Consolidated appeals from orders of the District Court for the Eastern District of New York (George C. Pratt, Judge) denying motions by former Congressman Frank Thompson, Jr. for a new trial on Abscam-related charges and to supplement the record on appeal. Affirmed.
Before: TIMBERS, NEWMAN, and PIERCE, Circuit Judges.
Former Congressman Frank Thompson, Jr. appeals from an order of the District Court for the Eastern District of New York (George C. Pratt, Judge)*fn1 entered July 13, 1982, denying his motion for a new trial on bribery charges arising out of the Abscam investigation. Thompson's conviction was affirmed by this Court on September 3, 1982, United States v. Myers, 692 F.2d 823 (2d Cir. 1982), cert. denied, 461 U.S. 961, 103 S. Ct. 2437, 103 S. Ct. 2438, 77 L. Ed. 2d 1322 (May 31, 1983). Thompson also appeals from Judge Pratt's subsequent order entered December 30, 1982, denying a motion to supplement the record on appeal.*fn2 For the reasons that follow we affirm the denial of both motions.
The details of the evidence on which Thompson was convicted are set out in our prior opinion, id. at 832-34, familiarity with which is assumed. In brief, the evidence disclosed that on October 9, 1979, undercover agents, posing as representatives of an Arab sheik, had transferred a briefcase containing $50,000 to Howard Criden in Thompson's presence, that Criden had given $20,000 of this money to Thompson, that Thompson had then arranged for a similar $50,000 transaction involving former Congressman John Murphy on October 20, 1979, and that Criden had given Thompson $10,000 of this money for himself and $15,000 for Murphy. At trial Thompson denied receiving any of the money transferred on October 9 and 20 and denied any knowledge of such money, claiming that he thought the briefcase transferred on October 9 contained only documents. Evidence of his receipt of money and his guilty knowledge included a videotaped conversation between Criden and the undercover agents on October 9, which revealed negotiations for the money to be transferred without Thompson's having to acknowledge it; testimony of Ellis Cook, Criden's law partner, recounting Criden's report that he had given Thompson $20,000 from the October 9 payment and $25,000 from the October 20 payment, of which $15,000 was for Murphy; the occurrence of the Murphy transaction, which Thompson had promised to arrange; and testimony of Congressman John Murtha that Thompson had solicited him to receive $50,000 of the sheik's money in return for assistance on immigration matters.
The New Trial Claims. In seeking a new trial, Thompson claims that newly discovered evidence will enable him to prove two circumstances allegedly pertinent to a jury's consideration of his guilt: first, that Melvin Weinberg, a key undercover operative in the Abscam operation, received as a kickback a significant portion of $100,000 of the sheik's money, which Weinberg had transferred to former Camden Mayor Angelo J. Errichetti on March 31, 1979, in the presence of the late Kenneth N. MacDonald, then vice-chairman of the New Jersey Casino Control Commission; and, second, that Weinberg received gifts of personal property from Errichetti. The alleged significance of these circumstances requires some elaboration.
Errichetti was a middleman in transactions resulting in the payment of bribes from the sheik's representatives to various public officials, including former Congressmen Michael O. Myers and Raymond F. Lederer. See United States v. Myers, supra, 692 F.2d at 829-32. The $100,000 payment to Errichetti in MacDonald's presence resulted in an indictment against MacDonald, who died before trial of the charges against him. Thompson contends that if Weinberg received a substantial portion of the $100,000 payment in the MacDonald transaction, a jury could infer that Weinberg had orchestrated a "scam within a scam." Thompson's theory is that Government agents were induced to part with $100,000 in the belief that its transfer to Errichetti would prove MacDonald's guilt of accepting a bribe from those he thought wanted a gambling license, either because MacDonald received a portion of the money or at least knew its transfer required him to compromise his office, whereas in reality MacDonald was the innocent victim of a plot whereby Errichetti took the $100,000 ostensibly for MacDonald's benefit, divided it with Weinberg, and left MacDonald with neither money nor knowledge of what was happening. Thompson tenders this theory in the hope of persuading a jury that if Weinberg used Errichetti to make the Government believe that MacDonald was guilty, he did the same thing with Criden to make the Government believe that Thompson was guilty, and that in both instances the target received no money and had no knowledge of a bribe.
The alleged significance of Weinberg's receipt of personal property from Errichetti is more straightforward. The claim is that Weinberg's credibility as a witness will be impeached since in testimony at Myers' trial he had denied receipt of any gifts from Errichetti.
The New Trial Evidence. To support his claims for a new trial, Thompson presented several items to the District Court. The principal item was a January 16, 1982, affidavit of Cynthia Marie Weinberg, the now deceased wife of Mel Weinberg. Marie Weinberg, as she was known, committed suicide ten days after signing the affidavit. In her affidavit she recounted an episode in which she drove her husband to a meeting with Errichetti at a Holiday Inn off the Long Island Expressway. Mel told her to park on the side of the road and said he had to pick up something from Errichetti. He returned with a briefcase, which he patted, and said "forty-five." Mel told Marie that F.B.I. agent Anthony Amoroso, who was supposed to be watching Mel, did not know of this meeting because Mel had "ducked" him. Thompson contends Marie was referring to an episode first brought to the Government's attention on June 10, 1980, when an F.B.I. agent interviewed Joseph DiLorenzo, Errichetti's nephew and chauffeur. DiLorenzo recounted an episode in which he drove Errichetti to a meeting with Weinberg at a rest stop on the Long Island Expressway on April 1, 1979, the day after Weinberg had handed Errichetti, in MacDonald's presence, a briefcase containing $100,000. He said that Errichetti entered Weinberg's car, which he described as a Lincoln Continental, and gave Weinberg a briefcase. It is not clear whether Marie Weinberg and DiLorenzo are describing the same meeting (or whether either is reporting truthfully or whether Marie's affidavit is admissible*fn3), but for purposes of this appeal we accept Thompson's claim that their statements are probative of Weinberg's receipt of $45,000 from Errichetti on April 1, 1979.*fn4
Marie Weinberg's affidavit also reported that sometime in 1978 or 1979 her husband had brought home to their Long Island home several "gifts" from a "friend," including a microwave oven, a stereo system, a Betamax video recorder, and three Sony television sets. She also claimed that F.B.I. agents had visited her home, observed these items, and helped pack them for shipment in connection with the Weinbergs' move to Florida. She further claimed that during one of the Abscam trials in 1980, her husband had telephoned her and told her to remove the microwave oven and video recorder from their Florida home and hide them elsewhere, which she did.
Also submitted in support of Thompson's new trial motion was a transcript of a recorded interview of Marie Weinberg conducted by Indy Badhwar, a newspaperman associated with columnist Jack Anderson, an affidavit from Badhwar concerning the interview, several photographs of personal property allegedly photographed in Mrs. Weinberg's apartment, and affidavits from Daniel A. Rezneck, Esq., trial counsel for Thompson, and from one of Rezneck's associates. Badhwar's affidavit and his transcript of his recorded interview with Marie add little, if anything, to the allegations of her affidavit. The photographs are obviously probative of the existence of the items Marie Weinberg claims were given to her husband. The affidavits of Rezneck and his associate purport to show the significance Thompson's trial counsel would have attached to evidence of Weinberg's receipt of a portion of the MacDonald payment. Rezneck asserts that priot to trial he considered a defense based on the claim that Weinberg and Criden were both plotting to obtain money in a scheme in which Thompson was an innocent dupe. His theory, outlined in a memorandum written prior to the trial, was that Criden thought he was scamming the sheik and Weinberg knew he was scamming the Government. Rezneck claims that he made no such allegations against Weinberg at Thompson's trial because of the outcome of the Myers trial, in which Weinberg denied allegations that he had received kickbacks and gifts and Myers was convicted.*fn5 Rezneck therefore defended Thompson on the theory that Criden alone had run a "scam within a scam." His conclusion is that knowledge of the materials offered in support of the new trial motion would have provided a "significantly stronger basis" for propounding his original defense theory.*fn6
Thompson's December 16, 1982, motion to supplement the record on appeal from the denial of his new trial motion presented to the District Court an interim report by staff counsel to a Select Committee of the United States Senate investigating the Department of Justice's handling of the Abscam operation and written statements of Robert J. DelTufo and William W. Robertson, both former United States Attorneys for the District of New Jersey, and Justin P. Walder, counsel for MacDonald, submitted to the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary of the United States House of Representatives. On December 27, 1982, Thompson expanded his request by asking Judge Pratt to include in the record the portion of the Senate Select Committee's final report entitled "Allegations that Weinberg Shared in Bribe Payments to Abscam Suspects." See Final Report of Select Committee to Study Undercover Activities of Components of the Department of Justice, S. Rep. No. 97-682, 97th Cong., 2d Sess. 129-52 (1982) (hereafter "Select Committee Report"). In response to the motion to supplement the record, the Government submitted to Judge Pratt the portion of the Select Committee's final report entitled "Allegations Regarding Kenneth N. MacDonald." See Select Committee Report, supra, at 241-62.
The principal items of evidence discussed in the documents submitted by Thompson concern the claim that Weinberg received a portion of the $100,000 he had paid to Errichetti in MacDonald's presence. Most of this evidence had previously been presented to Judge Pratt in the course of the due process hearing that he conducted after the conclusion of the trials of Thompson, Murphy, Myers, and Lederer. The excerpt from the Select Committee's report summarizes Errichetti's testimony to the Committee that he had met Weinberg at a rest stop along the Long Island Expressway on April 1, 1979, and given him $37,500 of the $100,000 MacDonald payment. Select Committee Report, supra, at 142-43. He also told the Committee that this $37,500, plus ...