Appendix — MICHAEL O. MYERS v. UNITED STATES (Nos. 82-1255, 82-1183, 82-1187, 82-1199, 82-1240)

wn wd Office Supre Court, U.S.

ms 4, ' |: iy Ld

In The AN ys) 1983

Suprerme Court of the Mui

rd) States”

OCTOBER TERM, 1982

MICHAEL O. MYERS,

ANGELO J. ERRICHETTI,

LOUIS JOHANSON,

Petitioners,

THE UNITED STATES OF AMERICA.

APPENDIX FOR PETITIONERS

ALAN DEXTER BOWMAN

STEVEN H, GIFIS

One Palmer Square, Suite 410

Princeton, N.J. 08540

Attorneys for Petitioners,

Myers, Errichetti and

Johanson

ALAN DEXTER BOWMAN

STEVEN H, GIFIS

HENRY F, FURST

NEIL JOKELSON

ROCHELLE NEWMAN

On the Petition

RAYMOND A. BROWN

HENRY F. FURST

Brown, Brown & Furst, P.A.

Gateway One

Newark, N.J. 07102

Attorneys for Petitioner,

Errichetti

JOHN J, OUFFY

2800 Two Girard Plaza

Philadelphia, Pa, 19107

Attorneys tor Petitioner,

Johanson

NEIL JOKELSON

ROCHELLE NEWMAN

Jokelson & Rosen

215 South Broad Street

Philadelphia, Pa,

Attorneys tor Petitioner,

Myers

THE SUPERIOR APPELLATE PRINTING COMPANY

CRANBURY 4 OO8ta

TABLE OF CONTENTS

~~ APPENDIX

PAGE

Appendix A - Opinion of the United

States Court of Appeals for the Second

Circuit, Decided September 3, 1982.......... la

Appendix B - 5th Amendment of the

United States DGTEMNEEEDs cccceeccessececs see 162a

Appendix C - 18 U.S.C.S. §2 = Principals... 163a

Appendix D - 18 U.S.C.S. §1952 - Inter-

state and Foreign Travel or Transpor-

tation in aid of Racketeering enterprises... 164a

Appendix E - 18 U.S.C.S. §201 - Bribery

of Public Officials & Witnesses......ceeeeeees 166a

Appendix F = 18 U.8.6 eB. § 371 = Con-

Spiracy to commit offense or to defraud

United Dict he wae 66 eee e.8e6 se eeeeotseses 173a

la

APPENDIX A

UNITED STATES v. MYERS

Cite as 692 F.2d 823(1982)

UNITED STATES of America, Appellee,

Ve

Michael 0. MYERS, Angelo J. Errichetti,

Louis Johanson, and Howard L.

Criden, Defendants-Appellants.

UNITED STATES of America, Appellee,

Ve

Frank THOMPSON, Jr., and John M,

Murphy, Defendants-Appellants.

UNITED STATES of America, Appellee,

Vv.

Raymond F. LEDERER,

Defendant-Appellant.

Nos. 904 to 905, 906, 907, 840, 841 and

855, Dockets 81-1342 to 81-1347

and 81-1446,

United States Court of Appeais,

Second Circuit.

Argued April 5, 1982

Decided Sept. 3, 1982

Rehearing Denied in No. 81-1345

Nov. 17, 1982.

Defendants appealed from their convictions

in the United States District Court for the Eastern

District of New York, George C. Pratt, J., in

Abscam__ prosecutilon. The Court of Appeals,

2a

APPENDIX A

Newman, Circuit Judge, held that: (1) Govern-

ment's involvement in Aoscam operation was not

so excessive as to violate due process; (2) any

ambiguity arising from the manner in-— which

bribes were offered in Abscam operation was due

to observance of ground rules set by defendant

congressmen and did not violate due process; (3)

it was no defense that defendant congressman's

corrupt promise could not have been carried out

due to the fictitious mature of the persons

alleged to be seeking assistance; and (4) defen-

dant congressman could not be convicted of viola-

tion of statute prohibiting members of Congress

from receiving compensation for services rendered

in relation to any proceeding in which the United

States is interested merely by accepting money for

giving advice about immigration.

Affirmed in part and reversed and re-

manded in part.

See also D.C., 527 F. Supp. 1206.

3a

APPENDIX A

1. Criminal Law 37(3)

Entrapment defense exonerates a defendant

who engages in criminal behavior when the acti-

vity of government agents implants in the mind

of an innocent person the disposition to commit

the alleged offense and induces its commission;

but the defense of entrapment is not established

simply because government agents afford opportu-

nities or facilities for the commission of the

offense.

2. Criminal Law 772(6)

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 whether the re-

cord contains sufficient evidence from which a

reasonable jury can conclude beyond a reasonable

doubt that the prosecution has proved the defen-

dant's predisposition to commit the offense.

4a

APPENDIX A

3. Criminal Law 1030(3)

Defendant who fails to assert entrapment

as a factual defense at his trial cannot assert

it as a legal defense to his conviction,

4. Criminal Law 569

Evidence in Abscam prosecution entitied

jury to find defendant congressman's predisposi-

tion to accept a bribe beyond a reascnable doubt,

18 U.S.C.A. § 201,

5. Constitutional Law 257.5

Government's involvement in abscam opera-

tion was mot 80 excessive as to violate due pro-

cess. U.S.C.A, Const. Amend, 5; 18 U.S.C.A.

§ 201,

6. Criminal Law 1158(2)

District court's finding at due process

hearing in abscam prosecution that defendant con-

gressmen were not "playacting"” when they accept-

ed bribes was not clearly erroneous. 18 U.S.C.A.

§ 201; U.S.C.A. Const. Amend. 5.

5a

APPENDIX A

7. Bribery 3

Lack of intent to keep promise made for a

bribe is mot a defense to a charge of corrupt re-

ceipt of money by a public official. 18 U.S.C.A,

§ 201,

8. Criminal Law 37(4)

Prompt acquiescence shows predisposition

to accept a4 bribe and precludes an entrapment

defense, regardiess of whether the promise of

official acts is intended to be kept. 18 U.S.C.A,

§ 201,

9. Constitutional Law 257.5

Government agents' coaching of congress-

man during Abscam operation, assuming such

coaching occurred, was not $0 outrageously coer-

cive as to violate due process. 18 U,.S.C.A,

§ 201; U.S.C.A. Const. Amend, 5.

10,Constitutional Law 257.5

Any ambiguity arising from the manner in

which bribes were offered to congressmen in

Abscam operation was due to observance of ground

6a

APPENDIX A

rules set by the congressmen, and did not violate

due process, 18 U.S.C.A. § 201; U.S.C.A. Const.

Amend. 5,

11, Criminal Law 700

Justice Department's failure to comply with

its internal guidelines in conducting Abscam oper-

ation did not invalidate the operation,

12. Criminal Law 700

Conduct of Abscam operation did mot deny

any defendant a constitutionally protected right.

13. Bribery 11

In Abscam prosecution, evidence was suffi-

clent to establish that codefendants knew the pur-

pose for which money was being paid to congress-

man. 18 U.S.C.A. §201.

14, Criminal Law 422(1)

In Abscam prosecution, district court pro-

perly admitted into evidence conversations that

defendant congressman and cedefendants had with

undercover agents, as such conversations iliumi-

nated the nature of the conspiracy and occurred

7a

APPENDIX A

while the conspiracy was still in existence. 18

U.S.C.A.§201,.

15. Criminal Law 734

District court properly decided defendants’

due process claims in Abscam prosecution, without

Submitting them to the jury. U.S.C.A. Const.

Amend. 5; 18 U.S.C.A. §201.

16. Criminal Law 786(2)

In Abscam prosecution, district court pro-

perly instructed jury that they could consider

witness' prior to "failure to disclose information,

when the opportunity to do so presented itself,"

despite contention that the jury could have taken

the instruction as permission to draw an adverse

inference from defendant congressman's. silence

during the course of an interview w'th agents of

the Federal Bureau of Investigation. 18 U.S.C.A.

§ 201.

17. Criminal Law 805(3)

In jury charge in Abscam prosecution, dis-

trict court properly referred to the conman, who

APPENDIX A

was used by the Government to set up the Abscam

operation, as an "informer." 18 U.S.C.A. §201.

18. Criminal Law 1173.2(5)

In Abscam prosecution, no prejudicial error,

if error at all, arose from district court's omis-

sion of requested instructions that the jury could

infer that tapes and unrecorded portions of tapes

not produced by the Government would be unfa-

vorable to the prosecution,

19. United States 12

Although speech or debate clause, in co-

vering "legislative acts," extends beyond words

spoken during legislative debate, any other

matters it reaches must be an integral part of

the deliberative and communicative processes by

which members of Congress participate in commit-

tee and House of Representatives proceedings. U.S.

C.A. Const. Art. 1, §6.

20. United States 12

In Abscam prosecution, admission of de-

fendant congressman's annual financial statement,

APPENDIX A

filed with the clerk of the House of Representa-

tives pursuant to the Ethics in Government Act of

1978, in which the congressman falsely listed his

share of bribe as a "consulting fee," did not vio-

late the speech or debate clause. U.S.C.A. Const.

Art. 1, §6; Ethics in Government Act of 1978,

§ 101 et seq., 2 U.S.C.A. §701 et seq.

21. Criminal Law 772(6)

District court properly explained "predispo-

sition" for entrapment purposes by asking jury

to determine whether defendant was "ready and

willing" to commit the crimes charged whenever

a favorable opportunity arose.

22. Criminal Law 787(2)

In the course of explaining that defendant

had no obligation to present any evidence, dis-

trict court properly told the jury that defendant

had the power to subpoena witnesses.

23. Criminal Law 31

In Abscam prosecution, it was no defense

that defendant congressman's corrupt promise

10a

APPENDIX A

could not have been carried out due to the ficti-

tious nature of the persons alleged to be seeking

assistance. 18 U.S.C.A. §201(c)

24. Criminal Law 863(2)

In Abscam prosecution, district court's

supplemental instruction, which permitted jury to

find that defendant congressman constructively re-

ceived bribe money, was proper. 18 U.S.C.A.

§ 201(c)

25. Criminal Law’ 1039

Issue whether district court's supplemental

instruction failed to adequately explain concept

of constructive possession was waived on appeal,

where opportunity for amplification of the instruc-

tion was available to defendants both before and

after the instruction was given.

26. United States 52

Statute prohibiting members of Congress

and federal employees from receiving compensation

for services rendered in relation to any proceed-

ing in which the United States is interested

lla

APPENDIX A

reaches only services performed or to be per-

formed before the federal forums listed in the

statute, 16 U,S.C.A, § 203(a),

27. United States 52

Congressman could not be convicted of vio-

lation of statute prohibiting members of Congress

from receiving compensation for services rendered

in relation to any proceeding in which the United

States Is interested merely by accepting money for

giving advice about immigration, 18 U,S.C.A,

§203(a),

26. Bribery 11

There was sufficient evidence that defen-

dant congressman received money and that he

agreed to take official action in exchange for

such money to sustain his conviction in Abscam

prosecution, 16 U,S,C.A, 9201,

29. Bribery 11

There was sufficient evidence that defen-

dant congressman received money for his benefit

in exchange for his promise to take official

124

APPENDIX A

action to sustain his conviction in Abscam prose-

cution, even though there was no evidence that

he actually took physical possession of the money,

16 U,S,.C.A, $201,

30, Constitutional Law 77, 62(7)

Searches and Seizures 7(10)

Videotaping of congressman's conversations

with undercover agents involved in Abscam opera-

tion did mot violate the congressman's rights

under the First and Fourth Amendments and the

doctrine of separation of powers, since the con.

versations were not privileged and contained evi-

dence of criminal violations, 116 U,S,.C.A, §201;

U,S.C.A, Const, Amends, 1,4,

3), United States 12

In Abscam prosecution, speech or debate

clause did not bar introduction into evidence of

defendant congressman's private conversations

with @ second congressman on the floor of the

House of Representatives, in which he invited the

second congressman to join the ranks of those

3a

APPENDIX A

accepting bribes, U,S.C.A, Const, Art, 1, 96;

18 U,S,.C.A, §201,

32, United States 12

Speech or debate clause accords immunity

to what is said on the floor of the House of

Representatives in the course of the legislative

process, mot to whispered solicitations to commit

a crime, U,S.C.A, Comsat, Art. 1, 96,

Raymond A, Brown, Newark, NJ, (Henry

PF, Furst, Newark, N.J., on the brief), for defen.

dant-appellant Errichetti,

Jonn J, Duffy, Philadelphia, Pa, (Steven

MH, Gifis, Alan Dexter Bowman, Princeton, N.J.,

on the joint brief for Myers, Errichetti, and

Johanson), for defendant-appellant Johanson,

Richard Ben-Veniste, Washington, 0,.C,

(Ben-Veniste & Shernoff, Washington, 0.C., on the

brief), for the defendant-appellant Criden,

Timothy Savage, Philadelphia, Pa., for

defendant«appellant Lederer,

l4a

APPENDIX A

Daniel R. Pollitt, Chapel Hill, N.C., and

Frank Askin, Newark, N.J. (Neal Rutledge,

Washington, D.C., on the brief, for defendant-

appellant Thompson.

Michael E. Tigar, Washington, D.C. (Sam-

uel J. Buffone, Linda Huber, Tigar, Buffone &

Doyle, Washington, D.C., on the brief), for de-

fendant-appellant Murphy.

Edward Korman, U.S. Atty., and Lawrence

Sharf, Sp. Atty., Brooklyn, N.Y. (Thomas P,

Puccio, Atty-in-Charge, Organized Crime Strike

Force, Edward A. McDonald, Sp. Atty., Gregory

J. Wallance and Vivian Shevitz, Asst. U.S. Attys.,

Brooklyn, N.Y., on the briefs), for appellee.

Neil Jokelson, Philadelphia, Pa. (Rochelle

Newman, Jokelson & Rosen, Philadelphia, Pa., on

the brief), for defendant-appellant Mvers.

Before LUMBARD, FRIENDLY and NEWMAN,

Circuit Judges.

15a

APPENDIX A

NEWMAN, Circuit Judge:

In United States v. Myers, 635 F.2d 932

(2d Cir.), cert. denied, 449 U.S. 956, 101 S. Ct.

364, 66 L.Ed.2d 221 (1980) (Myers |), we ruled

that the Government had not violated the defen-

dant's constitutional rights as a Member of Con-

gress by requiring him to stand trial on charges

of bribery arising out of an undercover "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 ad-

vance of trial, was based on the face of the in-

dictment that had been returned. Now before us

are appeals from judgments 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-defendants

were found guilty of various offenses related to

corruption of public office arising out of the

Abscam investigation. Nos. 81-1342, 81-1343, 8I-

1344, and 81-1446 are appeals from convictions in

16a

APPENDIX A

the joint trial of appellants Michael O. Myers,

formerly Congressman from the First District of

Pennsylvania; Angelo J. Errichetti, formerly

Mayor of Camden, New Jersey; Louis Johanson,

formerly a member of the City Council in Phila-

delphia, 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 Con-

gressman from the Fourth District of New Jersey,

and John M. Murphy, formerly Congressman from

the Seventeenth District of New York, at a joint

trial. Though some of the three trials present

distinct issues, all seven appellants raise ques-

tions of such similarity that we have found it

appropriate to consider all of the claims in one

opinion. For the reasons that follow, we have

concluded that all of the judgments should be

17a

APPENDIX A

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.

l.

Myers, Errichetti, Johanson, and Criden

were charged in a three-count indictment. Count

One alleged a conspiracy in violation of 18 U.S.C.

§ 371 (1976) to defraud the United States and to

violate 18 U.S.C. §201, punishing 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 Congressman Myers "in relation to matters be-

fore 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 corruption"; (c)

to have the immigration, laws "administered honestly

18a

APPENDIX A

and impartially, free from improper and undue

pressure and infiuence"; and (d) to have officials

enforcing the immigration laws "perform their offi-

cial 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 Con-

gressman 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 alieged

that Congressman Myers, aided and abetted by

the other co-defendants, agreed to receive and

received money "in return for" his “being in-

fluenced 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

19a

APPENDIX A

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 under-

cover capacity, purported to be representatives

of two Middle Eastern sheiks operating a ficti-

tious entity known as Abdul Enterprises, Ltd.

The undercover 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 includ-

20a

APPENDIX A

ing intervention with the State Department. A

jury trial was begun on August 11, 1980, and

concluded 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' imprisonment and fines total-

jing $40,000. Myers and Johanson were each sen-

tenced to concurrent terms of three years' impri-

sonment and fines totalling $20,06u

In a separate’ indictment, Lederer was

charged, along with Errichetti, Johanson, and

Criden, in a four-count indictment. Three of the

counts paralleled the conspiracy, bribery,and in-

terstate travel counts of the Myers' indictment.

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 received money "for and because

of" the performance of his official duties in a

matter involving immigration of foreign nationals.

21a

APPENDIX A

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-defen-

dants were severed from his case after their con-

victions in the Myers case. Lederer's trial be-

gan January 5, 1981, and concluded January 9,

1981. The jury convicted Lederer on al! four

counts. He was sentenced to concurrent terms of

the years' imprisonment and_ fines totalling

$20,000.

In a third indictment, Thompson and Mur-

phy 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 al-

leged that Thompson and Murphy, aided and

abetted by Criden, agreed to receive and received

22a

APPENDIX A

money "as compensation for services rendered be-

fore departments, agencies and officers of the ex-

ecutive branch of the Government" in a matter in-

volving 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 alie-

gation in this indictment was that on. October 20,

1979, Murphy received $50,000, subsequently

shared with Thompson, in return for their pro-

mises to help the sheiks with their immigration

problems. The charges against Criden and Sil-

vestri were severed by agreement from the char-

ges against Thompson and Murphy. Trial (the

second in the sequence of three) began on Novem-

ber 10, 1980, and concluded on December 3, 1980.

Before the case went to the jury, Judge Pratt dis-

missed, as against Thompson, Count Four charg-

ing unlawful interstate travel. The jury found

Thompson guilty on Counts One, Two, and Five

charging conspiracy, bribery, and receipt of an

23a

APPENDIX A

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 conspiracy, conflict of interest, and re-

ceipt of an unlawful gratuity; he was found not

guilty on Count Two charging bribery. The jury

reached no verdict on Count Four, as against

Murphy, having been instructed not to consider

this count unless they convicted Murphy on Count

Two. Judge Pratt subsequently dismissed Count

Four as against Murphy. Thompson was tenta-

tively sentenced to the maximum allowable terms,

pursuant to 18 U.S.C. §4205(c), pending further

consideration of his medica! condition. | Murphy

was sentenced to concurrent terms of three years'

imprisonment and fines totalling $20,000.

1. Imposition of a tentative sentence pursuant

to 18 U.S.C. §4205(c) (1976) does not alter the

finality of the judgment of conviction for purposes

of our appellate jurisdiction. Corey v. United

States, 375 U.S. 169, 174-76, 84 S. Ct. 298, 302-

303, 11 L.Ed.2d 229 (1963) (constructing prede-

cessor statute).

24a

APPENDIX A

In the interim between the conclusion of

the three trials and the sentencing of all appel-

lants, Judge Pratt conducted a consolidated hear-

ing to consider various claims by al! seven ap-

pellants 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, 198).

Judge Pratt also permitted the seven appellants

to rely upon evidence pertinent to their due pro-

cess claims that had been presented in other pro-

ceedings 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 re-

cords of charges against former Philadelphia

25a

APPENDIX A

Councilmen Harry P. Jannotti and George xX.

Schwartz in the Eastern District of Pennsylvania

(Jonn P. Fullam, Judge) ,“ against former Con-

gressman John W. Jenrette and a co-defendant in

ihe 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, jJudge).° 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 va-

lidity of their convictions. United States v.

Myers, 527 F.Supp. 1206 (E.0.N.Y. 1981).

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 rein-

stated the verdicts, United States v. Jannotti, 673

F.2d 578 (3d Cir. 1982) (en banc), cert. denied,

U.S. ; 102 S. Ct. 2906, 73 L.Ed.2d 1315

17982).

3. Judge Bryant set aside the jury verdict that

had been returned against Kelly and his co-de-

fendants and ordered a new trial for the co-de-

fendants. United States v. Kelly, 539 F.Supp.

(footnote cont'd)

26a

APPENDIX A

il.

The background of the Abscam operation is

described by Judge Pratt as follows:

" 'Abscam' is the code word given by the

Federal Bureau 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 simi-

lar 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

legitimate enterprise and crude criminality. For

(footnote cont'd)

363 (D.D.C. 1982), appeal docketed, No. 82-1660

(D.C. Cir. June 15, 1982).

27a

APPENDIX A

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 supervi-

sing agent for Abscam. Initially, Weinberg

worked directly under special agent John McCar-

thy who later was replaced by special agent

Anthony Amoroso. Both McCarthy and Amoroso

worked undercover with Weinberg."

"The general pattern of the ‘scam’ or

'sting' operation reflected Weinberg's’ earlier

theme of representing wealthy Arab interest who

28a

APPENDIX A

had large sums of cash available for business

opportunities in this country. When operating

outside the law in Huntington, Long Island as

London Investors, Weinberg's method had been a

‘front-end scam’ for real estate investment where-

in 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 him-

self as a business agent for ‘Abdul Enterprises’,

an organization backed by two extremely wealthy

Arab sheiks looking 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 appeared, appropriate

action would be taken by the FBI."

29a

APPENDIX A

"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 let-

ters of ‘Abdul', combined with the word 'scam',."

"At first Abscam's focus was upon stolen

and forged securities and stolen art work. Other

‘investment’ opportunities soon presented them-

selves, and quickly the investigation turned itself

toward Atlantic 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 of Camden, New

Jersey, and a New Jersey state senator, came on

the scene. Errichetti claimed to have extra-

ordinary 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 secur-

ities, as well as intimate knowledge of which

Wa

APPENDIX A

members of the New Jersey Legislature could be

bought."

"Errichetti brought to the undercover agents

Howard Criden, a Philadelphia lawyer seeking to

promote 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 Erri-

chetti and Criden formed an alliance in which

they undertook to produce for Amoroso and Wein-

berg public officials who, in return for money,

were willing to use their influence with the

3la

APPENDIX A

government on the sheiks' behalf. Meetings were

arranged at various locations in New York, Phila-

delphia and Washington where the FBI monitored

the proceedings with concealed videotape cameras

and microphones. Where videotapes was not

feasible, audio recordings were used."

527 F.Supp. at 1209-10.

Once the focus of Abscam shifted to the

"asylum scenario," * as the parties at the trials

characterized the p!an to have Abdul Enterprises

4. There is room for dispute as to who origi-

nated what came to be called the "asylum scena-

rio," the willingness of Abdul Enterprises to pay

money to public officials in return for help with

future immigration 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 sugges-

tion of Criden. Agent Amoroso testified before

Judge Fullam and Judge Pratt that he thought of

the idea the previous day as a resuli of a news-

paper articie 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 de-

fendant in another Abscam case, in a recorded

telephone conversation held on July 14, 1979.

32a

APPENDIX A

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 substantial sums of money if they

knew any Congressmen who would be willing to

meet the sheik or his representatives. Cook test-

ified for the Government under a grant of immu.

nity. 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 Congressman, 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 thet Johanson

should contact Myers and Lederer, since Johanson

33a

APPENDIX A

knew both Congressmen, Johanson then contacted

Myers and reported that Myers was willing to at-

tend the proposed meeting.

The Payment to Myers. The first meeting

with Myers took place on August 22, 1979, at the

Travelodge International Hotel near Kennedy Air-

port on Long Island, Myers, Johanson, Criden,

and Errichetti drove from New Jersey and Penn-

sylvania to the Pan American terminal at the air-

port, 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. Erri-

chett! 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

Ma

APPENDIX A

his conversation on the yacht with Errichetti con-

cerning the sheiks' possible immigration problems,

Myers replied "Absolutely. Where could | be of

help in this type of matter, first of all, is pri-

vate bills that can be introduced," Myers e@x-«

plained that delay was important in immigration

matters and said, "[!]f | wanta keep somebody

in the country, all | do is introduce a private

bill," Later in the conversation, Amoroso told

Myers that his employer was planning major in-

vestments 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, mot that | won't otherwise," and the

“perfect opportunity to raise hell before Con-

gress." 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."

35a

APPENDIX A

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 thereafter Myers and

Jomnanson 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 representatives of the sheiks.

These agents were Michael Wald (using the name

Michael Cohen) and Ernest Haridopolous (using

the mame Ernie Poulos). Meyers vehemently com-

plained about ending up with only $15,000, after

expecting to retain $50,000 for himself out of an

anticipated payment of $100,000. As Myers pointed

APPENDIX A

out, “Who am |! goin' to complain to...my con-

gressman[?]" The undercover agents mollified

Myers with an offer to pay an additional! $35,000,

which Myers said would be agreeable. On Febru-

ary 2, 1980, the date set for the additional pay-

ment, Myers was questioned at his home by FBI

agents who identified themselves and said they

were investigating the activities of Criden, Erri-

chetti, Weinberg, DeVito (Amoroso), and Cohen

(Wald). Myers denied knowing Weinberg, DeVito,

or Cohen. The same day FBI agents interviewed

Johanson. He admitted driving to Kennedy Airport

for the August meeting and received 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.

Claims at the Myers Trial. Myers acknow-

ledged at his trial that he had retained $15,000 of

the $50,000 hended to him by Amoroso. His de-

fense, also adopted by his three co-defencants,

was that all of his statements to Amoroso and

37a

APPENDIX A

Weinberg at the hotel on Long Island and to Wald

and FHaridopolous at the hotel in Philadelphia

were what he termed "playacting." Myers, the

only defendant of the four on trial to testify,

claimed that Weinberg had told Errichetti, and

Errichetti had told Myers, that nothing would

ever heve to be done for the sheiks in conrection

with immigration. According to Myers, Errichetti

told him just prior to the August 22 meeting what

he should say to impress the sheik's representa-

tives. 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 bribery only if they found

that Myers was not "playacting." The jury's

verdicts constitute a rejection of Myers' defense.

The Payment to Lederer. The initial con-

tact with Lederer, as with Myers, was made by

Johanson. He told Cook that Lederer had been

briefed on the sheik's immigration problem, on

38a

APPENDIX A

the sheik's interest in investing in Philadelphia,

and on the requirement that the Congressman per-

sonally 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 recorded on

videotape. Lederer said that Errichetti had

briefed him on the sheik's immigration problems.

When Amoroso said, "I! understand that you can

introduce legislation," Lederer replied, "Right,

a bill. Private bill. Sure." Lederer then raised

a concern that people might ask, "Why al! 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

39a

APPENDIX A

hope you don't mind a brown paper bag with this

in" and adding, "| hope you spend it well."

The next day Criden met with Cook in

Philadelphia and handed him two envelopes. One

marked "RL" (Raymond 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 Cri-

den and Johanson. Later Johanson delivered

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 pri-

vate immigration bills were discussed, and that

he had received a package or a brown paper bag.

Claims at the Lederer Trial. Lederer ac-

knowledged 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 predisposi-

———— llr mhrt“‘C;C;C SC

40a

APPENDIX A

tion 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

September, 1979, Criden met Silvestri, the New

Jersey businessman, in Florida and, knowing of

Silvestri's contacts among Democratic politicians

in New Jersey, inquired about Congressmen who

might be willing to meet the sheik's representa-

tives. Silvestri suggested Congressman Thompson.

On October 4, Silvestri introduced Criden to

Thompson, at which time Criden and Thompson

spoke privately. That evening Criden told Wein-

berg 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 person-

ally have to take the "package.'"' Thompson and

Criden met with Amoroso and Weinberg on the

morning of October 9 at a townhouse on W Street

maintained by FBI agents. The meeting was

a ee

a

4la

APPENDIX A

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,"' Thompson replied, "I'm

not looking for any money." The discussion of

private immigration bills continued. Weinberg

said the sheik wanted friends he could depend on,

to which Thompson replied, "I don't know how

many more ways | could say it." At this time

no money was transferred.

Later that day Criden returned to the W

Street house for further discussion with Weinberg

and Amoroso. This meeting was videotaped.

Criden complained that at the morning session

Amoroso had altered their agreement, which, he

claimed, called for no mention of money and Cri-

den 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 acknowl-

edged the money. Criden demurred, arguing that

42a

APPENDIX A

Thompson was too experienced and suspicious and

could not be expected to act like Myers 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 ‘n $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 careful-

ly screen, Later the group discussed possible

investments of the sheik's money in New Jersey.

Thompson suggested some possibilities, nothing

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

43a

APPENDIX A

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 Congressman Murphy. Thompson said he

would "brief" his pal beforehand. As the meeting

ended, Thompson and Criden both momentarily

lifted the handle of the briefcase and Criden

carried it out.

The next morning Criden told Cook in

Philadelphia 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.

On October 10, Thompson met with Con-

gressman Murphy in Murphy's office. After

Thompson returned from a brief trip, he arranged

5. At trial 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 un-

lawful 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.

44a

APPENDIX A

for Murphy to meet Criden on October 19, and a

meeting with the sheik's representatives 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

videotaped. The discussion centered on the

sheik's anticipated immigration problems. Amoroso

said that his employers felt it was worth "what-

ever they have to put out" to obtain assistance.

Amoroso explained that his employer had said,

"[T Jake 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. |! will get a hold

of Jack [Murphy]." Later, Weinberg said, com-

menting on the apparent absence 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. "[!]n other words,"' Amoroso ex-

45a

APPENDIX A

plained, "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 con-

taining $50,000 in $100 bills. Criden said, "Why

don't you give that to Jack." Murphy said,

“Howard why don't you take care of that." ©

On October 22, Criden, carrying the brief-

case containing $50,000, met with Cook in Phila-

delphia and explained the expected division of

the money. $25,000 would be delivered to Thomp-

son, of which Murphy would receive $15,000; Erri-

chetti would receive $10,000, "Mel and Tony,"

6. The Government contends that a close listen-

ing 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.

46a

APPENDIX A

$5,000, and Criden, Johanson, and Cook the re-

maining $10,000. Later that day Thompson tele-

phoned Criden and arranged for Criden to meet

him at @ motel in New Jersey. Upon his return

to Philadelphia, Criden told Cook that he had de-

livered the money to Thompson,

Subsequent events cast further light on the

issue, seriously contested at the Thompson-Murphy

trial, as to whether either Thompson or Murphy

had received money at or a8 a4 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

“eandidate’ for the sheik's representatives.

Criden passed Murtha's name along to Amoroso

and Weinberg later that day at the conclusion of

4 meeting the three of them had with Laurence

Buser, a friend of Murphy's. The purpose of

this meeting was to discuss 4 proposed shipping

deal to be financed by the sheiks in which Mur-

phy, according to Buser, would be a4 "silent part-

47a

APPENDIX A

ner." Thompson then undertook to recruit Murtha,

As Murtha testified at trial, Thompson told him,

in @ discussion on the floor of the House of Rep-

resentatives, about the wealthy Arabs who might

need assistance on immigration matters. In @

second conversation with Murtha on the House

floor, Thompson told Murtha that there would be

$50,000 in "walking around money" for Congress-

men willing to help. Thompson told Murtha he

had already enlisted Murphy in the venture, Ulti-

mately, mo money was ever paid to Murtha.

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

speaking about money and then, in the Govern-

ment's view, engaged in playacting of his own

in denying receipt of any money. Murphy told

48a

APPENDIX A

Amoroso, "[A]my time money's mentioned where a

public official is mentioned, there-there's auto-

matically an ability to link ‘em to something

illegal or to taking a consideration for something,

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,

"T¥Jou're being coy with me." Murphy said,

"Sure." Then when Amoroso said he had been re-

luctant to give Murphy money, Murphy said, "You

didn't, you didn't give me any money... | never

received, any money from anyone." The conver-

sation continued with the two discussing future

plans for Murphy to meet the sheik, After this

meeting Murphy requested a private investigator

to check our Weinberg, "DeVito," and Abdul En-

terprises, Murphy said he thought they were

elther phonies or government agents.

49a

APPENDIX A

‘On February 2, 1980, FBI agents ques-

tloned Thompson about his October 9 meeting with

Amoroso and Weinberg. Thompson denied that im-

migration 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 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 dis-

tricts. He claimed that he thought the briefcase

handed to Criden at the October 9 meeting had

contained investment proposals. Murphy neither

testified mor presented defense witnesses at trial.

His defense, as argued in summation, was that

he had not received any money,

tht.

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

50a

APPENDIX A

the lawfulness of their convictions. These are

claims that in several distinct, though related,

respects these convictions were obtained in viola-

tion 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 crimi-

nal activity. Some of the claims are reenforced

by the contention that the Abscam investigation

and prosecution of Congressmen, and those

charged with aiding and abetting them and con-

spiring with them, also violated constitutional

protections of Members of Congress, either con-

tained explicitly im Speech or Debate Clause, U.S.

Const. art. |, §6, or implicitlyin the doctrine of

separation of powers.

A. Lack of Prior Suspicion,

Appellants contend that it is unconstitu-

tional for the Executive Branch of the Government

to predicate the conviction of a Member of Con-

gress upon ai criminal opportunity created by

APPENDIX A

agents of the Executive Branch, in the absence

of probable cause, or perhaps some lesser standard

of suspicion, to believe that the Congressman has

previously engaged in criminal activity. The ar-

gument emphasizes the risk of abuse: if the

practice is permitted, it might be directed at

Congressional targets selected for political rea-

sons, and such political targeting, though violat-

ing 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 suggests that it is simply not the

constitutional business of the Executive Branch to

7. Several appellants in fact contend that in

these cases the Government targeted the defendant

Congressmen for political or other imperm'ssible

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 selec-

ted Congressman Murphy.

52a

APPENDIX A

to test the virtue of Members of a coordinate

branch of government.

In Myers | we canvassed the consideration

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 Branches, 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

issues has been deepened by the passage of time

and focused more sharply by the vast record

assembled on these appeals, but our conclusion

had 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, 406 U.S. 501,92 S.Ct.

2531, 33 L.Ed.2d 507 (1972). A Congressman is

as entitied as any other citizen to the constitu-

tional and statutory protections that limit the

53a

APPENDIX A

power of the Government to investigate and prose-

cute criminal offenses. But, with the exception

of section 6 of Article |, which explicitly affords

immunity to Senators and Congressmen "for any

Speech or Debate in either House" and privilege

from arrest for most criminal offenses during at-

tendance at sessions of Congress, the Constitution

does not provide Members of the Legislative

Branch with any extra protections beyond those

guaranteed to all citizens. Specifically, Members

of Congress enjoy no special constitutional ru'c

that requires prior suspicion of criminal activity

before they may be confronted with a govern-

mentally created opportunity to commit a crime.

[1-3] What is available in such circum-

stances is the traditional defense of entrapment,

which prevents conviction of a person induced to

commit a crime unless the prosecution can esta-

blish the person's predisposition to commit the

crime. See Sherman v. United States, 356 U.S.

369, 78 S. Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells

54a

APPENDIX A

v. United States, 287 U.S. 435, 53 S. Ct. 210, 77

L.Ed. 413 (1932). The entrapment defense exon-

erates a defendant who engages in criminal! be-

havior 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, 53 S. Ct. at 212.

But the defense of entrapment is not established

simply because government agents "afford opportu-

nities or facilities for the commission of the of-

fense,"" Sorrells v. United States, supra, 287 U.S.

at 441, 53 S. Ct. at 212, or engage in "deceit."

United States v. Russell, 411 U.S. 423, 435-36, 93

S. Ct. 1637, 1644-45, 36 L.Ed.2d 366 (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 de-

55a

APPENDIX A

fendants in the Myers and Thompson-Murphy trials

made no attempt to avail themselves of the 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 reason-

able jury can conclude beyond a reasonable doubt,

United States v. Taylor, 464 F.2d 240, 243 (2d

Cir. 1972), that the prosecution has proved the

56a

APPENDIX A

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 suffi-

ciency of the prosecution's evidence as to a de-

-fense that the accused has not placed in issue.

A defendant's failure to assert an entrapment de-

fense 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 en-

trapment 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).

[4] Although Lederer, having asserted the

defense of entrapment 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 received,

57a

APPENDIX A

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, 91 S. Ct. 1659,

29 L.Ed.2d 149 (1971); United States v. Becker,

62 F.2d 1007, 1008 (2d Cir. 1933). The videotape

of the September 11 meeting reveals Lederer re-

sponding with alacrity. As he assured the

sheik's representatives, "I'm not a Boy Scout."

B. Excessive Government Role.

Appellants contend that even if the tradi-

tional entrapment defense fails, whether factually

in Lederer's case of procedurally as to the other

appellants, the conduct of Abscam violated stand-

ards of due process because the Government's

role in the investgation was excessive and funda-

58a

APPENDIX A

mentally unfair. Unlike the entrapment defense,

which focuses on the defendant's predisposition,

this due process claim focuses on the conduct of

the government agents. ° There are several

strands to the argument. First, it is urged, the

Government created the crimes. The elaborate

contrivance of Abscam is claimed to extend beyond

the legitimate role of law enforcement in detecting

crime into a forbidden area of instigating crime.

Second, the appellants contend that the induce-

ments 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.

8. The appellants sometimes refer to this claim

as “entrapment as a matter of law." We prefer

to characterize it as a due process claim, leaving

the phrase "entrapment as a matter of law" to

describe the claim that, with respect to a tradi-

tional defense of entrapment, the evidence of pre-

disposition was insufficient as a matter of law to

permit the jury to find that the prosecution nad

proved predisposition as a matter of fact. Unlike

the claim of entrapment as a matter of law, the

due process claim of excessive governmental in-

ducement is available to a defendant whether or

not he asserted an entrapment defense at trial,

since this claim is independent of evidence con-

cerning predisposition.

59a

APPENDIX A

Third, appellants in the Myers case contend that

the Government agents, notably Weinberg,

"coached" Congressman Myers into committing the

crimes by having Errichetti and Criden tell Myers

what to say at the videotaped meetings and si-

multaneously assuring him that he need not in-

tend 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 fundamental fairness may have a

special pertinence when Government creates op-

portunities for criminal conduct in order to ap-

prehend those willing to commit crimes. See

Hampton v. United States, 425 U.S. 484, 491-95,

96 S. Ct. 1646, 1650-52, 48 L.Ed.2d 113 (1976)

(Powell, J., concurring); United States v. Russell,

supra, 411 U.S. at 431-32, 93 S. Ct. 1642-43;

United States v. Archer, 486 F.2d 670, 676-77 (2d

Cir. 1973); see also Archer v. Commissioner of

Corrections, 646 F.2d 44, 46-47 (2d Cir.), cert.

60a

APPENDIX A

denied, 454 U.S. 851, 102 S. Ct. 291, 70 L.Ed.2d

141 (1981) (Archer II). At the same time, we re-

cognize 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 Su-

preme Court in Russell and Hampton narrowed the

availability of this defense. As the decisive con-

curring opinion of Justice Powell in Hampton

stated, "Police overinvolvement in crime would

have to reach a demonstrable level of outrageous-

ness before it could bar conviction," 425 U.S.

at 495 n. 7, 96 S. Ct. ~t 1652 rm. 7. Our own

decision in Archer I1, though questioning an ex-

treme example of governmental initiation of a

criminal opportunity, if not tne crime itself, re-

jected 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),

7

6la

APPENDIX A

and Abscam conviction of an employee of the Im-

migration and NaturalizationService, the due pro-

cess claim, in the rare instances when successful,

has prevailed to restrain law enforcement activi-

ties that involve coercion, e.g., Watts v. Indiana,

338 U.S. 49, 69 S. Ct. 1347, 93 L.Ed. 1801 (1949),

or outrageous violation of physical integrity, e.g.,

Rochin v. California, 342 U.S. 165, 72 S. Ct. 205,

96 L.Ed. 183 (1952).

[5] 1. Instigation. The appellants' claim

of excessive governmental involvement in the in-

stigation of criminal conduct is not supported by

the facts. Though the "sting" was surely ela-

borate, its essential characteristic was the crea-

tion of an opportunity for the commission of crime

by those willing to do so. The Government pro-

duced people with fictitious identities ready to

pay bribes to Congressmen. Word of availability

of bribe money was made known. From that point

on, the essential conduct of the agents and their

paid informant was to see who showed up to take

62a

APPENDIX A

the bribes and videotape them in the act of doing

80.” Whatever may be the due process limit of

governmental participation in crime, it was not

reached here. See Hampton v. United States

supra; United States v. Russell, supra; United

States v. Janmnotti, 673 F.2d 578 (3d Cir.) (en

banc), cert. denied, U.S. » 102 S. Ct. 2906,

73 L.Ed.2d 1315 (1982); United States v. McQuin,

612 F.2d 1193, 1196 (9th Cir.), cert. denied, 445

U.S. 954, 100 S. Ct. 1607, 63 L.Ed.2d 791 (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 Con-

gressmen were excessive. They refer not to the

$50,000 amounts of the bribes, but to the offers

9. As Judge Pratt pointed out, Murphy's conduct

is more accurately described as the taking of

money, rather than a bribe, since the jury ac-

quitted him of the bribery offense and convicted

him of accepting an unlawful gratuity. 527

F.Supp. at 1225 n. 14,

63a

APPENDIX A

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

$50,000 bribe so long as he simultaneously be-

lieves he is bringing the benefits of investments

to his district. The argument is an affront to

all the law-abiding Member of Congress and state

officials who consider it a normal part of their

public responsibilities to promote business activi-

ty 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 dis-

tricts that they reluctantly accept bribes on

which they thought the investments were condi-

tioned. Quite to the contrary, the evidence shows

four Congressmen jumping at the chance to take

64a

APPENDIX A

a bribe and discussing investments in their dis-

tricts as a convenient cover to justify their ren-

dering of purchased legislative services. As

Thompson said, anticipating possible criticism for

helping the sheik, "I'm in a position to say well

of course I'm helping this guy. Why shouldn't

| help this guy...his money is helping my guys

work everyday." Myers put more bluntly: an in-

vestment in the district "gives me a little protec-

tion."

Thompson contends that inducement in vio-

lation of due process limits occurred in his case

because the agents persisted in offering money

after his initial rejection on the morning of Octo-

ber 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 af-

ternoon Criden met first with Amoroso and Wein-

berg and later with Thompson. At the meeting

on the evening of October 9, what occurred was

65a

APPENDIX A

not unfair inducement, but simply the offering of

money pursuant to an arrangement developed by

Thompson and Criden whereby the bribe could be

accepted while preserving what Thompson mis-

takenly 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 pri-

vate immigration bills while assuring him that he

would not be called upon to deliver on his premi-

ses. 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 purposes of these trials, the legal sufficiency

10

of the "playacting" defense, and afforded the

10. We suspect that this ruling reflects the not

(footnote cont'd)

66a

APPENDIX A

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 un-

less the 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 Errichetti and Criden, had en-

couraged the Congressmen to "come on strong," as

Weinberg acknowledged in his testimony at the

Myers trial, the jury was entitled to conclude

(footnote cont'd)

uncommon practice of district judges, faced with

a defense claim of questionable 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.

67a

APPENDIX A

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 unambiguously expressed

on videotape the promises they were all too ready

to make and fully intended to keep.

(6] Moreover, after the trials were con-

cluded, Judge Pratt afforded the defendants a full

opportunity at the "due process" hearing to am-

plify the record to persuade him, as the trier of

fact on the due process claim, that only a cha-

rade 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 deci-

APPENDIX A

sion solely on the traditional deference an appel-

late court extends to the fact-finding of a jury

and a trial judge when supported by sufficient

evidence. The record contains one striking in-

stance, in the early stages of Abscam, when

Weinberg unquestionably pursued a course of

conduct with Senator Williams that reveals pre-

cisely the sort of "coaching" for "playacting" that

some of these appellants claim occurred with

them. " In a videotaped conversation with Sena-

tor 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 uncer-

tain 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

11. We intimate no opinion with respect to the

effect of this episode on Senator Williams' appeal!

from his conviction.

APPENDIX A

my influence and | 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 Attor-

ney for the District of New Jersey, prosecutors

there strenuously protested Weinberg's conduct

and complained to Department of Justice officials

and the prosecutors in charge of Abscam in the

.

Eastern DOistrict of New York. That protest led

70a

APPENDIX A

to a meeting on August 9, 1979, at the home of

Special Agent 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, V2 and Weinberg.

According to Houlihan, Plaza told Weinberg that

he could not put words into people's mouths;

12. Judge Pratt concluded that both Plaza and

another Assistant United States Attorney from New

Jersey, Edward Weir, were motivated to criticize

the Abscam operation by jealousy over the control

by prosecutors from the Eastern District of New

York of an investigation uncovering corruptico. in

the District of New Jersey. 527 F.Supp. at 1245-

47. Professional rivairy may have been afoot,

but our review of the record inclines us to think

that Plaza and Weir were expressing in good

faith concerns based largely on their sense of the

proper administration of justice.

71a

APPENDIX A

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 Houli-

han'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 peo-

ple'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

Willaims "coaching" session was discussed at the

August 9 meeting and Weinberg was admonished to

refrain from such conduct, be (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 | understood everybody under-

72a

APPENDIX A

stood it to be a 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 tehnique was not there-

after repeated." Id. This finding relates to

whether Weinberg himself did any "coaching" of

the Congressmen. It does not prelude the dis-

tinct possibility that Weinberg encouraged Er-

richetti and Criden to handle the "coaching' for

him. Judge Pratt expressed the view that, if this

happened, the Government bore no responsibility

for whatever Errichetti and Criden might have

told the Congressmen. Id. at 1735-37. If impro-

73a

APPENDIX A

priety of constitutional dimension had arisen from

Weinberg's "coaching," we would mot be so cer-

tain as Judge Pratt that the taint would be dis-

sipated by transmission through middie-men. See

United States v. Valencia, supra 645 F.2d at

1168-72; Note, Entrapment Through Unsuspecting

Middiemen, 95 Harv. L. Rev. 1122 (1982).'? There

13. Although there is room for fair dispute as

to the circumstances in which government may be

held responsible for entrapment by a third party,

see, United States v. Valencia, 645 F.2d 1158,

1176 (2d Cir.1981) (Van Graafeiland, J., dissent-

ing from denial of rehearing en banc), the de-

fense is available, of course, where government

agents act through private citizens," United

States v. Buie, 407 F.2d 905, 908 (2d Cir.), aff'd

on other grounds sub nom, Minor v. United

States, 396 U.S. 87, 90 S. Ct. 284, 24 L.Ed.2d 283

(1969); see Lopez v. United States, 373 U.S. 427,

82 S. Ct. 1381, 10 L.Ed.2d 462 (1963); Johnson v.

United States, 317 F.2d 127, 128 (D.C. Cir. 1963).

Appellants' 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, allegediy gave

"coaching" directions to middiemen” Errichetti

and Criden with specific instructions that they

should relay his directions to the Congressmen.

The justification for holding government account-

able for a middieman's behavior would be less

compelling if the claim were one of "uninstructed

(footnote cont'd)

74a

APPENDIX A

is a substantial risk that Weinberg, having been

admonished for "coaching" Senator Williams, and,

even on the Government's version, having heard

FBI agents and prosecutors "joke" about his not

taping further "coaching" sessions, did decide to

encourage Errichetti and Criden to undertake sim-

ilar "coaching" ventures with the Congressmen. '“

(footnote cont'd)

transmission": middieman 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

middieman to commit a crime, and the middleman,

responding to the pressure upon him, takes it

upon himself to induce another person to partici-

pate in the crime. E.g., United States v. Reed,

526 F.2d 740 (2d Cir. 1975), cert. denied, 424 U.S.

956, 96 S. Ct. 1431, 47 L.Ed.2d 361 (1976). See

generally United States v. Valencia, supra, 645

F.2d at 1178 (explication of Reed facts).

14, At the Philadelphia due process hearing be-

fore Judge Fullam, Errichetti and Criden, testi-

fying 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 Con-

gressiona!l influence.

75a

APPENDIX A

Since we are left with at least a measure of un-

ease as to whether some indirect "coaching" oc-

curred, we prefer to consider the substance of

appellants' claim.

[7] (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 ap-

pellants contend that "playacting" is a defense

15 Since Myers appears

to bribery. It is not.

to be the first public official in a reported fed-

eral 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, '©

15. Appellants have no basis for complaint be-

cause Judge Pratt gave them an opportunity, ac-

cepted by defendants in the Myers trial, to try

to persuade the jury that the facts supported a

defense to which they were not entitled.

16. Cases have considered and rejected the some-

what similar defense that the bribe-taker was

unable to be influenced because the official act

(footnote cont'd)

76a

APPENDIX A

it is not surprising that the appellate reports

have not dealt explicitly with the claim. The

statute proscribes the corrupt receipt of money by

a public official "in return for: (1) being influ-

enced in his performance of any official act...."

The phrase "in return for" appeared in the sta-

tute in 1962 when Congress revised and consoli-

dated various public corruption statutes. This

phrase makes it clear that bribery under section

201(c) requires a promise of a future act in ex-

change for the money given to the public official,

an element not required for receipt of an unlaw-

ful gratuity under section 201(g) which punishes

receipt of a gratuity paid “for or because of"

performance of a future or past official act.

(footnote cont'd)

for which the bribe was paid either was beyond

his authority, see e.g., United States v. Carson,

464 F.2d 424, 433 (2d Cir.), cert. denied, 409

U.S. 949, 93 S. Ct. 268, 34 L.Ed.2d 219 (1972);

United States v. Heffler, 402 F.2d 924 (3d Cir.

1968); cert. denied, 394 U.S. 946, 89 S. Ct. 1280,

22 L.Ed.2d 480 (1969), or had already been taken,

see e.g., United States v. Arroyo, 581 F.2d 649,

653-57 (7th Cir. 1978), cert denied, 439 U.S. 1069,

99 S. Ct. 838, 59 L.Ed.2d 34 (1979).

77a

APPENDIX A

United States v. Niederberger, 580 F.2d 63, 68-69

(3d Cir.), cert. denied, 439 U.S. 980, 99 S. Ct.

567, 58 L.Ed.2d 651 (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, 92 S. Ct. at

2544, construing the bribery statute, "[t]he ille-

gal 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 preexist-

ing 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 have his action...

influenced," This somewhat awkward phrasing

left it unclear whether the Congressman must in-

tend to take action or need only intend to re-

ceive 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

78a

APPENDIX A

specifically proscribed, 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 ac-

tions. 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 re-

ceive it which is determinative of criminality.

Some courts have given this interpretation to the

present section 202. "7 (See, e.g., Woelfel v.

United States, 237 F.2d 484, 488 [4th Cir.]; Whit-

17. Section 202 of Title 18, as it read before

the 1962 revision, proscribed 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).

79a

APPENDIX A

ney v. United States, 99 F.2d 327, 331 [10th

Cir.].)"

H.R. Rep. No. 748, 87th Cong., Ist Sess. 18

(1961). Thus, "being influenced" does not des-

cribe the Congressman's true intent, it describes

the intention he conveys to the briber in ex-

change 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 Report refers appear these sentences

(and no others of consequence ):

"The evidence shows that [the public offi-

cial] not only took but solicited money in con-

nection with said sales, and whether his action

was influenced is immaterial. The money was so-

licited 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

APPENDIX A

rejecting a claim that a bribe was not received

in return for being influenced because the event

requiring influence had already occurred, "The

phrase ['in return for'] brings into play the

purpose of the bribe and thus the mind of the

bribepayer." United States v. Arroyo, 581 F.2d

649, 654 (7th Cir. 1978), cert. denied, 439 U.S.

1069, 99 S. Ct. 838, 59 L.Ed.2d 34 (1979). Con-

struing a similar statute proscribing receipt of

money for the promise of a public office, 18 U.SL.

§ 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, 72 S. Ct. 568, 96 L.Ed.

846 (1952). "Whether the corrupt transaction

would or could ever be performed is immaterial.

We find no basis for allowing a breach of war-

ranty to be a defense to corruption." Id. at 151,

72 S. Ct. at 569. With respect to the bribery

Bla

APPENDIX A

Statute, we believe the defense of fraud is equal-

ly unavailabie.'© If Myers was "playacting" and

giving false promises of assistance to peopie he

believed were offering him money to influence his

official actions, he violated the bribery statute.’®

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 subse-

quent official action or the reasons for it, United

States v. Johnson, 383 U.S. 169, 86 S. Ct. 749,

15 L.Ed.2d 681 (1966), evidence that would fre-

quently be highly probative of whether, at the

time of the bribe, the Member intended to take

official action. It 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 evidence.

19, We recognize that some opinions have de-

scribed the bribery statute in language that can

be read to suggest that the bribe-taker must in-

tend to take the promised official action. See

United States v. Brewster, 506 F.2d 62, 70-76

(0.C. Cir. 1974); United States v. Irwin, 354

F.2d 192, 195-96 (2d Cir. 1965), cert. denied, 383

U.S. 967, 86 S. Ct. 1272, 16 L.Ed.2d 308 (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. Con-

sequentiy, the opinions had no occasion to dis-

cuss the 1962 House Juciciary Committee Report,

which is so pertinent to the claim in this case.

82a

APPENDIX A

[8] 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 "play-

act" 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 unavail-

able to the other appellants because 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 Wein-

berg's alleged suggestion of a script. Prompt

acquiescense shows predisposition to accept a

bribe, whether or not a promise of official action

is intended to be kept.

[9] Thus, appellants are left with a

claim that the "coaching" was so outrageously co-

ercive as to violate due process, wholly apart

83a

APPENDIX A

from the traditional defense of entrapment. The

record does not remotely support the 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 Con-

gressman a scheme for pocketing $50,000 by false-

ly 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 sup-

plied, mo one was coerced into playing his part.

Due process challenges to an undercover agent's

encouragement have been rejected when one defen-

dant was solicited twenty times before committing

an offense, United States v. Esquer-Gamez, 550

F.2d 1231 (9th Cir. 1977), and when another de-

fendant was tempted by a million-dollar cash deal

and prodded by veiled threats, United States v.

Reynoso-Ulloa, 548 F.2d 1329 (9th Cir. 1977), cert.

84a

APPENDIX A

denied, 436 U.S. 926, 98 S. Ct. 2820, 56 L.Ed.2d

769 (1978). Whatever conduct might transgress

the standard outlined in Hampton and Russell, the

facts of the Abscam investigation are not even

close to ihe line. United States v. Aiexandro,

supra; United States v. Janotti, supra. The bare

suggestion to 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 mot to capitulate at such a

suggestion. Whatever the public's expectation,

the record reveals that these Congressmen 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

@ variety of reasons that are combined in support

of a broad claim that the Government preverited

85a

APPENDIX A

the presentation to the jury of an accurate

account of the events. With the exception of tra-

ditional arguments that exculpatory evidence was

withheld in violation of Brady v. Maryland, 373

U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963),

the due process foundation of this general area

of attack is more the product of resourceful ar-

gument than precedent. To be successful, this

attack must overcome our well-established reluc-

tance to dismiss criminal prosecutions because of

faulty Government investigation. See United States

v. Brown, 602 F.2d 1073 (2d Cir.), cert. denied,

444 U.S. 952, 100 S,. Ct. 427, 62 L.Ed.2d 323

(1979); cases cited id. at 1076-77. It might be

thought that the specific constitutional guarantees

concerning criminal procedure, e.g., the Confron-

tation 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 con-

86a

APPENDIX A

Stitutionally required fairness, has been applied

to develop minimum standards concerning the ac-

curacy of evidence, notably in the area of eye-

witness identification testimony. See Manson v.

Braithwaite, 432 U.S. 98, 97 S. Ct. 2243, 53

L.Ed.2d 140 (1977); Stovall v. Denno, 388 U.S.

293, 87 S. Ct. 1967, 18 L.Ed.2d 1199 (1967). Ap-

pellants invite us to frame comparable standards

for undercover investigations.

1. Deliberate Ambiguity. An interesting

component of the argument, advanced by Thompsor

and Murphy, maintains that when the Government

is in control of an undercover operation, as con-

trasted with merely observing events in which no

governmental agent is involved, due process re-

quires the investigators to eliminate or at least

minimize ambiguities in the critical events that

form the basis of the criminal offense. Otherwise,

they contend, the Government neediessiv creates

risk of erroneous fact-finding by the jury on the

ultimate issue of guilt or innocence. Relating

87a

APPENDIX A

the claim to these cases, they argue that an un-

dercover offer of a bribe must be expressed in

terms that leave no uncertainty that money is be-

ing transferred to a Congressman and that it is

being paid to influence his official actions. As

counsel for Murphy contends, "Congressman Mur-

phy was denied the opportunity to say 'no,' [see

Myers |, supra, 635 F.2d at 939] because the

Government did not clearly convey its invitation

to corruption." (Murphy Br. 50.)

Perhaps at some point deliberate govern-

mental efforts to render ambiguous events over

which agents can exercise considerable control

would transgress due process limits of funda-

mental fairness. Wherever those limits might be,

they have not been crossed in these cases,

Undercover agents offering bribes to Congressmen

are entitied to simulate the guarded conversation

that would be expected of those proposing an un-

lawful venture. Cf. United States v. Reynoso-Ul-

loa, supra 548 F.2d at 1338-39. They need not

88a

APPENDIX A

say, "Congressman, | 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 re-

ceived 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 Octo-

ber 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 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

89a

APPENDIX A

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 eventing 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 re-

cruited from culpability. it is plainly inferabie

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 conpanions ever appeared on a_ witness

stand to accuse him, he could escape conviction

by recounting how he had told the group that he

did not want cash and had left the meeting with-

out any money. The permissible, if mot the irre-

sistible, inference the jury could draw from the

series of conversations on October 9 was that

Thompson was not rejecting money; he was care-

90a

APPENDIX A

fully orchestrating how to accept it with feigned

innocence. The evidence supported a finding that

Thompson and Criden, recognizing that those of-

fering bribes understandably wantsome indication

that the Congressman they have bought it aware

of the purchase, worked out a scenario whereby

Thompson would acknowledge 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 pre-

serving his opportunity, if the occasion ever a-

rose, to claim at a trial, as he did, that he

thought the briefcase contained investment pro-

posals.

[10] The transcription on October 20,

which formed the basis for the substantive offer-

ses of which both Thompson and Murphy were con-

victed, followed the same pattern Criden and

Thompson had developed and used for the evening

session on October 9, The evidence shows that

9la

APPENDIX A

Thompson and Criden had expiained their ground

rules to Murphy. A recorded telephone conversa-

tion 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: | am going to have lunch with this guy,

with Murphy. And | am gonna make sure he un-

derstends clearly....

Criden: I've got to coach these guys. I've got

to make them feel at ease.

Criden: | gotta stroke him, you know, uh, make

him feel comfortable.

Weinberg: They all got that problem, they're

nervous.

Criden: They're all nervous. You know they all

figure that maybe it's set up, you know.

—__ S

APPENDIX A

Weinberg: Thompson must have spoken to’ him,

huh.

Criden: Yeah, naturally."

The caution displayed by Thompson and Murphy

permitted 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 in-

vestigators' bribe offer was unfairly obscured,

we are equally unmoved. The agents did not

violate due process limits by observing the de-

fendants' ground rules.

Murphy further contends that there is a

First Amendment dimension to the due _ process

claim of de!tiberate creation of ambiguous facts.

The ambiguities of what occurred on October 20,

he suggests, blur the line that must be main-

tained between unlawful conduct that violates

93a

APPENDIX A

criminal statutes and lawful conduct, protected

by the First Amendment, that occurs when a Con-

gressman discusses legislative action and assis-

tance with his constituents. Reliance is placed

on cases such as United States v. O'Brien, 391

U.S. 367, 88 S. Ct. 1673, 20 L.Ed.2d 672 (1968),

and United States v. Spock, 416 F.2d 165 (Ist Cir.

1969).

This First Amendment claim is untenable.

Unlike O'Brien, there is no issue in these appeals

whether conduct arguably protected by the First

Amendment as expression is nonetheless being

punished. "[I]t is taking the bribe [or an un-

lawful gratuity], not performance of the illicit

compact, that is a criminal act." United States

v. Brewster, supra 408 U.S. at 526, 92 S. Ct. at

2544 (emphasis original). Nor do these appeals

present the issue, illustrated by Spock, whether

a lawful objective was pursued by lawful or un-

lawful means. See United States v. Spock, supra,

416 F.2d at 169. In some circumstances a

a

94a

APPENDIX A

prosecution of a Congressman for bribery can

present a close question as to whether money was

received as an illegal bribe or a 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 defi-

nite 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. 2°

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 ad-

vising people on immigration matters. That risk

20. Though Lederer was quoted by Cook as say-

ing he would be satisfied with only a $5,000 cam-

paign 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 de-

fense was entrapment.

95a

APPENDIX A

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 invitation to accept

money unlawfully under an arrangement that they

beih mistakenly believed would yield insufficient

evidence of their guilt. The risk of a mistaken

conviction is adequately protected by scrutinizing

the sufficiency of the evidence on which a jury

is permitted to find guilt beyond a reasonable

doubt.

Ze Conduct of the Investigation. Appel-

lants' remaining challenges to the accuracy of the

Government's proof require littli2 discussion. They

voice a chorus of indignation that the Government

would employ the services of such an untrust-

worthy person as Weinberg, and they fault the

FBI agents and prosecutors for not subjecting

96a

APPENDIX A

“Weinberg to more exacting supervision and for

compensating him too generously. They challenge

Weinberg's failure to record all of his conversa-

tions 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.

[11] 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 supervision, 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 in-

duced to lie by offers of contingent payments for

making cases, the District Court found no such

arrangement. 527 F. Supp. at 1240. No doubt

97a

APPENIDIX A

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 ther Congressmen. Despite the ap-

pellants' dark insinuations, the evidence fully

justified Judge Pratt's findings that on one oc-

casion a few audiotapes were stolen from Wein-

berg's flight bag and on other occasions, Wein-

berg recorded over and thereby erased previously

taped conversations that were unimportant. Id.

at 1231. There was conflicting evidence, consi-

dered by the jury, as to whether on another oc-

casion 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 significance to their defenses.

Non-compliance with internal departmental guide-

lines is not a ground for complaint. United

States v. Caceres, 440 U.S. 741, 99 S. Ct. 1465,

98a

APPENDIX A

59 L.Ed.2d 733 (1979).

3. Brady Claims. Appellants contend that

various items were not disclosed to them until af-

ter the completion of the jury trials, items that

they claim were exculpatory 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 teen-

age years, that he was a convicted felon, that

he had made a deal with the government to co-

operate in return for probation on his felony con-

viction in Pittsburgh, and that he had received

substantial compensation for his cooperation in

99a

APPENDi>: A

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 micro-

wave oven and other gifts from Errichetti. The

prosecution had sought to support Weinberg's cre-

dibility 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 memo-

randum indicating that Weinberg had told the

agents about the watches even prior to his re-

ceipt 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 com-

EE

100a

APPENDIX A

plains 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 memorandum,

Lederer called two New Jersey prosecutors as de-

fense witnesses to testify about the Augusi 9 ses-

sion. Moreover, Lederer's defense was entrapment,

not "playacting." 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 Fulton 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

10la

APPENDIX A

Weinberg gave at Thompson's trial. Thompson

made no claim that he had been "coached" into

making false promises to help the sheik. More-

over, iike all the defendants, he had abundant

grounds on which to attack Weinberg's credibility.

None of these etalon, nor any of the other al-

leged Brady violations, which we do not detail,

remotely provides a basis for any relief.

* ® * * * *

[12] Having considered all of appeliants'

claims that the investigation violated the stan-

dards of the Due Process Clause, we conclude that

the conduct of the Abscam operation did not deny

any appellant a constitutionally protected

. 21

right. Appellants contend, nevertheless, that

21. Some of the appellants contend that venue

was improperly laid in the Eastern District of

New York. They acknowledge that significant

events occurred in that District, notably the pay-

ments 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. Im United States v. Archer, 486 F.2d 670

(2nd Cir. 1973), we rejected the Government's

(footnote cont'd)

1024

APPENDIX A

we should assess the conduct of the government

agents under more exacting standards than those

of the Due Process Clause and dismiss the indict-

ments in the exercise of our supervisory power

over the administration of criminal justice.

Whatever the scope of that authority in the after-

math of United States v. Payner, 447 U.S. 727,

100 S. Ct. 2439, 65 L.Ed.2d 468 (1980), it does

not permit courts to fashion their own "sub-con-

Sstitutional" limitations of the conduct of law en-

forcement agents. Prior to Payner, the supervi-

sory power was used to fashion and enforce rules

for judicial proceedings in order to safeguard im-

portant constitutional rights. See e.g., United

(footnote cont'd)

attempt to create federal jurisdiction by luring

& defendant into placing a telephone call across

a state line. We do not preciude the possibility

of similar concerns if a case should arise in

which key events occur in one district, but the

prosecution, preferring trial elsewhere, lures 4

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.

103a

APPENDIX A

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-incrimination),

cert. denied, 429 U.S. 980, 97 S. Ct. 493, 50

L.Ed.2d 589 (1976). And on infrequent occasions,

the power was used to discipline prosecutorial ir-

regularities, particularly in front of grand juries.

See United States v. Jacobs, 531 F.2d 87 (2d Cir.),

vacated mem., 429 U.S. 909, 97 S. Ct. 299, 50

L.Ed.2d 277, reinstated, 547 F.2d 772 (2d Cir.

1977), cert. dismissed, 436 U.S. 31, 98 S. Ct.

1873, 56 L.Ed.2d 53 (1978). It has not been used

as 4@ general corrective authority over the conduct

of criminal investigations, and, in light of

Payner, its scope is surely mot to be expanded,

Appellants are entitied 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.

104a

APPENDIX A

A. Myers Trial

[13] 1. Sufficiency of Evidence. Criden

and Johanson both challenge the sufficiency of the

evidence to establish that they knew the purpose

for which the money was paid to Myers. The re-

cord 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. Cri-

den's claimed assurance that the Congressmen

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 in-

fluenced concerning official action, whether or not

the promise was intended to be kept. Criden's

attendance at and participation in the January

conversations with Myers in Philadelphia leave no

doubt whatever of his knowledge. Johanson's

i05a

APPENDIX A

knowledge was fairly inferable by the jury from

his initial hearing of the plan, his recruitment

of Myers, his receipt of cash, and his acknowl-

edgement to the FBI that he had had many sleep-

less nights but had not been able to resist the

chance to make some easy money. This non-hear-

say evidence of Johanson's culpability justified the

admission against him of the acts and declar-

ations of the co-conspirators. See United States

v. Mastropieri, 685 F.2d 776, at 785-790 (2d Cir.

1982).

[14] 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 Barc!tav Hotel in

Philadelphia. In these conversations Myers de-

manded an additional $35,000 to bring his share

up to the $50,000 he had expected to receive from

the August 22, 1979, meeting; he also discussed

possible investments by the sheik that would pro-

106a

APPENDIX A

vide a justification for his assistance with immi-

gration matters. Appellants contend that their

conversations were evidence of other crimes occur-

ring after the end of the conspiracy concerning

the August 22 payment and were inadmissible un-

der Fed. R. Evid. 404(b). The argument builds

upon the ruling Judge Pratt made when the evi-

dence 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 in-

dictment" and should be considered as acts and

statements "only against the defendant who made

them." In fact, the conversations, illuminating

the nature of the conspiracy and occurring while

the conspiracy was still in existence, were fully

admissible against all defendants. Judge Pratt's

limiting instruction as he recognized, was un-

duly favorable to the defendants and affords them

no basis to complain.

107a

APPENDIX A

[15-18] 3. Jury Imstructions. Criden

levels several attacks upon the charge in the

Myers trial, none of which has merit. It was not

error for the District Court to decide the appel-

lants' due process claims, without submitting

them to the jury. United States v. Nunez-Rios,

622 F.2d 1093, 1098 (2d Cir. 1980). In general

observation in the portion of the charge concern-

ing 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 ex-

ercised his right to remain silent during the in-

terview, and ir any event, Myers' failure to give

his version of the facts was probative since he

hed elected to make statements to the agent be-

es

108a

APPENDIX A

fore deciding to end the interview. See Anderson

v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65

L.Ed.2d 222 (1980) (per curiam). It was not im-

proper to refer to Weinberg as an "informer," and

the charge adequately cautioned the jury concern-

ing his testimony. Finally, it was surely not

prejudicial error, if error at all, to omit the re-

quested instruction that the jury may infer that

tapes and unrecorded portions of tapes not pro-

duced 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 ail portions of taped conversations and the

dispute concerning whether Weinberg had purpose-

ly erased two tapes of conversations with Erri-

chetti were fully argued to the jury.

B. Lederer Trial

[19,20] 1. Evidentiary Ruling. Lederer

contends that evidence was introduced at his trial

in violation of the Speech or Debate Clause. He

objects to the admission of his annual financial

109a

APPENDIX A

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 et 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 "legisia-

tive acts," Gravel v. United States, 408 U.S. 606,

625, 92 S. Ct. 2614, 2627, 33 L.Ed.2d 583 (1972),

extends beyond words spoken during legislative

debate, any other matters it reaches "must be an

integral part of the deliberative and communica-

tive processes by which Members participate in

committee and House proceedings...." Id. ODis-

closure of income from sources other than employ-

ment by the United States, see 2 U.S.C.

§702(a)(1)(A), is no part of such "deliberative

and communicative processes." Cf. Hutchinson v.

Proxmire, 443 U.S. 111, 99 S. Ct. 2675, 61

L.Ed.2d 411 (1979) (newsletters and press re-

110a

APPENDIX A

leases); United States ex rel. Hollander v. Clay,

420 F.Supp 853 (D.0.C. 1976) (Congressional tra-

vel vouchers). Prosecutions for falsification of

similar statements indicate that Lederer's finen-

cial disclosure statement was not shielded. See

United States v. Bramblett, 348 U.S. 503, 75 S.

Ct. 504, 99 L.Ed. 594 (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, 100 S.

Ct. 2961, 64 L.Ed.2d 838 (1980).

[21] 2. Jury Imstructions. Lederer's two

objections to the charge are without merit. It

was not error for Judge Pratt to explain "predis-

position" by asking the jury to determine whether

the defendant was "ready and willing" to commit

the crimes charged whenever a favorable opportu-

nity arose. United States v. Sherman, 200 F.2d

880, 882 (2d Cir. 1952). Lederer would have pre-

ferred an explanation that required finding a

Illa

APPENDIX 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, 101 S. Ct. 857, 66 L.Ed.2d

800 (1981). In this Circuit, the "ready and wil-

ling" phrase has been repeatediy 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, 94 S. Ct. 3080, 41

L.Ed.2d 672 (1974); United States v. Braver, 450

F.2d 799, 801 nm. 4, 805 (2d Cir. 1971), cert.

denied, 405 U.S. 1064, 92 S. Ct. 1493, 31 L.Ed.2¢

794 (1972). The jury need not find that the de-

fendant consciously consideredcommitting the crime

before the opportunity arose, only that he was

predisposed to accept the opportunity presented

to him, i.e., of a frame of mind that made him

"ready and willing" to commit a crime, even on

the first occasion that he may have considered it.

112a

APPENDIX A

[22] 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, Criden 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 precludes

claim that lack of use immunity for the witness

created prejudice), cert. denied, 440 U.S. 917, 99

S. Ct. 1236, 59 L.Ed.2d 467 (1979).

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

113a

APPENDIX A

nature of the "sheiks" and their immigration pro-

blems renders the crime of bribery, as alleged in

the indictment, impossible of performance. The

"impossibility" defense has been a matter of con-

flicting 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, 10 Cal.Rptr. 465, 358 F.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 de-

fendant thought it had. E.g., United States v.

Oviedo, 525 F.2d 881 (5th Cir. 1976) (sale of un-

controlled substance incorrectly believed to be

controlled substance); United States v. Berrigan,

482 F.2d 171 (3d Cir. 1973) (transmittal of letters

1l4éa

APPENDIX A

to prison inmate correctly believed to be without

warden's knowledge).

[23] The claim is unavailing here for the

basic reason that the crime charged did occur.

The indictment charged and the evidence esta-

blished 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, 92 S. Ct. at 2544. Whether the promise

was carried out is irrelevant, id. at 527, 92 S.

Ct. at 2544, 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 de-

fendant's authority, United States v. Carson, 464

F.2d 424, 433 (2d Cir.), cert. denied, 409 U.S.

949, 93 S. Ct. 268, 34 L.Ed.2d 219 (1972); United

States v. Heffler, 402 F.2d 924 (3d Cir. 1968),

cert. denied, 394 U.S. 946, 89 S. Ct. 1280, 22

L.Ed.2d 480 (1969), or had already been taken,

United States v. Arroyo, supra, 581 F.2d at 653-

115a

APPENDIX A

57; cf. United States v. Rosner, supra, (18

U.S.C. §201(b), punishing the bribepayer, is vio-

lated whether or not purpose of the bribe is

capable of attainment); United States v. Jacobs,

431 F.2d at 759 (same). 24 Neither is it a defense

22. Thompson relies on United States v. Reisley,

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 sta-

tute 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 henefits. In

fact, the increase had already occurred without

any action by the defendant. Reisley viewed the

offense as accepting payment for services ren-

dered, and acquitted the defendant since in fact

services had not rendered. Even if that decision

is correct as to a conflict of interest violation,

its force as applied to a bribery violation is ne-

gated 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 reci-

pient 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 Whitney 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 Reisley's view of

a conflict of interest statute.

116a

APPENDIX A

that the public official will not be called upon

to take official action because of the ficticious

nature of the person alleged to be seeking assis-

tance. "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

@ private immigration bill qualifies as an "offi-

cial act," whether or not the beneficiary 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, 86 S. Ct. 749, 755,

15 L.Ed.2d 681 (1966).

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, attack Judge

Pratt's supplemental instruction, in response to

a jury inquiry, concerning the element of receipt

117a

APPENDIX A

of illegal payment. Understanding the claim re-

quires some elaboration of the pertinent circum-

stances. The courts of the indictment charging

violations of bribery, unlawful gratuity, and con-

flict of interest all alleged receipt of money be-

tween 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 Cri-

den, not the October 9 transaction involving

Thompson and Criden. In its bill of particulars

the Government alleged that the $50,000 cash pay-

ment "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

possession 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

|

:

118a

APPENDIX A

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 Govern-

ment has’ established 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 received by defendant

Murphy and defendant Thompson of both." (Em-

phasis added.) The jury was told that this "re-

ceipt" element also applied to the unlawful gratu-

ity and conflict of interest counts, and that a

defendant who did not receive part of the money

must be acquitted on all the substantive counts.

The jury's first inquiry of 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 defen-

dant Murphy, does [sic] that, under your charge,

be considered "for the benefit of an eventual

119a

APPENDIX A

reception by defendant Murphy or defendant

Thompson or both?["]"

Judge Pratt apparently thought that the jury mis-

takenly understood that Murphy's possession of

the briefcase at the October 20 meeting was a re-

quired aspect of a finding of receipt by him. He

therefore gave a supplemental instruction that in-

cluded the following:

"In specific answer to your question, as

| interpret it, actual possession of the briefcase

itself by Murphy would not have to be shown be-

fore you could determine 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 October 20 was required; they were

making the more trenchant inquiry as to whether

his constructive possession on that date was suf-

ficient. Their subsequent note read as follows:

120a

APPENDIX A

Your honor:

Some members of the jury feel it is possi-

ble that defendant Murphy took "direction &

control" of the briefcase however momentarily

by instructing Criden to take physica! posses-

sion, making Criden the "executor" of the

money in a sense at that point.

May we construe this to be in satisfaction

of element one of Count 2 in lieu of “eventu-

ally["] receiving the money at some later time?

[Emphasis original.]

This inquiry provoked an extended colloquy

between Court and counsel. Murphy contended

that the inquiry should be answered with a sim-

ple "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 ae public official re-

ceives anything of value either "for himself or

121a

APPENDIX A

for any other person of entity." Ultimately,

Judge Pratt decided to steer a middle course, re-

jecting a "no" answer and also rejecting the

Government'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 attention 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 esta-

blished by his words and conduct at the October

20 meeting. First he reminded the jury to focus

on the essential element of count Two, which he

summarized as being "that on or shortly after

October 20, 1979, the defendant received a sum

of money." He then endeavored to paraphrase the

jury's inquiry and respond to it:

"When | said in the charge it is for you

to determine based upon all the evidence whether

the Government has established beyond a reason-

able doubt that the money in the briefcase trans-

122a

APPENDIX A

ferred from Amoroso to Criden on October 20th,

was for the benefit and eventually received by

the defendant Murphy, or defendant Thompson, or

both, when | use the term ‘eventually,' there did

| really mean eventualiy and not then, October

20th[?]

And my answer to that is[:] you in apply-

ing 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 factua! dispute framed by Mur-

phy'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 recapitulated

his response in these words:

123a

APPENDIX A

"So my final answer to your question is:

lf you are talking simply about the tempo-

ral 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 misunderstood as altering the

Government's burden of proof as to knowledge.

Judge Pratt promptly recalled the jury and re-

emphasized, as he had when the inquiry was first

answered, that the burden to prove Murphy's

knowledge of the money beyond a_e reasonable

doubt rested upon the Govenment.

[24] The supplemental instruction presents

no ground on which either Murphy or Thompson

may now comptain.*” Judge Pratt's response did

23. Complaint is also made that Judge Pratt did

(footnote cont'd)

124a

APPENDIX A

not alter the requirement that the money be re-

ceived for the benefit of the defendant Limiting

(footnote cont'd)

not adequately alert counsel to his proposed re-

sponse before giving it to the jury. See United

States v. Ronder, 639 F.2d 931 (2d Cir. 1981).

Although Judge Prattdid not give counsel a ver-

batim 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 al-

lowed counsel to make further argument. There

is no basis for procedural complaint, especially

in view of the fact thatcounsel's remarks, after

hearing what Judge Pratt proposed to do, ques-

tioned only the substance of the response and of-

fered no suggestion that might improve its

wording.

24. Murphy was acquitted on the bribery count

and therefore challenges the supplemental instruc-

tion 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 thr prose-

cution'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 argu-

ment, 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 unlawfu! 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

(footnote cont'd)

125a

APPENDIX A

himself to the precise point raised by the jury,

he broadened only the temporal aspect of receipt.

He permitted a finding of receipt not only at some

point after October 20 but also at the time of the

October 20 meeting. This permitted the jury to

find that Murphy had constructively received the

money for himself on October 20 and had permit-

ted Criden to take physical possession, presuma-

bly with the expectation that at some point

Murphy would regain physical possession of a

portion of the money, even if the occurrance of

that last step was not found to have been esta-

(footnote cont'd)

public official "for himself," and "for any other

person or entity" as provided in section 201(c),

punishing bribery. We are also willing to as-

sume, for the sake of argument, that section

203(a), punishes 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, 359 U.S. 255, 79 S.

Ct. 746, 3 L.Ed.2d 789 (1959) (construing 18

U.S.C. §214 (1958) (mow 18 U.S.C. §210 (1976)).

126a

APPENDIX A

lished.2” 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

briefcase 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 re-

ceipt on October 29, a theuery that, in any

event, was comprehended by the bill of par-

ticulars. In arguing the point on

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 on this characterization, overlook-

ing 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.

127a

APPENDIX A

appeal, Murphy makes no showing of any preju-

dice from the supplemental 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 unvaried 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.

[25] 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 am-

ple opportunity after hearing both the substance

of Judge Pratt's proposed response and the deli-

very of the response to suggest additional

language explicating constructive possession. if

the jury's approximation of the concept evident

from the test of their inquiry required refinement,

the opportunity for amplification was available

128a

APPENDIX A

to the defendants both before and after the in-

struction 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 circum-

stances.

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

agencies, whereas the District Court's instruction

permitted the jury to find a violation for render-

ing services of a broader nature including merely

giving advice. “© The claim requires consideration

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 periding before a gov-

ernmental forum. However, the statute contains

no requirement of a proceedings pending at the

time compensation is received. United States v.

(footnote cont'd)

129a

APPENDIX A

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 re-

ceive, or asks, demands, solicits, or seeks,

any compensation io any services rendered or

to be rendered either by himself or another--

(1) at a time when he is a Member of Cong-

ress, Member of Congress Elect, Delegate from

the District of Columbia, Delegate Elect from

the District of Columbia, Resident Commissioner,

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,

footnote cont'd)

Evans, 572 F.2d 455, 481 (Sth Cir.), cert. denied,

439 U.S. 870, 99 S. Ct. 200, 58 L.Ed.2d 182

(1978); United States v. Johnson, 337 F.2d 180,

196 (4th Cir. 1964), aff'd, 383 U.S. 169, 86 S. Ct.

749, 15 L.Ed.2d 681 (1966).

130a

APPENDIX A

including the District of Columbia,

in relation to any proceeding, application, re-

quest for a ruling or other determination, con-

tract, claim, controversy, charge, accusation, ar-

rest, or other particular matter in which the Uni-

ted States is a part or has a direct and substan-

tial 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-martial, officer, or any civil, mili-

tary, or naval commission" modifies the category

of covered proceedings or the category of covered

services. The placement of the "before" phrase

adjacent to the category of covered proceedings

is some indication that only the immediately pre-

ceding category was intended to be modified. But

this structural point is mot so compelling as to

preciude examination of legislative history. The

Report of the Senate Committee on the Judiciary

i3la

APPENDIX A

describes the predecessor statute, 18 U.S.C. §281

(1958), as prohibiting Members of Congress and

officers and employees of the Government "from

receiving compensation for services rendered for

others before a Federal department or agency in

matters in which the Government is a party or is

interested." S, Rep. 2213, 87 Cong., 2d Sess. 9,

reprinted im 1962 U.S. Code Cong. & Ad. News

3852, 3858. In section 281 the "before" phrase

had appeared in the same position as it does in

section 203(a), yet the drafters of the Senate Re-

port apparently thought the phrase modified the

services rendered, The Report points out the

section 203(a) continues the restraint of the prior

section "in full effect" with one exception not

here pertinent. Id. The Report of the House

Committee on the Judiciary contains two references

to our problem; unhappily each points in a dif-

ferent direction. The summary of provisions, like

the Senate Report, describes the predecessor sta-

tute, section 281, as prohibiting receipt of

Pape ge ee,

132a

APPENDIX A

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-sec-

tion analysis describes former section 281 as pro-

hibiting receipt of compensation "for services in

relation to any matter in which the United States

is interested and which is before any Government

agency." Id. at 19. Our uncertainty remains.

Fortunately, section 203(a)'s = statutory

genealogy provides significant clues to its mean-

ing. In 1864, Civil War scandals involving cor-

rupt 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 ser-

vices in governmental proceedings before federal

departments, agencies, military commissions. Act

of June 11, 1864, ch. 119, 13 Stat. 123.27 Although

27. See Ass'n of the Bar of the City of New York,

Conflict of Interest and Federal Service 40 (1960).

(footnote cont'd)

133a

APPENDIX A

the language of this early statute shares the

grammatical ambiguity of current section 203(a),

the legislative debate that surrounded its passage

reveals that Congress was primarily concerned

with government officials' being paid to bring

their influence to bear on federal agencies. Ac-

cording to Senator Trumbull, Chairman of the

Senate Judiciary Committee, the Statute was de-

signed "to prevent Representatives and Senators

(footnote cont'd)

The original statute read as follows:

[N]o member of the Senate or House of Repre-

sentatives 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 or

agree to receive any compensation whatsoever, di-

rectly or indirectly, for any services rendered, or

to be rendered, after the passage of this act, to

any persor,, either by himself or another, in rela-

tion 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 interested, before any

department, court-martial, bureau, officer, or

any civil, military, or naval commission what-

ever.

The statute was recodified in esentially 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

(footnote cont'd)

134a

APPENDIX A

in Congress and officers of the government who

are paid for their services from receiving a com-

pensation for advocating claims in the Depart-

ments and before the bureaus of Government."

Cong. Globe, 38th Cong., Ist Sess. 561 (1864).

In interpreting the more recent predeces-

sors of section 203(a), modern courts and commen-

tators have agreed that an essential element of

the offense is some appearance 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 dis-

missed an indictment based on 18 U.S.C. $261

(1952), section 203(a)'s 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.

(footnote cont'd)

remained until the 1948 revision of the federal

criminal laws placed it, along with some minor

amendments, at 18 U.S.C. §281 (1952).

135a

APPENDIX A

Waldin, 122 F.Supp. 903, 904 (E.D. Pa. 1954).78

A review of the legislative history and cases has

ied a knowledgeable commentator in this area to

28. In most of the cases interpreting section

203(a), the defendants had actually rendered

services before a federal agency. See, €.9.,

Burton v. United States, 202 U.S. 344, 26 S. Ct.

688, 50 L.Ed. 1057 (1906); May v. United States,

175 F.2d 994 (D.C. Cir.), cert. denied, 338 U.S.

830, 70 S. Ct. 58, 94 L.Ed. 505 (1949); United

States v. Johnson, 419 F.2d 56 (4th Cir. 1969),

cert. denied, 397 U.S. 1010, 90 S. Ct. 1235, 25

L.Ed.2d 423 (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.

Md. 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, 86 S. Ct. 749,

15 L.Ed.2d 681 (1966); United States v. Booth, 148

F. 112, 119 (C.C.D0. Or. 1906) ("the service must

be performed, ‘before any department [etc.]'").

136a

APPENDIX A

conclude that under section 203(a), and all its

predecessors, "criminal penalty attaches to a gov-

ernment employee's compensated services it, and

only it, the services are performed in particular

designated forums." 8B. Manning, Federal Conflict

of Interest Law 55 (1964). This background sug-

gests that section 203(a) should be limited to

services rendered before federal agencies-- the

mischief toward which the statute was directed--

and not mere advice concerning agency pro-

ceedings.

A further consideration favoring this con-

struction is the hazzards created by a broader

interpretation. Since a Member of Congress is

entitled to appeal before courts, even on matters

in which the United States has an 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 con-

cerning his client merits court challenge but re-

quires prior exhaustion of administrative remedies,

137a

APPENDIX A

Unquestionably the Member would be barred by

section 203(a) from handling the matter before the

administrative agency, and some courts apparent-

ly believe that section 203(a) prevents a govern-

ment official from plea-bargaining with the Jus-

tice Department 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, 86 S. Ct. 749, 15

L.Ed.2d 681 (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 representa-

tion before a federal department or agency. It

seems unlikely that Congress, having framed sec-

tion 203(a) to allow Members of Congress to repre

sent clients in court, intended the statute to

reach so far as to raise the prospect of a crimi-

138a

APPENDIX A

nal violation when the lawyer-legisiator counsels

his client.

The Government suggests that a _ broad

reading of section 203(a) is supported by a com-

parison of its terms with those of 18 U.S.C. § 205,

set out in the margin, 29 which explicitly covers

29. Whoever, being an officer or employee of the

United States in the executive, legisiative, or

judicial branch of Government or in any agency

of the United States, inciuding 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 re-

ceives any gratuity, or any share of or inter-

est in any such claim in consideration of as-

sistance in the prosecution of such claims, or

(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 particular matter 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:

[A]ny officer of the United States, or person

holding any place of trust or profit, or dis-

charging any official function under, or in

(footnote cont'd)

1394

APPENDIX A

(footnote cont'd)

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 in-

tent 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 mis-

demeanor, in any 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 peniten-

tlary not exceeding one year, or both, as the

court in its discretion shall adjudge.

Act of Feb. 26, 1953 ch. 8142, 10 Stat. 170. This

Statute was recodified in essentially the same form

in RS. § 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. Afterwards, 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, § 1(a),

76 Stat. 1122. The verbosity of previous versions

was eliminated, and section 205(2) was added,

140a

APPENDIX A

representational activities, Section 205 applies

only to officers or employees of the United States

and mot to Members of Congress. It covers the

the identical category of proceedings described in

section 203(a). its tist of forums is similar to

that im section 203(a) with the notable addition

of "courts." 30

But section 205 differs markedly

from section 203(a) in two respects. First, sec-

tion 205 prohibits conduct whether or not per-

formed for compensation, whereas section 203(a)

prohibits 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

30. The combined effect of omitting Members of

Congress from section 205 amd omitting courts

from the forums listed in section 203(a), which

aoplies to Members of Congress, permits Members

of Congress to appear before courts.

l4la

APPENDIX A

wider range of services than the representational

services proscribed by section 205. The argument

has some force, but is mot decisive. Even as to

officers or employees of the United States, who

are covered by both statutes, the conduct pro-

scribed by section 203(a) could be limited to

services rendered before federal agencies, without

completely 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 un-

dermines the Government's claim of a clearcut

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 influ-

ence in support of private causes." H.R. Rep.

No. 748, 87th Cong., Ist Sess. 21 (1961). The

142a

APPENDIX A

Report recognized that "section 28! [now section

203(a)] prohibits conduct of this mature when

compensated," but added that "it is important

that this type of representative activity be prohi-

bited when it is not compensated." Id. (emphasis

added). This suggests, contrary to the Govern-

ment'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 mot section 203(a), requiring a formal repre-

sentational role. As pointed out in a Justice De-

partment memorandum of which Congress has taken

note, "“[W]hile section 203 is controlling as to

Members of Congress, for all practical purposes

section 205 completely overshadows section 203 in

respect of officers and employees of the Govern-

ment." >! Memorandum of Attorney General-Standards

31. Significantly, this memorandum describes

section 203(a) as prohibiting Members of Congress

and government employees from receiving compen-

sation "for services rendered on behalf of another

person before a Government department." 18 U.S.C.

(footnote cont'd)

143a

APPENDIX A

of Ethical Conduct for Government Officers and

Employees, Exec. Order No. 11,222 (1965), re-

printed in 18 U.S.C, §201 mote, at 1025-32 (1976).

if section 205 in fact largely duplicates section

203(a), as applied to federal employees, the

Government cannot mow argue that the two sec-

tions have two entirely distinct purposes,

(footnote cont'd)

§ 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. Mur-

phy cites a Senate Judiciary Report that includes

the following: "The Department of Justice has,

however, followed the more restrictive interpreta-

tion 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, submit-

ted by the Department of Justice to a House Judi-

ciary Subcommittee: "[A]ny utilization of official

position to serve a private client, whether to in-

fluence the action of others or not, seems within

the ban of the statute." Memorandum of the Of-

fice of Legal Counsel for the Attorney General

(Dec. 10, 1956), reprinted in Federal Conflict of

Interest Legislation: Hearings Before the Anti-

trust Subcomm. of the House Comm. on the Judi-

clary, 86th Cong., 2d Sess., ser. 17, pt. 2, at

645-46 (1960),

1440

APPENDIX A

[26] 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 falis within their obligations

to their constituents and the public generally.

if Congress were to legisiate that broadly, it

would have to clarify the line between permissible

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 of 1864 or the revision

in 1962, we think it sounder to construe section

203(a) to reach only services performed or to be

32. To a considerable extent, the Government's

concern that Members of Congress should not be

permitted to accept extra compensation for per-

forming their duties is met by the provisions of

the unlawful gratuity statute, 18 U.S.C. §201(g9)

(1976), which formed the basis for Murphy's con-

viction on Count Five, Though that statute is

broad in scope, it is limited to receipt of pay-

ment because of "any official act" performed, to

to be performed, and does not extend to the

giving of advice, which the Government would in-

clude under §203(a).

1454

APPENDIX A

performed before the federal forums listed in the

Statute,

This interpretation, however, is mot 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 ap-

pearances, are proscribed,

[27] Im the Thompson-Murphy trial, Judge

Pratt, over the objection of Murphy, 29 gave the

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 pro-

posed instruction on section 203(a), which limited

the prohibited services to "interceding" with

federal agencies and made clear that advising a

person to seek the advice of attorneys is not im-

proper. "Interceding" may connote in some

minds a more direct action than the rendering of

"any " services "before" a federal forum "in rela-

tion to" a proceeding in which the United States

(footnote cont'd)

1460

APPENDIX A

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, 48 we construe the sta-

tute 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 re-

maining im the country...." The summation on

behalf of Murphy had argued, based on some of

the phrases he used at the October 20 meeting,

(footnote cont'd)

has an insterest. Nevertheless, the proposed in-

Struction, if mot 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 re-

quested instruction is not sufficient to preserve

for appeal complaint that the charge as given

failed to include it, see United States v. Fountain,

642 F.2d 1083, 1095 (7th Cir.), cert. denied, 451

U.S. 993, 101 S. Ct. 2335, 68 L.Ed.2d 854 (1961),

but in this case, Judge Pratt informed counsel

after considering and ruling upon requested in-

structions at a charge conference, that their ob-

jections voiced at that time would suffice to pre-

serve issues for appeal, in tieu 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.

147a

APPENDIX A

that he was only advising the sheik's represen-

tatives 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 sufficient to per-

mit a finding that Murphy had in fact accepted

money for services to be rendered before federal

agencies or departments on immigration matters,

the Government is entitied to prosecute the section

203(a) charge anew, if it is so advised.

[28] 3. Sufficiency of Evidence. Thomp-

son challenges the sufficiency of the evidence a-

gainst 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

1484

APPENDIX A

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 entitied 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 immigration

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 per-

haps sometime in the future."

[29] 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 thatthe evidence sh

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