received gifts from Mr. Errichetti, and knew that Mr. Weinberg was committing perjury at trial when he denied receipt of the gifts. On March 25, 1982, Judge Pratt issued a memorandum and order denying Senator Williams, motion to reopen and reargue. [United States v. Williams, Cr. No. 80-00575 (E.D.N.Y. March 24, 1982] 9 With respect to the tapes, Judge Pratt held that even assuming, arguendo, that Mrs. Weinberg's allegations regarding lost tapes were true they would not have supplied a basis for suppressing the tapes that were introduced at trial. With respect to the Errichetti gifts to Mr. Weinberg, the court pointed out that if the due process hearings were reopened "the FBI agents would simply reassert their ignorance about the gifts" and that, in any event, "the law does not automatically require a hearing for every claim that a prosecutor may have let pass a false statement by a witness." [534 F. Supp. at 757] On March 26, 1982, Senator Williams filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit. [No. 82-1111] On June 1, 1982, Senator Williams filed two briefs in the circuit court. One brief addressed "trial error and procedural issues"; the other addressed "due process and entrapment issues." Regarding the trial and procedural issues, Senator Williams made four arguments: (1) the jury instructions regarding predisposition were erroneous; (2) "similar act" evidence against Senator Williams was improperly considered; (3) the prosecutor consistently misled the jury; and (4) the tape recordings made by Mr. Weinberg should have been suppressed. On this last point, Senator Williams claimed that the tapes were "inherently untrustworthy" in that "it was Weinberg, a liar, thief and con artist, who was paid to ensnare politicians, who decided when to start and stop the . . . tapes, . . . when to erase or record over tapes, and when to turn them over to government agents, if at all." [Appellant Harrison A. Williams Jr.'s Brief on Trial Error and Procedural Issues, June 1, 1982, at 34] The lower court's decision to admit the tapes, said Senator Williams, was contrary to United States v. Gigante, 538 F.2d 502 (2d Cir. 1976) which, according to the Senator, "recognized the special need for safeguards when dealing with tape evidence and the resultant requirement of strict chain of custody standards." [Id. at 35] In his "due process and entrapment issues" brief, Senator Williams asserted, first, that the jury was given erroneous instructions on the law of entrapment and, second, that the jury could not properly have found beyond a reasonable doubt that he was predisposed to commit the crimes charged. Turning next to the due process issues, Senator Williams asserted that the actions of the Government, taken as a whole, were so outrageous that they amounted to a denial of due process. Senator Williams then proceeded to list the 11 elements which in his view constituted the outrageous behavior: (1) the Government hired an unprincipled conman and used him as an agent provocateur; (2) the Government had no basis for bringing Senator Williams into their trap; (3) the Government commenced extensive electronic surveillance without any reason to believe that criminal activity 9 This case was reported as United States v. Myers, 534 F. Supp. 753 (E.D.N.Y. 1982) was afoot; (4) the "self-selecting" mechanism which the On June 7, 1982, Senator Williams filed a supplemental brief on the trial and procedural issues. In it, he argued that: (1) the conspiracy-to-defraud allegation of Count I should have been stricken because it erroneously referred to the "Government's" (rather than the "people's") right to the corruption-free services of a U.S. Senator; (2) Counts IV and VIII should have been dismissed for failing to allege the particular matter in regard to which Senator Williams sought illegal compensation; (3) Count I should have been dismissed as duplicitous; and (4) Counts II, III, IV, VI, VII and VIII should have been dismissed because the statutes upon which they were based prohibit a Member's receiving, in return for official services, something "of value"-not, as was here the case with respect to the stock certificates, something of purported value. On August 5, 1982, the Government filed a 177 page brief which responded to the arguments contained in the briefs previously filed by Senator Williams. With respect to the due process issues, the Government began by listing a number of occasions on which Senator Williams, had he been so inclined, could have rejected the illegal proposals of the Government agents. Next, the Government argued that the authority for the position that there even existed a due process defense was "tenuous at best." [Brief for Appellee, August 5, 1982, at 58] In any event, said the Government, if the defense did exist it would have to involve "government conduct ... so demonstrably 'outrageous' that it is 'shocking to the universal sense of justice.' Russell, supra, 411 U.S. at 432, quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 (1950)." [Id. at 60 (citations omitted)] Further, the Government stated that the difficulty of detecting consensual crimes, such as bribery, had caused courts to uphold police tactics which, in other contexts, could be considered offensive. Thus, said the Government, it would be "especially difficult" for Senator Williams to secure the dismissal of the instant indictment on due process grounds. Addressing each of Senator Williams' 11 specific allegations of improper conduct, the Government responded that: (1) Mr. Weinberg was no more an "agent provocateur" than was Agent Amoroso and that "pretended friendship . . . is simply classic undercover behavior for both informants and agents." [Id. at 69]; (2) the decisions in United States v. Myers, 635 F.2d 932, 941 (2d Cir.), cert. denied, 449 U.S. 956 (1980) and United States v. Ordner, 554 F.2d 24, 27 (2d Cir.) cert. denied, 434 U.S. 824 (1977) made clear that undercover agents may properly contact an individual even though they have no reason for suspecting that he engaged in prior criminal activity; (3) Senator Williams had waived his right to contest the introduction of the tapes by failing to file a timely motion to suppress and that, in any event, one-party consensual tape recordings are clearly legal; (4) the evidence showed that Senator Williams "selected himself' for meetings with the undercover operatives; (5) Senator Williams' argument that he had no "predilections" to commit the crime was simply a restatement of the entrapment defense-a defense the jury had rejected; (6) the evidence showed that Senator Williams never availed himself of the numerous opportunities to say "no"; (7) the evidence showed that despite the coaching, Senator Williams acted voluntarily and intentionally; (8) the magnitude of an inducement was irrelevant to a due process claim ("Since the entrapment defense focuses on two elements, government inducement and the defendant's predisposition, both of which must be considered to establish this non-constitutional defense, it is illogical to contend that inducement alone can be a due process violation.” [Id. at 26 (footnote omitted)]); (9) Senator Williams' argument that his friends should not have been used as intermediaries was directly contrary to his assertion that the objects of an undercover operation must be "self-selected"; (10) Senator Williams, in his testimony, never gave any indication that exculpatory, but non-recorded, conversations took place; (11) there was no authority for the proposition that a prosecutor who supervises an investigation must disqualify himself from the case. On September 14, 1982, Senator Williams filed a "reply brief on due process and related issues." In this brief, Senator Williams reiterated many of his previous arguments as to his lack of predisposition and the outrageousness of the Government's conduct. On October 7, 1982, the case was argued before circuit judges Friendly, Newman, and Kearse. Status-The case is pending in the U.S. Court of Appeals for the Second Circuit. The complete text of the February 9, 1981 opinion 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 Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981. The complete text of the December 22, 1981 opinion of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982. The complete text of the March 24, 1982 opinion of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1982. 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 District 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 Heymann; 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, 22] Additionally, Rep. Jenrette claimed that the defendants 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.] 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., ¶ 35] 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 1 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, DC. 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] 21-618 0-83-9 agents arrived. The media were thus "ready to publicize this interrogation and so ruin the career of the plaintiff." [Id., ¶ 37] 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.] 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 the Congress and the public." [Id., 138] 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 infor 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. |