Attorney General, by instituting an investigation of the disclosures and publicly promising to deal severely with the guilty employees, would provide any necessary deterrence against future Government misconduct.

On July 11, 1980 (the same day they filed their original motion to dismiss on the ground of prejudicial pre-indictment publicity), Reps. Murphy and Thompson filed a motion to dismiss the indictment as violative of the Speech or Debate Clause of the U.S. Constitution." The defendants argued that the grand jury which returned their indictments had probably considered evidence reflecting on their official actions as Members of Congress. In support of this contention, the defendants claimed that several portions of the indictment contained allegations of facts that would compel one to believe that evidence protected by the Clause had been considered. The defendants stated that when an indictment has been tainted by a grand jury's consideration of matters protected by the Clause the only remedy is dismissal of the indictment. In support of this contention, Reps. Murphy and Thompson cited the opinion of U.S. District Court Judge Curtis Meanor in United States v. Helstoski. (See page 71 of this report for a discussion of that case.) In any event, said the defendants, they should be allowed to review the grand jury transcripts to see if violations of the Speech or Debate Clause did indeed occur.

On July 11, 1980 (the same day it was filed), the motion to dismiss on Speech or Debate Clause grounds was denied. No opinion accompanied the court's order. Four days later, the defendants filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit.

On August 26, 1980, the circuit court issued a decision affirming the ruling of the district court. [United States v. Murphy et al., 642 F.2d 699 (2d Cir. 1980)] The circuit court found that the arguments raised by the defendants had previously been rejected in United States v. Myers, 635 F.2d 932 (2d Cir. 1980) (See page 17 of this report for a discussion of that case.) According to the court, the factual situation in Myers was "not different in any material respect" from the factual situation in the present case. [642 F.2d at 700] In addition, neither the defendant in Myers nor the defendants here had made any claim "that the grand jury did not hear significant and sufficient evidence unprotected by the Speech or Debate Clause..." [Id.]

On November 10, 1980, the trial of Reps. Murphy and Thompson began, and on December 3, 1980, the jury returned its verdict. Rep. Murphy was found guilty on Counts I, il. V and not guilty on Count II. Rep. Thompson was found guilty on Counts I, II, and V and not guilty on Count I. (Apparently, in the case of each defendant Count VI was at some point dismissed.)

On January 12, 1981, the court commenced a series of hearings on the Government overreaching claims of Reps. Murphy and Thompson. The issues considered during these hearings were: (1) whether the ABSCAM operation amounted to Government overinvolvement in the creation or manufacture of the crimes: (2) whether there were specific incidents of misconduct in the ABSCAM operation by Gov

The Speech or Debate C'ause provides that "for any Speech or Debate in either House [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [Art. I, § 6, cl. 1.]

ernment operatives over and above any Government involvement in the creation of the crimes; (3) whether in the conduct of the operation there were specific violations of statutes, regulations, or guidelines binding on the Government; (4) whether there was impermissible targeting or selection of individuals for investigation and prosecution in the ABSCAM operation; and (5) whether the evidence in either of the cases established entrapment as a matter of law.

Status. The issue of Government overreaching is still being litigated before the U.S. District Court for the Eastern District of New York.

The complete text of the August 26, 1980 opinion of the circuit court is printed in the "Decisions" section of this report at p. 679.

United States v. Lederer

Criminal Case No. 80-00253 (E.D.N.Y.)

On May 28, 1980, U.S. Representative Raymond F. Lederer of Pennsylvania was indicted by a Federal grand jury in the U.S. District Court for the Eastern District of New York. Indicted with Rep. Lederer were Angelo J. Errichetti, the Mayor of Camden, New Jersey and a member of the New Jersey State Senate; Howard L. Criden, a Philadelphia attorney; and Louis C. Johanson, a member of the Philadelphia City Council, and a member of Mr. Criden's law firm.

1

Count I of the four count indictment charged the defendants with conspiracy, contrary to 18 U.S.C. § 371.2 Specifically, it was alleged that on September 3, 1979, defendant Errichetti informed "Tony DeVito" and Melvin Weinberg that Rep. Lederer, in return for $50,000, would assist businessmen from the Middle East to enter and remain in the United States. Purportedly, De Vito and Mr. Weinberg were agents of these foreign businessmen. In reality, however, DeVito was Anthony Amoroso, Jr., a Special Agent of the Federal Bureau of Investigation ("FBI"), and Mr. Weinberg was a private citizen assisting the FBI.

It was further alleged that on September 11, 1979, Rep. Lederer and Mr. Errichetti had a meeting with DeVito and Mr. Weinberg at which Rep. Lederer was paid $50,000. In return, said Count I, Rep. Lederer assured Mr. Weinberg and DeVito that he would introduce in Congress private immigration bills designed to ensure the lawful immigration of the foreign businessmen. According to Count I, this $50,000 was then delivered to defendant Criden who placed it in a safety deposit box. As for Mr. Johanson, it was alleged that he withdrew $5,000 from the safety deposit box for delivery to Rep. Lederer. Finally, it was alleged that the $50,000 was to be divided among all the defendants.

Count II charged that by soliciting and receiving $50,000 in return for his promise to introduce private immigration bills, as alleged in

1 Specifically, conspiracy to violate 18 U.S.C. § 201 (bribery and fraud).

218 U.S.C. & 371 provides: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10.000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment of such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

stated that FBI Director William Webster was quoted in the media as saying that the Government had a strong case against Rep. Jenrette. This statement, charged Rep. Jenrette, and the leak to the television networks regarding his February 2, 1980 interrogation, occurred prior to indictment, and represented an extreme violation of Rule 6(e) of the Federal Rules of Criminal Procedure (regarding grand jury secrecy). Rep. Jenrette further claimed that such disclosures: (1) caused highly prejudicial publicity; (2) undermined the rule requiring secrecy throughout the grand jury process; and (3) violated his rights under the Fourth, Fifth, and Sixth Amendments to the Constitution. At a minimum, concluded Rep. Jenrette, the Department of Justice should be ordered by the court to show cause why these disclosures should not be the basis for a finding of contempt.

On August 5, 1980, the Government responded to Rep. Jenrette's July 14, 1980 motion to dismiss. Addressing first the defendant's allegations of overreaching and entrapment, the Government, while conceding that its agents did approach Rep. Jenrette, argued that videotape recorded meetings with the Congressman would clearly reflect that the agents did not threaten or intimidate the defendant; that they clearly spelled out the illegality of what they were proposing; and that the defendant was allowed the opportunity to consider the offer at a later date. Such conduct, claimed the Government, was no different from that of an undercover narcotics officer who approaches an individual and asks to purchase drugs. According to the Government, the only issue in either case is whether the individual who responds to the agent's invitation to commit the crime was predisposed to do so. Regarding Rep. Jenrette's argument that he was approached despite the Government's knowledge that he had previously refused to become involved in an unlawful scheme, the Government contended that court cases have held that it is permissible for Government undercover agents to initiate criminal activity even when there is no reason to believe that the defendant is engaged in wrongdoing. The Government concluded its argument by stating that if the court should decide that an evidentiary hearing on the matter was warranted, then such a hearing should take place after trial because: (1) a pretrial hearing would make it more difficult to select an impartial jury because of the extensive news coverage which would be given the hearing; (2) the court's determination of Rep. Jenrette's overreaching claim would be avoided if Rep. Jenrette was found innocent; (3) a pretrial hearing would unnecessarily delay the trial; and (4) the court would be in a better position after trial to assess Rep. Jenrette's contentions, and a post-trial hearing would avoid the need to hear the same evidence twice since most of the facts relating to the Government's alleged misconduct would probably be presented during Rep. Jenrette's entrapment defense at trial.'

With respect to Rep. Jenrette's contentions regarding pre-indictment publicity, the Government began by admitting that Government sources were indeed responsible for serious leaks regarding ABSCAM. However, said the Government, it was highly unlikely that the grand jury was biased by news reports which primarily occurred four months

7 Entrapment defenses are ordinarily presented during trial and decided by the jury.

prior to its deliberations. In addition, argued the Government, the evidence presented to the grand jury was certainly sufficient to establish probable cause to indict, and in any event dismissal of an indictment is improper unless the defendant can clearly show that the grand jury was improperly influenced in its actions.

On August 11, 1980, Rep. Jenrette filed a reply to the Government's August 5, 1980 response. The defendant took issue with the Government's contention that it is permissible for Government undercover agents to initiate criminal activity even without evidence of the defendant's predisposition to commit the crime. Instead, the defendant claimed that once the Government targets anyone for any reason and learns of a lack of predisposition to violate the law, it must turn its investigation elsewhere. Rep. Jenrette also argued that it would be "naive and insensitive" to follow the Government's recommendation that any overreaching hearing be held post-verdict. In Rep. Jenrette's view, the court was compelled to hold a hearing on the overreaching issue prior to submission of the case to the jury.

By oral order of August 28, 1980, Rep. Jenrette's motion to dismiss due to prejudicial pre-indictment publicity was denied. In a written order of the same day, Judge Penn indicated that he would reserve ruling on the overreaching issue until evidence was introduced at trial. No ruling was made with respect to Rep. Jenrette's allegations of entrapment.

On September 3, 1980, Rep. Jenrette filed a motion to suppress certain videotapes and telephone recordings of his allegedly criminal activity. Like his July 14, 1980 motion to dismiss the indictment, the motion to suppress was based on allegations that the Government's conduct during the investigation was so outrageous as to violate the defendant's Fifth Amendment right to due process. In his supporting memorandum, Rep. Jenrette relied heavily on the holding in Greene v. United States, 454 F. 2d 783 (9th Cir. 1971). According to Rep. Jenrette, the Greene court listed five major factors probative of Government overreaching: (1) the agent initiated the contact; (2) the contact was of long duration; (3) the agent was substantially involved in the criminal activity; (4) the agent applied pressure to prod the defendant into illegal activity; and (5) the agent helped establish the illegal activity and the agent was the only illegal customer. According to Rep. Jenrette, the Greene criteria closely fit the factual situation of the present case.

Rep. Jenrette's trial began on September 5, 1980. Meanwhile, the Government, on September 8, 1980, responded to Rep. Jenrette's motion to suppress by claiming that Rep. Jenrette made no specific attack on the propriety of the process which produced the materials he was seeking to suppress. Nor could he, said the Government, since all the recordings were made with the consent of at least one of the parties who was being recorded. Such one party consensual tape recordings, said the Government, are legally unassailable under 18 U.S.C. § 2511 (2) (c) and many Supreme Court cases.

On September 8, 1980, Rep. Jenrette's motion to suppress was denied. No memorandum accompanied the court's order.

On Sepember 12, 1980 (while the trial was still in progress), the Government filed a legal memorandum on the subject of entrapment

(as opposed to overreaching). Rep. Jenrette, said the memorandum, had argued that in order to overcome his entrapment defense, the Government would have to prove that he was predisposed toward criminal conduct prior to the commission of the crimes charged. In its memorandum, the Government challenged this argument claiming instead that the FBI could properly have offered defendant Jenrette an opportunity to commit crimes even if it had no basis for believing that he had been engaged in criminal conduct in the past. According to the Government, while evidence of a defendant's prior criminality could be relevant to the question of a defendant's predisposition, other factors could also be relied upon to prove predisposition-factors such as (1) the willingness of the defendant to discuss criminal acts with the undercover agent; (2) the efforts of the defendant to maintain contact with the agent; and (3) evidence that after the original criminal act, as proposed by the agent, was completed, the defendant embarked on a second, self-initiated plan to perform another criminal act. Using these criteria, said the Government, it would become clear that Rep. Jenrette was predisposed to accept the bribes.

On October 7, 1980, the jury, which had been sequestered for the duration of the trial, found Rep. Jenrette and Mr. Stowe guilty on all counts.

Immediately after the jury returned its verdict, the court agreed to hear arguments on all outstanding motions on November 12 and 13, 1980. Among the outstanding motions was Rep. Jenrette's motion to dismiss on the basis of Government overreaching. (Apparently, at some point Judge Penn decided that this issue would be decided posttrial and not during the presentation of evidence as he had originally planned.)

Status-Rep. Jenrette's motion to dismiss on the basis of Government overreaching is presently being litigated before the U.S. District Court for the District of Columbia.

United States v. Murphy

and

United States v. Thompson

Criminal Case No. 80-00291 (E.D.N.Y.)

On June 18, 1980, a Federal grand jury in the Eastern District of New York returned a five count indictment against U.S. Representatives Frank Thompson, Jr. of New Jersey and John M. Murphy of New York. Also indicted were Howard L. Criden (a Philadelphia attorney) and Joseph Silvestri.

Count I charged the defendants with conspiracy, contrary to 18 U.S.C. § 371.2 Specifically it was alleged that sometime between July 26, 1979 and February 2, 1980 defendant Silvestri agreed to introduce defendant Criden to Members of Congress who would be willing, in

1 Specifically, conspiracy to violate 18 U.S.C. § 201 (bribery and fraud) and 18 U.S.C. § 203 (conflict of interest).

218 U.S.C. § 371 provides: If two or more persons conspire either to commit any offense against the United States, or the defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10.000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of conspiracy. is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.