United States v. Joseph R. Silvestri, 719 F.2d 577, 2d Cir. (1983)
United States v. Joseph R. Silvestri, 719 F.2d 577, 2d Cir. (1983)
2d 577
14 Fed. R. Evid. Serv. 339
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.
2
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, --- U.S. ----, 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. Sec.
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. Secs. 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. Secs. 201(b) and 2 (1976), and Count Three charged
interstate travel to promote bribery activity in violation of 18 U.S.C. Secs. 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.
3
[Criden]
said, "you want to make some walking around money, cash?" I said, yeah, I
5
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.
6
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 parttime 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.
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 Patten
would be offered a bribe. He offered no explanation for his criminal conduct.
11
II.
12
13
All of these claims fail for the fundamental reason that no agent of the
Government and no one acting on the Government's behalf ever suggested to
Silvestri that a condition for earning a commission on the casino project was his
willingness to participate in the bribing of Congressmen. Until October 17,
1979, no agent of the Government even knew that Silvestri was in a position to
locate willing Congressmen, much less suggested to him that he do so. Criden
enlisted Silvestri into the bribery conspiracy and did so without the
Government's knowledge. When Silvestri's role became known to the
Government operatives on October 17, they simply invited him to continue
locating willing Congressmen, without offering any inducement, other than
whatever nominal share of the bribe payments Silvestri was able to obtain from
Criden.
14
The Government agents did nothing that implicates either the fairness standards
of the Due Process Clause or the inducement component of the entrapment
defense simply by leading Silvestri to believe that Abdul Enterprises, Ltd. had
substantial sums of money available for financing various projects including a
casino. If Silvestri came to the conclusion that he would ingratiate himself with
the sheiks by committing crimes from which they would benefit, that
explanation of a motive on his part does not become inducement on the part of
the Government. The prospect of financial gain is not an inducement, for
purposes of due process or entrapment, unless Government agents, or someone
acting on their behalf, urges the commission of a crime and expressly or at least
impliedly conditions the receipt of the financial benefit upon the defendant's
criminal participation. See United States v. Jannotti, 673 F.2d 578, 602-03 (3d
Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315
(1982). That did not occur in this case.2
15
entrapment" the Government is responsible for all the "acts and statements of
Howard Criden to Joseph Silvestri." Some modified version of Silvestri's
requested instruction might have been appropriate had Silvestri claimed that
Criden, acting at the behest of Government agents, induced him to bribe
Congressmen by urging him to do so and by holding out the prospect of a few
thousand dollars of "walking around money."3 But Silvestri made the more
extravagant claim, unsupported by the evidence, that Criden was the instrument
through which Government agents induced Silvestri to commit crimes in order
to obtain financing for the casino and a resulting commission.4 Since the
requested instruction, as presented, was inappropriate, it was not error to omit it.
16
III.
17
18
Count One, the conspiracy count. Venue in the Eastern District of New York
was adequately established by the occurrence there of the overt act in which
Murphy received a $50,000 bribe.5 Although Silvestri contends there was no
evidence linking the Murphy transaction to the conspiracy that Silvestri was
charged with joining, his demand for a share of the Murphy bribe payment is
sufficient.
19
20
21
Alternative arguments were permissible since Silvestri did not take the witness
stand to deny participation in the crimes alleged nor introduce any evidence that
he was not involved, and since he had alerted the Government in his counsel's
opening statement that he would both challenge the evidence of guilt and claim
entrapment. See United States v. Valencia, 645 F.2d 1158, 1170-72 (2d
Cir.1980) (amended 1981); see also United States v. Mayo, 705 F.2d 62, 71-73
(2d Cir.1983)
2
To the extent that Silvestri predicates his due process claim on the general
conduct of the Abscam investigation, we reject the contention for reasons set
forth in United States v. Myers, supra, 692 F.2d at 836-47, and United States v.
Williams, 705 F.2d 603, 619-622 (2d Cir.1983); see also United States v.
Alexandro, 675 F.2d 34, 39-42 (2d Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 78,
74 L.Ed.2d 75 (1982)
The evidence failed to show that any Government agent linked the casino
financing with the bribes, much less instructed Criden to convey such a
proposition. The evidence also failed to indicate that Silvestri was motivated to
join the conspiracy by the prospect of obtaining the financing. Neither he nor
anyone on his behalf presented evidence of such motivation to the jury;
moreover, as the prosecution's evidence showed, he made no such claim when
he recounted his criminal involvement to an FBI agent on February 2, 1980
The Government took the position at trial, and the jury was accordingly
instructed, that the unsuccessful bribe offer to Congressman Patten, which
occurred in the Eastern District, was not part of the conspiracy charged in
Count One