U.S. v. Dansker
| Decision Date | 02 June 1976 |
| Docket Number | No. 75-1688,Nos. 75-1685,No. 75-1686,No. 75-1685,No. 75-1692,No. 75-1689,No. 75-1690,No. 75-1691,No. 75-1687,75-1685,75-1686,75-1687,75-1688,75-1689,75-1690,75-1691,75-1692,s. 75-1685 |
| Citation | 537 F.2d 40 |
| Parties | 2 Fed. R. Evid. Serv. 577 UNITED STATES of America v. Norman DANSKER, Appellant in, et al. Appeal of Joseph DIACO, inAppeal of Stephen HAYMES, inAppeal of Donald ORENSTEIN, inAppeal of Nathan L. SEROTA, inAppeal of Andrew VALENTINE, inAppeal of VALENTINE ELECTRIC, inAppeal of INVESTORS FUNDING CORP. OF NEW YORK, into 75-1692. |
| Court | U.S. Court of Appeals — Third Circuit |
Donald J. Goldberg, Philadelphia, Pa., for appellant in No. 75-1685.
Frederic C. Ritger, Jr., South Orange, N. J., for appellant in No. 75-1686.
Alan M. Dershowitz, Cambridge, Mass., for appellant in No. 75-1687.
Richard A. Levin, Amster & Levin, Newark, N. J., for appellant in No. 75-1688.
Martin London, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for appellant in No. 75-1689.
Marilyn J. Morheuser, Kevin J. Walsh, New York City, for American Civil Liberties Union of New Jersey as amicus curiae in No. 75-1689.
Edward Gasthalter, Gasthalter & Pollok, New York City, for appellants in Nos. 75-1690/91.
Jonathan L. Goldstein, U. S. Atty. for the District of New Jersey, John J. Barry, Asst. U. S. Atty., Newark, N. J., for appellee.
Before SEITZ, Chief Judge, and VAN DUSEN and WEIS, Circuit Judges.
The defendants Dansker, Haymes, Orenstein, Diaco, Valentine, Valentine Electric, and Investors Funding Corporation were convicted under a three count indictment charging them with conspiracy to violate the Travel Act, 18 U.S.C. § 1952, and with substantive violations of the statute. Count I alleged that they had conspired to utilize the facilities of interstate commerce to bribe Burt Ross, the mayor of Fort Lee, New Jersey, and the defendant Nathan Serota, vice-chairman of the Fort Lee Parking Authority, in order to gain zoning variances and other official approvals which would permit the construction of a large shopping center complex in Fort Lee. The remaining counts of the indictment charged them with the bribe of Ross (Count II) and the bribe of the defendant Serota (Count III). The remaining defendant, Serota, was convicted solely under Count III of the indictment which charged him with accepting a bribe in violation of New Jersey law. The defendants have appealed, alleging numerous infirmities in their convictions.
THE FACTUAL BACKGROUND:
The evidence, viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), may be summarized as follows: Fort Lee, N.J., is a community of approximately 40,000 residents located at the western terminus of the George Washington Bridge. In 1971, Arthur Sutton began acquiring real estate in that community for commercial development. His efforts were financed to a large extent by the defendant Investors Funding Corporation ("IFC"). 1 During 1972 and 1973, the financing arrangement between Sutton and IFC was used by the principals of IFC, defendants Dansker, Haymes, and Orenstein (the "IFC defendants"), to divert approximately $5,000,000 in IFC funds to their personal use.
Although much of the property acquired by Sutton and IFC was zoned non-commercial, they ultimately decided to build a huge shopping center complex on it. To this end, Sutton petitioned the Fort Lee Board of Adjustment in late 1973 for zoning variances permitting the construction of the project. Plans for the complex were announced publicly in early 1974.
A large segment of Fort Lee's populace reacted strongly to the proposal. One of the leaders of this opposition was the defendant, Nathan Serota, the vice-chairman of the Fort Lee Parking Authority. Serota was a builder on Long Island but resided in an expensive condominium apartment located in Fort Lee near the proposed project complex. Although he took no action in his capacity as a public official, Serota paid for advertisements in local newspapers opposing the project and helped form a citizens group which brought lawsuits against the developers. In addition, he organized and financed a slate of candidates for the Borough Council who made the proposed complex the major issue in the upcoming elections. However, Serota and the project's opponents concentrated their immediate efforts on blocking approval of the developers' petition for variances then pending before the local Board of Adjustment.
Public hearings on Sutton's petition began before the Board of Adjustment in early March 1974. From the outset, Serota, accompanied by counsel, regularly attended the hearings and took an active part in them. By April, it became evident that the project had little chance of gaining the needed variances.
At this point defendant, Andrew Valentine, president of the defendant, Valentine Electric Company, 2 approached Sutton and offered to assist in obtaining official approval for the project in exchange for an opportunity to receive the electrical contract for the complex. At a subsequent meeting between them, Valentine suggested that their problems could be solved by buying off the two major opponents of the project, Serota and Mayor Ross. Sutton then relayed this proposal to the IFC defendants who approved such an approach and agreed to finance it.
In the weeks that followed, Serota was contacted by Valentine. They worked out an agreement under which Serota would sell his Fort Lee apartment, valued at $500,000, to the developers for $900,000. In addition, Serota would agree to cease his opposition to the project and take active steps to secure its approval in a modified form. Serota was to also receive an additional $200,000 in cash on the date his apartment was sold.
The actual sale of Serota's apartment was consummated on May 15. Under the terms of the contract, Serota sold his apartment for $900,000 ($250,000 down, $650,000 in deferred payments) to Herman Lasker, defendant Orenstein's brother-in-law, as agent for an undisclosed principal. The purchaser agreed to sublease the apartment back to Serota rent-free until September 30, 1978. The contract also contained a provision stating that Serota agreed to halt his opposition to the project. However, no mention at all was made of Serota's agreement to assist in obtaining official approval for the project or the additional $200,000 in cash he received on the closing date.
Having "taken care" of Serota, the defendants turned their attention to Mayor Ross. On May 19, a meeting took place between Ross and the defendant Joseph Diaco, a principal of Valentine Electric, at which Diaco sought to have Ross postpone the Board of Adjustment's decision on Sutton's petition which was then scheduled for May 22. When Ross indicated that he could not, Diaco asked him, "Would money help?". The meeting closed with Ross' agreement to meet with the developers' attorneys, but only after the Board of Adjustment rendered its decision. Ross secretly reported the incident to the United States Attorney's Office the following day, and thereafter worked with it in its investigation of the matter.
On May 22, Ross met with Diaco once again and had several telephone conversations with him. Diaco continually urged him to delay the Board's decision scheduled for that evening. This time, however, he offered him first $200,000, then $400,000, and finally $500,000 for his cooperation. During the last phone conversation of the day, which was taped, Diaco repeated his $500,000 bribery offer and threatened to expose "something about (Ross') administration" if he refused to go along. Ross, however, would only agree to meet with the defendants' attorneys after the variances had been turned down.
As expected, without Ross' intervention the Board voted down Sutton's petition. An outright rejection carried with it dire financial consequences for IFC which was then heavily indebted to several New York banks. Consequently, in order to placate IFC's creditors, Sutton and the IFC defendants decided to submit a modified version of the project to the Board in the near future. It was imperative that this modified proposal quickly receive official sanction. To this end, Valentine was again enlisted to attempt to secure Ross' assistance.
On May 24, Ross, wearing a body recorder provided by the FBI, met with Diaco in a Hackensack, N.J. restaurant. They discussed the means by which approval of the project in its revised form could be obtained. For his assistance, Ross was offered $100,000 as an advance to evidence Diaco's good faith, with an additional $200,000 to $400,000 to be forthcoming. Ross feigned acceptance of the proposal and agreed to meet further with Diaco and Sutton.
Ross' meeting with Diaco and Sutton took place on May 26, in a Paramus, N.J. diner. Ross was again equipped with a body recorder. The three discussed in detail the modified version of the project. Sutton stated that approval of it was needed by June 17. They then turned to the subject of the bribe. Ross indicated that he did not believe that $100,000 was overly generous. However, he accepted $100,000 in cash from Diaco. Later that day, he delivered this money to the FBI.
By May 29, IFC was under heavy pressure from the New York banks holding its notes. In order to avoid financial disaster a definite date on which the modified proposal would be placed on the Board's agenda was needed. Consequently, the IFC defendants contacted Sutton and urged him to finalize arrangements.
The following day, Ross, Sutton, and Diaco met once again. The three agreed that the revised plan would be submitted to the Board on June 7. It was hoped that official approval could then be obtained within ten days. For his part in the scheme, Ross would receive $200,000 in cash when the Board approved the plan and an additional $200,000 in monthly installments of...
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