Document text
1 ,
l
F.L
92| .
p
vi.s
I
1 .a
.92
Iv
.
.
E f
92.
V .
¢
92
92_.¢'/I~ 9 p
UNITED STATES DISTRICT COURT m
EASTERN DISTRICT OF NEW YORK- >.
I
92
I4
~ - ~ - - - ~ ---X 9
UNITED STATES OF AMERICA DOCKET NO CK 8O~OOZ49- ;
1 against -
MICHAEL O. MYERS
ANGELO J. ERRICHETTI
LOUIS C. JOHANSON and
HOWARD L. CRIDEN, .
Defendants.
- - - - - - - -- - - - - x . .,
UNITED STATES OF AMERICA I DOCKET NO- CR 3O~0OZ53
; . - against - ' V
RAXMOND.F. LEDERER
ANGELO J. ERRICHETTI
LOUIS C. JOHANSON and
HOWARD L. CRIDEN,
1 Defendants.
_ _ _ - --I -. _ _ - _ -. - .. - -92 - X MI
.=
2
UNITED STATES OF AMERICA DOCKET NO. CR 80-00291
- against ' L
FRANK THOMPSON,'JR.
JOHN M. MURPHY
HOWARD L. CRIDEN and
JOSEPH SILVESTRI,
Defendants.
t1- - - - - - - ~ - - - - - - ~-;x ~
9
MEMORANDUM AND ORDER DENYING "DUE PROCESS"
AND OTHER POSTTRIAL MOTIONS _
;
E
>F
Q
: /
c
.»
:
L ~ 92.
C
I 924
1
/
92
-. t. .>APPEARANCES:. 92
UNITED STATES ATTORNEY
UNITED STATES DEPARTMENT OF JUSTICE Y
ORGANIZED CRIME STRIKE FORCE
by Thomas P. Puccio and Lawrence
Attorneys for the Government
35 Tillary Street
Brooklyn, New York l1201r I
HUNDLEY G CACHERIS, P,C.
by Plato Cacheris and Larry S. G
Attorneys for Defendant Michael
1709 New York Avenue, N.W. .
Washington, D. C. 20006
JOKELSON G ROSEN
by Neil Jokelson and Rochelle Ne
Attorneys for Defendant Michael
215 South Broad Street
Philadelphia, Pennsylvania 19107
BROWN, BROWN & FURST
by Raymond A. Brown and Henry F.
Attorneys for Defendant Angelo J
Gateweay One -
Newark, New Jersey 07102 ~
JOHN J. DUFFY
Attorney for Defendant Louis C.
2800 Two Girard Plaza "
Philadelphia, Pennsylvania 19107
MELROD, REDMAN G GARTLAN '
By Richard Ben~Veniste and Neil
Attorneys for Defendant Howard L
1801 K. Street, N.W. -
Washington, D. C. 20006 .
JAMES J. BINNS
Attorney for Defendant Raymond F
2800 Two Girard Plaza k
Philadelphia, Pennsylvania 19102
BONGIOVANNI E REAGOSO
Attorneys for Defendant Raymond
1411 Walnut Street, Suite 500
Philadelphia, Pennsylvania 19102H. Sharf
ondelman
O. Myers
wman
O. Myers
Furst
. Errichetti
s. -
Johanson
I. Levy -
. Criden
. Lederer
F. Lederer
-.x
>
,1. A 2
-a --.._.._...-_-
.______,;_-
' .92.
.1
».-
1
I1
I
I
r
I
i
i
1
I
II
E 1i
STEPHEN B. KAUFMAN ~
Attorneys for Defendant Frank Thompson, Jr.277 Park Avenue ~ '
New York, New York 10017
ARNOLD G PORTER
By Daniel A. Rezneck, Clifford D. Stromberg
and Robert N. Weiner
Attorneys for Defendant Frank Thompson, Jr.
1200 New Hampshire Street, N.W.
Washington, D. C. 20036 '
TIGAR, BUFFONE G DOYLE
By Miqhael E. Tigar, Samuel J. Buffone
and Linda Huber
Attorneys for Defendant John M. Murphy
1302 18th Street NW
Washington, D. C. 20036
92
. /1/K
Q I
O
/.
KnIII
IV.
J,O ~ O I
TABLE OF CONTENTS
ABSCAM
THE SUBJECT CASES
A. US v. Myers, Errichetti, Johanson
and Criden_
B- US v. Leaerer.
C. US v. Thompson and Murphf
PRETRIAL AND POSTTRIAL PROCEEDINGS f
DEFENDANTS' CLAIMS -~~~~-~~
A. Claims of the Myers Defendants.
B. Thompson's Claims.
C. Murphy's Claims.
D. Lederer's Claims.
E. Claims of the Government
GENERAL DISCUSSION OR BASIC LEGAL CONCEPTS
A. Entrapment. _ .
B. 0utrageousness_ '
SPECIFIC DISCUSSION OF DEFENDANTS CLAIMS
A. General Nature of Abscam. "
1. Objective Entrapment and Entrapment
as a Matter of Law.
Outrageous Government Conduct.
Selection of Targets. '
. Size of Inducements.
. Need for Investigative Tactic.
Lack of ReliIability,_Page
6
14
14
17
18
Z2
31
31
32
33
_s4
35
37
37
43
49
49'
49
52I
I
I
A
Table of Contents contd.!' Page
VII.
VIII
IX.
X.B. Specific Operation of Abscam.92
11 Inadequate Safeguards.
2. Missing Tapes.
. Verbal Insulation.
Violations of Laws; Regulations,
> and Guidelines.
. "Red Flags". ' ~
. Use of Middlemen.
-. Book-writing. '
- The "Asylum" Scenario.
C. Weinberg and his Conduct.
> l. Weinberg's Criminal Background.
2. Weinberg's Finances. -
D; Miscellaneous Claims.
" 1. FBI Interview of Lederer.
. Entrapment of Lederer.
Publicity Leaks.
JUDGE FULLAMS DECISION IN USIV. JANNOTTI
AND SCHWARTZ
DEL TUFO, PLAZA AND WEIR g
MOTIONS FOR JUDGMENTS 01-= ACQUITTAL AND ~
NEW TRIALS
A. The Myers Motions.
B. Murphy's Motions.
C. Thompsonls Motion.
CONCLUSION
FOOTNOTES
.-.2 Instructing Agents about Testimony.65
65
68
70
71
76
82
88
92
93
93
95
ss
as
99,
101
102
1015
11$
118
118
122
126
129
152v
5
I
i
>v i
I
1
I 1
1
> ......;_. ...., ... .~.- .',. , ..l__,.,_ _ _ ,
PRATT, J:
I. ABSCAM
"Abscam" is the code word,
Bureau of Investigation to an underc
conducted out of the FBI office at H
New York, under the supervision of aa- - - .' , . e ...- -_:
U I F
given by the Federal
over "sting" operation
auppauge, Long Island,
gent John Good. Abscam
began after Melvin Weinberg in 1977 was convicted in the
Western District o£ Pennsylvania on his plea of guilty
to fraud. In return for a sentence
agreed to cooperate with the FBI in
operation similar to the London Inve
that Weinberg had used with remarkab
arrest and conviction in Pittsburgh.
For most of his life Weinb
man" operating in the gray area between legitimate enterprise.
and crude criminality. For a number
and early 19703, he had been listed
the FBI and had provided his contact
time with intelligence about various
criminals and criminal activities in
tan area and elsewhere, for which he
occasional small payments of money.
on the charge that led to his guilty
status was cancelled, later to be re
92of probation Weinberg
setting up an undercover
stors, Ltd. "business"
le success before his
erg.had been a "con .
of years in the 1960s
92c 41- .
as an informantzby 3
agent from time to
known and suspected
the New York metropoli
had received in return
When he was arrested
plea, his informant
instated after_his
~ , 16
1
<
x
I
I
92
. 4920 t 0
l Z
guilty plea and agreement to cooperate with the FBI.
As agentin-charge of the FBI's Long Island o£fice_ ~
Good was, at all times, the supervising agent or Abscam. 'y
Initially, Weinberg worked directly under special agent _
John McCarthy who later was replaced by special agent Anthony i
Amoroso. Both McCarthy and Amoroso worked undercover with Q
Weinberg. -
The general pattern of the "scam" or "sting". _ .
operation reflected Weinberg's earlier theme oi representing 2
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 Inves-
tors, Weinbergs 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. E _
1 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 h.
deals to other con men and pe0ple_who move between the
legitimate and illegitimate. If criminal proposals appeared,
0- t _
e 0 t
x . .8
appropriate action would be taken by the FBI.
Weinberg and the agents set up business in an@ ~
office in Holbrook, Long Island. The'PBI's code-name "Abscam"i
came from the first two letters of "Abdul", combined with.
the word "scam". » I ~
x 2
p _ I
»» At first Abscam's focus was upon stolen and forged '3
bl. securities and stolen art work. Other "investment? opportuni t
*1 . >
ties soon presented themselves, and quickly the investigation
v turned itself toward Atlantic City and theigambling casinos
p which were then being proposed and constructed. As word
==*?' Q_ spread about Weinberg's contact with virtually inexhaustible J
Q 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 commis- *
~ sioners who issued the licenses, connections with organized
crime, ability to deal in narcotics, guns and counterfeit u
,. I 92-
-, securities, as well as intimate knowledge of which members -
2
E of the New Jersey legislature could be bought. _
, E .
- Errichetti brought to the undercover agents Howard
Criden, a Philadelphia lawyer seeking to promote a gambling
;casino in Atlantic City. In July of 1979, Brrichetti and
Criden metgwith Weinberg and Amoroso on the sheiks' yacht
in Floridagto discuss financing for the proposed casino
" ea - -_ 1* *: ,_ , W
92! 92
MG O
- J_ ,9
that a client of Cridens wanted to build. In the course
of the day Amorosoranrirrichefti disEns§e*the*probIem* *T=T*T*
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 Brrichetti
that he thought cooperation of public officials would be
needed and that money would be no problem. I
Immediately after this conversation Brrichetti
and Criden~formed an alliance in which they undertook to 1
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 microphonesl 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 immigra~
tion official, Mayor Errichetti, two members of the Philadel-
phia city council and, allegedly, to a member of the New
Jersey Casino Control Commission. In addition to the trans-
actions 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
-
t_ _ _.-._ - » V»-I ' _ _
/ 92
v.
i /
92
~..10
investments on projects in which each was to hold an inter-
est.
Toward the end of l979 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 businessit
investments and bank deposits which had been pronised 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. ' d
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 informa-
tion 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
. . __-.... .......... ...t._....
Pr 924
-._, .-..._. _.. . . . , _ . _ _ _ 92,>_ 92 __ _,.-' ¢ s 19.
r A
"J g 11
Saturday, February 2, 1980, when teams of FBI agents inter ~"
_viewed, almost simultaneously, many of those whose activities
with Weinberg and Amoroso had marked them as either targets ~'
or key witnesses in the Abscam investigation. A
Abscam's surfacing brought extensive publicity,
enhanced, perhaps, by almost simultaneous surfacing of
_ _ -10 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 ,
t juries returned the following indictments: '
T 1. US v. Alexander Andrew Alexandre, Jr. and
Alfred Carpentier, docket no. CR 80-00102, Eastern District
of New York, tried before Hon. Mark A- Costantino in October,
1980. Z _
2. US v. Michael 0. Myers, Angelo J. Errichetti,
- Louis C. Johanson and Howard L. Criden, docket no. CR 80- K
00249, Eastern District of New York, tried before the under-I -
signed in August, 1980. _
3. US v. Raymond F. Lederer, Angelo J. Brrichetti,
louis C. Johanson and Howard L. Criden, docket no. CR 80-
1,00253, Eastern District of New York, tried before the under-
1/signed in January, 1981. _ X '
92
92
1 5* w_ - H _ . 1
/"92.
92_..-9'12
4. US v. Frank Thompson, Jr., John M. Murphy,
Howard L. Criden and Joseph Silvestri, docket no. CR 80-
. ' _ ml
00291, Eastern District of New York, tried before the under- ,
2/signed in November, 1980. ~ I 1
. : * v ,
5. US v. Harry P. Jannotti, George X. Schwartz,»
j . y 1
Howard-L. Criden and Louis C. Johanson, docket no. CR 80~ ' P
00166, Eastern District of Pennsylvania,/tried before -
3 ,
Hon. John P. Fullam in September, 1980.-
6. US 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. US 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. US v. Harrison A. Williams, Jr., Alexander_ 7
Feinberg, George Katz and Angelo J. Errichetti,-docket
no. CR 80-00575, Eastern District of New York, tried before-
4/
the undersigned in April, 1981.
9. US v. Kenneth N. MacDonald and Angelo Erri
chetti, docket no. CR 81-00366. _Indictment returned June
18; 1981, Eastern District of New York, to be tried before
the undersigned in November, 1981. ~
~
92 ,,_ _~ . .,=-..
r 92-92
K
. 92
~_.,A _ x . . ~ .
U I
L3
10. US v. Charles T. Walsh, Martin Gabey, Vincent
J, Cuti, Jr., Nicholas Barbato, Angelo J. Errichetti, and -
Bowe, Walsh 5 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
5/
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. A E
. . , - 4
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 supplement-'
ed by audiotapes of meetings and telephone.conversations, t
testimony by co~conspirators and unrelated third party
witnesses, and documents. There was also testimony by
FBI agents of interviews with various defendants. In addi
tion, 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.
~'~ ~
I
I
ri
i
X
5]5
E
E
*@
I
F
I
A
1
92
i
1
rY.fi I _* . _ . 1*-~: '- 1, . ~.,- ,1 = >_.;'. -. .~.92. <0 0 A A
//Q .1,
,-
.II. THE SUBJEQT CASES t
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 postetrial motions are now pending. *
. I i
A. US v. Myers, Errichetti, Johanson_and_Criden;
The Myers trial involved four defendants. Defen-
dant Michael O. Myers was a member of the United States
/ - I
- House of Representatives £rom 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 r
in front of the Abscam TV cameras. He did so in a hotel
room at Kennedy Airport on August 22, I979 in the presence
of Errichetti, Amoroso and Weinberg; Johanson and Criden-
had both travelled to Kennedy Airport for the occasion,
i
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
f 92.
..*1 92 l5
law partner, Ellis Cook, who testified at the trial as '
an immunized witness. l
_ n
The specific charges against.the defendants were _
bribery 8 USC §20l ¢!!, Criminal gratuity 8 US¬>§Z0l g!!,
}
interstate travel for unlawful activity 8 USC $1952!,
1
13and conspiracy 8 USC §37l!. Myers was charged with direct: 1, x
violations of the first three offenses; the other defendants -Z t
were charged with aiding and abetting Myers"commission., ;
of the offenses- 18 USC §Z. » tI
1
i
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 X
defense was essentially that although he was swindling T "
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 opportun--_
ity 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
»- .
. - /'92
'-.are i 0
deliberations. Ultimately they resolved_this credibilityiw *:
1
1F 7'" < . U
. .issue against Myers; "' " ' 1 '
»
Under the court's instructions, the jury's verdicts
of guilty against all defendants necessarily established »
the elements of the crimes charged. l K
On the bribery count, 18 USC §20l c!, the jury' 1
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. _ é _> ~ I .
Under the court's instructions the jury returned
no verdict on the-criminal gratuity count, 18 USC §20l g!, _
a lesser included offense of the bribery count §2Ol c!],
because they had found all defendants guilty of bribery.
On the interstate travel count, 18 USC §l9S2,
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
92
.1~l6
Z/"92~.
/v
92
92o -0
either to carry on or promote the unlawful activity or-
to distribute its proceeds, and that he acted knowingly e
and wilfully. Again Errichetti, Criden and Johansen_were*
found guilty as aiders and abetters.
On the conspiracy count, 18 USC §3Tl, the jury
found that all four defendants conspired to defraud.the
UnitedStates of the faithful and honest service of Congress-
man Myers and to have him receive money as a.bribe in connec
tion 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 con~
duct, the evidence against the defendants was overwhelming,
and there is no basis to set aside any of the verdicts_
for insufficiency of evidence.
B. US v. Lederer, '-.i------_---_-.-_--. ' ..
' 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 Repre
sentatives 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
5-1 3:, M K A _ _|L7
v.
s
I
'_;1
F
I
.
~ 2
.
K
i
F
I.
I
I
. . '
»
'-
n
1
92
E
E!
I
H
~
n
|A
-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 §201 c!!, criminal gratuity §2Ol[g!!, interstate
travel for unlawful activity §l952!, and conspiracy §37l!.
Lederer was tried alone. See note l, supra.
He presented»a defense of entrapment which the jury resolved
against him.* The court instructed the jury that there U
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 neces-
sary 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 overwhelmin
C. US v. Thompson G 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
Ia.1
8
- *~ a--1..,I:..r .
x '
I - - ,l9
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 tg
Myers and Lederer. Their codefendants, Criden and Joseph
Silvestri, were severed.
ote Z, supra. ~ .
_ " Although Thompson had received a $50,000 payment 1
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 Q
with the sheik's representatives in return for "walking
around money" that would he shared with Thompson. The _
Thompson:Murphy trial was complicated by an involved transac
tion wherein Murphy and a business partner sought from ' _
. , 5 '
the sheik financing for the acquisition of a shipping cgmpany i
. -_ u
in Puerto Rico. ~ . -:
» , . <
Murtha refused to accept the money, and no indict- .
ment was returned against him. The jury found that Murphy H
did accept the money offered to him, and while the jury
found Murphy not guilty of bribery, apparently because A
they were not satisfied that he had fully committed himself
./'
Q?Murphy guilty of receiving a criminal gratuity §Z01 g!!,
conflict of interest §Z03 a!!, and conspiracy §37l]-
Pursuant to the court's instructions, the jury did.not
return a verdict on the interstate travel count §1952!6/
since they found Murphy not guilty on the bribery"countQ
Thompson was found guilty of bribery §ZOI c!!, ,_
criminal gratuity [§201 g!!, and conspiracY S371!; The A
jury found him not guilty on the conflict of interest charge
§203 a!!; Thompson was not charged with a travel act viola-
tion. A
The key transaction in the Thompson~Murphy case
was the transfer of $50,000 to Murphy in a briefcase on
October 20, 1979s 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-pant of
that money then you must find him not guilty on this count
[bribery] as well as on the other substantive counts- x
' 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,_
L ll"!--1-- -.<:Z0
5
1
Q
--.
_.....-.... .....- . - qlvnv ' <' '
has o- . ;_- -1.»
.. A _ 21
which found each defendant gilty on some counts, and not
guilty on others. Again, the videotape evidence against
the defendants, corroborated by the testimony of Murtha i ~
and other non-government witnesses, established an overwhelm- f
ing case. Weinberg and Amoroso provided-their usual testi-
mony linking together the yarious audio and.video tapes.
I
r
E
1
n
I
1
'92Je1 , .
Y
I
I
-92 ->. ~__
if 2* " ~ - '-»-v-I . .. ~ t _~';t.c;§~_
Qo 0
Z2
III. PRETRIAL AND POST-TRIAL PROCEEDINGS
.-. . -_..-..____..__:-_-._" __' _, _ "" '
' Extensive pretrial motions were made by all defen- ,1
dants in all three of these cases. Representatives Myers, 1;
Lederer, Thompson and Murphy all claimed legislative immunity §
under the speech and debate clause of the constitution, J
and pretrial appeals were heard by the Second Circuit on - ,
that issue. In all cases the district court's orders-refus-
ing to dismiss the indictments were affirmed. The key
decision was written by Judge Newman of the Second Circuit .
in US v. Myers, 635 F2d 932 CA2!, cert. denied, US ,
101 sct 364 920!.
t g A number of other issues were raised by pretrial
motion seeking dismissal of the indictment on grounds oft
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 -' 2
to as the "due process" issues. _' A _ 4
~ I _
All three of these cases were originally assigned f
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 he dealt with more
effectively after presentation of the government's case
at trial. He indicated that if he found any merit to the
. _. . . 7 .. . . ,___. ...-___
- - M -- -':=.~~;; ::~.:?
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 ygrs
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 circum-
stances, 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 t _
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.
., _ I ,_92.;_ Q . ,. _ ,_ 1. 7'4 I92Z3
-
v
»
v
2
i
w
/ v _ !_I
/"*-
_ The Williams trial did not take place until April, '
1981, after the first "due process" hearing had been con-
cluded; consequently, a separate "due-process" hearing
was conducted in June, 1981, and the posttrial motions '
in Williams will be decided separately after counsel have _
had an opportunity to brief the issues. All parties in ~ . =
i all four cases were given the opportunity on the "due pro'cess"*-"
issues to rely upon all of the evidence developed, not QL
only before this court in both "due process" hearings and
in all four trials, but also-before Judges Pullam, Penn. L
and Bryant in their respective trials and due rocess hear-%- 92 P
A i -ings, 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 Tdue pro
cess" 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 -
crosseexamination 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
92U Z4
Ii. ' _ -v. I 92 .-.~_;;'_1
P;1
X3
Ai L,
92../. ' 25
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. t :
In most instances, even when the court had doubts about
the suitability of a line of questioning or whether a docu-
ment should be produced, decision.was resolvedlin favor
of the defendants. ' i
, 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 E
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 investiga.. 1tive technique had been employed against members of Congress L
7
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 consti-
tutional issues in which many segments of the population
had an interest.
__ . 0- .__ ,_ ,__
[7
0'
, _* Q3'
Z6
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. _ ~ *
. _ N
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 m
areas of possible inquiry. Already, enormous time and _
r ' u
effort by all parties has been devoted to this cases 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_convic-
* 4
tions. Whatever fial sentences might be imposed,_the g .
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 thee
jurisdiction of the Second Circuit, all but one of the
defendants reside in New Jersey or Pennsylvania under the
~-..,-_ - _,___ 1_ ~ -».,, .
jurisdiction of the Third Circuit. IA 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 Circui
on "due process" problems, compare US v. Twigg, 588-F2d@
373 CA3 1978! and Government of Virgin Islands vi Smith,
619 FZd 964 CA3 1980! with US V. Turkish, 623 FZd 769
CA2 1980! and Grochulski v. Henderson, 637F2d S0 CA2
1980! cert. denied, 101 SCt 1383 981!, 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
92 X
the course of the investigation, and suppression of exculpa-
§
tory 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.
>T
t27
i
Q-,,~
Eighth, in
US v. Jannotti et althe Abscam case tried in Philadelphia,
, Judge Fullam had conducted further _
"due process" hearings after the convictions and had found
reasons for dismissing the indictments there. US v. Jannotti,
501 F Supp 1182 ED Pa 1980! appeal pending!- See discus~
sion of Judge Ful1am's decision in section VII, infra. ,
In the course of his "due process" hearings, Judge Bullam _
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 offi~
cials 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
hearings were guided
of these defendants,
principles governingthroughout the course of the-due process
i .
by a sensitive concern for the rights
an awareness of the unsettled legal
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 govern-
mental needs for continued secrecy, open disclosure of
~.-- - 92.~.~-ei ..28
/_. .
0 0 M
the Abscam investigation and the government's handling
__-...__________i_____ ! ':-'- ::--~-*--- - ---_---__:_ __ *_ I _ __ __ __
x
--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 Mxers 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 l7
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.
'>» ht
D.
Q. /"' ".
. so
The posthearing memoranda of counsel constitute ~
a stack of briefs some six inches high. An even larger
>~
stack of motion papers was created by the pretrial, prehear
ing, 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 f
by the court. - . 92
' With that background, the court next turns to ,
an outline of the specific claims of the,parties-and,.final- ~92_
ly, to a discussion of the merits of those claims together
with the court's findings and conclusions, where necessary,
with respect to those claims. -
/-'
...~~_.,_.
If
_-__
: 31
IV. DEFENDANTS' 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
I
essentially claim that the Abscam investigation did not -
uncover criminal conduct, but instead created or instigated 1
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 shouldi t
constitutionalize that trend.. v
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
~ t ..§,,.. ..'.
92
52
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 US 48¢ 976!; that there was entrap-____..______.._._ii__-1-.
ment as a matter of law; that the compensation of Weinberg
as an informant is unconstitutional; that it is improper
I
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 constitu¢
tional law the "so~cal1ed due process defense or objective
strand of the entrapment defense" should be available to
a defendant subjected to "outrageous governmental investiga-
tory 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 investi-
gation ot that individual.
B. Thompsons Claims.
Defendant Thompson advances arguments that are '
similar, although more focused. He urges what he character-
izes 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
V -I ..- t .-,. _-1»,-..-.~,..... .~~ . __ - ,_ W-
up A . s
further urges that the indictment should be dismissed because
in the course of the Abscam investigation there were wide~
spread and continuous violations of laws,.regulations and. q
guidelines in the control and monitoring of the informant A
Weinberg, in using Criden and other "middle men", in lacking
reasonable suspicion before bringing public oficials before
the video cameras, and in ignoring or disregarding "red ',
flags" and substantial legal questions that arose. Thompson
rurther argues that inadequate documentation of the-investiga-
by the government, attempts by the government to intimidate
witnesses, failure to observe the requirements o Brady
v. Maryland, 373 US 83 973!, and other possible violations
of law require dismissal of the indictment against him.
Finally, Thompson urges that the circumstances of his involve»
ment with Abscam constitute entrapment as a matter of law.
C. Murphy's Claims.
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.33
X
tion, unauthorized disclosures of.in£ormationmtomthe press: _",_
92 _ . - _ ...._,. ..a......
92
-..'>-.-.~.; ~. ~ eI =- .
I I'1
r:
1
w
92 .
92 . 1- . . -_- . .-_-;.. 1 -1-. 14"...-I I -q. . .4]/'92~¥_
9 on ix
, v 34
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 >92
activity was designed to lure Murphy into criminality without E
any indication of his predisposition or prior agreement
to engage in wrongdoing. He further argues that as to
him the government deliberately or reckessly created ambigu-2
ous and misleading evidence of criminality. Murphy's final
argument focuses upon claimed misconduct by the government
2
in the Abscam investigation and prosecution, and argues .A §' R
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 contrary92
would serve as a deterrent against any future Abscamrtype r
abuses.
D. Lederer's Claims.i
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 US V. Twigg, 588 PZdr373 {CA3
1978!; provided improper incentives for Weinberg; appealed
» _' __ .92 '5-_.,
ik - A 35
G[ . - .. i - __ . "'92 .,;_. ..4..._-__;_...
F
. 192./-kl
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 "asylum92scenario";
permitted an FBI agent, the government prosecutor and Wein-
berg to separately contract to write books about Abscam;
failed to safeguard against entrapment; trapped Lederer
v ' I
into giving a false statement to the FBI; withheld evidence '
of Weinberg's criminal record; leaked untruthul 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 US 83 973!; 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 Qovernment_
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 I
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
4-. i
.
l
S
_:: .4
/r92
measures to ensure that innocent people would not be wrongful-
ly ensnared and convicted. The government urges that defen-
dants claims _ »
cannot be considered in the abstract,
for the facts as developed at the trials ~
reveals [sic] a collection of unscrupu-
lous public officials who were never
"victimized" by the informant or the
intermediaries and whose guilt was
clear because they were clearly guilty, '
r not because they had been manipulated
Y . to appear in compromising positions' ' before the cameras;
Government's memorandum at l.
Ihe government_further argues that the Abscam V '
= J investigation was pursued in good faith and conducted profes-1 . ,i. Qu sionally in view of the circumstances, that no right of
~ any defendant was infringed and, finally, that whether
Q an operation such as Abscam is "good" or "bad" is a matter
7 to be decided initially by the executive branch of bur
government, subject to legislation by Congress, but does }
not present judicial questions under the due process clausec
_ 1 ,
As an alternative to dismissal of the indictment; '
4Y ' all defendants also move for a new trial on various grounds;
i - a .
l including insufficient evidence, errors in the charge,
and Brady violations. See section IX, infra.
_ >
92-.I} 92-W .. _ _- _
-.
' 37
-, ,V. GENERAL DISCUSSION OP 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 T
¢in governmentally instigated criminal activity; The answers" -=
must draw on considerations-of philosophy, psychology, i
statutory construction, constitutional law, practical needs -1
of law enforcement, and even undifferentiated visceral
feelings about right and wrong.
A. Entrapment.
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 - @-
92 ' 92-.
agents into committing a criminal act should not be convicted;;
there is less agreement on the proper principles underlying 5
the concept of entrapment and on what factors do or do _ ~
not constitute entrapment. » ' A
Under the socalLed "subjective" approach to
the defense of entrapment,§two factors must be considered:
Was the defendant's criminal conduct "induced" by the govern-
A I41!- » .-~ _.f:-,_. ' Q _ , ¢ . ..
¢C[ __
K»-92~
92
9292,92 .. ». .. ..,-M! 92.|-..~i 92.~ __ , _ - ~ - _; -_
'38
ment agent? If it was, was the defendant "predisposed" ,
to commit the crime? This subjeetive»approach:focuses::r:=-
upon the conduct and propensities of the particular defendant,I
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 -
_ 8/ 1
doubt that the defendant was~"predisposed". In theory,
/
the subjective approach to entrapment is grounded in legis-
lative 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. ' E
Sorrells v. us, 227 us 435 £1932!; US v. Russell, 411
US 423 973!.
"Objective" entrapment is a term applied to either A
of two different concepts. Under one view of "objective"
entrapment the focus is not upon the propensities and predis-
positions of the individual defendant, but instead upon v
an objective standard of "persons who would normally avoid i
crime and through self-struggle resist ordinary tempta- _ p
tions", Sherman v. US, 356 US 369, 384 Frankfurter, J.,
concurring!, in order to determine whether the inducement ,
_ 9/
tendered by the government agent was unaccceptable.
<
" 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,,
1
r4
G
-%;4h._... .'/'92
to which common feelings respond, for the proper use of. 3
governmental power". US v. Russell, 411 US at 441, Stewart,
J., dissenting!. However, and despite eloquent arguments -'
in several dissenting and concurring opinions, Sorrells,
287 US 435; Sherman, 356 US 369; Russell, 411 US 423;
and Hampton, 425 US 486, the "objective" approach to entrap-_ 1
,
ment 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 i
in the commission of a crime requires dismissal of an indict-
ment, 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
defendant was predisposed
induced by-the government
369; see US vi Jannotti,a reasonable doubt, that the
to commit the crime that was
agents. fSherman v, US, 356 US ~ x
50l_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'
- _n-. 4- 1-
l. /.,_.__.______
Sorrells v. US, 287 US 435 932!, 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 US v. Russell,40
at
411 US 423 973!, 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. US, 356 US 369 958!. Writing £or the court
X .
in Russell, Justice Rehnquist pointed out that "since the
Fentrapment] 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 US at 433 footnote omitted!.
é
Four Supreme Court decisions are central to the
issue of entrapment. S0rrells,§287 US 435; Sherman, 356
US 369; Russell, 411 US 423; and Hampton, 42S,US.484.
Familiarity with the majority, concurring, and dissent:
ing 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, Sherman1
1
E
I
I
and Russell and appears to be still acceptable.to a present
majority of the current Supreme Court bench, at least in,
1/"92
- 921, . . , o 41
most cases, where a defendant's predisposition has been
established. -t
. 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 '1
by a jury to have been predisposed to commit the crime
have the indictment dismissed for governmental misconduct.
425 US 484. Three other justices believed that the circum-
»stances showed that governmental officials had purposefully ;
created the crime in Hampton and that such creative activity'
by governmental officials required dismissal despite defen-
dant's predisposition to commit the crime. 425 US at 495
Brennan,-J., dissenting!. Two other*justices in an opinion .
written by Justice Powel1_found that Hampton was controlled i
by Russell, that Hampton-had not even raised the issue
of predisposition, and that his entrapment defense, there-
fore, failed for lack of proof.- 425 US at 490 Powell,
J., concurring!. Justice Powell declined, however, to
close the door entirely upon the possibility of court inter-
vention 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-
44 _ K _
I./"~921
' 42
Government is able to prove predisposition." 425 US at
495. In footnote, Justice Powell added: 4
» 4i
. I92- E
I emphasize that the cases, if any, 5
~ in which proof of predisposition is
not dispositive will be rare. Police
overinvolvement in crime would have
to reach a demonstrable level of out-
rageousness before it could bar convic-
tion. This would be especially difficult =
to show with respect to contraband
offenses which are so difficult to
detect in the absence of undercover 3
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 5
contributing causes of escalating crime :-
in our cities. * * * Enforcement offi-
cials, therefore, must be allowed flexi~
bility adequate to counter effectively
. such criminal activity. .
. 425 US at 496 n.7 citations omitted!.5
Thus as the Court divided in Hampton, with.JusticeA
Stevens taking no part: three judges would make.predisposi~_
tion the only issue; three judges would eliminate predisposi 5
~. 5, ,
tion entirely; andnthe decisive twd concurring votes,;express;
ed in Justice Powell's opinion, indicate,that predisposition 5
is not only relevant but will be dispositive in all but 92
the "rare" case where police over-involvement in the crime
reaches "a demonstrable level of outrageousness"- Since i
Hampton had been predisposed, and since the police involve-
ment in his crime was not "outrageous", his conviction
was affirmed. The three dissenting judges would eliminate "
t. .» . _- y. e-.,.-.. ,
9 Q ' W
./ ~ s
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 I
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 i
0 where five" members of the present court agree that a convic-
; tion should be overturned and an indictment dismissed.
, Until further word from the Supreme-Court, there- ~ =
< V fore, 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 super-
10/
visory power nor the due process clause, a predisposed
defendant cannot be convicted if police over~involvement
.in his crime reaches Va demonstrable level of outrageous-
-ness". See US v. Johnson, S65'F2d 179, l8l GA I I977!;__r
. B. Outrageousness.
What conduct by law enforcement officials would E
be "outrageous"? iNo clear standard has evolveda Many
partially relevant factors have been discussed, argued,
and either accepted or rejected in various opinions oni
9292
the subject. The court has reviewed and carefully considered
go: 7 Q U" ~" _ 43
A .1
92/"~_
numerous cases, including the following: ! United States
Supreme Court: Sorrells v. US, 287 US 435; Sherman v. US,
356 US 369; US v. Russell, 411 US 423; Hampton v. US, 425
US 484; ! Second Circuit Court of Appeals: US v. Viviano,
437 FZd 295 CA2!, cert. denied 402 US 983 971!; US V1
Nunez-Rios, 622 F2d 1093 CA2 1980!; US v. Corcione, S92
F2d 111 CA2 1979!; US V. Archer, 486 F2d 670 CA2 1973!;
US v. DeSapio, 435 F2d 272 CA2 1970!, cert. denied,402
us 999 971!; US v. Brown, 603 FZd 1073 CA2 1979!; !
Cases from other circuits: US Va Smith, 538 F2d 1359 CA9
»
1976!; US v. Quinn, 543 F2d 640 CA8 1976!; US v. Graves,
556 F2d 1319 CA5 1977!, Cert. denied, 435 US 923 978!;
US V. Leja, 563 FZd Z44 CA6 1977!, cert. denied, 434 US
1074, 436 US 948 978!; US v. Johnson, 565 F2d 178 CA1 _
19775, cert. denied, 434 us 1075 978!; US v. Twigg, sss
_ /
F2d 373 CA3 1978!; US_v. Szxcher, S85 F2d 443 CA 10 I978!
. - -
Of all the foregoing cases, only one, the Third'
Circuit's decision in Twigg, has actually held that an .
indictment should be dismissed under the supervisory power
or due process clause.because governmental conduet was.
"outrageous". Although most of the other cases recognize
the possibility of such a conclusion, none of them has
held under the circumstances presented to the court that
- ' 11/
dismissal of the indictment was an appropriate remedy.__
<
"1 -- "_ .~ .--.. .'_ '92 >9 ___I
v
I
"-.44
3
5
i
Q
1 L"_ ../M
'a
. ,..._ _-_..i-_.---,-_-
* »"1 __mIhe_centra1 issue now tendered by defendants
in this case is whether the circumstances of the Abscam '
investigation and the government's conduct toward the particu:
lar defendants reached "a demonstrable level of outrageous '45
P
ness" sufficient to require dismissal of the indictments; *
Before addressing the circumstances of Abscam and the particq-
lar problems of these cases, however, it may be useful
to list many of the factors that have been the focal point
of discussion in the cases cited by counsel. Among those
factors are the following:
J 1. Did the government agents initiate or instigate
the criminal activity?
2. Was the government's participation essential
to the crime? ' y ' * ~ Y g
3. Had the defendant engaged in similar criminal
activity before the government agent came on.the scene?
4." Was the activity of the government agent,
when viewed alone, criminal? ' .
_ 5. How easy or difficult is the job of law enforce
ment officers in combatting the kind of criminal activity
involved? ' I
3
2
n
.. ' - Qt ~/i
| " » - - . ....t..A...,. 1".-.~ '5" :,-g
w . 1'
f92.
[I 46
6. Do the police need to use the kinds of tactics
utilized in order to effectively detect the crime?
~
7. Did the government provide the instruments
or implements [e.g., drugs, laboratory equipment, chemicals,
money, suitcases! to commit the crime? i zi
1
i 92
8, If an informant was used, was the informant
reliable? Did he have a criminal record?
9. .Was the informant paid a fee §0nIine§n§"9P9Eii_.'
the number or importance of defendants apprehended or con-
<_ victed? . - "
- l0. Did the informant violate the law, or urge
others to violate it? r , *
11. Did the informant or the undercover agentss ' p '
exert pressure or use-threats on defendants to induce them
to commit the crime? , _ I
A __ 12. Did the informant or undercover agents engage
in other activities, not directly related to the crime, V
which violated the law or werexdishonorable? .
4 13. Did the government agents show a proper
~ regard for judicial and police processes?
n * -~ , ~. I
-,3, '.._-
t a M.Q 47"l -. _, _ . _ ,_____iII ____ _ i
14. Did the government's agents perjure themselves "
by £a1se.reports to the police, to a judge, or to a grand
jury? >
15. Did the activities of the agents actually ,
harm innocent citizens not the subject of the investigation? _
I
-16. Did the activities of the government agents -
have any direct adverse social consequences? _
l7; 'Did the undercover agents stand by whileé
Z
:
crimes were being committed in their presence? i -
_ 18. What was the value to law enforcement of
the information being obtained by the informant and under i Q
cover agents? _ -
__ 19.- How important was the crime and its detection
in the overall social scheme?
, 20. Howclosely were the informant's activities 1
supervised by the government agents? _-
21. Was the claimed outrageous conduct of the
agents an isolated instance, or was it part of a widespread
and continuous system? * '
_ 22. Did the investigative technique complained
of produce a substantial danger of unreliability and thereby p
48
potentially expose innocent people to prosecution and pos
12/
sible conviction?_ e
4 - .
Although there are some indications from.some
dissenting justices in the United States Supreme Court
that undercover activities, deception, trickery and similar
techniques by police should be impermissible under our ~
constitution, the great majority of opinions on the subject,
and all holdings by the Supreme Court and, as far as this
court is aware, by the circuit courts as well, have recog- i
I
nized that in order to combat crime in our society it is X
permissible for police to employ artifice and stratagem, :
to use undercover agents who deal directly with criminals,
and to present opportunities and facilities to them for
the commission of an offense.
a
i i iii? ._~. _ _
. 49i- _ .».-..~ ..,92.-...,-.».- r _ ,_ ,_ > _ _ _ I H __u1'_ - .
VI. SPECIFIC DISCUSSION OF DEFENDANTST CLAIMS
We turn now toia discussion of the merits of
the defendants claims. For discussion purposes the claims
will be divided into four groups:
Ah General Nature of Abscam.
B. Specific Operations of Abscam.
C. Weinberg and His Conduct.
,. -1 . _ > ._- -W5. .3»-5iD. Miscellaneous Arguments.
A., General Nature of Abscam.
P Q 1. Objective Entrapment and Entrapment as a Matter oi
Law. -
All defendants urge, as a primary contention, ,
that the indictment should be dismissed because the Abscam
investigation did not uncover criminal conduct, but instead
created and instigated it. This argument challenges the
_essential nature of the governmentts "sting" operation,
1' which presented to defendants a false and fictitious but
.convincing "scenario" of a wealthy sheik willing to pay -
cash for promises of assistance in his immigration to the
United States. Defendants argue that this scenario induced
t them to participate in criminal events they otherwise would
not have engaged in, simply because absent the government'svs
I
I
I
t
}
~
92-
, K i. _ !
&
r p > ., V so
actions they would not have had the opportunity to do so
-- at least with this sheik.A ' -
_ s
The central defect in defendants argument is
that it simply does not represent the law as established
by the United States Supreme Court. As noted in the "general
discussion", section V, supra, eloquent dissents have urged f
that objective entrapment be adopted as a constitutional
principle so that whenever a government agent provided
the impetus for a crime, p;osecution.would be barred.
If that were the law, clearly these convictions would have-
to be dismissed; indeed, if that were the law, these prosecu-
tions would never have been brought. However, and as already ~
noted, whenever the dissenting or concurring justices on
the Supreme Court have urged objective entrapment as a
principle of constitutional law or as a basis for invoking
the supervisory power, see Hampton, 425 US 486; Sorrells;
287 US 435; Russell, 411 US 423; and Sherman{ 356 US 369,
the majority has rejected the concept. Thus, except for '92 . .
the possible availability o£;an "outrageous governmental,
conduct" argument, discussed below, defendants entrapmentt- v
claims in these cases are restricted to principles of sub-
jective entrapment, where the creative activity of the
government entraps into criminal conduct a defendant who
:
was not predisposed to commit the crime. As already noted,
i L,
@-9
- - Q _
/"'-~.
I
_ ~ ___the focus of this defense is upon whether the defendant
was predisposed to commit the crime. ' -;u é_ ;:l:T__T_
Predisposition is generally a question of fact
to be determined by the jury; Of all the defendants before
the court in these three cases, only defendant Lederer
requested that the issue of entrapment be submitted to
the jury, and, of course, the jury found him predisposed,
a-decision that cannot be overturned because it is supported
by sufficient evidence. Since the other defendants did
not request an entrapment charge, the issue of subjective
. 13
entrapment is no longer open to them.__7 '
* Substantial parts of the memoranda submitted
by the Myers defendants focus upon why this court should
apply the principles of objective entrapment. But in view
of the consistent position taken by the United States Supreme
Court against the arguments of its dissenters, it would
be improper for this court to decide these cases by adopting
objective entrapment. Presumably, the Supreme Court-could 5
overrule its clear precedents to the contrary and impose
such a fundamental change on our criminal justice system.
Similarly, it is within the province of Congress to define
the entrapment defense in objective terms, and the fact
that a number of states have done so might be persuasive
argument to a legislator. But the argument is unpersuasive51
x
. {x
__ ..
O
a rA - ~ S2
to this district judge in light of the clear federal prece-
dents that reject objective entrapment.
K
2. "Outrageous" Government Conduct.
Even if objective entrapment is not to be the
standard,-defendants argue, these indictments should be
. .
dismissed because the government's handling of the investi ,
gation was "so outrageous that due process principles would _
absolutely bar the government from invoking judicial proces-
ses to obtain a conviction." This argument stems from. r
Russell, 411 US at 431-32, where Justice Rehnquist, speaking 5
for the majority, acknowledged that such a situation of "
"outrageous" conduct "may some day be presented".- Justice
Rehnquist repeated that thought in Hampton, 425 US at 489.
; It is important to recognize, however, that in
neither Russell nor Hampton was the questioned governmental
conduct held to be "outrageous". ~Nor has any other decision
of the Supreme Court found law enforcement officers conduct §
to be so "outrageous" as to require dismissal of an indict-v
ment. Thus, even though the Supreme Court has yet to be
confronted with or to offer a description of circumstances
sufficiently outrageous.to warrant dismissal, the governing '
principle remains that in some case, under some circumstances,
the conduct of law enforcement officials may some day bar ~
:
92| l
P
Y
é
.1
2
_.
1
i.~
5
l:
L.92-
.-/I'1. ~. /92
. . ~ s3
prosecution. Defendants argue that those cases, those
circumstances and that conduct have arrived with Abscam,
It is clear that mere instigation of the crime -
does not render law enforcement activity "outrageous".
Here, the government presented a fictitious sheik, seeking
to buy favorable legislative action. Undercover agentsG 1
offered money in return for defendant legislators promises "
to introduce a private immigration bill. In simple terms,
bribes were offered by the undercover agents and.accepted
by the defendant congressmen.__ ' -
Clearly, the government agents created the opportun-_
ity for criminal conduct by offering the bribes. But their
involvement falls far short of being "outrageous" for two
reasons. In the first place, each of the;legislators could
simply have said "no" tosthe offer. US vi Myers, 635 F2d .-
at 939. Three other legislators faced with identical offers,
Senator Pressler Congressman Patten and Congressman Murtha 3
did precisely that as shown by the videotapes in evidence
as DP Exs. 22, Zl, and Thompson trial Bx. Z9- Second,
the extent of governmental involvement here is far less » *
than that inHampton, where the government net only supplied '
heroin for the defendant to sell, but also produced an
undercover agent to buy it from him. Even under those
O
i Qf"92
92 _ - ,:.'.' ,_.92contrary it would assume that there was no "probable cause"' iQ § '-
3 ' S4
the agents conduct to be "outrageous"; a fortiori here, '
where the agents acted only on one side, by offering money
to congressmen in return for favors, the involvement of r
15/ , -
the undercover agents was not "outrageous".
3. Selection of "Targets".
Defendants argue that Abscam was "outrageous"
because its selection of congressional targets was arbitrary -
and unprincipled. Early in the first due process hearing
~ ~ &
this court stated that in the absence of evidence to the 1 0
/ ;
or even "reasonable suspicion" which might be used as a * I
predicate for making a bribe offer to any of the defendant
congressmen. No evidence is before the court that any
of the defendant congressmen committed any prior similar
violations or engaged in any course of conduct or other
circumstances that would warrant suspicions of criminality' 16/ ~
in the conduct of their legislative affairs. __
Under these circumstances, defendants argue,- , I
to permit targets to be selected by middlemen violated -
due process because it did not provide sufficient protection
to the innocent. Both legally and factually the argument
fails. On the legal side, Judge Newman.noted on the earlier
appeal in Myers that the constitution does not require
reasonable suspicion before a congressman may be made the -
g 92
-subject of an undercover sting. US v. Myers, 635 PZd at .
940-41. See also US v. Ordner, 554 F2d Z4 CA2 1977!.
Factually, too, the argument is undercut by what
happened with representative Patten and Senator Pressler,
who had been brought to the undercover agents by middleman.
Silvestri. DP Exs. 21 G 22, respectively. Neither one
apparently knew he had been brought before the sheik's
representatives to be offered money in return for a promise
of favorable legislative action. However, neither one
was overwhelmed by the circumstances, and each declined
the offer. Pressler, particularly, acted as citizens have
a right to expect their elected representatives to act.
He showed a clear awareness of the line between proper
and improper conduct, and despite his confessed need for,
campaign money, and despite the additional attractiveness
to him of the payment offered, he nevertheless refused
to cross into impropriety. ' _'
1, -
d The court is convinced that the defendant congress-
men appeared through a "selfselecting" procedure that
involved the other defendants as well. The agents did
not set out to offer bribes to any particular congressman.
They set no standards, established no criteria. Instead,
the middlemen, Errichetti, Criden and Silvestri, carried
the word that money was there for the taking by any congress-
man who would promise to give legislative aid to the sheik's
-+xO *ss
/Q
~ 56
need for asylum in the United States. Weinberg's description
of Abscam accurately characterizes what happened? "We "
put out the word that money was available, we had a honey -
pot and the flies came." Schwartz Trial Tr. 2.65 Sept.
ll, 1980!. ' "
_ Uncontroverted testimony established that no ,
prospect was rejected or vetoed either by the agents or
by higher authorities in the justice department. No congres-
sional defendant was forced to attend the videotaped.meeting,
and no congressman was contacted directly by any of the _
undercover agents. Prior to the payoff meetings all contacts
with the congressmen were through the middlemen, who apparent-
ly believed the sheik's offer, who claimed to have influence
with the congressmen, and who claimed to be able to produce
congressmen willing to take bribes. With the convicted
congressmen, these claims proved accurate; with some other A
legislators, the middlemen did not live up to the abilitie$'d
they had boasted of. In some cases, as noted above,~after -
the legislator appeared, he rejected the offer of money.
- With each defendant brought before the TV cameras,
the criminal nature of the proposed deal was made clear.
Each of the congressmen was a sophisticated politician
who clearly was aware what was being requested of him and.
what the money was being offered for. While Amoroso and
Weinberg talked around the point somewhat and did not mention
.
-s-
I 92_
IlF-92-
. 57
the word bribe in the on camera discussions, they handled
the matter in each case as tactfully and delicately as -
one might suppose, given the nature of their undercover .
role as agents of foreign principals offering a bribe to
a high public official.lZ/ But, as the videotapes clearly
showed and as the juries necessarily concluded, each congress-
man was aware of the criminal nature of the transaction,
and each acted wilfully.
The claim that the justice department "targeted"
only supporters of Senator Kennedy in his presidential
race was unsupported by the evidence. .
In short, on this record it is clear that those
defendants who appeared and accepted bribes were not "tar-
gets" in the sense that any government agent selected them
for some sort of "honesty test"; instead, each was a willing
volunteer seeking illegal and corrupt payments.
4. Size of Inducements. 92
'All defendants argue that the inducements offered
to the congressmen were overwhelming, designed to overpower
their otherwise adequate resistance and to induce honest
and innocent people to commit a crime they would normally
18/
avoid.~' Congressmen Myers, Lederer, Thompson and Murphy
were each given $50,000. In addition, each was told that
the sheik would invest money in the congressman's district.
9258
The inducements were clearly improper in the case of the
Cash"paymentsj*a1tH5gh'§¥gu§b1y proper'in the"casé of
promised investments. Even with the investments, however, *
at least some of the congressmen seemed more interested
in obtaining deposits in favorite banks than in truly develop-
ing the resources of their own districts. With Murphy, _
moreover, there was the added transaction of a contemplated '
loan to enable him and his business partner to buy a shipping
company.
' In another Abscam matter relating to a new gambling Q
casino, Errichetti is alleged to have received part of
a $100,000 payment made by the undercover agents. In addi-
tion, he seems to have been promised a lucrative job with
the casino once it opened. Criden first contacted the
undercover agents when he sought financing for a casino; _
if successful, he and his law firm would have received
a fee that ran in seven figures. Later activities by both _
- -
Errichetti and Criden demonstrate, however, that they pro~
duced bribe-taking congressmen because of the cash they
received as part of the payoff. There is no evidence to
connect their motivations for these crimes with their hoped-
for bonanzas if the casino project went ahead. _Certainly -
none of these defendants were in the position Judge Fullam
found Jannotti and Schwartz to be in: "either take the
bribe or lose the investment for your community." -
1 ,
In-92 i.» _
59
While there may be "inducements" that are "over-
whelmin ", such as a threat a ainst the life of a loved '8 8
one, when the inducement is nothing but money or otherv.
personal gain, this court does not believe that the size
of the inducement should be a determinative factor in.whether'
a public official can be prosecuted for accepting it. T
No matter how much money is offered to a government official _
as a bribe or gratuity,he should be punished if he accepts.
It may be true, as has been suggested to the court, that
"every man has his price"; but when that price is-money
only, the public official should be required to pay the
penalty when he gets caught. In short, as a matter of
law, the amount of the financial inducements here could
not fender the agents conduct outrageous or unconstitution-
al. ,
But even if the size of the inducements were
relevant, on the facts_here they do not approach "overwhelm~
ing". The undercover agents were dealing with members-A -
of Congress, sophisticated people who function at the highest
level of our government. In these inflationary times,
$50,000 is simply not an overpowering sum of money-» The
agents sought to keep the bribes reasonable and realistic
in light of all the circumstances, and the sheer length
of time Abscam ran without raising suspicions or being s
. 9292 - @-
a.I ' '
1
X
* ..._..,,4
O
* Kx 92-1..
' Patten and Congressman Murtha all refused- Nor do we knowexposed testifies to the agents success in making all
aspects of the bribe offers seem real.
each
each
from
that
every official who appeared before the cameras toMoreover, there were several participants in
of these transactions, so the amount of bribe money
congressman could expect to actually receive varied
between $5,000 and $20,000. Furthermore, it is evident
the inducements offered were not so great as to cause
agree'
to commit a crime, because Senator Eressler, Congressman
how many congressmen, if any, were approached by the middle-
men,offered the $50,000, and refused outright to even
visit with the sheik's representatives to discuss the matter
Taken together, all these factors make it clear that the '
inducements offered were not overwhelming. The difference
between those public officials who took bribes and those
who refused cannot be found by examining the inducements
offered. Honest congressmen would refuse a bribe offer;;
dishonest ones took the money.
found the inducements offered
"attractive" and "exceedingly
acceptance of the money could
sition, and he therefore held92Judge Fullam, in his due process ruling in Jannott!
i92
, <,
0 by the government to be so
generous" that defendants
not establish proof of predisp
that the inducements resulted
in entrapment as a matter of law. It may be that he reached
t , O60
-.
= K/"
that conclusion because the bribe money was forced on defen
dants by threats of withholding the hotel investment, a
substantial benefit to their city, if defendants did not
take the money. To the extent that Judge Fullam.may have
felt that the amount of a bribe offer, standing alone,
may insulate its recipient from prosecution, this court
respectfully disagrees. i
S. Need for the Investigative Tactic,
A vital factor in evaluating the governmentfs__w_ M .
conduct is whether there was any particular need for the
g kind of investigative tactic employed; The Supreme Court
has recognized with drug-related offenses that undercover
activities by governmental agents is necessary for proper
law enforcement:
The illicit manufacture of drugs
is not a sporadic, isolated criminal
incident, but a continuing, though p
illegal, business enterprise. In order
to obtain convictions for illegally
' manufacturing drugs, the gathering"
of evidence of past unlawful conduct
frequently proves to be an all but
impossible task. Thus in drug-related
offenses law enforcement personnel
have turned to one of the only practic-
able means of detection: the infiltra~
tion of drug rings and a limited partici-
pation in their unlawful present practices.
Such infiltration is a recognized and
permissible means of investigation;
if that be so, then the supply of some
item of value that the drug ring requires
must, as a general rule, also be permis-
sible. For an agent will not be taken
-. _|_, _ i V i
61
l
1
ls»6
into the confidence of the illegal-
entrepreneurs unless he has something
of value to offer them. Law enforcement
tactics such as this can hardly be V
said to violate "fundamental fairness" ~
or "shocking to the universal sense
' of justice." _
US v; Russell, 411 US at 432 citation .
- omittedi, .
Although discovered and prosecuted less frequentlyi i
than drug trafficking, political corruption through bribery
is regrettably found among public officials, not only in
this country but abroad. While this.court is not prepared I92
to characterize the bribery of public officials as "a continu~E
ing, though illegal, business enterprise", clearly it is 3
not simply a "sporadic, isolated criminal incident". Like
drug offenses, bribery is difficult to detect. Both are
"victimless crimes" in the sense that no one with knowledge'_
of the usual transactions has a motive to report the illegali-
ty to law enforcement officials:
Moreover, with bribery, nothing more is required i
than the quick passing of money in.return for a promise _
1
of performance by the public official of an act that appears
to be an appropriate part of his public duties. With drug
deals, at least one part of the transaction is clearly
illegal - the contraband. With bribery, both parts of ~
the transaction are apparently legitimate: ! money and
! actions by public officials. Detecting bribery, there- I
Q1*"
" 63
1y. Honesty, integrity, truthfulness and sincerity are .O O !
fore, is probably even more difficult than detecting drug
offenses.
1 92
. -,9292Some would say, however, that mere difficulty 5
of detection does not create a need for undercover, infiltrat-
ing tactics such as were used in Abscam. More is needed, I
specifically a serious harm to society, and there are those I
who would argue that bribery and corruption in our public .
officials should be viewed with a tolerant "boys will be
boys" attitude. This argument the court rejects categoricale I
F
n
essential qualities for effective leadership in our society.
Tolerance of corruption has no place here. The cynicism
and hippocracy displayed by corrupt officials, pretending -
to serve.the public good, but in fact furthering their
own private gain, probably pose a greater danger to this '
country than all of the drug traffickers combined. Corrupt
leaders not only betray.their constituents, but also contri~ I
bute to a moral decay in American society that many view
, _ . . -
as the forerunner of economic, political and social disaster- .
This court believes that the great majority of _
government officials, including those in Congress, are
honest, hard-working, dedicated and sincere. However,
the government needs to have available the weapons of under- _
cover operations, infiltration of bribery schemes, and
"sting" operations such as Abscam in order to expose those
" ..
~ 64.
officials who are corrupt, to deter others who might be 92"
tempted to be corrupt, and perhaps most importantly, to
praise by negative example those who are honest and square-
a
dealing. Without the availability of such tactics, only
rarely would the government be able to expose and prosecute
bribery and other forms of political corruption. r
6. Lack of heliability. 1
1
I
One of the central notions running through the
concepts of entrapment, governmental overinvolvement in w
1crime, and due process violations for "outrageousness"
is a deep judicial concern that juries convictions be
reliable measures of defendants culpability. Courts must
intervene when conduct by a government agent, or for that
matter by any other person, creates a substantial risk
that the "guilty" verdict is not a reliable evaluation
of what a defendant did. '
With these Abscam verdicts, reliability is high.
In each of these cases the essence of the government's s:
I
case was found on the videotapes. The full meetings with
congressmen were recorded from start to finish, with no
editing of the tapes either during or after the meetings.
A more reliable basis for conviction.can hardly be imagined.
Through the videotapes the juries were permitted to see _ ~
the actual crimes committed. -Compared to the ordinary
->_192,F .5 , - 1 -;_ -.
{ 92
- ' 65
trial where oral testimony can at best only partially re-
create an event, the reliability of the Abscam evidence '
. 19/ .
was increased many times over.__ Not only was there no~ u
question of the actual words used by the participants,
but the jury could also perceive the added dimensions of
- tone of voice, timing of comments, and even the-defendants .
, i r
gestures and mannerisms. The issue of "credibility? determin»
ing whether the events occurred as the government contends,
an issue that dominates so many criminal trials, was virtual~
ly eliminated from these trials. Thus, there is absent , _
from the reliability calculus one of the major hazards- %;
- to truth and justice that is present when only oral testimony=
I'¬CI'88.t¬S th8 692/811115.
Finally, review of the tapes in each case coniirms
that the jury was not only authorized, but virtually compel-
led to find each of the congressional-defendants guilty.
B. §pecific Operation of Abscam. -
l. Inadequate Safeguards.
Defendants argue that Abscam was conducted "without!
adequate safeguards", particularly with respect to the
supervision of Weinberg. They point out that during the
more than one year of Abscam's operation, Weinberg was
accompanied by agents Amoroso or McCarthy only half the
1
L -r ~ .___ . ___ , _<
| .I
. __
-z».supervision. .__l__ ;:._:.
of misconduct charged to Weinberg discussed below.. : ~ » , '1 .. -_,-,,¢_ _
66
time, and that the rest of the time he was free of government _
_ >
There are several flaws in this argument as"a d
ground for attacking the convictions. In the first place,
none of the defendants has shown any direct or specific
harm resulting from the alleged lack of supervision. Defen-; I
dants' claims in this regard are amorphous and unfocused.'
Perhaps they can best be viewed as generalizations or charace 3
terizations to be applied to the other specific-instances
Second, defendants cite no authority holding ,
that the constitution requires the FBI to impose a particular
degree of supervision on an informant.
The third flaw in the argument is that even though
a lack of supervision may connote a defect in an investiga~.
tion, the only relevant question is whether ultimately
that defect affected the reliability of the result, and,. - I
as shown in the discussion of reliability, Section VI-A- =
6, supra, on this-point the government rates well.
_ The fourth defect in this argument is factual,
for the supervision imposed on Weinberg was more than ade~
quate to the circumstances of this investigation. Weinberg
recorded literally hundreds of conversations and-telephone~
calls outside of the agents presence. While Weinberg
92 . l '
. . A-' _
. I _
I /~ X
4
_ was given some discretion as to what calls to record, this
1 Q ,1 .- 2. I kCourt is satisfied.that he exercised that discretion by
recording all calls and conversations that he could consis -.-
tently with safety and convenience- There is no evidence
presented by any of the defendants that a particular-phone
call or conversation exonerated him or that the lack of
a particular recording in any way prejudiced him. ' _'
_ _ Undoubtedly, there were many unrecorded phone
calls and conversations in which Weinberg participated
over the many months of the investigation, but the evidence
shows no pattern or purpose to them that would warrant
an inference-of misconduct or evil intent. Nor does the
constitution demand that the FBI or an.informant record
every conversation with a subject. Preserving evidence '
in electronic form may add credence te the government's
case, but failure to record raises no constitutional-defect;
it does no more than possibly reduce the persuasive~quality '
- of the governments case in the eyes of the jury.
. _ i
Moreover, and contrary to defendants assertions, *
Weinberg was supervised extensively by the FBI. In an.
investigation that spanned many months and meetings all A
v
along the east coast, Weinberg was in virtually daily contact
with Amoroso, and his recordings were delivered to the
FBI for transcribing on a periodic basis. Most importantly,
the key events on which the_governmenI.relied in presenting- 67!
-.~ ~..._> e-l _- . 4 -i -
K---..
; 92_ I92
Z T 68
its cases, the appearances before the videotape cameras, ' w
took place in the presence of the FBI agents, and occasional-
ly under the direct supervision of an attorney from the _
Eastern District Strike Force. Beyond that, supervising
agent Good and strike force chief Puccio continually monitor-
ed the progress of the investigation, and each reported
regularly to their respective superiors in the bureau and '
the Department of Justice.
Finally,-the ultimate "safeguard" in these cases
was that the central part of the cfiminal conduct charged
to each congressional defendant was recorded on videotape
so that the jury could directly interpret, assess and evalu~ :»
ate its every nuance, its full flavor, its pervasive aura
of corruption. 5
2. Missing Tapes.
All defendants argue in one way or another that _
entire tapes or parts of tapes are Umissing". This argument.
is directed not to any videotapes, but only to audiotapes;
most of which were recorded by Weinberg. In some instances,
entire conversations were not recorded; Weinberg explained
that he sometimes had conversations over the telephone
when his recorder was not available, and_that at other
times he did not have blank tapes available. On occasion
Weinberg recorded over a previously recorded conversation
w A ..
n M "69
that he regarded as unimportant. There is no evidence
that the recordings thereby erased were anything but what $
Weinberg judged them -- unimportant. Once when he was
flying to New York from Florida, a number of tapes, less ~ i
than 10, were stolen from his flight_bag, an incident he
promptly reported to Amoroso. With some conversations
the recorded portion does not begin until after the conversa
tion had obviously begun; with others, the recorded portion
2
ceases before the conversation ends. ~
i
2
All of these claims add up to an assertion that =
not every conversation during Abscam between Weinberg and P
c
various subjects was preserved in a recording. As already
. 20/
discussed,_' however, this is not a constitutional defect.
While it offered to defendants an argument to the jury l
as to the credibility-of the government's case, the argument
did not prove to be persuasive. -
_ The Myers defendants argue, in addition, that _ _ »' . f
the "missing" tapes require an inference that they contained f
exculpatory material. However, they explain.neither what
effect the inference should have nor in what way the unre-
corded conversations could exculpate any of the defendants.' 21/
Nor did they request such a charge to the jury. _
Perhaps defendants seek a "per se" rule that
whenever a law enforcement agent fails to record a conversa- F
_ _3/92
tion the defendant automatically must be acquitted.on the
presumption that the unrecorded material would have totally
exonerated him from guilt. Such an argument must be reject
out of hand as frivolous. Trials are a search.for truth
and fairness, not a game to be run by automatic, unrealisti
rules, Absent even a hint of what benefit to defendants
the information on the "missing" tapes would offer, the
effect of any "missing" tapes ceased to be relevant upon
the return of the juries verdicts.
3. Verbal I l t' . nsu a ion
The Mzers defendants argue that when a potential
target in an undercover investigation merely states that
he desires to act within the law, the government should k_
be automatically foreclosed from any further investiga-
tion of him. Presumably, the basis for this argument is
the law's concern that an innocent person not be unlawfully
entrapped into criminal conduct.
, , .
Defendants argument goes too far, however.
If adopted, it would provide a corrupt politician easy ,
insurance against any undercover investigation, for when
the suggestion of improper conduct was raised, all the
subject would have to do would be to invoke the magic incan
tion "I desire to act within the law" and then plunge into
his nefarious activities, confident that thereafter any70
ed,,
C
1
I
1
1
k
i
ta-
71
statements or conduct by him w0uld.be immune from investigaé
tion. Such a per se rule would soon frustrate virtually
all undercover law enforcement. ~
As presently viewed by the Supreme Court the_
law protects the innocent in an undercover investigation,'
not by honoring incantations of "verbal insulation", but
by making available
to be determined by
to the court to set
rageous" government2
the defense of subjective entrapment
a jury, always with power reserved p
aside any conviction obtained by "out
conduct that disregards principles
of fundamental fairness. It is not "outrageous" merely
because the agents did not cease their efforts immediately
upon a politician's initial proclamation of honesty.
4. Violations of Laws, Regulations and Guidelines.
Defendants argue that dismissal of the indictments
is required because in the course of Abscam the government .
engaged in widespread and continuous violations of laws,
regulations and guidelines. Significantly, they do not_
point to violations of the constitution, nor do they relate
any of the claimed violations to any particular,constitution~
al rights of these defendants. Instead, their arguments
are aimed at the operation of Abscam in general. -
It is clear,_however, that for a court to dismiss
an indictment there must be not only a constitutional §iola
I _ _ -w-Ll.-_.~,. -1
I
i I
_ . . . 72
tion, but also some resulting adverse effect or prejudicel4_A
to the defendant. US v. Morrison, US , 101 SCt 665
981!. In Justice White's opinion, rare in the Supreme
Court because it was unanimous, he noted
absent demonstrable prejudice, or sub-stantial threat thereof, dismissal
of the indictment [for a sixth amendment
right to counsel violation] is plainly
inappropriate, even though the violation
may have been deliberate. This has
been the result reached where a Fifth
Amendment violation has occured, and
we have not suggested that searches
and seizures contrary to the Fourth
Amendment warrant dismissal of the '
indictment.101 SCt at 669 footnotes omitted!.L
' In support of the reference to the fifth amendment,
Justice White cited US v. Blue, 384 US 251 966!, where -
the Court had commented that so drastic a step as barring
prosecution altogether for having acquired incriminating
evidence in violation of the fifth amendment
might advance marginally some of the
ends served by exclusionary rules,
but it would also increase to an intoler-
able degree interference with the public
interest in having the guilty brought
to book. I _ i
384 US at Z55.
Again, in US v. Payner, US , 100 SCt 2439
980!, a majority of the Supreme Court concluded that
due process comes into play only when the governmental
activity in question violates some protected right of the
- 92
'~;.,.v i
aI
particular defendant. Violation of a third party's right
does not warrant countwinierventien~en~due~preeess_grounds-
The Second Circuit in US v. DeSapio, 435 F2d '
272 [CA2 1970!, cert. denied, 402 US 999 971!, reached
a similar conclusion when it commented:.,
The difficulty courts have had in explica-
ting and marking the boundaries of
the defense of entrapment, * * * suggests
the inadvisability of attempting to
develop a penumbral doctrine that would
add to the many collateral issues now
pervading criminal trials still another,
a judicial determination whether theactivities of an informer had passed Q
some i1ldefined acceptable bounds.
Where, as here, there is no claim that .
the informer's activity infringed any
specific of the Bill of Rights or any
statute of the United States relating
to the conduct of investigations, and
the competing considerations are such
that we are unable to conclude that
it violates the "decencies of civilized
conduct", * * * such decisions had -
best be left to the executive branch,
which is accountable for its conduct
to congress. ~
435 F2d at 281 citations omitted!.
In US v. Szycher, 585 FZd 443 CA 10 1978], the 1
Tenth Circuit also recognized a possible due process defense
based upon outrageous conduct by law enforcement people.
The informant there had used and distributed cocaine to
others, had fraudulently solicited credit, had converted
and stolen property, had failed to pay his just debts, p
had a past criminal record,_and had been paid $300 a head
by the government agents for each person he could bring73
'2
Y
¢
__ -
- . ' 74
into the drug trade. These factors, separately or together,
were insufficient to warrant dismissal of the indictment,
however, because they did not infringe any right of the »' r
defendant. To present a valid defense, the court held,
the misconduct "must be postured as connected in some way'
to the commission of the acts for which the defendant stands_*
. P
convicted". 585 F2d at 447. . -
Even with formal administrative regulations, ~ l '
violation does not require so mild a sanction as suppression §
of evidence, US v. Caceres, 440 US 741 979!; much less 1 '§.
. v t1
could violation of regulations or guidelines require~dismis- ~
sal of an indictment. y
_ Defendants point to certain "guidelines" for _
the conduct of undercover investigations that had been
established by Attorney General Levi and that were referred
to by Assistant Attorney General Heymann in his testimony
before a congressional committee 1ooking_into Abscam after i;
it went public. Awhile many of those guidelines may have n 3
been aimed at producing "reliable" evidence, none of them
alone expresses a constitutional standard. /K *
From the justice department's point of view,
an indictment should not be brought without an excellent
chance for a conviction; weak cases, therefore, are to _
be avoided. Most of the guidelines have the dual purposes
-..
_-N .
r c. » I
.1
O. h
of injecting basic fairness into the proceedings and of
assuring a convincing case when the investigation is conclud
ed. Failure of an investigator to follow any particular
guideline or any combination of guidelines, however, does
not authorize a court to invalidate a conviction. Mere
weak spots in the government's case are properly the subject
of evidence and argument before the jury, as they were
in these cases, and they may increase the chances of acquit--
tal. But they neither guarantee nor warrant dismissal
by the court.
Defendants also point to the failure by FBI agents
to make the usual "302 reports" of some of the events which
occurred in the course of the Abscam investigation. Amorose
made few, if any. His explanation was that he was working
undercover and that the truly significant events_in which
he participated were fully recorded on tape, video and
audio. For him, completing 302 reports that summarized
conversations already fully recorded electronically would
have been useless paperwork. While 302$ are desirable,
perhaps indispensable for the FBI to efectively function
in its overall operations, their absence does not raise75
x
1
constitutional issues in these cases. Lack of documentation
of the government's investigation raises issues of credibili
ty, but not of constitutionality.
~ 7 ."92 ».
5. "Red Flags".
»
g Defendants argue that the justice department
recklessly disregarded certain "red flags" which should
have put them on notice that the investigators were "out
of control". The focus here is upon a series of claimed
instances of Weinberg's misconduct, coupled with.certain
warnings and questions that were raised about the investigae
tion by Robert Del Tufo, United States Attorney for New
Jersey, and two members of his staff, Robert Weir, and
Edward Plaza.
First,
none of the instances, even if true, has any direct relation~as to the claimed misconduct by Weinberg,
ship to any protected right of these defendants. Except
for the three expensive watches that Weinberg promptly
turned over to the FBI, there is inconclusive evidence
in the record about the gifts. The court is satisfied
that DiLorenzo,-Brrichetti's nephew, lied about the microwave
oven. The other
It is true that Weinberg encouraged Errichetti -
and Rosenberg to
supposedly to be
of cash from his
simply furtheredevidence of gifts is simply unpersuasive.
provide forged certificates of deposit,
used by the sheik as security for release
overseas banks. This technique, however,
the overall investigation and was carried
on under the supervision of and with the knowledge of the
we ._ 927
u
F
1' 1'
FBI. By convincing Brrichetti and Rosenberg that Weinberg 7
Amoroso and the sheik were willing to act illegally, Weinber
carried forward the theme of the overall scam, and made
his other overtures to them appear more credible. No social
harm came from this conduct; the phony CDs were turned
over to the FBI and were never used.
Similar considerations control Weinberg's receip
from Errichetti of a letter forged over the signature of
Senator Williams. Weinberg and Amoroso had told Errichett
that the new Arab businessmen who were considering buying
the titanium mine would like confirmation in writing that.
Senator Williams would guarantee government contracts fora
purchase of the titanium after the sale, just as he had
agreed to do for the original investors before the sale.t
i77
8
~
11
I
>n
I
I
Errichetti volunteered to supply such a document, indicating
his willingness and ability to have it forged. There was
no impropriety in Amoroso and Weinberg permitting Errichet
Yto goeahead when the only result was to have the forged
document delivered to them. Indeed, the document constitu
powerful evidence of the depths of corruption to which "
Errichetti, an elected public official, has sunk.
Much attention at the due process hearings was
focused upon the so-called "coaching incident" involving
Weinberg, Errichetti and Senator Williams on June 28, 1979
Just before Williams was to meet the sheik, Weinberg andCl
126S
Errichetti spoke to him about the impending meeting and
how they thought Williams should speak and act. Prior
recorded conversations among co-conspirators Errichetti,_
George Katz, Alex Feinberg and Sandy Williams had revealed
that Senator Williams was close-mouthed, reluctant to push
his own position, and frankly unimpressive to the likes
of Errichetti. Weinberg, of course, desired to have Willi
appear before the sheik and the hidden TV camera! without
inhibition or restraint so that he would clearly reveal
his position, made clear by him and his co-conspirators,
that he would_guarantee titanium contracts. In Weinberg's
conversation with Williams, which Weinberg recorded, he
urged Senator Williams to impress upon the sheik how impor
tant and influential the senator was, that he should."come
on strong", that what he said was not important because -
Williams was "on stage for 20 minutes". Weinberg told
Williams "You gotta just play and blow your horn- The
louder you blow and mention names, who you control *»*
* ." Williams Ex. 14. '
_ .m s
Defendants argue that this kind of "coaching"
X
of subjects in advance of their appearances before the
hidden cameras is grossly improper and typical of the-over
conduct of Abscam. It is neither. While not to be condon
- 5
because it creates a serious danger of unreliabilityg such
7.
conduct by Weinberg could be the basis for corrective judi
P
~I
8111578
A
u
all
ed,
Q
.- <.~
/92
92-I/' ~.
_Wi1liams was not a weak, naive, inexperienced person.- * 79
cial action only if it appeared that it actually had some
effect upon Williams own behavior. When he testified
at his own trial, however, Williams stated that he paid y
no attention to what Weinberg had told him, and that when
he appeared before the sheik he knew what he was going
to say and he said it. Williams Tr. 4284-86. Moreover,
- 92
On the contrary his intelligence, strength and insight
had carried him to the very heights of political prominence
and power. 7
Nor was the "coaching" incident typical of Abscam;
Except when on camera, at the meetings, Weinberg did noti
speak to any other of the congressional defendants at any
time, let alone at the critical point fust before the meet-
ings. Thus, none of the present defendants can claim to _
have been directly affected by the Williams "coaching"
incident, nor was there any pattern of similar operations
that in some way might/be said to have affected the rights' 22
of these defendants.
Considerable evidence was presented at the due
process hearing about a meeting at the home of special
agent Larry Schneider in New Jersey, held on August 9,
1979. The meeting was attended-by Weinberg, Good, several
FBI agents from New Jersey, and Plaza and Weir from Del_ ~
Tufo's office. ~
0 you .
Z!
Q .8
92
i According to Plaza and Weir, Weinberg was criti-
Qcized at that meeting for having given Senator Williams _
92. 5
instructions prior to the June 28th meeting. This testimony" '
was corroborated to some extent by two of the New Jersey . r
FBI agents. Weinbergs alleged response was that if he ~
did not put words into the subjects mouths the government ;
would never be able to make cases.
By the time of the due process hearing Plaza
and Weir, and, of course, the defendants, urged that this
incident with Williams constituted serious misconduct that
/
jeopardized the entire investigation. Plaza and Weir testi-
fied that a serious argument developed between Plaza and
Weinberg at the August 9 meeting, and that "putting words
in subjects mouths" became a major point of concern for
the rest of the investigation.-
There is no question but that some sparks were.
generated at the August 9th meeting, Plaza's abrasive.
manner and blunt criticism caused Weinberg to argue with, .
him and later even to threaten to quit Abscam if Plaza. t
and the New Jersey prosecutors were going to run.it. Even
before the August 9th meeting Lawrence Schar£ of the Eastern
District strike force had cautioned Weinberg that he should
not put words into the subjects mouths. Weinberg and
Good disliked and distrusted Plaza and his participation
m. f .
F 92» 8/8
in the investigation. Whatever may have been said at the
August 9th meeting, over the ensuing months Plaza and Weir,
wrote several memoranda criticizing Abscam and its handling T;
by Pucci0's staff in the Eastern District of New York, *
but the "coaching" incident received only passing reference» i
To the extent that Plaza and Weir urge that it was a continu-
ing and active point of dispute, therefore, they are inaccu3_:
rate. By the time of the August 9th meeting it was past
history, and the technique was not thereafter repeated.
The motivations for the conduct and testimony by Plaza ' -
-__..and Weir and their superior, Robert Del Tufo, are discussed .
in section VIII, infra. 1 T
l
i
I
I
/"
* ~.. ,
»< "
/"- *
' - Ha
6. Use of Middlemen.i
The congressional defendants uniformly complain
of the government's use of middlemen such as Criden, Erri~
chetti and Silvestri. QThey characterize themsas having _
been "deputized" so that the government could evade its
OWD.responsibilities. Under this argument, defendants
urge that after it became apparent that Weinberg could
11012
the
and
the
and"coach" the subjects before they appeared on camera,
government then had Weinberg "coach" Criden, Errichetti
Silvestri so that the middlemen in turn could tell
congressional subjects what they were supposed to say
do when they met with the sheik's representatives.
In effect, defendants argue, the middlemen themselves were
made representatives of the government, which now must
answer for their misconduct. "*
forn
To suggest that the government be held responsibl
the criminal, corrupt, self-seeking machinations of _
Errichetti and Criden is ludicrous. Those men, as well
as Silvestri, smelled easy money to be made by bringing
in corrupt politicians who would promise the sheik special
favors in return for money. The government, of course,
realized how venal and corrupt Errichetti and Criden were.
From the agents point of view, the surprising thing was
that any puhlic_of£icial would do business with such people
. , -,._ 92Y
E,-
I
I
!1
-» . - » r
O ' O
re 4
p i 3/%E
and, worse yet, permit himself to be brought into strange
surroundings to discuss private legislation with strangers '
~- representing foreign businessmen, and, worst of all, to ~
accept money under those circumstances. - _
The government's "use" of Criden, Errichetti -
and Silvestri was no more improper than an undercover agent's" '
infiltration of a drug ring in order to gain the confidence i
of its members and obtain evidence necessary for conviction.
US v. Russell, 411 US at 432. Like drug trafficking, traf-
. »
ficking in corrupt political influence is extremely difficult i
to detect. In a bribery transaction, as with a drug sale,b .92
both participants are satisfied with the result. There
is no "victim"; each side receives what.it requested.
The ultimate victims of drug sales are the users who become
addicted and enslaved to an extralegal system that forces
upon many of them a life of crime, misery and death. While
less dramatic, the consequences of bribery arefmore insidious.
. . 5
r No one suffers immediate pain; indeed,withqa_successful '
bribe, only the-participants know it occurred. ,The overall
consequences to society, however, are very dangerous. v
As Judge Newman noted on a pretrial appeal in
the Myers case, - -
[B]ribery is a secretive enterprise,*~ not likely to be detected as lqng as
the bribe giver and taker maintain
their silence. A sting operation,
__ -
0 . r 7 92 §.i1,,.ts=~
of our government, If legislative action by members ofit is urged, provides a needed law » .
enforcement weapon. Finally, emphasis
is placed on the high public interest
in guarding against corruption.in the
legislative process. The.known availa- ~
bility of a bribery sting can act as
a powerful deterrent.
US v. M ers, 63.5,F2d. 933, 939 CA2__!'_L19so . _ _I
When public officials are as readily corrupted as were> ~ ,
the defendants in these cases, the republic is in grave
~ x
danger. Far more threatening to our national survival -
Ithan any foreign enemy is corruption and rot at the center " I
congress can be purchased with funds supplied by unseen
foreigners, in jeopardy is the very core of our democratic
government, faithful representation of citizens by their
elected representatives. -
Detection of bribery is difficult, if not impos-
sible, unless either the one who offers or the one who -_
receives the bribe cooperates with law enforcement.. Because
most bribes occur in secret, usually in a."one-on-one" ' <
situation, proof of such meetings by electronic recording '
is essentia1., In order to detect and successfully prosecute
crimes of the type committed here, law enforcement officers ~
must have considerable latitude to infiltrate the activity,
to pose as persons willing to pay money for favors, to '
encourage others to produce corrupt politicians who will
accept bribes, to present a misleading appearance by use,
. -, r
~_ ,
i
1
l
J. I
;., - _
I
K./"K. .. ,, ... a-. .. .. :4
i J?
for example, of the "sheik" scenario, complete with yacht,
airplane, private hotel suites and other trappings of wealth,
and to secretly record the resulting bribe transactions. ~
Middlemen are a necessary part of the overall investigative
effort, for a corrupt politician would be_most unlikely
to respond directly to a strangers bribe overtures. More _
likely, he would prefer to work through a "bag man" or '
at least through someone in whom he has confidence, generated
perhaps by past personal experience in similar matters.
p In these Abscam cases, the government presented
no independent evidence of any prior arrangements between
these middlemen and the defendant
ment did have, however, confidentcongressmen. The govern-
assurances by the middlemen
that they had the contacts and that they could.and would
produce congressmen ready to take
dants, those assurances must have
more than mere hope, be it actual
or whatever. But on whatever thebribes. With these defens-
been based on something
knowledge, past experience,
middlemenfrelied, it _ k
obviously combined with ready corruptibility on the part_
of the defendants.92 _
The agents had no.duty to independently verify -
the middlemen's claims of access to corrupt congressmen;
simply waiting to see what happened was verification suffi~
, ,
cient-toiprovide reliability. In some cases the middlemen's
¬-
a1 -
/._
C
92claims proved unfounded; in others, however, as with thesere,
defendants, the"t1aims-sadly*§r6vedTto saracearare. p "
Unlike the other congressional defendants, Thompson
did not accept his money on the first offer. After he
left the meeting, Criden argued extensively with Amoroso, '
claiming that there had been an earlier understanding between
Criden and Weinberg that the payment could be made to Criden
for later delivery to Thompson; When Amoroso made it clear r
that the payment would have to be made either directly
to/Thompson or to Criden in Thompson's presence, Criden '
asked for a second opportunity to bring Thompson to them.
That same evening he returned with Thompson who, then,_
readily accepted the money.
V . Although Thompson tries to make much_of these
differences, his rights were in no way infringed by these
events. Placing these recorded meetings together,_Thompsons
understanding of what was happening and his willingness
to accept the bribe money were crystal clear to the jury ,
and to this court. s " '
Citing the interim meeting on October 9, 1979
wherein Criden, Weinberg and Amoroso discussed Thompsonis
refusal of the money in his first appearance before the
cameras, Thompson argues that the government in many ways
improperly authorized Criden to misrepresent to Thompson
what was going on. Such an interpretation of the interim
§
1».
[M
C0 1 W
meeting is misleading. A more accurate view is that Criden
was disappointed by Amoroso's failure to give up the money ~
to Criden and Thompson, even though Thompson had not commit- r
ted himself to assist the sheik on immigration. I _
In effect, what Amoroso and Weinberg did was
to give Criden a second chance to demonstrate Thompson's 1
corruption» Perhaps he had not sufficiently prepared Thompson
for the meeting; perhaps Thompson had temporarily lost
his nerve. In any event, Criden said he wasjconfident
that proper assurances could be made and that delivery
of the money could be made in Thompson's presence based
on those assurances.. An overall evaluation of the two
Thompson meetings, linked by the interim meeting between
Criden, Amoroso and Weinberg, was uniquely a problem for -
r .
the jury, and raises no constitutional issue. ,
Moreover, in the actual context of the trial,
the events of October 9th were not the conduct for which u
Thompson was charged or convicted. They, together with
the testimony by Congressman John Murtha, merely provided
background to show that Thompson had aided and abetted_,/
Murphy in Murphy's receipt of a $50,000 payoff at a subse-
quent meeting.
Ultimately, Thompson's arguments come down to '
a contention that the evidence against him lacked reliability
-.
I
i92
w - QO D
.51?
and was insufficient to prove beyond a reasonable doubt -
that he was aware that he was engaging in bribe activities
on October 9, 1979. However, reliability is provided by
the videotaped episodes, and by the testimony of Congressman
Murtha. What interpretation should be placed up0n.that '
testimony and upon what was said and done in £ront.of the
video cameras was a function for the jury. There was no '
way for the government to prove what Criden said to Thompson
over the telephone or in Thompson s office. Thompson,
-himself, testified to those conversations, but evidently
the jury did not believe him. If these events~failed to
measure up to the justice departments recommended guide-
lines, that might help the justice department determine
whether or not a strong case was "made", but it does not
render Thompson's conviction unconstitutional-
7. Book-writing. 1 '
_ Defendants contend that their constitutional
rights have been violated because,of alleged bookrwriting
activities by Weinberg, Puccio'and a retired FBI agent,
Neil Welsh. Agent Welsh had little contact with Abscam
while it was going on, has not yet written a book, is not
shown to be about to, and in any event, is a retired agent
over whom the government has no control and for whom it ~
has no responsibility. '
n
/-'92
92Weinberg, himself, has not written a book, but
did cooperate with one Robert Greene, who published a book -
. ' 23/ "
in April 1981 about Weinberg and Abscam.__' Since Weinberg
is not a federal employee, his conduct cannot be-controlled
directly. It may be, as defendants contend, that Weinberg
surreptitiously obtained from FBI files copies of some
of the photographs appearing in Greene's book; There is
no evidence, however, that the FBI or anyone from the Depart-
ment of Justice assisted him in that activity. _Most impore
tant, defendants have failed to show that Weinberg's coopera-
tion with Greene in any way infringed any right of the
defendants, all of whom were tried and.convicted before
the book was published. In fact, the Greene book project_
may have actually assisted defendants, for they used informa-
tion in Greene's outline for the book as a basis for cross-
examining Weinberg at trial and information taken directly
from the book in an attempt to bolster their arguments}
on these motions. . I "
The problems presented by allegations that Puccio
agreed to author or co-author a book are different. Puccio
was head of the Eastern District Strike Force all during
Abscam, and he was the highest "line"_agent o£ the justice
department with direct, daily supervision of Abscam; He
also prosecuted all three of the cases now under considera-
tion as well as Senator Harrison Williams and Alexandern.
Feinberg. Clearly and uniquely, he controlled and directed
Abscam. A
Defendants contend that Puccio agreed.with Jack
Newfield, an editor of The Village Voice, to write a_book
about Abscam. If true, such an agreement would be grossly
improper, if not a criminal violation under at least the
conflict of interest prohibition of 18 USC §203. Upon
closer ewamination, however, defendants[ allegations have
proved to be mere wishful thinkinga
Newfield and Puccio have known each other since
1976 and became Close_personal friends in 1978 when both.
became fathers. They and their families have vacationed
together; they meet frequently on a social basis» In the
summer of 1979, Newfield, who has written a number of books
on social topics, inquired of Puccio whether he would be
interested in collaborating on a book about federal law
enforcement based primarily upon Puccio's experience in
the Strike Force. Puccio's response was that he might .
be interested someday, but could not consider it as long
as he remained employed by the government. Newfield per~
suaded Puccio to meet once with Newfield's literary agent,
who, after discussing the book possibility with them, con-
cluded that such a book would have only limited sales appeal
Nothing further was done about such a book., At that time,
#-I
v.
5
¢
v_ y
neither Newfield nor the literary agent knew anything about
Abscam. - . - -
>
Newfield first learned of Abscam when it went
, .
public on February 2, 1980; _Shortly after that, Newfie1d's
agent, recognizing the sales potential of an insider's '
story on Abscam, asked Newfield if Puccio would collaborate 1
D on a book covering the investigation. -Doubting that he'
, -92. ~would do so, Newfield nevertheless asked Puccio about it
and received the expected reply; that Puccio could not
even discuss the matter until the cases were closed and.
Puccio had left the department. Despite Puccio's unwilling-
ness, Newfield himself signed a contract with a.publisher
to write a book on Abscam, and the contract made provision
for the possibility of an unnamed collaborator who would
receive a substantial cash advance. Puccio did.not know
about the collaboration clause until January, 1981. Both
Puccio and Newfield testified that there was no formal
or informal agreement or understanding between them with »
respect to the collaboration clause, and the court believes
them. i ~ E '
§
Obviously, Newfield and his publisher would.like
to have Puccio as a collaborator on a book about Abscam, A
as no doubt would many other authors and publishers. It
is equally obvious to this court, after hearing both New- .
field's and Puccio's testimony on the subject, that Puccio _W
-1»
I . . _ - . Ii 1,_ . ., ' _ "
off
never agreed to write such a book, and.he has never consider~
ed doing so as long as he remains an employee of the justice
department. At all times Puccio has acted with complete _
integrity and propriety with respect to Newfield's overtures
to him about such a book. Nothing in these circumstances,
in any way taints the integrity of Abscam, its resulting
prosecutions, or Puccio's handling of them. -
8. The "Asylum Scenario".
1 There was some conflict in testimony in the varioes~
trials as to precisely how, when, where, and by whom,the
so-called "asylum scenario" was created- It may have been
suggested by Weinberg in the spring of 1979. It may simply
have occurred to Amoroso when he read of General Somoza's-
problems in remaining in this country, problems that were
extensively covered by the news media just one day before
Criden and Errichetti arrived on the yacht in Florida to
discuss casino financing. _While the differences in testimony
might be proper considerations for the jury in determining
the credibility of Weinberg and Amoroso, the ultimate facts
surrounding origination of the asylum scenanio are immaterial
to this case. Whether it came from Weinberg, or Amproso,
or someone else, makes no difference to any issue before
the court, nor to any issue before the jury except credibili-
ty. The undisputed facts are that it was discussed on *
the yacht with Errichetti, who, on the plane ride back
_ . 1A"}l>4v~»
E
!
!3
@__
~K"b 0 '
6;?
b
to Philadelphia discussed it with Criden, and that shortly
lthereafter Criden and Errichetti together began producing
politicians who accepted the bribes offered to them.
C. Weinberg and His Conduct, _ '
Defendants focus a number of attacks on Melvin .92
Weinberg, whose peculiar talents undoubtedly contributeds
much to the success of Abscam. Some of these arguments
1
are dealt with in earlier sections of this decision, e.g;,
VI-AT3, VI-B-1, VI-B-Z, VIB-5, VI-B-6 and VI~B-7, supra.
This part of the decision considers some of the remaining
arguments against the government's use of Weinberg in thisi
investigation. .
| rI .1
1." Weinberg's Criminal Background.
p Defendants-argue that the government knew that
Weinberg was untrustworthy and that defendants due process
rights were violated when the government permitted.such i
a'person to play a major role in Abscam. For Abscam to
have been successful, however, the investigation required
a man of Weinberg's unusual persuasive talents.» He was t
an experienced con man, who in the past had successfully
played the role of front man for wealthy Arabs, and who p
had numerous contacts in the gray world of those who associ-
ate with organized crime figures, influence peddlers, crooked
businessmen and corrupt politicians. Clearly, Weinberg .
' _ H _ . _.. _. _,. ...- _.._-..-...
->. _'
e/M
C. 92does not have the "pure" background one might reasonably .
expect in an FBI special agent. But it was precisely because
a
of his unsavory background, his ability to lie convincingly,_
his understanding of the corrupt mind and his ability to
imagine and execute a grand charade on the scale of Abscam
that Weinberg was enlisted for the investigation. Further,T
4' .
Weinbergrgave considerable credibility to the entire under»V6%
<
4
i
cover operation; persons dealing with Weinberg in the contextI
of Abscam could check him out with other sources and be v
wrongly assured that they were not dealing with government 5
agents. Weinberg had a track record that no legitimate
government agent could provide or falsify;
I Moreover, the government was not required to
find Weinberg "reliable", as would be the case if he were
an informant whose information.was used to obtain a search
warrant. As indicated elsewhere in this decision, section
VI-A-6, supra, the basic reliability for the investigation,
and ultimately for the prosecutions, was guaranteed by;
having the crimes committed on camera under circumstances
guided by Agent Amoroso and closely supervised by Agent
Good. ,
Defendant Murphy would analogize Weinberg's prior
"front fee scam technique" to his claimed solicitations
of gifts and loans from subjects of the investigation. ~
But even assuming that Weinberg in Abscam solicited giftsv ,
_ ,, ..L
0 his re'l"a~t-ionship with the FBI, that fact would. not. in any - _92/ /-5 DIS
1 _ _ t I - 9
and loans, they were incidental to the scam and not the
heart of the transaction. The focal point of the criminal i
transaction here was the substantial financial benefit g l
of $50,000 delivered to the congressmen. While anything
of value Weinberg received from defendants beyond the~knowl-
edge of the FBI may subject Weinberg to difficulties in _
way alter or detract from the acts of the defendants.'i -
Throughout these trials, defense counsel sought to make I
Weinberg's character and activities the key issue before
, the juries, thus distracting from the conduct and motivations d
of the defendants. These issues were unsuccessful "red
herrings" at the trials, and they are "red herrings" still.
The court finds no constitutional infirmity in
the government's use of a person of Weinberg's background.
_as a central figure in this undercover operation»
W 2. Weinberg's Finances.
Defendants also urge that their due process rights
have been.infringed because of a! the amount of money !
paid to Weinberg during the investigation and prosecutions,
b! a possible promise to Weinberg of a bonus at the end,
and c! the government's failure to require Weinberg to
~ pay income taxes.
-_ .
92 7~ _.r.">
~ @109
There is no question but that Weinberg has been '~
substantially compensated for his Abscam services. The
total payments to him at the time of the Williams trial '
amounted to approximately $150,000. From approximately
April 1979 to April 1981 he was paid by the FBI at the _
rate of $3,000 per month, plus expenses, plus certain bonuses
in recognition of work perceived by the Bureau to be excep-
tional.
to receive a substantial additional payment when Abscam
is concluded. He hopes it will be on the order of $100,000. Q
Both Weinberg and the FBI agents deny that any bonus hasIn addition, Weinberg testified that he expected
been guaranteed to him or that any additional payments
are conditional upon the ultimate success of the prosecu-
tions.
Here the court finds that Weinbergfs payments
in Abscam have not been contingent. Even if they were,
however,that would be but one more fact to be weighed _
in determining the reliability of the results obtained. *
Payments
of those
but such
See, e.gto informants contingent upon successful prosecutien
with whom they deal§have been judicially criticized,
payments do not require dismissal of an indictment-
, US v. Brown, 602 FZd 1073 CA2-1979!; US v. ~
Szycher, sss F2d 443 CA 10 1978!. §
-2
. i
I
I
,~ 1' " ,_~1__I
I
. 40 Q 9-
. K"
92-A
By cooperating with the government in establishing
~and operating Abscam, Weinberg has essentially devoted .a
nearly three years of his life to this investigation.
His personal safety is in serious jeopardy, and.there is
little that he can do in the future by way of either legiti *
mate or illegitimate activity. His "career" as a con man '
has ended because he is so well known. Legitimate business j
3men undoubtedly would shun him, because of his confessed
criminal history and obvious talent £or subterfuge, trickery ;
. . ,;and lying. »
I
Whether his contribution to law enforcement in
these cases and the personal sacrifices he has endured,
during both the investigation
worth the amount of money the
upon him, is perhaps a matter
by the justice department andand the prosecutions, are
government has conferred
for serious consideration
even by congress. It is
not, however, a matter upon which this court will pass
judgment for purposes of determining whether the fruits
of his activities on behalf of the government should-be
dismissed. How much money is paid to a government informant "
is peculiarly a decision for the executive department,
and not one for judicial review at the behest of a defendant
who was caught by the informant's activities.
.- -.-1
_ * ~ 92/92i Big
' -- 292
income tax liabilities. All citizens, of course, must
meet their obligations under the internal revenue~lawsr
When a citizen fails to do so, he or she may be subject
to administrative or judicial penalties for failure to
meet those obligations. As with the previously discussed
possibility that Weinberg extracted gifts from.defendants
without knowledge of the FBI, Weinberg's failure to pay
taxes may subject him to difficulties in his relationship
with the IRS or the FBI. What is clear, however, is that
these defendants have suffered no infringement of their
rights because the government, for whatever reason, has
not yet prosecuted Weinberg for possible income tax viola~
tions. ' X ~ _
D; Miscellaneous Claims.
1. FBI Interview of Lederer.
Defendant Lederer claims he was trapped into
giving a false statement to an FBI agent who interviewed
him on February 2, 1980. He claims that the agent knew
the true facts, but asked questions of Lederer which permi
ted him to give false answers. According to Lederer, this
was an effort to "test his morality" and his failure of
the test had the effect of prohibiting him from testifying
at trial. In effect, Lederer argues that the government
. 9292 .W_;H Z, The issues are similar with respect to Weinbergs
t-'-
t
O
, Ii
has no right to ask him any question to which it already
knows the true answer. V
Q
' Merely to state the argument is to refute it. a
If such questioning by an agent violated a deendantfs '
due process rights, much legitimate governmental investiga-
tion would be stymiedi Defendants do not need such unprece¥i
dented protection, since truth is a solid protection for ,
the innocent. When a person is questioned by an FBI agent,
he or she may answer truthfully, without fear; if no crime
ahas been committed. If a person has such fear; protection- .
is limited to the silence guaranteed by the fifth amendmentis f
privilege against self-incrimination. No defendant has, '
a constitutional right to lie to the investigating agent,
- »
and then have a successful prosecution set aside because
the agent knew at the time of the interview that the de£en~
dant's statements were lies. " " i
2, Instructing Agents about Testimony.
Defendant Lederer claims that the government
instructed its agents to "pepper" their testimony'throughout '
/
the trial and due process hearings with the answers, "I
don't know" and "I don't recall". To begin with, there
is no evidence whatsoever that any of the agents-or Weinberg
was given such instructions. Of course, many of the ques-
tions did produce such responses. In this court*s view;
1
" -.9 --~ .
92 /A
. 09. l I 10
however; when the agents testified that they-did not recall
an incident, their lack of recollection did not appear
to be unreasonable or deliberate. A '
The questioning of the agents was intensive,
focusing frequently on many irrelevant details, and covering
many circumstances that an agent might reasonably forget. '
The investigation had covered many months and included
hundreds of meetings and conversations with a large number
of people. It used electronically recorded conversations»
as the primary means for record-keeping, thereby greatly5
' relieving agents of the need for careful recall of many
events. Moreover, particularly with Weinberg and Amoroso,
the undercover operatives were dealing with a number of
fictitious stories that varied from subject to subject-
Keeping them straight at the time must have been.severely
taxing. To fully recall them all several months later,
in proper sequence and with the minute detail demanded
by defense counsel, would have been impossible. The court
detected no signs of evasiveness on the part of the agents
or Weinberg. When they answered "I don't know" or "I don't
recall" the court was satisfied that they were truly reflect-
ing their actual recollections at the time. .
92
J -. _ - .. .., __
i
z
E
A
E
E
¢
1
1
1 ,..
C lo!
.101»
3. Entrapment of Lederer.
Defendant Lederer, the only one to request an
entrapment charge to the jury, argues entrapment as a matter 4
of law. To the extent that his argument focuses upon "objec-
tive entrapment", it has been covered above in section -
VI~Al, supra. However, since entrapment was also a jury Z
issue for Lederer, his argument of "entrapment as a matter
viewed as an assertion that on the . of law" can also be
evidence before the jury no reasonable juror could find =
beyond a reasonable doubt that Lederer was predisposed d
to commit the crime.
Lederer argues that the government's proper role .
was limited to detection of persons who were already involved
in criminality, that Lederer's crime and the intent to
commit it originated with the government agents, not defen-
dant Lederer, and that "absent the temptation offered by _
1the government agents, Lederer might not have committed a
the crime." Lederer's memorandum at 7. The essence of ~ 1
this claim is that the government; evidence, which estab-
lished no more than criminal conduct on this one occasion,
was legally insufficient to meet the government's burden
of proving that Lederer was "predisposed".
The flaw in Lederer's argument, however, is demon-
strated by the careful exposition by Judge Learned Hand AI
Z
i
i
I
I
t
i
I
.
»
Z
1
-
3><
-r
I 92'1 A 1 »... __- H
:05-
. _1.0
of the three means available to the government to show
predisposition of a defendant where that defendant claims
that governmental officials had designed and provoked the
particular crime: -
an existing course of similar criminal
conduct; the accused's already formed
design to commit the crime or similar
crimes; his willingness to do so, as evinced by ready co%plaisance. '
US v. Bec er, 62 F2d 1007, l008 CA2
19331 iemphasis supplied!.
It is not unfair to permit a jury to infer a
defendant's mental state, his predisposition, from the
manner in which he responds to a bribe offer. With Lederer,
who confirmed on videotape that he was "no Boy Scout",
his willingness, eagerness and predisposition were easily
and reasonably inferred from the videotape of the bribe r
transaction, evidence that was more than sufficient to
support the jury's verdict. Under such circumstances,
Lederers claim of entrapment as a matter of law must fail.
4. Publicity Leaks,
In pretrial motions all defendants argued that
the indictments should be dismissed because of prejudicial
publicity given to Abscam before return of the indictments.
There can be no doubt but that leaks from the Department
of Justice did occur. Judge Mishler denied defendants
pretrial motions to dismiss on this basis, finding that;
92 1 ,>
F
1
T
1
<e
¥
r
i
F
&
I
l
V
l
F
it
vI92 .
defendants "failed to demonstrate that they suffered actual
prejudice by reason of the pre-indictment publicity."
Memorandum and order of August 6, 1980 at l5. Judge Mishler
also found that dismissal of the indictments would be an ~
unwarranted exercise of the court's supervisory powers.
These leaks caused serious embarrassment to the
'government and such concern to the justice department that
it designated Richard Blumenthal, United States Attorney
for the District of Connecticut, to investigate and report.
At least part of his findings have been made public, and
appropriate internal discipline has been administered to
the offenders by the justice department.
This court need be concerned with the causes
of the leaks only if
There is no indication here that either fair treatment
before the grand jury or a fundamentally fair trial was
in any way compromised~by the barrage of publicity that
92-
accompanied public revelations of defendants activities
and the Abscam investigation. Before the grand_jury, the
cases of all of these defendants were extremely simple,
consisting primarily of the videotapes. There is no indica~
tion that any of the grand jurors was influenced in.fav0r l
of returning indictments by earlier publicity, and Judge
Mishlen disposed of this aspect of defendants claims in
his memorandum and order. Of course, the indictments re-
~ .
" ~ » fmw .some right of a defendant was infringed. -I
3 r
I
92
c_.._1.°
v
F
s
Y.u
:%
»
I
r
7
n.
L.ht
E
{I
I!92
.5
'e~
| .4{x 4
turned have ultimately proved to be well-founded, because M
~ - 10
_~ in each case-extensivehtrrarsg"vigoreuslyandrme%ieuleusly=¢-
defended by able counsel, have established not only probable _
cause for prosecution, but guilt beyond a reasonable doubt. 2
- . u
As to the trials themselves, the court is satisfied 92
that each juror selected was free of any prejudice or
" bias that may have resulted from the leaks of information t
out of the justice department, other pretrial publicity, i
or the information made public in preceding trials. Careful z
|
questioning of each potential juror eliminated those who 5
_ showed prejudice from prior publicity and succeeded in '
. selecting for each trial fair-minded jurors who were able
to view the evidence impartially and reach a fair determina-
- 24/ '
tion.A
K
l}
<
0
»
w
u
>
1
1
s
1
1
1
r
n
Y
I
.
E
P
a
-D 103
_ v11. JUDGE FIlLLAM'S DECISION IN.
' Since
the indictments
and Schwartz on
now before this
0 is appropriate.US V. JANNOTTI AND SCHWARTZ
Judge Pullam in Pennsylvania has dismissed
against Philadelphia councilmen Jannotti
post-conviction motions similar to those
court, some discussion of his decision
US v, Jannotti, 501 F Supp ll8Z ED Pa
1980! appeal pending]. Familiarity with Judge~Fullam's
opinion is assumed. - -
~ g In reaching his conclusion, Judge Fullam was
r.
between the Philadelphia trial events and federal jurisdicobviously influenced strongly by the tenuous connection.2.
tion, and he expressly disapproved "artificial federalization
25/of purely state crimes". 501 P Supp at lZO4.*_ The Phila-
delphia "bribes" involved local officials and their relation-
ship to local zoning matters in the city of Philadelphia.
Schwartz and Jannotti made no committment that they would
be influenced in their decisions. xlndeed, they were so
anxious to have the sheik construct his hotel complex in
the city that the mere offer to make such an investment
would have guaranteed any reasonable variances required.
Defendants had not requested the bribe payments and they
made it clear that such payments were unnecessary. Under .
x these circumstances, Judge Fullam found that the Hobbs
Act, 18 USC §l951 a!, which provided one of the pegs forI<" W5
IK
I
-.
?
+
>
4.
>
t
1x
l
>
'k
»
»
F. D
" 106
O
K1.
-_-~Q O
1,
federal jurisdiction, did not apply because there was no
extortion within the meaning of the,statute. Moreover, l 1
according to Judge Fullam, the Hobbs Act does not operate
"to confer federal jurisdiction over purely hypotheticalI
potential impacts on commerce which could never occur.
501 F Supp at 1185. ,
Wrth the Abscam cases now before this court, -
the Hobbs Act is not in issue. Instead, the congressmen »
were charged with and convicted of violating other federal Q
statutes suchas bribery, conflict of interest, and criminal Q
,1
gratuity. Such direct violations of federal law by federal
officials establish unquestioned federal jurisdiction. k
Judge Fullam did find a basis for federal jurisdic-
tion under the alleged RICO violations, l8 USC §l96Z c!,
premised upon the activities of Cridens law firm as the
"enterprise". Since Judge Fullam found the RICO convictions 1
to be supported by sufficient evidence, he found it necessaryf
~ ~ r
to consider the entrapment and due process issues, both I
of which he resolved against the government.
Many of the factors that were central to Judge
Ful1am's due process decision in Philadelphia, however,
are either different or absent from the New York cases-
With Jannotti and Schwartz, for example, the undercover
Qagents indicated that the sheik would not consider investingu
4
8
5
l
i
E
i
£
-.
1
- ~ i 1
reI
s <
1
92.:07
~ ~ 10?
in the city unless the councilmen accepted the money that
was offered. No parallel threats were made with the congress~>
men. On the contrary, with each of them, money was clearly
offered in relation to official conduct in immigration
matters. If the official agreed to be "influenced? in
that matter, it was hribery under federal law; if the payment p;
was received merely in relation to the matter, it was a i
criminal gratuity or conflict of interest, or both...
Further, the extensive emphasis in Philadelphia
on the "Arah mind", 501 F Supp at 1194, was not nearly
as significant in the dealings with the congressmen. Only
in the January 25, 1980 meeting with Myers was there any
significant reference to the "Arab way" or the "Arab mind",
and this was months after"Myers had taken his bribe. .
Moreover,1unlike the case involving the Philadel-
phia councilmen, the Congressmen here were presented with
a clear request that their official conduct be influenced,
in a manner that would otherwise not occur._
Judge Fullam found the inducement to the counciimen
to be so attractive that the government could not use their
acceptance of the money as evidence of predisposition.
The large sums, the fact that the councilmen were not asked
to act improperly but only to do what they would have done
anyway, and the threat that if they did not take the money
1
... _.- ..,-...._ ,-'~.I»
>
<
:2
§
:I
l,
>
F
K
E
:
4
I
1Ii?
:
!
!
r
~
»
1
r
5
E
F
1
f
EQ _
.92¥ there would be no project, all combined in Judge Fullamfs
view to preclude the mere acceptance of the money as suffi-
cient evidence of predisposition. With each of the congress-
men charged in these indictments, the circumstances were
far different. While the amounts offered were comparatively
large, they were to be shared in substantial part by the
co-conspirators. In each case the congressman was asked
to act improperly and in clear violation of federal law,
and in no instance was there any indication that other
conduct by the sheik would have been influenced by whether
or not the money for immigration legislation was accepted
or refused. On the contrary, the congressmen wanted the
sheik to invest in their districts so as to provide a "cover"
for support of his immigration to this country.
Since he was sitting in the Third Circuit, Judge
Fullam was, of course, governed on the due process issue
by US v. Twigg, S99 F2d 373 CA3 1978!, one of the few '
cases En record where a conviction has been set aside because
of the government's excessive creative involvement in a s
crime. Although he recognized that "governmental subterfuge
and even creative involvement may be necessary to combat"
municipal bribery, Judge Fullam concluded that the techniques
employed with the Philadelphia councilmen, Schwartz and
Jannotti, "went far beyond the necessities of legitimate
law enforcement" and, under Twigg, ordered that judgments103
1
>
1
I
r
-I
i
92u
1
r
I
I
F
%
?
§n
1
1.
n2E
¬
r
i
5
° D/-"-
of acquittal be entered on their behalf. 501 F Supp at
l204.
~
_ Although Judge Fullam accepted the propriety
of undercover agents using a business entity, real or imagi-
nary, as an attractive target for corrupt overtures by
city officials even with hints that such overtures would
'. be welcome, he concluded that "it is neither necessary
' nor appropriate to the task of ferreting out crime for
the undercover agents to initiate bribe offers, provide
extremely generous financial inducements, and add further
/ incentives virtually amounting to an appeal to civic duty."
92_ ,
_501 F Supp at 1204. He also thought it permissible for
undercover agents to initiate bribe proposals "at least
in connection with suspected ongoing corrupt activities
on the part of the targeted officials." lg. b,
As previously indicated, this court is not directly
controlled by Twigg. To the extent that Judge Pullam found
due process violations in the undercover agents offering
bribe proposals in the absence of "suspected ongoing corrupt
activities on the part of the targeted officials" this-
court respectfully disagrees{ US vf Ordner, supra, S54
FZd 24 CA2 1977!. l
|' E
V If the "appeal to civic duty" directed at Schwartz;
, i
and Jannotti was essential to Judge Fu1lam's conclusion, _ E92
_ _ vv109 I
5
r
.-
5
E
92.
K
.T
pH
V
i
192
;
L
T1
L
a
i
1,
I
Y
M.92 _
/' ~
4-=¢
9292l'then his decision is clearly distinguishable on the facts.
Here, potential investments in the defendant congressmenfs
districts were essentially discussed as a means of protecting
the congressmen and providing them an explanation for their
proposed introduction of private legislation- Investments
here were an inducement to accept a bribe primarily in
the sense that a congressman's introduction of a private
immigration bill for the sheik in return for bribe money
could be justified to others by the sheiks financial partici-
pation in the congressman's district. The appeal here
was not to de£endants' civic duty, but to their greed,
backed by an assurance that the sheik would do what he
could to protect the congressmen from exposure
If Judge Fu11am's opinion should preperly be .0 t .
' 92
read to be grounded on outrageous governmental conduct
because the undercover agents initiated bribe offers and
provided extremely generous financial inducements, then
this court again disagrees. The government needs such ,_ _
techniques in its effort to resist corruption on the federal
level, especially where, as here, the issues are uncompli-
cated by the artificial jurisdiction problems
Judge Fullam's case. This need, coupled with
difficult task of uncovering bribery, removes
category of "outrageous" governmental conduct
of the undercover agents in the present casesthat beset
the extremely
tfrom the
the activities92rno
t . _- il
J Y
¢
»
I
y '1 E
/"'~- '
!
Q A- . Q "92I_ ._1.1
_ _ Judge §ullam's premise that providing "extremely
generous financial inducements" offends due process is,
respectfully, unsound. The subjective entrapment approach,.
the only entrapment approach acceptable to the Supreme
Court, see section VA, focuses upon the predisposition i c
of a particular defendant, so what constitutes a "generous .
r
i.
2
1 financial inducement" necessarily varies with the circum-
stances of each person being induced. If the courts were 1
r to establish a threshold amount beyond which no public
official could be convicted of bribery, the rich and the ,
k ,5 powerful, those most likely to be in a position to demand
large bribes, would automatically have the benefit of this -
defense and the crime of bribery as we know it would become
the poor public officia1's burden. There can be no per
se amount at which a bribe offer becomes so generous as
to constitute entrapment as a matter of law. Under the »
subjective entrapment approach, of course, the jury may
2
consider all these factors on the question of predisposition,
but a per se rule with respect to the size of monetary Q
inducement is illogical, unworkable, and unfair. ' -
Judge Fullam recognized that in evaluating "out-
rageous" conduct a court must consider the nature of the, .
crime involved and the tools available to combat it. See i
Twigg, 588 F2d at 378 n.6. The restrictions he would place
on governmental investigations of bribes, however, reflect 1
- <
~~~-¢-~-.* ..,--..r.<.. .-.1%
I
Y;
u
l
. fQ
F
~E
I
~
A
F
I
l
E
L
M
L
I
?
1
I
i
I
i
i
i
i
2.
a
I¬
K
E 1 j92.. H1
k
{W . -}f9~
O
. H<wil-_l¥
~ a different evaluation than that of this court as outlined .
in section VI-A-6 of this decision. In this court's view, 1. ' I 1 ,
investigation into corrupt public officials warrants at _ j
>
least as strenuous and imaginative undercover efforts as I §
do investigations into drug tra£fickers./ The harm, tangible 5»
and intangible, inflicted on this country by corrupt public I
' officials demands judicial support for law enforcement - I
techniques that deter corrupt conduct through fear of vigor-
ous prosecution. ~ - M
~In sum, the Jannotti and Schwartz_case-in the ;
,/ Eastern District of Philadelphia presented serious problems
- of federal jurisdiction not present with the congressional - E
bribes which were the subject of the cases in the Eastern é
District of New York; the circumstances under which the
money was paid to the Philadelphia councilmen were far
E
_ different from the cash transfers to the congressmen here; l92
V and the authority of the Third Circuit's decision in Twigg,
while binding in Philadelphia, lacks any parallel in thisI
4
circuit. Finally, this court cannot accept the suggestions L
by Judge Fullam that large bribes offend due process while " {~
2"
small ones do not, and that bribery and public corruption
may not be enthusiastically attacked by undercover techniques 2I
I
F
1
such as used by law enforcement officers in other contexts- L
'/"'92
VIII. DEL TUFO, PLAZA AND WEIR
In its early days, Abscam.was drawn away from'
1 . l
its investigations into stolen art and certificates of -
deposit toward the gambling casinos of Atlantic City, and l A
finally; due primarily to Errichettis activities, to the ,
corrupt officials in New Jersey and Philadelphia.
yRobert Del Tufo was United States Attorney for
New Jersey. Two of his assistants, Edward Plaza and Robert i
Weir, were assigned to work with Abscam once its intensifying_
2 / , n 92 focus on New Jersey became apparent. Abscam, however,
was the creature of the Hauppauge, Long Island office of
the FBI and was being run aggressively, but carefully;
by Puccio and his Eastern District Strike Force. Weir
and Plaza at least, and perhaps Del Tufo as well, were
jealous of the obvious importance and success of the investi-
gation. They were also.embarrassed because an investigation41
_ which began outside of their district had uncovered a cess-
pool of corruption swirling around Angelo Brrichetti who i
was mayor of one of the largest cities in southern New'
Jersey, as well as a member of the New Jersey state senate,_
and who openly claimed access to the.strings of power in
- the White House, in the New Jersey state house, in New
i 592_.~Jersey's casino control commission, in labor unions, and
in organized crime. For such a man to be unmasked by an
>-.--.,._.-4.~-».- - --§,.,_,_, ,I. 11 1
i
5
4
1
1
|
92
I
I
1
§
92
rI
I
>
1
v0
.. '
92
L-<
R-._.. ,__;/~~ n4- I
F - 1;
out-of-district-prosecutor was a severe "slap in the face" c
to those in New Jersey charged with investigating and prose-
_ IPcuting violations of law. I E 1
7 I
r
Once it became apparent that the New Jersey Z
U. S. Attorney's office would play a minor role in these :-
S .7major investigations, Plaza and Weir took a negative view
of everything about Abscam. They acted as if they'had t
convinced themselves that the highest duties of a prosecutor i
were to manufacture arguments £or defendants, to follow I
an ultra-cautious approach, and to be skeptical o£ all E i. >
new investigative techniques. Throughout their Abscam. . §
participation they urged the justice department to move E
it
more cautiously and slowly. Indeed, they did not want i ~ g
a at
to move at all until every possible flaw in the investigation i
could be meticulously checked. ' l 3
Of course, the government must not infringe_the
constitutional rights of any of its citizens, and New Jer~ _ *
. '_,_
sey's abstract, cautious approach to law-enforcement activi-
ties has great appeal in some circles-of government, of » ~ i
law, and of academia, But such hesitation and caution Q
is unrealistic in the practical hurly-burly of a fast-moving >
investigation that would not wait for lengthy relection, -
but instead demanded immediate decisions, aggressive atten- 5
tion; and imaginative, courageous responses to rapid develop-
ments. -
,- , _ -___,_. , ' _.
I
I
1
i
. 115
I
I
%
E1
=
i
:5
>
<
u
1
!.
z
5
»
i
r
:
=
R
E?»I 0 f <92
Under our adversary system constitutional questions
can ultimately be tested in the quiet reflection of a court-
room under established procedures and the rigors of cross-
examination. While a prosecutor must always be alert to
and protective of defendants rights, his or her primary
function is to investigate and bring to trial those whose
conduct transgresses the law. If all federal prosecutors_
were as hesitant to proceed in the uncharted Abscam.waters
as was the New Jersey office, federal law enforcement in
this country would be about as effective as was New Jersey's
with the New Jersey Abscam people ~ i.e., there would ~
be few, if any, indictments.
There is no perfect case. Claimed due process
violations have rarely required.dismissal either of indict-
ments or of convictions that were obtained on sound and
convincing evidence. The usual consequence ofa due process
violation has been an adjustment in what evidence-can be92
r
-
x
presented at trial, reflected in the redaction of documents~*
or testimony, or sometimes in the total suppression of§
>r
F
92
5
¬
I
r
B
if l r
92
rPlaza did not cooperate; in fact, he resisted; and at the
end almost obstructed the investigation. He may well have
believed that he was sincere in his concern for defendants
rights. Had the opportunity to prosecute been his, however
one wonders if he, too, might not have put more faith in
the adversary system and left it to defense counsel to *
raise some of the due process.questions that he and Weir
so diligently pursued in an apparent attempt to divert
Abscam's momentum from Senator Williams.
When Plaza appeared in court on the due process
hearing, he turned over to defense counsel a complete file
of confidential government memoranda that he had collected
from the New Jersey office, and he did this even though:
he had been specifically instructed by a superior in the
' .
justice department not to do so absent a specific direction
by the court. At the time, he gave no warning to the court
of the confidential nature of the documents he was producin
It was only through prompt and candid warning fromqone
of_defense counsel that the court was alerted to the implic
tions of Plaza's precipitous action. - '
Plaza and Weir also took it upon themselves to
complain to their superiors in Washington, with copies l
to all of the judges assigned to the various Abscam cases,
that the government prosecutors were wilfully withholding
Brady material from defense counsel. Although all of
_ _ _ I
t
-u3
g.
a-
I/~ nb
1
1
-
1
|
i]__]_|;
1
i
x
-
1
1
i
E
W»
-
2
iT
_ _ - .---- -» ~
the information referred to necessarily required careul. 1! 1'
ll}
examination through the due"proces¬"heéri§§ ane of if
revealed any violations by the Eastern District of New
York prosecutor under either grggx or the Jencks Act.
18 USE §3500. '
92- -
is f5
X
v
92I
F
E
k
92
L
i
>
92¢.
92E
3
K
92
E
é
I... M ~
' . l lli
IX. MOTIONS FOR JUDGMENTS OF ACQUITTAL AND NEW TRIAL$ ~
_ 92
All defendants have moved on multiple grounds
for judgments of acquittal or alternatively for new trials. {
Additional briefs on these motions were submitted by the ;
Myers defendants and by Murphy and by Thompson. 'Lederer
F
has relied upon the material included in his principal i
brief on the "due process" issues. i A
A. The Myers Motions. ;
In support of their motions, the Myers defendants -
urge all of the grounds that they advanced in connection .
with the due process issues and_in addition, argue ! p
that the court erred on various instructions to the jury;
particularly with respect to the credibility of witnesses;
! that defendant Errichetti's trial should have been _
severed from that of the other defendants; ! that the
evidence was insufficient with respect to Criden and Johanssn;
! that the prosecutor's summation was improper; S! that Q
the court's jury selection procedure was improper; ! '
that venue of the case in Brooklyn had been improperly ' i.
,/"manufactured" by the government; ! that there were certain
violations of Brady v. Maryland, 373 US 85 963!, particulare
ly with respect to the government's failure to disclose O
information bearing upon the credibility of Weinberg as
a witness; and 8! that there was.error in permitting the
~ .k
ii
I
§
5
5
:
!
1
3
E
L
i
1?
i
1
<
I
1
1.
4
I
r
< .
1
i
E
E
5
ii
is
9292
.
s
92
i
92 <
§
é92
l
E,
il/"=
Q";92 M
119
jury to see the videotape of Myers in January, 1980 as I
evidence of his state of mind in August, 1979
The court has carefully considered all of the Q
arguments advanced by the Myers defendants and concludes Z
that none of them alone, nor all of them together, constitute492 v92
sufficient basis for either a judgment of acquittal or ;
I 2
a new trial with respect to any of the four defendants.-
4
A few comments about some of these contentions are approprie '
8.126. A .
92
The complaints about the prosecutor's closing
argument ring hollow in the context of this case. Given
Myers surprising defense, that he was "play acting", they
defense dramatically placed into contrast Myers demeanor~
in his appearances with the undercover agents before the
TV cameras and his appearance on the witness stand.before
the jury. Under these circumstances the prosecutor's T ,
comments about "incredible" and "Alice in Wonderland" consti~§
tuted no more than'fair comment and argument about the _ ~
evidence. The prosecutor's argument was fair, even restrain-
ed when contrasted with the summations of defense counsel.
Nothing in the prosecutor's summation could fairly be~inter~2
I
E
I
I
92
92
I
' F Q
E
E/N
C
92
~IX. MOTIONS FOR JUDGMENTS OF ACQUITTAL AND NEW TRIALS
All defendants have moved on multiple grounds
for judgments of acquittal or alternatively for new trials.
Additional briefs on these motions were submitted.by the
Myers defendants and by Murphy and by Thompson. Lederer
has relied upon the material included in.his principal
brief on the "due process" issues. '
A. The Myers/Motions.
. In support of their motions, the Myers defendants
urge all of the grounds that they advanced in connection
with the due process issues and in addition, argue !
that the court erred on various instructions to the jury,
particularly with respect to the credibility of witnesses;
! that defendant Errichetti's trial should have been .
severed from that of the other defendants; ! that the
evidence was insufficient with respect to Criden and Johanson; .
! that the prosecutor's summation was improper; ! that
the court's jury selection procedure was improper; !
that venue of the case in*Brooklyn-had been.improperly
_./ L"manufactured" by the government; ! that there were certain gH6 O
ll
1I
1
£
x
i
l
r
c
v
>
I
f
2
violations of Brady v. Maryland, 373 US 83 963!, partiCular- 92
1y with respect to the government's failure to disclose
information bearing upon the credibility of Weinberg as
a witness; and 8! that there was errer in permitting the
x,...__. '»
I
x
1
I
i
I
I
>
L
>
i
:
I
r
i
t
V
i
t./
9292..,
K.'.-.
92 lax!
on the basis of comparing what they had seen on the videotape
with what they had seen of Myers on the witness stand. '
This court did not see a need for individual
voir dire of the jurors in the Myers case, although it
did appear to be called for in the Thompson and Lederer
trials. When the ygrs defendants came to trial.in August,
1980, much of the publicity about Abscam that had occurred
in February and March had been forgotten. In the initial
inquiry to the full panel of jurors, substantially less
than 50% of the jurors could even recall Abscam or'anything,
about it. By way of contrast, after the heavy publicity
given to the Myers trial, a much larger
jurors recognized the name "Abscam" and
with it by the time of the Thompson and
Even in those later cases, however, the
the jurors themselves revealed, at most
tion of Abscam. The multiple voir dire
with.Myers has not been shown, nor even2proportion of the
had some tamiliarity
Lederer trials; '
questioning of _
only passing recogni
technique used
claimed to have .
caused, any prejudice to any of the Myers defendants; all i
of whom were virtually unknown in the New York-Long Island
area prior to February, l980.
The Myers defendants urge Brady violations £rom _
the government's failure to supply them with a variety12
n
A
z
1
I
v
L
3
~
of bits of information claimed to bear on Weinberg's credibil~G
l
!
I
v
I
2
v
92
?
I~
»/A
:
.92A _ . ,1 .,..» ,1 _ _
Weinbergs past conduct and his activities during the Abscam
investigation that might be viewed as bearing upon his
credibility, defendants have not shown that Weinberg's
credibility as a witness at trial had any significant bearing
on the case.
, Counsel for the Myers defendants, and those in
the Thompson and Lederer trials as well, tried to focus
upon Weinberg as the "villain in the piece", following
the wellsknown defense tactic of attempting to get the
jury to "try" anyone in the courtroom except the defendant
himself. When viewed objectively, however, Weinbergs
testimony was used by the government only as-a framework
for background information and upon which to hang the audiotape
recordings that were admitted in evidence. There was no-
significant issue at trial over the general background
and outline of the Abscam investigation, and while there
was an attempt to challenge the authenticity of one or
two of the recofded telephone conversations, those conversation
by themselves played no significant role in the focal point
of the trial: the scene on the videotape when Myers took
the $50,000.
Moreover, even if there were some significance
to Weinberg's credibility at the trial, there was so much
material not only available to defendants, but also used
by them, to challenge his credibility that the additional
items which might have been brought out would at best haveW
I2[
If
e%
f
I
i
i
if
1
4
u
r
I
>,
I
1
i
ii
E
L
1
7
i~
?
E,
if
>
x
»
1,
la
E
I
l
K
i
s
I
f.
it
1
l92
s
x
l4;.
¢--
92.~1
-._./0 0
1, >7
_ 121
been cumulative. Weinberg admitted that he had been a i
criminal most of his life, that he made his living by beingr
a con man, that he had lied and cheated and violated the ~ ,
I
. . ilaw from his early teenage years, that he was a convicted ; 3' tv * 1
felon, that he had made a deal with the government to cooper- 1
' ~ it
ate in return for probation on his felony conviction in
92 . II
Pittsburgh, and that he had received_substantial compensation; >
for his cooperation in the Abscam investigation and trials. i
If Weinberg's credibility had been a.significant part of .
the case, undoubtedly all defendants-would have been.acquit~u
ted. As the trials developed, however, the government
offered Weinberg's testimony only to lay a foundation for 1'
- - E
the introduction of audiotape recordings. Since the basic
pattern of events was not in dispute, even the audiotapes
only provided a background for the important evidence in
the_case: the videotapes with respect-to Myers and Erri~
chetti, and the testimony of Ellis Cook and other non~govern~
ment witnesses to tie in Criden and Johanson.
. 0The Myers motions are therefore denied. a f
. , a . 3
, E
B. Murphy's Motions. § i
Defendant Murphy also incorporates all of his
arguments in the due process memoranda as well as all of
the arguments advanced by defendant Thompson. In addi-
tion, defendant Murphy argues ! that on this record as 1
. x Z
3 .
[
Y
I
1
J
1
- i
3,
1
1
1
gr
I
~
i
2
I
1
V
I
1
1, "23
-1 _I92-d>4C 1 --_. ...l?J
a matter of law he cannot be found guilty of both receiving
a criminal gratuity and conflict of interest; Z! that -0
p -r2
he cannot be found guilty on the conflict of interest count
1
because Thompson was acquitted on that count; ! that
the court's supplemental instruction on receipt of the . t. &-
money was erroneous; ! that the court's treatment of 2
coconspirator hearsay statements under US v. Geaney, 417 , 1a. L
FZd 1116 CA2 1969!, was improper because it was more harsh 1
on defendants than in the Myers case; ! that theagovernmenti
suppressed certain evidence concerning Cridens possession ;
of a briefcase on January 8, 1980; ! that there were ~ ,
Brady violations with respect to Weinberg's testimony at A 2
the Myers trial and other incidents relating to Myers;
! that there were Brady violations concerning Congressman
Murtha's testimony about whether or not he expected to _
be prosecuted; and 8! that the government improperly conceal~
ed information about codefendant Criden's "plea deal". t
j r The court has carefully reviewed all of the argu¢ i
ments advanced by defendant Murphy and concludes that no
one of them taken alone, nor all of them taken together, i E
warrant either a new trial or a judgment of acquittal. II
i
|
!
£
1
;5.
i
x
1
»
K
1
M W 7 _
_,
/Y92
are separate crimes for which Congress has established
-.-__ .._T' .-, I "_' 'x separate penalties. Defendant s argument that he cannot
lawfully be convicted for both an unlawful gratuity and
conflict of interest is unsupported by either legislative 1
history or case law. . ' ~
r
Murphy's contention that the jury's verdicts r|
D I on the conflict of interest count are- inconsistent, because
Thompson was acquitted while Murphy was convicted, is equally
unconvincing. The jury was instructed to consider separately
the evidence relating to each defendant on each counti 3
»' -4.a; __Kk The fact that the jury returned a-mixed verdict merely f
indicates that they endeavored to follow the court's instruc-~
tions. Moreover, even if the verdicts are viewed as incon-
sistent, that would not be a basis for setting'aside the
conviction. Standefer v. US, 100 SC: 1999 980!.
With respect to the court's stiffening of its
position with respect to coconspirator hearsay statements, i
~ even defendant Murphy does not claim that the charge given '
to the jury was erroneous. Instead, he claims that his
trial tactics would have been different had the court alertedv
him at the beginning of the trial that the problem.would
be handled differently from what had happened at the Myers
tria1.i The claim of actual reliance is as unconvincing
92 - as is the claim of a right to rely on discussions about
92
H 1.. -4 J.»
k
é
E
S
i
i
i
1
r
.>1L
1'.
V
J.
v
L
é
;n
i.!
ii
?
1.?
4i
P
é
a
3
k
1
l_|
~
1'v
92/ 1/..
D1" ,¢_ ', '1 q
, i _."
O I .
in/5
the charge that took place at the beginning and during i
the trial. ?
. - == 3' _» 2I
g Murphy's discussion of the 302 report that placed
the Murphy payoff briefcase in Criden's hands on January =-
¥4
8, 1980, greatly overstresses the significance of the brief»
I .Xcase itself in the Murphy payoff that occurred on October : j-
, I I
20, 1979- The jury's attention was directed to the $5G,0C0 =
contained-inthe briefcase. It was clear that Criden left '~
the room with the briefcase in his hands. It is equally 3
clear that all participants interest .;.";;";t¢ $50,QO0;T '"?$n
r
not in who ended up with the briefcase after the money 5
had been removed. -. '
With respect to Congressman Murtha the newspaper
report referred to by Murphy, and Nathan's subsequent testi F
mony indicate only a unilateral decision by the justice 92*
W
department; they do not indicate any communication of that i
decision to Murtha, and the»only relevant issue was Murtha's 2
knowledge and understanding as to whether or not he would
be prosecuted. He testified that he had made no deal-with
Fthe government and,did not know whether or not he would
be prosecuted; there is nothing to indicate that he had ~ i
lany different knowledge. . » _ {-
i
With respect to Criden's "plea deal", the "deal"
Q
has nothing to do with a "plea". As the record clearly
-
on 7
v
I5
z
1*
P»
i,
1
I
1
1
1
i
1
92
1
3,
r
k
>
I
r
if
§_
E
f.
i
u
y,,
[t
z
+4L /= /
Q......_,_ _ .. __
mi"
g _ _ ______nL2@
shows, the agreement was simply that if Criden's conviction -
in the Myers case was affirmed, the government would dismiss 1
the indictment against him in the Thompson case; No guilty §
plea was contemplated. The understanding was arrived at , §
I
only as a matter of timing of the trial, should one become 5
necessary. Defendant Murphy could not have been adversely
affected by that agreement, whether it was reached beforeI
or after conclusion of the Thompson trial. '
. With respect to the court's supplemental instruce J
tion in response to two notes from the jury, the matters
were extensively discussed on the record before the instruc-
tions were given. Thompson Tr. 3235-3283. There the court's'
analysis is set forth; nothing in defendants present argu-
ments changes that view.
- Murphy's motions are therefore denied.
C. Thompsonfs Motions. '
. _ |_
Thompson, too, incorporates all of his due procéss.;
arguments as a basis for judgment of acquittal or a.new J
trial. In addition, he advances arguments under Brady
v. Maryland, 373 US 83 973!, focused upon Weinberg'si
ix
§
%
>-
T -
/i"
H rE K
1 a
@ 92.-~
92 3 -..~._ ..W7
influenced. He makes a further argument with respect to
claimed inconsistent verdicts.
The court has carefully reviewed all of these
contentions and finds them an inadequate basis for the
relief sought, either taken separately or t0gether-. The .
insignificance of Weinberg's credibility was discussed
above in connection with the-Myers claims.' The sufficiency
of the indictment was reviewed in a pretrial motion and
the court's reasoning in that discussion remains unchanged
by the trial events.
The claim of inconsistent verdicts fails for
two reasons. One, inconsistent verdicts in a criminal
case
1999do not require reversal. Standefer v. US, 100 SCt
9s0!.~ '
Two, the verdicts are not inconsistent, but easily
reconciled on this record in light of the relative participa-
tions of Thompson and Murphy in the events. Thompson argues
that
have
were
timethere is no conceivable way in which the jury could x
found Thompson involved in duping Murphy. ~If that
so, then Murphy's experienced counsel wasted much
and his client's money in even trying this case, because
his only defense to the jury was that he was not aware
thatthere was money in the briefcase. Other evidence
in the case demonstrated Thompson's awareness of the actual
4.. .. ..~_ I
I
I
I
l
192
Y
__
C
O
_/_..F 9292 _
I
92_¢¢-
I/ 171%
K > __MM _W__lg?
situation presented by the sheik's representatives to the
congressmen. Under all the evidence, therefore, the jury
could reasonably and rationally have found that Criden
and Thompson were aware that money was to be passed at ,
i
the meeting but that Murphy was not= The jury obviously '
did not ultimately interpret the facts that way because 92
they also found Murphy guilty, but at least they did, or
reasonably could have,interpreted Murphy's culpability . _
as being differently based than that of Thompson.
I
.-Thompson also complains about the court's supple- *
mentary instruction to the jury in response to their notes
during deliberations. As indicated under the Murphy motions
above, these arguments were carefully reviewed on the record
at trial and need not be rehashed here. E
Defendant Thompsonts motions are therefore denied.
1
92 -. 92
92
., _ .', ,,..f
1-
E
<
I
I
P
1
92
IL
i
i
§
x
!
1
|
1~
, 1
/ - -
X- CONCLUSION
_ In these three cases the congressional defendants
26/were caught on videotape in flagrante delicto, accepting
»money in relation to their official conduct as public ser-
vants. By overwhelming evidence the other defendants were
proven guilty of aiding and abetting the Myers bribery. - '
None of the defendants was a "deprived" citizen., All of
them occupied honored, well~rewarded, and highly respected
positions in our society. Four of them sat in the highest
legislative body of the country. Another, a former state
, / -
92. ' prosecutor, was a respected lawyer in a_well-known law _
firm, serving in an ancient and honorable profession.
Still another combined a legal career in the same firm
with a political career in Philadelphia's local government.
The seventh occupied a dual position of public trust as
mayor of a large city and state senator of New Jersey.
Despite their respected and trusted positions, defendants
92~HA
I2
5
r
sI
1»
r
crass conduct here reveals only greed, dishonesty and corrup-_
1
tion. Their major defense has been that they were tricked
into committing the crime on videotape. - ~
The government's need to unmask such conduct
more than justifies the investigative techniques employed
in these cases. Withoutiquestion these conyictions wereMr 35 .
reliable, and no constithtional right of any defendant.
->Q
I
1
ll
1I
I
I
|
n
1
?
E
E
>
§
u
2
I
R
/
,,il3°i
' L3
has been infringed. While the government s conduct of ,
the investigation was not f1awlessT_theaoverall~work:o£r<~7
the FBI, of the Eastern District Strike Force and.of their i = ,
superiors in the Department of Justice reflects a moderate,
fair, careful approach to an undercover investigation which
suddenly and unexpectedly proved effective in uncovering l
corruption in Congress.
The investigators on Long Island and their super- .
visors in Brooklyn kept extensive records and provided
reasonable information to their superiors in Washington.
Contrary to defendants claims, this was not a runaway_
investigation. True, it moved fast, impelled by greedy '
middlemen and cooperative corrupt public officials who
appeared so frequently they made life hectic for the investi-_
gators. In large measure, the undercover agents and the -
FBI were able to keep straight the various deals with the
corrupt officials. Their recordkeeping fell behind.at
0
times, but always the evidence of the crucial meetings
was accurately and permanently secured in the videotape
cassettes. ~ ~
In addition to the particular points discussed ,
in this decision, the court has considered all the other
arguments raised in the pre-hearing, midhearing, and post- 3
hearing submissions of counsel and has found them lacking ,
, ¥
in merit. After careful consideration of the many problems
92» A -._
Q F,O ' P1
raised about Abscam over the course of these cases, which
have now covered approximately one year, this court is -
satisfied that all of the defendants were proved guilty
beyond a reasonable doubt, that the trials accorded to r
~them'were fair, that the arguments advanced for setting
aside the convictions and dismissing the-indictments on .
"due process" grounds are without merit, and that there
are no circumstances requiring a new trial for any of the 1
defendants.-
Accordingly, all of defendants motions directed
to the verdicts and to the indictments are denied. Defen-
dants Myers, Criden, Errichetti, Johanson, Thompson, Murphy '
and Lederer are directed to appear before this court in
the ceremonial courtroom of the United States Courthouse,
Z25 Cadman Plaza East, Brooklyn, New York, for sentencing
on August 13, 1981, at 10:00 a.m.
so ORDERED. ___
.-I" *~.. _
Dated: Westbury, New'York _ A ~ -
July 24, 1981. '
t '3-.,.,_=<..- I ' .., 1 '1_ > ,. I .._,,r ,»V ' I 92..... ' * I " ~/
GEORGE C; PRATT Z
U. S. DISTRICT JUDGE
AQ Ir . 1
*1
>
1.
l
1
1
Qi
F
i
E
i
>
!
>
1
Ir
N
Y
v
r
i
.
L
I
i
I
i
>y
E
r
I. 92,,}-,/
. H53
"
4.-...
~44-> . -92-
F/O O T N O T E S
1/ Only Lederer was tried at that time. By agreement,
trial of defendants Brrichetti, Johanson and Criden has
been deferred pending the outcome of the trial and convic-
tions in Myers. The government agreed.that if these defen-dants are convicted and sentenced in Myers and if their '
convictions survive appellate review, then the government
will move to dismiss the charges against them in.Lederer.---¢-aw--_~
§/ Only Thompson and Murphy were tried.» Cridens trial
was deferred by the same agreement described in note 1,
supra. On the-government's unopposed motion, Silvestri's
trial was severed"_ Since then the court has been informed '
by counsel that Silvestri may be indicted in still another '
Abscam case, in which event the government would pursue 'he new indictment and dismiss EDNY #CR 80-00291 against
mlhy xI
. -_.._ ;
§/ Only Jannotti and Schwartz were tried, Criden and Johan '
son having been severed because of their earlier conviction
in Myers. After Judge Fullam's dismissal of the charges
against Jannotti and Schwartz, see section VII, infra,
the government moved to dismiss this case-as against Criden
and Johanson. .. 1' 1
5/ Only Williams and Feinbergiwere tried. Errichetti
was severed on an agreement similar to that entered into
for the Lederer case. See note l, supra- Katz was severed
because his poor hea1th p¥evented hlS going to trial when A
the case was otherwise ready for trial. - 1E
J
!
1.
:
V
Ir
i
I
5
1
1
1
n
4
:
1vJ>
I»
Vl
i.
I
I
lr
!
Ir
i
I
1
|
i.
{Q .
92
92
I
1
l
n
i
Y
E
i?
tion in our history. In this particular investigation,
however, the undercover agents were not acting on any prior
accusations of misconduct against any of these defendants.
§/ Although some courts have required the defendant to
admit commission of the crime before he can raise the entrap
ment defense, e.g., Sylvia v. US, 312 FZd 145 CA 1!, cert.
denied, 374 US 809 963!; US v; Johnston, 426 F2d 112
CA7 1970!; US v. Watson, 489 F23 504 CA3 1973!,
the more recent view of the Second Circuit is that a defen-
dant may deny having committed the crime and simultaneously
claim that he was entrapped into the conduct which is claime
to be criminal. US v. Valencia, No. 79-l36S66 CA2 Mar. -
5, 1981! amending opinion of Sept. 18, 1981!. -
9/ This theory has been argued by the defendants here,
bolstered by the assertion that "every man has his price".
No caselaw has been offered in support of this theory of
"objective" entrapment. Moreover, even assuming that "every
man has his price", that fact does not under any known
legal precedent require dismissal of charges against the
man whose "price" has been determined and illegally paid.
At least as to those
accept their "price"
pay the penalty when
10/ When invoked towho violate a public trust, if they
for being corrupt, they should also
caught in the act. V
dismiss an indictment, a federal dis~-
ffict court's supervisory power over law enforcement appears
to be more theoretical than real. It is to be applied
with caution even when a defendant asserts a violation
of his own rights. Much~less may it be applied when a,
defendant relies upon the infringement of another person's
rights or on generalized incidents of "misconduct". US .
v. Payner, US ,100 SCt Z439 980!. Even "knowing
and bad faith hostility to another personks fundamental
constitutional rights" is insufficient to warrant dismissal
of an indictment. In short, there must be "a restrained"
application of supervisory power". Id. At 2446. "After
all, it is the defendant, and not th¬_constable, who stands
trial." id.
A further problem with the court's supervisory
power is that a district court is not granted power under
the Federal Rules of Criminal Procedure to dismiss an indict
ment "in the interests of justice". That consideration
authorizes only a new trial. US v. Brown, 602 P2d 1073 .
CA2 1979!; US v. Lai Ming Tanu, S89 F2d 82 CA2 1978!.d .133
i
1
F
|
4
I
E
1
, /
'.,.. .,
L4...-
92.n¢ '1
12/ Except for Twigg, no factors, either alone or in combin
tion, have yet required dismissal of an indictment or convic
tion against a defendant found to have been predisposed
to commit the crime. Of course, where there has been a
direct violation of a defendant's particular constitutional
rights, such as an illegal search and seizure, involuntary
confession, Miranda violation, or infringement of right
to counsel, appropriate sanctions have been imposed. when
that occurs, there is no need to reach the constitutional .
issue raised here which presents a more amorphous, generaliz
ed concept of a fifth amendment due process violation based
on "outrageous" governmental conduct that does not directly
affect a specific constitutionally protected interest of
the defendant. ' a
13/ The decisions by Myers, Errichetti, Criden, Johanson,
Thompson andMurphy to withhold entrapment from the jury
was not oversight; on the contrary, it was a calculated r
move in each defendant's trial strategy.
14/ With defendant Murphy the word "monies" might better
be substituted for "bribes", because the jury found him
not guilty of bribery, but guilty of receiving a criminal
gratuity and of conflict of interest. For present purposes,
however, the principle remains the same. ' s
l§/ A closer analogy to Ham ton would be if the FBI, in
order to prosecute the middlemen Criden and Brrichetti,
had not only offered the bribe money, but also supplied
to them "undercover" congressmen to accept the bribe.
Clearly, that did not occur here. On this record it is
apparent that, using their own resources and without assi-
stance or even directions by the agents, the middlemen
sought and produced congressmen who would take the money.
l§/ The government claims-that with respect to at least
some of the defendants it does have such information avail-"
able. The supporting exhibits proffered_at the hearing,
DP Exs. 80, 8l, 82, 6 83, were excluded from evidence
when the government refused to identify for defendants
its sources of information. The government requested that
the issue remain open for further evaluation in the event
the court should conclude that a lack of predicate informa-
tion was fatal to the government's-case. Since the court
has concluded that prior suspicion of criminal conduct
by these defendants was not a constitutional predicate
to offering them Abscam money, no further attention need
be directed to the excluded exhibits. - '
i
17/ In another Abscam incident, agent McCarthy became .
flustered and thrust an open briefcase containing $100,000
>
-1'5:
___l3£
a-l1
=~
I
l
i
1
l
1
1
2
92
a
i
1
a
1
I
r
I
iI
i
I
F
K/ta /
e.
0
--.
weI i i I 92 _, 92 '_~ '.: ' '
|"?>~. ' 13%
at the public official. This action was criticized by i
Errichetti as too abrupt, and he explained that more subtle
means must be used to avoid embarrassing the public offi-
cials.,
l§/ The Second Circuit, in United States v. Viviano, 437 K
F2d 295 971!; commented that the element of inducement 1 ~
relates simply to the government's initiation of the crime p
and not to the degree of pressure exerted. "The degree 5
of pressure is properly considered under the element of @
propensity, as it has direct bearing on the accused's willing '.
ness to respond to the inducement of the agent." 437 F2d c
t at 299 n.Z. - . ?
Since subjective entrapment is removed from thiscase by the jury's verdict against Lederer and by the other r l
defendants failure to assert it at the trial, the size .
of the inducement is considered here only in connection
with defendants claim that the agent's conduct was "out- T
rageous". _
12/ Indeed, when considering the accuracy and details
of what happened when the crime was committed one might ,fairly compare the shadows in Plato's cave with the usual
trial based on mere oral testimony,.and the reality outside Ithe cave with the videotaped evidence in this case. §ee T
Plato Th R bl B k VII S46 V"k' P I , e e u 1c, oo , i ing ress, nc.. 4 11948!- S. Eucganan ed.!.
§Q/ See section VI-B-1 supra. »
§l/ Ofrcourse, "missing" tapes would permit inferences
favorable ta a defendant, and defendants argued this point
to the juries. They do not, as the Myers defendants now
argue, reguire such inferences. I
22/ There was some controversy over an incident involving *
a New Jersey state official that occurred some three months
before the Williams incident. The recording, however, I
» is difficult to decipher and provides little useful evidence. .
Even if Weinberg then spoke as he later did to Williams,,
there is no evidence that he did so with any of these defen-
dants, who took their bribes five and seven months later.
Q§/ ,R. Green, The Sting Man ElsevierDutton Pub. Co.,InC. 1981!, '
Ql Leaks of information about pending prosecutions is _ =
I a matter of grave concern to this court as it is to all =
those interested in the integrity of our judicial processes. ~ §Particularly objectionable here was the public bragging J ~ - '92
1%A,.
1?
i.
?~
1-,
L
I.~{F._*"'I .;-.;.. . *7
Q Q
*3
of one nationally syndicated columnist that his assistants
had been able to view tapes and transcripts that a federal
judge had ordered sealed. Had they caused prejudice in
any of these cases, such knowing violations of an order
of the United States District Court would surely have precipi
tated criminal contempt charges. However, since the colum-
nist in question was read by very few of the jurors, and
had obviously influenced none of them, the time and effort
required by.such an investigation and possible prosecutions
would not be justified. Government-employees should be
aware, however, that to receive something of value from
that columnist or from any member of the news media in
return for making available to them documents, tapes or
testimony sealed by court order, might very well make them
guilty not only of contempt but also of violating some
of the same sections of the criminal code bribery, crimi-
nal gratuity and conflict of interest -- that proved the
undoing of
25/ Judge
by what he
"coaching"
VI-B-1, suthe Abscam defendants themselves..
Fullam also seemed to be considerably influenced_
assumed to be the adverse consequences of the
incident involving Senator Williams. §§e section
ra. His information about that incident was
limited, however, to what others had said about it, £or
he did not
testimony.
carried asthen have the benefit of Senator Williams own
One wonders whether the incident would have
much impact in his due process calculus had
Judge Fullam then been enlightened by Senator Williams
testimony that he was not influenced by Weinberg's "coaching"
§§/ Latin: "in the very act of committing the offense.
[lit., in blazing crime, i.e., in the heat of the evil_
deedl" The Random House Dictionary of the English Language,
The Unabridged Edition. l97l!. _92
92w*3! ix H 13
0I
$
F
¢
Q
v
!
6
I
?
I
3
i
2
|
R
r
,1
¥
I
!
s
iW
~