509 F.2d 312 (D.C. Cir. 1974), 73--1304, United States v. Anderson

Docket Nº73--1304.
Citation509 F.2d 312
Party NameUNITED STATES of America v. Cyrus T. ANDERSON, Appellant.
Case DateOctober 22, 1974
CourtUnited States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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509 F.2d 312 (D.C. Cir. 1974)

UNITED STATES of America

v.

Cyrus T. ANDERSON, Appellant.

No. 73--1304.

United States Court of Appeals, District of Columbia Circuit

October 22, 1974

Argued March 5, 1974.

Opinion Nov. 12, 1974.

Certiorari Denied March 24, 1975.

See 95 S.Ct. 1427.

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Richard W. Boone, Washington, D.C., with whom Walter J. Bonner, Edward C. O'Connell and William H. Seckinger, Washington, D.C., were on the brief, for appellant in No. 73--1304.

Stuart M. Gerson, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty. at the time the brief was filed and John A. Terry, Asst. U.S. Atty., were on the brief for appellee. Earl J. Silbert, U.S. Atty., and James E. Sharp, Asst. U.S. Atty., at the time the record was filed, also entered appearances for appellee.

Before TAMM, ROBINSON and WILKEY, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Cyrus T. Anderson contests his conviction by a jury on three counts of bribery of a United States Senator. 1 His main argument is that he was deprived of a fair trial as the result of surprise and perjury in connection with the testimony of Betsey Shipley Norton, a key witness for the Government. 2 Anderson also advances

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other grounds for reversal, each of which we address in the course of this opinion. 3 We find Anderson's arguments unpersuasive, and accordingly affirm the conviction on all counts.

I. THE FACTUAL BACKGROUND

Anderson was a registered congressional lobbyist for Spiegel, Inc., 4 a Chicago-based merchandiser. 5 Since Spiegel conducted its sales primarily through the mails, its financial well-being was directly related to the level of third-class mail rates. Daniel B. Brewster was a United States Senator, and a member of the Senate Committee on Post Office and Civil Service. It was the alleged bribery of Brewster by Anderson, as the alter ego of Spiegel, that gave birth to this litigation.

The theory of the prosecution was that Anderson on several occasions delivered monies to Brewster with corrupt intent to influence his action on postal-rate legislation coming before him in his official capacity. An indictment so charged, 6 and the jury, at Anderson's trial jointly with Spiegel 7 and Brewster, 8 found Anderson guilty as charged. 9

The Government's case against Anderson, and by the same token the jury's verdict, rested notably upon the testimony of John Francis Sullivan, formerly an aide to Brewster, 10 and Betsey Shipley Norton, a close friend of Anderson. 11 Primarily through these two witnesses, the Government sought to prove the execution of a scheme designed to route payments from Spiegel through Anderson to Brewster and to a nominal campaign committee for him. We need not recite in full the maze of details comprising the conflicting testimonial versions of the questioned transactions. Rather, we recount only so much of the evidence, pro and con, as will bring into sharp focus the several points Anderson raises on this appeal. 12

  1. The Sullivan Testimony

    Testifying under a grant of immunity from prosecution, John Sullivan Delineated for the jury a series of contacts between Anderson, Brewster and himself, in the course of which the events germinating

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    the bribery counts against Anderson assertedly transpired. 13 What follows is a summary of Sullivan's testimony in that regard.

    Late in 1965, a political fundraiser visited Brewster at his Senate office in Sullivan's presence. Brewster was nearing the end of his term and, though not then an announced candidate, he contemplated a run for reelection. The visitor mentioned a proposal by the Postmaster General to increase mail rates, and Brewster said that he had no fixed opinion on the merits of the proposal. The visitor then told Brewster that if he remained uncommitted on the subject, she could get money for his reelection campaign from Anderson. 14 Brewster suggested that Anderson call Sullivan in that connection. 15

    In January, 1966, Sullivan received a telephone call from Anderson, who stated his understanding that Brewster 'was going to keep an open mind' on the rate-increase proposal and said that he 'was sending something' to the office. A few days later a check for $5,000 arrived, addressed to Brewster's earlier visitor. The check was drawn by the Hotel and Restaurant Employees and Bartenders International Union of Cincinnati, Ohio, 16 and was made payable to the 'D.C. Committee for Maryland Education' (DCCME). 17 The check was deposited in a bank account opened in the name of DCCME, which became a committee to accept campaign contributions for Brewster. 18

    A year passed without any other known contact by or with Anderson. In January, 1967, however, Anderson conferred with Brewster and Sullivan in their Senate offices. Anderson revealed his connection with Spiegel 19

    and voiced Spiegel's opposition to higher postal rates. As the meeting drew to a close, Anderson gave Brewster an envelope containing $5,000 in cash, and Brewster told Anderson that he 'would do all he possibly could to be of assistance to Spiegel . . ..' The $5,000 was placed in a safe in Sullivan's office, and was subsequently used for cash expenditures. 20

    On April 5, 1967, a bill seeking postalrate raises was introduced in Congress. Shortly thereafter, Anderson obtained from Spiegel a check for $13,500 payable to DCCME and, with help from Betsey Norton, converted it into cash. 21 Later that month Anderson, accompanied by a

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    man introduced as Morris Spiegel, 22 again called on Brewster and Sullivan. There was discussion of the pending bill, during which Morris Spiegel handed an envelope to Brewster. Inside the envelope was $4,500 in cash, which also found its way into the DCCME bank account. 23

    A third payment was made in July, 1967. On Brewster's order, Sullivan Telephoned Anderson and inquired as to whether any more money would be forthcoming. Anderson answered 'yes, he did have some more money, for the Senator--five thousand dollars--but he had not received a check from Spiegel in Chicago, yet.' After receiving several more telephone calls from Sullivan, Anderson went to Sullivan's office and made out a personal check for $5,000, leaving the name of the payee blank. 24 Sullivan wrote in DCCME as payee and later deposited it in DCCME's account. 25

  2. The Norton Testimony

    Though, like Sullivan, the recipient of a grant of immunity, Betsey Norton 26 remained an outwardly reluctant witness. 27 Nonetheless, her initial effort to avoid testifying having failed, 28 the Government called her to the witness stand as the second week of trial began. Disregarding for the moment further difficulties in securing her testimony, which generate some of the issues on appeal, 29 we relate the highlights of that testimony.

    Ms. Norton met Anderson in 1965. A close friendship developed, and she frequently assisted Anderson in his projects. She became aware of his employment by the Spiegel company and attended some of his meetings with Modie Spiegel, its chief executive officer, in Chicago and Washington.

    Over a period of three years, at Anderson's request Ms. Norton cashed a number of Spiegel checks for him, including two related to contributions to DCCME. 30 On occasion Modie Spiegel, unable to contact Anderson, telephoned her to confirm delivery of 'the package'--money obtained by cashing Spiegel checks, some of which had been earmarked

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    for Brewster. 31 For her cooperation she was rewarded in 1968 when Anderson importuned Modie Spiegel to arrange a mortgage on her home.

    Anderson, Mr. Norton avowed, canvassed the members of the Senate Committee on Post Office and Civil Service in 1967 to ascertain their views on the pending rate-increase legislation. There was also a discussion between Anderson and Modie Spiegel in her presence regarding the response by Brewster, himself a committee member. Brewster had indicated a position favoring low-level third-class postal rates, and had already received $5,000 from Spiegel. Anderson felt, however, that additional payments were needed to insure his continued support.

    Ms. Norton remarried 32 and moved to New York in September, 1967, but she often returned to Washington, and she continued to see Anderson through the fall of 1968. When the grand jury investigation in the instant case got under way, Anderson told her that she probably would be called as a witness, and reviewed with her the substance of the testimony she should give. Anderson also requested her to name John Criswell, then treasurer of the Democratic National Committee, to convey the impression that

    . . . Mr. Criswell was a part of this so it would look like it was part of the Democratic National Committee rather than just a direct thing from Spiegel to Anderson to whomever the monies went for. 33

    To this end, Anderson arranged for Ms. Norton to meet Criswell in order to assure her ability to identify him if asked to do so by the grand jury. She flew from Washington to Kansas City for that purpose, observed Criswell at an airport there for five minutes, and returned to Washington later on the same day. This testimony was to become an important point in Anderson's argument for reversal of his conviction. 34

  3. The Defense

    Anderson took the witness stand in his own behalf. 35 He described for the jury the role of a congressional lobbyist, and acknowledged an introduction to Brewster and the campaign contribution to him in January, 1966. 36 At the behest of Brewster's late-1965 visitor, 37 Anderson said, he solicited the $5,000 check from the Bartenders Union and at Sullivan's direction had it made out to DCCME. 38

    Anderson denied any meeting with Brewster or Sullivan in January, 1967, 39 or any discussion attended by Morris Spiegel in April of that year. 40 He admitted, however, an April meeting with Brewster on behalf of...

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