Appeal from a judgment of conviction entered after a bench trial in the United States District Court for the Southern District of New York, Lawrence W. Pierce, Judge, convicting appellant of conspiracy to violate the Travel Act, 18 U.S.C. §§ 1952 and 371, and of a substantive violation of that Act. Affirmed.
Before Feinberg, Chief Judge, Oakes, Circuit Judge, and Neaher, District Judge.*fn*
This appeal presents another facet of the unlawful activity "that has plagued waterfront businesses in New York and New Jersey." See United States v. Clemente, 640 F.2d 1069, 1071 (2d Cir. 1981). The actors here were all businessmen on the waterfront who might have been expected to shun the illicit conduct which led to appellant's indictment and conviction.
Appellant (hereinafter "Seregos") was convicted after a bench trial in the Southern District of New York before Lawrence W. Pierce, J., for traveling from New Jersey to New York to facilitate the payment of a commercial bribe and conspiracy to commit that offense, 18 U.S.C. §§ 1952, 2 and 371, in connection with a business transaction between a shipping company and a stevedoring concern. Since appellant challenges the sufficiency of the evidence to support his conviction, a more detailed recital of the essential facts established at trial is required. The evidence must, of course, be viewed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942).
In 1976, and for some years before, Seregos was president of Jackson Engineering Co., a ship repair business founded by his father in Hoboken, New Jersey, in which State Seregos lives and works. Seregos' difficulties began when he was induced to assist the carrying out of a corrupt kickback arrangement between two other businessmen, who later testified against him at trial after pleading guilty to mail fraud charges. One of these businessmen was Edward Pierson, then an executive of Moore-McCormack Lines, whose terminal and office was in Brooklyn; the other was Richard Weeks, president of Weeks Stevedoring Co., headquartered in New Jersey.
In 1973 Pierson and Weeks had negotiated the rental of a Weeks Stevedoring Co. floating crane for use by Moore-McCormack during a two-year period with three six-month renewal options. The rental to be paid Weeks was $15,500 monthly, a figure that included a $1500 per month kickback to Pierson to be paid in cash. Weeks had difficulty raising the cash to make the kickback payments and by 1976 had fallen behind by some $18,000. Pierson then sought the assistance of William Montella,*fn1 who suggested that Seregos might be able to provide a false invoice that Pierson proposed as a way to raise cash for Weeks.
Seregos, testifying in his own behalf, denied knowledge of the illicit arrangement between Weeks and Pierson, maintaining that his only contacts were with Montella, not Pierson. He admitted, however, that after a series of telephone conversations with Montella and an inspection of the Weeks crane at Moore-McCormack's Brooklyn terminal, he submitted a Jackson Engineering Co. invoice to Weeks Stevedoring for repairs to the crane totaling $25,795, which in fact were never performed. The books of Jackson Engineering and other trial exhibits reflected that the invoice was paid by Weeks by check dated December 2, 1976.
Seregos also admitted that on December 3 he prepared two Jackson Engineering checks, each in the amount of $9,027.50, one drawn to James Cannino and the other to Alvin Raphael. He testified he gave both to Cannino on December 7 and received a package containing $18,000 in cash, which he then delivered to Montella in Brooklyn. Seregos further admitted meeting Pierson and Montella that night at Ponte's restaurant in Manhattan, but testified he stayed only five minutes and there was no discussion of money.
Pierson, testifying for the government, contradicted Seregos' disclaimer of knowledge regarding the kickback arrangement. According to Pierson, Seregos came to his office at the Moore-McCormack terminal in Brooklyn, in August or September 1976, where Pierson told him that he "had a private arrangement with Mr. Weeks, and I needed an invoice because he had to pay me some money ... and could he, Mr. Seregos, write up an invoice on the crane." Subsequently, according to Pierson, Seregos delivered the invoice, dated October 18, 1976, to Pierson at the latter's office and Pierson later gave it to Weeks, who said it would be "okay." Finally, Pierson testified, it was Seregos who arranged to meet him at Ponte's restaurant and delivered to him in the men's room the envelope containing the $18,000 in cash.
The conflict in the testimony bearing upon Seregos' knowledge and intent obviously presented an issue of credibility for the trier of the fact. United States v. Minor, 398 F.2d 511, 512 (2d Cir. 1968), aff'd, 396 U.S. 87, 90 S. Ct. 284, 24 L. Ed. 2d 283 (1969). In resolving that issue against Seregos, Judge Pierce properly considered appellant's demeanor, his qualified answers and his admitted false testimony under oath before the Waterfront Commission, as well as the inferences that could reasonably be drawn from Seregos' readiness to participate in plainly dishonest conduct. Factual findings by the trial judge as to the requisite knowledge and intent to engage in unlawful conduct may not be set aside unless on review of the record they are found to be clearly erroneous. United States v. Rischard, 471 F.2d 105, 107 (8th Cir. 1973); see United States v. Abel, 258 F.2d 485, 494 (2d Cir. 1958), aff'd, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960). See also United States v. Sheard, 154 U.S. App. D.C. 9, 473 F.2d 139, 146 (D.C.Cir.1972), cert. denied, 412 U.S. 943, 93 S. Ct. 2784, 37 L. Ed. 2d 404 (1973). On this record such a finding cannot be made, and the critical issues of credibility having been resolved against appellant, the evidence was clearly sufficient to establish all elements of the offenses charged.
We now turn to the three principal arguments advanced by appellant, none of which we conclude warrants reversal of his conviction.
Appellant contends that he did not have fair notice that his conduct in the latter part of 1976 was in violation of the Travel Act. That contention is premised on this Court's decision on July 16, 1976, in United States v. Brecht, 540 F.2d 45 (2d Cir. 1976), cert. denied, 429 U.S. 1123, 97 S. Ct. 1160, 51 L. Ed. 2d 573 (1977), holding that the Travel Act did not apply to acts of commercial bribery in violation of the New York Penal Law. The Brecht court, however, acknowledged that its ruling was in conflict with the prior decision of the Fourth Circuit in United States v. Pomponio, 511 F.2d 953 (4th Cir.), cert. denied, 423 U.S. 874, 96 S. Ct. 142, 46 L. Ed. 2d 105 (1975), supra, at 48, which had held that the Travel Act applied not only to bribery of public officials but extended to interstate travel to facilitate commercial bribery as defined in N.Y. Penal Law § 180.00, the predecessor of the statutes involved in this case. 511 F.2d at 955-56.
This Court's decision in Brecht was subsequently overruled by the Supreme Court in Perrin v. United States, 444 U.S. 37, 100 S. Ct. 311, 62 L. Ed. 2d 199 (1979), which, after noting the conflict among circuits, upheld the views of the Fourth and Fifth Circuits that bribery of private employees prohibited by State criminal statutes could also violate the Travel Act. ...