# Appendix — Sikes v. Boone > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2849%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 466 U.S. 959 ## Text Sd-1loyl Supreme Court, U.S. Q8-1892° | FireD IN THE MAY 18 1984 Supreme Court of the United Statearoce STEVAS October Term. 1983 HARRY P. JANNOTTI. u' Petitioner UNITED STATES OF AMERICA. Respondent GEORGE X. SCHWARTZ. | Petitioner UNITED STATES OF AMERICA. Respondent APPENDIX OF PETITIONERS JANNOTTI AND SCHWARTZ On Petitions for Writ of Certiorari In No. and No. Respectively Of Counsel: DILWORTH. PAXSON. KALISII & KAUFFMAN 2600 The Fidelity Building Philadelphia. Pennsylvania 19109 Of Counsel: SPRAGUE. LEVINSON & THALL Suite 400, Wellington Building 135 S. 19th Street Philadelphia. Pennsylvania 19103 J. CLAYTON UNDERCOFLER. III ROBERT N. DELUCA CARL W. HITTINGER 2600 The Fidelity Building Philadelphia. Pennsylvania 19109 (215) 8735-7500 Attorneys for Petitioner Harry P. Jannotti RICHARD A. SPRAGUE STEVE ALEXANDER Suite 400. Wellington Bui!ding 135 S. 19th Street Philadelphia. Pennsylvania 19103 (215) 561-7681 Attorneys for Petitioner George X. Schwartz PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA., PA. 19123 (215) 236-2000 TABLE OF CONTENTS OF JOINT APPENDIX TO PETITIONS FOR WRIT OF CERTIORARI 2 eee Opinion of the United States Court of Appeals for the Third Circuit Entered 21 February SE hee errr ha ote NW cane hes Judgment of the United States Court of Appeals for the Third Circuit Entered 21 February 1984 Orders of the United States Court of Appeals for the Third Circuit: denying rehearing and rehearing en banc entered 20 March 1984; and staying issuance of the mandate en- Og ea eee Judgment of Conviction and Imposition of Sen- tence of the United States District Court for the Eastern District of Pennsylvania En- Bo re Opinion of the United States Court of Appeals for the Third Circuit Entered 11 February a os eae See a ee elas Memorandum and Order of the United States District Court for the Eastern District of we a ee ee ee ee et ie ee ee or a oe ee ee ee on oe ee i ee Page PA-1 PA-41 PA-42 PA-44 PA-47 Pennsylvania Entered 18 August 1980 ...PA-153 Memorandum and Order of the United States District Court for the Eastern District of Pennsylvania Entered 26 November 1980 PA-175 Order of the United States Court of Appeals for the Third Circuit Entered 26 August 1981 PA-225 Judgment of the United States Court of Appeals for the Third Circuit Entered 11 February 1982 TABLE OF CONTENTS OF JOINT APPENDIX — (Continued ) Page Charge to the Jury of the United States District Court for the Eastern District of Pennsylva- nia Delivered 16 September 1980 ....... PA-229 Constitutional and Statutory Provisions Involved PA-273 PA-1 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 83-1093 No. 83-1094 UNITED STATES OF AMERICA DS. JANNOTTI, HARRY P. SCHWARTZ, GEORGE X. Harry P. Jannotti, appellant in No. 83-1093 George X. Schwartz, appellant in No. 83-1094 (D.C. Crim. No. 80-00166-02) (D.C. Crim. No. 80-00166-04) Argued: September 12, 1983 Before: SEITZ, Chief Judge; Gibbons and Rosenn, Circuit Judges. (Opinion Filed: February, 21, 1984) J. CLAYTON UNDERCOFLER, III (argued) DILWORTH, PAXSON, KALISH & KAUFFMAN 2600 The Fidelity Building Philadelphia, PA 19109 Attorney for Appellant Jannotti PA-2 EDWARD H. RUBENSTONE (argued) RICHARD A. SPRAGUE SPRAGUE & RUBENSTONE Suite 400, Wellington Building 135 S. 19th Street Philadelphia, PA 91903 Attorneys for Appellant Schwartz JAMES J. ROHN (argued) United States Attorney's Office Rm. 3310, U.S. Courthouse 601 Market Street Philadelphia, PA 19106 Attorney for Appellee OPINION OF THE COURT SEITZ. Chief Judge: Harry P. Jannotti and George X. Schwartz appeal sentences imposed after their convictions for conspiring to violate the Hobbs Act, 18 U.S.C. § 1951(a) (1976), and, in the case of defendant Schwartz, the Racketeer Influenced and Corrupt Organization Act (“RICO Act”). 18 U.S.C. § 1962(d) (1976). This court has jurisdiction under 28 U.S.C. § 1291. I. PROCEDURAL HISTORY Defendants are former members of the Philadelphia City Council. They were tried together on charges of conspiring to interfere with interstate commerce, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and conspiring to conduct an enterprise through racketeering activities, in violation of the RICO Act, 18 U.S.C. 1962(d). The indictment charged eT os pees PA-3 that the conspiracies existed for approximately three weeks, from about January 11, 1980, to about February 2, 1980. The jury found that Schwartz was guilty on both counts, and that Jannotti was guilty on the Hobbs Act count and innocent on the RICO countt. The district court, however, granted defendants’ motions to set aside the guilty verdicts in their entirety, dismissed the Hobbs Act counts for lack of jurisdiction, and entered judgments of acquittal. 501 F. Supp. 1182. The government appealed these orders and judgments, and this court, sitting in banc, reversed and ordered reinstatement of the jury's verdicts. 673 F.2d 578, cert. denied, 457 U.S. 1106 (1982). The district court reinstated the verdicts and imposed sentences. Il. FACTUAL BACKGROUND A brief statement of the facts of this case will assist in understanding the issues presented in this appeal. A more complete statement of the facts is found in this court's in banc decision. See 673 F.2d 578, cert. denied, 457 U.S. 1106 (1982). Schwartz's and Jannotti’s indictments resulted from the FBI's so-called “ABSCAM" investigation of political corruption. The central device in this “sting” investigation was the creation of an elaborate scheme in which FBI undercover agents pretended to represent the interests of a fictitious Arab sheik seeking to immigrate to this country and to construct a large hotel in Philadelphia. Undercover FBI agents, posing as representatives of the sheik, came to Philadelphia in January 1980 to seek out city officials who would promise political favors in exchange for cash. Specifically, the agents sought help from some members of the Philadelphia City Council on such matters as zoning and building permits. The agents had previously met with Howard PA-4 Criden, a Philadelphia lawyer, and through Criden they met in January with Schwartz, Jannotti, and Louis Johanson, all members of the City Council.‘ At these meetings the defendants and Johanson accepted cash payments and made promises of political assistance to the sheik on matters before the city council. All of these meetings took place at the Barclay Hotel in Philadelphia, where the agents had set up audio and video tape equipment to record the conversations surreptitiously. Telephone conversations were also recorded. These audio and video tapes played a crucial role in the prosecutions of Schwartz and Jannotti. Ill. JURISDICTION UNDER THE HOBBS ACT Defendants raise numerous objections to their convictions. They first argue that this court, in its earlier decision in banc, announced the standard for jurisdiction under the Hobbs Act but ignored a secondary contention, that the evidence failed to meet that standard. Defendants therefore renew in this appeal their argument that the evidence was insufficient. We disagree that the issue of the sufficiency of the evidence was not considered in the earlier opinion. After a thorough examination of the record, this court held as follows: In this case the jury found that the defendants conspired to violate the Hobbs Act by their acceptance of payments in return for their promises to expedite completion of an elaborate hotel project which, had it been constructed, 1 Criden and Johanson were convicted in the Eastern District of New York on charges of conspiracy and bribery. Their convictions were upheld on appeal. United States v. Myers, 692 F.d 823 (2d Cir. 1982), cert. denied, 103 S. Ct. 2437, 2438 (1983). PA-5 would have entailed at least a %30 million expenditure. Had the project actually been planned as represented, defendants’ actions would have violated the Hobbs Act even if unforeseen difficulties, such as the overthrow of the “sheik”, prevented any further action on the project. The federal interest in protecting interstate commerce is no less under the factual situation presented in this case. The threat posed by defendants’ actions is just as great. Since Congress has exercised the full scope of its commerce power in the Hobbs Act, we conclude that there was Hobbs Act jurisdiction. 673 F.2d at 594. It is clear from this passage that the court in its earlier opinion not only articulated a standard for jurisdiction under the Hobbs Act but also held that jurisdiction existed on the basis of evidence presented by the government. IV. HEARSAY EVIDENCE Both defendants argue that the district court improperly admitted various pieces of important hearsay evidence. Unless otherwise noted, defendants entered -timely objections to the admission of this evidence at trial. All of the evidence at issue was admitted under the “coconspirator exception” to the rule against hearsay, Fed. R. Evid. 801(d)(2)(E). Under that exception, the out-of-court statements of the defendants’ coconspirators will not be excluded as hearsay. The rule is a source of considerable confusion, but its requirements, as construed in this circuit, may be summarized as follows. There must be “independent evidence” of the conspiracy, i.e., evidence independent of the proffered hearsay itself. This evidence must establish by a “clear preponderance” that the conspiracy existed and that both the defendants and PA-6 the declarant were members of the conspiracy. The “preponderance” test “simply requires the prosecution to present sufficient proof leading the trial] judge to find ‘that the existence of the contested fact is more probable than its nonexistence." United States v. Ammar, 714 F.2d 238, 250 (3d Cir.), cert. denied, 104 S. Ct. 344 (1983). Finally, the out-of-court statement must have been made during the course of, and in furtherance of, the conspiracy. Id. at 245. Where the district court has admitted such statements under Rule 801(d)(2)(E), our review is limited to the question whether, viewing the evidence in a light most favorable to the proponent (in this case the government), the district court had “reasonable grounds” to support its ruling. Id. at 249. A. Proof of the Schwartz-Jannotti Conspiracy In order to assess the defendants’ objections to the admission of certain out-of-court statements, it is necessary to review first their challenge to the district court's finding that there was a preponderance of independent evidence establishing a conspiracy to which the defendants belonged. If we conclude that the district court had reasonable grounds for its finding, we must then inquire whether the out-of-court statements challenged by the defendants satisfied the other requirements of Rule 801(d)(2)(E). We have no doubt whatsoever that the district court had reasonable grounds for finding that a preponderance of the independent evidence established a conspiracy in which Schwartz, Jannotti, and Criden were members. The goal of this conspiracy was illegally to assist the fictitious sheik in matters before the Philadelphia City Council relating to the hotel project, in exchange for cash. In the videotape of a meeting between Schwartz, Criden, and the PA-7 undercover agents on January 23, 1980, Schwartz told the agents that “we got uh five or six now [new?] members (of the City Cowrieil) that came in. UR, you tell me your birth date. I'll give them to you for your birthday. (Laughter).” (App. 696a) This statement was independently admissible as an admission under Rule 801(d)(2)(A). Schwartz also made statements that evidenced Criden’s complicity in the conspiracy. For example, Schwartz told the agents that “[t]here are certain protocol that should be worked out in advance and that’s where the law firm, Howard [Criden], will become involved. To put it together so that it doesn't boomerang.” (App. 756a) At the conclusion of the meeting, Schwartz examined and accepted an envelope containing %30,000 in cash. In the videotape of the meeting between Criden, Jannotti, and the agents, also admissible under Rule 801(d)(2)(A), Jannotti stated the following: JANNOTTI: We'll go in there [the City Council] and battle, we'll go in and battle. AGENT: You're with us? JANNOTTI: Certainly, we'll go in and battle. (App. 867a) Jannotti also explained to the agents that Schwartz had told him about the proposed scheme: AGENT: Okay, ah, are you aware of my position and ah, ah. JANNOTTI: George [Schwartz] has told me. (App. 848a) At the conclusion of this meeting, the agents gave Jannotti an envelope containing *10,000 in cash. PA-8 Because we are convinced that the district court had reasonable grounds for finding that a conspiracy was established by a preponderance of the evidence, we must now consider the defendants’ challenges to the admission of particular out-of-court statements under the coconspirator rule. B. The Telephone Calls The defendants first challenge the admission of audio tapes of three phone conversations on January 11 and January 18, 1980, between Howard Criden and an undercover FBI informant. Defendants argue that the conspiracy discussed above had not yet begun at the time of these conversations, and that the tapes therefore should not have been admitted under Rule 801(d)(2)(E). The indictment charged both defendants with belonging to a conspiracy starting January 11, the date of the earliest of the conversations at issue. The government, however, does not challenge in its brief the defendants’ assertion that no conspiracy existed at the time of these conversations. Instead, the government seems to argue that the tapes were admissible because they were merely “background” and nonprejudicial. The government, however, has cited no authority for a “background” exception to the hearsay rule, and we will therefore assume that these tapes should have been excluded from evidence at trial. We reject defendants’ contention, however, that admission of the evidence constitutes reversible error. Neither Schwartz nor Jannotti is mentioned in the conversations. The January 18 conversations simply concern the arrangements for the meeting between Criden and the undercover agents and do not hint at illegality. We agree that certain remarks during the January 11 conversation suggest a general atmosphere of corruption. Criden refers to a law partner who is a a Ss eee Ne ee EN 8 ee et EA nei at NN snl we Pla mE Ne hl Ne Tia PA-9 city councilman, suggesting a deal in the making that might involve political favors. This reference, however, is harmless in view of admissible evidence, considered later, that the partner, Johanson, was indeed a member of the defendants’ conspiracy. There are also remarks in the conversation about arrangements being made with Philadelphia-area congressmen who were later indicted and convicted for involvement in ABSCAM. The possibility that the defendants were prejudiced by this indirect association with the congressmen its insignificant in view of other proof of the defendants’ guilt, including the statements of Schwartz and Jannotti quoted above. We therefore conclude that it is “highly probable” that these tapes “did not contribute to the jury's judgment of conviction.” Government of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976).? Defendants also challenge the admission of these particular tapes on the ground that the admission violated their rights under the sixth amendment to confront witnesses. This issue is raised for the first time on appeal, no objection having been entered in the district court. We will assume without deciding that questions of alleged constitutional error under the 2 The “high probability” standard is different from the “reasonable doubt” or “reasonable possibility” standard of appellate review used to determine the harmlessness of constitutional error. See Chapman v. California, 386 U.S. 18, 24 (1967). “High probability” requires that we have a sure conviction that the error did not prejudice the defendants. Cf. Kotteakos v. United States. 328 U.S. 750, 764-65, 776 (1946). We may not simply conclude that it is more likely than not that the error was harmless. On the other hand, we may be firmly convinced that the error was harmless without disproving every “reasonable possibility” of prejudice. See R. Traynor, The Riddle of Harmless Error 33-37, 44-45 (1970). PA-10 sixth amendment are generally cognizable under the doctrine of “plain error”, Fed. R. Crim. P. 52(b), and that the admission of this hearsay evidence failed to satisfy the requirements of the confrontation clause. We conclude, however, that the admission of these tapes, if erroneous, was harmless beyond a reasonable doubt. Brown v. United States, 411 U.S. 223 (1973): Chapman v. California, 386 U.S. 18, 24 (1967). C. The Meetings on January 18, 1980 The defendants next challenge the admissibility of videotapes of meetings between Criden and the FBI undercover agents, and between Criden, the agents, and Louis Johanson, a partner in Criden’s law firm and a member of the Philadelphia City Council. Defendants challenge this evidence on various grounds. The first meeting, they assert, took place before the conspiracy began. As explained above, we are willing to assume that this is true and that the evidence should have been excluded at trial. We believe, however, that this evidence was merely cumulative. At the meeting, the agents explained the fictitious hotel project in greater detail to Criden. The agents told Criden they needed help with the many problems that would arise during such a project, and the discussion turned to Johanson and Schwartz. Criden agreed to help enlist them, and the agents promised him $10,000 in return. In view of the very persuasive and damning evidence noted elsewhere in this opinion, it is highly probable that the supposedly erroneous admission of this evidence did not influence the jury in any substantial way, despite the fact that defendant Schwartz was mentioned by name on the tape as a potential coconspirator. Defendants challenge the admission of the tape of the second meeting, between the agents, Criden, and PA-11 Johanson, on the grounds that there was no independent evidence establishing that Johanson had joined the conspiracy between Schwartz, Jannotti, and Criden. In addition, they argue that even if there were such independent evidence, the tape of the January 18 meeting was inadmissible because the meeting occurred before Schwartz and Jannotti joined the conspiracy, and because. by the time they did join. Johanson had withdrawn. The defendants challenge the admission of the tape of the third meeting, after Johanson had left. on the ground that Criden’s remarks to the undercover agents were not in furtherance of any conspiracy, even the one between Criden and Johanson. We first consider whether Johanson was a member of the Schwartz-Jannotti conspiracy described above. The independent evidence of Johanson’s involvement is not as strong as the evidence against Schwartz, Jannotti, and Criden, but we nonetheless conclude, without hesitation, that the district court had reasonable grounds for holding that the evidence satisfied the preponderance requirement. There was independent evidence that undercover FBI agents established a scheme to solicit political help from Philadelphia City Council members on matters affecting a hotel project (App. 552a), and that Schwartz and Jannotti agreed to sell political favors to these agents. There was also independent evidence that Johanson was a council member serving on the council committee dealing with zoning matters (App. 177a), that Johanson met with these same agents and Criden less than a week before the agents’ meetings with Schwartz and Jannotti, described above, and that Johanson accepted 25,000 in cash from them (App. 471a). Finally, independent evidence established that Criden was paid %5,000 for “producing” Johanson (App. 524a, 572a, 577a). and that Criden was PA-12 depositing the money he was receiving from the agents in a safe deposit box which was accessible only to Criden, Johanson, and another member of their law firm (App. 596a-97a). We have no doubt that the district court had reasonable grounds for including Johanson in the conspiracy on the basis of this evidence. The question remains whether Johanson’'s particular statements at the meeting on January 18 were admissible. Defendants argue that even if Johanson were a member of the conspiracy, this particular meeting took place before Schwartz and Jannotti joined. Moreover, Johanson had withdrawn from the conspiracy by the time they became members. The fact that the Johanson meeting occurred before Schwartz and Jannotti joined the conspiracy is without legal significance. The Supreme Court has held that “the declarations and acts of the various members, even though made or done prior to the adherence of some to the conspiracy, become admissible against all as declarations or acts of co-conspirators in aid of the conspiracy."’ United States v. United States Gypsum Co., 333 U.S. 364. 393 (1948). See also United States v. Lester, 282 F.2d 750, 753 (3d Cir. 1960); Lefco v. United States, 74 F.2d 66, 68 (3d Cir. 1934). We find the defendants’ withdrawal argument unsupported by the evidence. The record indicates that Johanson refused to help Criden enlist Schwartz (App. 607a), and it also suggests that Johanson was unaware that Criden was able to contact Schwartz despite this refusal. There is no evidence at all, however, that Johanson had withdrawn from the conspiracy. Indeed, he had accepted $25,000 from the undercover agents only a few days before his decision not to enlist Schwartz, and there is no reason to believe he did not PA-13 still intend to provide political favors as promised. As this court has explained, “[t]he defendant must present evidence of some affirmative act of withdrawal on his part, typically either a full confession to the authorities or communication to his co-conspirators that he has abandoned the enterprise and its goals." United States v. Steele. 685 F.2d 793, 803 (3d Cir.), cert. denied, 103 S. Ct. 213 (1982). Once the defendant has made a prima facie showing of withdrawal, the burden shifts to the government either to impeach the defendant's proof or to show some act by the defendant in furtherance of the conspiracy and subsequent to the alleged withdrawal. Id. The defendants have not made a prima facie showing of withdrawal. The mere possibility that Johanson may not have known that Criden enlisted Schwartz on his own does not require us to conclude that Johanson had withdrawn or had somehow become a member of a different conspiracy, since “[i]t is well-established that one conspirator need not ... be aware of all the details of the conspiracy in order to be found to have agreed to participate in it.” United States v. Riccobene, 709 F.2d 214, 225 (3d Cir.), cert. denied. 104 S. Ct. 157 (1983). We also reject defendants’ assertion that Criden’s statements to the agents at the meeting immediately after Johanson’'s departure were not in furtherance of the conspiracy. At that meeting, Criden met alone with the undercover agents, discussed the enlistment of Schwartz and Jannotti, and received %5,000 for enlisting Johanson. (App. 499a-500a) It is difficult to imagine statements more in furtherance of a conspiracy to sell political favors. Finally, the defendants challenge the admission of videotapes of two meetings between Criden and the undercover agents. The first of these meetings occurred on January 23, 1980, immediately after the PA-14 meeting between Criden, the agents, and Schwartz. The second occurred on J iuary 24, 1980, immediately after the meeting between Criden, the agents, and Jannotti. The defendants challenge the admission of these videotapes on the ground that the statements at the meetings were not in furtherance of the conspiracy to buy influence among members of the city council. The improper admission of these videotapes. they argue, was prejudicial and constitutes reversible error. We find that, with the exceptions discussed below, the statements at the two meetings between Criden and the undercover agents were in furtherance of the conspiracy to buy influence. At the first meeting, Criden collected $5,000 for introducing Schwartz to the agents. Criden assured the agents that Schwartz was corrupt and would fulfill his end of the illegal bargain. (App. 760a) The conversation then turned to the proposed meeting with Jannotti. The agents asked Criden whether the meeting had been arranged, and Criden responded that he had had some difficulties (App. 762a-64a) and was not sure Jannotti could or should be included (App. 771a). Eventually Criden agreed to try to arrange the meeting, and there was a discussion of the price required to purchase Jannotti's assistance. Criden and the agents decided to begin with an offer of $10,000. At the second meeting, the agents asked Criden whether Jannotti understood the arrangement and could be relied on to perform. Criden responded that Jannotti understood the offer and was reliable. (App. 895a, 897a. 905a) In each of these two meetings, the agents and Criden discussed the probable success of the scheme and the amounts required to buy the influence of the coconspirators. Although not as central to the PA-15 conspiracy as the agents’ meetings with Jannotti, Schwartz, and Johanson, these meetings nonetheless clearly and materially advanced the conspiracy toward its goal of using illegally acquired political influence to eliminate obstacles to the construction of the hotel. We therefore hold that these portions of the videotapes were properly admitted under Rule 801(d)(2)(E). We agree with defendants, however, that certain portions of these videotapes in which the parties discussed certain United States Congressmen were inadmissible because the discussions were not in furtherance of the conspiracies charged. Defendants challenge the admission of tapes of both the January 23 and the January 24 meetings on this ground. The government responds that the defendants at trial withdrew their objection to the January 23 meeting. (App. 195a-96a, 792a-94a, 798a) Although the trial transcript is not very clear, we believe that the withdrawn objection was a relevancy objection entered after the jury had viewed the videotape, not the Rule 801(d\(2\(E) objection entered prior to the viewing. (App. 684a) We will therefore review both the January 23 and the January 24 meetings. In the meeting on the 23rd, the agents and Criden discussed two Pennsylvania congressmen and referred to deals with them that were apparently different from the hotel project. (App. 766a-67a, 774-77a, 781a-82a) In the meeting on the 24th, the agents and Criden discussed an upcoming meeting with a member of Congress from the Philadelphia area. Later during the meeting, the congressman called and talked to one of the agents. (App. 894a, 906a-07a) The presence of these discussions on the tapes is not surprising, of course, since ABSCAM was a large and diverse undertaking, with many overlapping instances of graft and corruption. The government, however, has not argued before this court that these PA-16 other schemes were part of the conspiracy with which we are concerned, and apparently the government made no such argument at trial. This court is aware that in some instances it may be very difficult to delete inadmissible portions of a videotape without rendering the evidence unintelligible. Such is not the case here, however. We have no doubt that the objectionable portions of these videotapes could have been deleted without seriously affecting the impact of the tapes as a whole, and we therefore conclude that these portions of the tapes should not have been admitted. Despite this conclusion. however, we find such error was not prejudicial to the defendants in any significant way. Any blemishes to the defendants’ characters resulting from the admission of this evidence were utterly insignificant in view of the admissible evidence against the defendants. E. Conclusion We conclude that,. with the exception of the statement made about the congressman, discussed above, and the earlier tapes of Criden’s meetings with the agents, which we assume to be inadmissible but harmless, all of the hearsay evidence offered by the government under Rule 801(d)(2)(E) was properly admitted. V. THE ENTRAPMENT CHARGE Defendants next argue that the district court improperly charged the jury on the issue of entrapment by bifurcating the burden of proof and requiring the defendants to satisfy a threshold burden before they could be entitled to jury consideration of the defense. Our review of this issue is plenary. The district court's charge to the jury on the issue of entrapment was a long one, and what follows are only the passages most relevant to the defendants’ argument. PA-17 Before an issue of entrapment arises and before you have to consider entrapment the evidence must lead you to believe that the Government induced the defendant to commit the crime charged.... The issue really is: Is this a crime which would have been committed without the Government's participation or is this something where the idea for committing this particular crime originated with the Government and that it was the Government's idea that this particular : crime be committed? (App. 1351a) If the government is responsible for inducement -- that is, if the idea for committing the crime originated with the Government, if this specific crime would not have been committed but for the Government's idea and action -- then in order to obtain a conviction the Government must go further and must prove beyond a reasonable doubt that the defendant was predisposed to commit crimes of that type. - (App. 1352a) If there was inducement, then the Government cannot obtain a verdict of guilty unless the evidence as a whole proves beyond a reasonable doubt that the particular defendant was predisposed to commit that type of offense. (App. 1362a) [Ylou are, first of all, on the one had, not here to decide generally whether you like what the Government did or not but, rather, the specific question as to whether what they did amounted to inducement and, if so, whether they have shown predisposition. (App. 1366a) After the charge had been given, a side-bar conference was held to consider objections. Defendants’ lawyers argued that the court had instructed the jury on a PA-18 bifurcated burden of proof on the issue of entrapment, which was improper in view of certain prior decisions in this circuit. The court apparently rejected this argument but agreed for other reasons to supplement the charge on entrapment. In this supplemental charge, the court stated the following: If you find from the evidence that there was inducement, that the crime was induced by the Government agents -- that is, if you accept as correct the inferences urged upon you by defense counsel to the effect that Criden was being paid money to bring them in and that they were being offered this hotel project only on condition that they accept and so forth, if there was inducement -- if you find those facts to be correct, then that would amount to inducement and you would therefore acquit the defendants unless the evidence as a whole satisfies you beyond a reasonable doubt that they were predisposed. In short, the burden is upon the Government in a case of this kind to prove beyond a reasonable doubt that there was no entrapment. If the defendants were induced to commit the crime, then they were entrapped and should be acquitted unless the Government satisfies you beyond a reasonable doubt that they were predisposed to commit the crime. (App. 1378a-79a) To analyze the defendants’ objection to this charge, we turn to an earlier decision of this court, United States v. Watson, 489 F.2d 504 (3d Cir. 1973), where we considered how to charge a jury on entrapment. To be entitled to such a charge, the defendant must first show “(1) evidence that the Government initiated the crime, regardless of the amount of pressure applied to the defendant, and (2) any evidence negating the defendant's propensity to commit the crime.” Id. at PA-19 509. The question of whether the defendant is entitled to the entrapment charge is for the court. Id. at 511. See also United States v. Wolffs, 594 F.2d 77, 81 (5th Cir. 1979). If the court decides to give the charge, it must follow the “unitary” approach, in which the burden to disprove the entrapment defense as a whole, beyond a reasonable doubt, is placed exclusively on the government. Failure to place this burden exclusively on the government will not be cured by the presence of a general charge that the government has the burden of proving the defendant's guilt beyond a reasonable doubt. Watson, 489 F.2d at 51 n.10: Government of Virgin Islands v. Cruz, 478 F.2d 712, 717 (3d Cir. 1973) (dictum). The focus of the entrapment defense is on the defendant's predisposition, as required by the Supreme Court in United States v. Russell, 411 U.S. 423 (1973). Inducement, however, is not irrelevant. As this court explained in Watson, the stronger the inducement, the more likely that any resulting criminal conduct of the defendant was due to the inducement rather than to the defendant's own predisposition. Under the unitary approach we require, inducement therefore enters as an element of predisposition which the Government must disprove, rather than as an independent element which the defendant must prove. 489 F.2d at 511. This approach is to be distinguished from the “bifurcated” approach, in which the burden of proof is divided between the defendant and the government. Under the bifurcated approach, the jury must first consider whether the defendant has met his burden on PA-20 the issue of inducement. If so, then the jury must. consider whether the government has proved predisposition. See United States v. Sherman, 200 F.2d 880, 882-83 (2d Cir. 1952). This court rejected the bifurcated approach in Watson. 489 F.2d at 510, 511. Our preference for the unitary approach is grounded in several concerns. First, the Supreme Court has clearly held that entrapment is, at bottom, a question of the defendant's predisposition and not the government's inducement, although the latter is a relevant consideration. Russell, supra, 411 U.S. at 433-36. To divide the burden of proof between the defendant and prosecution on the issues of inducement and predisposition encourages the jury to ignore the Supreme Court's holding. Second, the unitary approach avoids the possibility of jury confusion inherent in a shifting burden of proof. Finally, the unitary approach is more consistent with the government's ultimate burden of proving the defendant's guilt beyond a reasonable doubt. Under our approach, the defendant need not offer evidence sufficient to support a finding of inducement, as the bifurcated approach would seem to require. Instead, the defendant need only raise a reasonable doubi about predisposition. Notaro v. United States, 363 F.2d 169, 176 (9th Cir. 1966). Turning to the district court’s charge in the present case, we note that the court clearly stated that “the burden is upon the Government in a case of this kind to prove beyond a reasonable doubt that there was no entrapment.” (App. 1379a) Repeatedly, however, the court indicated that the defendants had a threshold burden of showing inducement. Not only did this incorrectly divide the burdem ULetween the defendants and the government, but it also required an independent consideration of the issue of inducement, PA-21 apart from the central issue of predisposition. We must therefore conclude that the district court's instruction on entrapment was erroneous. We are not confronted here with an error affecting the defendants’ constitutional rights. The entrapment defense “is noi of a constitutional dimension,” United States v. Russell, 411 U.S. 423, 433 (1973), and the erroneous instruction affected no other possible constitutional right. We are therefore not required in this appeal to find beyond a reasonable doubt that the error was harmless, Chapman v. California, 386 U.S. 18 (1967). Instead, we must use the “highly probable” standard of appellate review discussed above. Government of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976). Applying this standard to the circumstances of this case, we hold that the erroneous instruction is not reversible. Fed. R. Crim. P. 52(a). As noted above, the district court charged the jury that it was obligated to acquit the defendants if the government failed to disprove entrapment beyond a reasonable doubt. This part of the charge was correct. The charge was erroneous insofar as the district court improperly required the defendants to show some evidence of inducement, either by introducing their own proof or by reference to the government's evidence. This evidence, however, was patent: the government had created an elaborate fiction to convince the defendants that an Arab sheik was prepared to pay bribes to local officials in exchange for favors. The district court correctly placed on the government the burden of proving predisposition beyond a reasonable doubt. We find that the government's evidence established overwhelmingly that the defendants enthusiastically accepted bribes. There simply is no credible evidence that the defendants were reluctant to take the money. To the PA-22 contrary, the evidence shows the defendants, each of them an elected public official, boasting of their power and their corruption. In view of this overwhelming proof, we conclude without hesitation that the defendants were not prejudiced by the district court's error. Defendants also argue that the district court's instruction on entrapment was so confusing as to warrant reversal. We agree that the charge was interspersed with digressions on legal and factual issues unrelated to the question of entrapment. We conclude, however, that the district court's instruction was not prejudicially confusing. VI. ENTRAPMENT AND AGENCY Related to the defendants’ challenge to the entrapment instructions is the argument that they were entitled, as a matter of law, to an instruction that Criden should be considered a government agent in determining whether there was entrapment. This argument, even if meritorious, is unavailing, since there is no evidence that Criden attempted to induce the defendants beyond informing them of the availability of the sheik’s offer. The defendants did not call Criden as a witness, nor did they seek to establish in any other way that Criden was instrumental in persuading the defendants to accept the bribes. We will not guess about such matters. Moreover, we note that the district court instructed the jury on the defendants’ claim that Criden was an agent, and we can only assume that the jury gave the theory whatever weight it was due. We will give it no more. VIl. THE RICO CHARGE Finally, defendant Schwartz attacks his conviction under the RICO Act. Schwartz was convicted under wy PA-23 RICO section 1962(d), 18 U.S.C. § 1962(d), for conspiring to violate section 1962(c). Section 1962(c) states that no person “associated with” an enterprise affecting interstate commerce may “conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity ..... The “enterprise” in the present case was the law firm of Criden, Johanson, Dolan, Morissey & Cook, in which both Criden and Johanson were partners. Schwartz raises two issues: first, that his conviction was not supported by evidence of a conspiracy to conduct an enterprise through a pattern of racketeering, and second, assuming such a conspiracy did exist, that there was insufficient evidence of Schwartz’s membership in it. We will consider these two contentions together. We examine the evidence in a light most favorable to the government to determine whether a jury could have resolved these issues against Schwartz beyond a reasonable doubt. We begin by noting the obvious. There is no question that a conspiracy existed to sell political favors to a fictitious Arab sheik, and that Schwartz was a member of that conspiracy. The evidence discussed above amply supports these conclusions. The question now under consideration is whether there was a RICO conspiracy, and whether Schwartz knowingly joined that RICO conspiracy. The Fifth Circuit has stated, and we agree, that “[t]he mere fact that a defendant works for a legitimate enterprise and commits racketeering acts while on the business premises does not establish that the affairs of the enterprise have been conducted ‘through’ a pattern of racketeering activity.” United States v. Cauble, 706 F.2d 1322, 1332 (5th Cir. 1983). Instead, the government must show that a person “‘is enabled to commit the predicate offenses solely by virtue of his PA-24 position in the enterprise or involvement in or control over the affairs of the enterprise; or ... the predicate offenses are related to the activities of that enterprise.’” United States v. Provenzano, 688 F.2d 194, 200 (3d Cir.), cert. denied, 103 S.Ct. 492 (1982) (quoting United States v. Scotto, 641 F.2d 47, 54 (2d Cir. 1980), cert. denied, 452 U.S. 961 (1981)). In order to establish a conspiracy to violate section 1962(c), “the government must prove beyond a reasonable doubt that ... the individuals knowingly agreed to participate in the ‘enterprise’ through a paticrn of racketeering.” United States v. Riccobene, 709 F.2c 214, 220-21 (3d Cir.), cert. denied, 104 S. Ct. 157 (1983). With these principles in mind, we turn to the record. Evidence presented to the jury would have allowed it to conclude beyond a reasonable doubt (1) that the ABSCAM “front” involved a fictitious Arab sheik who wished to contact a politically influential Philadelphia law firm as part of an effort to build the hotel; (2) that Schwartz knew this; and (3) that Schwartz agreed not only to perform political favors but also to set up contacts with the Philadelphia firm of Blank, Rome, Comisky & McCauley.* The jury could also reasonably have concluded that Criden regerded the illegal deal he had struck with the sheik as a 3. At the meeting on January 23, 1980, between Schwartz, Criden, and the undercover agents. one of the agents asked if Schwartz knew of a “local, politically savvy” law firm that the sheik could use. (App. 725a) Criden responded that Schwartz's old law firm, Blank, Rome, was the best candidate because of its expertise in building and zoning matters. (App. 726a-27a) Criden explained that he and Schwartz had “already discussed” the matter of the law firm. (726a-27a, 752a) Finally, Schwartz explained that Criden would work with the firm to take care of “certain protocol that should be worked out tn advance ....” (App. 755a-56a) This was to insure that the deal did not “boomerang.” (App. 756a) PA-25 business matter for his own firm of Criden, Johanson, Dolan, Morissey & Cook, and that Criden regarded the sheik and the undercover agents as the firm's “clients”.* Finally, the evidence would have allowed the jury reasonably to conclude that although the Blank, Rome firm was expected to get most of the sheik’s business, Criden expected his firm to continue to benefit, and that Schwartz knew this.* 4. At the same meeting described in the preceding footnote. Schwartz told the agent that Criden could “help” in the search for a firm. The agent responded that it might be difficult to use Criden’s firm because one of the partners (Johanson) was a member of the City Council, and it might create the appearance of a conflict of interest. The agent emphasized, however that he did not want to cut Criden out of the action. Criden reassured the agent that he and Schwartz had discussed these matters, and that there was no reason to worry. (App. 725a-26a) Ellis Cook, one of Criden’s law partners. testified at the trial] that on January 21, 1980, Criden gave him two sums of money, *3,000 and %5,000. both in cash. Criden described the first payment to Cook as his “fee” for the meeting between Criden, Johanson, and the undercover agents three days earlier. Criden told Cook that the second amount was part of Johanson’s payment, and that Cook was to put it in a safe deposit box accessible only to Criden, Johanson, and Cook. (App. 596a-97a) Cook had leased the safety deposit box, on Criden’s instructions, long before this meeting. As Cook explained, “it was to hold certain valuable papers for clients.” (App. 620a) At Criden’'s request, Cook later withdrew this money in the form of bank money orders. The money orders were payable to the Criden, Johanson law firm. (App. 598a-600a) When asked why Criden was giving money to him, Cook explained that Criden “had always been good to me, plus I had to do the legal work that was coming out of this.” (App. 624a. See also App. 626a-27a, 640a, 643a.) 5. Ellis Cook testified that Criden told him the hotel project would be handled by the Blank, Rome law firm, but that “[t}hey would be working with us on the project.” (App. PA-26 In view of this evidence, we conclude that a jury could have decided, beyond a reasonable doubt, that legal work was an important part of the proposed transaction, that Criden’s firm was expecting to do some of this legal work, and that Schwartz knew this. The jury could therefore have concluded beyond a reasonable doubt that Criden and Schwartz knowingly agreed to conduct or participate, directly or indirectly, in the conduct of the law firm's affairs through a pattern of racketeering activity, as proscribed by the RICO Act. Vill. CONCLUSION For the above stated reasons, the sentences of defendant Schwartz under the Hobbs Act and the RICO Act, and the conviction of defendant Jannotti under the Hobbs Act, will be affirmed.® 606a-07a) Criden indicated that he might be talking to someone about the possibility that Cook, Criden, and another partner would join the Blank, Rome firm. (App. 607a) This would bring to four the number of partners at the firm who had profited or could expect to profit from the hotel project and the legal business it would generate. Three of these were “name” partners. At the meeting on January 23, 1980, between Criden and the undercover agents after Schwartz had left the room, Criden explained the legal arrangements. He stated that there would be “substantial legal fees involved” and that these fees would be shared: For obvious reasons, okay, there will be substantial legal fees involved. Now I made a deal with him today. Okay, which was one of the reasons that everything worked so smooth because what was given to him was minor in comparison to what will be made in legitimate legal fees in a project of this nature. (App. 759a) 6. Defendants also raised certain issues in order to preserve them for future appeal. These issues, according to the defendants’ briefs, are the following: the nature of the proof necessary to show PA-27 ROSENN, Concurring and Dissenting. I concur and join in the majority opinion except insofar as it sustains the RICO conviction. I respectfully dissent from part VII (the RICO charge) and part VIII because the Government has not proved that Schwartz committed the offense charged in the RICO indictment. I. As the majority opinion notes, both appellants, members of the Philadelphia City Council, were convicted of having conspired to obstruct interstate commerce -in violation of the Hobbs Act by accepting payments in return for promises to expedite the construction of a major hotel complex in the city. The construction plan, however, was only part of a “sting” operation. On the same operative facts, the jury also found the defendant Schwartz guilty of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d) (1976). The RICO indictment (count two) charged Schwartz and Jannotti, together with Criden, Johanson, and an unindicted coconspirator, Ellis Cook, with conspiracy to conduct and participate in the conduct of the affairs of a law firm, Criden, Johanson, Dolan, Morrissey & Cook (the firm), through a pattern of racketeering activity in violation of 18 U.S.C. 8 1962(d) (1976). The first paragraph of the indictment defined the firm as a business and legal entity engaged in the practice of law in Philadelphia, the requisite jurisdictional effect on interstate commerce under the Hobbs Act: the sufficiency of the government's proof of extortion under the Hobbs Act: whether the defendants were entrapped as a matter of law: and whether the government violated the defendants’ due process rights during the course of its ABSCAM investigation. These issues were decided by this court in its previous in banc decision. 673 F.2d 578. cert. dented. 457 U.S. 1106 (1982). PA-28 Pennsylvania, and as constituting an “enterprise engaged in, and the activities of which affected, interstate commerce.” Criden and Johanson were partners in that firm; Schwartz and Jannotti were not. The object of a RICO conspiracy is to violate a substantive provision of the RICO statute. The substantive provision of RICO that the indictment charged Schwartz with having conspired to violate is section 1962(c). It provides in pertinent part: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity II. Criden implicated Schwartz in this fictitious project before Schwartz had any knowledge of it or its principals. On Friday, January 18, 1980, Criden met with undercover agents Wald and Haridopolos at Philadelphia's Barclay Hotel. Waid told Criden that an Arab sheik was interested in co.istructing a large hotel complex in Philadelphia and desired advance assurances that there -would be no zoning or labor problems. Criden hastily assured the agents there would be no such problems and suggested the possibility of dealing with Johanson, a member of the City Council, and Schwartz. its president. They discussed “the tariff’ for each of the men and agreed to arrange a meeting with Councilman Johanson. The agents promised Criden a fee of %10,000 for introductions to Johanson and Schwartz. With visions of the $10,000 in hand, Criden lost no time in returning that same evening with Johanson. PA-29 Johanson gave the agents the assurances they sought. The agents, in turn, presented him with $25,000. Wald than asked Johanson whether Schwartz could help the sheik and Johanson replied that Schwartz and Councilman Jannotti controlled the City Council. Johanson indicated that he would explore the possibility of arranging a meeting with Schwartz and Jannotti. He then departed. Criden remained and discussed with the agents how they might enlist the services of Schwartz and Jannotti and how much they might have to spend. At the end of the meeting, Wald gave Criden %5,000 for his personal services and promised him “five [more] for the next delivery.” Johanson never introduced Schwartz or Jannotti to the agents. Over the weekend he had second thoughts about his conversation with the agents and Criden. When Criden called Monday morning to arrange for a meeting with Schwartz, Johanson refused to make the introduction or to set up a meeting with Jannotti. There is no indication that Johanson had any subsequent involvement in the matter. Criden had never met Schwartz, and he contrived to obtain an introduction through two intermediaries. He informed them that one of his clients wished to use Schwartz as a consultant. He then paid the intermediaries ®3,000 for arranging the introduction. On January 23, 1980, Schwartz made his first and only appearance on this stage. He met with Criden and agent Wald at the hotel. Criden informed Wald that he had discussed the project with Schwartz. Schwartz spoke enthusiastically of the positive business environment in Philadelphia. When the conversation turned to the question of obtaining zoning variances in advance of construction, Schwartz indicated that he controlled the City Council, as well as the Zoning Board of Adjustment and the Board of Building Standards. PA-30 Wald mentioned that his client had other investments in mind besides the hotel construction and asked whether Schwartz could “suggest” a local, politically savvy law firm. When Criden suggested Schwartz's former law firm, Blank, Rome, Comiskey & McCauley (Blank, Rome), Wald inquired whether that would create a conflict of interest. Schwartz replied that he had completely severed his relationship with the firm. He commented that the firm had expertise in all types of construction and financing and would be a proper firm to use for this kind of work. Criden offered to set up an appointment with the firm and to make the referral. Schwartz also suggested another major Philadelphia law firm, Wolf, Block, Schorr and Solis-Cohen. With respect to using his old law firm, Schwartz commented that “[t]here are certain protocol that should be worked out in advance and that’s where the law firm Howard [Criden] will become involved. To put it together so that it doesn't boomerang.” Wald asked Schwartz if the “dollars we're talking are in the right ballpark.” Schwartz replied that money was not his prime concern, and that his interest was in Philadelphia's economic and tax development. He confirmed Waid’s statement that they had made a business deal and that the sheik had a friend in Philadelphia. Wald then handed Schwartz an envelope containing $30,000 and asked him if the sum was “appropriate.” Schwartz took the envelope and departed, but not before advising Wald that he was “very much available” if the sheik required his future services. Following Schwartzs departure, Wald gave Criden the $5,000 he had previously promised him for Schwartz's “delivery.” Schwartz made his debut in this alleged conspiracy on January 23, 1980, and the record shows no further meetings between him and the agents. The PA-31 day after the agents met with Schwartz, Criden arranged to have Jannotti meet with thern. They met that evening and the agents again described the project. Jannotti promised to help. Wald then handed Jannotti an envelope with %10,000 and Jannotti left. III. Although the entire hotel project was imaginary, the law of this case is, as the majority has noted, -that there is Hobbs Act jurisdiction. See United States v. Jannotti, 673 F.2d 578 (3d Cir.) (in banc), cert. denied, 457 U.S. ll06 (1982). On the record we have here, the conduct of Schwartz and Jannotti provides sufficient evidence to convict each of them of a Hobbs Act conspiracy. But whether the Government proved that Schwartz is also guilty of the RICO charge is an entirely different question. I believe the answer is that it did not. The thrust of the statute, as is indicated by its title “Racketeer Influenced and Corrupt Organizations Act” and the lar guage of sections 1962(a), (b), and (c), is the perversion of a business, organization, or enterprise through a pattern of racketeering activity. The principal purpose of Congress in enacting RICO was to protect legitimate businesses from the infiltration by organized crime by eradicating “the criminal means of acquiring, maintaining and conducting any enterprise affecting commerce.” United States v. Stofsky, 409 F.Supp. 609, 613 (S.D.N.Y. 1973).' 1. “Title IX is aimed at removing organized crime from our legitimate organizations . . . . Unless an individual not only commits such a crime but engages in a pattern of such violations, and uses that pattern to obtain or operate an interest in an interstate business, he is not subject to the proceedings under Title IX.” 116 Cong. Rec. 585 (1970) (emphasis added), quoted in Note.Organized Crime and the Infiltration of Legitimate Business: Civil Remedies for “Criminal Activity.” 124 U. Pa. L. Rev. 192, 205 n.74 (1975). PA-32 This purpose is demonstrated by the very structure of the statute's operative provisions. As to enterprises engaged in interstate commerce, section 1962(a) prevents the use or investment of racketeering income in the acquisition of any interest in such an enterprise. Section 1962(b) makes it unlawful through a pattern of racketeering activity to acquire a direct interest in or control of such an enterprise. Section 1962(c) reaches employees and persons already associated with the enterprise and prohibits them from conducting its affairs through a pattern of racketeering activity. The statute also provides severe mandatory forfeiture penalties for a section i962 violation. 18 U.S.C. § 1963(a).? The gravamen of a section 1962(d) RICO offense is not a conspiracy to commit bribery or some other predicate offense, but a conspiracy to operate or participate in the conduct of the affairs of an enterprise through a pattern of racketeering activity. The enterprise concept, a distinct element, is the focus of the RICO crime. “Although the provisions create a cluster of substantive offenses, a RICO violation, broadly speaking, arises from the use of power, acquired by crime, to gain or maintain a foothold in an enterprise that operates in interstate commerce.” Bridges, Private RICO Litigation Based Upon “Fraud in the Sale of Securities,” 18 Ga. L. Rev. 43, 48 (1983) (hereinafter cited as ‘Private RICO Litigation”) 2. “A close reading of § 1962... reveals that subsections (a), (b), and (c) are designed to work together to deal with the three different ways in which organized crime infiltrates and corrupts legitimate organizations... . All three sections considered together represent a unified plan to deal with the infiltration of legitimate organizations.” Note, Elliott v. United States: Conspiracy Law and the Judicial Pursuit of Organized Crime through RICO. 65 Va. L. Rev. 109, 17 (1979); see H.R. Rep. No. 91-1549, 9lst Cong.. 2d Sess. . reprinted in 1970 U.S. Code Cong. & Ad. News, 4007, 4033. PA-33 (footnote omitted). Thus, the court of appeals in United States v. Mandel, 591 F.2d 1347 (4th Cir.), vacated on other grounds, 602 F.2d 653 (1979) (in banc) (district court's order granting judgment N.O.V. on the RICO charge undisturbed), cert. denied, 445 U.S. 961 (1980), approved the district court's holding “that the ‘conduct or participate’ language in section 1962(c) required some involvement in the operation or management of the business... .” 59] F.2d at 1376 (emphasis added). Section 1962(c) “requires more than merely some connection or even a ‘substantial nexus’ between a lawful enterprise and the prohibited pattern of racketeering.” United States v. Webster, 639 F.2d 174, 185 (4th Cir.}, cert. denied, 454 U.S. 857 (1981), modified 669 F.2d 185 (1982). In discussing what constitutes a conspiracy under RICO, this court in United States v. Riccobene, 709 F.2d 214 (3d Cir.), cert. denied, 104 S.Ct. 157 (1983), reasoned that: An agreement merely to commit the predicate offenses would not be sufficient to support a RICO conspiracy. Nor is it sufficient if the defendants merely participate in the same enterprise. . . . This is so because, under RICO, it is an agreement “to conduct or participate... in the conduct of [an] enterprise's activities” through the commission of predicate offenses that is prohibited, not an agreement to commit a pattern of racketeering activity alone. Id. at 224. This statement in Riccobene reflects the fear that Congress had that organized crime could obtain a foothold in the commerce and industry of the country and from there “intimidate all competition out of the market. The results of this activity would be the typical antitrust vices of monopolization, price fixing and so forth.” Private RICO Litigation, supra, at 70. These PA-34 concerns were expressed during the Senate and House hearings. Jd. at 70, n.136. In United States v. Turkette, 452 U.S. 576 (1981), the Supreme Court recognized that a great concern of Congress in enacting RICO was “the infiltration of legitimate businesses,” id. at 592-93, and resolved a much disputed question by holding that the statute also reached the operation and management of criminal enterprises. IV. In this case, the indictment charges that Schwartz conspired to conduct and participate in the conduct of the affairs of an enterprise -- the Criden, Johanson, Dolan, Morrissey & Cook law firm -- through a pattern of racketeering activity. Proof of an agreement only to participate in a conspiracy to commit two or more predicate crimes of bribery is insufficient to establish a RICO violation. “More specifically, to convict for conspiracy to violate RICO the government must prove that the person objectively manifested through words or actions, an agreement to participate in the conduct of the affairs of the enterprise through the commission of two or more predicate crimes.” United States v. Martino, 648 F.2d 367, 394 (5th Cir.), cert. denied, 456 U.S. 949 (1982). Accord United States v. Winter, 663 F.2d I120, 136 (Ist Cir. 1981), cert. denied, 103 S.Ct. 1249 (1983). And under United States v. Mandel, supra, the required proof must demonstrate “some involvement in the operation or management of the business.” 591 F.2d at 1375. Applying these principles of RICO construction, this court held in United States v. Provenzano, 688 F.2d 194, 200 (3d Cir.), cert. denied, 103 S.Ct. 492 (1982), that a union officer who accepted bribes in exchange for the union's countenancing of the violations by empioyers of collective bargaining agreements was conducting union affairs through a ’ * PA-35 pattern of racketeering activity. It was the conduct of the union office that provided the requisite element for the RICO offense. The court observed, however, that “when the predicate acts are unrelated to the enterprise or the actor's association with it [then] the nexus element is missing, and consequently there is no RICO violation.” Id. at 200. I read this language to mean that the predicate acts must be related to managing or participating in the operation of the affairs of the enterprise. The evidence does not support such a conspiracy here. The Government might have proven that Schwartz, as president of the City Council, had conspired to conduct the affairs of the Council through a pattern of racketeering activity. United States v. Frumento, 563 F.2d 1083 (3d Cir. 1977), cert. denied, 434 U.S. 1072 (1978), could have been an analogue for such an indictment and prosecution. The Government, however, chose to indict Schwartz and Jannotti for conspiracy to conduct and participate in the conduct of the Criden, Johanson, Dolan, Morrissey & Cook law firm. There is nothing to show that Schwartz was even in the firm's office, or that he used its telephones, library, or facilities. The pertinent evidence does not prove that Schwartz had any intention or objective of conspiring to conduct or participate in the conduct of the affairs of that firm. ') Further, although Criden, a partner in the firm, “played a key role in inducing Schwartz to accept the 3. Evidence in support of such a conspiracy might have been found in a meeting between Criden, Schwartz, and Jannottt prior to Jannotti'’s meeting with Wald. Schwartz advised Jannotti that these “people . . . want to be assured that they are not going to have any problems, they want your support, want you to go up with \Criden} tonight and meet these people tonight and get your 10 thou, okay.” In addition, Cook testifled that Criden gave Schwartz some money for introducing Criden to Jannotti. PA-36 bribe, the evidence demonstrates that Criden was acting in his personal capacity -- not as a member of the law firm -- to pick up some fast money by merely introducing the agents to Schwartz, Jannotti, and Johanson. None of these meetings was concerned with the conduct of the affairs of the law firm. Not one bit of evidence was introduced to show any firm record of any transaction pertaining to the conspiracy to bribe. The firm never opened a record, or made 2 note in connection with the transactions, despite its usual practice of opening a file whenever a matter became firm business. True, Criden and Johanson shared some of the money with Cook, a partner, but they shared the money among themselves and not with the firm. They placed the funds in a special safe deposit box. Neither the monies they received, nor the safe deposit box in which they stored the cash, were registered with the firm. The safe deposit box, opened the year before, had been registered in the individual names of Criden and Cook and only they had access to it. They later added Johanson’s name. The record demonstrates that the box did not belong to the firm. 4. Cook testified on cross examination: Q: And when that safe deposit box was opened, it was not opened in the name of the law firm of Criden, Johanson, Dolan, Morrissey & Cook, is that correct? A: Yes sir. Q: And, specifically, what was the name under which that safety deposit box was opened when it was initially opened? A: I don't know. It was Criden and Cook, or through Criden & Ellis Cook, but was the two of us. Q Whichever one it was specifically not in the name of the firm, but in the name of you and Mr. Criden? A. Yes sir. PA-37 The record discloses that at all times Criden acted on his own -- not in his capacity as a member of the law firm -- in dealing with Wald and his mythical sheik. Criden engaged in a pattern of racketeering activity for Criden personally, not in behalf of the law firm or in the name of the law firm. He involved Johanson in his capacity as a member of City Council, not in his role as a member of the law firm. He sought nothing from Johanson that involved the firm. Although he directed Cook to withdraw %3000 from the safe deposit box, Criden instructed Cook that this money was to be advanced to pay bills of the firm.’ This “advance” by Criden to meet a cash shortage in the firm is hardly evidence that Schwartz conspired to conduct the firm's affairs “through a pattern of racketeering activity.” Even if Criden were engaged in RICO racketeering activity, Schwartz's and Jannotti’s limited association with him does not ipso facto make them guilty of a RICO conspiracy unless they conspired with him to violate the substantive provisions of section 1962(c). Although Schwartz's betrayal of the public trust is indefensible, his recommendation of a law firm to represent the sheik does not expand a conspiracy to violate the Hobbs Act into a RICO conspiracy. Wald asked Schwartz to “suggest” a law firm to handle legal work for his principal and Schwartz gave him the names of the firm of Blank, Rome and the firm of Wolf, Q. And at no time was that box in the name of -- 1 don't want to repeat that whole long name of the law firm -- A. No, it was not sir. (621A) 5. These funds were not transmitted to the law firm as fees or income, as the majority seems to suggest, typescript op. at 28, n.4., but were merely a unilateral “advance” by Criden personally. PA-38 Block, Schorr & Solis-Cohen. Wald made no selection but Criden intended to push the legal business to Blank, Rome, perhaps in the hope that he might obtain a “referral fee.” During a luncheon a week later with a Blank, Rome partner, Schwartz mentioned the recommendation that he had made in connection with the projected hotel complex and suggested that Criden might want to participate in fees. The evidence shows that Criden’s expectation of a financial benefit from the legal work presumably to be accomplished by Blank, Rome was not for any legal services to be performed by Criden or his law firm, but was merely a form of “referral fee” to accrue to him personally. Furthermore, as Schwartz pointed in his luncheon conversation, “Mr. Criden’s firm could not participate in the legal representation of this enterprise, nor could Mr. Criden.” The suggestion of the Blank, Rome or Wolf, Block law firms is not evidence of any intention by Schwartz to conduct the affairs of the Criden, Johanson firm. There is not the slightest evidence that Schwartz conspired to conduct the affairs of the firm when he accepted a payoff from Wald. The purpose of the January 23 meeting with Schwartz was solely to have him accept a personal bribe. The separate meetings with Johanson and Jannotti had a similar purpose. The undercover agents enlisted Criden’s services only because they knew from their prior Abscam dealings with him that he would be a willing tool in setting up Philadelphia councilmen for the bribery “sting.” Even though Criden did not know Schwartz or Jannotti, he contrived to meet them and separately introduce them to the agents to advance the bribery plans. In each instance, the councilmen were on venal journeys of their own; none of the journeys entailed conducting the affairs of the firm of Criden, Johanson, Dolan, Morrissey & Cook. Rather than revealing a conspiracy PA-39 to conduct the affairs of the firm through a pattern of racketeering activity, the record shows that the essence of the conspiracy was to bribe Schwartz and Jannotti in return for illegal favors from City Council. V. In conciusion, I would affirm the conviction of the appellants under the Hobbs Act. I would reverse Schwartz's conviction under the RICO Act and remand to the district court with directions to dismiss count II (the RICO count) of the indictment. A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circutt PA-40 [THIS PAGE INTENTIONALLY LEFT BLANK] PA-41 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Nos. 83-1093 & 83-1094 No. 83-1093 UNITED STATES OF AMERICA v. JANNOTTI, HARRY P.., Appellant No. 83-1094 UNITED STATES OF AMERICA v. SCHWARTZ, GEORGE X., Appellant (D.C. Crim. 80-00166-02 & 80-00166-04) on Appeal from the United States District Court for the Eastern District of Pennsylvania Present: SEITZ, Chief Judge, GIBBONS and ROSENN, Circuit Judges JUDGMENT This cause came to be heard on the record from the United States District Court for the Eastern District of Pennsylvania and was argued by counsel September 12, 1983. On consideration whereof, it is now here ordered and adjudged by this Court that the judgments of the said District Court entered February 1, 1983, be, and the same are hereby affirmed. Attest: Clerk February 21, 1984 PA-42 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 83-1094 UNITED STATES OF AMERICA v. GEORGE X. SCHWARTZ. Appellant (Criminal No. 80-166-04 — E.D. Pa. ) SUR PETITION FOR REHEARING Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH. HIGGINBOTHAM, SLOVITER, BECKER. and ROSENN Circuit Judges. The petition for rehearing filed by appellant in the above entitiled case having been submitted tto the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the deci- sion having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the peti- tion for rehearing is denied. By the Court, Collins J. Seitz Chief Judge DATED: March 20, 1984 PA-43 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 83-1094 UNITED STATES OF AMERICA v. SCHWARTZ, GEORGE X.. Appellant Pursuant to rule 41(b) of the Federal Rules of Ap- pellate Procedure, it is ORDERED that issuance of the certified judgment in lieu of formal mandate in the above cause be, and it is hereby stayed until May 19, 1984. Chief Judge Dated: March 28, 1984 PA-44 (THIS PAGE LEFT BLANK FOR SCHWARTZ JUDGMENT] EDITOR'S NOTE PAGES PW and Aso WERE POOR HARD C TIME OF FILMLNG. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. In the presence of the attorney for the government the defendant appeared m person on this date . J. Rohe, Esq. MONTH DAY YEAR 01 31 83 — The court orders commitment to the custody of the Attorney General and recommends, it ls ordered that the Clerk deliver a certified copy of this judgment oo , and commitment to the U.S. Mar- -OMMEN- shal of other qualified officer. AnIOg ; CERTIFIED AS A TRUE COPY ON ED sv Jus. 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OF To HLNOW Te AvG *bsg‘uqou’e ILLOMNVE “d AdaVH r niep siuy uo uossed Ww poseodde juRpuajap att juaWwUsIAOS Jy} J0y AdUJOIIE 941 JO gouasasd 2u} Ul 4 Inv0njj30 PA-45 (THIS PAGE LEFT BLANK FOR JANOTTI JUDGMENT} a 2 taranst s ~ PA-46 [THIS PAGE INTENTIONALLY LEFT BLANK] PA-47 UNITED STATES COURT OF APPEALS FOF. THE THIRD CIRCUIT Nos. 81-1020 and 81-1021 UNITED STATES OF AMERICA Appellant in No. 81-1020 v. JANNOTTI, HARRY P. (D.C. Crim. No. 80-00166-02) UNITED STATES OF AMERICA, Appellant in No. 81-1021 v. SCHWARTZ, GEORGE X. (D.C. Crim. No. 80-00166-04) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Argued June 10, 1981 Before: ALDISERT, WEIS, and SLOVITER, Circuit Judges Reargued In Banc November 23, 1981 Before: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges (Opinion filed February 11. 1982) PA-48 Peter F. Vaira United States Attorney Walter S. Batty, Jr. Assistant United States Attorney Chief, Appellate Division Joseph M. Fioravanti (Argued) Assistant United States Attorney James J. Rohn Assistant United States Attorney Room 3310 U. S. Courthouse 601 Market Street Philadelphia, Pa. 19106 Paul Shechtman Criminal Division Department of Justice Washington, D.C. 20530 COUNSEL FOR APPELLANT J. Clayton Undercofler, III, Esq. Robert N. deLuca, Esq. (Argued) Carol A. Meehan, Esq. 2600 The Fidelity Building Philadelphia, Pa. Of Counsel: Dilworth, Paxson, Kalish & Levy COUNSEL FOR APPELLEE HARRY P. JANNOTTI Richard A. Sprague, Esq. (Argued) Edward H. Rubenstone, Esq. Sprague, Goldberg & Rubenstone 135 South 19th Street Philadelphia, Pa. 19103 COUNSEL FOR APPELLEE GEORGE X. SCHWARTZ PA-49 OPINION OF THE COURT SLOVITER, Circuit Judge. On September 16, 1980, after a six-day trial, a jury found defendants Harry P. Jannotti and George X. Schwartz guilty of conspiring to obstruct interstate com- merce, in violation of the Hobbs Act, 18 U.S.C. §1951(a), and found Schwartz guilty of conspiracy in violation of the Racketeer Influenced and Corrupt Or- ganizations Act, 18 U.S.C. §1962(d). At the time of the events charged in the indictment, Schwartz was presi- dent of the Philadelphia City Council and Jannotti was the Council's majority leader. Following the entry of the guilty verdicts, defendants renewed their requests for judgments of acquittal and dismissal of the indictment, on which the trial court had previously reserved deci- sion. On November 26, 1980, the district court entered an order setting aside the verdict of the jury in its entire- tv, dismissing Count III of the indictment (the Hobbs Act count) for lack of jurisdiction, and granting the mo- tions of defendants for judgment of acquittal. The Gov- ernment appeals.’ In his opinion accompanying the order, the trial judge gave four reasons for entry of the judgment of ac- quittal and dismissal of Count III of the indictment. United States v. Jannotti, 501 F. Supp. 1182 (E.D. Pa. 1980). He concluded: 1. The government suggests that we have jurisdiction under 28 U.S.C. §1291. That section does not create appellate jurisdiction over appeals vy the United States in criminal cases. DiBella v. Unit- ed States, 369 U.S. 121. 130 (1962); Government of the Virgin Is- lands v. Hamilton. 475 F.2d 529 (3d Cir. 1973). However. we have jurisdiction over these appeals pursuant to the Criminal Appeals Act. 18 U S.C. §3731. See United States v. Wilson. 420 U.S. 332 1975): United States v. Schoenhut, 576 F.2d 1010. 1018 & n 713d Cir). cert. denied. 439 U.S. 964 (1978) PA-50 1. The evidence at trial did not establish the actual or potential impact upon interstate commerce necessary to sustain federal jurisdiction under the Hobbs Act; 2. The evidence at trial established entrapment as a matter of law: 3. Governmental overreaching amounted to a viola- tion of due process of law; 4. The circumstances relied upon to establish fed- eral jurisdiction were artificially created. Id. at 1205. Our review of the record and applicable law con- vinces us that in reaching these conclusions the district court erred in its legal analysis and usurped the function of the jury to decide contested issues of fact. We reverse the district court's order and direct reinstatement of the jurv’s verdict. I. SUMMARY OF EVIDENCE An understanding and appreciation of the evidence presented to the jurv is essential to consideration of the issues facing us on this appeal. We have therefore un- dertaken an exposition of some of the highlights of that evidence. The government operation, which has come to be known as ABSCAM, began some time in 1978. The basic nature of the plan was that F.B.I. agents posed as emplovees of Abdul Enterprises, a fictional multi- national corporation whose principal, a fictional Arab Sheik. Yassir Habib of the Arab nation of Abu Dhabi, was represented as interested in investing large amounts of money in this country and in emigrating here. According to the government, the plan was “con- ceived to create opportunities for illicit conduct by public officiais predisposed to political corruption.” Brief for Ap- pellant at 6. From the very beginning the government utilized the services of Melvin Weinberg, accurately characterized bv the district court as a “career swindler,” PA-51 501 F. Supp. at 1193,* who, with F.B.J. agents. “spread the word” that the Sheik was interested in meeting pub- lic officials who could facilitate his planned investments. This basic plan evolved into various subparts. each with its own cast of participants, which were ultimately the subject of a series of indictments returned by grand juries sitting in various federal districts of the country. Thereafter, a number of local and federal public officials were tried on offenses arising out of their participation. We focus on the facts material to the prosecution of Jannotti and Schwartz in the Eastern District of Pennsylvania.” The Philadelphia phase began on January 11. 1980 when Weinberg called Howard Criden, a Philadelphia attorney, and told him that the Sheik was “looking to build a hotel” in Philadelphia. Criden. who had previous- ly received money from the F.B.1. agents for arranging introductions to congressmen in connection with an- other phase of the ABSCAM operation.’ was told that 2. Weinberg was convicted of mail fraud and wire fraud in 1977. At the intercession of the government. he was sentenced to three years probation in return for his agreement to help in the ABSCAM investigation. He was paid $3,000 a month bv the FB! as of the time of the trial, had received a total of approximately $140,000 up to that time, and had also received other tnnge benefits. 3. The trials of two other defendants. Louis C. Johanson. a member of Philadelphia City Council, and Howard L. Criden. a Philadelphia attorney, who were indicted along with Schwartz and Jannotti were severed from that of Schwartz and Jannotti. Both Johanson and Criden were convicted on similar charges in the Unit- ed States District Court for the Eastern District of New York. and the government moved for their dismissal as defendants here. 4. Criden, Johanson, and Mayor Ermnchetti of Camden, New Jersey, were instrumental in arranging for four congressmen. in- cluding Philadelphia Congressmen Myers and Lederer. to meet the F.B.I. agents. At the meetings the congressmen agreed to introduce immigration bills in return for money, leading to their ultimate in- dictment and conviction. PA-52 two representatives of the Sheik would be coming to Philadelphia to begin discussions. Weinberg suggested that they be introduced to Congressman Myers or Lederer, and asked Criden which one would be better. CRIDEN: Well, I got to hear what you want to do first, and. . . you know. WEINBERG: I think they’re looking to build a hotel there. I’m not sure. That’s only what I heard. CRIDEN: Okay. Why don’t you tell him to find out more particulars because I don’t know that ei- ther one would help you in that department. “Ve may be able to give you more help to them. WEINBERG: Who do you know there? CRIDEN: Everybody! WEINBERG: Everybody? CRIDEN: Everybody! WEINBERG: All right. PU. . . VU. CRIDEN: Remember. | got a partner who’s a city councilman. A211-12. A week later, on January 18, 1980, Criden met with F.B.I. agents Michael Wald and Ernest Haridopolos at the Barclay Hotel in Philadelphia. Wald and Haridopolos used the names Michael Cohen and Ernie Polos in their dealings with defendants throughout these events. That meeting was among the group of meetings at the Bar- clay recorded on videotape by the F.B.I. Wald told Criden that the Sheik was interested in building a hotel in South Philadelphia, that Wald’s role was to address himself to possible problems such as zoning, condemna- tions, and variances. A351. Criden stated, “You don’t have any problem. You got you two of the strongest guys” [referring to Myers and Lederer]. Wald responded, “He [Sheik] wants to be assured that municipal govern- ment and he can coexist.” Criden asked, “How do you want me to satisfy you,” to which Wald responded, “I’m sure the easiest way for me to deal with someone in mu- PA-53 nicipal government and I can go back... . Titles im- press the man, as you know, from past experience. . . . If he receives those assurances from someone with a ti- tle sounds 2ppropriate, eh, I buy it, he buys it.” A351-53. Wald asked Criden about the municipal setup, in- cluding city council. Criden explained that Philadelphia City Council is composed of 12 district councilmen and five at-Jarge councilmen, that his “partner [Johanson is] a district councilman”, and that the president of city council, Schwartz, “is a powerful guy” who had been “president of city council for maybe now ten, twelve years, already now. Has got power.” Wald responded, “He’s the man.” A354-55. Wald later asked: WALD: Can we deal with Mr. Schwartz. CRIDEN: Oh, sure. WALD: He seems like the type of person we CRIDEN: Oh, sure. WALD: Can I deal with him while I'm here in town? CRIDEN: I don’t know. | gotta get hold of my partner. WALD: Can I deal with your partner? CRIDEN: Oh, sure. A357. After some discussion of timing and the proper “tariff,” Wald asked if he could talk candidly with Johanson. Criden responded that “As far as Johanson is concerned, you can talk as candidly as you want.” With regard to Schwartz, he stated, “He may want to handle it indirectly.” A367. Wald expressed some concern, stating that under no circumstances would he want to disap- point his employer. CRIDEN: Listen, Mike, I, I read you loud and clear and if I was sitting in that chair, I would feel exactly the same way ok. You have no problems with me. PA-54 WALD: Ok. How do you want to work this? Eh, do you wantta call me back here concerning CRIDEN: Oh sure. WALD: Mr. Johanson. CRIDEN: I'll get back to you in the next cou- ple hours. WALD: Alright. CRIDEN: If I can serve him up. A368-69. Wald then asked what the “tariff” would be for Johanson and Schwartz, and Criden replied “{t]}wenty-five” for Johanson, A375, and “{a|nother fifty” for Schwartz. A376. Wald demurred at the latter figure, and Criden asked, “You wanta go thirty on this guy?” Wald asked, “will he bite at thirty?. . . 1 mean does that take care of him?” and Criden replied, “Let me try it .... PU run it up the flagpole.” A376-77. Finally Criden raised the subject of his fee and asked for and was promised “ten for both of them.” A377. Several hours later, Criden returned with Johanson to the Barclay suite where Wald and Haridopolos waited. Wald again discussed the proposed hotel construction, explained that he wanted to avoid delays due to the need for a variance or a building permit, and received Johanson’s assurances that the inspectors from Licenses and Inspections, the building inspectors, the plumbing inspectors, and the electrical inspectors are “not gonna monkey with you, for a minute because they're gonna be told not to. . . because the words gonna come down, that this is a vital project.” A421. In discussing the politi- cal situation in Philadelphia, and City Council in par- ticular, Johanson boasted that of the 17 councilmen, he and Schwartz was each a “very bright fella”, and “after that there ain’t a brain in the closet.” A415. He spoke of his and Schwartz’ importance, and stated that Schwartz, Jannotti and he “run the Citv Council.” A450. Wald then asked about Jannotti: PA-55 WALD: Would he be interested in doing busi- ness with us. JOHANSON: I don't know that it’s necessar\ but if you want to we can. WALD: I don’t know — if it is —- vou're the best judge of that. JOHANSON: I think George is ah — CRIDEN: Well, it might not be a bad idea to bring Harry up. JOHANSON: We can bring Harry up. Harrv’s the Majority Leader. He’s the — va know. second in command. WALD: Yea. JOHANSON: He's got seniority. A453-54. After some additional discussion, the following exchange took place: HARiDOPOLOS: Are you acquainted with hov’' much ah, ya know, ah for the favor and for all these assur — assurances, right. CRIDEN: Right. HARIDOPOLOS: You know how much it is? JOHANSON: Sure. HARIDOPOLOS: How much is it? JOHANSON: Twenty-five. HARIDOPOLOS: Okay, ah but, of course, ah. we have to have these proper assurances. You do us a favor, we're doin you a favor. CRIDEN: Obviously. JOHANSON: Sure. A471. Johanson gave his assurances and received $25,000. A480. The following exchange took place: WALD: And for 25 we've got a friend. JOHANSON: Right. A477. The conversation turned to Schwartz: WALD: Can I talk to Mr. Schwartz as I have spoken — PA-56 JOHANSON: Next week —- WALD: — to you gentlemen — WALD: [F]rankly. . . CRIDEN: If you can’t have the same discus- sion with George,. . . you won't have the meeting. A485. Wald asked the same question about Jannotti. Criden promised to let him know whether he could have the same kind of conversation with Jannotti. A490. After Johanson left, Haridopolos gave Criden $5,000 and promised another “five for the next delivery.” A501. Criden, who did not know Schwartz personally, ar- ranged for Schwartz to meet the F.B.I. agents through an intermediary, Judge Thomas Shiomos of the Court of Common Pleas of Philadelphia County, who lived in the same apartment hotel as Schwartz. Shiomos testified at trial that at a meeting on January 21, 1980 between him, Criden and their mutual friend, Mr. Kattheman, Criden told him of the proposed hotel construction, asked him if Schwartz would be interested in talking to “these people . . . for the purpose of giving them his advice with re- gard to building this complex in Philadelphia,” and indi- cated that the investors were willing to “pay for |[Schwartz’] advice.” A639-40. Shiomos thereafter met with Schwartz, advised him that Criden had wealthy Arab clients who wanted to invest $150 million to build a hotel in Philadelphia, and indicated to Schwartz that Criden had said there “would he a fee for Mr. Schwartz for his advice” and “that Mr. Criden expected part of that fee.” A643. Schwartz stated that he “would be interested in anyone who is willing to invest $150 million.” Shiomos stated when he left that he didn’t think there was anything “improper” but that if Schwartz “thought there was anything improper or fishy [Shiomos was] sure if [Schwartz] met with Mr. Criden that {Schwartz} —-~—_ = es PA-57 could determine that.” A644.° Thereafter Criden spoke with Schwartz. That discussion was not taped or record- ed, and there was no trial evidence as to the contents of the conversation.® On January 23, 1980, Criden and Schwartz visited Wald at the Barclay suite. This conversation was videotaped. Criden stated that he and Schwartz had “spoken at length” and that Schwartz knew that those persons whom Wald represented were “interested in building a hotel facility in Philadelphia that may amount to some 30 or 40 million dollars.” A689. Wald explained his purpose: WALD: Well, what I have been instructed to do and the purpose for ah my visits to to Philadel- 5. Some time after Schwartz attended the January 23, 1980 meeting at the Barclay, Shiomos and Kattleman went to Kattleman’s apartment where Criden lay $6,000 on the table as the fee to be paid to Shiomos and Kattleman. Shiomos assumed this was a portion of Criden's share of the fee that was paid to Schwartz A654. Shiomos testified he gave his $3,000 share to Kattleman A655 6. In his post-trial testimony, Criden testified Q. All right, now, when you went and saw Mr. Schwartz after Judge Shiomos had arranged for the interview, did vou tell Mr. Schwartz that the purpose for Mr. Schwartz going there is to be a consultant for these Arabs or the Arab representatives? A. To some degree, yes. Q. You say to some degree — A. I told Mr. Schwartz there would be a consulting fee in- volved and I explained the project to him and | also told Mr Schwartz that I had represented these people and had done business with them for some period of time and that he would receive a consulting fee Q. Did you tell Mr. Schwartz at any time pnor to his going to that meeting that the purpose of the meeting was in a sense to fix him anc to arrange for him to taxe: care of matters in front of City Council’ A. No, sir A3317 PA-58 phia is to firm up uh, what we consider to be a major investment here and uh the gentleman cares to make a major investment here because he seems to like Philadelphia, and he has been told that it would uh be in his best interest to have an investment, uh, in an area where he, uh, would like to take up rather permanent residence and Philadelphia is it. SCHWARTZ: Philadelphia is a nice city. Philadelphia has been on the move since 1952. And, uh, business climate in Philadelphia is good. A690. Wald continued: WALD: Uh, and we want to put one up. Now we know that there are problems inherent in any major construction, uh, in this city and any other city. What I am trying to do is take care of any po- tential problems long before they exist. We’re not breaking ground tomorrow morning. We can forsee certain problems such as, uh, uh, zoning and variances and this type of thing. . . municipal gov- ernment, how it effects those various things, but we don’t want to be faced with problems down the road. A691-92. Schwartz responded to this overture with a so- liloguy on his own political power and importance. After explaining how close he was to the mayor’ and that he was “sort of a protege” of the mayor’s deceased father, who had been Chairman of the [Democratic] party, Schwartz stated: SCHWARTZ: . . . Unfortunately then he died in 63. And I have been close to every chairman since. I am a member of the Democratic National Committee. I am a member of the State Committee. 7. There is no evidence that William Green, Philadelphia’s then newly elected mayor, was ever involved in or knew of the transactions at issue. In fact, Criden described Green as “an All American boy”, A343, and advised Wald that it would be “‘a critical mistake” to approach him. A372. pr a + PA-59 ! am a member of the City Committee. A Ward Leader. I, uh, I have a ward — if you know what that means in politics. A693. A few minutes later, Wald asked: WALD): Is it fair to say that by doing business with you, uh. . . my zoning problems become. . . SCHWARTZ: Right. CRIDEN: You, you don’t have any. WALD: Okay. Now. There are what, 17 mem- bers, aS, as vou say... . and also what uh I read here... SCHWARTZ: Right. WALD: Uh, do we have a uh controlling vote ‘SCHWARTZ: Yes. WALD: .. . problem here? SCHWARTZ: No. . WALD: Uh. SCHWARTZ: No. WALD: Can you control. . . WALD: . . . those types of factions? SCHWARTZ: Yes. WALD: You can control them? SCHWARTZ: The proof was today. The proof was the election of myself as president again. WALD: Uh hmm. SCHWARTZ: In other words, we got uh five or six now [sic] members that came in. Uh, you tell me your birth date. I'll give them to you for your birthday. AG95-6. The essence of Schwartz’ representations of control was repeated shortly thereafter: WALD: All right. Yeu’re controlling the coun- cil at this point. PA-60 SCHWARTZ: Right. WALD: As far as I’m concerned. SCHWARTZ: Right. CRIDEN: Right. And has been for. . . SCHWARTZ: Right. Right. WALD: Should we have anything that comes up to a vote, that has to be done on a vote basis, the council is with you. SCHWARTZ: Yes. WALD: You control them at this point. SCHWARTZ: Yes. Yes. Yes. CRIDEN: 100 percent. SCHWARTZ: Yes. A709. Schwartz stated that although he could not prom- ise that the hotel project would not have problems, those problems would not be “insurmountable” as long as the project “is a proper project.” A698. Wald stated, “I am not putting up a cathouse”, Criden interjected, “It’s go- ing to be legitimate”, and Schwartz responded, “That I take for granted, or I wouldn’t be here.” A710. Wald then asked Schwartz for assurances of his support if the project “violates some minor. . . type statute or ordi- nance or. . . something”, and Schwartz replied: SCHWARTZ: There is a Board of Building Stanaards. There, there is built-in relief every stage of the way. There’s a Zoning Board of Adjustment for variances. WALD: Okay. Can you control that? SCHWARTZ: Yes... . A711. Inmediately thereafter he explained, “if it isn’t something that is outlandish, if it is something that should and can be handled, and I can, I can’t think of anything that couldn’t be handled. . . [t]hrough a vari- ance procedure of some kind.” A712. Wald stated: WALD: Okay. Meaning that, if City Council has to vote on it, we don’t have a problem at this point? PA-61 SCHWARTZ: Well, I'm going further. There are other boards and agencies, uh, depending upon what your client, how idiosyncrant he wants to be and how eccentric he wants to be. WALD: (Laughter) . .. They can become rather eccentric. SCHWARTZ: All right. All right. It may be necessary to go to these various boards and commis- sions. Now, they are part of the organization. They are part and parcel and... WALD: Appointed, appointed officials? SCHWARTZ: Yes, they are appointed officials. Uh, but uh, as I say, uh, I always do my homework. And, uh, the mayor is a very strong mayor. We have a strong mayor form of government. And all these people are his appointees. Mv understanding with him is that I go to him — period. I don’t even have to go to one of the flunkies, one of the functionaries. | gotohim... . A712-13. After additional discussion which concerned local law firms that could be employed by the hotel project, the economic climate in Philadelphia, and the encouragement received by business from the city, Wald referred to Schwartz’ compensation: WALD: Cur time frame is growing short, but we don’t have those type of problems. We don’t have that built-in resentment. Ah. . . We've talked to Howard, you know, the figures, the dollars we're talking are in the right ballpark. We're. . . SCHWARTZ: That’s not my prime concern. I’m interested in the City of Philadelphia. I’m inter- ested in a good project. I’m interested in tax rateables. I want to see Center City develop. Espe- cially Center City. There are a few parcels left. Well anything else that’s going to add to the tax rateables of the city that’s going to create jobs. PA-62 WALD: I am again quick to say that Im not really interested in the City of Philadelphia to be candid. SCiIWARTZ: Well I have to be. I have to be. WALD: Perhaps, oh sure. . . (inaudible) CRIDEN: Your primary concern is to see that if your emplover decides to move, you have a mini- mum amount of problems. WALD: Exactly. . . . Problems are to be han- dled before they arise. Right. Should any minor problems come up. Should any problems that are councilmatic in scope. . . SCHWARTZ: No problem. WALD: You could take care of them. Those are the tvpe of things. . . SCHWARTZ: Right. WALD: That he asks I make an unequivocal. ves, it's been handle« its been taken care of and uh CRIDEN: You make that an unequivocable yes. SCHWARTZ: It's. . . I would savy to you that it's much easier now than it is than it was four vears ago. A746-47. The conversation returned to the nature of the understanding: SCHWARTZ: There are administrative escape hatches for everything in the City of Philadelphia under our various codes. There's a way of doing it — administrative wav of doing it. WALD: Okay, and that is the type of thing vou can handle for us. SCHWARTZ: Oh yeah, right. WALD: I can go back and sav | met a gentle- man. We had a business deal uh. I've made a triend in Philadelphia. PA-63 SCHWARTZ: Yes. WALD: And things are taken care of. . . SCHWARTZ: Right... . WALD: Okay, and the sums appropriate and we're in good shape. Okay. A753-54. Shortly thereafter as seen on the videotape, Wald opened his briefcase and, without discussion of the amount, handed Schwartz an envelope [containing $30,000 cash], which Schwartz placed in his jacket without counting. The nature of the commitment Schwartz made was reiterated: WALD: The legislative problems we've taken care of? CRIDEN: No problem. WALD: Okay, that I can, that I, that I got as- surance on. SCHWARTZ: Right. CRIDEN: You have, you have no problem. WALD: Okay, the other things can be done through attorneys, but the legislative problems don’t exist anymore? CRIDEN: That’s right. SCHWARTZ: No. Do not. WALD: Okay. A756. Criden remained behind and received his $5,000 fee for arranging the meeting. A758. He admitted to Wald that he had to give “something” to someone to make the approach to Schwartz. A763. Wald indicated an interest in talking to Jannotti if he was “amenable” because both Criden and Johanson had referred to Jannotti “as a power.” A770. Criden undertook to ascer- tain to “try to do something” with Jannotti and “if the an- swer is no, I’m going to tell you right off the bat, forget it.” A778. They discussed the amount of the payment to PA-64 Jannotti, Wald asking “Will he run with five” and Criden replying “Maybe ten. . . {L]et me run it up the flag pole with him.” A779-80. Wald asked whether he should deal with anybody else on the executive side and was told that there was no one else he could or should do busi- ness with. Criden promised to communicate with Wald the next day and departed. The next evening, January 24, 1980, following tele- phone arrangements, Jannotti and Criden arrived at the Barclay suite to meet with Wald and Haridopolos. Jannotti had been briefed by Criden and Schwartz earli- er that day who had “explained the whole situation.” A848. With Jannotti, as with Schwartz, Wald explained “I’m only here for one reason, to bring back some assur- ances.” A849. He continued: WALD: [We are prepared to make a major in- vestment in this city, alright, and. ah. we have in- credible funding but it’s still a major investment even for the people that | represent at this time. Ah, it’s not a drop in the bucket even for them. It’s a fair amount of money and ah, the way these people do business, is somewhat different than the wavy we do business in this country, they don't think. They just can't tolerate nor can they put up with psvchologi- cally anv problems that arise. Now these tvpe of problems do arise but they can be handled. but the tvpe of problems that would get back to mv emplov- er. Ahe, he can’t deal with them. and he turns to me and says I thought we had all this settled in Phila- delphia. So, that’s why I’m here. simplv to take care of any problems now. JANNOTTI: Far in advance. WALD: Ah. it’s reallv not that tar | don't think. CRIDEN: Well. . . WALD: But at least enough in advance that ah when the time comes it's over and done with everv- thing is nice. Ah. those problems are simply the PA-65 ones that I can forsee and you haven't come up with anymore than you and I had been worried about nor has the other gentleman I dealt with, and that would be ah, ah, the zoning, any variances that we have to obtain any, ah, committee type things we’d would have to, ah, deal with, with City Council ah, inspections, licensing the whole gamut, ya know the whole thing, well you were in that type of busi- ness in, in an allied situation and I’m sure you can appreciate the petty things that arise, ah, that have to be handled. JANNOTTI: First of all you, you’re going to in- vest a substantial amount of money and, ah, what you'll be doing is bringing into the City of Philadel- phia a substantial amount of money, and this will create jobs, will create a tax base and ah from what I gather everything that you want to do with be strict- ly, ah, on board. I mean there’s nothing phony about it. WALD: It’s a legitimate operation. JANNOTTI: As long as it’s, long as it’s a legiti- mate, legitimate operation. Ya know, any legitimate operation we will fight for because, ah, ya know why shouldn’t we fight for a legitimate operation? If the operation is legitimate, it’s going to bring a tax base into the City of Philadelphia, it’s going to bring em- ployment into the City of Philadelphia, ah, this is, this is basically our job, ah George George’s job and my job, ah, to try to get as much money into the City of Philadelphia and as many jobs into the City of Philadelphia as we possibly can. A849-51. Wald asked: WALD: [Bly dealing with you here this eve- ning and, and the gentleman I, I spoke with last evening, can I go back with those assurances? JANNOTTI: I don’t see why not, as you say, ya know it’s a legitimate project and you have your fi- is PA-66 nancing, there’s nothing ah, there's nothing that vou're doing illegal. . . CRIDEN: Michael wants to be sure that he has a friend if he has a problem. JANNOTTI: Oh certainly. WALD: If something arises. if something arises that needs a City Council vote to be very spe- cific, a City Council vote is needed on the thing, can I count on vour vote? JANNOTTI: Whysure. . .. first of all we'll go over it again, you have a legitimate project, ah, you're going to invest 36 million dollars in the City of Philadelphia, which is going to create a tax base and going to create emplovment. WALD: Right, but. JANNOTTI: But ya, but. HARIDOPOLIS: A lot of legitimate, ah, things get bogged down. we don't want to be bogged down. JANNOTTI: No. I can’t see this being bogged down. A853-54. Wald explained his position: WALD: Let me give vou a short insight into the Arab mind, that its ah, it’s at times difficult to understand now, ah, I can appreciate it because I’ve had both worlds and I can relate, ah, you know, you folks are here, right, they, they think differently, they deal differently, their psychological process are alien to the way I understand exactly what you’re saving. Ok. I’m coming up with something that’s going to help the City of Philadelphia. Ah, it would help, as it would help any city. Ah, he does not look on it that way. They do business, differently. They pay the freight up front. They make friends, right, and then when there, there is a potential problem then I don’t mean, I don’t mean a problem that would necessarily close down construction and throw the project out of Philadelphia. PA-67 A855-56. Wald and Jannotti discussed City Council politics. and Jannotti affirmed Criden’s statement that Council “never had a vote on an issue that George and Harrv wanted passed that they'd lost in the last two vears.” A859. They then discussed the payment to Jannotti: WALD: But, you were here at the time. You convinced me right off the bat that we were in the right city and we would have no problems. CRIDEN: You will have no problems. WALD: And I would just as soon save the money, but I can’t go back. CRIDEN: I understand. we _ had _ that discussion. WALD: (Pointing to Criden) Did he. was he very graphic with ya? JANNOTTI: Yes. WALD: On exactly how... . JANNOTTI: (Nodding ves) He was always up front, up front. WALD: Ok and... . CRIDEN: To the bottom line. vou know me Michael, I, I don’t we. we both do evervthing right up front. WALD: Ok and, alright, then I'm going to be. then I’m going to be up front with va. I'm. CRIDEN: Exactly. WALD: Ah, vou’ve been in business all vour life. you’ve as you said, you got an education 20 years behind the bar, I was sent to Philadelphia to pay for certain things because that is the psvchology and that is the method of business that these people are use to, and that is how they conduct business. they conduct with everybody they do. That’s why I’m here. I understand their psychology, I’ve been involved with them long enough, ah to make it a major part of my life, a majority of my life. PA-68 JANNOTTI: Well, you know ah, just just on the basics, of what you said and what they want to do, it’s enough for me to get on the floor and argue. | don’t have to, even care what else they want to come up with. My basic point is, the fact that, ah what's coming in here, and this has been our job, to bring as much business and and, and ah tax base and em- ployment to the City of Philadelphia. If that’s the way they want to do business, that’s all right too. A859-61. Wald asked again for “assurances”: WALD: Can I go back, ah ah, to my employer, the Sheik and tell him that I dealt with a man, on Wednesday night tell him who he is, dealt with you, Thursday night, explain who you were, what your position is and say he and I conducted a cash busi- ness transaction and he guaranteed me, we don’t have a problem in Philadelphia. We ah, ah City Councils on our side the man has the influence with the Finance Committee, he has influence. . . JANNOTTI: You weuldn’t, you wouldn't be able to say we don’t have a problem. Problems might arise, but problems ah, you might say problems can be solved. WALD: Ok, you can handle those problems we presume. JANNOTTI: I don’t see why not if it’s a legiti- mate, if it’s a if it’s a legitimate if it’s a, if it’s a legiti- mate enterprise, it’s a legitimate piece of business. WALD: By making friends with you this eve- ning, if we have to go to City Council and say look, ya know, give us a break, right, got us some legisla- tion that this is ok. That it’s in the right neighbor- hood, that the time. CRIDEN: If you want a street for example let’s say changed from a two way to a one way ok, maybe that will help you. PA-69 WALD: Ok. CRIDEN: Handle your traffic pattern. JANNOTTI: We handle that everyday. WALD: But I go back and I'll say we have this. and I'll use that as an example that if we have a one way street situation and it’s just hurting the front, of, of the place we cannot move people in and out of the hotel limousines to private vehicles and what have you, ah the men I dealt with said they will help. I’m not saying that you could walk in there and change this thing tomorrow, but. CRIDEN: Yet. JANNOTTI: We'll go in there and battle, we'll go in and battle. WALD: You're with us? JANNOTTI: Certainly. we'll go in and battle. A863-67. Wald then took an envelope from his briefcase [containing $10,000 cash], handed it to Jannotti, and asked if “that amount is sufficient.” Jannotti took the en- velope, answering, “We've discussed it.” HARIDOPOLIS: You know how much it is? CRIDEN: Tell him, you can tell him. HARIDOPOLIS: How much is it? CRIDEN: Tell him? JANNOTTI: We won't even discuss it. WALD: Ok, but you did discuss it with Howard? JANNOTTI: We won't even discuss it. HARIDOPOLIS: Is this arrangement please, pleasing to you? JANNOTTI: As I say, we won't even discuss it. WALD: Ok, well, we've done our business. A884-85. Jannotti departed, and Criden promised to see him downstairs. PA-70 II. HOBBS ACT CONSPIRACY In its opinion granting the motions for acquittal the district court noted that the “evidence permitted, al- though it did not compel, the inference that the pav- ments represented bribes paid in exchange for the de- fendants’ assurances of using their official positions to pave the way for expeditious completion of the project.” 501 F. Supp. at 1184. The court, however, dismissed Count III of the indictment, the Hobbs Act conspiracy count, for two reasons. The first dealt with the fictitious nature of the scheme. Although the court was willing to assume that the “evidence permitted the jury to con- clude that, if the project had in fact been a genuine project, it would have required the movement of articles in interstate commerce, and that the payment of these bribes would have affected such commerce by depleting the funds available for carrving out the project.’® the court focused on the fact that “there never was any such planned project. The Arabs. their plans, and their monev were all entirely fictitious.” Id. The court concluded: While the jurisdictional reach of the Hobbs Act is undoubtedly extensive, touching conduct having only minimal or potential impact upon commerce (broadly defined), it does not operate to confer fed- eral jurisdiction over purely hvpothetical potential impacts on commerce which could never occur. Id. at 1185. The district court thus fashioned a require- ment that conviction for conspiracy to violate the Hobbs 8. In charging the jurv on the Hobbs Act count. the court in- structed that it must find that “a natural and probable consequence of the extortion, the receiving the money. would have been to affect interstate commerce” and that the Government position was that the receipt of the payments of $30.000 and $10.000 would have had an effect on interstate commerce. A1344-45. PA-7] Act requires an actual potential effect on interstate commerce. The second jurisdictional defect, according to the district court, stemmed from its view that the Hobbs Act does not cover the “passive acceptance of gratuities by public officials.” Jd. The district court, after noting that defendants did not request payment and “made it very clear that the payments would not be necessarv”, found that the convictions would represent “a substantial stretching of the definition of extortion.” /d A. Effect on Interstate Commerce The broad language of the Hobbs Act. covering any- one who “in any way or degree . _ affects commerce . by. . . extortion or attempts or conspires so to do 18 U.S.C. §1951,° demonstrates Congress’ intent to free interstate commerce trom burdens of any kind caused by extortion. The Supreme Court has expressly recognized that the statute manifests a congressional purpose “to use all the constitutional power Congress 9. The Hobbs Act reads in pertinent part as tollows Whoever in any wav or degree obstructs. delavs. or affects commerce or the movement of anv article or commodity in commerce, by robbery or extortion or attempts or conspires so to do shall be fined not more than $10,000 or imprisoned not more than twenty vears, or both 18 U.S.C. §1951(a). The statute defines “commerce” as commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District ot Colum- bia and any point outside thereof; all commerce between points within the same State through any place outside such State: and all other commerce over which the United States has junsdicticn. 18 U.S.C. §1951(b3) PA-72 has to punish interference with interstate commerce . .” Stirone v. United States, 361 U.S. 212, 215 (1960). Accord, e.g.. United States v. Cerilli, 603 F.2d 415, 423 (3d Cir. 1979), cert. denied, 444 U. S. 1043 (1980). See also United States v. Culbert, 435 U.S. 371 (1978): United States v. Green, 350 U.S. 415, 420-21 (1956). In United States v. Staszcuk, 517 F.2d 53, 58 (7th Cir.) (en banc), cert. denied, 423 U.S. 837 (1975), the court concluded that “the purpose of the Hobbs Act parallels the central purpose of the Commerce Clause itself.” Thus, the decision of the district court in this case has application beyond the Hobbs Act because the extent of Congress’ power under the commerce clause is implicated, and, if its analysis is accepted, will have ramifications for all federal criminal statutes enacted un- der Congress’ commerce clause power. We begin the analysis of Congress’ power to regu- late interstate commerce with the now-accepted princi- ple that the commerce clause reaches, inter alia, activi- ties affecting interstate commerce. Perez v. United States, 402 U.S. 146, 150 (1971); United States v. Dar- by, 312 U.S. 100 (1941). However, application of a fed- eral criminal statute is not limited to those cases in which an actual interstate effect is shown. Instead, as the Court recognized in Perez v. United States, 402 U.S. at 152-53, it is enough that the conduct falls within the “class of activities” within the reach of federal power. Schwartz and Jannotti were convicted of a conspir- acy to violate the Hobbs Act, rather than of a substantive violation of the Hobbs Act. A substantive violation of the Hobbs Act generally is supported by proof of an actual effect on commerce. See. e.g., United States v. Mazzei, 521 F.2d 639, 642 (3d Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975). But see United States v. Staszcuk. 517 F.2d 53, 59-60 (7th Cir.) (en banc), cert. denied. 423 U.S. 837 (1975) (actual effect need not be shown: “realistic probability” of effect is sufficient). Defendants PA-73 argue that it follows that a prosecution for conspiracy to violate the Hobbs Act also requires proof “that com- merce must have been affected.” Brief for Appellee Jannotti at 22. In so arguing, defendants overlook the significant distinction between a conviction for a sub- stantive offense and a conviction for a conspiracy to commit the substantive offense. This distinction was recognized bv the district court at an early stage of the litigation when it dismissed the substantive Hobbs Act counts of the indictment on the ground that there was no possibility that the bribe payments could actually have affected commerce, but left standing the conspir- acy count on the possibility that federal jurisdiction could be grounded on proof that the conspiracy, if com- pleted, would affect commerce. See 501 F. Supp. at 1184. The subsequent dismissal of Count III of the in- dictment was apparently grounded on the district court’s changed view of the law that an actual potential effect was required, even for a conspiracy conviction. We be- lieve the district court’s earlier view was the correct one Because an agreement between two or more pc: sons to commit criminal acts poses, in and of itself. a rious danger to social order, it is proscribed by the law o} conspiracy. See Callanan v. United States, 364 U.S. 587. 593 (1961). The ultimate failure of the conspiracy may diminish, but does not eliminate, the threat it poses to social order; therefore, the illegality of the agreement does not depend on the achievement of its ends. See gen- erally United States v. Shoup, 608 F.2d 950, 957 n.13 (3d Cir. 1979); United States v. Bobo, 586 F.2d 355, 371 (5th Cir. 1978), cert. denied, 440 U.S. 976 (1979). It is similarly irrelevant that the ends of the conspiracy were from the very inception of the agreement objectively unattainable. United States v. Waldron, 590 F.2d 33 (Ist Cir.), cert. denied, 441 U.S. 934 (1979) (conviction for conspiracy to transport stolen goods in excess of $5,000 affirmed, even though, unknown to defendants, PA-74 property transported was worth less than $5,000); Unit- ed States v. Thompson, 493 F.2d 305 (9th Cir. ), cert. de- nied, 419 U.S. 834 (1974) (defendant can be convicted of conspiracy to smuggle marijuana even though sub- stance was not shown to be marijuana). In this case the defendants agreed to do acts which, had they been at- tainable, would have affected commerce. At that point, regardless of whether an actual effect on commerce was “reasonably probable,” a sufficient federal interest was implicated to support federal jurisdiction over that agreement. The Hobbs Act, by its own terms, encompasses the inchoate offenses of attempt and conspiracy to extort. Convictions for these offenses have been sustained not- withstanding the absence of any evidence of an actual effect on interstate commerce. In United States v. Rosa, 560 F.2d 149, 153 (3d Cir.) (en banc), cert. denied, 434 U.S. 862 (1977), a case in which there was no effect on commerce because the “victim” refused to pay the extor- tion demand, we stated that a defendant may be convict- ed under the Hobbs Act for an “attempted extortion which would, if the act were completed, have the effect of obstructing commerce.” See also United States v. Bellomini, 454 F. Supp 44, 47 (W.D. Pa. 1978) (“The fact that the business enterprise was frustrated at a later date through failure of finances does not constitute a de- fense to a charge of attempt to extort money in violation of the Hobbs Act.”’). Similarly, in United States v. Caci, 401 F.2d 664 (2d Cir. 1968), vacated on other grounds, 394 U.S. 310 (1969), the Second Circuit sustained the conviction of defendants for conspiracy to rob an armored car messenger in violation of the Hobbs Act al- though the plan was aborted. Counsel for defendants conceded at oral argument that they could point to no precedent to support their contention that a conviction for conspiracy to violate the Hobbs Act must be predicated on « showing of an actual PA-75 or probable future effect on interstate commerce. One of the few cases to focus on the interstate commerce aspect of the Hobbs Act, United States v. Staszcuk. 517 F.2d 53 (7th Cir.) (en banc). cert. denied, 423 U.S. 837 (1975), arose when a local alderman was convicted of a substan- tive Hobbs Act violation. The government had proven that he received $3,000 and that he did not oppose a zoning change which authorized the construction of an animal hospital. Because no such hospital was ever built, the court noted that “there is no evidence that [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2849%3A2. Public record. Not legal advice.