are rendered "before" the listed forums, whether or not the Member of Congress formally appears as attorney or agent. And, of course, informal contacts, as well as formal appearances, are prescribed.

[27] In the Thompson-Murphy trial, Judge Pratt, over the objection of Murphy,33 gave the jury a broad definition of the "services" element of a violation of section 203(a). Rather than limit the term "services" to those to be performed "before" a federal agency, as we construe the statute to require, he told the jury that the term could include "a wide variety of services such as giving advice about [i]mmigration, how to delay deportation, how to improve one's chances of remaining in the country . . .." The summation on behalf of Murphy had argued, based on some of the phrases he used at the October 20 meeting, that he was only advising the sheik's representatives to consult with Criden, who would handle legal matters concerning immigration problems. Since the charge erroneously permitted the jury to convict on Count Three by considering this type of advice to be covered by section 203(a), the conviction on that count must be reversed. However, since the evidence was sufficient to permit a finding that Murphy had in fact accepted money for services to be rendered before federal agencies or departments on immigration matters, the Government is entitled to prosecute the section 203(a) charge anew, if it is so advised.

[28] 3. Sufficiency of Evidence. Thompson challenges the sufficiency of the evidence against him, contending that the evidence failed to show that he received a portion of the $50,000 transferred at the October 20 meeting with Murphy and Criden and failed to show that he agreed to take any official action. However, Cook testified that Criden told him about delivering Thompson's share to the Congressman at a coffee shop shortly after October 20. Thompson's meeting with Criden at the time and place Criden had mentioned to Cook was corroborated by eyewitness testimony. The jury was entitled to infer from the October 9 transaction with Thompson and Criden that Criden's report to Cook was credible. Thompson's agreement to take official action on immigration matters is fully established by his statements made at the morning meeting on October 9, the meaning of which is amplified by his statement to Congressman Murtha that "all we have to do is help these two Arabs get into the country perhaps sometime in the future."

[29] Murphy's challenge to the sufficiency of the evidence claims that the prosecution did not prove his receipt of money for his

33 The Government contends that Murphy waived objection to the charge by not objecting after its delivery to the jury, as required by Fed. R. Crim. P. 30. However, Murphy submitted a proposed instruction on section 203(a), which limited the prohibited services to "interceding" with federal agencies and made clear that advising a person to seek the advice of attorneys is not improper. "Interceding" may connote in some minds a more direct action than the rendering of "any" services "before" a federal forum "in relation to" a proceeding in which the United States has an interest. Nevertheless, the proposed instruction, if not precisely correct, sufficiently alerted the District Court to Murphy's well-taken point that giving advice is outside the reach of the statute. Normally, the submission of a requested instruction is not sufficient to preserve for appeal complaint that the charge as given failed to include it, see United States v. Fountain, 642 F.2d 1083, 1095 (7th Cir.), cert. denied, 451 U.S. 993, 101 S. Ct. 2335, 68 L. Ed. 2d 854 (1981), but in this case, Judge Pratt informed counsel after considering and ruling upon requested instructions at a charge conference, that their objections voiced at that time would suffice to preserve issues for appeal, in lieu of renewing claims for such instructions after the jury charge. In that circumstance, the pre-charge objection to the denial of the requested instruction satisfied Rule 30.

benefit. The Government maintains that the evidence showed receipt by Murphy both at the October 20 meeting when the briefcase containing $50,000 was handed to Criden and at some point thereafter when Murphy obtained physical possession [859] of his share of the $50,000. We confine our attention to the October 20 meeting, which is apparently what the jury did, judging from their inquiry concerning constructive possession. In the context of the events that preceded that meeting, the episode could fairly be viewed by the jury as satisfying the receipt element of both of the substantive counts on which Murphy was convicted, unlawful gratuity and conflict of interest. 34 Criden and Thompson had developed an arrangement whereby money would be transferred by the sheik's representative without the necessity for Thompson physically to handle the briefcase in the presence of Amoroso and Weinberg. Using guarded conversation, Thompson and Criden would say only enough to satisfy the sheik's representatives that Thompson was acknowledging receipt of money. The arrangement, carried out on the evening of October 9, ended with Amoroso indicating the briefcase and Thompson saying to Criden, "You look after that for me will you?" Thompson then recruited Murphy, and the jury was entitled to infer, from the sequence of events and what they saw on videotape, that at the October 20 meeting Criden and Murphy were following the same arrangement previously employed by Criden and Thompson. There was just enough conversation about money to reassure the sheik's representatives that Murphy was acknowledging his awareness of a payment. Amoroso then moved the briefcase toward the couch where Murphy and Criden were seated, Criden said, "Why don't you give that to Jack?", and Murphy replied, "Howard why don't you take care of that."

This evidence entitled the jury to find that Murphy had at that point received the money. Having struck an agreement to accept money in return for assistance with the immigration matter, 35 Murphy was in constructive possession of the money in the briefcase when he exercised the authority to direct that Criden should take physical possession of it. An illegal payment is sufficiently received when the person who has agreed to receive it directs that it be held by his "bag man." 36 The evidence also permitted the jury to find that Murphy received the money for his own benefit. The contrary inference, that he was agreeing to use his congressinal influence in order to confer a benefit solely upon Criden, is utterly implausible.

[30] 4. Evidentiary Rulings. Thompson contends that the videotaping of his conversations with the undercover agents violated

34 As previously indicated, supra note 24, we are willing to assume, for the sake of argument, that both section 201(g) and section 203(a) require not only receipt of money but also receipt for the benefit of the defendant. In his initial instruction to the jury, Judge Pratt had explained that the "receipt" element of the bribery offense, section 201(c), required receipt for the benefit of the defendant and then stated, "This is a common element, either directly or indirectly. . . . in all of the substantive counts."

35 Though the jury was apparently not sufficiently persuaded that Murphy had agreed to take official action to convict him of bribery, they were entitled to use his statement indicating agreement as evidence of the context in which the handling of the briefcase was to be assessed for purposes of determining receipt.

36 The Government correctly points out that simply an agreement to receive money, rather than actual receipt, would violate section 201(g) and section 203. However, Judge Pratt instructed the jury that receipt was required.

rights protected by the Fourth Amendment and, because he was a Congressman, also violated the First Amendment and the doctrine of separation of powers. The claim was not asserted at trial by a timely motion to suppress, see United States v. Mauro, 507 F.2d 802 (2d Cir. 1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1426, 43 L.Ed.2d 672 (1975), and, in any event, is without merit. Thompson's conversations with undercover agents in whom he chose to confide were not privileged, and mechanical recordings of the sights and sounds to which the agents could have testified were proper evidence. See United States v. White, 401 U.S. 745, 749-53, 91 S.Ct. 1122, 1124-26, 28 L.Ed.2d 453 (1971); Lopez v. United States, 373 U.S. 427, 437-40, 83 S.Ct. 1381, 1387-1388, 10 L.Ed.2d 462 (1963); 18 U.S.C. § 2511(2)(c). Since the tapes con- [860] tained material evidence of criminal violations, they were not immunized by the circumstance that Thompson was a Congressman at the time the conversations occurred. Cf. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).

[31,32] Thompson claims that the Speech or Debate Clause bars the introduction into evidence of his private conversations with Congressman Murtha on the floor of the House of Representatives, in which he invited Murtha to join the ranks of those accepting bribes. One would think that a Congressman, even when grasping for objections to a criminal conviction, would understand that the Speech or Debate Clause accords immunity to what is said on the House floor in the course of the legislative process, Gravel v. United States, supra, not to whispered solicitations to commit a crime.


In considering the myriad issues raised by these seven appellants, we are not passing judgment on the wisdom of the Abscam investigation, nor on whether the means by which it was conducted conformed to internal administrative standards of the Department of Justice or to other standards that the Executive Branch might choose to adopt or the Legislative Branch might require. Our task is to determine whether the methods employed and the conduct of the ensuing trails render the resulting convictions invalid under the Constitution and laws of the United States or whether they present one of those rare occasions when we are authorized to vacate convictions in the exercise of a limited supervisory power over the administration of federal criminal justice.

The four Congressmen were caught on videotape in the very act of committing federal crimes. There was sufficient evidence of their guilt and that of the other defendants. The conduct of the investigation, though subject to some criticism, affords no basis for rejecting the convictions. The pretrial proceedings conducted by Judge Mishler and the trial and post-trial hearings conducted by Judge Pratt were vigorous contests marked throughout by the fairness, patience, and thoroughness of the District Judges. We have carefully considered all of the appellants' claims, including those not discussed in this opinion, and, with the exception of the attack upon the charge as to section 203(a) in the Thompson-Murphy trial, we find them all to be without merit, both for the reasons we have set

forth and for the further reasons detailed in Judge Pratt's comprehensive opinion denying post-trial motions in the District Court. 527 F. Supp. 1206. We reverse only the conviction of John Murphy on Count Three of the indictment in No. 81-1346,37 which we remand for a new trial, and in all other respects all the judgments appealed from are affirmed.

On Petition for Rehearing

On petition for rehearing, Thompson contends, among other things, that the words he spoke to Criden at the evening meeting at the W Street house on October 9, 1979, were "You look at that for me will you?" and not "you look after that for me will you?" as reflected in the panel's opinion and in the Government's version of the videotape transcript given to the jury. At the request of Thompson's counsel we viewed the videotape of this meeting. After viewing and hearing the videotape we cannot be certain whether the disputed word was "at" or "after." If we give the defendant the benefit of the doubt, this would surely have aided his argument to the jury that he thought the briefcase transferred at the meeting contained investment documents (to be looked at) rather than money (to be looked after). But this interpretation of the videotape would not alter the sufficiency of the evidence on which the jury convicted nor our assessment of the investigation for purposes of rejecting the due process challenges.

On the contrary, viewing the videotape reenforces our conclusion that the events at the evening meeting on October 9 reflect a [861] contrived arrangement whereby $50,000 was transferred pursuant to Thompson's ground rule, explained earlier in the day by Criden to Amoroso and Weinberg, that money was not to be discussed. At the very start of the meeting, Criden says, "Frank understands the situation." Criden then ceremoniously lifts the briefcase from a table to his right and places it between himself and Thompson without any conversation by anyone concerning the briefcase or its contents. Amoroso says "There's the briefcase," pointing to it. Thompson then says to Criden, "You look at that for me will you?" The visual impact is of people handling and talking about a briefcase containing something of importance, not simply drafts of documents for a lawyer's perusal. Thompson's knowledge that the briefcase contained money is supported by several circumstances. Later in the conversation Amoroso said the morning conversation had been "shadow boxing," to which Thompson replied, "Well, you have to be careful." The next day Criden told Cook that he had handed Thompson $20,000 of the $50,000 in the briefcase. Still later Thompson told Congressman Murtha that there would be $50,000 in “walking around money" for Congressmen willing to help.

The petition for rehearing is denied.

37 The practical consequence is to reduce Murphy's aggregate fine from $20,000 to $10,000.

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550 F. Supp. 605 (1982)




Nos. 82-CR-416, 82-CR-417 and 82-CR-418
United States District Court, E.D. New York

Nov. 10, 1982

Defendant, a member of Congress, agreed to plead guilty to income tax evasion, supplementing the salary of a federal employee and possession of marijuana and also undertook to immediately resign from Congress and withdraw as a candidate for reelection and, in return, the Government consented not to prosecute him for a variety of other crimes. The District Court, Weinstein, Chief Judge, held that those portions of the plea agreement pertaining to resignation from Congress and withdrawal as a candidate for reelection were void.

Plea accepted in part.

1. Constitutional Law

Criminal Law

Elections 101⁄2

Those portions of guilty plea agreement pertaining to defendant's resignation from Congress and withdrawal as a candidate for reelection were void in that they represented an unconstitutional interference by the executive with legislative branch of government and with the rights of the defendant's constituents and interfered with principle of separation of powers. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3, 6, cl. 2; Amend. 14, § 3.

2. Elections


Maxim that the people are sovereign in a republican form of government has as its natural corollary that they retain the broadest freedom to select legislative representative. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3, 6, cl. 2; Amend. [606] 14, § 3.

3. Elections 101⁄2



Just as Congress and the states are prohibited from interfering with the choice of the people for congressional office, federal prosecutors may not, directly or indirectly, subvert the people's choice or deny them the opportunity to vote for any candidate. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3, 6, cl. 2; Amend. 14, § 3.

4. Contracts 108(1)

Even arms-length negotiated commerical contracts between persons of equal power are void if they offend public policy.

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