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UNITED STATES v. PODELL

May 30, 1977

UNITED STATES OF AMERICA, Plaintiff,
v.
BERTRAM L. PODELL, Defendant



The opinion of the court was delivered by: DUFFY

KEVIN THOMAS DUFFY, D.J.

 The government has moved for summary judgment in this action which seeks to recover $41,350 allegedly paid defendant, a former United States Congressman, in violation of the federal conflict of interests statute, 18 U.S.C. § 203, prohibiting a member of Congress during his incumbency to receive compensation for services rendered with respect to any matter in which the United States has a direct and substantial interest before any department or agency. *fn1" It is the government's position that receipt of these monies in violation of § 203 constitutes a breach of the fiduciary duty which defendant owed the government and that defendant is thus accountable by means of a constructive trust imposed on his property to the extent of $41,350.

 On October 1, 1974, defendant entered a plea of guilty to paragraphs 1 and 5 of count 1, and to count 5 of the criminal indictment in United States v. Podell, et al., 73 Cr. 675, charging him with conspiratorial and substantive violations of § 203(a). The indictment basically charged in ten counts that defendant, while a member of Congress, had appeared before the Civil Aeronautics Board ("CAB") and the Federal Aviation Administration ("FAA") on behalf of Florida Atlantic Airlines, Inc. ("FAAL") which was seeking permission from the CAB to operate a route between Florida and the Bahamas and was opposing a revocation by the FAA of its operating certificate, and had received $41,350 for these services. The specific portions of the indictment to which defendant pleaded guilty are set forth in the margin. *fn2"

 The government contends that the plea estops defendant from contesting his violation of § 203, and that the acts thereby admitted constitute a breach of fiduciary duty owed the United States establishing liability therefor as a matter of law. To evidence the amount of liability, the government has submitted three checks totalling $41,350, payable to entities through which defendant purportedly admitted he was compensated, and drawn by drawers who defendant allegedly admitted paid him for his illegal services. The government further asserts that the affirmative defense of statute of limitations raised in defendant's answer is without merit.

 In opposition to the government's motion, defendant asserts that an issue of fact exists as to the acts encompassed by the plea and the amount allegedly paid. He further contests the sufficiency of the government's cause of action and, alternatively, viability of the claim in light of the statute of limitations.

 Under 18 U.S.C. § 218, the United States is granted recovery rights with respect to its transfers "in relation to which there has been a final conviction for any violation of this chapter." By analogy to that section, defendant argues that the absence of a similar recovery provision for sums paid in violation of § 203 demonstrates that the government has failed to state a claim upon which relief can be granted. This contention misapprehends the theory of this action, which seeks the recovery of sums not because they were paid in violation of § 203, but, rather, because they were paid in breach of a fiduciary duty, as evidenced by a violation of § 203. The action is based on principles of equity, and not on any federal statutory authority; and despite the existence of 18 U.S.C. § 218, courts have not been reluctant to recognize and remedy the misuse of a confidential relationship with the United States by employees or officials serving inconsistent interests for their own gain. See United States v. Drumm, 329 F.2d 109 (1st Cir. 1964); United States v. Drisko, 303 F. Supp. 858 (E.D.Va. 1969). Thus, defendant's attack on the sufficiency of the government's cause of action must fail.

 Defendant's contention that this action is barred by the statute of limitations is equally misplaced since it is predicated on the insufficiency of the government's claim as asserted and an anticipated amended or new complaint sounding in fraud. *fn3" Thus, defendant argues that under N.Y.C.P.L.R. §§ 213 and 203(f), the government would have had to bring suit within six years of the fraud or two years of its discovery, a period long expired by January 30, 1976, the date of the commencement of this action. Since fraud is neither alleged nor involved in this action, defendant's contention is wholly without merit.

 Turning to the merits of the motion for summary judgment, it is initially clear that proof of a public official's violation of § 203 will establish, as a matter of law, his breach of fiduciary duty owed the United States. A public official stands in a fiduciary relationship with the United States, through those by whom he is appointed or elected. Trist v. Child, 88 U.S. (21 Wall.) 441, 450, 22 L. Ed. 623 (1874). If he secretly advances interests adverse to those of the government which he serves, it is a breach of confidence and he must account to his "master" for the benefits received as a result, irrespective of consideration of fraud or damage. See United States v. Carter, 217 U.S. 286, 305-06, 54 L. Ed. 769, 30 S. Ct. 515 (1910); United States v. Drisko, supra, at 860.

 Section 203 is one of several statutory conflict-of-interest prohibitions "designed to prohibit government officials from engaging in conduct that might be inimical to the best interests of the general public." United States v. Mississippi Valley Co., 364 U.S. 520, 548, 5 L. Ed. 2d 268, 81 S. Ct. 294 (1961). A member of Congress who is secretly compensated for advocating private interests as an attorney before government agencies and departments has clearly divided loyalties; § 203 attempts to prevent the wearing of both public and private hats when both public and private interests are at stake. See United States v. Johnson, 215 F. Supp. 300, 315 (D.Md. 1963), aff'd in relevant part, 337 F.2d 180 (4th Cir. 1965); aff'd on other grounds, 383 U.S. 169, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966). A violation of this section unquestionably demonstrates a breach of trust, for in order to fall within its prohibition, a member of Congress must shed the duty of disinterested advocacy owed the government and his constituents in favor of championing private interests potentially inconsistent with this charge.

 It is settled that a criminal conviction estops a defendant in a subsequent civil case from contesting those matters on which the conviction rests, Emich Motors v. General Motors, 340 U.S. 558, 568-69, 95 L. Ed. 534, 71 S. Ct. 408 (1951); if the conviction results from a guilty plea, then the plea constitutes an admission of elements of the charge. McCarthy v. United States, 394 U.S. 459, 466, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969). Defendant concedes that his guilty plea of October 1, 1974 constitutes an admission that he was compensated for having represented FAAL, while a member of Congress, in connection with matters pending before the CAB and FAA. As such, his plea conclusively establishes his breach of fiduciary duty to the United States, and his accountability for that breach is clear.

 Once having established a breach, the inquiry shifts to a determination of the amount recoverable by the government by reason of the defendant's betrayal of trust. It is on this issue that the dispute centers. The government contends that defendant's guilty plea encompassed admissions that, for his services on behalf of FAAL, defendant had received money from Martin Miller, Kenneth Burstine and Michael Zorovich in the form of payments to the Citizen's Committee for the Reelection of Bertram L. Podell and fees to the law firm of Podell & Podell; and that at his allocution, defendant admitted that he was paid through Leasing Consultants, Incorporated ("LCT"). Consequently, the government argues that the three copies of cashed and deposited checks submitted -- two dated January 7, 1969 and March 13, 1969, drawn on the account of LSI, and payable to Podell & Podell for $12,350, and one dated May 1, 1969, drawn on the account of Martin Miller, and payable to "Citizens Committee for B. L. Podell" in the amount of $29,000 -- evidence the amount received by defendant for which he is accountable.

 In an attempt to raise an issue of fact as to the amount of compensation, defendant argues that his plea covered only his general concession of liability referred to above, and did not extend to the amount received, or the source and means of the payments. In so contending, he relies on the following portion of plea allocution:

 
THE COURT: * * * What I would like to hear from you, tell me in your own words what it is you did in respect to the counts you are pleading guilty to so I can be satisfied that you are, in fact, guilty.
 
DEFENDANT PODELL: If the Court pleases, while a member of Congress and acting as a lawyer for Florida Atlantic Airlines and paid by Leasing Consultants, Inc., I appeared before various Federal agencies, including the CAB, the FAA, and ...

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