United States v. Harrison A. Williams, Jr. And Alexander Feinberg

Harrison A. Williams, Jr., formerly United States Senator from New Jersey, and Alexander Feinberg, an attorney and close friend of Williams, appeal from judgments of conviction entered in the District Court for the Eastern District of New York (George C. Pratt, Judge) after a jury trial on bribery and related charges arising out of the Abscam undercover “sting” operation. We have previously explored the factual background of Abscam and many of the legal issues arising from this controversial undertaking in upholding the sufficiency of the indictments against four Congressmen and three of their associates, United States v. Myers, 635 F.2d 932 (2d Cir.) (Myers I), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980); United States v. Murphy, 642 F.2d 699 (2d Cir.1980), and in affirming their convictions, United States v. Myers, 692 F.2d 823 (2d Cir.1982) (Myers II), petitions for cert. filed, 51 U.S.L.W. 3554, 3555, 3567 (U.S. Jan. 14, 17, 1983) (Nos. 82-1183, -1199, -1255). The evidence against Williams and Feinberg differs in significant respects from that presented in previous Abscam trials, but the major legal issues are similar. In light of our holdings in Myers I and Myers II and for the more particular reasons detailed in this opinion, we affirm the judgments of conviction.

I.

Williams and Feinberg were charged in a nine-count indictment, along with co-defendants Angelo J. Errichetti, formerly Mayor of Camden, New Jersey, and George Katz, a New Jersey businessman. 1 Errichetti was severed after his conviction in the Myers trial, and Katz was severed for health reasons and has since died. The indictment alleged a conspiracy and eight substantive violations, arising out of Williams’ conduct, aided and abetted by Feinberg, in promising to use his position as a United States Senator to help obtain government contracts for the purchase of titanium from a mining venture in which the defendants held an interest. The promises were alleged to have been made in connection with two transactions, the first, a proposed loan of $100 million ostensibly to have been financed by a fictitious entity known as Abdul Enterprises, Ltd. This entity, purporting to be an enterprise of two wealthy Arab sheiks, was the cover of an elaborate “sting” operation conducted by agents of the Federal Bureau of Investigation. See Myers II, supra, 692 F.2d at 829-30. The second transaction, also proposed by the Abscam operatives, involved a second Arab group’s offer to purchase the mining venture for a sum that would have yielded all the owners of the venture an *607 estimated $70 million profit. For each transaction the indictment charged four offenses: bribery, in violation of 18 U.S.C. § 201(c) (1976) (Counts Two and Six); receipt of an unlawful gratuity, in violation of 18 U.S.C. § 201(g) (Counts Three and Seven); conflict of interest, in violation of 18 U.S.C. § 203(a) (Counts Four and Eight); and interstate travel to carry on the unlawful activity of bribery, in violation of 18 U.S.C. § 1952 (Counts Five and Nine). 2 Count One charged a conspiracy to defraud the United States and to commit the substantive bribery, unlawful gratuity, and conflict-of-interest offenses, in violation of 18 U.S.C. § 371.

A jury trial began on March 30,1981, and concluded on May 1, 1981. The jury found both defendants guilty on all nine counts. From June 22 to June 25, 1981, the District Court conducted a “due process” hearing to assess various post-trial claims, including the defendants’ basic contention that the Government’s conduct of the Abscam investigation exceeded the standard of fairness mandated by the Due Process Clause of the Fifth Amendment. On December 22, 1981, Judge Pratt issued a comprehensive opinion rejecting all of the defendants’ claims, except Feinberg’s motion for judgment of acquittal on Count Five for insufficiency of the evidence, which was granted. United States v. Williams, 529 F.Supp. 1085 (E.D.N.Y.1981). Thereafter Judge Pratt sentenced Williams to three years’ imprisonment and fines totalling $50,000; Feinberg received a sentence of three years’ imprisonment and fines totalling $40,000.

II.

The Government’s evidence against Williams and Feinberg revealed transactions more elaborate than those of the Congressmen in Myers who accepted $50,000 in cash in exchange for their promises to help secure private immigration legislation. Despite the complexity and higher stakes, however, the essentials of the criminal conduct in this cáse remained straightforward: a public official’s seeking monetary benefit in exchange for his promise to use his official position.

The background events were recounted by Henry A. (“Sandy”) Williams, III, a friend and business associate of Senator Williams but not a relative, who testified for the Government after receiving a grant of immunity. In 1975 Sandy Williams became aware of a mining property in Piney River, Virginia. The property was initially thought to be rich in phosphorus and, later, in titanium. Sandy Williams acquired an option on the property for Penque Williams, Inc., a corporation owned equally by him and an associate. Upon acquiring the option in 1975, Sandy Williams discussed the property with Senator Williams and told him that considerable help would be needed to get the venture started. The Senator assured Sandy Williams that he would “give us all the help that he could possibly give us” and, as Sandy Williams further testified, “for that we agreed that he would get one half of my interest in Penque Williams, Inc.” In 1976 Sandy Williams obtained enough financing to exercise the option on the Piney River property and formed a new corporation, United States Titanium Corporation, to take title to the property. Sandy Williams held a 28V3% interest in the new corporation, and on March 23, he executed a document acknowledging that half of his interest (approximately 14%) was owned by the Senator. The Senator retained the document in his Senate office files. 3 For three *608 years nothing happened, since the mining venture lacked the necessary capital, estimated by Sandy Williams to be $13 million. Enter Abdul Enterprises, Ltd., the fictitious entity created by the Federal Bureau of Investigation as a source of funds ostensibly supplied by two Arab sheiks looking for investment opportunities.

The Loan Transaction

As the Myers case reveals, one of the first politicians to become interested in the prospect of obtaining money from Abdul Enterprises was Angelo Errichetti, then the May- or of Camden, New Jersey, and a member of the New Jersey Senate. In January 1979, Errichetti mentioned to his friend Senator Williams that he had established contact with wealthy Arab investors. Williams’ reaction was to tell his long-time friend and associate, attorney Alexander Feinberg, to contact Errichetti and “see what the hell’s going on.” By this time Feinberg had acquired a percentage of the mining venture in return for his looking after the Senator’s interests and helping to make presentations to potential investors. Feinberg, Errichetti, and Sandy Williams met with an FBI agent and an FBI informant, Melvin Weinberg, both posing as representatives of one of the sheiks. Feinberg stated that Senator Williams was interested in the mining project and was anxious to have it funded. He also made it clear that the Senator had an undisclosed interest in the venture, which he said was half of Feinberg’s share. As Errichetti described the relationship to the sheik’s representatives, Feinberg was the Senator’s “bag-man.” Sandy Williams said that $13 million was needed to get the mining venture into operation. In early March, Sandy Williams suggested to the sheik’s representatives that Abdul Enterprises loan an additional $70 million to finance the purchase of a titanium dioxide plant owned by the American Cyanamid Company. He estimated the total financing needs were $100 million.

On March 21, 1979, Sandy Williams discussed with the Senator a meeting the Senator was scheduled to have with the sheik two days later on board a yacht in Florida. Sandy Williams testified that he told the Senator, “Pete [the Senator’s nickname], this is an important meeting,” to which the Senator replied, “Sandy, look, I will do everything possible to get that money.” At a party aboard the yacht on March 23, the Senator met the sheik and told one of the sheik’s representatives that he was interested in having the mine funded and would “assist [the representative] in any way possible in getting this project going.” The next day Errichetti reported to the sheiks’ representatives how impressed the Senator had been and that he “can be of service to you in Washington or wherever. This is Government stuff, now.”

The opportunity for such service appears to have initially come to the attention of Sandy Williams and George Katz, another friend of the Senator’s and also a participant in the mining venture, as a result of newspaper articles in late May outlining the need for titanium for national defense, especially its use in submarines. Katz telephoned Weinberg, read him one of the articles, and estimated that the venture could market forty thousand tons a year “[i]f you go into a titanium metal which the United States is short of.” In discussing the articles with Sandy Williams, Katz raised the prospect of the Senator’s helping to secure government contracts for titanium. Sandy Williams testified that Katz told him, “Sandy, this deal, if it was going to be made, the senator is going to have to exert himself, is going to have to try to get the government contracts for this project.” Sandy Williams responded that the Senator could not get government contracts for the project because, as he understood it, contracts in excess of $25,000 were awarded strictly on the basis of competitive bidding. Sandy Williams further testified that later that same day Katz told him competitive bidding was not required:

He said, you are all wrong about bidding on a government contract. You can negotiate, he said, a contract with the *609 government, if it is a scarce item, if it is an item the government needs, you don’t have to bid on it.

And I didn’t argue with him because George was in the garbage business in New Jersey and he was dealing in government contracts and I took what he said to be true.

On May 30, Weinberg asked Feinberg in a recorded conversation whether the Senator can “do something on getting us the contracts.” Feinberg replied, “We can try.” The next day the sheik’s representatives held a luncheon meeting with the Senator at the Pierre Hotel in New York City. Just before the luncheon, Feinberg told Weinberg in a recorded conversation,

On the contracts, I can tell you now that he will open up the doors for us. And use his, you know what I’m talking about, to get the contracts.

Moments later Feinberg met with Weinberg and F.B.I. agent Anthony Amoroso, one of the principal undercover operatives. Their recorded conversation included the following:

Amoroso: Is [the Senator] going to be able to steer any kind of contracts from the Committees that he’s on toward, toward the operation that we’re going to get involved with? I mean [ — ]

Feinberg: Well this I didn’t know until now I have to ask him that.

Amoroso: Yeah.

Feinberg: I would assume, I know that he’s often opened up many doors. You understand what I’m talking about,, and with his blessing [ — ]

Also prior to the luncheon, the Senator met with Feinberg and Sandy Williams. At this meeting, according to the testimony of Sandy Williams, Feinberg told the Senator, “Pete, the important thing [a]bout this meeting is going to be your help in getting government contracts,” and the Senator replied, “I understand.”

At the luncheon meeting, when, the Government contends, the subject of getting government contracts arose, the Senator stated, “I can’t say yes or no, sure try.” The audio tape of this meeting is inaudible as to the conversation preceding the Senator’s remark, but other evidence abundantly permitted the jury to conclude that the Senator was referring to his role in obtaining government contracts. First, the conversations just prior to the luncheon indicate that the Senator understood his role. Second, Amoroso, who attended the luncheon, testified that the Senator’s willingness to “try” was expressed in response to a statement that the Senator’s aid in obtaining government contracts was one of the reasons for the loan. Third, after the meeting, both Feinberg and Sandy Williams reminded the sheik’s representatives that the Senator had said he would try to get government contracts. 4

With the Senator and his cohort having expressed an eagerness to receive from Abdul Enterprises loans totaling nearly $100 million, the Senator met with the sheik on June 28 to persuade him that the Senator’s influence justified making the loans. The videotaped conversation reveals Williams discussing at length his ability to be influential with the Government as a result of his senior position in the Senate. In addition to mentioning his close relationship with the Vice-President (“used to work for me, on the committee”) and the Secretary of State (“a neighbor back in New Jersey ... we’re very close”), the Senator assured the sheik:

*610 I only involve myself in something that I, I just completely believe in and this one, this whole situation we’ve presented through the mine, the processing and the product. I believe it, you know. With ... great pleasure talk to the President of the United States about it and, you know, in a personal way and get him as enthusiastic and excited because we know what our country needs.

Government contracts were explicitly mentioned:

Williams: We’ve got thirty thousand tons we could produce a year. Therefore, with what we got of this value, knowing the need of our country, being here in a position to go to ah well, you know, right to the top on this one.

And we’ve got a combination here, we’re a couple of Senators and . .. when we work together, Senator Errichetti and I, it works.

Amoroso: [The sheik] feels that with you behind this thing, with the people that you know, the ah government contracts, available, you know, this whole thing—

Williams: Right through.

Amoroso: ... [T]his is why I wanted you to meet with the sheik and he wanted to meet with you because I think without you ... he would’ve felt it was just another business deal.

Errichetti: Well, without the Senator, there is no — forget it. There’s no, no mines or nothing. In fact, the Senator, Pete had the opportunity wherewithall and the know-how in his position as the United States Senator....

Williams: Yes, I, I’ve been here decades and, uh, in that position you come up to those positions and you work with the people that make the decisions.

Amoroso: Well, then, there — in that respect, then, with you being in that position and contracts and, uh, the like would not be a problem.

Williams: No problem. No. In a situation where we can just sit around and describe, they’ll see, it will come to pass.

Amoroso: Well, that, like we discussed, ah that end of it is really, uh, not our concern, it’s none of our business, who you go to—

Williams: Yeah.

Amoroso: —you know, to do—

Williams: But you can be assured that we, we—

Amoroso: —the manipulation behind the behind the scenes.

Williams: —we have a relationship that will make all of that possible. That’s that’s all I want to tell you now.

The conversation also revealed the Senator’s reason for being helpful and the means for receiving his financial reward:

Williams: I’m not gonna be in this situation forever and I want to have a you know foundations which give me that independence when I, later time.

Amoroso: Alright. Well, then we’re agreed on the — I just wanted, uh, for you to tell us who you wanted to have it in—

Williams: Alex.

Amoroso: —so that we’re gonna put your shares in Alex’s name—

Williams: Alex.

Amoroso: —and he will control them and I think ah he’s gonna actually sign them and then, if you want, you can maintain possession of them.

Errichetti: [Inaudible] as he sees fit.

Williams: That’s the way to do it. Yeah.

On August 5, at a meeting at a restaurant at John F. Kennedy Airport, the Senator accepted stock certificates representing an 18% share in three corporations Feinberg had formed to carry out the mining venture. As previously agreed, the certificates had been issued to Feinberg, who then endorsed them in blank. In the recorded conversation of the meeting, Williams acknowledged his understanding of the arrangement:

*611 Amoroso: [T]hese are the certificates and I had Alex endorse them ....

Williams: And he just endorsed these over then.

Amoroso: Yeah.

Williams: In blank.

Weinberg: Right.

Williams: Very good.

Weinberg: So they’re blank you can leave them blank and when you want to put your name in it you can put your name in it.

The Purchase Transaction

At the August 5 meeting, the sheik’s representatives broached the possibility that a second group of Arabs might be willing to pay millions of dollars for an outright purchase of the mining venture. On August 27 Katz and Sandy Williams met with the Senator to compare this second opportunity to the first approach of obtaining only loans. According to Sandy Williams’ testimony, Katz told the Senator that, as part of the sale, he would have to “stay ... with the same kind of arrangement ... and he [help?] get government contracts [for the new owners].” The Senator replied, “We’ll go the second way.” Sandy Williams also testified that on September 4, Feinberg told the Senator that the “same things that he promised Yassir ... he would do for the second group,” and the Senator said that he would.

The principals in the mining venture met with the Senator on September 11 to decide whether to sell their interests to the second group of Arabs for a sum estimated by Sandy Williams to produce a profit for the group of $70 million. The meeting was videotaped. Under the proposal Sandy Williams was to be employed by the new group to run the venture, and he would be the person to contact the Senator. The Senator’s role was spelled out by Weinberg:

The whole thing on this sale depends [on] you and the government getting the contracts for us cause the whole thing depends upon it. You’re the one that’s gotta give us the O.K. to do it. If you have any qualms about it, you wanna keep it the same, it makes no difference to me either way. But the whole thing depends upon you to work the same capacity as you working for us to get us government contracts. Ya do it for them. No, in no way would your name be mentioned there or any shares in your name. And if they have to reach you it’ll be through strictly, through Sandy.

In the ensuing discussion, the Senator acknowledged, as he had previously told Feinberg and Sandy Williams, that the assistance already promised to the Arab lenders would continue for the Arab purchasers:

[P]ut it this way to them, that this group to give them, whatever they feel there’s some assurance this entity will continue with ’em.

And be helpful to them.

We got this all together on certain premises and they will, they will continue.

At one point the Senator suggested that a more appropriate selling price might be $100 million. Ultimately Feinberg made a motion that the principals agree to sell the venture, and the other four participants— Senator Williams, Sandy Williams, Katz, and Errichetti — all voted. “Aye.”

On October 7, at a meeting at the Plaza Hotel in New York City, which was recorded, the Senator and Feinberg explained to the sheik’s representatives how Williams’ profits from the sale would be concealed, at least for the present. The issue arose when Amoroso told the Senator that Katz had understood from the September 11 meeting that “all of a sudden you were going to announce to the world ... [t]hat you ... got 15 million dollars.” Williams replied, “Oh Christ no.” The exact arrangement was unclear, but the essential point was made by Feinberg in these words: “I know how to get him money now without him declaring it.” Some form of a blind trust was to be used, which Feinberg assured the Senator would conceal his interest until he retired. “Then you can say I’ve got it.”

*612 The Senator expressed his understanding that while some contemporaneous record would be made, no disclosure would occur until years later:

There are ways and ways to ... be on a, on a certain record. Now, if it[’]s a blind trust er, uhh that’s the way for my purposes, I, I will find a way to ... make that kind and nobody knows nothing.

And then way down the road someone said, well, you know he had all of his interests and nobody knew anything. Well, there we have it under the trust. You see. So I’ve done what I had to do.

Defenses

In the face of this overwhelming evidence of the Senator’s seeking funds for the financing and purchase of a mining venture in which he had an interest in exchange for his assistance in obtaining government contracts for the venture, Williams and Feinberg attempted a defense based on the alternative propositions that either no crimes had been committed, or, if any had been committed, they were the product of government entrapment. See United States v. Valencia, 645 F.2d 1158, 1170-72 (2d Cir.1980) (amended 1981) (outlining limited opportunity for alternative defenses of non-involvement and entrapment). 5 The entrapment contention was put to the jury primarily through the argument of counsel. In their testimony the defendants endeavored to deny the commission of any crimes. Feinberg’s approach was to claim that it was legitimate for a Senator to agree to use his influence to help obtain government contracts, despite the Senator’s having a financial interest in the venture and seeking loans, necessary for the venture’s viability, and the sale of the venture in exchange for his assistance. In Feinberg’s view, there was nothing wrong with the arrangement because the Senator was only going to be “opening up the doors” and because he and the Senator intended ultimately to disclose the Senator’s interest.

The Senator’s equally brazen denial of wrongdoing proceeded on two levels. First, he denied that he had agreed to' do anything with respect to government contracts. Though the Senator primarily asserted that he had made no promise to obtain contracts, he also insisted, in the face of his recorded statements to the contrary, that he had not agreed even to try to secure contracts. He told the jury, “I just knew I was not going to say anything about contracts.” Second, the Senator contended that whatever he had done was only to benefit his friends, Feinberg and Sandy Williams: “I knew how hard they were working on this mine, my friends, and I wanted to help them.” Despite the recorded conversations in which he received his shares of stock and discussed the concealment of his interest, he told the jury, “I was not interested ... in receiving any stock.”

III.

On appeal, the defendants raise primarily three issues relating to or supplementing *613 their defense of entrapment. First, they contend that the evidence established entrapment as a matter of law, by which they mean that the evidence was insufficient to permit a jury reasonably to find beyond a reasonable doubt that the defendants were predisposed to commit the crimes charged. Second, they contend that the trial judge erred in his charge concerning entrapment. Third, they contend that the totality of the Government’s actions in orchestrating the crimes charged constituted outrageous conduct beyond an outer limit of fairness established by the Due Process Clause.

A. Entrapment as a Matter of Law

Appellants contend, and the Government has never disputed, that there was sufficient evidence of inducement of the defendants by the undercover agents to place upon the prosecution the burden of proving beyond a reasonable doubt that the defendants were predisposed to commit the crimes charged. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). What the parties dispute is whether there was sufficient evidence to permit the jury reasonably to conclude beyond a reasonable doubt that the defendants were predisposed, i.e., “ready and willing without persuasion” to commit offenses of the sort charged and “awaiting any propitious opportunity,” United States v. Sherman, 200 F.2d 880, 882 (2d Cir.1952) (L. Hand, J.). Appellants allege that the government agents initiated all aspects of the crimes, that the Senator and his cohort initially rejected the idea of any criminal conduct, and that government agents improperly persisted in persuading the Senator to commit crimes that they were not ready and willing to commit. We conclude that the evidence permitted the jury to reach quite different conclusions, although the evidence of governmental persuasion is substantial.

Government Initiation

As we have noted, the initial involvement of Senator Williams with the Abscam “sting” operation originated with the Senator, not with the Government. Alerted by Errichetti to the availability of money to be invested by wealthy Arabs, the Senator instructed Feinberg to pursue the matter. Moreover, it was an associate of the Senator’s, Sandy Williams, who specified the amount of money, $100 million, that the Senator’s group hoped to interest Abdul Enterprises in lending. The first indications that Senator Williams would be of assistance to the venture also originated with the Senator. He had assured Sandy Williams as early as 1975 that he would give the mining venture all the help he possibly could. When the prospect of possible financing from Abdul Enterprises arose in early 1979, the Senator repeated to Sandy Williams his willingness to help the venture and so informed one of the sheik’s representatives at the yacht party on March 23, 1979. The first suggestion that the Senator’s help might involve use of his official position was Errichetti’s statement the next day, March 24, that the Senator “can be of service to you in Washington or wherever. This is government stuff, now.” Only after these preliminary indications of the Senator’s willingness to be helpful on “government stuff” did the Abscam operatives broach the specific subject of government contracts, first to Feinberg on May 30 and then to the Senator at the Pierre Hotel on May 31. 6

Defendants’ Reluctance

The record flatly refutes the claim of reluctance on the part of the defendants. Feinberg’s response to the first offer of a criminal opportunity on May 30 was, “We can try.” On May 31 the Senator assured Feinberg and Sandy Williams that he understood the importance of his help in getting government contracts, and his first response to a government agent’s offer of a criminal opportunity was his statement to *614 the sheik’s representatives at the luncheon meeting that day that he would “sure try” to get contracts. The Senator repeated his willingness to seek government contracts for the mining venture in conversations with Sandy Williams on June 16 and June 24. On June 19, at a meeting in his Washington office with Errichetti and Feinberg, the Senator expressed no reluctance to Errichetti’s urging that he impress the sheik how willing he was to help obtain government contracts. As Feinberg reported to Weinberg in a recorded conversation the night of the Washington meeting, “It’s all beautiful. He’s very agreeable. No problem.” The extent of the Senator’s willingness to “try” was made abundantly clear in the Senator’s June 28 conversation with the sheik when he offered to use his influence with various government officials including the President. In fact, the record is barren of expressions by the Senator of any hesitation whatever in agreeing to use his influence to try to obtain Government contracts in order to secure financing for the mining venture.

Appellants take unwarranted comfort in one remark attributed to the Senator by Errichetti and in statements of Sandy Williams, Feinberg, and Katz. Errichetti, in a recorded conversation on June 27, related the June 19 conversation in the Senator’s Washington office in which he had told the Senator how important it was to be persuasive when the Senator met the sheik on June 28. Errichetti claims he said to the Senator, “You’re gonna fucking guarantee that fucking contract. He said ‘no way.’ ” If the jury credited this remark, which significantly was not mentioned by Senator Williams in his trial testimony, they were entitled to conclude that the Senator was demurring only to making a claim that he would “guarantee” a government contract; his willingness to use his influence to try to obtain contracts remained undiminished.

What Williams’ brief calls a “negative response” by Sandy Williams and Feinberg is their momentary uncertainty as to whether the Senator would try to obtain government contracts. Sandy Williams said on April 23, “Well, I don’t know about that.” Feinberg said on May 31, just before the Pierre Hotel luncheon, “Well, this I didn’t know until now I have to ask him that.” However, Feinberg’s very next sentence was, “I would assume, I know that he’s often opened up many doors. You understand what I’m talking about, and with his blessing [ — ].”

No more helpful to defendants is Katz’ comment to Weinberg in a recorded conversation on June 10, that the Senator “doesn’t use that power for any advantages.” The context makes clear that Katz was referring to the Senator’s reluctance to use power for leadership within the Senate. As Katz explained, “He’s not the kind of a guy like Long or Kennedy, where they’ve got the power and they use it.” When Weinberg then said, “Well he said he would get us the contracts you know,” Katz replied, “Oh there’s no question if he’s got an interest, he’ll do something like that, naturally.”

Even more unhelpful to appellants’ cause are the occasions on which, according to appellants, the Senator refused opportunities to receive unlawful payments, separate from the millions of dollars he agreed to accept for the financing and purchase of the mining venture. These episodes, in fact, provided the jury with additional evidence of a damning nature. The first episode concerns Weinberg’s July 9,1979, offer to Sandy Williams to pay the Senator $20,-000 in cash as “expense money.” Sandy Williams testified that he relayed the offer to the Senator on July 18. The Senator asked, “Sandy, do I have to be handed the money?” to which Sandy Williams answered, “Pete, I don’t want you to be handed the money.” The Senator then suggested that Sandy Williams “go and get the 20,-000” and agreed to split the money with him. The next day the Senator suggested that Sandy Williams send part of the cash to the Senator’s son who needed funds to purchase a car. When the undercover agents learned of the Senator’s unwillingness to accept the cash personally, they decided not to make the payment.

*615 The second episode occurred on January 15, 1980, when the Senator met with the sheik for the last time. The conversation was recorded. The sheik offered to pay the Senator cash in return for the Senator’s assisting him to immigrate and obtain permanent residence. The Senator refused, explaining “when I work in that area, that kind of activity, it is purely ... public.” But, despite having been offered a bribe, the Senator stated his willingness to help the sheik with his immigration problem because this would help the mining venture succeed. The Senator referred to his help as “a desirable thing to do for you, personally” and “part of creating something of value, bringing in that ore.”

Government Persuasion

Once Senator Williams expressed a willingness to agree to use his influence to try to obtain government contracts, Weinberg, acting for the Government, endeavored to make sure that when the Senator met with the sheik, he would spell out his willingness clearly and emphatically for the benefit of the sheik and the television camera. To achieve this objective, Weinberg enlisted Errichetti and Feinberg and then took on the assignment directly. On June 7, Weinberg told Errichetti, in a recorded conversation, “Let Tony [Agent Amoroso] and you speak to Senator ... all we want to hear from him is that he’s going to get us some government contracts.” On June 15, in a recorded conversation, Weinberg told a group of the Senator’s associates, including Errichetti and Feinberg, “The Senator’s gotta be told alright? In no [uncertain terms that he’s gotta move his fucking ass to get the goddamn government contracts.”

The messengers warmed to their task. In a recorded conversation on June 27 Errichetti gave a group of the Senator’s associates this account of a June 19 session he had had with the Senator in his Senate office:

When I went there, he didn’t say two fucking words. I got Pete by the fucking throat, I tell you about as close as I came in this office. Let me tell you something . .. don’t you go fucking this thing up. I got a chance to make a fucking million dollars .... All you’re gonna do is give a fucking speech like you never gave in your life .... You’re gonna fucking guarantee that fucking contract. He said “no way.”

He said, “no way.” I said you’re gonna fucking say it.... Never mind about doing it. You’re gonna fucking say it.”

At the same June 27 session, Feinberg reported, “I also told Pete that he after that won’t ever have to open his mouth.” In anticipation of the next day’s meeting with the sheik, Feinberg telephoned the Senator from the meeting and told him, “Eric [Errichetti] will talk to you before you go in and just like he said it[’]s a bullshit speech.”

On June 28, in a recorded conversation ten minutes before the Senator’s meeting with the sheik, Weinberg personally carried the message to the Senator in these words:

Forget the mine. Don’t even mention the mine. All you have to do is tell him, alright.

How high you are in the Senate. He’s interested in you.

Without, without you there is no deal. You are the deal. You put this together. You worked on this and you can get, you got the government contracts. Without me there is no government contracts.

[A]nd you tell him in no [uncertain terms without me there is no deal. I’m the man. I’m the man who’s gonna open the doors, I’m the man who’s gonna do this to use my influence and I guarantee this. Follow me?

All bullshit.

And that’s it, it goes no further, it[’]s all talk, all bullshit. That’s all he wants to hear.

It’s a walk-through. You should be out of there -in twenty minutes.

*616 You’re on stage for twenty minutes.

So you ready to go on-stage?

As we recounted in Myers II, supra, 692 F.2d at 839-40, this “coaching” by Weinberg, especially the June 28 episode, dismayed at least some Government prosecutors and precipitated a meeting of prosecutors and F.B.I. agents on August 9,1979, at which Weinberg was cautioned about such tactics.

Basis for a Finding of Predisposition

Notwithstanding the evidence of persuasion, the jury was fully entitled to find, from the totality of the evidence, that the defendants were “ready and willing” to commit the crimes charged as soon as the opportunity was first presented — to Feinberg on May 30 and to Senator Williams on May 31 — and at all times thereafter. At no time did either defendant hesitate or express any reluctance. Even if the jury believed that the Senator told Errichetti on June 19 that he could not “guarantee” government contracts, he continually expressed to the agents, and to his associates in private conversations, his willingness to use his influence to try to obtain the contracts for a venture in which he had a concealed interest. And the evidence fully entitled the jury to conclude that the defendants understood that the Senator’s agreement to help to obtain contracts was a condition for obtaining the loan and later the prospect of a sale. The jury was also entitled to consider his prompt willingness to accept half of the $20,000 in “expense” money that Weinberg discussed with Sandy Williams. And the jury could also consider his agreement to assist the sheik on an immigration problem as “part of creating something of value, bringing in that ore.”

The “coaching” carried out by Weinberg on June 28 and earlier through Errichetti and Feinberg was a factor to be considered by the jury in assessing predisposition, but these tactics do not detract from the sufficiency of the evidence of the Senator’s predisposition because the jury was entitled to conclude, as the Senator himself testified, that he paid little attention to what Errichetti and Weinberg told him and decided for himself what he would say at the crucial June 28 meeting with the sheik. 7 Indeed, the salient feature of the entrapment defenses asserted in this case is that both defendants testified and neither one even claimed that the persuasion of the government agents had prompted them to commit the crimes charged. 8 That omission may have been the inevitable consequence of their trial strategy of simultaneously denying criminal conduct and claiming entrapment. Whatever their motive, the defendants, by their testimony, made it relatively easy for the prosecution to sustain its burden of proof on predisposition.

On the entire record, Judge Pratt was correct • in ruling that the prosecution presented sufficient evidence of the defendants’ predisposition to permit the jury to reject their defense of entrapment. ..

B. Challenge to the Entrapment Instructions

Appellants contend that the entrapment instructions were erroneous in two respects. They first claim that Judge Pratt *617 removed the issue of entrapment from the jury’s consideration. The basis for this claim is the following portion of the charge:

You are not to be concerned with whether the prosecution or the F.B.I. agents or Mr. Weinberg acted legally or illegally, properly or improperly or whether the Abscam investigation itself was conducted properly. Those are questions which must be decided by ’me at an appropriate time.

The challenged sentences were not error. It was not any part of the jury’s function to decide whether the Abscam tactics were illegal or improper. Their function, as Judge Pratt told them, was to decide whether they were satisfied beyond a reasonable doubt that each defendant was predisposed to commit the crimes charged. And with respect to that question Judge Pratt instructed as follows:

In determining whether either defendant, if afforded a favorable opportunity, was predisposed to engage in the kind of criminal activity for which he is charged, you should look to the totality of the circumstances shown by the evidence, including the nature and extent of the inducement offered. In weighing the circumstances to determine this issue of predisposition, you may consider, among other things, the impact that the conduct of the government agents had on the de- . fendant, both directly and indirectly through its effects on the alleged co-conspirator Sandy Williams, George Katz, and Angelo Errichetti.

In the same vein, the sentence immediately preceding the passage complained of by the appellants instructed the jury as follows:

What the F.B.I. agents and Mr. Weinberg did should concern you only to the extent that you find that it affected the conduct and state of mind of a defendant or other participants in the conspiracy or only insofar as it may affect the credibility of any witness with respect to the matters before you.

The charge, taken as a whole, fully and fairly permitted the jury to consider the Abscam tactics as they related to the defense of entrapment.

The second claim arises from Judge Pratt’s response to a question asked by the jury during deliberations. The jury’s note read as follows:

Would you kindly explain the legal guidelines of a scam operation?

At what point do the practices or methods used in a scam become entrapment in regards to the law?

Does entrapment have to be established from day one of the indictment or can it be established further along in the operation?

This note precipitated an extended colloquy between Judge Pratt and counsel for both defendants. Attorney Koelzer, representing Williams, began by noting that part of the inquiry had misstated the burden of proof with respect to entrapment. Whereas the note had asked, “Does entrapment have to be established from day one of the indictment,” Koelzer correctly pointed out that, once inducement is shown, the Government has to prove predisposition. Taking the jury’s phrase, he maintained that predisposition had to be proved “ ‘from day one.’ In other words, from on or about the first day of January, 1979, these two men were predisposed beyond a reasonable doubt — .” Judge Pratt promptly interjected, “That is an overstatement.” Attorney Batchelder, representing Feinberg, pointed out that the question related to entrapment, not predisposition, and that entrapment can occur anytime during the scheme. Disputing Attorney Koelzer, he added, “So when he says that you have to have entrapment from square one, the answer is no, no, no, no.” He then suggested that the entrapment portion of the original charge be reread in full. Judge Pratt then ascertained that both counsel agre