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 7, 1980, Rep. Lederer had also moved to dismiss the indictment on the ground that the manner in which the Government conceived of and conducted its investigation was so outrageous and offensive as to constitute a violation of Rep. Lederer's due process rights. In support of this charge of Government overreaching, Rep. Lederer charged that ABSCAM involved gross improprieties and outright illegalities on the part of FBI agents and Department of Justice personnel. According to the defendant the Government created a criminal enterprise known as Abdul Enterprises, Inc. whose purpose was originally to uncover those dealing in contraband and stolen property, but which soon turned to luring political targets into a carefully orchestrated scheme of deceit and bribery. These political targets, moreover, were not chosen because of any suspicion that they were involved in criminal activity. Nevertheless, they were enticed to attend meetings with Government undercover agents posing as representatives of an Arab sheik anxious to invest his wealth in legitimate business enterprises in the target's political locale. Once in attendance, the defendant contended, he was lied to and maneuvered into compromising positions through a carefully developed plan in which calculated questions led imperceptibly to illicit activity. Moreover, the sordid scheme was made even more reprehensible by the very presence of Government attorneys at or near the sites of these meetings, who saw to it, through continuing surreptitious communication with the undercover operatives, that Federal jurisdiction was "manufactured." The defendant also charged that in the course of its investigation here the Government, in order to protect its undercover operation, violated numerous state and Federal laws, as well as the internal regulations and policies of the FBI and the Department of Justice. For example, it was alleged that Government agents filed false affidavits with a Federal court; allowed one of its undercover operatives to use Abdul Enterprises in order to swindle numerous businessmen ; illegally established a front organization and filed false statements with Federal agencies; introduced misrepresentations into the banking system by creating a bogus account; and obtained a lease on a townhouse in Washington, D.C. by resorting to false pretenses. The defendant concluded that these systematic abuses by law enforcement authorities culminating in the instant indictment were unprecedented in scale. The only way to maintain the integrity of the judicial process, concluded Rep. Lederer, would be to dismiss the instant indictment.

On August 7, 1980, Judge Mishler filed a memorandum and order addressing Rep. Lederer's claims of Government overreaching. The Judge began by pointing out that Rep. Lederer was not raising an entrapment defense.' He also noted that Federal courts do have the

Government overinvolvement and overreaching should not be confused with entrapment, The former is based on the notion that the conduct of law enforcement agents may be so outrageous in a given case as to constitute a denial of a defendant's due process rights. In such cases the focus of judicial inquiry is on the conduct of the Government agents. Entrapment, on the other hand, occurs when a law enforcement agent induces the commission of an offense by a person who was not predisposed to commit the offense. When entrapment occurs prosecution is precluded on the theory that Congress could not have intended to impose criminal punishment on individuals who were induced by the Government to perform a criminal act. The focus of inquiry in entrapment cases is on the state of mind (predisposition) of the defendant. The leading cases on overreaching and entrapment, United States v. Russell, 411 U.S. 423 (1973) and Hampton v. United States, 425 U.S. 484 (1976), are reprinted beginning on page 699 of this report.

power to preclude a criminal prosecution because of Government misconduct. The court would entertain Rep. Lederer's motion, said the Judge, but not before trial as he had requested. Because the defendant was challenging almost every facet of the investigation, the court concluded that a pre-trial hearing would unduly delay the trial. Further, said Judge Mishler, the publicity that would undoubtedly surround such a pre-trial hearing would make it difficult to select an unbiased jury. Accordingly, the court reserved ruling on Rep. Lederer's motion until the conclusion of the Government's case at which point hearings on the matter would be conducted if necessary.

On August 7, 1980, the case was transferred from Judge Mishler to Judge George Pratt.

On January 6, 1981, Rep. Lederer's trial began. Three days later, he was found guilty on all four counts.

On January 12, 1981, the court began conducting hearings on the issue of Government overreaching.

Status-Rep. Lederer's motion to dismiss on the ground of Government overreaching is being litigated before the U.S. District Court for the Eastern District of New York.

United States v. Williams

Criminal Case No. 80-00575 (E.D.N.Y.) and Nos. 80-1474 and 81-1022 (2nd Cir.)

On October 30, 1980, U.S. Senator Harrison A. Williams, Jr. of New Jersey was indicted by a Federal grand jury in the U.S. District Court for the Eastern District of New York. Indicted with Senator Williams were Alexander Feinberg, a New Jersey attorney; George Katz, a New Jersey businessman; and Angelo J. Errichetti, the Mayor of Camden, New Jersey and a member of the New Jersey State Senate.

Count I of the nine count indictment charged the defendants with conspiracy, contrary to 18 U.S.C. § 371. Specifically it was alleged that between January 1, 1979 and February 2, 1980 the defendants were involved in a scheme whereby Senator Williams promised to use his influence as a U.S. Senator to attempt to obtain U.S. Government contracts that would benefit a titanium mine and processing facility in Piney River, Virginia. It was alleged that Senator Williams, in return for his promise, received a $100 million loan from "Sheik Yassir Habib" who was, in reality, Richard Farhart, a Special Agent of the Federal Bureau of Investigation ("FBI"). Allegedly, the defendants, along with Habib, Melvin Weinberg (purportedly an agent of Habib but in reality a private citizen assisting the FBI), and "Tony DeVito" (purportedly another Habib agent, but in reality FBI Special Agent Anthony Amoroso, Jr.) formed three corporations into which the $100 million loan was channeled.

According to the indictment, at that point Mr. Weinberg and De Vito, along with defendants Katz, Feinberg, and Errichetti, trans

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 to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more 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 for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

ferred shares of stock in these corporations to Senator Williams whose name was omitted from the stock certificates in order to conceal his interest. The indictment alleged that it was further a part of the conspiracy that the defendants agreed to sell the corporations to a second group of foreign investors for $70 million, and that, upon sale, Senator Williams would retain a concealed interest in the enterprise and would continue to try to obtain Government contracts for it. The indictment further charged that in addition to promising to exert influence to obtain Government contracts Senator Williams also promised Habib that he would introduce in Congress a private immigration bill that would enable him to remain in the United States.

Count II charged that Senator Williams, by soliciting and receiving the $100 million loan and the shares of corporate stock in return for his promise to be influenced in his consideration of matters involving the awarding of Government contracts, committed bribery, contrary to 18 U.S.C. § 201 (c).3

Count III repeated the allegations of Count II, and claimed that such actions and promises by Senator Williams violated the illegal gratuity statute, 18 U.S.C. § 201 (g).*

Count IV repeated the allegations of Count II, and claimed that such actions and promises by Senator Williams placed him in a position of conflicting interests contrary to 18 U.S.C. § 203 (a).5

Count V stated that on August 5, 1979, Senator Williams traveled interstate (from New Jersey to John F. Kennedy International Airport in New York) with intent to promote unlawful activity, to wit, bribery. Such travel was said to violate 18 U.S.C. § 1952 (Travel Act).

Count VI charged that by planning to solicit $70 million for the sale of the three corporations (in which he would retain an interest),

318 U.S.C. § 201 (c) provides: Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself or for any other person or entity, in return for:

(1) being influenced in his performance of any official act; or

(2) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (3) being induced to do or omit to do any act in violation of his official duty shall be fined not more than $20,000 or three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.

418 U.S.C. § 201 (g) provides: Whoever, being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

518 U.S.C. § 203 (a) provides, in pertinent part: Whoever, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receives or agrees to receive, or asks, demands, solicits, or seeks any compensation for any services rendered or to be rendered either by himself or another

(1) at a time when he is a Member of Congress, Member of Congress Elect, Delegate from the District of Columbia, Delegate Elect from the District of Columbia. Resident Commissioner, or Resident Commissioner Elect shall be fined not more than $10,000 or imprisoned for not more than two years, or both; and shall be incapable of holding any office of honor, trust, or profit under the United States.

18 U.S.C. § 1952 provides, in pertinent part: (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to

(1) distribute the proveeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful activity; or

(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity. and thereafter performs or attempts to perform any of the acts specifred in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

and by agreeing to continue his efforts to influence government contract awards, Senator Williams committed bribery, contrary to 18 U.S.C. § 201 (c).

Count VII repeated the claims of Count VI, and charged that such promises and actions by Senator Williams violated the illegal gratuity statute, 18 U.S.C. §201 (g).

Count VIII repeated the allegations of Count VI, and charged that such actions and promises by Senator Williams violated the conflict of interest statute, 18 U.S.C. § 203 (a).

Count IX charged all defendants with traveling from Washington, D.C. to John F. Kennedy International Airport in New York on September 11, 1979. Allegedly, this interstate travel was made for the purpose of carrying on an unlawful activity, to wit, bribery, contrary to 18 U.S.C. § 1952.

Each of Counts II through VIII charged the remaining named defendants with aiding and abetting Senator Williams in his illegal activities. Accordingly, the remaining defendants were charged with criminal liability under each of these counts, pursuant to 18 U.S.C. § 2.7 On November 6, 1980, Senator Williams pled not guilty to all counts. On December 5, 1980, Senator Williams filed a motion to dismiss the indictment on the ground that the grand jury considered material protected by the Speech or Debate Clause. Specifically, he alleged that two of his Congressional staff members were subpoenaed to appear before the grand jury where one was questioned in detail about Senator Williams' prior and pending legislative acts regarding private immigration bills, and the other staff member was questioned on the same subject and also about Senator Williams' past legislative actions regarding strategic weapons. Senator Williams also asserted that the grand jury improperly viewed a videotape of a January 15, 1980 meeting between him and Habib during which proposed immigration legislation for the benefit of Habib was discussed. The consideration by the grand jury of these legislative acts, said Senator Williams, tainted the grand jury process and mandated the dismissal of the indictment.

On the same day, the Government filed a memorandum in opposition to Senator Williams' motion to dismiss on Speech or Debate Clause grounds. The Government claimed that Senator Williams' arguments were identical to those raised and rejected in United States v. Myers, United States v. Murphy, and United States v. Thompson. [These cases are discussed in the preceding pages of this report.] The Government argued that an indictment is not normally subject to dismissal on the grounds that there was incompetent evidence before the grand jury. Moreover, said the Government, the defendant did not even attempt to show that the grand jury would have had no probable cause to indict had the challenged evidence not been presented to it.

On December 10, 1980, District Court Judge George Pratt denied Senator Williams' motion to dismiss. The court, in its memorandum

718 U.S.C. § 2 provides: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. 8 The Speech or Debate Clause of the United States Constitution 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.]

and order, addressed first the issue of the videotape of Senator Williams and Habib. Judge Pratt reviewed United States v. Helstoski, 442 U.S. 477 (1979) and United States v. Brewster, 408 U.S. 501 (1972) and found that the Speech or Debate Clause does not prohibit the consideration of evidence of promises to perform future legislative acts. Thus, the court held that it was not improper for the grand jury to review videotapes of Senator Williams promising to perform future legislative acts for Habib. With respect to the testimony given by Senator Williams' assistants before the grand jury, the court stated that it was indeed improper for the Government to have questioned the aides regarding Senator Williams' past legislative activities. But this tainted evidence, said the court, did not constitute a substantial portion of the evidence before the grand jury. In addition, said the court, the indictment did not appear to be based on or involve the tainted evidence.

On December 18, 1980, Senator Williams filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit.

On December 23, 1980, Senator Williams moved to dismiss the indictment on the ground of prejudicial pre-indictment publicity. In an accompanying memorandum, the Senator stated that he first became awaro that the FBI was investigating him on February 2, 1980 when FBI agents arrived at his Washington, D.C. home and informed him of that fact. Due to leaks from Justice Department personnel to the media, said Senator Williams, film crews from the National Broadcasting Company were aware of the impending FBI visit and recorded the entire event. Thus began the media's involvement in the case—an involvement which was so pervasive that "[b]y the time the grand jury was empaneled on March 17, 1980 all of the allegations against Senator Williams concerning ABSCAM had been fully reported [.]" As a result, "no grand juror could reasonably claim not to have been exposed to it or influenced by it." [Brief on Motion of Harrison A. Williams, Jr. For Dismissal Due to Pretrial Publicity, December 23, 1980, at 7] Fuel for these media reports, explained the Senator, was regularly supplied by Justice Department personnel:

They have disclosed the names of those under investigation who they believed would be indicted; the crimes which they allegedly committed; the judgment that they did indeed commit such crimes; the precise facts relating to such crimes; the content of particular pieces of evidence, such as videotapes; the testimony which witnesses will give; the supposed mental states and motives of the persons to be accused; the inapplicability, in the government's view, of certain theories, such as entrapment; the validity of the procedures used in conducting the investigation; and the overall importance of the case to law enforcement efforts. [Id. at 8]

In support of these contentions, Senator Williams' memorandum included numerous ABSCAM related quotes which appeared in newspapers and Congressional hearing transcripts and which were attributed variously to FBI Director William Webster, U.S. Attorney General Benjamin Civiletti, Assistant U.S. Attorney General Philip Heymann, and "government sources." Senator Williams then went on