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United States v. Silvestri

decided as amended.: October 7, 1983.

UNITED STATES OF AMERICA, APPELLEE,
v.
JOSEPH R. SILVESTRI, DEFENDANT-APPELLANT



Appeal from a judgment of the District Court for the Eastern District of New York, (Jack B. Weinstein, Chief Judge) convicting defendant on bribery and related charges arising out the Abscam investigation. Affirmed.

Newman and Winter, Circuit Judges, and Maletz, Senior Judge.*fn*

Author: Newman

NEWMAN, Circuit Judge:

Joseph R. Silvestri appeals from a January 28, 1983, judgment of the District Court for the Eastern District of New York (Jack B. Weinstein, Chief Judge) convicting him after a jury trial of bribery and related charges arising out of the Abscam investigation. For the reasons that follow we affirm.

I.

Silvestri, a New Jersey businessman, was originally indicted along with former Congressmen Frank Thompson, Jr. and John M. Murphy and Philadelphia attorney Howard L. Criden. The charges against Silvestri and Criden were severed by agreement, Thompson and Murphy were tried and convicted, and we affirmed their convictions, United States v. Myers, 692 F.2d 823 (2d Cir. 1982), cert. denied, 461 U.S. 961, 103 S. Ct. 2437, 77 L. Ed. 2d 1322 (1983). Thereafter Silvestri was charged in a superseding indictment. Count One repeated the conspiracy count of the original indictment, charging that Silvestri conspired with Thompson, Murphy, and Criden, in violation of 18 U.S.C. § 371 (1976), (a) to defraud the United States of, among other things, the right to the honest services of the Congressmen and (b) to commit substantive offenses in violation of 18 U.S.C. §§ 201(b) (bribery) and 201(g) (unlawful gratuity) (1976). Among the overt acts alleged were Thompson's receipt of a $50,000 bribe payment on October 9, 1979, and Murphy's receipt of a $50,000 bribe payment on October 20, 1979. The superseding indictment added two substantive charges arising out of an unsuccessful attempt to bribe Congressman Edward J. Patten. Count Two charged the offering of a bribe in violation of 18 U.S.C. §§ 201(b) and 2 (1976), and Count Three charged interstate travel to promote bribery activity in violation of 18 U.S.C. §§ 1952 and 2 (1976). Silvestri was found guilty on all three counts. He received concurrent terms of three years and consecutive fines of $5,000 on each count.

The background and unfolding of the Abscam investigation are detailed in United States v. Myers, supra, 692 F.2d at 829-34. Essentially, an FBI undercover operation known as Abdul Enterprises, Ltd. claimed to have large amounts of money available for investment on behalf of two Arab sheiks. During the summer of 1979, various individuals were attracted by the prospect of obtaining these funds. Undercover operatives then broached the prospect of purchasing the aid of public officials to assist the sheiks in the event that they wished to become permanent residents of the United States. Among the first to agree to locate officials willing to accept corrupt payments were former Camden Mayor Angelo J. Errichetti and Howard Criden. On September 17, 1979, Errichetti introduced FBI informant Melvin Weinberg to Silvestri, who proposed that the sheiks finance a gambling casino in Atlantic City being planned by Cavanaugh Communities Corporation. The project needed financing of $60 million. Four days later Errichetti, Criden, Silvestri, undercover FBI agent Anthony Amoroso, Weinberg, and the two princpals of Cavanaugh met to discuss the project. No agreement concerning financing was reached at that time or subsequently. Silvestri claimed to have an agreement with Cavanaugh to earn for his brokerage company a commission of $6 million if the casino project materialized.

On September 27, unbeknownst to Amoroso, Weinberg, or anyone connected with Abscam, Criden recruited Silvestri to locate Congressmen willing to accept bribes in connection with the sheiks' immigration problems. As Silvestri later told Weinberg in a recorded conversation:

[Criden] said, "you want to make some walking around money, cash?" I said, yeah, I got a good business, but everybody likes cash. I pay too friggin much taxes. . . . He says any congressman you send us, you get 15 grand, and you give the congressman whatever you want to give him, two grand, five grand, ten, whatever. You keep a few bucks for yourself.

The next day Silvestri contacted the office of New Jersey Congressman James Howard. Ultimately Silvestri arranged a meeting for October 2 with Congressman Howard after explaining to Howard's long-time friend and part-time aide, Jerry West, that the sheiks would "reciprocate" for the Congressman's help with a $5,000 campaign contribution. At the meeting West passed a note to the Congressman informing him of the $5,000, at which point the Congressman stopped the meeting.

Undaunted by Howard's rejection, Silvestri then conveyed the sheiks' proposition to his friend, Congressman Thompson, at a meeting on October 4. Criden, who attended the meeting, later informed Weinberg that Thompson was agreeable. This led to the October 9 meeting between Amoroso, Weinberg, Thompson, and Criden at which Amoroso transferred to Criden a briefcase containing $50,000. See United States v. Myers, supra, 692 F.2d at 832-33. Silvestri later acknowledged, in a recorded conversation, that Criden had paid him $3,500 of the Thompson payment. Silvestri had gained the impression from Criden that the sheiks' payment for each Congressman was $25,000. In a conversation with Weinberg he later learned that the payment was $50,000, prompting him to complain to Amoroso and Weinberg that Criden had "ripped me off." On October 17 and 18, in conversations with the undercover agents, Silvestri made them aware that Criden had recruited him to locate Congressmen willing to take bribes, and he offered to continue his efforts.

On October 20 a $50,000 payment was transferred to Criden and Congressman Murphy, who had been solicited by Thompson. See id. at 833. Subsequently Silvestri demanded from Criden a share of the Murphy payment; Criden told him to obtain his share from Thompson.

Meanwhile Silvestri had arranged to bring New Jersey Congressman Edward J. Patten to meet with Amoroso and Weinberg at the Hilton Inn at Kennedy Airport on October 20, right after the agents had met there with Murphy. In a recorded conversation the day before the meeting, Weinberg told Silvestri, "I'll have the 50 for Patten and we'll do him Saturday [October 20]." At the October 20 meeting, which was videotaped, Amoroso put the bribe proposition to Patten in explicit terms, mentioning the $50,000 figure and the purpose for offering it. Silvestri urged Patten to be helpful to the sheiks and clearly indicated his awareness of the proposed transaction. When the Congressman suggested that an alien with special skills might secure admission to the United States, Silvestri replied, "Ed our men don't have any skill, they only have money." Congressman Patten refused to accept a bribe, prompting Silvestri to say at the end of the meeting that he had " wasted the whole frigging afternoon. Could have been fishing. Would have been better off."

When arrested on February 2, 1980, Silvestri, after learning that Amoroso and Weinberg were undercover agents, acknowledged his role in the conspiracy. He specifically admitted that he received $3,500 from the Thompson bribe and that he knew, prior to the October 20 meeting with Congressman Patten, that ...


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