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MURPHY v. UNITED STATES

November 7, 1985

JOHN M. MURPHY, Petitioner, v UNITED STATES OF AMERICA, Respondent


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 John M. Murphy was convicted in 1981 of conspiracy, 18 U.S.C. § 371, and of acceptance of an unlawful gratuity, 18 U.S.C. § 201(g)(2). These convictions were upheld on appeal to the United States Court of Appeals for the Second Circuit. United States v. Myers, 692 F.2d 823 (2d Cir. 1982). *fn1" The Supreme Court subsequently denied a petition for a write of certiorari. Murphy v. United States, 461 U.S. 961, 103 S. Ct. 2437, 103 S. Ct. 2438, 77 L. Ed. 2d 1322 (1983). Murphy now moves to set aside his convictions pursuant to 28 U.S.C. § 2255. *fn2" Because Murphy's moving papers do not reveal any constitutional violation, this motion will be denied.

 Murphy's convictions arose out of the criminal investigation known as Abscam. That investigation has been upheld against a due process challenge, 692 F.2d at 843-47, and is not the subject of this motion. Instead, Murphy makes a series of claims alleging prejudice stemming from two incidents during his trial before (then District) Judge George C. Pratt. Those incidents will be addressed in turn.

 I.

 The first incident, the passing of a cup of water from a government agent on the witness stand to a juror in the jury box was considered fully by Judge Pratt in denying a defense motion for a mistrial. While Judge Pratt and the prosecution and defense attorneys were engaged in a sidebar conference, spectators, including Murphy's wife and son, observed FBI Agent Anthony Amoroso pouring a cup of water and handing it to a juror. When the jury had left the courtroom, one of Murphy's trial attorneys, Michael E. Tigar, brought the incident for a mistrial. Judge Pratt asked for Agent Amoroso's version of the events:

 
The Court: Would you tell me exactly what happened, Mr. Amoroso, please.
 
Agent Amoroso: Yes, your Honor. The lady at the far end asked me if she could have a glass of water for the gentleman sitting at her left. I poured the glass and handed it to her and she handed it to him.
 
The Court: Did you say anything to her? Agent Amoroso: No.
 
The Court: You simply poured a glass of water and gave it? Agent Amoroso: Yes. And gave it to her and she handed it to him.

 Tr. 1144. Pressing his motion for a mistrial, Attorney Tigar stated: "[w]e disagree with Agent Amoroso's characterization of the conversation. It is my information that he initiated the contact." Tr. 1146. Tigar revealed the source of his information as Murphy's wife, who then testified:

 
The Court: Mrs. Murphy, would you just tell us in your own words what you saw? The Witness: I was watching Agent Amoroso. And he was sitting here panting as though he had had a lot to say and his mouth was tired and his voice was tired. And he kept looking at the jurors and going (indicating). And, excuse me, that is what he was doing. And as he did this they were watching him and some exchange went on between them. I couldn't of course hear what it was. And then he looked at them and handed them the water.
 
The Court: Was it one cup of water or more than one cup?
 
The Witness: I did not see him give two.
 
The Court: Did you see what juror ...

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