U.S. v. Carpentier, 1266

• Decision Date: 20 September 1982
• Docket Number: No. 1266,D,1266
• Citation: 689 F.2d 21
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfred CARPENTIER, Defendant-Appellant. ocket 81-1487.
• Court: U.S. Court of Appeals — Second Circuit

Page 21

689 F.2d 21

UNITED STATES of America, Plaintiff-Appellee, v. Alfred CARPENTIER, Defendant-Appellant.

No. 1266, Docket 81-1487.

United States Court of Appeals Second Circuit.

Argued June 15, 1982.

Decided Sept. 20, 1982.

James A. Pascarella, Garden City, N.Y., for defendant-appellant.

Laura A. Brevetti, Sp. Atty., E.D. New York, Brooklyn, N.Y. (Edward R. Korman, U.S. Atty. for the E.D. New York, Edward A. McDonald, Atty.-in-Charge, Dept. of Justice, Organized Crime Strike Force, E.D. New York, Lawrence H. Sharf, Sp. Atty., E.D. New York, Brooklyn, N.Y., of counsel), for plaintiff-appellee.

Before NEWMAN and PIERCE, Circuit Judges, and KNAPP, ^* District Judge.

PIERCE, Circuit Judge:

Among those caught in the sweep of the ABSCAM net was appellant Alfred Carpentier. ¹ ABSCAM was a Federal Bureau of Investigation ("FBI") undercover operation which came into existence during the summer of 1978. The initial goal of ABSCAM was the recovery of stolen property, particularly securities and certificates of deposit. By the end of 1978, however, the focus of the operation had been turned towards the growing presence of organized crime in Atlantic City. This aspect of the operation led in turn to the investigations into political and public corruption which thrust ABSCAM into national prominence.

ABSCAM operated behind a cover organization, Abdul Enterprises, which purportedly represented the investment interests in the United States of two Arab sheiks, Kamad Abdul Rahman and Yassir Habib. These sheiks were fictitious characters. In fact, at no time were any Arabs connected with Abdul Enterprises. ² The undercover agents who were involved with ABSCAM told various individuals that the sheiks had supplied Abdul Enterprises with $400 million for the purpose of investment into various ventures. This money was supposedly on deposit at the Chase Manhattan Bank. ³

In 1978 Carpentier was apparently the owner of the Beefalo Cattle and Land Company ("Beefalo"), a farm in upstate New York. Sometime during the latter part of 1978, a banker friend of Carpentier introduced him to Melvin Weinberg, a self-confessed confidence man who worked as a paid consultant in the ABSCAM operation. According to the testimony of both Weinberg and FBI Agent Anthony Amoroso, it seems apparent that Carpentier's initial aim with regard to Abdul Enterprises, at least in part, was to persuade the "officers" of the organization to invest in Beefalo.

On March 23, 1979, at Weinberg's invitation, Carpentier attended a party in Florida on the yacht "Left Hand," which was employed by the FBI in connection with its ABSCAM activities. At that party, Carpentier told Weinberg and FBI Agent Anthony Amoroso ⁴ that he was able to obtain passports and green cards ⁵ through two employees of the United States Immigration and Naturalization Service ("INS"), Alexander A. Alexandro, Sr. and his son Alexander, Jr. ⁶

This information was conveyed to John Good, Amoroso's superior, and the FBI decided to attempt to arrange a meeting, via Carpentier, between the agents and Alexandro, Jr. (hereinafter "Alexandro"). Weinberg telephoned Carpentier and asked him to meet with himself and Amoroso at the Abdul Enterprises offices in Holbrook, Long Island. ⁷ This meeting, at which Carpentier, Weinberg, Amoroso and Agent Carol DeRosa were present, was taped. During the meeting, Weinberg and Amoroso explained to Carpentier that they wished to avail themselves of Alexandro's aid in facilitating the illegal entry into the United States of Thomas Foley, an "Irish kid" who was the son of a friend of one of the "Arabs." ⁸

The transcript of the tape of the May 30th meeting shows that Carpentier was aware that Alexandro was to be paid for obtaining a green card for Foley: at one point Carpentier stated, "(c)an you get ten grand from (Foley)? By the way, some people pay 50 to 100 grand for this green card, ya know." He assured Amoroso that Alexandro was a "nice guy" who would not "rob" Amoroso in the transaction. Amoroso gave Carpentier $500 for "expenses," and Carpentier stated that Amoroso was to give him his "usual ten percent."

Carpentier contacted Alexandro and on the following day, May 31, 1979, Alexandro met with Carpentier, Amoroso and Weinberg at the Colon(ie) Hill Hotel on Long Island. During this meeting, which was taped, various ways and means of providing Foley with a green card were discussed. Carpentier participated actively in the discussion: at one point, when they were considering the possibility of providing Foley with a corporate sponsor, Carpentier stated that "Beefalo Cattle and Land will hire him." By the end of the meeting, Alexandro had indicated his willingness to use his position to provide Foley with a green card.

During the subsequent three months, an elaborate scheme was concocted for the purpose of bringing Foley illegally into the United States. It was ultimately decided that the best plan would be to arrange a sham marriage between Foley and an American woman. The two would divorce once Foley was safely established as a resident of the United States. Alexandro arranged for all necessary papers and went so far as to find a young woman who was willing to become Foley's wife. Alexandro was to personally conduct Foley through customs and immigration. The final price for the entire package was $15,000. Amoroso gave Alexandro a $2000 downpayment on this sum.

During the course of planning the scheme, at least two telephone calls, on June 19th and on June 29th, were made by Carpentier to Weinberg. These calls, which Weinberg taped, were for the purpose of coordinating arrangements between Amoroso and Alexandro. In addition, several telephone calls between Alexandro and Amoroso were taped, and, ultimately, a meeting at the International Hotel at New York's Kennedy Airport was videotaped. Only Alexandro, Amoroso and Weinberg were present at this meeting. The videotape and the audio tapes of the various meetings and telephone calls discussed herein were admitted into evidence against each defendant at the subsequent trial of Alexandro and Carpentier.

On March 3, 1980, an Eastern District of New York grand jury indicted both Carpentier and Alexandro on each of three counts: (1) conspiracy to receive bribes in violation of 18 U.S.C. § 371; ⁹ (2) receiving bribes in violation of 18 U.S.C. § 201(c); ¹⁰ and (3) conflict of interest in violation of 18 U.S.C. § 203(a). ¹¹ They were tried jointly by a jury before Federal District Judge Mark A. Costantino. Carpentier was convicted on the charges in counts one and three and acquitted of bribery as charged in count two. Alexandro was convicted on all three counts. ¹² Carpentier was sentenced to four years imprisonment and fined $5000 on the first count and to two years imprisonment and an additional $5000 fine on the third count. Execution of the judgment of imprisonment imposed on count three was suspended. Carpentier timely appealed the judgment of conviction against him to this Court.

For the reasons set forth hereinbelow, we affirm.

DISCUSSION

Carpentier presents four arguments on appeal: (1) the government's conduct in the ABSCAM investigation as it related to this case was so intrusive that it violated appellant's due process rights under the fifth amendment; (2) appellant was entrapped "as a matter of law"; (3) the trial judge abused his discretion by refusing to sever the trial of appellant from that of Alexandro; and (4) the trial judge committed reversible error when he refused to permit an individualized in camera voir dire of prospective jurors. These points shall be considered seriatim.

I

Carpentier's main argument on appeal is that the government's conduct in this case was "so outrageous that due process principles ... absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973). In his brief on appeal, Carpentier points to what he describes as the "uncontrolled" use of the "archetypical, amoral, fast-buck artist" Melvin Weinberg, quoting United States v. Jannotti, 501 F.Supp. 1182, 1193 (E.D. Pa. 1980), rev'd, 673 F.2d 578 (3d Cir. 1981) (en banc ), cert. denied, --- U.S. ----, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982), ¹³ as an offense against the principles of due process. He also maintains that a government investigation becomes "outrageous" when, as he sees it, it manufactures crime rather than attempts to prevent or arrest criminal behavior.

We note at the outset that, as Justice Powell stated in his concurrence in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), "the cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction." Id. at 495 n. 7, 96 S.Ct. at 1653 n. 7 (Powell, J., concurring). This is not such a case.

This Court has consistently rejected the defense urged here in a variety of contexts. In United States v. Nunez-Rios, 622 F.2d 1093 (2d Cir. 1980), a Drug Enforcement Administration ("DEA") informant had supplied defendants with a quantity of cocaine which they in turn sold to a DEA agent. There was little question of defendants' predisposition to commit the crime; the government's involvement was limited to supplying them with the means. The Court stated that these "facts fall far short of the kind of outrageous conduct which would violate defendant's due process rights." Id. at 1097.

In United States v. Corcione, 592 F.2d 111 (2d Cir.), cert. denied, 440 U.S. 975, 99 S.Ct. 1545, 59 L.Ed.2d 794, 985, 99 S.Ct. 1801, 60 L.Ed.2d 248 (1979), government agents supplied heroin to the defendants while they were in Thailand, and the government assisted in the plans for its transportation to and sale in the United States. This Court again held that this did not rise to the level of...