U.S. v. Myers, s. 904

• Decision Date: 03 September 1982
• Docket Number: Nos. 904,s. 904
• Citation: 692 F.2d 823
• Parties: 11 Fed. R. Evid. Serv. 679 UNITED STATES of America, Appellee, v. Michael O. MYERS, Angelo J. Errichetti, Louis Johanson, and Howard L. Criden, Defendants-Appellants. UNITED STATES of America, Appellee, v. Frank THOMPSON, Jr. and John M. Murphy, Defendants-Appellants. UNITED STATES of America, Appellee, v. Raymond F. LEDERER, Defendant-Appellant. to 905, 906, 907, 840, 841 and 855, Dockets 81-1342 to 81-1347 and 81- 1446.
• Court: U.S. Court of Appeals — Second Circuit

Page 823

692 F.2d 823

11 Fed. R. Evid. Serv. 679

UNITED STATES of America, Appellee, v. Michael O. MYERS, Angelo J. Errichetti, Louis Johanson, and Howard L. Criden, Defendants-Appellants.

UNITED STATES of America, Appellee, v. Frank THOMPSON, Jr. and John M. Murphy, Defendants-Appellants.

UNITED STATES of America, Appellee, v. Raymond F. LEDERER, Defendant-Appellant.

Nos. 904 to 905, 906, 907, 840, 841 and 855, Dockets 81-1342

to 81-1347 and 81- 1446.

United States Court of Appeals, Second Circuit.

Argued April 5, 1982.

Decided Sept. 3, 1982.

Rehearing Denied in No. 81-1345 Nov. 17, 1982.

Herny F. Frust, Newark, N.J. (Henry F. Furst and Raymond A. Brown, Newark, N.J., on the brief), for defendant-appellant Errichetti.

John J. Duffy, Philadelphia, Pa. (Steven H. Gifis, Alan Dexter Bowman, Princeton, N.J., on the joint brief for Myers, Errichetti, and Johanson), for defendant-appellant Johanson.

Richard Ben-Veniste, Washington, D.C. (Ben-Veniste & Shernoff, Washington, D.C., on the brief), for defendant-appellant Criden.

Timothy Savage, Philadelphia, Pa., for defendant-appellant Lederer.

Daniel R. Pollitt, Chapel Hill, N.C., and Frank Askin, Newark, N.J. (Neal Rutledge, Washington, D.C., on the brief), for defendant-appellant Thompson.

Michael E. Tigar, Washington, D.C. (Samuel J. Buffone, Linda Huber, Tigar, Buffone & Doyle, Washington, D.C., on the brief), for defendant-appellant Murphy.

Edward Korman, U.S. Atty., and Lawrence Sharf, Sp. Atty., Brooklyn, N.Y. (Thomas P. Puccio, Atty-in-Charge, Organized Crime Strike Force, Edward A. McDonald, Sp. Atty., Gregory J. Wallance and Vivian Shevitz, Asst. U.S. Attys., Brooklyn, N.Y., on the briefs), for appellee.

Neil Jokelson, Philadelphia, Pa. (Rochelle Newman, Jokelson & Rosen, Philadelphia, Pa., on the brief), for defendant-appellant Myers.

Before LUMBARD, FRIENDLY and NEWMAN, Circuit Judges.

NEWMAN, Circuit Judge:

In United States v. Myers, 635 F.2d 932 (2d Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980) (Myers I ), we ruled that the Government had not violated the defendant's constitutional rights as a Member of Congress by requiring him to stand trial on charges of bribery arising out of an undercover "sting" operation now well known to the nation as Abscam. See also United States v. Murphy, 642 F.2d 699 (2d Cir. 1980). The Myers ruling, made in advance of trial, was based on the face of the indictment that had been returned. Now before us are appeals from judgments of conviction entered in the Eastern District of New York (George C. Pratt, Judge), after three separate jury trials in which four Congressmen and three co-defendants were found guilty of various offenses related to corruption of public office arising out of the Abscam investigation. Nos. 81-1342, 81-1343, 81-1344, and 81-1446 are appeals from convictions in the joint trial of appellants Michael O. Myers, formerly Congressman from the First District of Pennsylvania; Angelo J. Errichetti, formerly Mayor of Camden, New Jersey; Louis Johanson, formerly a member of the City Council in Philadelphia, Pennsylvania; and Howard L. Criden, a law partner of Johanson's. No. 81-1347 is an appeal from the conviction of appellant Raymond F. Lederer, formerly Congressman from the Third District of Pennsylvania, at a separate trial. Nos. 81-1345 and 81-1346 are appeals from the convictions of Frank Thompson, Jr., formerly Congressman from the Fourth District of New Jersey, and John M. Murphy, formerly Congressman from the Seventeenth District of New York, at a joint trial. Though some of the three trials present distinct issues, all seven appellants raise questions of such similarity that we have found it appropriate to consider all of the claims in one opinion. For the reasons that follow, we have concluded that all of the judgments should be affirmed on all counts, with the exception of Count Three of the indictment against Murphy, as to which we reverse and remand for a new trial.

I.

Myers, Errichetti, Johanson, and Criden were charged in a three-count indictment. Count One alleged a conspiracy in violation of 18 U.S.C. Sec. 371 (1976) to defraud the United States and to violate 18 U.S.C. Sec. 201, punishing bribery and the receipt of bribes by public officials including Members of Congress. This count alleged that the conspiracy sought to defraud the United States of the Government's right (a) to the honest service of Congressman Myers "in relation to matters before the House of Representatives performed free from corruption"; (b) to have the "official action" of Congressman Myers "in attempting to influence decisions of departments and agencies of the United States in relation of matters of immigration and residence performed free from corruption"; (c) to have the immigration laws "administered honestly and impartially, free from improper and undue pressure and influence"; and (d) to have officials enforcing the immigration laws "perform their official duties free from impairment and obstruction by the exercise upon them of corrupt ... pressure and influence." The conspiracy to violate section 201 was alleged to consist of the defendants' agreeing to demand and receive money for Congressman Myers in return for the Congressman's "being influenced in his performance of official acts."

Count Two alleged bribery in violation of 18 U.S.C. Sec. 201(c) and Sec. 2. This count alleged that Congressman Myers, aided and abetted by the other co-defendants, agreed to receive and received money "in return for" his "being influenced in his performance of official acts as a member of Congress, to wit, his decisions and actions in a matter involving immigration, residency and citizenship of foreign nationals which might at any time be pending or which might by law be brought before the House of Representatives and departments" of the Government. Count Three alleged that all four defendants traveled in interstate commerce to carry on the unlawful activity of bribery, in violation of 18 U.S.C. Sec. 1952 and Sec. 2.

The charges stemmed from an elaborate undercover "sting" operation conducted by the Federal Bureau of Investigation. Three FBI agents and a private citizen, all acting in an undercover capacity, purported to be representatives of two Middle Eastern sheiks operating a fictitious entity known as Abdul Enterprises, Ltd. The undercover operatives let it be known that their principals were interested in investing money in the United States and immigrating to this country. The core allegation against Myers and his co-defendants was that on August 22, 1979, Myers received $50,000 in return for his promise to introduce private immigration bills permitting the sheiks to remain in the United States and to take other necessary action including intervention with the State Department. A jury trial was begun on August 11, 1980, and concluded on August 29, 1980. The jury convicted all four defendants on all three counts. Errichetti and Criden were each sentenced to concurrent terms of six years' imprisonment and fines totalling $40,000. Myers and Johanson were each sentenced to concurrent terms of three years' imprisonment and fines totalling $20,000.

In a separate indictment, Lederer was charged, along with Errichetti, Johanson, and Criden, in a four-count indictment. Three of the counts paralleled the conspiracy, bribery, and interstate travel counts of the Myers' indictment. In addition, a fourth count alleged receipt of an unlawful gratuity by Lederer, in violation of 18 U.S.C. Sec. 201(g). This count alleged that Lederer, aided and abetted by his co-defendants, agreed to receive and received money "for and because of" the performance of his official duties in a matter involving immigration of foreign nationals. The core allegation in this indictment was that on September 11, 1979, Lederer received $50,000 in return for his promise to help the sheiks with their immigration problems. Lederer's co-defendants were severed from his case after their convictions in the Myers case. Lederer's trial began January 5, 1981, and concluded January 9, 1981. The jury convicted Lederer on all four counts. He was sentenced to concurrent terms of three years' imprisonment and fines totalling $20,000.

In a third indictment, Thompson and Murphy were charged, along with Criden and Joseph Silvestri, a New Jersey businessman, in a five-count indictment. Counts One, Two, and Four paralleled the conspiracy, bribery, and interstate travel counts of the Myers' indictment. Count Three charged a so-called conflict of interest, in violation of 18 U.S.C. Sec. 203(a). This count alleged that Thompson and Murphy, aided and abetted by Criden, agreed to receive and received money "as compensation for services to be rendered before departments, agencies and officers of the executive branch of the Government" in a matter involving immigration of foreign nationals. Count Five, paralleling a count of the Lederer indictment, charged receipt of an unlawful gratuity, in violation of 18 U.S.C. Sec. 201(g). The core allegation in this indictment was that on October 20, 1979, Murphy received $50,000, subsequently shared with Thompson, in return for their promises to help the sheiks with their immigration problems. The charges against Criden and Silvestri were severed by agreement from the charges against Thompson and Murphy. Trial (the second in the sequence of three) began on November 10, 1980, and concluded on December 3, 1980. Before the case went to the jury, Judge Pratt dismissed, as against Thompson, Count Four charging unlawful interstate travel. The jury found Thompson guilty on Counts One, Two, and Five charging conspiracy, bribery, and receipt of an unlawful gratuity; he was found not guilty on Count Three charging conflict of interest. Murphy was found guilty on Counts One, Three, and Five charging conspiracy, conflict of interest, and receipt of an unlawful gratuity; he was found not guilty on Count Two...