The opinion of the court was delivered by: PRATT
[See Illustration In Original]
POST-TRIAL MEMORANDUM AND ORDER
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.
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,
cases, as well as the transcript from the consolidated post-trial hearing
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 cases
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.
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.
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,
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 organized corporations for the purchase and operation of the titanium mine and processing plant; that defendants each received an 18% stock interest in the corporations, with that of defendant Williams being hidden; that an agreement was reached between defendants and the government's undercover operatives whereby $ 100 million in financing would be provided by the Arab sheik; and that defendant Williams agreed to use his position as a United States Senator to obtain government contracts for the titanium.
In the sale-of-stock transaction the government's evidence tended to show that even before the original loan transaction could be closed, a new group of Arab businessmen were willing to buy out the entire operation provided that Williams would retain a small interest and would, again, agree to use his influence as a United States Senator to obtain government contracts to purchase titanium.
Williams met with the sheik and his representatives on seven different occasions. At the final meeting, January 15, 1980, the sheik offered Williams money in return for the senator's assistance in permitting him to immigrate to the United States. Williams indicated that he was willing to assist the sheik, but he refused the money, explaining that his primary interest was in the mining venture.
For each of the two transactions the government charged four specific crimes against the defendants: bribery (18 U.S.C. § 201(c)), criminal gratuity (18 U.S.C. § 201(g)), conflict of interest (18 U.S.C. § 203), and interstate travel for unlawful activity (18 U.S.C. § 1952). In addition, the defendants were charged with conspiracy (18 U.S.C. § 371) to defraud the United States and to commit the substantive offenses of bribery, criminal gratuity and conflict of interest. As the relevant public official, defendant Williams was charged with direct violations of the bribery, gratuity, conflict of interest, and interstate travel statutes. Defendant Feinberg was charged under 18 U.S.C. § 2 with aiding and abetting Williams' commission of those offenses.
The defendants presented evidence to show, and they argued to the jury that the titanium venture was a legitimate business transaction, that defendant Williams never agreed to use his influence to obtain government contracts, that neither defendant intended to violate any statute, that there was no conspiracy either to defraud the United States or to violate any of its laws, and that the defendants were the victims of entrapment.
In addition to the audio tapes, the videotapes, and the testimony of the government agents, the government presented the testimony of Sandy Williams, who testified for the government under a grant of immunity, and a number of other witnesses. Defendants sharply attacked the credibility of Sandy Williams and of the government agents, and urged the jury not to draw from their testimony the inferences suggested by the government.
Both defendant Williams and defendant Feinberg testified and offered explanations of their conduct as it had been recorded on the tapes. Through counsel and, in part, by their own testimony, Williams and Feinberg argued that they had been entrapped into committing whatever crimes had been committed.
The ultimate choice of inferences depended to a large degree upon the jury's resolution of the credibility questions. From the verdicts it is apparent that the jury believed neither defendant Williams nor defendant Feinberg, and that it basically accepted the testimony of Sandy Williams as well as the government's interpretation of the tapes. Viewed in that light, the guilty verdicts on all but one count are amply supported by the evidence. Under the court's instructions, with the one exception discussed in section VI, infra, the jury's verdicts of guilty against all defendants on all counts established the essential elements of the crimes charged.
On the bribery count that was based on the stock-and-loan transaction, 18 U.S.C. § 201(c), the jury found that defendant Williams received and agreed to receive stock in the titanium mine venture plus the promise of a loan from the sheik to finance the venture; that he received the stock and loan promise in return for being influenced in his performance of an official act, namely, to use his influence as a United States Senator with officials in the executive branch of the United States government and with other United States senators to obtain government contracts for the titanium mine; that when he sought the loan and received the stock defendant Williams intended to use the influence of his position to get government contracts; that defendant Williams acted knowingly, willfully, and corruptly; and that he was not the victim of entrapment because he was predisposed to commit the crime of bribery.
Three key issues were highlighted for the jury: (1) What was Williams' intent in accepting the stock and seeking the loan? (2) Did he act corruptly? and (3) Was he predisposed to commit the crime? On each of these issues the jury rejected Williams' own testimony and, based on the circumstantial evidence before them, determined that each of the elements had been established beyond a reasonable doubt.
On the criminal gratuity count, 18 U.S.C. § 201(g), the jury was asked to analyze the same facts from the point of view of the criminal gratuity statute. Many of the essential elements of criminal gratuity duplicated those of bribery. The significant difference was that the jury found that defendant Williams received, or agreed to receive, the stock for or because of an official act to be performed by him.
On the conflict of interest charge, 18 U.S.C. § 203(a), the jury found that the loan and stock was compensation that Williams received or agreed to receive in return for services to be rendered by him in relation to obtaining contracts from the government for the purchase of titanium. The jury, of course, also found that in doing so he acted knowingly and willfully, and was not the victim of entrapment.
On the interstate travel count, 18 U.S.C. § 1952, the jury found that on August 5, 1979 defendant Williams travelled from New Jersey to the Northwest Airlines terminal at John F. Kennedy International Airport in New York State; that he did so with the intent to carry on or promote the unlawful activity of receiving a bribe; that while he was at JFK airport he accepted delivery of the stock certificates; that he acted knowingly and willfully; and that he was not the victim of entrapment.
With respect to the sale-of-stock transaction which is the subject of counts 6 through 9, the jury's findings were necessarily similar to those on counts 2 through 5 pertaining to the stock-and-loan transaction, except that the "thing of value" and "compensation" received by Williams was the promise of a second group of Arab businessmen to purchase the venture outright, and the corrupt conduct of defendant Williams consisted of a repetition to the new group of the same promise, i.e., that he would use his influence to obtain government contracts for the titanium. The interstate travel occurred on September 11, 1979 when defendants Williams and Feinberg and others travelled to Kennedy Airport to meet with Amoroso, Weinberg and others to discuss the sale of the stock.
In the substantive counts, 2 through 4 and 6 through 8, defendant Feinberg is charged as an aider and abettor, and the jury's verdicts determined not only that defendant Williams was guilty of the underlying crimes, but also that defendant Feinberg willfully joined in and assisted defendant Williams in committing each of those crimes. The jury also determined that defendant Feinberg was not the victim of entrapment on any of the substantive counts.
Feinberg was also charged as an aider and abettor in count 5; here, the evidence before the jury does not support a guilty verdict. See section VI, infra. In count 9 Feinberg is charged directly with a Travel Act violation for his travel to Kennedy Airport on September 11, and the evidence supports the jury's verdict of guilty on this count.
On the conspiracy count, 18 U.S.C. § 371, the jury necessarily found that there was a conspiracy of the type charged in the indictment, that both of the defendants willfully became members of the conspiracy, that specified overt acts were committed during their membership in the conspiracy, and that defendants were not the victims of entrapment.
IV. DEFENDANTS' ARGUMENTS
On these motions defendants incorporate all of the arguments urged in the Myers, Lederer and Thompson cases, and advance additional specific arguments in support of their own unique due process contentions. Defendant Williams argues that he was entrapped by the government agents, who through extraordinary lures and pressures induced him to commit the offenses charged; that evidence of his predisposition is lacking as a matter of law; that as a matter of statutory construction Congress did not intend for these defendants' actions to constitute a crime; that considered as a whole the government's conduct was so outrageous as to require dismissal of the indictment; that the court's charge effectively prevented the jury from considering the entrapment issue; that the audio tapes and videotapes forming the background for the government's case were erroneously admitted into evidence; and that defendant Williams was the victim of selective prosecution by the government. Williams has also filed a separate brief in support of motions for judgment of acquittal or a new trial wherein he asserts that prosecutorial misconduct and erroneous introduction of similar act evidence warrant the relief requested.
Defendant Feinberg's main argument is that as a matter of law on the evidence adduced at trial the government failed to prove Feinberg's predisposition to commit a crime. Feinberg's contention, which was vigorously pressed at trial to both the court and the jury, is that the government's inducements were so overwhelming that it is impossible for the government to prove beyond a reasonable doubt Feinberg's predisposition. Feinberg also urges that the similar act evidence concerning the Ritz casino transaction was erroneously admitted at trial and was so prejudicial as to deprive him of a fair trial. Finally, Feinberg contends that the trial record lacks any evidence to support his conviction of the Travel Act's violation charged in count 5.
V. MOTION TO SUPPRESS TAPES
Defendants urge that all of the tapes of the voices of defendant Williams and defendant Feinberg should have been excluded from evidence because under the circumstances here they constituted an unreasonable search and seizure. The government's first response is that defendants have not preserved their fourth amendment claims by filing an appropriate pretrial motion. The government is correct to the extent that defendant Williams' pretrial motion to suppress all tape recordings involving Weinberg relied on the court's general supervisory powers rather than on any claimed fourth amendment violation. F.R.Cr.P. 12(b) (3) requires that any motion to suppress evidence be made before trial; F.R.Cr.P. 12(f) provides that the failure to make such a motion constitutes waiver.
Recognizing the limitations on the timeliness of suppression motions imposed by Rule 12, defendant Williams contends that cause has been shown for relief from the waiver, F.R.Cr.P. 12(f), and that because he is making a novel fourth amendment claim the normal rule should not apply. Along these same lines defendant Williams asserts that the magnitude of the surreptitious taping directly affects defendants' due process rights, an area expressly reserved for post-trial resolution.
To the extent Williams' argument is based on fourth amendment grounds, the court agrees with the government that the failure to file a pretrial motion constitutes a waiver. To the extent Williams' current motion relies on "due process" considerations, it is lacking in merit.
While he grudgingly acknowledges that consensual recordings have, as a matter of precedent, escaped the exclusionary rule, U. S. v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1970), the new counsel for defendant Williams argues that when so many tapes are used, the cumulative effect becomes unreasonable and, therefore, unconstitutional.
A cynic might characterize defendants' argument as urging that while a little "truth" is permissible, large quantities of "truth" are unconstitutional. For present purposes, however, it is sufficient to comment that there is no authority for the novel contention advanced by new counsel for defendant Williams, and this court concludes that the argument is as wanting in logic as it is unsound in principle. As pointed out in the Myers decision, the quality of evidence produced by tape recordings, particularly by the videotapes in the Abscam cases, far exceeds the sketchy, imperfect evidence available in the usual trial based upon witnesses' unaided recollections. The motion to suppress the tapes on the ground that there were too many of them is, therefore, denied.
VI. INSUFFICIENCY OF EVIDENCE TO SUPPORT FEINBERG'S CONVICTION ON COUNT 5
Defendant Feinberg contends that the record is "completely barren" of any evidence to support his conviction for aiding and abetting defendant Williams' travel to JFK International Airport on August 5, 1979, where Williams met with Amoroso and Weinberg and accepted shares of stock from them. Gov't ex. 21A. Feinberg argues that the record shows that only Errichetti and Sandy Williams were involved in arranging the meeting at the airport between defendant Williams and the government agents.
In support of the verdict the government points only to defendant Williams' testimony concerning conversations he had with defendant Feinberg about transfer of the shares of stock. After reviewing the evidence in the case and particularly the portions of the transcript relied upon by the government, the court concludes that the evidence supporting Feinberg's knowledge of defendant Williams' travel in interstate commerce to further the illegal transaction is ambiguous at best. While the record does indicate that discussions about transferring the stock took place between Williams and Feinberg, there is no evidence that Feinberg had any hand in arranging either the meeting at Kennedy Airport that eventually occurred or the interstate travel that led to the meeting. Tr. at 4641-42.
Defendant Feinberg's motion on count 5 for judgment of acquittal pursuant to F.R.Cr.P. ...