Appendix — Frank Thompson, Jr. v. United States
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In The AN14 10
Supreme Court of the Gnited States
October Term, 1982
FRANK THOMPSON, JR.,
Petitioner
-VS.-
UNITED STATES OF AMERICA,
Respondent
APPENDIX FOR WRIT OF CERTIORARI TO THE
U.S. COURT OF APPEALS FOR
THE SECOND CIRCUIT
_ el
FRANK ASKIN
Counsel of Record
Constitutional Litigation Clinic
Rutgers Law School
15 Washington St.
Newark, N.J. 07102
(201) 648-5687
DANIEL H. POLLITT
University of North Carolina Law School
Chapel Hill, North Carolina 27514
Attorneys for Petitioner
PRINTINGHOUGE PRESS—(212) 719-3120
TABLE OF CONTENTS
INDEX
DECISION OF UNITED STATES COURT
OF APPEALS FOR SECOND CIRCUIT
DATED NOVEMBER 17, 1982 DENYING
PETITION FOR REHEARING ..........
DECISION OF UNITED STATES COURT
OF APPEALS FOR SECOND CIRCUIT
DATED SEPTEMBER 3, 1982 AFFIRM-
ING CONVICTION .....ceececcvveees
MEMORANDUM AND ORDER DENYING
DUE PROCESS AND OTHER POST-
TRIAL MOTIONS OF THE UNITED
STATES DISTRICT COURT, EASTERN
DISTRICT OF NEW YORK, DATED
SULT BR, I9GS wocccccsccccvcscces
DECISION OF U.S. COURT OF
APPEALS FOR THE SECOND CIRCUIT,
DATED AUGUST 8, 1980, IN UNITED
STATES v. MYERS .....ccccccceees
DECISION OF THE COURT OF AP-
PEALS FOR THE SECOND CIRCUIT,
DATED AUGUST 26, 1980, AFFIRMING
THE DENIAL OF A MOTION TO DIS-
MISS THE INDICTMENT ............
PETITION FOR REHEARING WITH
SUGGESTION FOR REHEARING EN BANC,
DATED SEPTEMBER 24, 1982 ......
Page
283a
la
DECISION OF UNITED STATES COURT OF
APPEALS FOR SECOND CIRCUIT DATED
NOVEMBER 17, 1982 DENYING PETITION
FOR REHEARING
August Term, 1981
(Submitted September 29, 1982
Decided November 17, 1982)
Docket No. 81-1345
>
UNITED STATES OF AMERICA,
Appellee,
_—Vo—
FRANK THOMPSON, Jr.,
Defendant-Appellant.
Before:
LUMBARD, FRIENDLY, NEWMAN,
Circuit Judges.
7
On Petition for Rehearing
NEWMAN, Circuit Judge:
On petition for rehearing, Thompson contends, among
other things, that the words he spoke to Criden at the
evening meeting at the W Street house on October 9,
$565
2a
1979, were “You look at that for me will you?” and not
“You look after that for me will you?” as reflected in the
panel’s opinion and in the Government’s version of the
videotape transcript given to the jury. At the request of
Thompson’s counsel we viewed the videotape of this
meeting. After viewing and hearing the videotape we
cannot be certain whether the disputed word was “at” or
“after.” If we give the defendant the benefit of the doubt,
this would surely have aided his argument to the jury that
he thought the briefcase transferred at the meeting con-
tained investment documents (to be looked at) rather than
money (to be looked after). But this interpretation of the
videotape would not alter the sufficiency of the evidence
on which the jury convicted nor our assessment of the
investigation fom purposes of rejecting the due process
challenges.
On the contrary, viewing the videotape reenforces our
conclusion that the events at the evening meeting on
October 9 reflect a contrived arrangement whereby
$50,000 was transferred pursuant to Thompson’s ground
rule, explained earlier in the day by Criden to Amoroso
and Weinberg, that money was not to be discussed. At the
very start of the meeting, Criden says, “Frank under-
stands the situation.” Criden then ceremoniously lifts the
briefcase from a table to his right and places it between
himself and Thompson without any conversation by any-
one concerning the briefcase or its contents. Amoroso
says, “There’s the briefcase,” pointing to it. Thompson
then says to Criden, “You look at that for me will you?”
The visual impact is of people handling and talking about
a briefcase containing something of importance, not sim-
ply drafts of documents for a lawyer’s perusal. Thomp-
son’s knowledge that the briefcase contained money is
supported by several circumstances. Later in the conver-
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sation Amoroso said the morning conversation had been
“shadow boxing,” to which Thompson replied, “Well,
you have to be careful.” The next day Criden told Cook
that he had handed Thompson $20,000 of the $50,000 in
the briefcase. Still later Thompson told Congressman
Murtha that there would be $50,000 in “walking around
money” for Congressmen willing to help.
The petition for rehearing is denied.
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DECISION OF UNITED STATES COURT OF
APPEALS FOR SECOND CIRCUIT, DATED
SEPTEMBER 3, 1982, AFFIRMING CON-
VICTION
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
—w-
UNITED STATES OF AMERICA,
Appellee,
_—V—
MICHAEL O. MYERS, ANGELO J. ERRICHETTI,
Louis JOHANSON, and HowarD L. CRIDEN,
Defendants-Appellants.
+
UNITED STATES OF AMERICA,
Appellee,
—
FRANK THOMPSON, Jr. and JOHN M. MurPHy,
Defendants-Appellanis.
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UNITED STATES OF AMERICA,
Appellee,
_V—
RAYMOND F, LEDERER,
Defendant-Appellant.
Before:
LUMBARD, FRIENDLY and NEWMAN,
Circuit Judges.
—§t-
Appeals from judgments of conviction entered in the
District Court for the Eastern District of New York
(George C. Pratt, Judge), after three separnte 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 all appellants, except Count Three (section 203(a))
of the indictment against John M. Murphy, which is
reversed and remanded for a new trial.
>
NEIL JOKELSON, Philadelphia, Pa. (Rochelle
Newman, Jokelson and Rosen, Phila-
delphia, Pa., on the brief), for defen-
dant-appellant Myers.
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RAYMOND A, Brown, Newark, N.Y. (Henry F.
Furst, Newark, N.Y., on the brief), Sor
defendant-appellant Errichetti.
JOHN J. DurFy, 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-
Sendant-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, TiGar, Washington, D.C. (Sam-
uel J. Buffone, Linda Huber, Tigar, Buf-
fone & Doyle, Washington, D.C., on the
brief), for defendant-appellant Murphy.
EDWARD 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.
——
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NEWMAN, Circuit Judge:
In United States v. Myers, 635 F.2d 932 (2d Cir.), cert.
denied, 449 U.S. 956 (1980) (Myers 1), we ruled that the
Government had not violated the defendant’s constitu-
tional rights as a Member 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.
4600
For the reasons that follow, we have concluded that 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 influence.” The
conspiracy to violate section 201 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
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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 in a
matter 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, i980, 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, Joharson, and Criden, in a four-count
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indictment. Three of the counts paralleled the conspiracy,
bribery, and interstate travel counts of the Myers’ indict-
ment. In addition, a fourth count alleged receipt of an
unlawful gratuity by Lederer, in violation of 18 U.S.C.
§ 201(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, 1981. 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.
Count 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
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lla
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. Trial (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
these 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. § 4205ic)
(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).
4604
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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 Pennsylvania (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. Jannotti, 673 F.2d $78 (2d Cir. 1982) (en
banc), cert. denied, 50 U.S.L.W. 3903 (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. United Siates v. Kelly, $39 F. Supp. 363 (D.D.C. 1982),
appeal docketed, No. 82-1660 (D.C. Cir. June 15, 1982).
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“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, Ltd. “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.
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The general 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 Atian-
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
4607
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15a
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 day
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.
527 F. Supp. at 1209-10.
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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
rapidly 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 substantia!
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
law 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.
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17a
The Payment to Myers. The first meeting with Myers
took place on August 22, 1979, at the Travelodge Interna-
tional Hotel near Kennedy Airport on Long Island.
Myers, Johanson, Criden, and Errichetti drove from New
Jersey and Pennsylvania 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 I 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.” At the end of the meeting Amoroso
handed Myers an envelope containing $50,000 in $100
bills. Amoroso said, “Spend it well”; Myers replied,
“Pleasure.”
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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.
4611
19a
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 Myers, that
nothing would ever have to be done for the sheiks in
connection with immigration. According to Myers, 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
4612
20a
legislation,” Lederer replied, “Right, a bill. Private bill.
Sure.” Lederer then raised a concern that people might
ask, “Why all at once does a 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, ‘‘I
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 Tria/. 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. In Septem-
ber, 1979, Criden met Silvestri, the New Jersey business-
man, in Florida and, knowing of Silvestri’s contacts
4613
2la
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 Sireet
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 Myers
4614
22a
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 would
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 have 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.
5 At trial the Government contended that 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
20 meeting.
4615
23a
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 employer
had said, “[T]ake 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 you 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.
4616
24a
On October 22, Criden, carrying the briefcase contain-
ing $50,000, 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.
4617
25a
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
“not in.” Later Amoroso spoke privately with Murphy. In
this conversation Murphy acknowledged the dangers of
speaxing about money and then, in the Government’s
view, engaged in playacting 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, “[YJou’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... . I 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
4618
26a
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.
Hil.
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
4619
27a
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, 461 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 I 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,
7 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.
4620
28a
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,” Sorre/ls
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
4621
29a
limited opportunity a defendant has to defend on the dual
grounds of non-involvement and entrapment, see United
States v. Valencia, 645 F.2d 1158, 1170-72 (2d Cir. 1980)
(amended 1981). They claimed only that bribery had not
occurred, the Myers 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
defense 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
4622
-_ “~-+@er +
30a
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,” United States 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
beyon legitimate role of law enforcement in detect-
ing cr & into a forbidden area of instigating crime.
e
8 ‘e , pellants sometimes refer to this claim as “entrapmeni as a
matter of law.” We prefer ‘o characterize it as a due process claim,
leaving the phrase “entra; nt as a matter of law” to describe the
claim that, with respect to a 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.
4623
3la
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 Myers case con-
tend that the Government agents, notably Weinberg,
“coached” Congressman Myers into committing the
crimes by having Errichett: 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 IJ). 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
4624
32a
U.S. at 495 n.7. Our own decision in Archer I/, 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., Watts v. Indiana, 338 U.S. 49
(1949), or outrageous violation of physical integrity, e.z.,
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 thai 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 vy. 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 Prati pointed out, Murphy's conduct is more accurately
described as the taking of money, rather than a bribe, since the jury
acquitted him of the bribery offense and convicted him of accepting an
unlawful gratuity, $27 F. Supp. at 1225 n. 14,
4625
33a
McQuin, 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 normal 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 well of course I’im 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
4626
34a
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 feared would
be incriminating. Then in the afternoon Criden met first
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,
4627
35a
Government proved beyond a reasonable doubt 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 Myers 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
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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 bullshit.
And that’s it, it goes no further, it’s all talk, all
bullshit. That’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
iN We intimate no opinion with respect to the effect of this episode on
Senator Williams’ appeal from his conviction.
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37a
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 ancther 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. 527 F. Supp. at
1245-47. Professional rivalry may have been afoot, but our review of
the record inclines us to think that Piaza and Weir were expressing in
good faith concerns based largely on their sense of the proper adminis-
tration of justice.
4630
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joking matter.” To put it mildly, this is an odd subject for
humorous bantering.
Not having heard the participants who testified about
the August 9 meeting, we are in no position to assess
credibility 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.” Jd. 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, 645 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 States v. Buie, 407 F.2d 90S, 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, 3\7 F.2d 127, 128 (D.C. Cir. 1963). Appel-
lants’ 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
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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
middleman’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. 986 (1976). See generally United States v. valencia, supra, 645
F.2d at 1178 (explication of Reed facts).
\4 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.
is 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.
4632
40a
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-payer,"* it is not
surprising that the appellate reports have not dealt explic-
itly with the claim. The statute proscribes the corrupt
receipt of money by 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 201(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 States 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 either was beyond his authority, see, ¢.g.,
United States v. Carson, 464 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, see, é.2.,
United States v. Arroyo, $81 F.2d 649, 6$3-57 (7th Cir. 1978), cert.
denied, 439 U.S. 1069 (1979).
4633
4la
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,
e.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 Federal Reporter to which the
7 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).
4634
42a
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, 581 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.” Jd. at 151. With
respect to the bribery statute, we believe the defense of
fraud is equally unavailable." If Myers was “playacting”
18 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 v. Johnson, 383 U.S. 169
(1966), evidence that would frequently be highly probative of whether,
at the time of the bribe, the Member intended to take official action. It
4635
43a
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 United States v. Brewster, $06
F.2d 62, 70-76 (D.C. Cir. 1974); United States v. Irwin, 3$4 F.2d 192,
198-96 (2d Cir. 1965), cert. denied, 383 U.S. 967 (1966). We do not give
controlling weight to such dicta, since they were expressed without any
need to consider the bizarre defense that the bribe-taker did not intend
to keep his corrupt promise. Consequently, the opinions had no
Occasion to discuss the 1962 House Judiciary Committee Report,
which is so pertinent to the claim in this case.
4636
44a
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. Revnoso-Ul-
loa, 548 F.2d 1329 (9th Cir. 1977), cert. denied, 436 U.S.
926 (1978). Whatever conduct might transgress 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
4637
45a
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
genera! 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
4638
46a
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 sirnulate the guarded conversation that would
be expected of those proposing an unlawful venture. C/,.
United States v. Reynoso-Ulioa, 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
4639
47a
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
Congressman 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
4640
48a
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.
4641
49a
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-
uents. 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
4642
50a
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 v.
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 trial that he thought the
sheik's representatives were making a donation to his campaign. His
sole defense was entrapment.
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5la
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-
gations 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
4644
52a
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 event, 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
4645
53a
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
$350 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.
= * e & s
Having considered all of appellants’ claims that the
investigation violated the standards of the Due Process
4646
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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.),
2! 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 claim 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 preclude 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.
4647
55a
vacated mem., 429 U.S. 909, reinstated, 547 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 Pay-
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 chalienge 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
4648
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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.
81-1017 (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
4649
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merit. It 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
4650
58a
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 ef 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
4651
59a
(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
v. Karas, 624 F.2d 500, 503 n.2 (4th Cir. 1980), cert.
denied, 449 U.S. 1078 (1981). In this Circuit, the “ready
and willing” phrase has been repeatedly used. E£.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.11 & 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, /.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. Cf. 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).
4652
60a
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.E. 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 thought it had. E.g., United States
v. Oviedo, 525 F.2d 881 (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) (transmittal 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, id. at 527, 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
4653
6la
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; ef.
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).
el
22 Thompson relies on United Srates 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.
§ 281 (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. Reis/ev 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, Or agrees to receive it which is determinative of criminality.”
H. Rep. No. 748, 87th Cong., Ist Sess. 18 (1961). The House Report
cited approvingly to Whuney v. United States, 99 F.2d 327, 331 (10th
Cir. 1938), which had construed an early bribery statute, 18 U.S.C.
§ 207 (1934), contrary to Reis/ev's view of a conflict of interest statute.
4654
62a
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
4655
63a
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 I interpret it,
actual possession of the briefcase itself by Murphy
wouid 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.
4656
64a
May we construe this to be in satisfaction of
element one of Count 2 in lieu of “eventually[{")
receiving the money at some Jater time? [Emphasis
original.]
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 I said in the charge it is for you to determine
based upon all the evidence whether the Government
has established beyond a reasonable doubt that the
money in the briefcase transferred from Amoroso to
Criden on October 20th, was for the benefit and
4657
65a
eventually received by the defendant Murphy, or
defendant Thompson, or both, when I use the term
“eventually,” there did I 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.
4658
66a
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
Ociober 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
23
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, the response he proposed to give, and thereafter
allowed counsel to make further argument. There is no basis for
procedura! complaint, especially in view of the fact that counsel's
remarks, after hearing what Judge Pratt proposed to do, questioned
only the substance of the response and offered no suggestion that
might improve its wording.
Murphy was acquitted on the bribery count and therefore challenges
the supplemental instruction only as it may have affected the element
of receipt for the unlawful gratuity and conflict of interest counts, the
substantive counts on which he was convicted. Since we conclude that
the supplemental instruction did not alter the prosecution's obligation
to prove that Murphy must be shown to have received the money for
his benefit, we are willing to assume, for the sake of argument, that,
though the jury's inquiry mentioned only Count Two, they understood
the response also to apply to the receipt element of the counts charging
an unlawful gratuity and a conflict of interest. In his initial charge,
Judge Pratt had told the jury that the element of receipt as to bribery
applied equally to the other substantive offenses. Section 201(g),
punishing receipt 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), punishing bribery. We are also willing to
assume, for the sake of argument, that section 203(a), punishing
conflict of interest, is limited to receipt of compensation by and for the
public official, though this point is somewhat doubtful. Cf United
States v. Shirey, 389 U.S. 288 (1989) (construing 18 U.S.C. § 214
(1988) (now 18 U.S.C. § 210 (1976)).
4659
67a
20 and had permitted Criden to take physical possession,
presumably with the expectation that at some point
Murphy would regain physica! possession of a portion of
the money, even if the occurrence of that last step was not
found to have been established.” The jury wanted to
know if receipt could be found to have occurred on
October 20, and Judge Pratt correctly told them that it
could. Since the principally disputed issue as to Murphy
was whether he knew there was any money in the brief-
case on October 20, it is difficult to see how the defense
would have acted differently if it had been specifically
alerted to a theory of receipt on October 20, a theory
that, in any event, was comprehended by the bill of
particulars. In arguing the point on appeal, Murphy
makes no showing of any prejudice from the supplemen-
tal instruction. Thompson likewise offers no theory of
prejudice as to him. The jury’s question and the Court’s
response both related explicitly to Murphy, leaving unva-
ried in any respect the initial instruction that the jury
must find Thompson to have received his share of the
October 20 payment sometime after the meeting.
Murphy contends that the instruction permitted the
jury to find receipt on a theory of constructive possession
without adequate guidance as to the standards governing
that concept. That complaint cannot be made now.
Counsel had ample opportunity after hearing both the
substance of Judge Pratt’s proposed response and the
25 Early in the colloquy with counsel, Judge Pratt had suggested that it
would be “kind of a far-out view” if the jury thought that on October
20, Murphy “really didn't accept [the money] for his own benefit” and
was “giving it up to Howard Criden with no further claims on it.” On
appeal counsel dwell un this characterization, overlooking the fact that
the supplemental instruction that Judge Pratt decided to give did not
permit the jury to abandon the requirement that Murphy must receive
the money for his own benefit.
4660
68a
delivery of the response to suggest additional language
explicating constructive possession. If the jury’s approx-
imation of the concept evident from the text of their
inquiry required refinement, the opportunity for amplifi-
cation was available to the defendants both before and
after the instruction was given. This is not the first time
that a jury’s question has insightfully gone to the heart of
a matter. Judge Pratt’s handling of the episode was
admirable under the circumstances.
2(b). Jury Instructions—the Section 203(a) Offense.
Murphy challenges the jury instruction concerning the
elements of Count Three, the so-called conflict of interest
offense, 18 U.S.C. § 203(a). His principal point is that
section 203(a) proscribes receipt of payment for rendering
only “representational” services before government agen-
cies, whereas the District Court’s instruction permitted
the jury to find a violation for rendering services of a
broader nature including merely giving advice.” The
claim requires consideration of the structure of the text of
section 203(a), which reads as follows:
Whoever, otherwise than as provided by law for
the proper discharge of official duties, directly or
indirectly receives or agrees to receive, or asks, de-
mands, solicits, or seeks, any compensation for any
services rendered or to be rendered either by himself
or another—
26 Murphy also contends that the charge was deficient in not specifying
as an element of the offense that the proceeding in relation to which
services are rendered be pending before a governmental forum. How-
ever, the statute contains no requirement of a proceeding pending at
the time compensation is received. United States v. Evans, $72 F.2d
455, 481 (Sth Cir.). cert. denied, 439 U.S. 870 (1978); United States v.
Johnson, 337 F.2d 180, 196 (4th Cir. 1964), aff'd, 383 U.S. 169 (1966).
4661
69a
(1) at a time when he is a Member of Con-
gress, Member of Congress Elect, Delegate from
the District of Columbia, Delegate Elect from
the District of Columbia, Resident Commis-
sioner, or Resident Commissioner Elect; or
(2) at a time when he is an officer or em-
ployee of the United States in the executive,
legislative, or judicial branch of the Govern-
ment, or in any agency of the United States,
including the District of Columbia,
in relation to any proceeding, application, request
for a ruling or other determination, contract, claim,
controversy, charge, accusation, arrest, or other par-
ticular matter in which the United States is a party or
has a direct and substantial interest, before any
department, agency, court-martial, officer, or any
civil, military, or naval commission, [shall be
punished].
From the standpoint of grammar, the issue is whether
the phrase “before any department, ‘agency, court-mar-
tial, officer, or any civil, military, or naval commission”
modifies the category of covered proceedings or the
category of covered services. The placement of the “be-
fore” phrase adjacent to the category of covered proceed-
ings is some indication that only the immediately preced-
ing category was intended to be modified. But this struc-
tural point is not so compelling as to preclude examina-
tion of legislative history. The Report of the Senate
Committee on the Judiciary describes the predecessor
statute, 18 U.S.C. § 281 (1958), as prohibiting Members
of Congress and officers and employees of the Govern-
ment “from receiving compensation for services rendered
4662
70a
for others before a Federal department or agency in
matters in which the Government is a party or is in-
terested.” S. Rep. 2213, 87 Cong., 2d Sess. 9, reprinted in
1962 U.S. Code Cong. & Ad. News 3852, 3858. In section
281 the “before” phrase had appeared in the same posi-
tion as it does in section 203(a), yet the drafters of the
Senate Report apparently thought the phrase modified
the services rendered. The Report points out that section
203(a) continues the restraint of the prior section “in full
effect” with one exception not here pertinent. Jd. The
Report of the House Committee on the Judiciary contains
two references to our problem; unhappily each points in a
different direction. The summary of provisions, like the
Senate Report, describes the predecessor statute, section
281, as prohibiting receipt of compensation “for services
rendered before Federal agencies” in matters in which the
United States has an interest. H. Rep. No. 748, 87th
Cong., Ist Sess. 9 (1961). However, the section-by-section
analysis describes former section 281 as prohibiting re-
ceipt of compensation “for services in relation to any
matter in which the United States is interested and which
is before any Government agency.” /d. at 19. Our uncer-
tainty remains.
Fortunately, section 203(a)'s statutory genealogy pro-
vides significant clues to its meaning. In 1864, Civil War
scandals involving corrupt use of influence prompted
Congress to pass section 203(a)’s earliest predecessor, a
Statute barring Members of Congress and federal employ-
ees from receiving compensation for rendering services in
governmental proceedings before federal departments,
agencies, and military commissions. Act of June 11,
1864, ch. 119, 13 Stat. 123.° Although the language of
2 See Ass'n of the Bar of the City of New York, Conflict of Interesi
and Federal Service 40 (1960).
4663
(Footnote continued)
7la
this early statute shares the grammatical ambiguity of
current section 203(a), the legislative debate that sur-
rounded its passage reveals that Congress was primarily
concerned with government officials’ being paid to bring
their influence to bear on federal agencies. According to
Senator Trumbull, Chairman of the Senate Judiciary
Committee, the statute was designed “to prevent Repre-
sentatives and Senators in Congress and officers of the
government who are paid for their services from receiving
a compensation for advocating claims in the Departments
and before the bureaus of Government.” Cong. Globe,
38th Cong., Ist Sess. 561 (1864).
In interpreting the more recent predecessors of section
203(a), modern courts and commentators have agreed
that an essential element of the offense is some appear-
ance before, or at least contact with, a federal department
by the accused official. In United States v. Adams, 115 F.
Supp. 731, 735 (D.N.D. 1953), appeal dismissed, 209 F.2d
954 (8th Cir. 1954), a District Court dismissed an indict-
ment based on 18 U.S.C. § 281 (1952), section 203(a)’s
The original statute read as follows:
{N]o member of the Senate or House of Representatives shall, after
his election and during his continuance in office, nor shall any head
of a department, head of a bureau, clerk, or any other officer of the
government receive of agree to receive any compensation what-
soever, directly or indirectly. for any services rendered, or to be
rendered, after the passage of this act. to any person, either by
himself or another, in relation to any proceeding, contract, claim,
controversy, charge, accusation, arrest, or other matter or thing in
which the United States is a party, or directly or indirectly in-
terested, before any department, court-martial, bureau, officer, or
any civil, military, or naval commission whatever.
The statute was recodified in essentially the same form in R.S. § 1782
(1873). Later, it was modestly revised and amended by Act of Mar. 4.
1909, ch. 321, § 113, 35 Stat. 1088, 1109. Afterwards, it was recodified
at 18 U.S.C. § 203 (1926) where it remained until the 1948 revision of
the federal criminal laws placed it, along with some minor amend-
ments, at 18 U.S.C. § 281 (1982).
4664
72a
most recent predecessor, because the indictment failed to
allege that the defendant’s services were to be rendered
before a federal department. Accord United States v.
Waldin, 122 F. Supp. 903, 904 (E.D. Pa. 1954).* A review
of the legislative history and cases has led a knowledge-
able commentator in this area to conclude that under
section 203(a), and all its predecessors, “criminal penalty
attaches to a government employee’s compensated ser-
vices if, and only if, the services are performed in particu-
lar designated forums.” B. Manning, Federal Conflict of
Interest Law 55 (1964). This background suggests that
section 203(a) should be limited to services rendered
before federal agencies—the mischief toward which the
Statute was directed—and not miere advice concerning
agency proceedings.
A further consideration favoring this construction is
the hazards created by a broader interpretation. Since a
Member of Congress is entitled to appear before courts,
even On matters in which the United States has an
24 ~—s In most of the cases interpreting section 203(a), the defendants had
actually rendered services before a federal agency. See, ¢.g., Burton v.
United States, 202 U.S. 344 (1906); May v. United States, 17§ F.2d 994
(D.C. Cir.), cert. denied, 338 U.S. 830 (1949); United States v.
Johnson, 419 F.2d 56 (4th Cir. 1969), cert. denied, 397 U.S. 1010
(1970). It is Of interest, though not decisive, that some of these
decisions describe the statute as prohibiting the rendering of services
before a federal department. In Burton, the Supreme Court, upholding
the constitutionality of R.S. § 1782 (1873), a predecessor of section
203(a), referred to the authority of Congress to make it an offense for
a Senator to receive compensation “for services to be rendered or
rendered to any person, before a department of the government, in
relation to a proceeding” in which the United States has an interest.
202 U.S. at 365: see also United States v. Johnson, 215 F. Supp. 300,
316 (D. Mu. 1963) (‘The words ‘before any department, agency,’ etc.
refer to where the services have been rendered or are to be rendered,
not where the proceeding or other matter is pending."’), aff'd on other
grounds, 337 F.2d 180, 196 (4th Cir. 1964), aff'd, 383 U.S. 169 (1966):
United States v. Booth, 148 F. 112, 119(C.C.D. Or. 1906) (‘the service
must be performed, ‘before any department [etc.]' "’).
4665
73a
interest, see, e.g., United States v. Waldin, supra; United
States v. Quinn, 111 F. Supp. 870 (E.D.N.Y. 1953), he
may encounter a situation where a matter concerning his
client merits court challenge but requires prior exhaustion
of administrative remedies. Unquestionably the Member
would be barred by section 203(a) from handling the
matter before the administrative agency, and some courts
apparently believe that section 203(a) prevents a govern-
ment official from plea-bargaining with the Justice De-
partment when the official is representing a criminal
defendant. See Chudoff v. McGranery, 179 F.2d 869 (3d
Cir. 1950). But see United States v. Johnson, 215 F. Supp.
300, 315 (D. Md. 1963), aff’d on other grounds, 337 F.2d
180 (4th Cir. 1964), aff’d, 383 U.S. 169 (1966). But, under
the Government’s view in the instant appeal, a federal
official would also violate section 203(a) if the official, in
the course of counseling his client, advised him to obtain
additional counsel for representation before a federal
department or agency. It seems unlikely that Congress,
having framed section 203(a) to allow Members of Con-
gress to represent clients in court, intended the statute to
reach so far as to raise the prospect of a criminal
violation when thé lawyer-legislator counsels his client.
The Government suggests that a broad reading of
section 203(a) is supported by a comparison of its terms
with those of 18 U.S.C. § 205, set out in the margin,”
29
Whoever, being an officer or employee of the United States in the
executive, legislative, or judicial branch of the Government or in
any agency of the United States, including the District of Columbia,
otherwise than in the proper discharge of his duties—
(1) acts as agent or attorney for prosecuting any claim against
the United States, or receives any gratuity, or any share of or
interest in any such claim in consideration of assistance in the
prosecution of such claim, or
(Footnote continued)
4666
74a
which explicitly covers representational activities. Section
205 applies only to officers or employees of the United
States and not to Members of Congress. It covers the
identical category of proceedings described in section
203(a). Its list of forums is similar to that in section
(2) acts as agent or attorney for anyone before any department,
agency, court-martial, officer, or any civil, military, or naval
commission in connection with any proceeding, application,
request for a ruling or other determination, contract, claim,
controversy, charge, accusation, arrest, or other paiticular mat-
ter in which the United States is a party or has a direct and
substantial interest—
Shall be fined not more than $10,000 or imprisoned for not more
than two years, or both.
18 U.S.C. § 205 (1976). Section 205(1)'s earliest statutory forebear was
enacted in 1853. It read:
[Ajny officer of the United States, or person holding any place of
trust or profit, or discharging any official function under, or in
connection with, any executive department of the Government of
the United States, or under the Senate or House of Representatives
of the United States, who, after the passage of this act, shall act as
an agent or attorney for prosecuting any claim against the United
States, or shall in any manner, or by any means. otherwise than in
the discharge of his proper official duties, aid or assist in the
prosecution or support of any such claim or claims, or shall receive
any gratuity, or any share of or interest in any claim from any
claimant against the United States, with intent to aid or assist, or in
consideration of having aided or assisted, in the prosecution of such
claim, shall be liable to indictment, as for a misdemeanor, in an
court of the United States having jurisdiction thereof, and. on
conviction, shall pay a fine not exceeding five thousand dollars, or
suffer imprisonment in the penitentiary not exceeding one year, or
both, as the court in its discretion shall adjudge.
Act of Feb. 26, 1953, ch. 81, § 2, 10 Stat. 170. This statute was
recodified in essentially the same form in R.S. § 5498 (1873). Later, it
was amended by Act of Mar. 1, 1901, ch. 670, § 1, 31 Stat. 844, and
Act of Mar. 4, 1909, ch. 321, § 108, 35 Stat. 1088, 1107-08. Af-
terwards, it was recodified at 18 U.S.C. § 198 (1926), recodified again
at 18 U.S.C. §§ 198, 198a (1934), and amended once more by the 1948
revision of the federal criminal laws. Finally, it was codified at 18
U.S.C. § 283 (1952).
This statute was most recently revised in 1962. Act of Oct. 23, 1962,
Pub. L. 87-849, § l(a), 76 Stat. 1122. The verbosity of previous
versions was eliminated, and section 205(2) was added.
4667
75a
203(a) with the notable addition of “courts.”” But section
205 differs markedly from section 203(a) in two respects.
First, section 205 prohibits conduct whether or not per-
formed for compensation, whereas section 203(a) pro-
hibits only conduct rendered for compensation. Second,
and central to the Government’s argument, section 205
prohibits an official from acting “as agent or attorney for
anyone,” whereas section 203(a) prohibits rendering “any
services.” From this latter difference the Government
argues that Congress intended section 203(a) to proscribe
a wider range of services than the representational ser-
vices proscribed by section 205. The argument has some
force, but is not decisive. Even as to officers or employees
of the United States, who are covered by both statutes,
the conduct proscribed by section 203(a) could be limited
to services rendered before federal agencies, without com-
pletely duplicating the prohibition of section 205. Section
203(a) would then cover any contact made with an
agency, whether or not the official was acting as agent or
attorney, as specified in section 205.
The legislative history of section 205 undermines the
Government’s claim of a clear-cut distinction between
sections 205 and 203(a). A House Report accompanying
the 1962 revision of the federal! conflict of interest laws
states that the purpose of section 205 is to prevent federal
employees “from using actual or supposed influence in
support of private causes.” H.R. Rep. No. 748, 87th
Cong., Ist Sess. 21 (1961). The Report recognized that
“section 281 [now section 203(a)} prohibits conduct of
this nature when compensated,” but added that “it is
30 = The combined effect of omitting Members of Congress from section
205 and omitting courts from the forums listed in section 203(a), which
applies to Members of Congress, permits Members of Congress to
appear before courts.
4668
76a
important that this type of representative activity be
prohibited when it is not compensated.” Jd. (emphasis
added). This suggests, contrary to the Government’s
contention, that the conduct prohibited by sections 203(a)
and 205, both of which apply to federal employees, is
similar. Both involve using actual or supposed influence,
with section 205, but not section 203(a), requiring a
formal representational role. As pointed out in a Justice
Department memorandum of which Congress has taken
note, “[W]hile section 203 is controlling as to Members of
Congress, for all practical purposes section 205 com-
pletely overshadows section 203 in respect of officers and
employees of the Government.”"’ Memorandum of Attor-
ney General—Standards of Ethical Conduct for Govern-
ment Officers and Employees, Exec. Order No. 11,222
(1965), reprinted in 18 U.S.C. § 201 note, at 1025-32
(1976). If section 205 in fact largely duplicates section
31 Significantly, this memorandum describes section 203(a) as prohibit-
ing Members of Congress and government employees from receiving
compensation “for services rendered on behalf of another person
before a Government department.” 18 U.S.C. § 201 note, at 1028.
The parties call our attention to other views previously expressed by
the Department of Justice, of which Congress has taken note. Murphy
cites a Senate Judiciary Report that includes the following: *‘The
Department of Justice has, however, followed the more restrictive
interpretation that the services rendered for compensation by the
public servant must be representational in nature and not merely in the
form of advice or assistance in writing contracts and the like."’
Criminal Code Reform Act of 1977: Report of the Senate Judiciary
Comm., S. Rep. No. 95-605, 95th Cong., Ist Sess. pt. 1, at 403 (1977).
The Government cites the following statement, submitted by the
‘Department of Justice to a House Judiciary Subcommittee: **[AJny
utilization of official position to serve a private client, whether to
influence the action of others or not, seems within the ban of the
statute."’ Memorandum of the Office of Legal Counsel! for the Attor-
ney General (Dec. 10, 1956), seprinited in Federal Conflict of Interest
Legisiation: Hearings Before the Antitrust Subcomm. of the House
Comm. on the Judiciary, 86th Cong., 2d Sess., ser. 17, pt. 2, at 645-46
(1960).
4669
77a
203(a), as applied to federal employees, the Government
cannot now argue that the two sections have two entirely
distinct purposes.
The Government finally contends that section 203(a)
should be broadly read to make sure that Members of
Congress do not receive any extra compensation for
rendering advice on governmental matters, advice that
falls within their obligations to their constituents and the
public generally. If Congress were to legislate that
broadly, it would have to clarify the line between permis-
sible legal practice and illegal advice on governmental
matters.” Under all the circumstances, though we cannot
be certain what Congress had in mind in the original
enactment in 1864 or the revision in 1962, we think it
sounder to construe section 203(a) to reach only services
performed or to be performed before the federal forums
listed in the statute.
This interpretation, however, is not quite as limited as
the “representational” role urged by Murphy. It includes,
in the words of the statute, “any services. . . in relation
to” the proceedings listed in the statute so long as the
services are compensated and are rendered “before” the
listed forums, whether or not the Member of Congress
formally appears as attorney or agent. And, of course,
informal contacts, as well as formal appearances, are
proscribed.
32 To a considerable extent, the Government's concern that Members
of Congress should not be permitted to accept extra compensation for
performing their duties is met by the provisions of the unlawful
gratuity statute, 18 U.S.C. § 201(g) (1976), which formed the basis for
Murphy's conviction on Count Five. Though that statute is broad in
scope, it is limited to receipt of payment because of “any official act”
performed or to be performed, and does not extend to the giving of
advice, which the Government would include under § 203(a).
4670
78a
In the Thompson-Murphy trial, Judge Pratt, over the
objection of Murphy,” gave the jury a broad definition of
the “services” element of a violation of section 203(a).
Rather than limit the term “services” to those to be
performed “before” a federal agency, as we construe the
Statute to require, he told the jury that the term could
include “a wide variety of services such as giving advice
about [i]mmigration, how to delay deportation, how to
improve one’s chances of remaining in the country
. .. .” The summation on behalf of Murphy had ar-
gued, based on some of the phrases he used at the
October 20 meeting, that he was only advising the sheik’s
representatives to consult with Criden, who would handle
legal matters concerning immigration problems. Since the
charge erroneously permitted the jury to convict on
Count Three by considering this type of advice to be
covered by section 203(a), the conviction on that count
must be reversed. However, since the evidence was suffi-
33 The Government contends that Murphy waived objection to the
charge by not objecting after its delivery to the jury, as required by
Fed. R. Crim. P. 30. However, Murphy submitted a proposed instruc-
tion on section 203(a), which limited the prohibited services to “in-
terceding” with federal agencies and made clear that advising a person
to seek the advice of attorneys is not improper. “Interceding™ may
connote in some minds a more direct action than the rendering of
“any” services “before” a federal forum “in relation to” a proceeding
in which the United States has an interest. Nevertheless, the proposed
instruction, if not precisely correct, sufficiently alerted the District
Court to Murphy's well-taken point that giving advice is outside the
reach of the statute. Normally, the submission of a requested instruc-
tion is not sufficient to preserve for appeal complaint that the charge
as given failed to include it, see United Siates v. Fountain, 642 F.2d
1083, 1095 (7th Cir.), cert. denied, 642 U.S. 1083 (1981), but in this
case, Judge Pratt informed counsel, after considering and ruling upon
requested instructions at a charge conference, that their objections
voiced at that time would suffice to preserve issues for appeal, in lieu
of renewing claims for such instructions after the jury charge. In that
circumstance, the pre-charge objection to the denial of the requested
instruction satisfied Rule 30.
467)
79a
cient to permit a finding that Murphy had in fact ac-
cepted money for services to be rendered before federal
agencies or departments on immigration matters, the
Government is entitled to prosecute the section 203(a)
charge anew, if it is so advised.
3. Sufficiency of Evidence. Thompson challenges the
sufficiency of the evidence against him, contending that
the evidence failed to show that he received a portion of
the $50,000 transferred at the October 20 meeting with
Murphy and Criden and failed to show that he agreed to
take any official action. However, Cook testified that
Criden told him about delivering Thompson’s share to
the Congressman at a coffee shop shortly after October
20. Thompson’s meeting with Criden at the time and
place Criden had mentioned to Cook was corroborated
by eyewitness testimony. The jury was entitled to infer
from the October 9 transaction with Thompson and
Criden that Criden’s report to Cook was credible.
Thompson’s agreement to take official action on immi-
gration matters is fully established by his statements made
at the morning meeting on October 9, the meaning of
which is amplified by his statement to Congressman
Murtha that “all we have to do is help these two Arabs
get into the country perhaps sometime in the future.”
Murphy's challenge to the sufficiency of the evidence
claims that the prosecution did not prove his receipt of
money for his benefit. The Government maintains that
the evidence showed receipt by Murphy both at the
October 20 meeting when the briefcase containing
$50,000 was handed to Criden and at some point thereaf-
ter when Murphy obtained physical possession of his
share of the $50,000. We confine our attention to the
October 20 meeting, which is apparently what the jury
did, judging from their inquiry concerning constructive
4672
80a
possession. In the context of the events that preceded that
meeting, the episode could fairly be viewed by the jury as
satisfying the receipt element of both of the substantive
counts on which Murphy was convicted, unlawful gra-
tuity and conflict of interest.“ Criden and Thompson had
developed an arrangement whereby money would be
transferred by the sheik’s representative without the
necessity for Thompson physically to handle the briefcase
in the presence of Amoroso and Weinberg. Using guarded
conversation, Thompson and Criden would say only
enough to satisfy the sheik’s representatives that Thomp-
son was acknowledging receipt of money. The arrange-
ment, carried out on the evening of October 9, ended with
Amoroso indicating the briefcase and Thompson saying
to Criden, “You look after that for me will you?”
Thompson then recruited Murphy, and the jury was
entitled to infer, from the sequence of events and what
they saw on videotape, that at the October 20 meeting
Criden and Murphy were following the same arrangement
previously employed by Criden and Thompson. There
was just enough conversation about money to reassure
the sheik’s representatives that Murphy was acknowledg-
ing his awareness of a payment. Amoroso then moved the
briefcase toward the couch where Murphy and Criden
were seated, Criden said, “Why don’t you give that to
Jack?”, and Murphy replied, “Howard why don’t you
take care of that.”
34 As previously indicated, supra note 24, we are willing to assume, for
the sake of argument, that both section 201(g) and section 203(a)
require not only receipt of money but also receipt for the benefit of the
defendant. In his initial instruction to the jury, Judge Pratt had
explained that the “receipt” element of the bribery offense, section
201(c), required receipt for the benefit of the defendant and then
stated, “This is a common element, either directly or indirectly,. . . in
all of the substantive counts.”
4673
8la
This evidence entit'ed the jury to find that Murphy had
at that point received the money. Having struck an agree-
ment to accept money in return for assistance with the
immigration matter,” Murphy was in constructive posses-
sion of the money in the briefcase when he exercised the
authority to direct that Criden should take physical pos-
session of it. An illegal payment is sufficiently received
when the person who has agreed to receive it directs that
it be held by his “bag man.”” The evidence also permitted
the jury to find that Murphy received the money for his
own benefit. The contrary inference, that he was agreeing
to use his congressional influence in order to confer a
benefit solely upon Criden, is utterly implausible.
4. Evidentiary Rulings. Thompson contends that the
videotaping of his conversations with the undercover
agents violated rights protected by the Fourth Amend-
ment and, because he was a Congressman, also violated
the First Amendment and the doctrine of separation of
powers. The claim was not asserted at trial by a timely
motion to suppress, see United States v. Mauro, 507 F.2d
802 (2d Cir. 1974), cert. denied, 420 U.S. 991 (1975), and,
in any event, is without merit. Thompson’s conversations
with undercover agents in whom he chose to confide were
not privileged, and mechanical recordings of the sights
and sounds to which the agents could have testified were
3S Though the jury was apparently not sufficiently persuaded that
Murphy had agreed to take official action to convict him of bribery,
they were entitled to use his statements indicating agreement as
evidence of the context in which the handling of the briefcase was to be
assessed for purposes of determining receipt.
% The Government correctly points out that simply an agreement to
receive money, rather than actual receipt, would violate section 201(g)
and section 203. However, Judge Pratt instructed the jury that receipt
was required.
4674
82a
proper evidence. See United States v. White, 401 U.S.
745, 749-53 (1971); Lopez v. United States, 373 U.S. 427,
437-40 (1963); 18 U.S.C. § 2511(2)(c). Since the tapes
contained material evidence of criminal violations, they
were not immunized by the circumstance that Thompson
was a Congressman at the time the conversations oc-
curred. Cf. United States v. Nixon, 418 U.S. 683 (1974).
Thompson claims that the Speech or Debate Clause
bars the introduction into evidence of his private conver-
sations with Congressman Murtha on the floor of the
House of Representatives, in which he invited Murtha to
join the ranks of those accepting bribes. One would think
that a Congressman, even when grasping for objections
to a criminal conviction, would understand that the
Speech or Debate Clause accords immunity to what is
said on the House floor in the course of the legislative
process, Gravel v. United States, supra, not to whispered
solicitations to commit a crime.
Conclusion
In considering the myriad issues raised by these seven
appellants, we are not passing judgment on the wisdom of
the Abscam investigation, nor on whether the means by
which it was conducted conformed to internal administra-
tive standards of the Department of Justice or to other
standards that the Executive Branch might choose to
adopt or the Legislative Branch might require. Our task is
to determine whether the methods employed and the
conduct of the ensuing trials render the resulting convic-
tions invalid under the Constitution and laws of the
United States or whether they present one of those rare
occasions when we are authorized to vacate convictions in
4675
83a
the exercise of a limited supervisory power over the
administration of federal criminal justice.
The four Congressmen were caught on videotape in the
very act of committing federal crimes. There was suffi-
cient evidence of their guilt and that of the other defen-
dants. The conduct of the investigation, though subject to
some criticism, affords no basis for rejecting the convic-
tions. The pretrial proceedings conducted by Judge Mish-
ler and the trial and post-trial hearings conducted by
Judge Pratt were vigorous contests marked throughout by
the fairness, patience, and thoroughness of the District
Judges. We have carefully considered all of the appel-
lants’ claims, including those not discussed in this opin-
ion, and, with the exception of the attack upon the charge
as to section 203(a) in the Thompson-Murphy trial, we
find them all to be without merit, both for the reasons we
have set forth and for the further reasons detailed in
Judge Pratt’s comprehensive opinion denying post-trial
motions in the District Court. 527 F. Supp. 1206. We
reverse only the conviction of John Murphy on Count
Three of the indictment in No. 81-1346,” which we
remand for a new trial, and in all other respects all the
judgments appealed from are affirmed.
37. —s- The practical consequence is to reduce Murphy's aggregate fine fromm
$20,000 to $10,000.
4676
700—9-9-82 © USCA—6287
RECORD PRESS, INC., 157 Chambers St., N.Y. 10007 (212) 243-5775
84a
MEMORANDUM AND ORDER DENYING DUE
PROCESS AND OTHER POST-TRIAL MO-
TIONS OF THE UNITED STATES DIS-
TRICT COURT, EASTERN DISTRICT OF
NEW YORK, DATED JULY 24, 1981
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF org YORK
UNITED STATES OF AMERICA DOCKET NO. CR 80-
00249
~against-
MICHAEL O. MYERS
ANGELO J. ERRICHETTI
LOUIS C. JOHANSON and
HOWARD L. CRIDEN,
Defendants.
UNITED STATES OF AMERICA DOCKET NO. CR. 80-
00253
~against-
RAYMOND F. LEDERER
ANGELO J. ERRICHETTI
LOUIS C. JOHANSON and
HOWARD L. CRIDEN,
Defendants.
ag "ia OF AMERICA DOCKET NO. CR 80-
l
~against-
85a
FRANK THOMPSON, JR.
JOHN M. MURPHY
HOWARD L. CRIDEN and
JOSEPH SILVESTRI,
Defendants.
MEMORANDUM AND ORDER DENYING "DUE PROCESS"
AND OTHER POST-TRIAL MOTIONS
APPEARANCES:
UNITED STATES ATTORNEY
UNITED STATES DEPARTMENT OF JUSTICE
ORGANIZED CRIME STRIKE FORCE
by Thomas P. Puccio and Lawrence H. Sharf
Attorneys for the Government
35 Tillary Street
Brooklyn, New York 11201
HUNDLEY & CACHERIS, P.C.
by Plato Cacheris and Larry S. Gondelman
1709 New York Avenue, N.Y.
Washington, D.C. 20006
JOKELSON & ROSEN
by Neil Jokelson and Rochelle Newman
Attorneys for Defendant Michael O. Myers
215 South Broad Street
Philadelphia, Pennsylvania 19107
86a
BROWN, BROWN & FURST |
by Raymond A. Brown and Henry F. Furst |
Attorneys for Defendant Angelo J. Errichetti |
Gateway One
Newark, New Jersey 07102
JOHN J. DUFFY
Attorney for Defendant Louis C. Johanson
2800 Two Girard Plaza
Philadelphia, Pennsylvania 19107
MELROD, REDMAN & GARTLAN
by Richard Ben-Veniste and Neil I. Levy
Attorneys for Defendant Howard L. Criden
1801 K. Street, N.W.
Washington, D.C 20006
JAMES J. BINNS
Attorney for Defendant Raymond F. Lederer
2800 Two Girard Plaza
Philadelphia, Pennsylvania 19102
BONGIOVANNI & REAGOSO
Attorneys for Defendant Raymond F. Lederer
1411 Walnut Street, Suite 500
Philadelphia, Pennsylvania 19102
STEPHEN E. KAUFMAN
Attorney for Defendant Frank Thompson, Jr.
277 Park Avenue
New York, New York 10017
ARNOLD & PORTER
by Daniel A. Rezneck, Clifford D. Stromberg
and Robert N. Weiner
Attorneys for Defendant Frank Thompson, Jr.
1200 New Hampshire Street, N.W.
Washington, D.C. 20036
87a
TIGAR, BUFFONE & DOYLE
by Michael E. Tigar, Samuel J. Buffone
and Linda Huber
Attorney for Defendant John M. Murphy
1302 18th Street NW
Washington, D.C. 20036
1.
Il.
Ill.
IV.
VI.
TABLE OF CONTENTS
ABSCAM
THE SUBJECT CASES
A. US-v. Myers, Errichetti, Johanson
and Criden.
B. US v. Lederer.
C. US v. Thompson and Murphy.
PRETRIAL AND POST-TRIAL PROCEEDINGS
DEFENDANTS! CLAIMS
A. Claims of the Myers Defendants.
B. Thompson's Claims.
C. Murphy's Claims.
D. Lederer's Claims.
E. Claims of the Government.
GENERAL DISCUSSION OF BASIC LEGAL
CONCEPTS
A. Entrapment.
B. Outrageousness.
SPECIFIC DISCUSSION DF DEFENDANTS'
CLAIMS
89a
Table of Contents (cont'd.)
Genera! Nature of Abscam.
A.
l.
2.
3.
4,
5.
6.
Page
49
Objective Entrapment and Entrapment
as a Matter of Law.
Outrageous Government Conduct.
Selection of Targets.
Size of Inducements.
Need for Investigative Tactic.
Lack of Reliability.
Specific Operation of Abscam.
l.
2.
3.
4,
5.
6.
7.
8.
Inadequate Safeguards.
Missing Tapes.
Verbal Insulation.
Violations of Laws, Regulations,
and Guidelines.
"Red Flags."
Use of Middlemen.
Book-writing.
The "Asylum" Scenario.
Weinberg and his Conduct.
49
90a
1. Weinberg's Criminal Background. 93
2. Weinberg's Finances. 95
D. Miscellaneous Claims. 98
l. FBI Interview of Lederer 93
2. ‘Instructing Agents about Testimony. 99
3. Entrapment of Lederer. 102
4, Publicity Leaks. 102
Vil. JUDGE FULLAM'S DECISION IN US v. JANNOTTI
AND SCHWARTZ 105
Vill. DEL TUFO, PLAZA AND WEIR 113
IX. MOTIONS FOR JUDGEMENTS OF ACQUITTAL
AND NEW TRIALS 118
A. The Myers Motions. 118
B. Murphy's Motions 122
C. Thompson's Motion. 126
X. CONCLUSION 129
FOOTNOTES 132
9la
PRATT, J:
I. ABSCAM
"Abscam" is the code word given by the Federal Bu-
reau of Investigation to an undercover "sting" operation
conducted out of the FBI OFFICE AT Hauppauge, Long
Island, New York, under the supervision of agent John
Good. Abscam began after Melvin Weinberg in 1977 was
convicted in the Western District of Pennsylvania on his
plea of guilty to fraud. In return for a sentence of
probation Weinberg agreed to cooperate with the FBI in
setting up an undercover operation similar to the London
Investors, Ltd. "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 enterprise and crude
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