541 F.2d 331 (2nd Cir. 1976), 1052, United States v. Ong

Docket Nº:1052 1055, Dockets 76-1087, 76-1088, 76-1093 and 76-1094.
Citation:541 F.2d 331
Party Name:UNITED STATES of America, Appellee, v. Benny ONG et al., Defendants-Appellants.
Case Date:September 14, 1976
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 331

541 F.2d 331 (2nd Cir. 1976)

UNITED STATES of America, Appellee,

v.

Benny ONG et al., Defendants-Appellants.

Nos. 1052 1055, Dockets 76-1087, 76-1088, 76-1093 and 76-1094.

United States Court of Appeals, Second Circuit

September 14, 1976

Argued May 20, 1976.

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[Copyrighted Material Omitted]

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Gregory J. Potter, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S.D. N. Y., Lawrence B. Pedowitz and John C. Sabetta, Asst. U. S. Attys., New York City, on the brief), for appellee.

Daniel Markewich, New York City (Markewich, Rosenhaus, Markewich & Friedman, P. C., New York City, Goldman & Hafetz, New York City, Lawrence S. Goldman and Frederick P. Hafetz, New York City, on the brief), for defendant-appellant Benny Ong.

William C. Herman, New York City (Julia P. Heit, New York City, on the brief), for defendant-appellant Wong Wah.

James A. Cuddihy, New York City, for defendant-appellant Tom Hom.

Gilbert S. Rosenthal, New York City (Julia P. Heit, New York City, on the brief), for defendant-appellant Albert Young.

Before LUMBARD, FRIENDLY and OAKES, Circuit Judges.

LUMBARD, Circuit Judge:

Benny Ong, Wong Wah, Tom Hom and Albert Young appeal from their convictions after a nine-day trial before Judge Brieant in the Southern District and jail sentences imposed on them on February 11, 1976. 1 Ong, Wah and Hom were convicted of participating

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in a conspiracy from October 1973 to July 1974 to bribe criminal investigators of the Immigration and Naturalization Service and numerous counts of bribery on specified dates. Young was convicted on 20 counts of bribery, the court having dismissed the conspiracy count against him at the end of the government's case.

Young complains that as the government did not act in good faith in charging him with membership in the conspiracy which it knew it could not prove, the court should have granted his motions for a severance and later for a mistrial. All the appellants allege that the admission of irrelevant, unduly prejudicial and inflammatory evidence regarding other crimes deprived them of a fair trial. They also assert that improper remarks in the prosecutor's summation deprived them of a fair trial. In addition, appellant Wah complains that the trial judge erroneously curtailed his counsel's cross-examination of INS investigator Lawrence Granelli.

As with almost every criminal jury trial which extends over several days and involves multiple defendants, it cannot be said that the record is free from doubt regarding all the rulings on the admission of evidence. But a study of the record in this case, including the transcripts of tape recorded talks with all the defendants relating to bribes and on the occasion of their payment of bribes, leaves us with the strong conviction that the government produced overwhelming proof of the guilt of all the defendants. We view the claims of error accordingly and consider the possible effects of any errors to be less serious than we would if the case against all or any one of the defendants could be considered to be a close question. As we conclude beyond a reasonable doubt that contrary rulings on all the matters of which the appellants complain would still have resulted in the verdicts returned by the jury, we affirm all the convictions. Cf. Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).

In October 1973, all four appellants were in the business of running separate gambling houses in Chinatown in Manhattan's lower East Side. Ong was the secretary of the Hop Sing Association, with a branch at 16 Pell Street. Wah was the secretary of the Tai Look Association at 58 East Broadway. Hom managed a place at 22 Pell Street. Young ran the Tsung Tsin Association at 1 Catherine Street. The record discloses that these gambling houses relied heavily on the patronage of illegal aliens.

On October 14, 1973, Ong saw INS investigators Granelli and Brattlie in Pell Street and beckoned them to join him. Ong told the agents he wanted gambling house people to meet with INS officials to make arrangements for checking illegal aliens in the gambling houses. The agents said they would have to speak to their supervisor.

Granelli thereafter spoke to his supervisor, who suggested the negotiations continue. That evening, Granelli and a new partner, Investigator James Kibble, met with Ong who told them that he knew of at least eight gambling houses that would each pay $200 per week in exchange for advance notice of INS visits. After this conversation was reported to the INS supervisor the matter was referred to the FBI where Special Agent Henry was charged with the investigation.

Agent Henry obtained the approval from the Department of Justice for use of recording equipment by Granelli and Kibble in their subsequent meetings with Ong and the other defendants. From November 15 on, most of the meetings and telephone conversations between the investigators and the defendants were recorded, and the tapes were introduced into evidence at the trial. It was through use of these tapes and the testimony of the investigators relating what had transpired at unrecorded meetings that the government implicated all the defendants in the bribery scheme.

Granelli and Kibble testified that on November 6, 1973, they met with Ong to express interest in his offer on behalf of their boss. Later the same evening, the investigators were admitted to the Tai Look basement gambling house by Wong Wah. Wah permitted the investigators to search for

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illegal aliens and then informed Kibble that he, Wah, had been called by Benny Ong.

On November 8, the investigators again met Ong who told them that some of the gambling house operators had objected to paying as much as $200 per week. However, Ong offered to make payments in that amount for himself, the Catherine Street houses, some of which were allegedly run by defendant Young, and the 58 East Broadway house, which was run by defendant Wong Wah. During this conversation, the investigators expressed anger that Wah approached Kibble and mentioned that Ong had called him. Ong agreed to speak to Wah to prevent future public mention of Ong's name.

The next week the investigators called Ong to arrange a meeting for the first payoff. Ong was accompanied at the subsequent meeting by Wah, and they each gave the investigators $200. Another $400 payment was made at a meeting the following week, during which Ong suggested that the investigators raid the Catherine Street houses which had refused to make payment.

Payments from Ong continued throughout November and into December. During the meetings at which the payments were made, Ong boasted of his cordial relations with New York City police officials and stated that he had been giving money and gratuities to them for several years. He also expressed displeasure with the Catherine Street gambling operators for not making payments and in particular derided defendant Young, who allegedly owed Ong $5000 for a previous payment made to other police officials on Young's behalf.

On December 12, 1973, Granelli and Kibble drove past 1 Catherine Street looking for illegal aliens when defendant Young motioned to them. In the ensuing conversation, Young told the investigators that he knew of their deal with Ong and that he wanted to make a similar arrangement. The investigators agreed to meet with Young the following day. At the scheduled meeting, Young offered the investigators $200 per week to prevent any raids on his gambling house. Young also requested that Ong not be told of the arrangement.

At a subsequent meeting with the investigators, however, Ong informed them that he knew Young was making payments and wanted to know the amount. Ong suggested that they increase the amount charged to Young and reminded the investigators of Young's previous $5000 delinquency.

Payments to the investigators on behalf of Ong, Wah and Young continued into January 1974. On January 17, the investigators informed Ong that a man had approached two other INS investigators outside 61 Mott Street and offered to take them to see Benny Ong and to pay them money in order to prevent unexpected raids on a Mott Street gambling house. The agents had reported the incident to the supervisor who was aware of Granelli and Kibble's undercover exploits, and Granelli and Kibble complained to Ong that had the other agents reported the incident elsewhere, trouble would have resulted. Ong said that he knew the identity of the malefactor and would speak to him.

Ong later introduced the man, identified as the defendant Tom Hom, to Granelli and Kibble and informed them that Hom wanted the same deal that had been arranged with Ong and Wah. This offer was accepted and all defendants made weekly payments throughout the remainder of the period charged in the indictment, except for brief periods when Wah and Young temporarily went out of the gambling business.

Following arrests by officers associated with Special State Prosecutor Maurice Nadjari in March 1974, Wah and Hom refused to deal directly with Granelli and Kibble and all payments to the investigators on behalf of these two defendants were made by Ong. At an April 7, 1974 meeting, Ong informed the investigators that he had been arrested by police from Nadjari's office after other officers had confessed that they had accepted bribes from Ong. On July 18, 1974, the defendants were arrested for bribing INS investigators. By that time, Granelli and Kibble had received $6000 from Benny Ong, $3000 from Tom Hom, $6200

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from Wong Wah, and $5000 from Albert Young.

At the close of the government's case, Judge Brieant dismissed the conspiracy count with respect to defendant Young. The judge refused, however, to grant Young's motion for a severance.

The making of the payments was not denied as none of the defendants took the stand. The defense was...

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