United States v. Carson

• Decision Date: 07 July 1972
• Docket Number: Docket 72-1123.,No. 685,685
• Citation: 464 F.2d 424
• Parties: UNITED STATES of America, Appellee. v. Robert T. CARSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

464 F.2d 424 (1972)

UNITED STATES of America, Appellee. v. Robert T. CARSON, Defendant-Appellant.

No. 685, Docket 72-1123.

United States Court of Appeals, Second Circuit.

Argued April 13, 1972.

Decided July 7, 1972.

COPYRIGHT MATERIAL OMITTED

Henry J. Boitel, New York City, for appellant.

Robert G. Morvillo, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, Joseph Jaffe and Peter F. Rient, Asst. U. S. Attys., on the brief), for appellee.

Before FRIENDLY, Chief Judge, and SMITH and OAKES, Circuit Judges.

OAKES, Circuit Judge:

Robert T. Carson appeals from his convictions, following a jury trial, for conspiracy to travel in interstate commerce in furtherance of bribery, in violation of 18 U.S.C. § 371, and for perjury before a federal grand jury, in violation of 18 U.S.C. § 1621.¹ While our decision to affirm appellant's convictions turns on the interpretation of technical language of the criminal code, the result obtaining has certain precedential value concerning interrelationships of influence between the Congress and the Executive. Thus we review the pertinent facts of the case with some particularity.

In the fall of 1970, co-defendant Joseph Bald and one Michael Hellerman discovered they were under scrutiny by the Securities and Exchange Commission and the United States Attorney's office for the Southern District of New York in connection with certain stock transactions. At Hellerman's suggestion and with the help of co-conspirator Harold Blond, Bald in November 1970 met with a New Yorker named Edward "Eddie" Adams, an older gentleman who supposedly carried a lot of political influence in Washington, to attempt to arrange a "fix" on the investigations. Adams was agreeable, but indicated the "fix" would be costly ($50,000-$100,000) and that he, Adams, would need "front" or "seed" money of between $2,000 and $2,500. Bald, however, would not part with seed money until there was assurance that some success to the venture would be in the offing. Adams then said he would try to introduce Bald to appellant Carson, who was the Administrative Assistant to United States Senator Hiram Fong, and he indicated that the big money would go to Senator Fong² and "to individuals in the Justice Department."

As a result of Adams' effort, in mid-November Bald and Hellerman met in Washington, at Senator Fong's office and at the Senate cafeteria, with Carson. Hellerman allegedly told Carson of the investigations, that indictments were expected shortly, and that if Carson could "squash" all the SEC matters, "we will pay you $1,000,000." Carson inquired about the identity of the Assistant United States Attorney who was involved and whether the indictments could be delayed. Hellerman told him the name and that delay was unlikely. Indeed, in November 1970 an indictment charging various violations of the federal securities laws was filed in the Southern District of New York United States v. Dioguardi, 70 Crim. No. 967 (S.D.N.Y., filed Nov. 19, 1970) against Hellerman, 15 other defendants and Bald as a co-conspirator. The next day Adams related to Blond that Carson had informed him that he (Carson) was disturbed about the people indicted and, at best, that he could help only Hellerman and Bald.

On November 24, 1970, appellant Carson met with (then) Deputy Attorney General Richard Kleindienst at the Department of Justice in Washington. At Carson's trial, Kleindienst testified that the meeting lasted 15 minutes, the first minute or two of which he described as follows:

Well, after we had exchanged pleasantries, Mr. Carson sat down in a chair in front of my desk and said that he had a friend in New York who was in trouble, and that if I could help him with respect to his trouble, his friend was a man of substantial means and would be willing to make a substantial contribution of between fifty and one hundred thousand dollars to the reelection of President Nixon.

I asked him what kind of trouble this man had. Mr. Carson said that he was under indictment for federal offenses, and I said that under no circumstances could I do anything about the matter, even look into it, as a result of the fact that a grand jury had returned an indictment.

That was just about all the conversation that existed.

We immediately thereafter—we turned the subject matter to other matters which Kleindienst thereafter testified concerned a judicial appointment from the State of Hawaii. . . .³

Not long after the filing of the indictment, Hellerman informed Bald that he had someone who would furnish the large sum necessary to fix the case and that he wanted that person to meet Adams. Again through the intercession of Blond, Bald and Adams held a meeting, at which Bald said that Adams should forget about the 15 defendants, helping only Bald and Hellerman, and that he wanted Adams to meet the money man, who would be willing to pay $200,000. Adams again wanted "seed money," but Bald put him off; thereafter, a rendezvous was arranged for November 29, 1970, at LaGuardia Airport, to discuss the fix.

Bald, Blond and Hellerman arrived at the airport before Adams did, and Hellerman, now aiding the Government, brought with him FBI Special Agent Paul Brana, whom he introduced to the others as Paul Bicera, the sponsor of the fix. Brana pretended skepticism of Adams' influence, which Blond offset with name-dropping and a tale of Adams' political influence record in Washington. Blond also told Brana that Senator Fong was a member of the Judiciary Committee and could handle the matter; that at the first meeting of Carson, Bald and Hellerman, Hellerman was mistaken in mentioning $1 million; and that a fix on the pending indictment and any future indictments would cost $200,000.

Adams then joined the other four at the airport and explained to Brana that he knew all about the case, that Carson had not had time to act on the first indictment, that Senator Fong was indeed influential as a member of the Judiciary Committee and that both Senator Fong and Attorney General Mitchell had given their handshakes on the matter. Brana again portrayed skepticism, and Adams said he would set up a meeting between Carson and Brana so the latter could be personally persuaded.

On December 1, 1970, Blond, Adams and Brana, who was wearing a recording device, flew from New York to Washington and met with Carson in Senator Fong's office. Following introductions, Carson stated that he had previously been told that "he apparently Hellerman had a means in which he could hold off the prosecutor" on the indictment. Had they been successful, he added, "we might have been able to do something. The next day it hit the papers and for us to ask for the case from New York after it hit the papers then all of the newspapers would wonder why."

The tape from the recording device on Brana's person then revealed a conversation between Brana and Carson, in which Carson convinced Brana that nothing could be done about the matter owing to the involvement of the other defendants and of the Assistant United States Attorney, which made the case "too hot." In the following taped discussion, Carson alluded to possible future leniency and to his earlier talk with the Deputy Attorney General:

Brana: In other words it\'s a dead issue. Is that what you are saying in fact?

Carson: Later on we might be able to do something for these two.

Brana: But as far as the two fellows we are interested in there is no chance to get it squashed.

Carson: No, and that\'s from the top man.

Brana: That\'s from the top man? Okay, what more can we say. We tried and we appreciate your efforts.

. . . .

Carson: . . . If he feels that he wants me to make inquiries, my advice right now is don\'t waste your energy and your money, save them for the possibility that sometime you might be doing some good with it. I don\'t care who you go to now.

After the meeting Brana told Adams that the $200,000 had not been deposited in a bank as previously arranged. Adams left Blond and Brana, who returned to New York; on the trip Brana first learned that he was supposed to have brought $2,000 to give to Carson.

On December 22, 1970, Bald, Hellerman and Brana met at a New York restaurant. Bald told Brana that he was concerned about the possibility of new indictments and that Brana should make the $200,000 bank deposit in anticipation of another meeting in Washington that Adams was going to arrange. Two days later Brana met with Hellerman and Adams in New York; Adams reported that Carson could take care of the new indictments and that "the new price for the handling of the indictments would be $100,000 and that a schedule could be worked out between Mr. Carson and Brana depending upon what Mr. Carson could do for us." Brana then gave Adams $200 expense money that Adams requested of him, and also showed him $2,500, which was to be given to Carson. Arrangements were made for making another appointment with Carson.

On December 29, 1970, Brana, again equipped with a recording device, flew to Washington and met Adams at a hotel. There Adams asked him for another $200 expense money and for the $2,500 for Carson. Brana gave both to Adams after Adams said he would give the $2,500 to Carson in Brana's presence. Upon meeting Carson in Senator Fong's office, Adams immediately handed him the $2,500 cash. Carson asked, "For the inaudible on the tape Senator?"

Carson testified that the $2,500 was a campaign contribution for Senator Fong from one Robert Brinsmade. The cash payment, according to Carson, was made after he Carson had earlier returned as improper a corporate check made payable to "Cash," signed by Brinsmade and given to Carson by Adams. Brinsmade was not called to testify at trial.

The defendant contended at the trial that the tape then disclosed Adams' voice saying "Mr. Carson," with Carson replying, "Fine, thank you very much." The Government's version of the same tape, supported by the testimony of Agent...