673 F.2d 578 (3rd Cir. 1982), 81-1020, United States v. Jannotti

Docket Nº:UNITED STATES of America, Appellant in No. 81-1020,
Citation:673 F.2d 578
Case Date:February 11, 1982
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 578

673 F.2d 578 (3rd Cir. 1982)

UNITED STATES of America, Appellant in No. 81-1020,

v.

JANNOTTI, Harry P.

UNITED STATES of America, Appellant in No. 81-1021,

v.

SCHWARTZ, George X.

Nos. 81-1020, 81-1021.

United States Court of Appeals, Third Circuit

February 11, 1982

Argued June 10, 1981.

Reargued En Banc Nov. 23, 1981.

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Peter F. Vaira, Jr., U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief Appellate Div., Joseph M. Fioravanti, Asst. U. S. Atty. (argued), James J. Rohn, Asst. U. S. Atty., Philadelphia, Pa., Paul Shechtman, Crim. Div., Dept. of Justice, Washington, D. C., for appellant.

J. Clayton Undercofler, III, Robert N. deLuca (argued), Carol A. Meehan, Philadelphia, Pa., for appellee Harry P. Jannotti; Dilworth, Paxson, Kalish & Levy, Philadelphia, Pa., of counsel.

Richard A. Sprague (argued), Edward H. Rubenstone, Sprague, Goldberg & Rubenstone, Philadelphia, Pa., for appellee George X. Schwartz.

Argued June 10, 1981

Before ALDISERT, WEIS and SLOVITER, Circuit Judges.

Reargued In Banc Nov. 23, 1981

Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION

SLOVITER, Circuit Judge.

On September 16, 1980, after a six-day trial, a jury found defendants Harry P. Jannotti and George X. Schwartz guilty of conspiring to obstruct interstate commerce, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and found Schwartz guilty of conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d). At the time of the events charged in the indictment, Schwartz was president of the Philadelphia City Council and Jannotti was the Council's majority leader. Following the entry of the guilty verdicts, defendants renewed their requests for judgments of acquittal and dismissal of the indictment, on which the trial court had previously reserved decision. On November 26, 1980, the district court entered an order setting aside the verdict of the jury in its entirety, dismissing Count III of the indictment (the Hobbs Act count) for lack of jurisdiction, and granting the motions of defendants for judgment of acquittal. The Government appeals. 1

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In his opinion accompanying the order, the trial judge gave four reasons for entry of the judgment of acquittal and dismissal of Count III of the indictment. United States v. Jannotti, 501 F.Supp. 1182 (E.D.Pa.1980). He concluded:

1. The evidence at trial did not establish the actual or potential impact upon interstate commerce necessary to sustain federal jurisdiction under the Hobbs Act;

2. The evidence at trial established entrapment as a matter of law;

3. Governmental overreaching amounted to a violation of due process of law;

4. The circumstances relied upon to establish federal jurisdiction were artificially created. Id. at 1205.

Our review of the record and applicable law convinces us that in reaching these conclusions the district court erred in its legal analysis and usurped the function of the jury to decide contested issues of fact. We reverse the district court's order and direct reinstatement of the jury's verdict.

I.

SUMMARY OF EVIDENCE

An understanding and appreciation of the evidence presented to the jury is essential to consideration of the issues facing us on this appeal. We have therefore undertaken an exposition of some of the highlights of that evidence. The government operation, which has come to be known as ABSCAM, began some time in 1978. The basic nature of the plan was that F.B.I. agents posed as employees of Abdul Enterprises, a fictional multinational corporation whose principal, a fictional Arab Sheik, Yassir Habib of the Arab nation of Abu Dhabi, was represented as interested in investing large amounts of money in this country and in emigrating here. According to the government, the plan was "conceived to create opportunities for illicit conduct by public officials predisposed to political corruption." Brief for Appellant at 6. From the very beginning the government utilized the services of Melvin Weinberg, accurately characterized by the district court as a "career swindler," 501 F.Supp. at 1193, 2 who, with F.B.I. agents, "spread the word" that the Sheik was interested in meeting public officials who could facilitate his planned investments.

This basic plan evolved into various subparts, each with its own cast of participants, which were ultimately the subject of a series of indictments returned by grand juries sitting in various federal districts of the country. Thereafter, a number of local and federal public officials were tried on offenses arising out of their participation. We focus on the facts material to the prosecution of Jannotti and Schwartz in the Eastern District of Pennsylvania. 3

The Philadelphia phase began on January 11, 1980 when Weinberg called Howard Criden, a Philadelphia attorney, and told him that the Sheik was "looking to build a hotel" in Philadelphia. Criden, who had previously received money from the F.B.I. agents for arranging introductions to congressmen in connection with another phase of the ABSCAM operation, 4 was told that

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two representatives of the Sheik would be coming to Philadelphia to begin discussions. Weinberg suggested that they be introduced to Congressman Myers or Lederer, and asked Criden which one would be better.

CRIDEN: Well, I got to hear what you want to do first, and ... you know.

WEINBERG: I think they're looking to build a hotel there. I'm not sure. That's only what I heard.

CRIDEN: Okay. Why don't you tell him to find out more particulars because I don't know that either one would help you in that department. We may be able to give you more help to them.

WEINBERG: Who do you know there?

CRIDEN: Everybody!

WEINBERG: Everybody?

CRIDEN: Everybody!

WEINBERG: All right. I'll ... I'll.

CRIDEN: Remember. I got a partner who's a city councilman.

A211-12.

A week later, on January 18, 1980, Criden met with F.B.I. agents Michael Wald and Ernest Haridopolos at the Barclay Hotel in Philadelphia. Wald and Haridopolos used the names Michael Cohen and Ernie Polos in their dealings with defendants throughout these events. That meeting was among the group of meetings at the Barclay recorded on videotape by the F.B.I. Wald told Criden that the Sheik was interested in building a hotel in South Philadelphia, that Wald's role was to address himself to possible problems such as zoning, condemnations, and variances. A351. Criden stated, "You don't have any problem. You got you two of the strongest guys" (referring to Myers and Lederer). Wald responded, "He (Sheik) wants to be assured that municipal government and he can coexist." Criden asked, "How do you want me to satisfy you," to which Wald responded, "I'm sure the easiest way for me to deal with someone in municipal government and I can go back ... Titles impress the man, as you know, from past experience .... If he receives those assurances from someone with a title sounds appropriate, eh, I buy it, he buys it." A351-53.

Wald asked Criden about the municipal setup, including city council. Criden explained that Philadelphia City Council is composed of 12 district councilmen and five at-large councilmen, that his "partner (Johanson is) a district councilman", and that the president of city council, Schwartz, "is a powerful guy" who had been "president of city council for maybe now ten, twelve years, already now. Has got power." Wald responded, "He's the man." A354-55. Wald later asked:

WALD: Can we deal with Mr. Schwartz.

CRIDEN: Oh, sure.

WALD: He seems like the type of person we ...

CRIDEN: Oh, sure.

WALD: Can I deal with him while I'm here in town?

CRIDEN: I don't know. I gotta get hold of my partner.

WALD: Can I deal with your partner?

CRIDEN: Oh, sure.

A357. After some discussion of timing and the proper "tariff," Wald asked if he could talk candidly with Johanson. Criden responded that "As far as Johanson is concerned, you can talk as candidly as you want." With regard to Schwartz, he stated, "He may want to handle it indirectly." A367. Wald expressed some concern, stating that under no circumstances would he want to disappoint his employer.

CRIDEN: Listen, Mike, I, I read you loud and clear and if I was sitting in that chair, I would feel exactly the same way ok. You have no problems with me.

WALD: Ok. How do you want to work this? Eh, do you wantta call me back here concerning ...

CRIDEN: Oh sure.

WALD: Mr. Johanson.

CRIDEN: I'll get back to you in the next couple hours.

WALD: Alright.

CRIDEN: If I can serve him up.

A368-69. Wald then asked what the "tariff" would be for Johanson and Schwartz,

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and Criden replied "(t)wenty-five" for Johanson, A375, and "(a) nother fifty" for Schwartz. A376. Wald demurred at the latter figure, and Criden asked, "You wanta go thirty on this guy?" Wald asked, "will he bite at thirty? ... I mean does that take care of him?" and Criden replied, "Let me try it .... I'll run it up the flagpole." A376-77. Finally Criden raised the subject of his fee and asked for and was promised "ten for both of them." A377.

Several hours later, Criden returned with Johanson to the Barclay suite where Wald and Haridopolos waited. Wald again discussed the proposed hotel construction, explained that he wanted to avoid delays due to the need for a variance or a building permit, and received Johanson's assurances that the inspectors from Licenses and Inspections, the building inspectors, the...

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