United States v. Kahn

• Decision Date: 09 January 1973
• Docket Number: No. 119,72-1776 and 72-1777.,71-2206,Docket No. 71-2205,120,119
• Citation: 472 F.2d 272
• Parties: UNITED STATES of America, Appellee, v. Irving B. KAHN and Teleprompter Corporation, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

472 F.2d 272 (1973)

UNITED STATES of America, Appellee, v. Irving B. KAHN and Teleprompter Corporation, Appellants.

Nos. 119, 120, Docket Nos. 71-2205, 71-2206, 72-1776 and 72-1777.

United States Court of Appeals, Second Circuit.

Argued October 18, 1972.

Decided January 9, 1973.

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Robert B. Fiske, Jr., New York City (Davis, Polk & Wardwell, Dale L. Matschullat, New York City, and Alan M. Dershowitz, Cambridge, Mass., of counsel), for appellant Teleprompter Corp.

John W. Nields, Asst. U. S. Atty. (Silvio J. Mollo, Acting U. S. Atty., S.D.N. Y., John D. Gordan, III, Asst. U.S. Atty., of counsel), for appellee.

Peter Fleming, Jr., New York City (Curtis, Mallet-Prevost, Colt & Mosle, New York City, John E. Sprizzo, Martin J. Proscia, and Philip Mandel, New York City, of counsel), for appellant Kahn.

Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This case takes us into the corrupt municipal politics of Johnstown, Pennsylvania, where local franchises were apparently granted to the highest bidder — of the biggest bribe to local officials. In 1966, Irving B. Kahn, on behalf of Teleprompter Corporation, made such a payment to three Johnstown officials to insure the retention of a local cable television franchise. The plot was later uncovered, and prosecution ensued. After a jury trial in the Southern District of New York, Constance Baker Motley, Judge, Kahn and Teleprompter were convicted of conspiracy and violation of the Travel Act, 18 U.S.C. § 1952; Kahn was also convicted of perjury arising out of related grand jury proceedings. A motion for new trial was denied, 340 F. Supp. 485. Aided by able counsel, both appellants have now launched massive appeals. Nonetheless, we find no error and affirm.

I. THE FACTS

The background facts are not seriously in dispute. Appellants admit that the payment, totaling $15,000, was made to the three Johnstown officials, and that they paid the money to retain the TV franchise. In defense, they claim that the payment was the result of extortion, threats by the local politicians to destroy Teleprompter's valuable franchise.

The key characters to the drama can be quickly identified. Kahn was the president, founder, and chairman of the board of Teleprompter, which had operated a cable TV franchise in Johnstown since 1961. Kenneth O. Tompkins was the mayor of Johnstown; J. Howard Deardorff and Robert McKee were members of the City Council, who together with Tompkins, comprised a majority of that body.

Tompkins was elected in 1963, on a platform that included promises to increase local revenues from cable TV. In April, 1965, the City Council passed an ordinance, authorizing the granting of "non-exclusive licenses" for the operation of cable television franchises in return for payments to the city of about $12,000 a year. Teleprompter, which until then had been paying $600 annually for what to all intents and purposes was an exclusive license, became understandably upset, and initiated court action to void the ordinance as unconstitutional. Negotiations followed, and the parties apparently settled upon an arrangement that would require Teleprompter to make annual payments to the city, beginning at $7500 and increasing to $12,000, in return for an exclusive franchise. This agreement was submitted to the City Council on December 14, 1965, and set down for consideration at the next weekly meeting.

A vote on the Teleprompter agreement never came. On December 21, representatives of four companies appeared at the meeting, and offered to bid on the TV franchise. On December 28, the representative of a fifth firm did likewise. At least two of the companies publicized their offers, which were on the surface considerably more generous than the proposed Teleprompter agreement.¹ On January 18, 1966, the Council announced that bids would be taken for the franchise, which would then be awarded at the February 1 meeting.

Kahn came quickly to Johnstown to fight the proposed bidding. On January 24, he met in his room at the Holiday Inn with Tompkins, Deardorff and McKee. According to Tompkins and Deardorff's trial testimony, Kahn originally tried to argue the three out of going through with the proposed bidding, but finally offered each a $5000 bribe if they would vote for Teleprompter on February 1. All agreed.

On the following day, Kahn appeared before the Council, and maintaining his previous public posture, argued strenuously against the proposed bidding. He spent several more days in Johnstown, continuing his public lobbying efforts.

Nevertheless, the bidding went forward. Teleprompter did not formally "bid", but did make an "offer" of $474,000 for a twenty-year exclusive franchise.² That bid was accepted by the Council on February 1, subject to further negotiations about specific conditions. Other bids were formally rejected on February 8; after intermediate negotiations between Teleprompter and the city, the franchise was finally awarded on March 2.

In the meantime, on February 26, Kenneth O. Tompkins II the mayor's son, went to New York City and picked up a $7500 check from Teleprompter's public relations firm. He deposited the check, installment number one of the bribe, in a New York bank, drew two checks, and mailed them to his father, who distributed the proceeds. The next installment came in August, 1966, when the mayor himself went to New York, and collected $6000 from Teleprompter for a fictitious office machine that had allegedly been sold to the local TV franchise by Tompkins' office supply company. The same ploy was used to mask the final $1500 payment, in October, 1966, which was mailed directly to Tompkins' office.

On October 28, 1970, the younger Tompkins received a subpoena to testify before a grand jury in the Southern District. On November 6, he appeared, and falsely testified that the first $7500 check was in return for survey work he had done for Teleprompter. On November 25, the mayor appeared before the grand jury, and invoked the Fifth Amendment. Deardorff followed suit on December 16. On December 17, Kahn appeared for the first time and testified. He denied the payment of any bribes, and described the survey work allegedly done by the younger Tompkins.

In the next several weeks, the city officials apparently decided to make a clean breast of things. The mayor reappeared on December 22 and Deardorff on December 29, and both testified about the bribes. McKee again declined to testify on December 22, but on December 29 relented and also testified about the bribes. Finally, on January 27, Kahn reappeared, and read a prepared statement, admitting the payments but claiming that they were extorted.

Indictments followed, charging Kahn, Tompkins, Deardorff, McKee and Teleprompter with conspiracy and violation of the Travel Act, and charging Kahn with perjury. Tompkins and Deardorff pleaded guilty to conspiracy and testified for the government at the ensuing trials. McKee's case was severed, and he was convicted³ after a trial before Judge Motley subsequent to that of Kahn and Teleprompter. The conviction was affirmed here. United States v. McKee, 462 F.2d 275 (2d Cir.1972).

II. THE EXTORTION DEFENSE

As noted above, while admitting the $15,000 payments, Kahn and Teleprompter claimed that the money had been extorted from them. The factual outlines of the defense, presented chiefly through Kahn's grand jury testimony, were as follows. The January 24 meeting at the Holiday Inn was a wholly innocent one, devoted wholly to legitimate lobbying against the proposed bidding. Realizing the apparent futility of its lobbying efforts, Teleprompter decided to make an offer the Council couldn't refuse, and the $474,000 bid followed. The size of the bid caught the mayor and Council off guard, and they were forced to accept it. But this angered the corrupt officials, who had planned to award the franchise to another bidder. Thus, the officials took advantage of the time period after February 1, ostensibly devoted to detailed negotiations, to threaten withdrawal of Council approval unless Teleprompter agreed to a "payoff." These threats, which went to the very economic survival of Teleprompter in the cable TV line, finally overwhelmed Kahn on February 10, and he reluctantly succumbed to the nefarious scheme.

Since appellants fully presented this defense to the jury below, which through its verdict of guilty rejected it, our obligation to view the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), would ordinarily require us to do the same. But Kahn and Teleprompter claim that Judge Motley's instructions on the extortion defense prevented the jury from fairly considering the issue. It is to those contentions we now turn.

The Travel Act, 18 U.S.C. § 1952, makes it a crime to use an interstate facility with intent to "promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity," including bribery in violation of state law. Just as the initial inquiry in a Travel Act case is whether the underlying activity violates a state law, see United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969), the assertion of a particular state law defense in such a case requires a determination of whether the relevant state recognizes the defense. United States v. D'Amato, 436 F.2d 52, 53 (3rd Cir. 1970).

In the case at hand, appellants claim that Judge Motley erred by not instructing the jury that the defendants should be acquitted if it were found that they paid the money in response to extortion, or put briefly, that proof of extortion was a complete defense to bribery. Instead, the trial court told the jury that extortionate conduct by the public officials, if proved, could be considered by them in connection with the issue of...