U.S. v. Murphy, s. 1577

• Decision Date: 26 August 1980
• Docket Number: 1587,Nos. 1577,D,s. 1577
• Citation: 642 F.2d 699
• Parties: UNITED STATES of America, Appellee, v. John M. MURPHY, Frank Thompson, Jr., Appellants. ockets 80-1299, 80-1307.
• Court: U.S. Court of Appeals — Second Circuit

Page 699

642 F.2d 699

UNITED STATES of America, Appellee, v. John M. MURPHY, Frank Thompson, Jr., Appellants.

Nos. 1577, 1587, Dockets 80-1299, 80-1307.

United States Court of Appeals Second Circuit.

Argued Aug. 22, 1980.

Decided Aug. 26, 1980.

Michael E. Tigar, Washington, D. C. (Samuel J. Buffone, John J. Privitera, Washington, D. C., on the brief), for appellant Murphy.

Daniel A. Rezneck, Washington, D. C. (Clifford D. Stromberg, Robert N. Weiner, Arnold & Porter, Washington, D. C., Stephen E. Kaufman, New York City, on the brief), for appellant Thompson.

Edward R. Korman, U. S. Atty., Brooklyn, N. Y., for appellee.

Before NEWMAN and KEARSE, Circuit Judges, and DUMBAULD, ^* District Judge.

PER CURIAM:

Congressmen John M. Murphy and Frank Thompson, Jr. appeal, prior to trial, from a ruling of the District Court for the Eastern District of New York (Jacob Mishler, Judge) denying their motion to dismiss an indictment charging various offenses related to solicitation and acceptance of bribes. This is another of the so-called Abscam indictments, only recently considered by this Court in United States v. Myers, 635 F.2d 932 (2d Cir. 1980).

The five-count indictment names as defendants the two appellants, Howard Criden, a Philadelphia attorney, and Joseph Silvestri, who is not otherwise identified in the indictment. Count One charges all four defendants with violation of 18 U.S.C. § 371 (1976) by conspiring to defraud the United States and to violate 18 U.S.C. §§ 201 and 203 concerning bribery of public officials. Count Two charges Murphy and Thompson, aided and abetted by Criden, with violation of 18 U.S.C. §§ 201(c) and 2 (aiding and abetting). Count Three charges Murphy and Thompson, aided and abetted by Criden, with violation of 18 U.S.C. §§ 203(a) and 2. Count Four charges Criden, aided and abetted by Murphy and Thompson with violation of 18 U.S.C. §§ 1952 (interstate travel to carry out bribery) and 2. Count Five charges Murphy, aided and abetted by Thompson and Criden, with violation of §§ 201(g) and 2. As in Myers, the facts alleged in support of these charges arise out of an elaborate undercover "sting" operation, in which F.B.I. agents and a private citizen, posing as representatives of wealthy Middle Eastern businessmen, offered substantial sums of cash to each of the appellants, and the appellants accepted the cash in return for promises to take official action in behalf of the fictitious businessmen with regard to immigration and other governmental matters.

The appellants contend that the indictment is based on actions protected by the Speech or Debate Clause, U.S.Const. Art. I, § 6, that the indictment will require the appellants to present information protected by the Speech or Debate Clause in their defense, that the grand jury that returned the indictment heard evidence protected by the Speech or Debate Clause, and that the District Court inadequately considered the motion to dismiss by failing to review transcripts of the grand jury proceedings.

Each of these contentions is available for pre-trial appellate review, Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979); United States v. Myers, supra. On the merits, each claim is rejected, on the authority of Myers, which considered identical contentions arising in circumstances not different in any material respect. The essence of all the allegations against the Congressmen is the acceptance of bribes in return for corrupt...