The opinion of the court was delivered by: PRATT
"Abscam" is the code word given by the Federal Bureau of Investigation to an undercover "sting" operation conducted out of the FBI office at Hauppauge, Long Island, New York, under the supervision of agent John Good. Abscam began after Melvin Weinberg in 1977 was convicted in the Western District of Pennsylvania on his plea of guilty to fraud. In return for a sentence of probation Weinberg agreed to cooperate with the FBI in setting up an undercover operation similar to the London Investors, Ltd. "business" that Weinberg had used with remarkable success before his arrest and conviction in Pittsburgh.
For most of his life Weinberg had been a "con man" operating in the gray area between legitimate enterprise and crude criminality. For a number of years in the 1960s and early 1970s, he had been listed as an informant by the FBI and had provided his contact agent from time to time with intelligence about various known and suspected criminals and criminal activities in the New York metropolitan area and elsewhere, for which he had received in return occasional small payments of money. When he was arrested on the charge that led to his guilty plea, his informant status was cancelled, later to be reinstated after his guilty plea and agreement to cooperate with the FBI.
As agent-in-charge of the FBI's Long Island office Good was, at all times, the supervising agent for Abscam. Initially, Weinberg worked directly under special agent John McCarthy who later was replaced by special agent Anthony Amoroso. Both McCarthy and Amoroso worked undercover with Weinberg.
The general pattern of the "scam" or "sting" operation reflected Weinberg's earlier theme of representing wealthy Arab interests who had large sums of cash available for business opportunities in this country. When operating outside the law in Huntington, Long Island as London Investors, Weinberg's method had been a "front-end scam" for real estate investment wherein he would promise to obtain large loans for his victims and pick-up "appraisal" or "processing" fees of several thousand dollars, but without ever producing the final loans.
Although not identical to London Investors, the initial plan developed by Weinberg and the FBI was similar. Weinberg was to present himself as a business agent for "Abdul Enterprises", an organization backed by two extremely wealthy Arab sheiks looking for American outlets for their cash. He would pass the word of big money available for deals to other con men and people who move between the legitimate and illegitimate. If criminal proposals appeared, appropriate action would be taken by the FBI.
Weinberg and the agents set up business in an office in Holbrook, Long Island. The FBI's code name "Abscam" came from the first two letters of "Abdul", combined with the word "scam".
At first Abscam's focus was upon stolen and forged securities and stolen art work. Other "investment" opportunities soon presented themselves, and quickly the investigation turned itself toward Atlantic City and the gambling casinos which were then being proposed and constructed. As word spread about Weinberg's contact with virtually inexhaustible Arab funds, Angelo Errichetti, who was both mayor of Camden, New Jersey, and a New Jersey state senator, came on the scene. Errichetti claimed to have extraordinary influence in obtaining gambling casino licenses, power over the commissioners who issued the licenses, connections with organized crime, ability to deal in narcotics, guns and counterfeit securities, as well as intimate knowledge of which members of the New Jersey legislature could be bought.
Errichetti brought to the undercover agents Howard Criden, a Philadelphia lawyer seeking to promote a gambling casino in Atlantic City. In July of 1979, Errichetti and Criden met with Weinberg and Amoroso on the sheiks' yacht in Florida to discuss financing for the proposed casino that a client of Criden's wanted to build. In the course of the day Amoroso and Errichetti discussed the problem that might be faced by the sheiks should a revolution occur in their country and should they want to come to the United States as permanent residents. Amoroso told Errichetti that he thought cooperation of public officials would be needed and that money would be no problem.
Immediately after this conversation Errichetti and Criden formed an alliance in which they undertook to produce for Amoroso and Weinberg public officials who, in return for money, were willing to use their influence with the government on the sheiks' behalf. Meetings were arranged at various locations in New York, Philadelphia and Washington where the FBI monitored the proceedings with concealed videotape cameras and microphones. Where videotape was not feasible, audio recordings were used.
Cash payoffs were made by the undercover agents to six members of the House of Representatives, one immigration official, Mayor Errichetti, two members of the Philadelphia city council and, allegedly, to a member of the New Jersey Casino Control Commission. In addition to the transactions involving cash payments to public officials, Abscam was stringing along in separate discussions a number of persons, including Senator Harrison A. Williams, Jr. and Congressman John M. Murphy, in connection with promised investments on projects in which each was to hold an interest.
Toward the end of 1979 the credibility of Abdul Enterprises was beginning to wear thin, because the only cash produced were the $ 50,000 payments to congressmen, relatively small amounts when compared to the large business investments and bank deposits which had been promised by Weinberg and Amoroso. Security for the investigation was increasingly jeopardized as more and more people became aware of Abdul Enterprises and its activities, and the end of the investigation was clearly in sight by December, 1979. Because much of the revealed political corruption focused on the Philadelphia area, at the request of the U. S. Attorney for the Eastern District of Pennsylvania the investigation was extended for a brief period in order to provide an opportunity for uncovering there additional corruption at the local level.
Saturday, February 2, 1980, was scheduled as the wrap-up day of the investigation, the day on which Abscam was to "go public". A few days before that, some reporters got wind of the investigation and sought information about it, particularly from the U. S. Attorney in Philadelphia and from Thomas Puccio and his staff at the Eastern District Strike Force in Brooklyn. The government representatives managed to keep the publicity lid on until Saturday, February 2, 1980, when teams of FBI agents interviewed, almost simultaneously, many of those whose activities with Weinberg and Amoroso had marked them as either targets or key witnesses in the Abscam investigation.
Abscam's surfacing brought extensive publicity, enhanced, perhaps, by almost simultaneous surfacing of other FBI "sting" operations, "Brilab" and "Pendorf" in the south and west parts of the country, respectively.
As a result of the Abscam investigation, grand juries returned the following indictments:
1. U. S. v. Alexander Andrew Alexandro, Jr. and Alfred Carpentier, docket no. CR 80-00102, Eastern District of New York, tried before Hon. Mark A. Costantino in October, 1980.
2. U. S. v. Michael O. Myers, Angelo J. Errichetti, Louis C. Johanson and Howard L. Criden, docket no. CR 80-00249, Eastern District of New York, tried before the undersigned in August, 1980.
3. U. S. v. Raymond F. Lederer, Angelo J. Errichetti, Louis C. Johanson and Howard L. Criden, docket no. CR 80-00253, Eastern District of New York, tried before the undersigned in January, 1981.
4. U. S. v. Frank Thompson, Jr., John M. Murphy, Howard L. Criden and Joseph Silvestri, docket no. CR 80-00291, Eastern District of New York, tried before the undersigned in November, 1980.
5. U. S. v. Harry P. Jannotti, George X. Schwartz, Howard L. Criden and Louis C. Johanson, docket no. CR 80-00166, Eastern District of Pennsylvania, tried before Hon. John P. Fullam in September, 1980.
6. U. S. v. John W. Jenrette and John R. Stowe, docket no. CR 80-00289, District of Columbia, tried before Hon. John G. Penn in September, 1980.
7. U. S. v. Richard Kelly, Eugene Robert Ciuzio and Stanley Weisz, docket no. CR 80-00340, District of Columbia, tried before Hon. William B. Bryant in December, 1980.
8. U. S. v. Harrison A. Williams, Jr., Alexander Feinberg, George Katz and Angelo J. Errichetti, docket no. CR 80-00575, Eastern District of New York, tried before the undersigned in April, 1981.
9. U. S. v. Kenneth N. MacDonald and Angelo Errichetti, docket no. CR 81-00366. Indictment returned June 18, 1981, Eastern District of New York, to be tried before the undersigned in November, 1981.
10. U. S. v. Charles T. Walsh, Martin Gabey, Vincent J. Cuti, Jr., Nicholas Barbato, Angelo J. Errichetti, and Bowe, Walsh & Associates, docket no. CR 81-00218. Indictment returned April 9, 1981; superseding indictment returned May 21, 1981, Eastern District of New York, to be tried before the undersigned in September, 1981.
The court is informed that the Abscam grand jury is still sitting in the Eastern District of New York, and that still more indictments are anticipated.
In all cases tried to date, the principal evidence against most of the defendants consisted of the videotapes of their own words and actions. That evidence was supplemented by audiotapes of meetings and telephone conversations, testimony by co-conspirators and unrelated third party witnesses, and documents. There was also testimony by FBI agents of interviews with various defendants. In addition, Amoroso and Weinberg testified, but primarily to set the scene and provide a framework for introduction in evidence of the video and audio tapes. Some defendants were severed for trial; all who were tried, were found guilty by the jury on one or more counts.
Before considering and deciding the parties' claims on the instant motions, the court will review in more detail the circumstances of each of the three cases in which post-trial motions are now pending.
A. U. S. v. Myers, Errichetti, Johanson and Criden.
The Myers trial involved four defendants. Defendant Michael O. Myers was a member of the United States House of Representatives from Philadelphia. He was brought to the undercover operatives through defendant Angelo J. Errichetti and defendant Howard L. Criden, who made contact with Myers through Criden's law partner, defendant Louis C. Johanson.
Myers was the first congressman to take money in front of the Abscam TV cameras. He did so in a hotel room at Kennedy Airport on August 22, 1979 in the presence of Errichetti, Amoroso and Weinberg; Johanson and Criden had both travelled to Kennedy Airport for the occasion, but were not present when the money was given by Amoroso to Myers. All four defendants shared in the $ 50,000, with Errichetti receiving $ 15,000, Myers $ 15,000 and Johanson and Criden $ 20,000, part of which they shared with their law partner, Ellis Cook, who testified at the trial as an immunized witness.
The specific charges against the defendants were bribery (18 U.S.C. § 201(c)), criminal gratuity (18 U.S.C. § 201(g)), interstate travel for unlawful activity (18 U.S.C. § 1952), and conspiracy (18 U.S.C. § 371). Myers was charged with direct violations of the first three offenses; the other defendants were charged with aiding and abetting Myers' commission of the offenses. 18 U.S.C. § 2.
Myers testified on his own behalf and attempted to convince the jury that when he appeared on the videotape and received the money in return for his promise to introduce a private bill to enable the sheik to enter and remain in this country, he was only "play acting". He argued that he had no criminal intent under the federal statutes because he never intended ultimately to do the acts for which he was receiving the money. In other words, Myers' defense was essentially that although he was swindling the sheik, in no way was he compromising his congressional office. Resolution of that central fact question rested peculiarly within the jury's province. They had the opportunity to view Myers on the witness stand and to evaluate his conduct and statements before the TV cameras. In fact, the jury asked to review the key videotapes during their deliberations. Ultimately they resolved this credibility issue against Myers.
Under the court's instructions, the jury's verdicts of guilty against all defendants necessarily established the elements of the crimes charged.
On the bribery count, 18 U.S.C. § 201(c), the jury found that Myers received money from Amoroso in return for being influenced in his performance of an official act, and that he acted knowingly, wilfully and corruptly. The central issue presented to the jury was Myers' intent when he took the money. The jury's verdict determined that he took it with a specific intent to be influenced in connection with official matters relating to immigration, and that the other defendants aided and abetted him in his bribery.
Under the court's instructions the jury returned no verdict on the criminal gratuity count, 18 U.S.C. § 201(g), a lesser included offense of the bribery count (s 201(c)), because they had found all defendants guilty of bribery.
On the interstate travel count, 18 U.S.C. § 1952, the jury found that on August 22, 1979 Myers travelled in interstate commerce from Philadelphia to JFK airport in New York with intent to carry on the unlawful activity of receiving a bribe, that he thereafter performed an act either to carry on or promote the unlawful activity or to distribute its proceeds, and that he acted knowingly and wilfully. Again Errichetti, Criden and Johansen were found guilty as aiders and abetters.
On the conspiracy count, 18 U.S.C. § 371, the jury found that all four defendants conspired to defraud the United States of the faithful and honest service of Congressman Myers and to have him receive money as a bribe in connection with the immigration, residency and citizenship problems of the fictitious middle eastern businessmen.
Once the jury resolved the central credibility issue as to whether Myers was "play acting" before the cameras with no intent to have it affect his official conduct, the evidence against the defendants was overwhelming, and there is no basis to set aside any of the verdicts for insufficiency of evidence.
Trial of the Lederer events seemed like a rerun of the Myers story. Only the congressman was different. Raymond F. Lederer was also a member of the House of Representatives from Philadelphia. He was also brought to the undercover agents through the activities of Criden, Johanson and Errichetti. He, too, was given $ 50,000 in front of the TV cameras at a Kennedy Airport hotel in return for his promise to use his office and influence to assist the sheik in his immigration efforts. Lederer received only $ 5,000 of the total sum, however; the remainder was divided among Criden, Johanson and Errichetti.
The charges against the Lederer defendants were bribery (s 201(c)), criminal gratuity (s 201(g)), interstate travel for unlawful activity (s 1952), and conspiracy (s 371).
Lederer was tried alone. See note 1, supra. He presented a defense of entrapment which the jury resolved against him. The court instructed the jury that there was ample evidence of inducement and that the key entrapment issue for them to focus upon was whether or not Congressman Lederer was predisposed to commit the crimes charged. The jury's verdicts resolved that issue against Lederer on each count. Those verdicts also establish all the necessary elements of each of the charges beyond a reasonable doubt. Once again, the videotape evidence showing Lederer accepting the money in return for his assurances of action on the sheik's behalf in immigration matters was overwhelming.
C. U. S. v. Thompson & Murphy.
Frank Thompson, Jr. and John M. Murphy, United States congressmen from Trenton, New Jersey and Staten Island, New York, respectively, were the third and fourth members of the House of Representatives to be indicted in the Eastern District of New York. The facts and charges against them were more complex and subtle than those against Myers and Lederer. Their codefendants, Criden and Joseph Silvestri, were severed. See note 2, supra.
Although Thompson had received a $ 50,000 payment from the undercover agents in Washington in connection with his own promise to provide immigration assistance to the sheik, the charges against him under this indictment grew out of a payment made to Congressman Murphy in a hotel near Kennedy Airport. The government's evidence showed that Thompson had approached two other congressmen, John P. Murtha and defendant Murphy, encouraging them to meet with the sheik's representatives in return for "walking around money" that would be shared with Thompson. The Thompson-Murphy trial was complicated by an involved transaction wherein Murphy and a business partner sought from the sheik financing for the acquisition of a shipping company in Puerto Rico.
Murtha refused to accept the money, and no indictment was returned against him. The jury found that Murphy did accept the money offered to him, and while the jury found Murphy not guilty of bribery, apparently because they were not satisfied that he had fully committed himself to use his influence on the sheik's behalf, they did find Murphy guilty of receiving a criminal gratuity (s 201(g)), conflict of interest (s 203(a)), and conspiracy (s 371). Pursuant to the court's instructions, the jury did not return a verdict on the interstate travel count (s 1952) since they found Murphy not guilty on the bribery count.
Thompson was found guilty of bribery (s 201(c)), criminal gratuity (s 201(g)), and conspiracy (s 371). The jury found him not guilty on the conflict of interest charge (s 203(a)); Thompson was not charged with a travel act violation.
The key transaction in the Thompson-Murphy case was the transfer of $ 50,000 to Murphy in a briefcase on October 20, 1979. Under the court's instructions the jury's verdicts establish that each defendant knowingly received part of the money that was in that briefcase. The jury was instructed, "if a defendant did not receive part of that money then you must find him not guilty on this count (bribery) as well as on the other substantive counts."
Murphy did not testify, but through argument of counsel it was urged that Murphy did not know that there was money in the briefcase that was passed. Thompson did testify and claimed he knew nothing whatsoever of the Murphy transaction and denied having ever received any of its proceeds. Both contentions were rejected by the jury, which found each defendant guilty on some counts, and not guilty on others. Again, the videotape evidence against the defendants, corroborated by the testimony of Murtha and other non-government witnesses, established an overwhelming case. Weinberg and Amoroso provided their usual testimony linking together the various audio and video tapes.
III. PRETRIAL AND POST-TRIAL PROCEEDINGS
Extensive pretrial motions were made by all defendants in all three of these cases. Representatives Myers, Lederer, Thompson and Murphy all claimed legislative immunity under the speech and debate clause of the constitution, and pretrial appeals were heard by the Second Circuit on that issue. In all cases the district court's orders refusing to dismiss the indictments were affirmed. The key decision was written by Judge Newman of the Second Circuit in U. S. v. Myers, 635 F.2d 932 (CA2), cert. denied, 449 U.S. 956, 101 S. Ct. 364, 66 L. Ed. 2d 221 (1980).
A number of other issues were raised by pretrial motion seeking dismissal of the indictment on grounds of governmental misconduct, denial of defendants' due process rights in the conduct of the investigation, entrapment as a matter of law, and various other issues which during the course of the proceedings have been loosely referred to as the "due process" issues.
All three of these cases were originally assigned to Judge Mishler of this court. In his original disposition of the "due process" motions Judge Mishler reserved decision on the ground that the motions could be dealt with more effectively after presentation of the government's case at trial. He indicated that if he found any merit to the due process claims, he would conduct a hearing between the government's case and the defendants' case and then decide the questions raised. Four days before the Myers case was to go to trial, however, Judge Mishler recused himself and these cases were reassigned to the undersigned.
Just before the trial began the "due process" arguments were again advanced by defendants who reasserted their desire for a pretrial hearing. By that time, Judge Fullam in the Jannotti case in Philadelphia had conducted many days of pretrial "due process" hearings but had been unable to resolve the questions presented, which he finally reserved for post-trial determination. Under those circumstances, this court ruled that the due process hearing would be deferred until the jury in the Myers case retired to deliberate, and then any additional testimony that was required could be heard before the court sitting without a jury.
As matters developed, defense counsel in Myers argued persuasively that this court's modified plan was impractical; as a result, the "due process" claims of the convicted defendants in the Myers, Lederer, and Thompson cases were heard simultaneously in January and February of 1981, at a consolidated hearing held shortly after the jury had found Lederer guilty.
The Williams trial did not take place until April, 1981, after the first "due process" hearing had been concluded; consequently, a separate "due process" hearing was conducted in June, 1981, and the post-trial motions in Williams will be decided separately after counsel have had an opportunity to brief the issues. All parties in all four cases were given the opportunity on the "due process" issues to rely upon all of the evidence developed, not only before this court in both "due process" hearings and in all four trials, but also before Judges Fullam, Penn and Bryant in their respective trials and due process hearings, to the extent that such evidence might be brought to this court's attention before determination of the post-trial motions.
This court recognizes that the lengthy "due process" hearings permitted in these matters have extended well beyond what would be appropriate in the usual criminal case. Conscious decisions and express rulings were made permitting a wide-ranging scope of inquiry, seemingly endless cross-examination by defense counsel of a seemingly endless list of witnesses, and extensive use of hearsay and opinion testimony. In addition, the court ordered the government to produce many internal documents of the justice department and the FBI. At times the proceedings more resembled a series of depositions and requests for document production in a securities fraud or antitrust case than a hearing to determine whether the government had violated the "due process" rights of defendants in a criminal prosecution. In most instances, even when the court had doubts about the suitability of a line of questioning or whether a document should be produced, decision was resolved in favor of the defendants.
There were substantial reasons for such liberality to defendants, unprecedented in this court's experience. In the first place, from the very beginning it was apparent that these were significant cases to the defendants, to the FBI, to the justice department, to the public, and perhaps even to the very structure of our governmental system. Large sums of money had been spent in the Abscam investigation. High-ranking members of Congress had been indicted. The integrity of both the FBI and the justice department had been vigorously challenged. A novel investigative technique had been employed against members of Congress and others without prior specific suspicions.
And the entire matter had been given extensive national coverage in the news media, reflecting not only the importance of the criminal actions, but fundamental political and constitutional issues in which many segments of the population had an interest.
Second, since the United States Supreme Court has not yet expressly ruled on many of the legal issues presented, and the issues raised are novel questions of great public importance, final review by that body is a distinct possibility.
Third, it is advantageous for this court to have developed a complete record so that review on appeal can be final, without the need for a remand to develop further areas of possible inquiry. Already, enormous time and effort by all parties has been devoted to this case. Justice to the parties and to the public demands final resolution on one trip through the appellate review system if that is at all possible.
Fourth, the political, professional and business careers of the defendants have been destroyed or at least seriously compromised by the indictments, trials and convictions. Whatever final sentences might be imposed, the harm to these defendants from the mere fact of conviction was significant, thereby requiring meticulous review of every possible basis for vacating those convictions.
Fifth, although the cases before the undersigned were tried in the Eastern District of New York under the jurisdiction of the Second Circuit, all but one of the defendants reside in New Jersey or Pennsylvania under the jurisdiction of the Third Circuit. A serious claim was made by most of the defendants that the government had wrongly manufactured jurisdiction in the Eastern District of New York by scheduling the payoffs in this district to the prejudice of those defendants who reside in the Third Circuit. Since there appears to be some conflict between the views of the Third Circuit and the Second Circuit on "due process" problems, compare, U. S. v. Twigg, 588 F.2d 373 (CA3 1978) and Government of Virgin Islands v. Smith, 615 F.2d 964 (CA3, 1980) with U. S. v. Turkish, 623 F.2d 769 (CA2 1980) and Grochulski v. Henderson, 637 F.2d 50 (CA2 1980), cert. denied, 450 U.S. 927, 101 S. Ct. 1383, 67 L. Ed. 2d 358 (1981), it appeared fair to both the government and the defendants to explore all factors that even remotely suggested some possibility of relief to the defendants under the precedents of either the Second or the Third Circuit.
Seventh, the nature of the claims asserted by defendants-over-involvement of the government in creating the crimes charged, specific governmental misconduct during the course of the investigation, and suppression of exculpatory information during the course of the investigation and trial-dealt primarily with factors beyond the direct knowledge of the defendants, so that whatever evidence could be developed would have to come by way of the hearing from government records and government witnesses.
Eighth, in the Abscam case tried in Philadelphia, U. S. v. Jannotti et al., Judge Fullam had conducted further "due process" hearings after the convictions and had found reasons for dismissing the indictments there. U. S. v. Jannotti, 501 F. Supp. 1182 (ED Pa.1980) (appeal pending). See discussion of Judge Fullam's decision in section VII, infra. In the course of his "due process" hearings, Judge Fullam at many points foreclosed testimony about the New York cases, and restricted his inquiry to matters that bore directly upon the Philadelphia phase of Abscam, a phase that focused primarily on local officials during a period of some 10 days at the very end of the investigation. In the present cases, which involved elected federal officials engaged in activities over some seven months, the need for a more wide-ranging inquiry seemed compelling.
In short, the procedures followed by this court and the rulings made throughout the course of the due process hearings were guided by a sensitive concern for the rights of these defendants, an awareness of the unsettled legal principles governing disposition of defendants' claims, and an appreciation of the public importance of the Abscam investigation in general and the conduct of these defendants in particular. Together, these factors persuaded the court that wherever possible, consistent with legitimate governmental needs for continued secrecy, open disclosure of the Abscam investigation and the government's handling of it was both necessary and desirable.
As a result of the foregoing, the court has before it, and has considered in making this decision, all of the testimony developed in four weeks of the Myers trial, three weeks of the Thompson trial, one week of the Lederer trial, five weeks of the Williams trial, three weeks of the first due process hearing, and one week of the second due process hearing, making altogether approximately 17 weeks of trial presided over by this court represented in approximately 20,000 pages of transcripts. In addition, the court has reviewed all of the testimony in the due process hearings before Judge Fullam, and those selected portions of the trials before Judges Fullam, Bryant and Penn, as well as the due process hearing before Judge Penn, that counsel have focused upon. The many volumes of the FBI's Abscam files from both headquarters in Washington and the Brooklyn-Queens office were reviewed in camera, resulting in directions to the government to produce all or parts of many documents. The court has also reviewed and considered the government's pre-prosecution memoranda, the so-called "Del Tufo memorandum", the "Blumenthal report" on publicity leaks, a large number of video and audio tapes and transcripts, and hundreds of other exhibits.
The post-hearing memoranda of counsel constitute a stack of briefs some six inches high. An even larger stack of motion papers was created by the pretrial, prehearing, and mid-hearing submissions of counsel, many of which were incorporated by reference into their final submissions. All of those papers have been read and carefully considered by the court.
With that background, the court next turns to an outline of the specific claims of the parties and, finally, to a discussion of the merits of those claims together with the court's findings and conclusions, where necessary, with respect to those claims.
A. Claims of The Myers Defendants.
The four defendants in Myers have filed joint briefs in support of all post-trial motions and thus their arguments are referred to collectively. The Myers defendants essentially claim that the Abscam investigation did not uncover criminal conduct, but instead created or instigated any criminality that may be present, and that improper delegation of authority, lack of supervision, inadequate documentation and the reward system used by the government created such doubt as to the truth, reliability and integrity of the verdict as to require dismissal of the indictments. The Myers defendants urge, in effect, that notwithstanding their failure to claim entrapment at the trial, they are not precluded from now asserting a defense of "entrapment as a matter of law", or "objective entrapment". They urge that many states have recognized and legislatively adopted objective entrapment and that the federal courts should constitutionalize that trend.
More particularly, the Myers defendants argue that the government did not infiltrate or uncover ongoing criminal activity, but instead created such activity; that the government offered overwhelming inducements to the Myers defendants; that Abscam was conducted without adequate safeguards, particularly with respect to supervision of Weinberg; that the techniques employed by the government in Abscam were "outrageous" within the meaning of Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976); that there was entrapment as a matter of law; that the compensation of Weinberg as an informant is unconstitutional; that it is improper to undertake a general investigation into the corruptibility of members of a particular branch of government without some "well-grounded basis"; that as a matter of constitutional law the "so-called due process defense or objective strand of the entrapment defense" should be available to a defendant subjected to "outrageous governmental investigatory action"; that the destruction, erasure or unexplained loss of tapes requires an inference that the tapes contained exculpatory material; and that in an undercover investigation the verbal assertion by a potential target that he or she desires to act within the law forecloses any further investigation of that individual.
Defendant Thompson advances arguments that are similar, although more focused. He urges what he characterizes as "the doctrine of governmental overreaching" as requiring dismissal here because the government instigated rather than discovered the crimes and because its selection of "targets" was arbitrary and unprincipled. Thompson further urges that the indictment should be dismissed because in the course of the Abscam investigation there were widespread and continuous violations of laws, regulations and guidelines in the control and monitoring of the informant Weinberg, in using Criden and other "middle men", in lacking reasonable suspicion before bringing public officials before the video cameras, and in ignoring or disregarding "red flags" and substantial legal questions that arose. Thompson further argues that inadequate documentation of the investigation, unauthorized disclosures of information to the press by the government, attempts by the government to intimidate witnesses, failure to observe the requirements of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1973), and other possible violations of law require dismissal of the indictment against him. Finally, Thompson urges that the circumstances of his involvement with Abscam constitute entrapment as a matter of law.
Defendant Murphy argues that the government's conduct of the Abscam investigation violated principles of fundamental fairness because the justice department targeted congressmen in violation of principles of separation of powers and the speech or debate clause, failed to take into account the nature of Murphy's duties as a legislator, and failed to consider the right of all citizens to petition Congress and Congressman Murphy for redress of grievances. Murphy further argues that his prosecution was the product of governmental overreaching in the creation and promotion of crime and that the government's outrageous creative activity was designed to lure Murphy into criminality without any indication of his predisposition or prior agreement to engage in wrongdoing. He further argues that as to him the government deliberately or recklessly created ambiguous and misleading evidence of criminality. Murphy's final argument focuses upon claimed misconduct by the government in the Abscam investigation and prosecution, and argues that the misconduct caused him specific prejudice. He contends that dismissal of the indictment would not harm any legitimate law enforcement purpose, but on the contrary would serve as a deterrent against any future Abscam-type abuses.
Defendant Lederer claims he was deprived of due process and that he was the victim of entrapment as a matter of law because Abscam constitutes outrageous conduct on the part of government agents in that they created rather than discovered crime; allowed Weinberg and Amoroso to act in an uncontrolled fashion; manufactured jurisdiction over defendants; selected a venue that would avoid the Third Circuit's decision in U. S. v. Twigg, 588 F.2d 373 (CA3 1978); provided improper incentives for Weinberg; appealed to the civic duty of targets to involve them in Abscam; improperly used "middle men"; attempted to mislead the court and jury about the creation of the "asylum scenario"; permitted an FBI agent, the government prosecutor and Weinberg to separately contract to write books about Abscam; failed to safeguard against entrapment; trapped Lederer into giving a false statement to the FBI; withheld evidence of Weinberg's criminal record; leaked untruthful stories to the press in order to interfere with cooperation among codefendants; destroyed evidence; withheld prior statements of Amoroso and Weinberg; violated the principles of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1973); and instructed agents to testify falsely and to withhold information at the trial. Lederer further argues that he was entrapped as a matter of law.
E. Claims of the Government.
The government argues that the Abscam investigation in its totality was both appropriate and constitutional, that the rights of none of the defendants were violated by the investigation and that there was no exculpatory evidence withheld from the defense. In the government's view, all of the defendants' "due process" contentions basically fall into two categories, neither of which has validity: governmental "over-involvement" in the creation of criminal activity, and the government's failure to take measures to ensure that innocent people would not be wrongfully ensnared and convicted. The government urges that defendants' claims
cannot be considered in the abstract, for the facts as developed at the trials reveals (sic) a collection of unscrupulous public officials who were never "victimized" by the informant or the intermediaries and whose guilt was clear because they were clearly guilty, not because they had been manipulated to appear in compromising positions before the cameras. Government's memorandum at 1.
The government further argues that the Abscam investigation was pursued in good faith and conducted professionally in view of the circumstances, that no right of any defendant was infringed and, finally, that whether an operation such as Abscam is "good" or "bad" is a matter to be decided initially by the executive branch of our government, subject to legislation by Congress, but does not present judicial questions under the due process clause.
As an alternative to dismissal of the indictment, all defendants also move for a new trial on various grounds, including insufficient evidence, errors in the charge, and Brady violations. See section IX, infra.
V. GENERAL DISCUSSION OF BASIC LEGAL CONCEPTS
Whenever government agents, in carrying out their law enforcement functions, assist criminals or participate with them in their criminal activity, questions arise as to the propriety or legitimacy of the government's conduct and as to whether the law should punish a person for engaging in governmentally instigated criminal activity. The answers must draw on considerations of philosophy, psychology, statutory construction, constitutional law, practical needs of law enforcement, and even undifferentiated visceral feelings about right and wrong.
Much of the judicial discussion of these questions has focused on the ideas generally encompassed in the concept "entrapment". Although virtually all judges have agreed that an innocent person who was "entrapped" by government agents into committing a criminal act should not be convicted, there is less agreement on the proper principles underlying the concept of entrapment and on what factors do or do not constitute entrapment.
Under the so-called "subjective" approach to the defense of entrapment, two factors must be considered: Was the defendant's criminal conduct "induced" by the government agent? If it was, was the defendant "predisposed" to commit the crime? This subjective approach focuses upon the conduct and propensities of the particular defendant in each case. It is for the jury to determine, first, whether there is sufficient evidence of "inducement" and, if so, whether the government has proven beyond a reasonable doubt that the defendant was "predisposed".
In theory, the subjective approach to entrapment is grounded in legislative intent: if an otherwise innocent person was entrapped by a government agent into performing a criminal act, the legislature never intended that his conduct be punished. Sorrells v. U.S., 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932); U.S. v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973).
"Objective" entrapment is a term applied to either of two different concepts. Under one view of "objective" entrapment the focus is not upon the propensities and predispositions of the individual defendant, but instead upon an objective standard of "persons who would normally avoid crime and through self-struggle resist ordinary temptations", Sherman v. U.S., 356 U.S. 369, 384, 78 S. Ct. 819, 826, 2 L. Ed. 2d 848 (Frankfurter, J., concurring), in order to determine whether the inducement tendered by the government agent was unacceptable.
The second view of "objective" entrapment focuses upon the conduct of the government agents in each particular case to determine whether that conduct "falls below standards, to which common feelings respond, for the proper use of governmental power". U.S. v. Russell, 411 U.S. at 441, 93 S. Ct. at 1647 (Stewart, J., dissenting). However, and despite eloquent arguments in several dissenting and concurring opinions, Sorrells, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413; Sherman, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848; Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366; and Hampton, 425 U.S. 484, 486, 96 S. Ct. 1646, 1648, 48 L. Ed. 2d 113 the "objective" approach to entrapment has never been accepted by any majority of the Supreme Court.
Some confusion has arisen because "objective" entrapment, the view that over-involvement of the government in the commission of a crime requires dismissal of an indictment, has also been called "entrapment as a matter of law". Further semantic confusion has arisen, however, because the term "entrapment as a matter of law" has also been applied to a situation where, on the evidence presented, no jury could find beyond a reasonable doubt, that the defendant was predisposed to commit the crime that was induced by the government agents. Sherman v. U.S., 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848; see U.S. v. Jannotti, 501 F. Supp. at 1200. Under that view, "entrapment as a matter of law" simply means that insufficient evidence was presented to warrant the case going to the jury on the issue of defendant's predisposed state of mind.
Entrapment is a difficult, conceptually slippery, and philosophically controversial concept. Ever since Sorrells v. U.S., 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932), the Supreme Court has divided sharply on the standards to be applied in reviewing the conviction of a person whose criminal conduct was in part facilitated by government agents. In U.S. v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973), a Supreme Court majority of five claimed to adhere to Sorrells as a precedent of long standing that had already once been reexamined and implicitly reaffirmed in Sherman v. U.S., 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958). Writing for the court in Russell, Justice Rehnquist pointed out that "since the (entrapment) defense is not of a constitutional dimension, Congress may address itself to the question and adopt any substantive definition of the defense that it may find desirable." 411 U.S. at 433, 93 S. Ct. at 1643 (footnote omitted).
Four Supreme Court decisions are central to the issue of entrapment. Sorrells, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413; Sherman, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848; Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366; and Hampton, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113. Familiarity with the majority, concurring, and dissenting opinions in those decisions is assumed. From those decisions as a whole it appears that the "objective" view of entrapment as espoused by Justice Brennan in Hampton has never been accepted by a majority of the Supreme Court. The "subjective" view has been adopted in Sorrells, Sherman and Russell and appears to be still acceptable to a present majority of the current Supreme Court bench, at least in most cases, where a defendant's predisposition has been established.
Hampton presents a more complex picture. There, three justices voted to solidify the subjective approach so that under no circumstances, regardless of how egregious the governmental conduct, could a defendant who was found by a jury to have been predisposed to commit the crime have the indictment dismissed for governmental misconduct. 425 U.S. 484. Three other justices believed that the circumstances showed that governmental officials had purposefully created the crime in Hampton and that such creative activity by governmental officials required dismissal despite defendant's predisposition to commit the crime. 425 U.S. at 495, 96 S. Ct. at 1652-53 (Brennan, J., dissenting). Two other justices in an opinion written by Justice Powell found that Hampton was controlled by Russell, that Hampton had not even raised the issue of predisposition, and that his entrapment defense, therefore, failed for lack of proof. 425 U.S. at 490, 96 S. Ct. at 1650 (Powell, J., concurring). Justice Powell declined, however, to close the door entirely upon the possibility of court intervention in an extreme case. He refused to accept the premise "that, no matter what the circumstances, neither due process principles nor (the Supreme Court's) supervisory power could support a bar to conviction in any case where the Government is able to prove predisposition." 425 U.S. at 495, 96 S. Ct. at 1653. In footnote, Justice Powell added:
I emphasize that the cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction. This would be especially difficult to show with respect to contraband offenses which are so difficult to detect in the absence of undercover Government involvement. One cannot easily exaggerate the problems confronted by law enforcement authorities in dealing effectively with an expanding narcotics traffic * * * which is one of the major contributing causes of escalating crime in our cities. * * * Enforcement officials, therefore, must be allowed flexibility adequate to counter effectively such criminal activity. 425 U.S. at 496 n.7, 96 S. Ct. at 1653 n.7 (citations omitted).
Thus as the Court divided in Hampton, with Justice Stevens taking no part: three judges would make predisposition the only issue; three judges would eliminate predisposition entirely; and the decisive two concurring votes, expressed in Justice Powell's opinion, indicate that predisposition is not only relevant but will be dispositive in all but the "rare" case where police over-involvement in the crime reaches "a demonstrable level of outrageousness". Since Hampton had been predisposed, and since the police involvement in his crime was not "outrageous", his conviction was affirmed. The three dissenting judges would eliminate consideration of predisposition entirely and would instead devote their attention only to governmental misconduct. While they would prefer to be more restrictive of permissible governmental involvement in crime than Justice Powell's test of "outrageousness", the dissenters' position a fortiori accepts the "outrageousness" standard, making it the point in the continuum of escalating police involvement in crime where five members of the present court agree that a conviction should be overturned and an indictment dismissed.
Until further word from the Supreme Court, therefore, as a matter of strict legal precedent, this court must assume that while the subjective view of entrapment is the general guide, it is nevertheless subject to an overriding exception that under either the court's supervisory power
or the due process clause, a predisposed defendant cannot be convicted if police over-involvement ...