Appeal from a judgment entered in the United States District Court for the Eastern District of New York, Mark Costantino, Judge, entered after a jury trial convicting appellant of bribery in violation of 18 U.S.C. § 201(c), conflict of interest in violation of 18 U.S.C. § 203, and conspiracy to commit bribery in violation of 18 U.S.C. § 371. Affirmed.
Before Kaufman and Pierce, Circuit Judges, and Haight, District Judge.*fn*
Acknowledging that "corruptio optima pessima,"*fn1 -the best men corrupted become the worst-courts have permitted Government agents, in the public interest, to employ artifice to apprehend public servants who abuse the trust invested in them by virtue of their position. The line between lawful subterfuge and excessive Government involvement in violation of the due process clause of the Constitution is drawn when the end sought cannot be justified by the means used. Although recognizing that individuals who have been ensnared by the stratagems of Government agents may have a cognizable due process claim, courts have made clear that, because the difficulties in detecting covert crime often warrant secretive investigations, involvement of Government agents must be of the tenor to shock the conscience before a violation of the due process clause will be found. Such instances, given the interests at stake, will be exceedingly rare.*fn2
Today we are asked to determine whether such an occasion is presented by an Abscam*fn3 ploy. Alexander Alexandro, Jr., a criminal investigator with the Immigration and Naturalization Service, constructed an intricate scheme to obtain a green card*fn4 for an alien at the request of the purported representatives of Abdul Enterprises, Melvin Weinberg and FBI agent Anthony Amoroso. Alexandro carefully devised every facet of the nefarious enterprise and assured the Government agents his expertise was the product of much experience in matters of this kind. The agents merely agreed to Alexandro's proposal and offered remuneration in exchange for his services. Alexandro would have us determine that this scenario demonstrates such outrageous Government conduct that his conviction by a jury of receiving bribes pursuant to 18 U.S.C. § 201(c),*fn5 conspiracy to receive bribes pursuant to 18 U.S.C. § 371,*fn6 and conflict of interest pursuant to 18 U.S.C. § 203*fn7 must be overturned. He further asserts that his conviction of conflict of interest should be vacated as a lesser included offense of his conviction of bribe receiving. We find his contentions meritless and accordingly affirm the judgment of conviction.
Beginning in January 1979, as part of the investigation termed "Abscam," FBI agent Anthony Amoroso, using the pseudonym Tony DeVito, and Melvin Weinberg, a paid informant, bore the guises of officers of a fictitious corporation, Abdul Enterprises. Through Amoroso and Weinberg, this company supposedly was a vehicle for investing millions of dollars of the wealth of oil-rich Arab sheiks, Kambir Abdul Rahman and Yassir Habib, in business ventures in the United States. To effect the goals of the investigation, Amoroso and Weinberg would often meet with various individuals at the offices of Abdul Enterprises in Holbrook, Long Island and elsewhere and offer them the opportunity to make whatever business proposals they desired. If illegal schemes were proposed, they were pursued by the FBI.
As part of the portrait of limitless Arab riches, lavish parties were held in Florida aboard the luxurious yacht, the Left Hand. On March 23, 1979, Alfred Carpentier, a Long Island businessman, at the invitation of Melvin Weinberg, attended one such party. During the course of the affair, Carpentier introduced Amoroso and Weinberg to one of his friends, a supposed Count Montforti. Montforti managed to create an occasion to display a diplomatic passport and documents indicating that he was a Knight of Malta. Carpentier then interjected that Amoroso and Weinberg, or even the sheiks, could rise to Knight of Malta rank with diplomatic status not on merit, but by merely paying $25,000.
Carpentier had more than bogus knighthood to offer. He stated he could provide passports and green cards for aliens by calling upon the services of Alexander A. Alexandro Sr. and Jr., a father and son team who worked for the Immigration and Naturalization Service. Carpentier, eager to generate illegal and lucrative business with the sheiks, offered to arrange a meeting with the Alexandros at any time their offices were desired.
Amoroso and Weinberg reported Carpentier's offer to their FBI supervisor, and the decision was reached to pursue it. They would ask Carpentier to obtain a green card for an Irish alien, Thomas Foley, as a favor to the sheik who was allegedly a friend of Foley's father.*fn8 Accordingly, on May 30, 1979, Amoroso and Weinberg met with Carpentier and explained that Foley was experiencing difficulty emigrating to the United States. The sheik, they noted, would greatly appreciate assistance in procuring Foley's green card. Carpentier quickly accepted the chance to turn an illegal profit, and named Alexander Alexandro Jr. as the Immigration official who would do the job. The price was normally determined by the alien's wealth and the urgency of his need to enter the United States, Carpentier explained. Although similar operations had cost as much as $100,000, Carpentier believed that Alexandro, whom he stated was "very good," would charge only $10,000. Warming to his topic, Carpentier described some of the steps in Alexandro's procedure of securing green cards for his paying customers.*fn9 The price Alexandro would charge was quite reasonable, Carpentier noted, when one considered the number of individuals whose necessary services were included in Alexandro's fee. Amoroso gave Carpentier $500 for his introduction to Alexandro and, generally, for his "expenses" in helping to arrange the green card transaction.
The next day Amoroso and Weinberg met with Carpentier, Alexandro, and a friend of Carpentier, at the Colony Hill restaurant in Long Island and recorded the conversation. After Amoroso explained that Foley had been in the country once before on a tourist visa, Alexandro stated he would gain access to the alien's immigration file. From that file he would determine, with the advice of his cohort and attorney, which method would be most suitable for obtaining the green card. Only then could he establish the cost of the transaction. To assure Amoroso and Weinberg of his abilities, he related tales of other services he had performed*fn10 and, to impress them thoroughly, he boasted he could arrange for heroin to be smuggled into the country without detection.
A series of tape recorded telephone conversations followed the meeting. Amoroso gave Alexandro the alien's name, residence, occupation, and date of birth. Alexandro, in a later conversation, informed Amoroso that he had Foley's immigration file, asked for more background information, and quoted $6,000 as a tentative fee for himself and the lawyer he would use. He then proposed two methods of arranging for the green card. The first method, having a corporation sponsor Foley as an employee, was a possibility, but, after consulting with his lawyer cohort, he grew concerned about whether a suitable company could be found to match Foley's employment experience and still meet immigration regulations. Creating a fictitious corporation was a possible option. The alternative method would be hiring a willing bride for $1,000 or so and arranging a sham marriage. Amoroso agreed to follow whatever course Alexandro chose and to pay the necessary cost. Alexandro expressed much satisfaction with Amoroso's deference to his expertise and charges.
A few more tape recorded conversations ensued in which information about Foley's background was given, and Alexandro commented on which method of obtaining the green card would be most feasible. Finally, Alexandro informed Amoroso that a contrived marriage was the course of action best suited to Foley's situation. He described his ruse, in which he would personally handle even the smallest detail, including providing Foley with a woman his own age or younger to marry and a place to get blood tests for the marriage certificate. The green card application would be approved without difficulty because "... My main man ... does the inspection" and Foley, through Alexandro's thorough coaching, would know exactly what to say to this carefully selected Immigration inspector.
The weeks Alexandro spent in laying the foundation and devising the intricacies of his web of intrigue culminated in a videotaped meeting*fn11 with the supposed representatives of the sheiks at the International Hotel at J.F.K. Airport in New York City. With the attention to detail and calm assurance of a businessman presenting a carefully orchestrated corporate transaction to his clients, Alexandro described the artifice he had constructed to ensure Foley permanent resident status.
Foley would obtain a visitor's visa in Ireland which would permit him to visit the United States. Upon arrival at the airport, Alexandro would meet Foley and escort him to "(a) little GS-5 Inspector" to arrange authorization for a three to six month visit pursuant to the visa. Should a problem arise, Alexandro simply would "go over his (the inspector's) head." During the authorized visit to the United States, Foley would meet a woman hired by Alexandro, a United States citizen, and marry her. The woman was fully willing to cooperate, Alexandro reassured ...