958); Sorrells v. United States, 287 U.S. 435 (1932). The
entrapment defense exonerates a defendant who engages
in criminal behavior when the activity of government
agents “implant(s) in the mind of an innocent person the
disposition to commit the alleged offense and induce(s] its
commission,” Sorrells v. United States, supra, 287 U.S. at
442. But the defense of entrapment is not established
simply because government agents “afford opportunities
or facilities for the commission of the offense,” Sorrells
v. United States, supra, 287 U.S. at 441, or engage in
“deceit.’’ United States v. Russell, 411 U.S, 423, 435-36
(1973). The legal defense of entrapment is not established
whenever a defendant is caught by a ruse.
Although the defense of entrapment was available to
all seven appellants, none except Lederer elected to assert
the defense at trial, or request a jury instruction on the
issue. The defendants in the Myers and Thompson-
Murphy trials made no attempt to avail themselves of the
26a
limited opportunity a defendant has to defend on the dua!
grounds of non-involvement and entrapment. see United
States \. Valencia, 648 F.2d 1188, 1170-72 (2d Cir. 1980)
(amended 1981). They claimed only that bribery had not
occurred, the .\fvers defendants on the ground that Myers
was only “playacting,”"—pretending to promise official
action—and Thompson and Murphy on the ground that
proof was lacking that they had accepted money for
promises of official action. We do not doubt that when an
entrapment defense is raised by evidence of inducement,
either through cross-examination or affirmative evidence,
a defendant is entitled to have a court assess, as with
every other element of an offense, whether the record
contains sufficient evidence from which a reasonable jury
can conclude beyond a reasonable doubt, United States v.
Taylor, 464 F.2d 240, 243 (2d Cir. 1972), that the prosecu-
tion has proved the defendant's predisposition to commit
the offense. See United States v. Valencia, supra, 645 F.2d
at 1167-68 (evidence of predisposition sufficient to create
issue for jury). But a defendant is not entitled to a court
ruling on the minimal sufficiency of the prosecution's
evidence as to a defense that the accused has not placed in
issue. A defendant's failure to assert an entrapment
defense prevents the prosecution from responding to
evidence of inducement by presenting evidence of the
defendant's predisposition to commit the crime. We hold
that a defendant who fails to assert entrapment as a
factual defense at his trial, cannot assert it as a legal
Cefense to his conviction. See United States v. Bishop,
367 F.2d 806, 809-10 (2d Cir. 1966).
Although Lederer, having asserted the defense of en-
trapment at trial, can challenge the sufficiency of the
evidence of his predisposition, his claim is without merit.
In seeking only $5,000 for himself out of the $50,000 he
27a
received, Lederer displayed neither the greed of Myers
nor the guile of Thompson and Murphy; nevertheless. the
evidence at his trial fully entitled the jury to find his
predisposition beyond a reasonable doubt. Predisposition
may be established by “the accused's ready response to
the inducement,” Cviied Sates v. Viviano, 437 F.2d 295,
299 (2d Cir.), cert. denied, 402 U.S. 983 (1971); United
States v. Becker, 62 F.2d 1007, 1008 (2d Cir. 1933). The
videotape of the September 11 meeting reveals Lederer
responding with alacrity. As he assured the sheik’s repre-
sentatives, “I'm not a Boy Scout.”
B. Excessive Government Role.
Appellants contend that even if the traditional entrap-
ment defense fails, whether factually in Lederer’s case or
procedurally as to the other appellants, the conduct of
Abscam violated standards of due process because the
Government's role in the investigation was excessive and
fundamentally unfair. Unlike the entrapment defense,
which focuses on the defendant's predisposition, this due
process claim focuses on the conduct of the government
agents.’ There are several strands to the argument. First,
it is urged, the Government created the crimes. The
elaborate contrivance of Abscam is claimed to extend
beyond the legitimate role of law enforcement in detect-
ing crime into a forbidden area of instigating crime.
4 The appellants sometimes refer to this claim as “entrapment as a
matter of law.” We prefer to characterize it as a due process claim,
leaving the phrase “entrapment as a matter of jaw” to describe the
claim that, with respect to @ traditional defense of entrapment, the
evidence of predisposition was insufficient as a matter of law to permit
the jury to find that the prosecution had proved predisposition as a
matter of fact. Unlike the claim of entrapment: as a matter of law, the
due process claim of excessive governmental inducement is available to
a defendant whether or not he asserted an entrapment defense at trial,
since this claim is independent of evidence concerning predisposition,
28a
Second. the appellants contend that the inducements
offered to the Congressmen for their corrupt promises of
official action were so excessive that a court should
declare them to exceed limits claimed to inhere in the Due
Process Clause. Third. appellants in the \/vers case con-
tend that the Government agents. notably Weinberg,
“coached” Congressman Myers into committing the
crimes by having Errichetti and Criden tell Myers what to
say at the videotaped meetings and simultaneously as-
suring him that he need not intend to keep the promises
he was making since he would never be called upon to
deliver.
In assessing this collection of claims, we acknowledge
the intimations in decisions of the Supreme Court and
this Court that the due process requirement of fundamen-
tal fairness may have a special pertinence when Govern-
ment creates opportunities for criminal conduct in order
to apprehend those willing to commit crimes. See Hamp-
ton v. United States, 425 U.S. 484, 491-95 (1976) (Powell,
J., concurring); United States v. Russell, supra, 411 U.S.
at 431-32; United States v. Archer, 486 F.2d 670, 676-77
(2d Cir. 1973); see also Archer v. Commissioner of Cor
rections, 646 F.2d 44, 46-47 (2d Cir.), cert. denied, 102 S.
Ct. 291 (1981) (Archer II). At the same time, we recognize
that, with the exception of a decision by a divided panel
of the Third Circuit, United States v. Twigg, 588 F.2d 373
(3d Cir. 1978), convictions have not been invalidated by
federal appellate courts on grounds of excessive govern-
ment involvement after the decisions of the Supreme
Court in Russell and Hampton narrowed the availability
of this defense. As the decisive concurring opinion of
Justice Powell in Hampton stated, “Police overinvolve-
ment in crime would have to reach a demonstrable level
of outrageousness before it could bar conviction.” 425
29a
U.S. at 495 n.7. Our own decision in Archer //J, though
questioning an extreme example of governmental initia-
tion of a criminal opportunity, if not the crime itself.
rejected the due process claim. 646 F.2d at 47. Moreover,
as we recently observed in United States v. Alexandro,
675 F.2d 34 (2d Cir. 1982), an Abscam conviction of an
employee of the Immigration and Naturalization Service,
the due process claim, in the rare instances when success-
ful, has prevailed to restrain law enforcement activities
that involve coercion, e.g., Warts v. Indiana, 338 U.S. 49
(1949), or outrageous violation of physical integrity, eé.g.,
Rochin v. California, 342 U.S. 165 (1952).
1. Instigation. The appellants’ claim of excessive
governmental involvement in the instigation of criminal
conduct is not supported by the facts. Though the “sting”
was surely elaborate, its essential characteristic was the
creation of an opportunity for the commission of crime
_ by those willing to do so. The Government produced
people with fictitious identities ready to pay bribes to
Congressmen. Word of the availability of bribe money
was made known. From that point on, the essential
conduct of the agents and their paid informant was to see
who showed up to take the bribes and videotape them in
the act of doing so.’ Whatever may be the due process
limit of governmental participation in crime, it was not
reached here. See Hampton v. United States, supra;
United States v. Russell, supra; United States v. Jannotti,
673 F.2d 578 (3d Cir.) (en banc), cert. denied, 50
U.S.L.W. 3963 (U.S. June 7, 1982); United States v.
9 As Judge Pratt pointed out, Murphy's conduct is more accurately
described as the iaking of money, rather than a bribe, since the jury
acquitted him of the bribery offense and convicted him of accepting an
uniawful gratuity. £27 F. Supp. at i225 n.14.
30a
MeQuin, 612 F.2d 1193, 1196 (9th Cir.). cert. denied, 445
U.S. 954 (1980); United States v. Quintana, 508 F.2d 867,
876-78 (7th Cir. 1975).
2. Inducement. Appellants contend that the size of
the inducements offered to the Congressmen were exces-
sive. They refer not to the $50,000 amounts of the bribes,
but to the offers of financing multi-million dollar projects
in the Congressmen’s districts. We have considerable
difficulty with the premise of this argument, which is that
a Congressman is privileged to take a $50,000 bribe so
long as he simultaneously believes he is bringing the
benefits of investments to his district. The argument is an
affront to all the law-abiding Members of Congress and
state officials who consider it a norrna) part of their
public responsibilities to promote business activity for the
benefit of their constituents. Moreover, if appellants are
contending that there are due process limits on the size of
an inducement that a government agency may offer and
condition on acceptance of a bribe, the facts of these
cases belie the fanciful image of four Congressmen so
anxious to bring investment benefits to their districts that
they reluctantly accept bribes on which they thought the
investments were conditioned. Quite to the contrary, the
evidence shows four Congressmen jumping at the chance
to take a bribe and discussing investments in their districts
as a convenient cover to justify their rendering of pur-
chased legislative services. As Thompson said, anticipat-
ing possible criticism for helping the sheik, “I’m in a
position to say weil of course I’m helping this guy. Why
shouldn’t I help this guy. . . his money is helping my
guys work everyday.” Myers put it more bluntly: an
investment in the district “gives me a little protection.”
Thompson contends that inducement in violation of
due process limits occurred in his case because the agents
3la
persisted in offering money after his initial rejection on
the morning of October 9, 1979. The claim is spurious. At
the morning meeting Thompson did not reject a bribe, he
rejected its payment under circumstances he fearéd would
be incriminating. Then in the afternoon Criden met firs:
with Amoroso and Weinberg and later with Thompson.
At the meeting on the evening of October 9, what oc-
curred was not unfair inducement, but simply the of-
fering of money pursuant to an arrangement developed
by Thompson and Criden whereby the bribe could be
accepted while preserving what Thompson mistakenly
thought would be deniability.
‘3. “Coaching.” Appellants in the Myers case claim
that excessive governmental activity, breaching due
process limits, is to be found in the alleged conduct of
Weinberg in “coaching” Myers to say falsely that he
would introduce private immigration bills while assuring
him that he would not be called upon to deliver on his
promises. The claim is that Weinberg gave Errichetti and
' Criden the script for a charade that Myers would enact
before the television cameras, and Errichetti and Criden
then instructed Myers, in effect, how to obtain money
under false pretenses.
In the District Court, Judge Pratt accepted, for pur-
poses of these trials, the legal sufficiency of the “playact-
ing” defense,’®° and afforded the defendants in the Myers
case wide latitude to present evidence in support of their
claim. He then submitted the claim to the jury, under an
instruction that the jury was not to convict unless the
10 We suspect that this ruling reflects the not uncommon practice of
district judges, faced with a defense claim of unquestionable legal
validity in the course of protracted proceedings, to err on the side of
caution and permit the defense to make its factual claim to a jury,
rather than risk a reversal and retrial.
32a
Government proved bevond a reasonable doubr that a
Congressman who had accepted money in return for a
promise to introduce immigration bills had done so with
the intention of carrying out that promise. In other
words, the jury was to acquit on the bribery charge if they
accepted the “playacting” defense. The vers jury ob-
viously rejected the defense, and, on the evidence before
them, they were certainly entitled to do so. Despite the
existence of some evidence that Weinberg, through Erri-
chetti and Criden, had encouraged the Congressmen to
“come on strong,” as. Weinberg acknowledged in his
testimony at the Myers trial, the jury was entitled to
conclude that this was no charade. An entirely plausible
inference even from the defendants’ evidence, and the
one the jury apparently accepted, is that Weinberg was
not urging the Congressmen to utter promises they were
reluctant to make and did not intend to keep, but was
simply anxious to make sure that they fully and unambig-
uously expressed on videotape the promises they were all
too ready to make and fully intended to keep.
Moreover, after the trials were concluded, Judge Pratt
afforded the defendants a full opportunity at the “due
process” hearing to amplify the record to persuade him,
as the trier of fact on the due process claim, that only a
charade had occurred. After conducting a wide-ranging
hearing, the District Judge found the claim unsupported
as a factual matter, and his findings are not clearly
erroneous.
However, circumstances in the record prompt us not to
place this portion of our decision solely on the traditional
deference an appellate court extends to the fact-finding of
a jury and a trial judge when supported by sufficient
evidence. The record contains one striking instance, in the
early stages of Abscam, when Weinberg unquestionably
33a
pursued a course of conduct with Senator Williams that
reveals precisely the sort of “coaching” for “playacting”
that some of these appellants claim occurred with them.''
In a videotaped conversation with Senator Williams on
June 29, 1979, Weinberg made these statements:
He’s only interested in you. You gotta tell him how
important you are, who you are, what you can do
and you tell him in no uncertain terms “without me
there is no deal.” “I’m the man. I’m the man who’s
gonna open the doors. I’m the man who’ gonna do
this and use my influence and I guarantee this.”
Follow me? All »ullshit.
And that’s it, it goes no further, it’s all talk, all
bullshit. Thar’s all he wants to hear it.
It’s . . . it’s a walk-through. You should be out of
. there in twenty: minutes.
Come on, “Me, I’m the power.” And that’s it. It’s as
simple as that. You’re on stage for twenty minutes.
So you ready to go on-stage?
When this “coaching” session came to the attention of
the office of the United States Attorney for the District of
New Jersey, prosecutors there strenuously protested Wein-
berg’s conduct and complained to Department of Justice
officials and the prosecutors in charge of Abscam in the
Eastern District of New York. That protest led to a
meeting on August 9, 1979, at the home of Special Agent
" We intimate no opinion with respect to the effect of this episode on
Senator Williams’ appeal from his conviction.
34da
Larry Schneider of the FBI office in New Jersey, attended
by Weinberg, prosecutors from the Eastern District of
New York and the District of New Jersey, and FBI agents.
What was said at that meeting was a matter of dispute at
the due process hearing before Judge Pratt. FBI agent
Martin Houlihan recounted an exchange between Edward
Plaza, then an Assistant United States Attorney in New
Jersey,“ and Weinberg. According to Houlihan, Plaza
told Weinberg that he could not put words into people’s
mouths; Weinberg replied “to the effect that if he didn’t
say things like that, then we wouldn’t be making any
cases.” Agent Schneider supported Houlihan’s account
with the following testimony: at a meeting a few days
later with Thomas P. Puccio, attorney in charge of the
Organized Crime Strike Force in the Eastern District,
Weinberg denied ever saying that he had “to put words in
people’s mouths or we won’t make any cases,” to which
Schneider and Houlihan promptly replied, in substance,
“Mel, that’s not so, you did say that.”
Schneider also testified that, when the Williams’
“coaching” session was discussed at the August 9 meeting
and Weinberg was admonished to refrain from such
conduct, he (Schneider) made “a statement to the effect
‘Yeah, at least if you’re going to coach him you don’t
tape it.’ ” At the hearing, Schneider characterized this as
a “joking remark,” which “was said in a joking matter, as
far as I understood everybody understood it to be a
12 Judge Pratt concluded that both Plaza and another Assistant United
States Attorney from New Jersey, Edward Weir, were motivated to
criticize the Abscam operation by jealousy over the control by prosecu-
tors from the Eastern District of New York of an investigation
uncovering corruption in the District of New Jersey. $27 F. Supp. at
124$~:7. Professional rivairy may have been afoot, but our review of
the record inclines us to think that Plaza and Weir were expressing in
good faith concerns based largely on their sense of the proper adminis-
tration of justice.
35a
joking matter.” To put it mildly, this is an odd subject for
humorous bantering.
Noi having heard the participants who testified about
the August 9 meeting, we are in no position to assess
crecibility and decide whether Weinberg made the remark
attributed to him. We note that Judge Pratt's discussion
of the August 9 meeting does not make a finding of fact
on this point. 527 F. Supp. at 1235. Judge Pratt did find
that, by the time of the August 9 meeting, the Williams
“coaching” incident was “past history, and the technique
was not thereafter repeated.” /d. This finding relates to
whether Weinberg himself did any “coaching” of the
Congressmen. It does not preclude the distinct possibility
that Weinberg encouraged Errichetti and Criden to handle
the “coaching” for him. Judge Pratt expressed the view
that, if this happened, the Government bore no responsi-
bility for whatever Errichetti and Criden might have told
the Congressmen. Jd. at 1735-37. If impropriety of con-
stitutional dimension had arisen from Weinberg’s “coach-
ing,” we would not be so certain as Judge Pratt that the
taint would be dissipated by transmission through middle-
men. See United States v. Valencia, supra, 645 F.2d at
1168-72); Note, Entrapment Through Unsuspecting
Middlemen, 95 Harv. L. Rev. 1122 (1982)."" There is a
3 Although there is room for fair dispute as to the circumstances in
which government may be held responsible for extrapment by a third
party, see United States v. Valencia, 648 F.2d 1158, 1176 (2d Cir. 1981)
(Van Graafeiland, J., dissenting from denial of rehearing en banc),
“the defense is available, of course, where government agents act
through private citizens,” United Siates v. Buie, 407 F.2d 905, 908 (2d
Cir.), aff'd on other grounds sub nom. Minor v. United States, 396
U.S. 87 (1969); see Lopez v. United States, 373 U.S. 427 (1963);
Johnson v. United States, 317 F.2d 127, 128 (D.C. Cir. 1963). Appel-
‘ Jants’ claim of indirect “coaching” presents the strongest circumstance
for attributing third-party conduct to a government agent, since this is
a claim of what might be called “instructed transmission” of an
inducement: Weinberg. acting as agent for the Government, allegedly
36a
substantial risk that Weinberg, having been admonished
for “coaching” Senator Williams, and, even on the Gov-
ernment’s version, having heard FBI agents and prosecu-
tors “joke” about his not taping further “coaching”
sessions, did decide to encourage Errichetti and Criden to
undertake similar “coaching” ventures with the Congress-
men." Since we are left with at least a measure of unease
as to whether some indirect “coaching” occurred, we
prefer to consider the substance of appellants’ claim.
(3)a. “Coaching” and the “Playacting” Defense. The
appellants’ “coaching” claim seeks to create a due process
violation by combining an erroneous interpretation of the
bribery statute with an unrealistic assessment of the facts.
The first step in the argument is taken when the appel-
lants contend that “playacting” is a defense to bribery. It
is not."’ Since Myers appears to be the first public official
gave “coaching” directions to middlemen Errichetti and Criden with
specific instructions that they should relay his directions to the Con-
gressmen. The justification for holding government accountable for a
middieman's behavior would be less compelling if the claim were one
of “uninstructed transmission”: 2 middleman takes it upon himself to
pass an agent's inducement along to others. Government responsibility
has been rejected where the circumstances showed what might be called
“caused” inducement: an agent induces a middleman to commit a
crime, and the middleman, responding to the pressure upon him, takes
it upon himself to induce another person to participate in the crime.
. £E.g., United States v. Reed, $26 F.2d 740 (2d Cir. 1975), cert. denied,
424 U.S. 956 (1976). See generally United States v. Valencia, supra, 645
F.2d at 1178 (explication of Reed facts).
14 At the Philadelphia due process hearing before Judge Fullam,
Errichetti and Criden, testifying under an arrangement that precluded
use of their testimony against them, both alleged that, acting at
Weinberg’s behest, they had told the Congressmen that money could
be obtained simply by pretending to give assurances of using Congres-
sional influence.
1s Appellants have no basis for complaint because Judge Pratt gave
them an opportunity, accepted by defendants in the Myers trial, to try
to persuade the jury that the facts supported a defense to which they
were not entitled.
37a
in a reported federal decision to defend a bribery charge
on the ground that he intended to keep the bribe but not
tO keep the promise he made to the bribe-paver."' it is not
sursrising that the appellate reports have not dealt explic-
ily with the claim. The statute proscribes the corrupt
receipt of money 6. a public official “in return for: (1)
being influenced in his performance of any official
act... .° The phrase “in return for” appeared in the
statute in 1962 when Congress revised and consolidated
Various public corruption statutes. This phrase makes it
clear that bribery under section 201(c) requires a promise
of a future act in exchange for the money given to the
public official, an element not required for receipt of an
unlawful gratuity under section 20)(g), which punishes
receipt of a gratuity paid “for or because of” perform-
ance of a future or past official act. United States v.
Niederberger, 580 F.2d 63, 68-69 (3d Cir.), cert. denied,
439 U.S. 980 (1978); United Stores v. Brewster, 506 F.2d
62, 71-72 (D.C. Cir. 1974). As the Supreme Court said in
United States v. Brewster, supra, 408 U.S. at 526, con-
struing the bribery statute, “(t]he illegal conduct is taking
or agreeing to take money for a promise to act in a certain
way.” But the text of the 1962 revision perpetuates the
preexisting ambiguity as to whether the promise given by
the public official must be one that he intends to carry
out. A prior’statute, 18 U.S.C. § 205 (1958), had required
that a Congressman receive the bribe “with the intent to
16 Cases have considered and rejected the somewhat similar defense
that the bribe-taker was unable to be influenced because the official act
for which the bribe was paid ether was beyond his authority, see, e.g.,
United Siates v. Carson, 464 F.2d 424, 433 (2d Cir.), cert. denied, 409
U.S. 949 (1972); Unused Sieies v. Heffler, 402 F.2d 924 (3d Cir. 1968);
cert. denied, 394 U.S. 946 (1969). or had already been taken. see, ¢.g.,
United Siates v. Arrovo, £81 F.2d 649. 683-57 (7th Cir. 1978), cert.
‘denied, 439 U.S. 1069 (1979).
38a
have his action ... influenced.” This somewhat
awkward phrasing left it unclear whether the Congress-
man must intend to take action or need only intend to
receive money with awareness of the purpose for which
the briber gives it.
The present version, as revised in 1962, deletes “intent”
from the description of the conduct specifically pro-
scribed, and instead requires that the overall offense be
committed “corruptly.” The specific conduct is rephrased
as receipt of money in return for “being influenced” in
official actions. The meaning of the new language (and
probably that of the prior language as well) is clarified by
the report of the House Committee on the Judiciary:
The language used in subsection (c) [of section 201)
emphasizes that it is the purpose for which the
recipient knows the bribe is offered or given when he
solicits, receives, or agrees to receive it which is
determinative of criminality. Some courts have given
this intepretation to the present section 202." (See,
¢.g., Woelfel v. United States, 237 F.2d 484, 488;
Whitney v. United States, 99 F.2d 327, 331.)
H.R. Rep. No. 748, 87th Cong., Ist Sess. 18 (1961).
Thus, “being influenced” does not describe the Congress-
man's true intent, it describes the intention he conveys to
the briber in exchange for the bribe. The citation in the
House Report to the Whitney decision underscores the
point. On the page of the Federa/ Reporter to which the
" Section 202 of Title 18, as it read before the 1962 revision, pro-
scribed acceptance of bribes by various officials of the United States.
Using language similar to former section 205, covering receipt of
bribes by Members of Congress, section 202 proscribed receipt “with
intent to have his decision or action .. . influenced thereby.” 18
U.S.C. § 202 (1958)
59a
Report refers appear these sentences (and no others ot
consequence):
The evidence shows that [the public official] not only
took but solicited money in connection with said
sales, and whether his action was influenced is imma-
terial. The money was solicited and taken for the
purpose of causing [the people who paid the bribe] to
believe that they would get more consideration than
they would otherwise.
Whitney v. United States, 99 F.2d 327, 331 (10th Cir.
1938). As the Seventh Circuit has said, in rejecting a
claim that a bribe was not received in return for being
influenced because the event requiring influence had al-
ready occurred, “The phrase [‘in return for’) brings into
play the purpose of the bribe and thus the mind of the
bribe-payer.” United States v. Arroyo, £81 F.2d 649, 654
(7th Cir. 1978), cert. denied, 439 U.S. 1069 (1979), Con-
Struing a similar statute proscribing receipt of money for
the promise of a public office, 18 U.S.C. § 215 (1952) (a
predecessor of 18 U.S.C. § 201 (1976)), the Supreme
Court upheld a conviction despite the fact that the public
office, though authorized, was not in existence. United
States v. Hood, 343 U.S. 148 (1952). “Whether the
corrupt transaction would or could ever be performed is
immaterial. We find no basis for allowing a breach of
warranty to be a defense to corruption.” /d. at 151. With
respect to the bribery statute, we believe the defense of
fraud is equally unavailable." If Myers was “playacting”
it This construction of the statute is especially appropriate when the
public officials who receive bribes are Members of Congress, since the
Speech or Debate Clause bars evidence of their subsequent official
action or the reasons for it, United States ». Johnson, 383 U.S. 169
(1966). evidence that would frequently be highly probative of whether,
ai the time of the bribe, the Member intended to take official action. It
4Wa
and giving false promises of assistance to people he
believed were offering him money to influence his official
actions, he violated the bribery statute."
3(b). “Coaching” as Inducement, With the statute
thus understood. the “coaching” claim does not provide a
legal defense simply because some “coaching” may have
occurred; the claim would have merit only if there were
insufficient evidence of the defendants’ predisposition to
“playact” or if the agents’ conduct were so extreme as to
exceed due process limits. We have already ruled that the
entrapment defense is without merit in Lederer’s case and
is procedurally unavailable to the other appellants be-
cause they elected not to assert it at trial. The entrapment
defense fares no better when the appellants shift their
focus from the size of the inducements to Weinberg’s
alleged suggestion of a script. Prompt acquiescence shows
predisposition to accept a bribe, whether or not a promise
of official action is intended to be kept.
Thus, appellants are left with a claim that the “coach-
ing” was sO outrageously coercive as to violate due
‘process, wholly apart from the traditional defense of
entrapment. The record does not remotely support the
is unlikely that Congress, aware of the special protection its Members
enjoy under the Speech or Debate Clause, included in the offense of
bribery an element for which the Clause insulates the pertinent evi-
dence.
19 We recognize that some opinions have described the bribery statute
in language that can be read to suggest that the bribe-taker must intend
to take the promised official action. See Unied Siases vy. Brewster, 506
F.2d 62, 70-76 (D.C. Cir, 1974); United Siates '. Irwin, 354 F.2d 192,
195-96 (2d Cir. 1968), cert. denied, 383 U.S. 967 (1966). We do not give
controlling weight to such dicta, since they were expressed without any
need 10 consider the bizarre defense that the bribe-taker did not intend
to keep his corrupt promise. Consequently, the opinions had no
vccasion to discuss the 1962 House Judiciary Commitiee Report,
which is $0 pertinent to the claim in this case.
dla
claim. Even if all of the appellants’ evidence is credited, a
generous assumption that strains credulity, it shows at
most that Errichetti and Criden, perhaps prompted by
Weinberg, laid out before each Congressman a scheme
for pocketing $50,000 by falsely promising to introduce
private immigration bills. Suggesting how easy it is to
commit a crime hardly establishes a due process violation.
The “coaching,” if it occurred, barely qualifies as any
inducement at all; if the script was supplied, no one was
coerced into playing his part. Due process challenges to
an undercover agent's encouragement have been rejected
when one defendant was solicited twenty times before
committing an offense, United States v. Esquer-Gamez,
550 F.2d 1231 (9th Cir. 1977), and when another defen-
dant was tempted by a million-dollar cash deal and
prodded by veiled threats, United States v. Reynoso-Ul-
loa, 548 F.2d 1329 (9th Cir. 1977), cert. denied, 436 U.S.
926 (1978). Whatever conduct might transeress the stan-
dard outlined in Hampton and Russell, the facts of the
Abscam investigation are not even close to the line.
United States v. Alexandro, supra; United States v. Jan-
notti, supra. The bare suggestion to a Congressman that
he take a bribe, even for a promise he need only pretend
to make, surely does not violate a constitutional standard
of “outrageous” behavior. The public has the right to
expect that their public officials have sufficient integrity
not tO capitulate at such a suggestion. Whatever the
public’s expectation, the record reveals that these Con-
gressmen were not children of Hamelin, seduced by the
piping of Melvin Weinberg.
C. Impairment of Accurate Fact-Finding.
Appellants allege that the conduct of the Abscam
investigation denied them due process for a variety of
42a
reasons that are combined in support of a broad claim
that the Government prevented the presentation to the
jury of an accurate account of the events. With the
exception of traditional arguments that exculpatory evi-
dence was withheld in violation of Brady v. Maryland,
373 U.S. 83 (1963), the due process foundation of this
general area of attack is more the product of resourceful
argument than precedent. To be successful, this attack
must overcome our well-established reluctance to dismiss
criminal prosecutions because of faulty Government in-
vestigation. See United States v. Brown, 602 F.2d 1073
(2d Cir.), cert. denied, 444 U.S. 952 (1979); cases cited id.
at 1076-77. It might be thought that the specific constitu-
tional guarantees concerning criminal procedure, e.g., the
Confrontation Clause of the Sixth Amendment, and the
Federal Rules of Evidence provide sufficient standards
for determining the quality of evidence appropriate to
support a finding of guilt. Yet the Due Process Clause,
with its principle of constitutionally required fairness, has
been applied to develop minimum standards concerning
the accuracy of evidence, notably in the area of eyewit-
ness identification testimony. See Manson v. Braithwaite,
432 U.S. 98 (1977); Stovall v. Denno, 388 U.S. 293
(1967). Appellants invite us to frame comparable stan-
dards for undercover investigations.
1. Deliberate Ambiguity. An interesting component
of the argument, advanced by Thompson and Murphy,
maintains that when the Government is in control of an
undercover operation, as contrasted with merely observ-
ing events in which no governmental agent is involved,
due process requires the investigators to eliminate or at
least minimize ambiguities in the critical events that form
the basis of the criminal offense. Otherwise, they con-
tend, the Government needlessly creates risk of erroneous
4a
fact-finding by the jury on the ultimate issue of guilt or
innocence. Relating the claim to these cases, they argue
that an undercover offer of a bribe must be expressed in
terms that leave no uncertainty that money is being
transferred to a Congressman and that it is being paid to
influence his official actions. As counsel for Murphy
contends, “Congressman Murphy was denied the oppor-
tunity to say ‘no,’ [see Myers J, supra, 635 F.2d at 939]
because the Government did not clearly convey its invita-
tion to corruption.” (Murphy Br. 50.)
Perhaps at some point deliberate governmental efforts
to render ambiguous events over which agents can exer-
cise considerable control would transgress due process '
limits of fundamental fairness. Wherever those limits
might be, they have not been crossed in these cases.
Undercover agents offering bribes to Congressmen are
entitled to simulate the guarded conversation that would
be expected of those proposing an unlawful venture. C/.
United States v. Reynoso-Ulloa, supra, 548 F.2d at 1338-
39. They need not say, “Congressman, I have here a cash
bribe to be exchanged for your corrupt promise to be
influenced in your official action.”
In the Myers and Lederer cases, the bribe offers created
no risk of ambiguity. There were ample references to
money and to its payment in exchange for assistance with
private immigration bills, and both Myers and Lederer
directly received envelopes filled with cash under circum-
stances leaving no doubt as to their knowledge of the
contents. The episodes involving payments to Thompson
on October 9 and to Murphy on October 20 are somewhat
more ambiguous. Although the events and conversations
at those meetings are captured on videotape, the sights
and sounds, considered in isolation, create fair questions
of fact as to whether Thompson and Murphy knew that
dda
money was in the briefcase, and whether the money was
received by the Congressmen. Both Congressmen contend
that they did not know that the briefcase contained cash
and that on both occasions Criden received the briefcase
and did not share its contents with either Thompson or
Murphy.
Whatever ambiguity arises from the manner in which
the bribes were offered at the meetings on the evening of
October 9 and on October 20 is directly attributable to the
cautious, ground rules insisted upon by Criden and
Thompson in the hope of insulating Thompson and those
he recruited from culpability. It is plainly inferable from
the taped conversations of the three meetings on October
9 that Thompson arranged to have the cash transferred
without explicit references to it, apparently in the forlorn
hope that if any of his trusted companions ever appeared
on a witness stand to accuse him, he could escape convic-
tion by recounting how he had told the group that he did
not want cash and had left the meeting without any
money. The permissible, if not the irresistible, inference
the jury could draw from the series of conversations on
October 9 was that Thompson was not rejecting money;
he was carefully orchestrating how to accept it with
feigned innocence. The evidence supported a finding that
Thompson and Criden, recognizing that those offering
bribes understandably want some indication that the
Congressrnan they have bought is aware of the purchase,
worked out a scenario whereby Thompson would ac-
knowledge receipt with only the oblique comment to
Criden, “You look after that for me will you?” That
formula, the jury could find, would surely satisfy the
bribe-givers that Thompson was acknowledging receipt,
while preserving his opportunity, if the occasion ever
45a
arose, to claim at a trial, as he did, that he thought the
briefcase contained investment proposals.
The transaction on October 20, which formed the basis
for the substantive offenses of which both Thompson and
Murphy were convicted, followed the same pattern Cri-
den and Thompson had developed and used for the
evening session on October 9. The evidence shows that
Thompson and Criden had explained their ground rules
to Murphy. A recorded telephone conversation between
Criden and Weinberg on October 17 contained these
passages:
Weinberg: Now, you gonna lay those ground rules
to Murph, right?
Criden: Oh yeah. No problem.
Criden: I am going to have lunch with this guy,
with Murphy. And I am gonna make sure he under-
' stands clearly... .
Criden: I’ve got to coach these guys. I’ve got to
make them feel at ease.
Criden: I gotta stroke him, you know, uh, make
him feel comfortable.
Weinberg: They all got that problem, they’re ner-
vous.
Criden: They’re all nervous. You know, they all
figure that maybe it’s a set up, you know.
Weinberg: Thompson must have spoken to him,
huh.
Criden: Yeah, naturally.
———
46a
The caution displayed by Thompson and Murphy permit-
ted them a chance to confront the jury with a contestable
question of fact. The jury, asked to determine the factual
question of whether Thompson and Murphy knowingly
took money while seeking to minimize the incriminating
nature of their own words and conduct, saw through the
ploy. Facing the legal issue of whether the investigators’
bribe offer was unfairly obscured, we are equally un-
moved. The agents did not violate due process limits by
observing the defendants’ ground rules.
Murphy further contends that there is a First Amend-
ment dimension to the due process claim of deliberate
creation of ambiguous facts. The ambiguities of what
occurred on October 20, he suggests, blur the line that
must be maintained between unlawful conduct that vio-
lates criminal statutes and lawful conduct, protected by
the First Amendment, that occurs when a Congressman
discusses legislative action and assistance with his constit-
vents. Reliance is placed on cases such as United States v.
O’Brien, 391 U.S. 367 (1968), and United States v.
Spock, 416 F.2d 165 (1st Cir. 1969).
This First Amendment claim is untenable. Unlike
O’Brien, there is no issue in these appeals whether con-
duct arguably protected by the First Amendment as
expression is nonetheless being punished. “[I]t is taking
the bribe [or an unlawful gratuity], not performance of
the illicit compact, that is a criminal act.” United States v.
Brewster, supra, 408 U.S. at 526 (emphasis original). Nor
do these appeals present the issue, illustrated by Spock,
whether a lawful objective was pursued by lawful or
unlawful means. See United States v. Spock, supra, 416
F.2d at 169. In some circumstances a prosecution of a
Congressman for bribery can present a close question as
to whether money was received as an illegal bribe or a
47a
lawful campaign contribution; in such cases, the jury
must be carefully instructed as to the distinction, and the
evidence must show “specific knowledge of a definite
official act” for which payment is made. United States vy.
Brewster, supra, 506 F.2d at 81. But none of these
Congressmen claimed that he had received what he
thought was a campaign contribution.” Murphy’s point is
that, at least in his case, there was an undue risk that the
jury might convict him simply for engaging in the normal
congressional activities of meeting with people who might
invest in his district and advising people on immigration
matters. That risk was adequately met by Judge Pratt’s
instructions, which focused the jury’s attention squarely
on whether Murphy knew that there was money inside the
briefcase transferred on October 20 and whether Murphy
received that money. The First Amendment claim cannot
obscure the fact that Murphy accepted Thompson’s invi-
tation to accept money unlawfully under an arrangement
that they both mistakenly believed would yield insuffi-
cient evidence of their guilt. The risk of a mistaken
conviction is adequately protected by scrutizing the suffi-
ciency of the evidence on which a jury is permitted to find
guilt beyond a reasonable doubt.
2. Conduct of the Investigation. Appellants’ remain-
ing challenges to the accuracy of the Government’s proof
require little discussion. They voice a chorus of indigna-
tion that the Government would employ the services of
such an untrustworthy person as Weinberg, and they fault
the FBI agents and prosecutors for not subjecting Wein-
20 Though Lederer was quoted by Cook as saying he would be satisfied
with only a $5,000 campaign contribution from his lawyer friends out
of the $50,000 payment, he made no claim at tria] that he thought the
sheik’s representatives were making a donation to his campaign. His
sole defense was entrapment.
48a
berg to more exacting supervision and for compensating
him too generously. They challenge Weinberg’s failure to
record all of his conversations with all of the defendants
and his loss and erasure of some audio tapes. They urge
that in various respects the entire investigation failed to
conform to internal guidelines of the Department of
Justice promulgated by former Attorney General Edward
‘Levi.
The use of dishonest and deceitful informants like
Weinberg creates risks to which the attention of juries
must be forcefully called, but the Due Process Clause
does not forbid their employment, detail their supervi-
sion, nor specify their compensation. Weinberg’s rewards,
both in cash and in lenient treatment for his 1977 fraud
conviction, were fully explored with the jury. Though the
appellants claimed that he was induced to lie by offers of
contingent payments for making cases, the District Court
found no such arrangement. 527 F. Supp. at 1240. No
doubt Weinberg did not record every conversation with
every defendant, but hundreds of audiotapes were made,
in addition to the videotaping of all the meetings with the
Congressmen. Despite the appellants’ dark insinuations,
the evidence fully justified Judge Pratt’s findings that on
One occasion a few audiotapes were stolen from Wein-
berg’s flight bag and on other occasions, Weinberg re-
corded over and thereby erased previously taped conver-
sations that were unimportant. Jd. at 1231. There was
conflicting evidence, considered by the jury, as to whether
On another occasion a tape gap was the result of accident,
as Weinberg claimed, or deliberate manipulation, as a
defense witness claimed. In no instance can defendants
point to any unrecorded conversation or portion of a
conversation that would have added anything of signifi-
cance to their defenses. Non-compliance with internal
49a
departmental guidelines is not a ground for complaint.
United States v. Caceres, 440 U.S. 741 (1979).
3. Brady Claims. Appellants contend that various
items were not disclosed to them until after the comple-
tion of the jury trials. items that they claim were exculpa-
tory and required to be disclosed under the rule of Brady
v. Maryland, supra. Many of the claims concern items
that would allegedly have bolstered the attack upon the
credibility of Weinberg. Judge Pratt properly placed these
claims in perspective when he noted the abundant
grounds available to the defendants at trial to impeach
Weinberg’s credibility:
Weinberg admitted that he had been a criminal most
of his life, that he had made his living by being a con
man, that he had lied and cheated and violated the
law from his early teenage years, that he was a
convicted felon, that he had made a deal with the
government to cooperate in return for probation on
his felony conviction in Pittsburgh, and that he had
received substantial compensation for his coopera-
tion in the Abscam investigation and trials.
527 F. Supp. at 1248.
In any -vent, the claims are without merit. Criden
points to evidence he contends would have buttressed his
claim that Weinberg had received and had falsely denied
receiving a $350 microwave oven and other gifts from
Errichetti. The prosecution had sought to support Wein-
berg’s credibility with evidence that he had promptly
turned over to FBI agents three $6,000 gold watches given
him by George Katz, a defendant in another Abscam
case. At the Myers trial, Weinberg testified that he told
the agents about the watches after he received them.
What Criden now complains of is the late disclosure of a
50a
memorandum indicating that Weinberg had told the
agents about the watches even prior to his receipt of
them. Whenever he mentioned them, the Government’s
point remains that Weinberg was not likely to conceal a
$250 gift when he had been forthcoming about an $18,000
gift. Lederer complains that not until after his trial did he
obtain the transcript of the August 9, 1979, “coaching”
session involving Weinberg and Senator Williams and
other documents revealing criticism by the New Jersey
prosecutors of Weinberg’s tactics. In fact, Lederer did
receive, prior to trial, a lengthy memorandum in which a
senior Department of Justice official summarized the
criticism from the New Jersey prosecutors and much of
the basis for their criticism. Armed with this memoran-
dum, Lederer called two New Jersey prosecutors as de-
fense witnesses to testify about the August 9 session.
Moreover, Lederer’s defense was entrapment, not “play-
acting.” Thompson claims he could have bolstered his
attack on Weinberg’s credibility if he had been given
Weinberg’s testimony at the “due process” hearing in
Philadelphia before Judge Fullam, in which Weinberg
falsely denied having been cautioned, after the August 9
session, not to coach potential defendants. The falsity of
this denial was not relevant to any testimony Weinberg
gave at Thompson’s trial. Thompson made no claim that
he had been “coached” into making false promises to
help the sheik. Moreover, like all the defendants, he had
abundant grounds on which to attack Weinberg’s credibil-
ity. None of these claims, nor any of the other alleged
Brady violations, which we do not detail, remotely pro-
vides a basis for any relief.
Having considered all of appellants’ claims that the
investigation violated the standards of the Due Process
5la
Clause, we conclude that the conduct of the Abscam
operation did not deny any appellant a constitutionally
protected right.*’ Appellants contend, nevertheless, that
we should assess the conduct of the government agents
under more exacting standards than those of the Due
Process Clause and dismiss the indictments in the exercise
of our supervisory power over the administration of
criminal justice. Whatever the scope of that authority in
the aftermath of United States v. Paynor, 447 U.S. 727
(1980), it does not permit courts to fashion their own
“sub-constitutional” ‘limitations on the conduct of law
enforcement agents. Prior to Paynor, the supervisory
power was used to fashion and enforce rules for judicial
proceedings in order to safeguard important constitu-
tional rights. See, e.g., United States v. Mohabir, 624 F.2d
1140, 1151-53 (2d Cir. 1980) (right to counsel); United
States v. Hinton, 543 F.2d 1002, 1010 (2d Cir.) (self-in-
crimination), cert. denied, 429 U.S. 980 (1976). And, on
infrequent occasions, the power was used to discipline
prosecutorial irregularities, particularly in front of grand
juries. See United States v. Jacobs, 531 F.2d 87 (2d Cir.),
21 Some of the appellants contend that venue was improperly laid in
the Eastern District of New York. They acknowledge that significant
events occurred in that District, notably the payments to Myers,
Lederer, and Murphy, the last of which was shared with Thompson.
The ciaim is that venue was “manufactured” in the Eastern District for
ulterior reasons, primarily to enable the Eastern District prosecutors to
handle the trials. In United States v. Archer, 486 F.2d 670 (1973), we
rejected the Government's attempt to create federal jurisdiction by
luring a defendant into placing a telephone call across a state line. We
do not preciude the possibility of similar concerns if a case should arise
in which key events occur in one district, but the prosecution, prefer-
ring trial elsewhere, lures a defendant to a distant district for some
minor event simply to establish venue. Here, the key events occurred in
the Eastern District of New York, and the Government: cannot be
faulted for selecting hotels near Kennedy Airport as the site for
transactions involving Congressmen from New York, New Jersey, and
Pennsylvania.
52a
vacated mem., 429 U.S. 909, reinstated, §47 F.2d 772 (2d
Cir. 1977), cert. dismissed, 436 U.S. 31 (1978). It has not
been used as a general corrective authority over the
conduct of criminal investigations, and, in light of Pav-
nor, its scope is surely not to be expanded. Appellants are
entitled to no more from the courts than a testing of
Abscam against constitutional standards.
IV,
We consider next a series of claims that arise in one or
another of the three trials.
A. Myers Trial
1. Sufficiency of Evidence. Criden and Johanson
both challenge the sufficiency of the evidence to establish
that they knew the purpose for which the money was paid
to Myers. The record shows their awareness at the early
stages of the plan; their law partner, Cook, testified that
after the meeting on the yacht, Criden and Johanson told
him about the sheik’s concern for asylum in the United
States and that payment to Congressmen would assure a
“friendly face” who “owed him a favor” and would
“help” him. Criden’s claimed assurance that the Con-
gressmen would never have to do anything does not lessen
his and Johanson’s knowledge that the money was being
corruptly received for a promise to be influenced concern-
ing official action, whether or not the promise was
intended to be kept. Criden’s attendance at and participa-
tion in the January conversations with Myers in Phila-
delphia leave no doubt whatever of his knowledge. Jo-
hanson’s knowledge was fairly inferable by the jury from
his initial hearing of the plan, his recruitment of Myers,
his receipt of cash, and his acknowledgment to the FBI
58a
that he had had many sleepless nights but had not been
able to resist the chance to make some easy money. This
non-hearsay evidence of Johanson's culpability justified
the admission against him of the acts and declarations of
the co-conspirators. See United States v. Mastropieri, No.
§1-1017 (2d Cir. July 20, 1982), slip op. 4011-21.
2. Evidentiary Ruling. The Myers appellants contend
that it was error to admit into evidence the January, 1980
conversations that Myers and Criden had with undercover
agents Wald and Haridopoulos at the Barclay Hotel in
Philadelphia. In these conversations Myers demanded an
additional $35,000 to bring his share up to the $50,000 he
had expected to receive from the August 22, 1979, meet-
ing; he also discussed possible investments by the sheik
that would provide a justification for his assistance with
immigration matters. Appellants contend that these con-
versations were evidence of other crimes occurring after
the end of the conspiracy concerning the August 22
payment and were inadmissible under Feb. R. Evid.
404(b). The argument builds upon the ruling Judge Pratt
made when the evidence was offered. Anxious to keep the
jury’s attention focused on the August 22 episode, Judge
Pratt told the jury that the January conversations were
“outside the conspiracy charged in the indictment” and
should be considered as acts and statements “only against
the defendant who made them.” In fact, the conversa-
tions, illuminating the nature of the conspiracy and oc-
curring while the conspiracy was still in existence, were
fully admissible against all defendants. Judge Pratt's
limiting instruction, as he recognized, was unduly favor-
able to the defendants and affords them no basis to
complain.
3. Jury Instructions. Criden levels several attacks
upon the charge in the Myers trial, none of which has
5da
merit. lt was not error for the District Court to decide the
appellants’ due process claims, without submitting them
to the jury, United States v. Nunez-Rios, 622 F.2d 1093,
1098 (2d Cir, 1980). In a general observation in the
portion of the charge concerning witness credibility,
Judge Pratt told the jury that they may consider a
witness's prior “failure to disclose information, when the
opportunity to do so presented itself.” Criden apprehends
that the jury may have taken this as permission to draw
an adverse inference from Myers’ silence during the
course of an interview with FBI agents. This portion of
the charge was not directed at Myers, the jury was not
told that Myers had exercised his right to remain silent
during the interview, and in any event, Myers’ failure to
give his version of the facts was probative since he had
elected to make statements to the agent before deciding to
end the interview. See Anderson v. Charles, 447 U.S. 404
(1980) (per curiam). It was not improper to refer to
Weinberg as an “informer,” and the charge adequately
cautioned the jury concerning his testimony. Finally, it
was surely not prejudicial error, if error at all, to omit the
' requested instruction that the jury may infer that tapes
and unrecorded portions of tapes not produced by the
Government would be unfavorable to the prosecution if
the jury found that such tapes or portions “could” have
contained pertinent material. The failure to record all
conversations and all portions of taped conversations and
the dispute concerning whether Weinberg had purposely
erased two tapes of conversations with Errichetti were
fully argued to the jury.
B. Lederer Trial.
1. Evidentiary Ruling. Lederer contends that evi-
dence was introduced at his trial in violation of the
55a
Speech or Debate Clause. He objects to the admission of
his annual financial disclosure statement, filed with the
Clerk of the House of Representatives pursuant to the
Ethics in Government Act of 1978, 2 U.S.C. § 701 er seq.
(Supp. IV 1980). In that statement Lederer falsely listed
his $5,000 share of the bribe as a “consulting fee” from
Johanson. The financial report was not shielded by the
Speech or Debate Clause. Though the Clause, in covering
“legislative acts,” Gravel v. United States, 408 U.S. 606,
625 (1972), extends beyond words spoken during legisla-
tive debate, any other matters it reaches “must be an
integral part of the deliberative and communicative proc-
esses by which Members participate in committee and
House proceedings ... .” Jd. Disclosure of income
from sources other than employment by the United
States, see 2 U.S.C. § 702(a)(1)(A), is no part of such
“deliberative and communicative processes.” Cf. Hutch-
inson v, Proxmire, 443 U.S. 111 (1979) (newsletters and
press releases); United States ex rel. Hollander v. Clay,
420 F. Supp. 853 (D.D.C. 1976) (Congressional travel
vouchers). Prosecutions for falsification of similar state-
ments indicate that Lederer’s financial disclosure state-
ment was not shielded. See United States v. Bramblett,
348 U.S. 503 (1955) (prosecution for false statement to
House Disbursing Office); United States v. Diggs, 613
F.2d 988 (D.C. Cir. 1979) (prosecution for false statement
to House Office of Finance), cert. denied, 446 U.S. 982
(1980).
2. Jury Instructions. Lederer’s two objections to the
charge are without merit. It was not error for Judge Pratt
to explain “predisposition” by asking the jury to deter-
mine whether the defendant was “ready and willing” to
commit the crimes charged whenever a favorable oppor-
tunity arose. United States v. Sherman, 200 F.2d 880, 882
56a
(2d Cir, 1952). Lederer would have preferred an explana-
tion that required finding a “previous intent or purpose,”
as some courts have phrased the test, e.g., United States
vy. Karas, 624 F.2d $00, 503 n.2 (4th Cir. 1980), cert.
denied, +49 U.S. 1078 (1981). In this Circuit, the “ready
and willing” phrase has been repeatedly used. £.g.,
United States v. Martinez-Carcano, 557 F.2d 966, 969-70
(2d Cir. 1977); United States v. Rosner, 485 F.2d 1213,
1222 nn.}) & 12 (2d Cir. 1973), cert. denied, 417 U.S. 950
(1974); United States v. Braver, 450 F.2d 799, 801 n.4, 805
(2d Cir. 1971), cert. denied, 405 U.S. 1064 (1972). The
jury need not find that the defendant consciously consid-
ered committing the crime before the opportunity arose,
only that he was predisposed to accept the opportunity
presented to him, i.e., of a frame of mind that made him
“ready and willing” to commit a crime, even on the first
occasion that he may have considered it.
Nor was it improper to tell the jury, in the course of
explaining that the defendant has no obligation to present
any evidence, that a defendant has the power to subpoena
witnesses. This phrase prompted no objection at trial,
and cannot be raised on appeal. In any event, there is no
merit to Lederer’s suggestion that the jury might have
mistakenly thought he could have called Errichetti, Cri-
den, and Johanson to support his entrapment claim.
Having failed to subpoena his severed co-defendants,
Lederer cannot assume that their testimony was not
available to him. C/. United States v. Wright, 588 F.2d
31, 36 (2d Cir. 1978) (failure to subpoena witness pre-
cludes claim that lack of use immunity for the witness
created prejudice), cert. denied, 440 U.S. 917 (1979).
57a
C. Thompson-Murphy Trial
1. The “Impossibility” Defense. Thompson contends
that the indictment against him fails to state an offense
on the theory that the fictional nature of the “sheiks” and
their immigration problems renders the crime of bribery,
as alleged in the indictment, impossible of performance.
The “impossibility” defense has been a matter of conflict-
ing views. Compare People v. Jaffe, 185 N.Y. 497, 78
N.F. 169 (1906) (defense upheld as to a “fence” who
bought goods from a police informant that were not in
fact stolen), and State v. Guffey, 262 S.W.2d 152 (Mo.
App. 1953) (defense upheld as to a hunter who shot a
stuffed deer placed as a decoy by a game warden), with
People v. Rojas, 55 Cal. 2d 252, 358 P.2d 921 (1961)
(rejecting defense as to a “fence” who bought goods not
in fact stolen). Federal courts have upheld the defense
when the crime charged had not in fact occurred, even
though the defendant thoug.it it had. £.g., United States
v. Oviedo, $25 F.2d 88) (Sth Cir. 1976) (sale of uncon-
trolled substance incorrectly believed to be controlled
substance); United States v. Berrigan, 482 F.2d 171 (3d
Cir. 1973) (transmit.al of letters to prison inmate incor-
rectly believed to be without warden's knowledge).
The claim is unavailing here for the basic reason that
the crime charged did occur. The indictment charged and
the evidence established that Thompson received a bribe
in return for his corrupt promise to take official action.
That suffices to constitute a violation of § 201(c). United
States v. Brewster, supra, 408 U.S. at 525-26. Whether the
promise was carried out is irrelevant, /d. at $27, and it is
no defense that the promise could not have been carried
out either because the official act to be taken was beyond
the defendant's authority, United States v. Carson, 464
58a
F.2d 424, 433 (2d Cir.), cert. denied, 409 U.S. 949 (1972);
United States v. Heffler, 402 F.2d 924 (3d Cir. 1968), cert.
denied, 394 U.S. 946 (1969), or had already been taken,
United States v. Arroyo, supra, 581 F.2d at 653-57; of.
United States v. Rosner, supra, (18 U.S.C. § 201(b),
punishing the bribe-payer, is violated whether or not
purpose of the bribe is capable of attainment); United
States v. Jacobs, supra, 431 F.2d at 759 (same).= Neither
is it a defense that the public official will not be called
upon to take official action because of the fictitious
nature of the person alleged to be seeking assistance,
“Official act” is defined as action on any matter that
“may at any time be pending” before a public official, 18
U.S.C. § 201(a). Introducing a private immigration bill
qualifies as an “official act,” whether or not the benefi-
ciary of such a bill is a real person. It was not necessary
for the investigators to continue Abscam to the point of
having bills introduced, conduct that would, in any event,
have been immunized by the Speech or Debate Clause.
See United States v. Johnson, 383 U.S. 169, 180 (1966).
2 = Thompson relies on United States v, Reisiey, 35 F. Supp. 102 (D.N.J.
1940), in which Circuit Judge Maris, sitting in the District Court,
upheld a defense to an indictment charging violation of 18 U.S.C,
§ 203 (1934), a conflict of interest statute that preceded 18 U.S.C,
§ 28) (1958) and 18 U.S.C. € 203 (1976). An employee of the Veterans
Administration had received money for promising to effect an increase
in the payor's benefits. In fact, the increase had already occurred
without any action by the defendant, Reisiey viewed the offense as
accepting payment for services rendered, and acquitted the defendant
since in fact services had not been rendered. Even if that decision is
correct as to a conflict of interest violation, its force as applied to a
bribery violation is negated by the explicit Congressional recognition,
expressed by the House Committee on the Judiciary when the current
bribery statutes were revised in 1962, that “it is the purpose for which
the recipient knows the bribe is offered or given when he solicits,
receives, OF agrees to receive it which is determinative of criminality.”
H. Rep. No, 748, 87th Cong., 1st Sess. 18 (1961), The House Report
cited approvingly to Whitney v. United Siates, 99 F.2d 327, 33) (10th
Cir. 1938), which had construed an early bribery stature, 18 U.S.C,
§ 207 (1934), contrary to Reis/ev's view of a conflict of interest statute.
59a
2(a). Jury Instructions — Element of Receipt.
Thompson and Murphy both challenge portions of the
jury instructions. One claim, applicable to all of the
substantive counts, attacks Judge Pratt’s supplemental
instruction, In response to a jury inquiry, concerning the
element of receipt of illegal payment. Understanding the
claim requires some elaboration of the pertinent circum-
stances. The counts of the indictment charging violations
of bribery, unlawful gratuity, and conflict of interest all
alleged receipt of money between October 10, 1979, and
February 2, 1980..The Government’s theory of the
Thompson-Murphy case was that the substantive offenses
committed by both Thompson and Murphy arose out of
the October 20 transaction involving Murphy and Criden,
not the October 9 transaction involving Thompson and
Criden. In its bill of particulars the Government alleged
that the $50,000 cash payment “was received by Criden
and Murphy on October 20, 1979. . . . Criden left the
meeting in physical possession of the money. The date on
which and the place where Murphy took physical posses-
sion of his share of the payment is [sic] unknown.” In
charging the jury initially with respect to the “receipt”
element of Count Two, the bribery offense, Judge Pratt
focused the jury’s attention on the issue of whether either
defendant had received a share of the $50,000 after the
October 20 meeting: “It is for you to determine based on
all of the evidence whether the Government has es-
tablished beyond a reasonable doubt that the money in
the briefcase transferred from Amoroso to Criden on
October 20th was for the benefit of and eventually re-
ceived by defendant Murphy or defendant Thompson or
both.” (Emphasis added.) The jury was told that this
“receipt” element also applied to the unlawful gratuity
and conflict of interest counts, and that a defendant who
60a
did not receive part of the money must be acquitted on all
the substantive counts.
The jury’s first inquiry on this issue read as follows:
Your Honor. If this question is in order—
If the briefcase was under the control of but not in
the physical possession of the defendant Murphy,
does [sic] that, under your charge, be considered
“for the benefit of an eventual reception by defen-
dant Murphy or defendant Thompson or both?[”]
Judge Pratt apparently thought that the jury mistakenly
understood that Murphy’s possession of the briefcase at
the October 20 meeting was a required aspect of a finding
of receipt by him. He therefore gave a supplemental
instruction that included the following:
In specific answer to your question, as | interpret it,
actual possession of the briefcase itself by Murphy
would not have to be shown before you could deter-
mine that he later received part of the money.
The correctness of this response is not challenged on
appeal. It soon became apparent that the jury had not
’ wondered whether Murphy’s actual possession on Octo-
ber 20 was required; they were making the more trenchant
inquiry as to whether his constructive possession on that
date was sufficient. Their subsequent note read as fol-
lows:
Your honor:
Some members of the jury feel it is possible that
defendant Murphy took “direction & control” of the
briefcase however momentarily by instructing Criden
to take physical possession, making Criden the “ex-
ecutor” of the money in a sense at that point.
6la
May we construe this tc be in satisfaction of
element one of Count 2 in lieu of “evenrually[”]
receiving the money at some later time? [Emphasis
original. j
This inquiry provoked an extended colloquy between
Court and counsel. Murphy contended that the inquiry
should be answered with a simple “no,” arguing that any
other response would unfairly alter the Government’s
theory of how the offense occurred. This concern was
heightened when the prosecutor, in urging that the proper
response was “yes,” pointed out that the bribery statute is
violated when a public official receives anything of value
either “for himself or for any other person or entity.”
Ultimately, Judge Pratt decided to steer a middle course,
rejecting a “no” answer and also rejecting the Govern-
ment’s effort to permit the jury to convict Murphy on the
theory that he was merely seeking to confer a benefit
upon Criden. Instead, Judge Pratt kept the jury’s atten-
tion focused on the crucial element of whether money was
received by Murphy and for his benefit, but permitted the
jury to consider whether receipt by Murphy was es-
tablished by his words and conduct at the October 20
meeting. First, he reminded the jury to focus on the
essential element of count Two, which he summarized as
being “that on or shortly after October 20, 1979, the
defendant received a sum of money.” He then endeavored
tO paraphrase the jury’s inquiry and respond to it:
When | said in the charge it is for you to determine
based upon all the evidence whether the Government
has established bevond a reasonable doubt that the
money in the briefcase transferred from Amoroso to
Criden on October 20th, was for the benefit and
62a
eventually received by the defendant Murphy, or
defendant Thompson, or both, when I use the term
“eventually,” there did 1 really mean eventually and
not then, October 20th[?]
And my answer to that is[:] you in applying this
element to the defendant Murphy, you may disregard
the term eventually. It is for you to evaluate what was
said, what happened, what the circumstances were,
and determine from that whether the defendant
Murphy received the money. [Emphasis added.]
Since the major factual dispute framed by Murphy’s
cross-examination and summation was whether Murphy
had any knowledge that money was in the briefcase,
Judge Pratt emphasized that the element of receipt could
not be established unless the jury found that Murphy_
knew that money was in the briefcase. He then recapitu-
lated his response in these words:
So my final answer to your question is: If you are
talking simply about the temporal aspect of this, the
timing now as opposed to eventually, the answer is
yes. You may construe those circumstances to be
receipt of money on or shortly after October 20,
1979, as that set forth in the element one of Count 2.
Significantly, the only criticism voiced by counsel after
hearing the supplemental instruction was to request that
one sentence of the response might have been misunder-
stood as altering the Government’s burden of proof as to
knowledge. Judge Pratt promptly recalled the jury and
reemphasized, as he had when the inquiry was first
answered, that the burden to prove Murphy’s knowledge
of the money beyond a reasonable doubt rested upon the
Government.
~- ~~ ti" iz
63a
The supplemental instruction presents no ground on
which either Murphy or Thompson may now complain.”
Judge Pratt’s response did not alter the requirement that
the money be received for the benefit of the defendant.*
Limiting himself to the precise point raised by the jury, he
broadened only the temporal aspect of receipt. He per-
mitted a finding of receipt not only at some point after
October 20 but also at the time of the October 20
meeting. This permitted the jury to find that Murphy had
constructively received the money for himself on October
Complaint is also made that Judge Pratt did not adequately alert
counsel to his proposed response before giving it to the jury. See
United States v. Ronder, 639 F.2d 931 (2d Cir. 1981). Although Judge
Pratt did not give counsel a verbatim version of his proposed response,
he held an extended colloquy with counsel, afforded both sides an
Opportunity to suggest their preferred responses, then outlined, in
summary fashion, th
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