588 F.2d 31 (2nd Cir. 1978), 176, United States v. Wright

Docket Nº:176, Docket 78-1219.
Citation:588 F.2d 31
Party Name:UNITED STATES of America, Appellee, v. Samuel D. WRIGHT, Appellant.
Case Date:December 04, 1978
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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588 F.2d 31 (2nd Cir. 1978)

UNITED STATES of America, Appellee,

v.

Samuel D. WRIGHT, Appellant.

No. 176, Docket 78-1219.

United States Court of Appeals, Second Circuit

December 4, 1978

Argued Sept. 12, 1978.

Certiorari Denied Feb. 21, 1979.

See 99 S.Ct. 1236.

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Gerald L. Shargel, New York City (Fischetti & Shargel, New York City, Gustave H. Newman and Roger Bennett Adler, New York City, of counsel), for appellant.

Edward R. Korman, U. S. Atty., Brooklyn, N. Y., for the Eastern District of New York, for appellee.

Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from conviction and sentence on trial to the jury in the United States District Court for the Eastern District of New York, Edward R. Neaher, Judge, of a school board official for solicitation and receipt "under color of official right" of a payment of $5,000 from a seller of school supplies, in violation of the Hobbs Act, 18 U.S.C. § 1951, and conspiracy to defraud the United States of federal funds granted to the school district, in violation of 18 U.S.C. § 371. We find no reversible error and affirm the judgment.

In 1973, while Wright was chairman of New York City Community School Board 23, Behavioral Research Laboratories, Inc. ("BRL"), a seller of educational systems and materials to schools, which had a contract with the board for the 1972-73 school year amounting to over $500,000, invited Wright to speak at a conference which it conducted. Wright received $5,500 for this appearance, $5,000 of which the government contended and the jury must have found was induced by Wright and paid by BRL to influence the decision of the board to purchase educational materials from BRL.

On appeal, Wright contends that the evidence was insufficient to show that the payment was solicited in order to influence his official action, that the government wrongfully refused to grant immunity to a witness, that the admission of an out-of-court statement deprived him of his right to confront the witnesses against him, that the prosecution was biased and that the government's inflammatory summation deprived

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him of a fair trial. We find all of Wright's contentions to be without merit and affirm for the reasons discussed below.

Wright argues that the evidence was not sufficient to support a conviction on either the Hobbs Act count or the conspiracy count. He claims that there was no proof that he demanded anything from BRL under color of official right. Rather, Wright insists that the evidence shows nothing more than a request by him for an increase in the honorarium that he was to be paid for his appearance at the BRL conference. He contends that such an innocent attempt to negotiate a fee to which he had a legal right cannot constitute a violation of the Hobbs Act. Likewise, Wright contends that the conspiracy conviction must be reversed because there was no proof of an agreement, express or implied, between Wright and BRL to defraud the United States.

We disagree with Wright's characterization of the case against him and conclude that the evidence, viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), was sufficient to support the jury's verdict.

In late 1972 or early 1973, James Phipps, then the Divisional Marketing Director of BRL and responsible for sales in the Northeast region of the country, invited Wright to speak at a conference to be held by BRL on February 1 and 2, 1973 at a hotel in San Francisco. Wright accepted the invitation and delivered a forty-five minute address on February 2. The other speakers at the conference were the education editor of Newsweek magazine, the president of the American Federation of Teachers, the director of the Experimental School Program of the National Institute for Education and John Tunney, United States Senator from California.

Phipps received a telephone call from Wright on February 3, as a result of which they later engaged in a conversation in the lobby of the hotel. Phipps testified that Wright asked whether the honorarium he was to receive could be increased. During the same conversation, Wright referred to the expenditures that would be incurred in conducting a successful election campaign and mentioned that people in the district which he represented found it very difficult to raise funds. However, when Phipps was asked on the witness stand whether Wright asked "for anything with regard to the funds necessary to run a political campaign," he responded, "Not specifically, no."

Phipps subsequently conveyed the substance of his conversation with Wright to Bert Parker, BRL's Vice President for Marketing. Allan Calvin, Chairman of the Board of BRL, testified that Parker then informed him that Wright had requested a $5,000 cash political contribution. 1 As a result of his conversation with Parker, Calvin asked Phipps to request Herbert Corbin, president of Kanan, Corbin & Shupack ("KCS"), BRL's public relations firm, to "generate the cash for the political contribution." Corbin resisted the request, but after a conversation with Parker, he agreed that KCS would issue a $5,500 check to Wright if BRL would first issue a check for that amount payable to KCS.

Meanwhile, Roger Sullivan, the president of BRL, had approved four separate check request forms to pay the conference speakers. (Senator Tunney's agent previously had been paid $2,500, of which the Senator was to receive $1,500.) One request form, in the amount of $700, was for the Newsweek education editor. The other three, including Wright's, were each in the amount of $500. Four checks were drawn on BRL's account at the United California Bank, but all were voided on February 12, before they could be delivered. On that same day, BRL issued a $5,500 check to KCS. The request for this check was not a printed form, but instead a handwritten page from the memo pad of Carl Peters, BRL's Comptroller, containing the words

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"$5,500.00 Herb Corbin." Three days later, Sullivan approved a printed check request form in the amount of $1,700 payable to KCS. This form included a handwritten list of the other three speakers and the same amounts as requested in the original individual forms. A check for $1,700 was issued to KCS, which in turn issued separate $500 and $700 checks to the three speakers.

On February 14, KCS issued a $5,500 check payable to Wright. Corbin gave this check to Phipps, who delivered it to Wright's office. Phipps testified that he handed the check to Wright, who in return gave him a letter of intent which indicated that Wright's school district was interested in renewing and expanding the program that it had purchased from BRL. Calvin and Parker were dissatisfied with this first letter and sought to obtain a stronger one. A second letter of intent bearing Wright's signature and dated February 23 was subsequently delivered to BRL. Both of these letters violated a directive of the Chancellor of the Board of Education of the City of New York, which forbade the issuance of letters of intent without the Chancellor's approval.

In August 1973, Community School Board 23 approved the purchase of an expanded program from BRL. The vote was five to four, with Wright and the other four board members who had run for election as part of his slate casting the votes in favor of the purchase. The funds used to purchase the program were provided by the federal government under Title I of the Elementary and Secondary Education Act of 1965.

This court in United States v. Trotta, 525 F.2d 1096, 1100 (2d Cir. 1975), Cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976), approved the Seventh Circuit's description of the offense of extortion under color of official right as set forth in United States v. Braasch, 505 F.2d 139, 151 (7th Cir. 1974), Cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975):

The use of office to obtain payments is the crux of the statutory requirement of "under color of official right" . . . It matters not whether the public official induces payments to perform his duties or not to perform his duties . . . . So long as the motivation for payment focuses on the recipient's office, the conduct falls within the ambit of 18 U.S.C. § 1951.

The trial judge here correctly instructed the jury that § 1951

would not bar the payment to, and receipt by defendant of an honorarium or speaking fee, unless you are satisfied beyond a reasonable doubt that the payment focused on his public office and ability to aid B.R.L. and the defendant knew that that was the reason the money was paid to him.

Appellant asserts that the evidence failed to establish that he Demanded a cash political contribution. He argues that a strictly voluntary payment by BRL would not amount to extortion within the meaning of 18 U.S.C. § 1951, citing United States v. Hathaway, 534 F.2d 386 (1st Cir.), Cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976). He further contends that we need only look to the Phipps-Wright conversation in the hotel lobby to determine whether or not there was proof of a demand under color of official right. We decline, however, to view the proof so narrowly, for it is settled law that the evidence "must be viewed in light of the totality of the Government's case, since one fact may gain color from others." United States v. Tramunti, 500 F.2d 1334, 1338 (2d Cir.), Cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974).

The jury properly could have found Wright guilty beyond a reasonable doubt of a violation of the Hobbs Act. Phipps' testimony that Wright did not specifically ask for a political contribution did not preclude the jury from reaching such a...

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