of an indictment and invalidate it because the grand jury
received incompetent evidence. Helstoski, slip op. at 6;
Myers, slip op. at 4933. However, in Helstoski the court
held that since privileged material "permeated the whole
[grand jury] proceeding," slip op. at 10, the privileged testi-
mony was "a substantial factor underlying the indict-
ment," slip op. at 7, and the grand jury proceedings were
thus "polluted by the presentation of evidence violating
the speech or debate clause," slip op. at 6, the district
court was correct in dismissing the indictment. In Myers,
although the Court of Appeals affirmed the district court's
denial of a motion to dismiss based on speech or debate
material, the court acknowledged in a footnote that under
certain conditions a district court might be justified in dis-
missing an indictment on speech or debate clause grounds.
Slip op. at 4934 n.10. The Myers court held that such a
motion to dismiss might lie if "the privileged evidence con-
stituted such a large proportion of the evidence before the
grand jury as to raise a substantial question of whether
the grand jury had sufficient competent evidence to estab-
lish probable cause." [Id.]

Once again it is unnecessary for the court to resolve con-
flicting standards proposed by other circuit courts. Under
either the Third Circuit's "substantial factor underlying
the indictment" standard, Helstoski, supra, or the Second
Circuit's "sufficient competent evidence" standard, Myers,
supra, Mr. Kelly's motion to dismiss the indictment on
speech or debate clause grounds must fail. The court has
reviewed the grand jury transcripts of associates of Mr.
Kelly's. It is clear that speech or debate material was a
very small part, if any, of the evidence presented to the
grand jury. Further, the many video and audio tapes
played for the grand jury resolve any doubt there may be
on the sufficiency of nonspeech or debate grand jury evi-
dence. See Myers, supra at 4934 n.10 (sustaining Judge
Mishler's denial of a motion to dismiss; extensive tapes
and recording held sufficient competent evidence to estab-
lish probable cause before the grand jury).1

There is no merit whatsoever in Mr. Kelly's assertion that the punishment clause, art. I, §5, cl. 2, deprives the judiciary of jurisdictions over a Congressman. United States v. Brewster, 408 U.S. 501 (1972); United States v. Diggs, 613 F.2d 988 (D.C. Cir. 1979).

[Memorandum and Order, November 25, 1980, at 1-2]

A fifth motion filed on September 15, 1980 by Rep. Kelly was his motion to dismiss on the grounds of Government overinvolvement and overreaching. His argument was that the investigative tactics used by the Government during the ABSCAM operation were so grossly unfair that they violated his right to due process of law. It was Rep. Kelly's contention that the Government resorted to systematic abuses of law enforcement power to manufacture and then prosecute spurious offenses. After emphasizing that he was not claiming that he had been entrapped, the defendant claimed that in both United States v. Russell, 411 U.S. 423 (1973) and Hampton v. United States, 425 U.S. 484 (1976) a majority of the Court was

unwilling to hold that overreaching police conduct could never violate due process rights. The defendant also cited United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978) as a case in which the overreaching defense was invoked and sustained. The defendant argued that a careful reading of Twigg and Russell along with United States v. Archer 486 F.2d 670 Cir. 1973), United States v. Corcione, 592 F.2d 111 (2d Cir. 1979) cert. denied 440 U.S. 985 (1979) and Greene v. United States, 454 F.2d 783 (9th Cir. 1971) indicated that a crucial factor in any examination of a law enforcement agent's conduct is the extent to which the agent generated unlawful activity where no unlawful activity had previously existed. The critical distinction, said Rep. Kelly, is between infiltrating ongoing criminal operations and initiating previously nonexistent criminal operations. In this regard Rep. Kelly stated that there was never any suggestion that there had ever existed an ongoing bribery conspiracy among Members of Congress that the Government sought to infiltrate. In short, it was alleged that had the Government not set up its fictitious operation and initiated contact with the defendant through its agents, no prosecution could ever have occurred.

Rep. Kelly further argued that court precedents indicate that overreaching is more likely to be found if the defendant can show that the investigating agents violated laws during the course of their investigation. In this vein, the defendant stated that Joseph B. Meltzer, who during the ABSCAM investigation portrayed himself as a top employee of a fictitious foreign businessman, Abdul, used the ABSCAM investigation as a cover to swindle numerous businessmen by promising them that Abdul would provide low interest loans for their business ventures. Rep. Kelly claimed that although the FBI was aware that Mr. Meltzer was defrauding innocent third parties, it took no action to stop him, and actively participated in the cover-up. Whether or not illegal (under 18 U.S.C. §4), said the defendant, the Government's conduct in the Meltzer affair was intolerable. A second example of alleged Government lawbreaking involved the Olympic Construction Company, which leased the Washington, D.C. townhouse where the video and audio tapes of Rep. Kelly were made. According to Rep. Kelly, newspaper reports indicated that the FBI provided Olympic with a $6 million interest free loan in return for Olympic's assistance in the investigation. According to Rep. Kelly, 18 U.S.C. § 1001 (false statements) was violated when Olympic filed a contract bid with the Federal Government and failed to disclose the existence of this $6 million liability. Rep. Kelly charged that the Government again broke the law, specifically 18 U.S.C. § 1005, when it induced the Chase Manhattan Bank to verify the existence of a fictitious bank account in the name of "Abdul Enterprises" to add credibility to the ABSCAM operation.

On December 8, 1980, Rep. Kelly's trial began. On January 26, 1981, he was found guilty on all three counts. Sentencing, which had been scheduled for February 23, 1981, was subsequently deferred, apparently for an indefinite period of time.

On February 10, 1981, Rep. Kelly filed a motion for a new trial and a motion to dismiss on the basis of due process violations (i.e. overreaching).

Status-The case is pending in 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,1 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 return for payments, to assist certain foreign businessmen to enter and remain in the United States. These businessmen were purportedly represented by "Tony DeVito" who was, in reality, Anthony Amoroso, Jr., a Special Agent of the Federal Bureau of Investigation ("FBI"). Also supposedly serving as agent for these foreign businessmen was Melvin Weinberg. In reality, however, Mr. Weinberg was a private citizen assisting the FBI.

Allegedly, Mr. Silvestri introduced Mr. Criden to Rep. Thompson. A meeting then allegedly took place at which Rep. Thompson received $50,000 (to be shared with Mr. Criden and Mr. Silvestri) from Mr. Weinberg and DeVito. In return, said the indictment, Rep. Thompson gave assurances that he would introduce and support private immigration bills to enable the foreign businessmen to immigrate to the United States. To ensure such immigration, Rep. Thompson also allegedly agreed to exert his influence with those agencies of the United States responsible for enforcing U.S. immigration laws.

Count I further charged that Rep. Thompson introduced Mr. Criden to Rep. Murphy who also agreed to receive, and did receive, $50,000 (to be shared with Rep. Thompson and Mr. Criden) from DeVito and Mr. Weinberg in return for his assurances that he, like Rep. Thompson, would exert his influence as a U.S. Representative to enable the foreign businessmen to immigrate to the United States. In addition, charged Count I, Rep. Murphy agreed to utilize his position as Chairman of the House Committee on Merchant Marine and Fisheries to advance the interests of certain shipping companies. In return, said the indictment, Rep. Murphy would receive from the foreign businessmen a financial interest in the companies.

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 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.

Count II charged that Reps. Thompson and Murphy by soliciting and receiving money in return for their promises to assist the foreign businessmen with their immigration problems, as described in Count I, committed bribery, contrary to 18 U.S.C. § 201)c).3

Count III repeated the allegations of Count II, and charged that such actions and promises by Reps. Thompson and Murphy placed them in a position of conflicting interests contrary to 18 U.S.C. § 203 (a).4

Count IV charged that on October 20, 1979, Mr. Criden, aided and abetted by Reps. Thompson and Murphy, traveled interstate (from Pennsylvania to John F. Kennedy International Airport in New York) with intent to promote an unlawful activity, to wit, bribery. Such interstate travel was said to violate 18 U.S.C. § 1952 (Travel Act). Further, Count IV charged that Reps. Thompson and Murphy, by aiding and abetting Mr. Criden, were punishable as principals pursuant to 18 U.S.C. § 2.6

7

Count V charged that Rep. Murphy, by soliciting and receiving payment in exchange for his promise to provide immigration assistance, violated the illegal gratuity statute, 18 U.S.C. § 201(g). Count V also charged Rep. Thompson and Mr. Criden with aiding and abetting Rep. Murphy in the commission of this crime. Accordingly, Rep. Thompson and Mr. Criden were said to be punishable as principals under 18 U.S.C. § 2.

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 offical 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 point under the United States.

418 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, Members 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.

518 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 proceeds 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 specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or

both.

618 U.S.C. § provides: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commisson, 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.

718 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 discharges of social 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.

On June 23, 1980, both Rep. Thompson and Rep. Murphy entered pleas of not guilty to all counts.

On July 1, 1980, the Committee on Standards of Official Conduct of the U.S. House of Representatives ("Committee") filed an application for an order authorizing the Department of Justice to disclose to the Committee ABSCAM-related material (except grand jury transcripts) in the custody of the Department or the grand jury. The application explained that under clause 4(e)(1) of Rule X of the Rules of the House, the Committee was authorized to investigate alleged violations by Members of their official duties. The Committee also stated that on March 27, 1980 the House adopted Resolution 608 which specifically directed the Committee to conduct a full investigation into the ABSCAM affair and to report any recommendations for disciplinary action to the full House. The Committee further stated that information sought through the instant application was essential if Congress was to carry out its constitutional function of imposing discipline on its Members. The application concluded by noting that the Committee would take precautions-including requiring Committee Members and Committee Counsel to execute confidentiality agreements-to prevent unnecessary or inappropriate disclosures of materials and information received. On July 14, 1980, the Committee's application was granted. At some point prior to July 11, 1981 the Government filed a motion for a protective order to prevent Rep. Murphy from showing the Government's videotapes of him to the public. In his July 11, 1980 response to the motion, Rep. Murphy asserted that the Government had been selectively disclosing information concerning the case to the media. The result, charged Rep. Murphy, was that his constituents had been given a distorted and prejudicial accounting of his involvement in the alleged crimes. Unless the court allowed him to disclose all the videotapes of his alleged crimes, concluded Rep. Murphy, his constituents would be deprived of their First Amendment right to the free flow of informaton concerning their elected officials. On July 14, 1981, the Government's motion for a protective order was granted, without opinion, by the court. On July 11, 1980, the American Civil Liberties Union ("ACLU") submitted an amicus curiae brief in support of Rep. Thompson's and Rep. Murphy's motions for a pre-trial hearing to determine whether the indictment should be dismissed because of Government overreaching which may have fatally tainted the entire prosecution. The ACLU stressed that it did not vouch in any way for the facts suggested by the defendants. But if the defendants' allegations were proven, said the ACLU, they would represent a reprehensible misuse of prosecutorial power. The brief then set forth the allegations of Government overreaching which concerned the ACLU:

1. Federal prosecutors are said to have invented a criminal scenario, replete with fictitious actors, and set their witting and unwitting agents at large to see which public officials might be beguiled and seduced into compromising and incriminating situations.

Apparently Rep. Thompson and Rep. Murphy had made their motions orally, since the docket sheets do not reflect the filing of such motions.