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United States v. Shulman

decided: February 21, 1980.

UNITED STATES OF AMERICA, APPELLEE,
v.
MAX L. SHULMAN, APPELLANT



Appeal from a judgment entered after a jury trial in the Southern District of New York, Charles L. Brieant, District Judge, convicting appellant of aiding and abetting the offer of a bribe to a public official in violation of 18 U.S.C. §§ 201(b) and 2 (1976). Affirmed.

Before Smith, Feinberg and Timbers, Circuit Judges.*fn*

Author: Timbers

After an eleven day jury trial in the Southern District of New York, Charles L. Brieant, District Judge, appellant Max L. Shulman was convicted on one count of aiding and abetting the offer of a bribe to an Internal Revenue Service employee in violation of 18 U.S.C. §§ 201(b) and 2 (1976).*fn1 On appeal, appellant urges (1) that the evidence was legally insufficient to sustain his conviction for aiding and abetting; (2) that the district court erred in admitting tape recordings of certain conversations between appellant and a witness and in charging the jury with respect to appellant's admissions on those tapes; (3) that the district court erred in admitting tape recordings of certain conversations between government witnesses as prior consistent statements; and (4) that the conduct of the government in investigating and prosecuting the case deprived appellant of due process. After careful examination of appellant's claims, we conclude that they are without merit. We affirm.

I.

At trial, evidence was adduced from which the jury could have found as follows. Max L. Shulman, the Chairman of the Board of Mays Department Stores, had served since February 1976 as an executor of the estate of his mother-in-law, Celia Weinstein. As executor, Shulman hired Henry Brooks, a private real estate appraiser, to appraise various real properties which comprised the Weinstein estate. After Brooks made his appraisal, Charles Rocoff, an IRS appraiser, was assigned to review Brooks' valuations and to determine the fair market value of the properties. Rocoff appraised the properties at more than twice the amount of Brooks' valuations.*fn2

On August 23, 1978 Brooks and Rocoff met for lunch at Brooks' office. When Brooks complained about the IRS valuation of the Weinstein properties, Rocoff told Brooks that he wanted to be paid to lower the IRS valuation. Brooks told Rocoff that he would see what could be done. On September 21 Brooks and Rocoff met again. Rocoff told Brooks once more that he wanted to be paid to lower his valuation of the properties. He further stated that he would accept $7500 to do so. Brooks told Rocoff that he would ask the Weinstein family for $10,000. Out of this amount, Brooks said that he would give $7500 to Rocoff and keep $2500 for himself. Brooks stated that he would find out if the money could be arranged and then get back to Rocoff.

In October 1978 Brooks met with Shulman.*fn3 Brooks informed Shulman that the IRS valuation figures could be lowered, but that the IRS agent wanted to be paid off for lowering them. Shulman responded, "Okay, see what you can do and come back with some figures." Brooks agreed and left. He then met with Rocoff and told him that "the money that he wanted was . . . available, and (Rocoff) should start working on the figures and get them lowered."

Brooks and Rocoff subsequently met on several occasions in October and early November to discuss the valuation of the Weinstein properties. On November 13, however, Brooks was taken into custody by IRS agents in connection with an investigation of corruption in the Internal Revenue Service Valuation Group. After being questioned about various other bribes, Brooks agreed to cooperate with the government and signed a cooperation agreement. Brooks then consented to the tape recording of several of his meetings and telephone conversations with Rocoff*fn4 during which the two discussed Rocoff's bribe to lower the valuation of the Weinstein properties. On November 27 Brooks met Rocoff. Rocoff supplied Brooks with lowered valuation figures;*fn5 at the same meeting Brooks gave Rocoff money which he said had been provided by the Weinstein family, but which in fact had been provided by the government. After departing with the money, Rocoff was arrested. He, too, decided to cooperate with the government and signed an agreement to that effect.

On December 7 Brooks, wearing a recording device, met with Shulman. Brooks referred to their earlier meeting in October at which Shulman had told Brooks to "see what you can do and come back with some figures." They then discussed the valuation figures lowered by the IRS agent. Shulman, after expressing some dissatisfaction over the amount of money required to bribe the agent, agreed to supply $10,000 to pay off Rocoff.

On December 11 Brooks met again with Shulman.*fn6 Brooks asked Shulman if he remembered their earlier meeting (i.e., the one in October) where they had "agreed maybe we can do something." Shulman acknowledged that he remembered the discussion. Shulman then gave Brooks an envelope containing $10,000 in cash which both men counted. Brooks left the meeting and turned the money over to government agents.

On March 9, 1979 the indictment upon which Shulman was tried was returned in the Southern District of New York charging him with the offenses stated above.*fn7 The trial began on March 12, 1979 and concluded on March 26, 1979 when the jury convicted him on the aiding and abetting count. On September 4, 1979 he was sentenced to a term of imprisonment of a year and a day and was fined $20,000. Execution of the prison sentence was suspended and he was ordered to serve a one year term of probation. From the judgment of conviction entered September 4, 1979, this appeal has been taken.

II.

In the light of these facts and prior proceedings, we turn first to Shulman's claim that the evidence was insufficient to sustain his conviction for aiding and abetting the offer of a bribe to Rocoff in October 1978.*fn8 Shulman argues that the evidence established that an illegal bribe offer was made by Brooks to Rocoff in August or September 1978, before Shulman told Brooks to "see what you can do and come back with some figures." Shulman argues, therefore, that he should not have been found guilty of aiding and abetting the bribe offer because the offer was completed prior to his involvement.

A person cannot be found guilty of aiding and abetting a crime that already has been committed. E.g., United States v. Freeman, 498 F.2d 569, 575 (2 Cir. 1974); Roberts v. United States, 416 F.2d 1216, 1221 (5 Cir. 1969). We do not believe, however, that the record establishes that the offer of a bribe to Rocoff in fact was completed before Shulman and Brooks met in October. Prior to the October meeting Brooks had no authority to offer a bribe on behalf of Shulman. At that time Brooks also had no money to offer as a bribe and he had no promise that any money would be available. The jury therefore was justified in viewing the pre-October meetings between Brooks and Rocoff simply as acts of preparation which established Rocoff's willingness to accept a bribe, the amount of the bribe sought by Rocoff, and Brooks' willingness to solicit the bribe from Shulman. Since approval by Shulman of the actual offer of a bribe was required, however, Brooks had no authority or ability to pay off Rocoff before the October meeting with Shulman. United States v. Jacobs, 431 F.2d 754, 760 (2 Cir.), cert. denied, 402 U.S. 950, 29 L. Ed. 2d 120, 91 S. Ct. 1613 (1970) (offer of bribe was complete when defendant "expressed an ability and desire to pay" bribe). Only after Shulman authorized the payment of a bribe at the October meeting, and Brooks so informed Rocoff, was the actual offer of a bribe completed.

Shulman alternatively argues that, even if the offer of a bribe was not completed prior to Shulman's October conversation with Brooks, the evidence nevertheless was legally insufficient to support his conviction for aiding and abetting the offer of a bribe. In support of this argument, Shulman asserts that Brooks' testimony should be held to be incredible as a matter of law and that the district court committed plain error in failing ...


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