ing United States v. Myers, 635 F.2d 932, 941 n.10 (2d. Cir. 1980), cert. denied, 449 U.S. 826 (1980)]

With respect to the timing of the due process hearings, the circuit court stated that even assuming, arguendo, that Judge Pratt's decision to postpone the due process hearings until after trial could be appealed prior to trial, Judge Pratt's order "was not erroneous.' [Id.] In this regard the court stated:

Rule 12(e) of the Federal Rules of Criminal Procedure pro-
vides that for good cause a district judge may defer consid-
eration of a pretrial motion until after trial. This Court's
decision in United States v. Myers, supra, should not be
construed to automatically exempt members of Congress
from the operation of this rule. Our "suggestion" in Myers
that members of Congress should have a preferred right to
pretrial review was directed primarily to those cases in
which the defendant's congressional status is intrinsic to
his claimed right of dismissal. The suggestion assumed
moreover that the issues raised by the defendant's motion
are readily resolvable in advance of trial. Here, Judge
Pratt, relying on his own experience and that of other
judges presiding at ABSCAM trials, determined that it
would be impractical and unwise to attempt pretrial reso-
lution of the due process claims, because they are substan-
tially founded upon and intertwined with the evidence to
be presented at trial. His consequent decision to defer con-
sideration of the due process claims until after trial was
therefore entirely proper. Because full development of the
facts would help the district judge in reaching a wise deci-
sion, postponement was not without benefit to appellant.
[Id. at 952-953]

On March 30, 1981, Senator Williams' trial began. On May 1, 1981 Senator Williams was found guilty on all nine counts. No sentencing date was set.

On June 22, 1981 the court commenced four days of hearings on Senator Williams' due process claims.

Status-The case is pending in the U.S. District Court for the Eastern District of New York.

The complete text of the February 9, 1981 memorandum and order of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

The complete text of the March 31, 1981 opinion of the circuit court is printed in the "Decisions" section of this report at page 481. 2. ABSCAM-Related Litigation:

Jenrette v. Abdul Enterprises, Ltd.

Civil Action No. 80-1451 (D.D.C.)

On June 11, 1980, U.S. Representative John W. Jenrette of South Carolina filed a five count complaint for declaratory judgment, injunctive relief and damages in the U.S. District Court for the Dis

trict of Columbia.1 Named as defendants were Abdul Enterprises, Ltd.; the U.S. Department of Justice; the Federal Bureau of Investigation (FBI); FBI Director William Webster; U.S. Attorney General Benjamin Civiletti; Assistant U.S. Attorney General Philip Heyman; U.S. Attorney for the District of Columbia, Charles Ruff; two FBI agents known by the aliases, "Tony DeVito" and "McCloud"; Melvin Weinberg; the Olympic Construction Company (Arlington, Virginia), and its President, Richard Muffoletto.2

In the "factual allegations" portion of his complaint, Rep. Jenrette charged that beginning in 1976 "the defendants and others conspired to target the plaintiff in one investigation after another, beyond the standard for investigation spelled out in the FBI Charter, S-1612, which requires 'facts or circumstances that reasonably indicate that a person has engaged, is engaged, or will engage in an activity in violation of a criminal law of the United States.' [Complaint, June 11, 1980, at 6]

Additionally, Rep. Jenrette claimed that the defendant violated his constitutional due process rights by conspiring "to create crimes or entrap certain political targets with no predisposition to commit crimes in order to injure political reputations and political careers." [Id. at 7]

The complaint then proceeded to describe the history of the FBI undercover operation which subsequently became popularly known as "ABSCAM." According to Rep. Jenrette, in December 1979 defendants Weinberg, DeVito, and McCloud induced John Stowe to bring Rep. Jenrette to a Washington, D.C. townhouse where, despite Rep. Jenrette's obvious intoxication, defendants Weinberg, McCloud and DeVito offered Rep. Jenrette a $50,000 bribe. Allegedly, these defendants, by acting in a manner designed to give Rep. Jenrette the impression that they were members of organized crime, made Rep. Jenrette "afraid to report the defendants for fear of personal safety and fear that plaintiff's appearance at this location where defendants had discussed a bribe would work to plaintiff's detriment politically in an election year." [Id. at 11]

Finally, it was alleged that on February 2, 1980, FBI agents arrived at Rep. Jenrette's Washington, D.C. home and interrogated him despite his obvious intoxication. Because information regarding ABSCAM had allegedly been leaked by the defendants, the national news networks were at Rep. Jenrette's home when the FBI agents arrived. The media were thus "ready to publicize this interrogation and so ruin the career of the plaintiff." [Id. at 12] According to the plaintiff, "It was the malicious intent of the defendants to fraudulently gain admission from an intoxicated man, and the calculated presence of national networks on the plaintiff's front lawn was similarly intended to harass and confuse the plaintiff." [Id. at 13]

'Two days after this complaint was filed, the United States indicted Rep. Jenrette for conspiring to seek and receive money to influence performance of his Congressional duties and to defraud the United States and the Congress in the performance of lawful government functions. 2 In the complaint, Rep. Jenrette alleged that in September 1978 Mr. Muffoletto, through the Olympic Construction Company, rented the townhouse in Washington, D.C. where, in December 1979, undercover FBI agents offered Mr. Jenrette a $50,000 bribe. Allegedly, Mr. Muffoletto and the Olympic Construction Company knew or should have known "that the house was being used to defraud the plaintiff." [Complaint at 10]

The factual allegations portion of the complaint concluded by stating that because of the "targeting scheme" and leaks, Rep. Jenrette suffered severe damage to his political career and reputation and "has incurred substantial legal fees of over $50,000 in order to defend his innocence . . . and has had to face tremendous humiliation before fellow Members of Congress and the public." [Id.]

Count I of the complaint stated that the defendants entrapped Rep. Jenrette, in violation of his Fifth Amendment substantive due process rights.

In Count II the plaintiff charged that the defendants, by maliciously leaking information of his impending interrogation to the press and by entrapping him, violated his Fifth Amendment procedural due process rights.

Count III charged that the targeting of Rep. Jenrette in one investigation after another violated the FBI Charter, 5 U.S.C. § 706,3 and the U.S. Constitution.

Under Count IV the plaintiff claimed that the defendants conspired to prevent the plaintiff, by intimidation and threat, from holding his Congressional office, in violation of 42 U.S.C. § 1985(1).* Finally, Count V alleged that the investigations against Rep. Jenrette had been, and continued to be, conducted in bad faith and solely for the purpose of trying to destroy his political career. The plaintiff stated that any prosecution of him would therefore be barred by the Fifth Amendment. Count V then concluded:

Because there is no possibility that the defendant can obtain constitutionally valid convictions of the plaintiff, and because the defendants' attempt to do so demonstrates bad faith and selective prosecution, the upcoming indictment and prosecution of plaintiff must be enjoined, or in the alternative, counsel for plaintiff should be permitted to prevent whatever witness he deems appropriate to the Grand Jury investigating the plaintiff. [Id. at 15-16]

By way of relief, Rep. Jenrette's complaint asked the court to permanently enjoin the defendants from indicting or prosecuting him through the use of the above-described illegally obtained information. The plaintiff also asked the court to issue a declaratory judgment that the defendants conspired to violate his rights. Lastly, Rep. Jenrette asked the court to grant him $1 million in compensatory damages and $10 million in punitive damages against all defendants individually.

On August 11, 1980, the Federal official defendants filed a motion to stay further proceedings in this case pending final disposition of the criminal case, United States v. Jenrette, Criminal Case

35 U.S.C. § 706 requires reviewing courts to hold unlawful and set aside any agency action found to be in violation of procedures required by law.

42 U.S.C. § 1985 states: (1) If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties. .

(3)... the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more or the conspirators.

No. 80-00289 then pending in the U.S. District Court for the District of Columbia. (See page 19 of this report for a discussion of that case.) In support of the motion, the defendants argued first that the instant case and the criminal case raised similar issues among similar parties. This being so, a stay of the civil proceedings would be appropriate, said the defendants, because resolution of the criminal case would moot, clarify, or otherwise affect various contentions in the civil case. Second, the defendants argued that a stay would prevent Rep. Jenrette from improperly using the broad rules of civil discovery to prepare his defense in the criminal case.

On August 28, 1980, U.S. District Court Judge June L. Green granted the Federal official defendants' motion to stay.

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

3. Other Actions:

United States ex rel. Joseph v. Cannon

No. 80-2036 (U.S. Supreme Court)

On March 15, 1977, Joel D. Joseph, a private citizen, filed suit in the U.S. District Court for the District of Columbia against U.S. Senator Howard Cannon of Nevada and Chester B. Sobsey, the Senator's administrative assistant, under 31 U.S.C. §§ 231 and 232 (False Claims Act). The complaint alleged that from March 1975 to November 1976 defendant Sobsey worked extensively and exclusively on Senator Cannon's re-election campaign or on related tasks not part of the Senator's official duties, and that during this period Senator Cannon knowingly authorized, and Mr. Sobsey knowingly accepted, regular pay for services ostensibly performed as administrative assistant, although such services were not performed or were done in a "perfunctory or nominal manner." [Complaint, March 15, 1977, at 3] The complaint further alleged that during the relevant period, and at other times, Senator Cannon had other members of his staff "perform services to him and his family, which were not part of Senator Cannon's official legislative and representational duties, but were nevertheless paid with public funds." [Id.]

Sections 231 and 232 allow a private citizen, the "relator," to file a claim on behalf of the United States against any person making a false claim for money upon the United States. Anyone convicted under section 231 shall pay $2,000, plus double the amount of damages the United States suffered as a result of the false claim, as well as the costs of the suit. Under section 232 the relator is required to notify the Justice Department of the suit and the Department is then allowed 60 days in which take over the case. If an appearance is entered by the Government, the private citizen may be awarded fair and reasonable compensation, in amount not exceeding one-tenth of the amount recovered, for disclosure of information or evidence not in the possession of the United States when the suit was brought. If the case is not taken over by the Government, the relator may be awarded up to one-fourth of the amount recovered as compensation for his services.

On May 27, 1977, the Justice Department declined to enter an appearance on behalf of the United States.

On June 7, 1977, the defendants filed a motion to dismiss the complaint.

On May 25, 1978, District Court Judge William B. Bryant filed a memorandum and order granting the motion of the defendants to dismiss the action. [United States ex rel. Joseph v. Cannon, Civil Action No. 77-0452 (D.D.C. May 25, 1978)] The court found that it had no jurisdiction under the terms of the False Claims Act, since that act denies jurisdiction over private false claims if the evidence or information on which the suit is based was already in the possession of the Government. This was so in the instant case, the court found, since Senator Cannon had, pursuant to Senate Rule 43, notified the Secretary of the Senate that Mr. Sobsey was an aide authorized to receive and distribute campaign contributions.1 With regard to the claim of fraud, Judge Bryant held that the plaintiff had failed to state a claim upon which relief could be granted since he had not identified one specific instance in which a member of Senator Cannon's personal staff was paid out of public funds for personal tasks.

Mr. Joseph filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit on May 26, 1978.

The court of appeals issued its opinion on January 30, 1981. [United States ex rel. Joseph v. Cannon, 642 F.2d 1373 (D.C. Cir. 1981)] Regarding the authorization of salary payments to Mr. Sobsey while he was not performing official legislative and representational duties, the court upheld the district court's dismissal, but on different grounds. The court ruled that the mere fact that the Government held some information related to an allegedly false claim did not mean that a suit under the False Claims Act was barred:

To require that the evidence and information possessed by the United States be a mirror image of that in the hands of the qui tam plaintiff would virtually eliminate the bar. On the other hand, to permit the bar to be invoked when the United States possesses only rumors while the qui tam plaintiff has evidence and information would be to permit the bar to repeal effectively much of the False Claims Act. Between these extremes lies the answer.

More precisely, the answer rests in that area where it is possible to say that the evidence and information in the possession of the United States at the time the False Claims Act suit was brought was sufficient to enable it adequately to investigate the case and to make a decision whether to prosecute. [642 F.2d at 1377, quoting Pettis ex rel. United States v. Morrison Knudson Co., 577 F.2d 668, 674 (9th Cir. 1978)]

1 In 1969, when Senator Cannon made his filing under Senate Rule 43, the Rule read: No officer or employee whose salary is paid by the Senate may receive, solicit, be the custodian of, or distribute any funds in connection with any campaign for the nomination for election, or the election of any individual to be a Member of the Senate or to any other Federal office. This prohibition does not apply to any assistant to a Senator who has been designated by that Senator to perform any of the functions described in the first sentence of this paragraph and who is compensated at a rate in excess of $10,000 per annum if such designation has been made in writing and filed with the Secretary of the Senate. The Secretary of the Senate shall make the designation available for public inspection.