The Government concluded its discussion of entrapment by asserting that a court's power to overturn a jury's finding that no entrapment occurred was very limited. Citing United States v. Spain, 536 F.2d 170, 173 (7th Cir. 1976), the Government stated that entrapment as a matter of law is established only when the absence of predisposition appears from uncontradicted evidence. Having failed to meet this test, and having been "captured on tape flagrantly talking about, encouraging, and committing serious criminal acts," Rep. Jenrette and Mr. Stowe "merited only guilty verdicts, not a finding of entrapment as a matter of law." [Id. at 29] With respect to overreaching (the so-called "due process defense"), the Government stated that the two key U.S. Supreme Court cases on overreaching, United States v. Russell, supra, and Hampton v. United States, supra, neither firmly established the existence of a due process defense nor clarified the boundaries and limitations of any such defense. In any event, continued the Government, even if the due process defense were to be recognized, it would be confined to the most outrageous Government conduct, "marked by a flagrant disregard for common decency and individual rights." [Id. at 34] Next, the Government discussed several "due process" cases, including United States v. Johnson, 565 F.2d 179 (1st Cir. 1977); United States v. Ordner, 554 F.2d 24 (2d Cir. 1976) cert. denied, 434 U.S. 824 (1977); United States v. Quintana, 508 F.2d 867 (7th Cir. 1975); United States v. Reynoso-Ulloa, 548 F.2d 1329 (9th Cir. 1977); and United States v. Quinn, 543 F.2d 640 (8th Cir. 1976). These cases, and especially United States v. Leja, 563 F.2d 244 (6th Cir. 1977), made it clear, claimed the Government, that the only circuit court case in which the due process defense prevailed, United States v. Twigg, supra, was "an aberration from the usual judicial view of the due process defense." [Id. at 38 (footnote omitted)]

The Government concluded its preliminary discussion of overreaching by asserting that under United States v. Payner, 447 U.S. 727 (1980) and United States v. Morrison, 449 U.S. 361 (1981) it was clear that:

[n]o relief on due process grounds is available to a defendant without a showing of government conduct that violated his constitutional rights and prejudiced him at trial. That is, Payner and Morrison are a complete bar to relief for a defendant who can only establish that another's . . . rights were violated during an investigation. [Id. at 39] Turning to Rep. Jenrette's specific charges of overreaching, the Government began with a discussion of Rep. Jenrette's allegation of improper targeting. The Government argued, as it had in its September 12, 1980 memorandum on entrapment, that "it is entirely permissible for Government undercover agents to initiate criminal activity even when there is no reason to believe that the defendant had been engaged in wrongdoing in the past." [Id. at 41] In support of this assertion the Government cited United States v. Swets, 563 F.2d 989 (10th Cir. 1977); United States v. Martinez, 488 F.2d 1088 (9th Cir. 1973); United States v. Jenkins, 480 F.2d 1198 (5th Cir. 1973); United States v. Silver, 457 F.2d 1217 (3rd Cir. 1972); and United States v. Rodrigues, 433 F.2d 760 (1st Cir. 1970). Howev

er, continued the Government, even if the court were to hold that the ABSCAM investigators had to have had a reasonable suspicion that Rep. Jenrette would commit a crime before approaching him, the "reasonable suspicion" standard was easily met:

The prior and ongoing investigation lent weight to Stowe's
representations about Jenrette. Stowe's representations
about Jenrette's willingness to engage in bribery were
timely and specific. Indeed, no bribe offer was authorized
by the government until Stowe confirmed that Jenrette
knew the details of the bribery arrangement and had
agreed to be a willing participant. Stowe's confirmation
was corroborated by Jenrette's behavior at the beginning
of the December 4 meeting, before any money was offered.
For Jenrette too, there was an overwhelming likelihood
before the bribe was offered that he would be responsive to
the criminal approach. 10 [Id. at 47]

Next, the Government addressed Rep. Jenrette's assertions concerning excessive inducements. It seemed, said the Government, that Rep. Jenrette was taking "the anomalous position that public officials can be prosecuted for taking small bribes, but not for taking large ones." [Id. at 48-49] In any event, said the Government, U.S. District Court Judge George Pratt, who on July 24, 1981 rejected the due process claims of the ABSCAM defendants in New York, had persuasively explained why the sizes of the bribes offered to the ABSCAM defendants were not excessive, and perhaps not even relevant. (Judge Pratt's July 24th memorandum is printed at page of this report.)

The Government next addressed Rep. Jenrette's allegations concerning Justice Department review and control of the investigation. First, with respect to the Undercover Review Committee, the Government maintained that this body was created in the summer of 1979 to pass upon proposed future operations, and therefore had no responsibility with respect to the ABSCAM investigation which began before mid-1979. Turning to Rep. Jenrette's claim that Mr. Weinberg was the de facto leader of ABSCAM, the Government openly admitted that "Weinberg was, simply stated, a crook who got caught and who sought to mitigate his troubles by working for the FBI. He worked effectively and the Government paid him well for his performance." [Id. at 52] However, said the Government, "In no case that we know has a court overturned a jury's verdict on the basis of the 'unsavoriness' of the Government informant." [Id.] The Government further stated that neither Federal statutory

10 According to the Government's memorandum (at p. 46), by December 4, 1979, the day Rep. Jenrette was offered a bribe, the FBI knew the following about him:

1. That he was associated with Mr. Stowe;

2. That Mr. Stowe had said that Rep. Jenrette was willing to engage in an illegal deal involving certificates of deposit;

3. That he had been the subject of a land fraud/bank fraud investigation in South Carolina;

4. That he was then the subject of a drug smuggling investigation, an obstruction of justice investigation, and other investigations involving false travel vouchers to Congress and illegal campaign contributions;

5. That Mr. Stowe had repeatedly represented that Rep. Jenrette knew of the bribe offer and would be a willing participant; and

6. That when Rep. Jenrette first came to the townhouse, he talked freely about the 'immigration problem.'

law nor judicial case law places any limit on how much the Government can pay an informant. At any rate, said the Government, Mr. Weinberg's fee was reasonable. Moreover, Mr. Weinberg's method of operation was consistent with the way informants normally operate:

Typically, informants are "sent out on the street" to generate activity in an area of law enforcement interest. The "junkie" informant or the informant looking for illegal arms will let it be known that he is looking for a buy. Weinberg, at the outset of the investigation, merely let it be known that he had wealthy employers who were looking for "investments" and later that his employers might be in need of private immigration bills.

Again typically, the informant returns to the government with intelligence that he has picked up that the government then uses to shape the course of its investigation. The government necessarily relies on the judgment of its informant, who receives a mass of information "on the street" and transmits to the government what he chooses to transmit. The FBI's use of Weinberg did nothing more than follow this typical pattern. He had contact with many, many people in the early stages of the investigation. The FBI relied on him to advise them if the proposals he received had the potential to lead to criminal activity. With Weinberg, and unlike many informants, the FBI checked his recommendations with the many tapes he produced. It was not just Weinberg's opinion the FBI had when deciding how to view a middleman during the investigation. In most instances, and certainly with Stowe, they had the middleman's own representations on tape to use to help to decide how best to proceed. [Id. at 53-54]

After explaining that Mr. Weinberg was never allowed to take any significant investigative step without prior approval by the FBI, the Government stated that the important question was whether "anything significant [would] have occurred differently in this case had Weinberg been supervised every minute of the day and been given no discretion at all." [Id. at 55] Obviously, said the Government, the answer was "No." Thus, Mr. Weinberg's supervision "affected none of the legally significant acts of the defendants and this fact is a bar to relief for the defendants on this issue." [Id.]

Next, the Government responded to Rep. Jenrette's allegation that the Government's failure to monitor the ABSCAM investigation resulted in numerous investigative irregularities. Although the Government denied that any significant investigative violations occurred, it took the position that even assuming, arguendo, that such violations did occur, "the infractions of in-house rules by the FBI or Justice . . . cannot justify dismissal of an indictment unless they amount to constitutional violations. United States v. Caceres, 440 U.S. 741 (1979)." [Id. at 55] Furthermore, claimed the Government, "not only do the claimed infractions need to rise to constitutional dimensions for relief, they must also violate the constitutional rights of the defendants. United States v. Payner, supra: United

States v. Morrison, supra." [Id. at 56-57] Using these tests, asserted the Government, it was clear that Rep. Jenrette's arguments lacked merit:

A showing that Weinberg could have been better super-
vised in 1978 or that Amoroso should have made a 302 on
a particular occasion serves the defendants not at all
unless they show real, not hypothetical, prejudice to them-
selves. Since there is not a hint of evidence in the record
that any constitutional right of either defendant was vio-
lated or that any procedure in the investigation resulted in
the production of unreliable evidence that was used
against the defendants, their effort to raise the banner of
alleged violation of in-house rules, regulations and guide-
lines must prove unavailing. [Id. at 57]

With respect to Rep. Jenrette's claims regarding the stolen tapes and the Government's alleged decision not to establish a paper trail, the Government asserted that Rep. Jenrette made "no credible showing that something not produced redounded to [his] detriment." [Id. at 66] With respect to Rep. Jenrette's claim that agents Amoroso and Good purposely failed to take notes, the Government said, "It is true that there were many meetings within the Justice Department during the Abscam investigation wherein Justice personnel... took no notes. We submit that it is totally unrealistic to expect that they would take notes on such occasions and totally incorrect to suggest that they had a legal obligation to do so." [Id. at 63] With respect to the missing tapes the Government said:

We realize, of course, that the lost airport tapes immediately bring to the fore United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971), a case which imposes upon the government an obligation to preserve all evidence which might be favorable to the defense. Bryant coupled this rule with a pragmatic test for when sanctions are to be imposed against the government for failure to preserve evidence. The court must balance:

the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial.

439 F.2d at 653.

There is no evidence that the three or four lost tapes were willfully destroyed. The view of the tapes most favorable to the defense is that the government transported the tapes from Florida to New York in a negligent manner and that when the government learned of the loss and learned from Weinberg that the contents of the tapes were insignificant, its investigation into the loss was perfunctory. The circumstances of the loss and the government's response cannot obscure (1) the fact that there is no credible evidence that the lost tapes had anything to do with the defendants; and (2) the overwhelming evidence of guilt adduced at trial. There is much authority that if the government loses evidence inadvertently, sanctions will rarely be imposed, especially where evidence of guilt is strong.

See e.g., United States v. Bundy, 472 F.2d 1266 (D.C. Cir.
1972); United States v. Miranda, 526 F.2d 1319 (2d Cir.
1975); Armstrong v. Collier, 536 F.2d 72 (5th Cir. 1976);
United States v. Maynard, 476 F.2d 1170 (D.C. Cir. 1973);
United States v. Harrison, 524 F.2d 421 (D.C. Cir. 1975). [Id.
at 65-66]

Turning next to Rep. Jenrette's allegations regarding violations of numerous Federal statutes, the Government asserted by December 1979, when Rep. Jenrette accepted the bribe, "the Abscam operation was in conflict with none of the laws cited in the Harmon document." [Id. at 70]

Status-The case is pending in the U.S. District Court for the District of Columbia.

United States v. Myers

Criminal Case No. 80-00249 (E.D.N.Y.)

On May 27, 1980, U.S. Representative Michael O. Myers 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. Myers 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 three count indictment charged the defendants with conspiracy, contrary to 18 U.S.C. § 371.2 Specifically, it was alleged that on August 5, 1979 defendant Errichetti met with "Tony DeVito" and Melvin Weinberg and told them that Rep. Myers, in return for cash payments, would assist businessmen from the Middle East to enter and remain in the United States. Purportedly, DeVito 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. Also purportedly serving as agents for the foreign businessmen were "Ernie Poulos" and "Michael Cohen." In reality, however, these individuals were Ernest Haridopolos and Michael Wald, respectively, Special Agents of the FBI.

Allegedly, on August 22, 1979, defendants Myers and Errichetti has a meeting with Mr. Weinberg and DeVito during which Rep. Myers received $50,000. In return, said Count I, Rep. Myers assured DeVito and Mr. Weinberg that he would introduce in Congress private immigration bills designed to ensure that the foreign businessmen would be allowed to immigrate to the United States. The indictment further claimed that Rep. Myers retained $15,000 of the $50,000 received, and that the remaining $35,000 was divided

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 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 commisson 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.