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692 F.2d 823 (1982)

UNITED STATES OF AMERICA, APPELLEE

V.

MICHAEL O. MYERS, ANGELO J. ERRICHETTI, LOUIS JOHANSON, AND

HOWARD L. CRIDEN, DEFENDANTS-APPELLANTS

UNITED STATES OF AMERICA, APPELLEE

V.

FRANK THOMPSON, JR. AND JOHN M. MURPHY, DEFENDANTS

APPELLANTS

UNITED STATES OF AMERICA, APPELLEE

V.

RAYMOND F. LEDERER, DEFENDANT-APPELLANT

Nos. 904 to 905, 906, 907, 840, 841 and 855, Dockets 81-1342 to 81

1347 and 81-1446

United States Court of Appeals, Second Circuit

Argued April 5, 1982

Decided Sept. 3, 1983

Rehearing Denied in No. 81-1345 Nov. 17, 1982 Defendants appealed from their convictions in the United States District Court for the Eastern District of New York, George C. Pratt, J., in Abscam prosecution. The Court of Appeals, Newman, Circuit Judge, held that: (1) Government's involvement in Abscam operation was not so excessive as to violate due process; (2) any ambiguity arising from the manner in which bribes were offered in Abscam operation was due to observance of ground rules set by defendant congressman and did not violate due process; (3) it was no defense that defendant congressman's corrupt promise could not have been carried out due to the fictitious nature of the persons alleged to be seeking assistance; and (4) defendant congressman could not be convicted of violation of statute prohibiting members of Congress from receiving compensation for services rendered in relation to any proceeding in which the United States in interested merely be accepting money for giving advice about immigration.

Affirmed in part and reversed and remanded in part.

See also D.C. 527 F. Supp. 1206 1. Criminal Law Ow37(3)

Entrapment defense exonerates a defendant who engages in criminal behavior when the activity of government agents implants in the mind of an innocent person the disposition to commit the alleged offense and induces its commission; but the defense of entrapment is not established simply because government agents afford opportunities or facilities for the commission of the offense. 2. Criminal Law Ow772(6)

When an entrapment defense is raised by evidence of inducement, either through cross-examination or affirmative evidence, a defendant is entitled to have a court assess whether the record contains sufficient evidence from which a reasonable jury can conclude beyond a reasonable doubt that the prosecution has proved the defendant's predisposition to commit the offense. 3. Criminal Law Om 1030(3)

Defendant who fails to assert entrapment as a factual defense at his trial cannot assert it as a legal defense to his conviction. 4. Criminal Law Ow569

Evidence in Abscam prosecution entitled jury to find defendant congressman's predisposition to accept a bribe beyond a reasonable doubt. 18 U.S.C.A. $201. 5. Constitutional Law Om 257.5

Government's involvement in Abscam operation was not so excessive as to violate due process. U.S.C.A. Const. Amend. 5; 18 U.S.C.A. § 201. 6. Criminal Law Ow1158(2)

District court's finding at due process hearing in Abscam prosecution that defendant congressmen were not "playacting" when they accepted bribes was not clearly erroneous. 18 U.S.C.A. & 201; U.S.C.A. Const. Amend. 5. (824] 7. Bribery Om3

Lack of intent to keep promise made for a bribe is not a defense to a charge of corrupt receipt of money by a public official. 18 U.S.C.A. § 201. 8. Criminal Law Ow37(4)

Prompt acquiescence shows predisposition to accept a bribe and precludes an entrapment defense, regardless of whether the promise of official acts is intended to be kept. 18 U.S.C.A. $ 201. 9. Constitutional Law Ow257.5

Government agents' coaching of congressman during Abscam operation, assuming such coaching occurred, was not so outrageously coercive as to violate due process. 18 U.S.C.A. § 201; U.S.C.A. Const. Amend. 5. 10. Constitutional Law O 257.5

Any ambiguity arising from the manner in which bribes were offered to congressmen in Abscam operation was due to observance of ground rules set by the congressmen, and did not violate due process. 18 U.S.C.A. $ 201; U.S.C.A. Const. Amend. 5.

11. Criminal Law Ow700

Justice Department's failure to comply with its internal guidelines in conducting Abscam operation did not invalidate the operation. 12. Criminal Law Om700

Conduct of Abscam operation did not deny any defendant a constitutionally protected right. 13. Bribery Om11

In Abscam prosecution, evidence was sufficient to establish that codefendants know the purpose for which money was being paid to congressman. 18 U.S.C.A. $201. 14. Criminal Law Ow422(1)

In Abscam prosecution, district court properly admitted into evidence conversations that defendant congressman and codefendants had with undercover agents, as such conversations illuminated the nature of the conspiracy and occurred while the conspiracy was still in existence. 18 U.S.C.A. $201. 15. Criminal Law On 734

District court properly decided defendants' due process claims in Abscam prosecution, without submitting them to the jury. U.S.C.A. Const. Amend. 5; 18 U.S.C.A. $ 201. 16. Criminal Law Om786(2)

In Abscam prosecution, district court properly instructed jury that they could consider witness' prior "failure to disclose information, when the opportunity to do so presented itself,” despite contention that the jury could have taken the instruction as permission to draw an adverse inference from defendant congressman's silence during the course of an interview with agents of the Federal Bureau of Investigation. 18 U.S.C.A. $201. 17. Criminal Law Ow805(3)

In jury charge in Abscam prosecution, district court properly referred to the conman, who was used by the Government to set up the Abscam operation, as an “informer.” 18 U.S.C.A. § 201. 18. Criminal Law Ow1173.2(5)

In Abscam prosecution, no prejudicial error, if error at all, from district court's omissin of requested instructions that the jury could infer that tapes and unrecorded portions of tapes not produced by the Government would be unfavorable to the prosecution. 19. United State On 12

Although speech or debate clause, in covering "legislative acts," extends beyond words spoken during legislative debate, any other matters it reaches must be an integral part of the deliberative and communicative processes by which members of Congress participate in committee and House of Representative's proceedings. U.S.C.A. Const. Art. 1, $ 6.

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20. United States Om12

In Abscam prosecution, admission of defendant congressman's annual financial statement, filed with the clerk of the House (825) of Representatives pursuant to the Ethics in Government Act of 1978, in which the congressman falsely listed his share of bribe as a "consulting fee," did not violate the speech or debate clause. U.S.C.A. Const. Art. 1, $ 6; Ethics in Government Act of 1978, § 101 et seq., 2 U.S.C.A. § 701 et seq. 21. Criminal Law Ow772(6)

District court properly explained “predisposition” for entrapment purposes by asking jury to determine whether defendant was "ready and willing to commit the crimes charged whenever a favorable opportunity arose. 22. Criminal Law Ow787(2)

In the course of explaining that defendant had no obligation to present any evidence, district court properly told the jury that defendant had the power to subpoena witnesses. 23. Criminal Law Ow31

In Abscam prosecution, it was no defense that defendant congressman's corrupt promise could not have been carried out due to the fictitious nature of the persons alleged to be seeking assisstance. 18 U.S.C.A. § 201(c). 24. Criminal Law Om 863(2)

In Abscam prosecution, district court's supplemental instruction, which permitted jury to find that defendant congressman constructively received bribe money, was proper. 18 U.S.C.A. $ 201(c). 25. Criminal Law Ow1039

Issue whether district court's supplemental instruction failed to adequately explain concept of constructive possession was waived on appeal, where opportunity for amplification of the instruction was available to defendants both before and after the instruction was given. 26. United States On52

Statute prohibiting members of Congress and federal employees from receiving compensation for services rendered in relation to any proceeding in which the United States is interested reaches only services performed or to be performed before the federal forums listed in the statute. 18 U.S.C.A. $ 203(a). 27. United States Om52

Congressman could not be convicted of violation of statute prohibiting members of Congress from receiving compensation for services rendered in relation to any proceeding in which the United States is interested merely by accepting money for giving advice about immigration. 18 U.S.C.A. $ 203(a).

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28. Bribery Oil

There was sufficient evidence that defendant congressman received money and that he agreed to take official action in exchange for such money to sustain his conviction in Abscam prosecution. 18 U.S.C.A. $201. 29. Bribery Owll

There was sufficient evidence that defendant congressman received money for his benefit in exchange for his promise to take official action to sustain his conviction in Abscam prosecution, even though there was no evidence that he actually took physical possession of the money. 18 U.S.C.A. 8 201. 30. Constitutional Law Ow77, 82(7)

Searches and Seizures Om7(10) Videotaping of congressman's conversations with undercover agents involved in Abscam operation did not violate the congressman's rights under the First and Fourth Amendments and the doctrine of separation of powers, since the conversations were not privileged and contained evidence of criminal violations. 18 U.S.C.A. $ 201; U.S.C.A. Const. Amends. 1, 4. 31. United States Ow12

In Abacam prosecution, speech or debate clause did not bar introduction into evidence of defendant congressman's private conversations with a second congressman on the floor of the House of Representatives, in which he invited the second congressman to join the ranks of those accepting bribes. U.S.C.A. Const. Art. 1, § 6; 18 U.S.C.A. & 201. [826] 32. United States Ow12

Speech or debate clause accords immunity to what is said on the floor of the House of Representatives in the course of the legislative process, not to whispered solicitations to commit a crime. U.S.C.A. Const. Art. 1, § 6.

Raymond A. Brown, Newark, N.J. (Henry F. Furst, Newark, N.J., on the brief), for defendant-appellant Errichetti.

John J. Duffy, Philadephia, Pa. (Steven H. Gifis, Alan Dexter Bowman, Princeton, N.J., on the joint brief for Myers, Errichetti, and Johanson), for defendant-appellant Johanson.

Richard Ben-Veniste, Washington, D.C. (Ben-Veniste & Shernoff, Washington, D.C., on the brief), for defendant-appellant Criden.

Timothy Savage, Philadelphia, Pa., for defendant-appellant Lederer.

Daniel R. Pollitt, Chapel Hill, N.C., and Frank Askin, Newark, N.J. (Neal Rutledge, Washington, D.C., on the brief), defendant-appellant Thompson.

Michael E. Tigar, Washington, D.C. (Samuel J. Buffone, Linda Huber, Tigar, Buffone & Doyle, Washington, D.C., on the brief), defendant-appellant Murphy.

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