United States v. Williams, CR 80-00575.
| Decision Date | 22 December 1981 |
| Docket Number | No. CR 80-00575.,CR 80-00575. |
| Citation | 529 F. Supp. 1085 |
| Parties | UNITED STATES of America, v. Harrison A. WILLIAMS, Jr. and Alexander Feinberg, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
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U. S. Dept. of Justice Organized Crime Strike Force by Thomas P. Puccio, Lawrence H. Sharf, Edward A. McDonald and Gregory J. Wallance, Brooklyn, N. Y., for the Government.
Jones, Day, Reavis & Pogue by Erwin N. Griswold and Claire Shapiro, Washington, D. C., Evans, Koelzer, Marriott, Osborne & Kreizman by George J. Koelzer and Joel N. Kreizman, Red Bank, N. J., for defendant Williams.
Lavin & Batchelder by Carol Prendergast, Susan D. Bauer, and Harry C. Batchelder, Jr., New York City, for defendant Feinberg.
TABLE OF CONTENTS
Page No
I. PRIOR PROCEEDINGS 1088
II. EVIDENCE AT TRIAL 1090
III. THE JURY'S VERDICTS 1091
IV. DEFENDANTS' ARGUMENTS 1093
V. MOTION TO SUPPRESS TAPES 1093
VI. INSUFFICIENCY OF EVIDENCE TO SUPPORT
FEINBERG'S CONVICTION ON COUNT 5 1094
VII. CLAIMED ENTRAPMENT 1094
VIII. CLAIMED OUTRAGEOUSNESS 1097
A. The "Coaching" Incident. 1097
B. Timing of Interruptions. 1099
C. Internal Governmental Memorandum. 1100
D. Selective Prosecution. 1101
E. Amount of Inducement. 1101
F. Miscellaneous Instances of "Outrageous"
Conduct. 1102
G. Cumulative Effect. 1102
IX. CLAIMED MISCONDUCT BY GOVERNMENT
AT TRIAL 1102
A. Ritz Casino Evidence. 1103
B. Biocel Evidence. 1103
C. The Purpose for the Resale "Stall". 1104
D. Feinberg as "Bag Man". 1105
E. Summations. 1106
X. CONCLUSION 1107
Having been found by the jury to have been predisposed to commit the crimes of bribery, unlawful gratuity, conflict of interest, interstate travel, and conspiracy, defendants Williams and Feinberg now urge the court to set aside the jury's verdicts and dismiss the indictment for due process and related reasons. After considering the arguments advanced and weighing all the evidence adduced in this and related cases, the court concludes that with one exception, the motions to dismiss, for judgment of acquittal, and for a new trial must all be denied. The one exception concerns defendant Feinberg's motion for judgment of acquittal on count 5, discussed in section VI, infra.
U. S. v. Williams et al., CR 80-00575, was the fourth Abscam case tried before this court. In contrast to the three previous cases, which were transferred from Judge Mishler in August, 1980, this case was directly assigned to the undersigned as a "related" case when the indictment was filed on October 30, 1980. The case was originally set down for trial in February, 1981, but was later adjourned at defendants' request.
Extensive pretrial motions were filed, argued, and ruled upon. Defendants' motions to have the case reassigned, to dismiss the indictment on speech and debate grounds, to hold a pretrial due process hearing, for a severance, to inspect portions of the grand jury transcripts, for dismissal of the indictment due to pretrial publicity, for a pretrial hearing on the admissibility of co-conspirator hearsay statements, for dismissal due to delay in presenting the case to the grand jury, for dismissal of portions of the indictment on grounds of duplicity and multiplicity, to disqualify Thomas Puccio from prosecuting the case, to suppress all tape recordings involving Melvin Weinberg, to inspect all of the records of the jury clerk, for disclosure of income tax information relating to defendant Williams gathered by the government, and other requests were all denied. Numerous other motions seeking discovery, production of documents, a bill of particulars, and copies of videotapes, audio tapes, and transcripts were granted in part.
Motions for severance by defendants Katz and Errichetti were granted. Decision on defendant Williams' motion to dismiss on grounds of selective prosecution was reserved, and the motion was consolidated with defendants' due process claims, decision on which was deferred until after the jury trial.1 At least five pretrial appeals were taken to the Second Circuit, but this court's denial of the motion to dismiss on speech and debate grounds was affirmed, and the other appeals were dismissed as untimely. All motions to stay the trial were denied either by this court or the Court of Appeals.
Trial commenced on March 30, 1981, and continued until May 1, when the jury returned its verdicts of guilty on all counts against both defendants. A post-trial "due process" hearing was held on June 22 through June 25, 1981, for which additional discovery materials were sought and provided. The court approved a post-hearing briefing schedule that was protracted in order not to interfere unduly with defendant Williams' efforts to meet charges pending in the United States Senate; that schedule was later extended further at defendants' request. On October 21, 1981 the court heard oral argument by all sides.
In addition to the records of the trial and post-trial hearings, the parties have had available to them for use on this "due process motion" the trial transcripts from the Myers,2Lederer,3 and Thompson4 cases, as well as the transcript from the consolidated post-trial hearing5 held in those cases. Moreover, the court advised counsel that it would consider all of the arguments made by defendants in those three related Abscam cases, as well as any evidence from the Philadelphia and Washington Abscam cases6 that might be brought to the attention of the court through counsel.
The specific post-hearing papers submitted on the instant motions include Williams' memorandum and reply memorandum in support of the motion to dismiss on due process and related grounds; Williams' brief and reply brief in support of motions for judgment of acquittal or a new trial; Feinberg's memorandum in support of all post-trial motions; the government's post-hearing memorandum in opposition to all motions; letters from Williams' attorneys of record dated October 23, 1981 and November 14, 1981; and a letter from Feinberg's attorney dated November 14, 1981. In addition, defendant Williams relies on two briefs filed pretrial relating to his claim of selective prosecution and suppression of tape recordings involving Weinberg.
The general background of the "Abscam" investigation has previously been described by this court in its opinion denying the consolidated "due process" motions (hereinafter referred to as Myers decision), and need not be repeated.7 Memorandum and order of July 24, 1981. In each of the three prior cases the trial focused upon a videotaped meeting at which a congressman was offered and accepted a cash bribe. In contrast, the charges in Williams covered a greater time span, and involved transactions that were more complex and subtle, than the earlier cases.
Williams involved four defendants: (1) Harrison A. Williams, Jr., who is the only United States Senator to be indicted as a result of the Abscam investigation; (2) Alexander Feinberg, who was Williams' attorney, and was claimed by the government to be his "bag man"; (3) George Katz, a New Jersey businessman who was alleged to have been a co-conspirator and participant in the business deal out of which the Williams charges arose; and (4) Angelo J. Errichetti, who was Mayor of Camden, New Jersey, and a New Jersey state senator.
Errichetti's trial was severed under a stipulation calling for dismissal in the event his conviction in the Myers case is affirmed. Katz' trial was severed based on a doctor's certification that he was too ill to stand trial.8 Consequently, only Williams and Feinberg were tried by the jury.
The charges focused upon a business transaction relating to a titanium mine in Virginia and processing plant in Georgia. Senator Williams' investment group, consisting of himself, Feinberg, Katz, Errichetti and Sandy Williams,9 sought financing to acquire the titanium enterprise. Through Errichetti the group contacted undercover agent Anthony Amoroso and Melvin Weinberg, who posed as members of Abdul Enterprises, an investment firm pretending to represent wealthy Arab sheiks.
Attorney Feinberg organized three corporations to acquire ownership in and to operate the mining and processing venture, and the government's evidence permitted the jury to find that Williams and Feinberg each held an 18% stock interest in each corporation. Gov't ex. 19A. When the stock certificates were issued, blank certificates intended for defendant Williams' benefit were delivered to him by Amoroso in a recorded meeting at Kennedy airport on August 5, 1979. Gov't ex. 21A.
Criminality arose out of the promise requested by the undercover agent as a condition for the financing, which was that defendant Williams would promise to use his power and influence as a United States Senator to obtain government contracts for purchasing the titanium to be produced by the mine and processing plant. The government contended that defendant Williams agreed to do so in connection with two separate transactions: the stock-and-loan transaction, and the sale-of-stock transaction.
In the stock-and-loan transaction, the government's proof tended to establish that defendants...
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