U.S. v. Shenberg

• Decision Date: 12 July 1996
• Docket Number: 93-4906,Nos. 93-4798,s. 93-4798
• Citation: 89 F.3d 1461
• Parties: 45 Fed. R. Evid. Serv. 58 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Harvey N. SHENBERG, Defendant-Appellant-Cross-Appellee, David Goodhart, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Harvey N. SHENBERG, Alfonso C. Sepe, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1461

89 F.3d 1461

45 Fed. R. Evid. Serv. 58

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Harvey N. SHENBERG, Defendant-Appellant-Cross-Appellee, David Goodhart, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Harvey N. SHENBERG, Alfonso C. Sepe, Defendants-Appellees.

Nos. 93-4798, 93-4906.

United States Court of Appeals, Eleventh Circuit.

July 12, 1996.

G. Richard Strafer, Quinon & Strafer, P.A., Miami, FL, for Shenberg in No. 93-4798.

James Jay Hogan, Miami, FL, for Goodhart in No. 93-4798.

William A. Keefer, Jr., U.S. Attorney, John O'Sullivan, Anne Ruth Schultz, Linda Collins Hertz, Lawrence D. Levecchio, Dennis R. Bedard, Asst. U.S. Attys., Miami, FL, for the U.S. in No. 93-4798.

Anne R. Schultz, Asst. U.S. Atty., Kendall Coffey, U.S. Attorney, Linda Collins Hertz, Lawrence D. Levecchio, Dennis R. Bedard, Asst. U.S. Attys., Miami, FL, for the U.S. in No. 93-4906.

Richard Strafer, Quinon & Strafer, Miami, FL, for Shenberg & Sepe in No. 93-4906.

Appeals from the United States District Court for the Southern District of Florida.

Before HATCHETT and BARKETT, Circuit Judges, and GODBOLD, Senior Circuit Judge.

HATCHETT, Circuit Judge:

In these "Operation Court Broom" appeals, we affirm the convictions and order resentencing of one of the appellants. The facts that follow are either undisputed or represent factual inferences that the jury was entitled to draw.

FACTS

In November 1988, the citizens of Dade County, Florida, elected judicial candidate Roy T. Gelber to the Circuit Court of the Eleventh Judicial Circuit of Florida. Gelber, prior to taking office, arranged with his former law partner, Stephen Glass, to appoint Glass as special assistant public defender (SAPD). In return for SAPD appointments, Glass agreed to give Gelber one-third of the fees received. ¹ Gelber made similar kickback arrangements with other lawyers in Miami while in office. ² Also in 1988, Gelber became close friends with Dade County Court judicial candidate Harvey N. Shenberg. Shenberg, who also won his bid for election, advised Gelber regarding the acceptance of kickbacks and other illegal schemes. During one of Shenberg's conversations with Gelber, Shenberg suggested that Gelber add one of Shenberg's former law partners, Manny Casabielle, to the court appointment list in exchange for kickbacks of twenty-five percent. Gelber agreed. Thereafter, Shenberg periodically gave Gelber money in amounts ranging from $500 to $1,200 on Casabielle's behalf. Oftentimes, Gelber directed Shenberg to hold the money for safekeeping. During this same time period, Circuit Judge Alfonso C. Sepe talked with Gelber about appointing Arthur Massey, a private lawyer, as SAPD. Gelber appointed Massey in two cases for which Massey paid Gelber $1,000 in cash. Gelber eventually grew concerned that his repeated appointments of the same lawyers would raise suspicion; thus, in an attempt to avoid detection, Judge Sepe began appointing lawyers from Gelber's court appointment list.

State and federal officials (the government) eventually learned of the kickback scheme, and in 1989, the government launched a sting operation called "Operation Court Broom" to investigate corruption in the Circuit Court of Dade County. The government employed Raymond Takiff, a lawyer and a longtime friend of Gelber, to work undercover and tape-record telephone conversations and meetings with Gelber and others suspected of corruption. In August 1989, Takiff, posing as a corrupt lawyer with ties to a fictitious South American drug trafficker named "Peter," approached Gelber requesting Gelber's assistance in influencing criminal cases pending against Peter's employees. Gelber accepted $11,000 from Takiff and gave Shenberg $5,000 of the money to place in Shenberg's home safe. The next month, Takiff asked Gelber to investigate whether Peter's employee, Jose Angel Rapard, cooperated with authorities in exchange for the dismissal of an attempted murder charge pending against him. During their meeting, Takiff disclosed to Gelber that Peter believed that Rapard informed the police of a pending cocaine deal in exchange for the dismissal of the charge. Gelber and Shenberg, after reviewing Rapard's court file, agreed that the circuit judge handling the case dismissed it after the victim failed to appear. Gelber subsequently reported to Takiff that the circuit judge dismissed the attempted murder charges against Rapard for legitimate reasons.

Several months later, in March 1990, Takiff informed Gelber that the police searched one of Peter's employee's hotel room pursuant to a warrant Gelber signed. ³ Takiff told Gelber that Peter wanted the $143,000 in cash and jewelry seized in the search returned and information regarding the identity of the confidential informant. Gelber initially told Takiff that he could not assist him because he placed the warrant affidavit under seal. Gelber, however, subsequently agreed to hear Takiff's motion to return property and unseal the affidavit. After Gelber's meeting with Takiff, Gelber discussed Takiff's latest request with Shenberg. Gelber told Shenberg that he intended to receive a portion of the seized jewelry and money as payment for granting the motion. Shenberg responded stating that he did not believe that the request would raise any "red flags."

On March 20, 1990, Gelber conducted a hearing on Takiff's motion to return property and to unseal the affidavit. Gelber deferred ruling on the motion until March 22, 1990, and ordered the prosecutor to provide him with a copy of the sealed affidavit for in camera review. The following day, after Gelber had made a photocopy of the affidavit, he met with Takiff intending to provide Takiff with the name of the informant. Before Gelber divulged the name, Takiff informed Gelber that Peter intended to kill the informant. After learning of the murder plot, Gelber refused to disclose to Takiff the name of the informant. The next morning, Gelber ruled on the motion to return property ordering that the state return the seized jewelry to the defendant, that the state file a forfeiture action within ten days or return the seized cash, and that the warrant affidavit remain under seal to protect the informant's identity. Later that evening, Gelber met with Shenberg to inform him that Peter intended to kill the informant. Shenberg responded to this news stating, "I don't know what the big deal is. He's just a drug dealer." Subsequently, Shenberg decided to disclose the informant's name to Takiff, and on March 24, 1990, Shenberg met with Takiff for the first time. Shenberg, identifying himself as Gelber's best friend, stated that he had the information Takiff requested from Gelber. Shenberg then told Takiff that he would provide him with the name of the informant upon three conditions: (1) that Peter not murder the informant for forty-five days; (2) that Peter pay Shenberg $50,000; and (3) that Gelber receive a portion of the seized money and jewelry. Takiff agreed to Shenberg's terms, and Shenberg provided him with the name of the informant and facts contained in the affidavit. ⁴ In return, Takiff gave Shenberg $25,000 on April 2, 1990, as a partial payment for the informant's name and paid the remaining $25,000 on May 15, 1990. On May 16, 1990, Takiff gave Gelber $20,000 for his share of the seized money and property. Due to the success of this transaction, Shenberg and Gelber agreed that Takiff would deal directly with Shenberg in the future.

On July 5, 1990, Takiff telephoned Shenberg at his home requesting that Shenberg expedite a bond hearing for another one of Peter's employees. While on the telephone, Takiff stated that he had $10,000 to $12,000 available and that "the level of gratitude will at least be equal to that shown in the past." Shenberg told Takiff that he was unable to assist him but consented to meet with Takiff the next day. At their meeting the following morning, Shenberg angrily stated,

thanks to the phone call, we're dead meat. I mean, we're never going to be able to do anything again ... I'm never going to talk on the phone with someone who talks that way ... if you would have heard the conversation, God forbid it was recorded, it was the worse conversation that I ever, ever heard.

Shenberg met with Gelber later that morning and discussed the possibility that Takiff was an informant. Although Gelber did not believe Takiff was an informant and tried to alleviate Shenberg's concern, Shenberg told Gelber that Shenberg would not resume his dealings with Takiff.

In September 1990, Takiff approached Circuit Judge Phillip Davis seeking his assistance with case-fixing. Davis told Takiff that he, Gelber, and Shenberg intended to join up with him, stating that "we want to make some money, man." The following week, Takiff gave Davis a list of four names and asked Davis to determine whether these persons had any outstanding warrants against them. Davis provided the information. After learning that two of the persons had outstanding warrants, Takiff asked Gelber to fix the outstanding warrants against them. Gelber informed Takiff that he could only fix the warrant for the individual's case assigned to Circuit Judge Arthur Snyder. Following this discussion, Gelber conferred with Shenberg to discuss the possibility of influencing the case pending before Snyder. Shenberg, still expressing distrust for Takiff, stated that he believed Sepe should approach Snyder. Sepe agreed to approach Snyder on Takiff's behalf. Sepe, however, later informed Gelber that Snyder would not agree to fix the warrant. Consequently, Gelber reported to Takiff that he could not assist him on this matter.

In December 1990, the government assigned two fictitious drug trafficking cases to Sepe's criminal docket. A short time later, Takiff informed Gelber that outstanding warrants existed against Peter's sister-in-law, Bonnie Carrillo, and her husband, Hector Penna. Takiff also...