United States v. Wechsler

CRAVEN, Circuit Judge:

Involved here is a scheme by certain partners in a real estate development company (Nathan Wechsler, Sigmund Goldblatt, George Faigen, and Seymour Faigen) to bribe two members of the Board of Supervisors of Fairfax County, Virginia, (Robert Gotten and Clairborne Leigh) to vote for the re-zoning of land in which the partnership was interested. Goldblatt, Cotten, Leigh and George Faigen appeal from their convictions for substantively violating 18 U.S.C.A. § 1952(a) (3) and for conspiring to violate the same statute; Wechsler and Seymour Faigen were acquitted on the substantive count and appeal from their convictions on the conspiracy count. The central question presented is whether the offense of using a facility in interstate commerce to promote, manage, establish, or carry on bribery and thereafter performing an act to promote, manage, establish, or carry on bribery is to be equated with, and limited by, the state law of bribery. We think not and affirm the convictions of all appellants.

In 1960, the developer-defendants were interested in procuring a zoning change from residential to mobile homes for 84.3 acres of land in Fairfax County which they wanted to use as a trailer park. Sufficient evidence was introduced at trial for the jury to find the following facts. On March 9, 1960, George Faigen filed an application for the re-zoning. A year later, but before the Board of Supervisors had acted upon the application, the four defendant-partners placed a check for $5,500 in escrow in the Security Bank of Washington for John C. Somers, an attorney who often handled zoning cases in Fairfax County on a contingent fee basis, conditioned upon favorable action by the Board. Two months later, on July 26, 1961, the Board acted favorably on Faigen’s application on the affirmative votes of Leigh, Cotten, DeBell 1 and another. On August 7, the developer-defendants instructed the Security Bank to release the $5,500 check to Somers who deposited it to his own account on August 18, the day on which he was notified by the bank. Somers was instructed by Leigh to run the cheek through his own account and then make out a check for the same amount to Leigh, and did so. Somers had performed no work for developer defendants at any time, and in 1961 he knew none of them except Goldblatt.2 Leigh deposited the check to his account on August 19, and on August 22 he wrote a check to DeBell for $1,308.33; on August 23, he wrote a check to himself for $1,333; and on September 9, he wrote a check to Cotten for $1,000. Cotten’s secretary entered the $1,000 cheek as a legal fee in Cotten’s checkbook and receipts book and deposited the check to Cotten’s account on September 15. On September 13, 1961, Congress enacted 18 U.S.C. § 1952. Because the state courts of Virginia set aside the original Board action, it was necessary for George Faigen to file a new application on June 20, 1962. This second application was considered by the Board on July 25, 1962, and again it was approved, this time on the affirmative votes of Cotton, Leigh, DeBell, and two others. Three letters, two by Goldblatt and one by George Faigen, connected with the effort to procure the re-zoning were mailed on June 17 and 18 and on July 21, 1962.

The most serious argument advanced by the appellants, and the one on which most of their other arguments depend, is that their crime was complete before the statute was enacted. We disagree. Their theory is that under Virginia law the crime of bribery is complete upon the giving, offering, or promising of a bribe even though the official act to be done in consideration therefor is to occur in futuro. The fallacy in their argument lies in a too heavy reliance on state law. The state crime serves “only as a background identification of the unlawful activities.” United States v. Wingo (6th Cir. 1967)*; United States v. Kubacki, 237 F.Supp. 638, 643 (E.D.Pa.1965). We have no doubt that when the money passed, if not before, the state law of bribery had been violated and that appellants could then have been indicted in the state courts; in that sense their crime was complete. But, their crime was not yet completed. Their activities continued beyond that point and indeed, beyond the date on which the statute was enacted. The manifest purpose of the statute is to deny the use of facilities in interstate commerce to those who would effect a wrong on the people by corrupting public officials. The wrong was not done to the people until the re-zoning was accomplished and the accomplishment of that wrong, after the use of a facility in interstate commerce, is one of the activities at which the statute is aimed. Thus, the federal crime continued until the re-zoning was accomplished on July 25, 1962.

The statute was enacted on September 13, 1961; on September 15, Cotten caused the check from Leigh to be deposited in his bank account, and the jury could have found that this check was in payment for Cot-ten’s vote. Depositing that check in a bank for collection was the use of a “facility in interstate or foreign commerce.” 3 On July 25, 1962, Cotton voted in favor of the re-zoning. Thus, he used a facility in interstate commerce to facilitate the carrying oh of bribery and thereafter performed the carrying on of bribery, squarely within the terms of the statute, after the statute was enacted. As applied to Cotten, then, the statute had no ex post facto effect.

By the same token, the conspiracy convictions of each of the appellants must be affirmed. Appellants argue that a new trial is necessitated by the trial judge’s instruction that the jury could convict if one of the conspirators committed any of the several overt acts charged in the indictment, several of which were not acts in furtherance of bribery and occurred, under appellants’ theory, after the conspiracy had ended. But in order to have convicted Cotten of the substantive offense, the jury must have found that he deposited his cheek from Leigh, and this was one of the overt acts to which the trial judge referred. Each member of the conspiracy is chargeable with acts performed by other members in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).4 Further, appellants were not charged with a conspiracy to commit bribery, but with a conspiracy to violate 18 U.S.C. § 1952.5 Each of the overt acts listed in the indictment were acts which would have furthered this conspiracy and each was performed after the statute was enacted and before the conspiracy ended, according to our holding, on July 25, 1962, when the Board acted affirmatively on the re-zoning application.

On the other hand, rather serious problems are raised in connection with the substantive convictions of each of the appellants other than Cotten. But because we affirm their conspiracy convictions and because the sentences on each count are to run concurrently, a reversal of the substantive convictions would be fruitless. We, thus, find it unnecessary to resolve those problems.6 Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Gorin v. United States, 312 U.S. 19, 33, 61 S.Ct. 429, 85 L.Ed. 488 (1941); Brooks v. United States, 267 U.S. 432, 441, 45 S.Ct. 345, 69 L.Ed. 699 (1925).

Many of the other arguments advanced by appellants are dependent upon the answer to the problem just discussed and, hence, fall with the statutory construction that we have adopted. However, there remain two arguments that merit brief mention. Appellant Leigh urges that it was error for the trial judge to require the defendants to agree on a trial location within the Eastern District of Virginia as a condition for fixing the place of trial somewhere within the district other than Alexandria under Fed.R.Crim.P. 18. But a motion for change of venue under Fed.R.Crim.P. 21(a) had already been denied; the condition was merely an attempt by the trial court to accommodate the defendants in keeping with the rule’s mandate that the place of trial is to be fixed within the district “with due regard to the convenience of the defendant and the witnesses.”

Second, appellants contend that it was error for the trial judge to limit the testimony of William DeMik, an attorney. DeMik, on direct examination, testified that Wechsler had asked him about Somers, that he had investigated and had reported to Wechsler that Somers was an attorney who was extremely well connected with the Board of Supervisors. He was then asked if he had given Wechsler any advice; at that point the trial judge interrupted and sua sponte interposed an objection. The offer of proof was that DeMik would testify that he had advised Wechsler to settle with Somers thus supporting defendants’ theory that the $5,500 had been put in escrow as settlement of a legal fee due to Somers. We find it unnecessary to decide if exclusion of this testimony was error, for we find no effect on the substantial rights of the parties within the meaning of 28 U.S.C.A. § 2111. Dobrow, the fifth partner, testified that Somers had been employed as an attorney to assist in the zoning, that a fee of $15,500 had been discussed, that Wechsler had been delegated by the partners to annul the preliminary arrangements after Gibson, another attorney retained to work on the same matter, had refused to work with Somers, and that a $5,500 settlement had been arranged with Somers. Further, another witness testified that he had told Weschler, after investigating, that Somers was a person not without influence and that he was reasonably certain that Somers “could be somewhat harmful.” There is, then, very little that DeMik’s testimony could have added to the jury’s knowledge. Moreover, ' the contentions of the defendants were carefully spelled out in the charge to the jury. In these circumstances, we can find no prejudice justifying a new trial. See, Harper v. United States, 143 F.2d 795, 806 (8th Cir. 1944).

We have carefully considered the other numerous arguments advanced on behalf of all appellants and find them to be without merit.

Affirmed.

1 Acquitted below.

2 Somers also testified that he had not reported the check as income on his 1961 tax return and that he had invoked the Fifth Amendment six times before the Grand Jury after which he had been given immunity.

* On December 8, 1967, the United States Court of Appeals for the Sixth Circuit entered an order in Wingo withdrawing the opinion and vacating the order affirming the judgment, and restoring the case on the docket as a pending appeal.

3 When one deposits a check, there would seem to be little doubt that he is using a facility in interstate commerce. Banks have often been held to be involved in interstate commerce for other purposes. E. g., N.L.R.B. v. Bank of America, 130 F.2d 624 (9th Cir. 1942) (National Labor Relations Act); Lorenzetti v. American Trust Co., 45 F.Supp. 128 (N.D.Cal.1942) (Fair Labor Standards Act). Moreover, Government Exhibit No. 12, the check from Leigh to Cotten, shows that the check was drawn on a Virginia bank and bears the endorsement of a Washington, D. C. bank. Nor do we doubt that the evidence was sufficient for the jury to find the requisite statutory intent. See, United States v. Wingo (6th Cir. 1967). To paraphrase our holding in an analogous situation, there must be some connection between the unlawful activity and the use of a facility in interstate commerce, but “we think it sufficient under section 1952 that the defendant knowingly caused to be transmitted interstate * * * proceeds of a [bribery] which was unlawful under the [Virginia] statute.” United States v. Hawthorne, 356 F.2d 740, 742 (4th Cir. 1966).

4 Since Seymour Paigen has been acquitted of the substantive count and since the punishment of the other appellants would not be affected, we decline to consider whether Cotten’s commission of the substantive offense was in furtherance of the conspiracy so as to make all conspirators equally liable for the substantive offense as well as the conspiracy. See, Pinkerton v. United States, id., 328 U.S. at 647, 66 S.Ct. 1180; United States v. McGuire, 249 F.Supp. 43, 48 (S.D.N.Y. 1965).

5 Appellants seriously urge that at the outset the trial judge construed Count I of the indictment to mean that they were charged with a conspiracy to commit bribery, and that later the theory was switched to read Count I as charging them with a conspiracy to procure a rezoning by means of bribery. Since the indictment quite clearly charges a con*348spiracy to violate § 1952, such a switch, if indeed it occurred, would have entitled appellants to no more than a continuance on the grounds of surprise. No such motion was made.

6 While we do not decide the question, we note that there is a serious question as to whether any of the appellants, other than Cotten, used a facility in interstate commerce and thereafter performed an act prohibited by the statute. Sigmund Goldblatt and George Faigen both wrote and mailed letters after the date of the statute, but it is seriously urged that the only act that they can be said to have performed thereafter is the appearance of Lytton Gibson, an attorney, before the Board of Supervisors on behalf of the partnership. Although traditional agency concepts might support the theory that Gibson’s act was the act of each of the partners, ordinarily such an appearance is precisely the kind of activity in which, as the trial judge charged, any citizen has the right to engage; there is serious doubt that this act was shown to be one which was done to promote bribery. Conversely, Claiborne Leigh was shown to have performed an act after the statute was enacted (i.e., his vote), but it is doubtful that he was shown to have made use of a facility in interstate commerce before that act and after the effective date of the statute.