On August 13, 1981, Rep. Lederer was sentenced to 3 years imprisonment on each of Counts I, II, and IV, and 2 years on Count III. However, all sentences were ordered to be served concurrently. In addition Rep. Lederer was fined $10,000 for his conviction under Count I and $10,000 for his conviction under Count II, for a total of $20,000. Execution of the prison sentence was stayed pending Rep. Lederer's appeal. The notice of appeal to the U.S. Court of Appeals for the Second Circuit was filed on August 24, 1981. [No. 81-1347] On January 18, 1982, Rep. Lederer filed his appellate brief. With respect to the due process issue, Rep. Lederer's brief focused on the repercussions ABSCAM-type investigations would have on the American system of government: Without any reason for doing so, the Executive Branch actively went after members of the Legislative Branch in an effort to obtain incriminating words and deeds resulting in their prosecution and fall from power. No one can doubt that the public career of Lederer has been destroyed regardless of what this Court does. Whether the end result was the goal of the operation is not important. That it happened and was permitted to happen is. Permitting government agents to go after members of the Legislative Branch without any reasonable basis to believe they are corrupt and to create criminal activity for the purpose of implicating them in criminality created by the Executive Branch crosses the line separating the two powers. We do not dispute that the investigation of reputed or suspected corrupt members of Congress and the use of undercover operatives in such an investigation are legitimate. However, creating crime to ensnare or to tempt innocent legislators is not. The danger is obvious. It makes possible for a vindictive or manipulative Executive to destroy or intimidate a Senator or a Congressman who does not share the same political philosophy or does not support the programs of the Administration. It has been alleged that the Congressmen and the Senator implicated in ABSCAM were targeted because they did not support President Carter and instead supported Senator Kennedy as the Democratic nominee for President. Certainly, no one has proven nor probably ever will be able to prove the allegation. What is possible is that a device such as ABSCAM, if it is tolerated and given the imprimatur of the Judicial Branch, could be the vehicle for political reprisals and threats in the future. The threat that the Executive can contort or mold such legitimate activity into the basis for prosecution intimidates and dampens the independence of the Legislative Branch. Faced with the possibility of an ABSCAM Executive, Congressmen will be reluctant to engage in dialogue with their constitutents thereby impairing their overall function. Thus, to allow the government's agents to create crimes in a perfectly legitimate scenario in order to ensnare Congressmen without any scintilla of evidence of a pattern to bribe-taking among Congressmen in general and In his brief, Rep. Lederer also noted that during trial the Government introduced, over Rep. Lederer's objection, a copy of the Financial Disclosure Statement which Rep. Lederer had filed with the Clerk of the House of Representatives on June 2, 1980. The introduction of the statement, continued Rep. Lederer, violated his rights under the Speech or Debate Clause in that the filing of the statement was required by the House rules which in turn were promulgated pursuant to the Constitutional directive that each house of Congress determine its own rules of proceedings. The introduction of the statement, said Rep. Lederer, was reversible error. The Government's brief was filed on February 8, 1982. With respect to the statement, the Government said: The filing of a personal financial disclosure statement, manifestly, is not a legislative act. Indeed, the Ethics in Government Act of 1978, 2 U.S.C. § 701 et seq., pursuant to which the disclosure statement was filed, makes clear that non-legislative financial activities are its only concern. For example, reporting is required only of such non-legislative matters as dividends from stock, rental income, interest income, capital gains, gifts from non-relatives, property interests, liabilities owed to creditors, and honorariums. Indeed, appellant was specifically not required to list income from employment by the United States Government. 2 U.S.C. § 702(a)(1)(A), 13 Recognizing that the preparation and filing of a disclosure report is not remotely a part of any conceivable legislative process, appellant rationalizes that since it is the duty of a Congressman to file disclosure reports, the Speech or Debate clause bars "the government's use of or reliance upon any acts performed by the Member in the course of his duties in the House." Brief for Appellant at 36. In words that expressly refute this argument, however, the Supreme Court rejected the notion that the Speech or Debate Clause bars the prosecution or investigation of “illegal conduct simply because it has some nexus to legislative functions." United States v. Brewster, supra at 528. The Court stated that the fact that members of Congress perform certain acts "in their official capacity . . . does not necessarily make all such acts legislative in nature.' Gravel v. United States, supra at 625. Accord, Doe v. McMillan, 412 U.S. 306, 313 (1973). See Hutchinson v. Proxmire, 443 U.S. III (1979) (Senator's newsletters and press releases not protected by the Speech or Debate clause); In Re Grand Jury Investigation, 587 F.2d 589 (3rd Cir. 1978) (Congressman's personal telephone calls from his office not subject to Speech or Debate Clause); United States ex rel Hollander v. Clay, 420 F. Supp. 853, 856 (D.D.C. 1976) (Con gressional travel vouchers not protected by the Speech or Thus, appellant has failed completely to demonstrate 13 Significantly, although the Speech or Debate Clause provides protection against civil actions, as well as criminal proceedings, Eastland v. United States Servicemen's Fund, 421 U.S. 491, 502-03 (1975), Congress specifically authorized the Attorney General to initiate civil proceedings in a United States District Court against any Representative or Senator who falsifies his disclosure statement. 2 U.S.Č. § 706. It seems likely that Congress did not regard the assembling and filing of financial disclosure statements as a "legislative activity." 14 The one case cited by appellant, if anything, proves our point. In United States v. Eilberg, 465 F. supp. 1080 (E.D. Pa. 1979), the Speech or Debate Clause was held to bar the use of a Congressman's testimony before an ethics committee of the House of Representatives. Testimony by a Congressman before a legislative committee is plainly protected by the Clause as a "Speech or Debate in either House." But here, appellant Lederer is unable to demonstrate that his financial statement was used in connection with a committee proceeding, or shown to a legislator or was the subject of debate in the House of Representatives, let alone that it involved testimony on the House floor. [Brief for Appellee, February 18, 1982, at 35-36] Rep. Lederer filed a reply brief on February 26, 1982. On April 5, 1982, the case was argued before circuit court judges Lombard, Friendly, and Newman. On September 3, 1982, the U.S. Court of Appeals for the Second Circuit issued its decision, affirming the July 24, 1981 decision of the district court and upholding the jury's verdict of guilty on all four counts. [United States v. Myers, 692 F.2d 823 (2d Cir. 1982)] The circuit court's opinion, which was written by Judge Newman, outlined the evidence in the case and described Rep. Lederer's defense during trial. His sole defense, said the court, was that he had been entrapped and that there was no evidence of his predisposition to commit any offenses. Turning first to the "broad claims asserted, with slight variations, by some or all seven of the appellants" 10 [692 F.2d at 834], Judge Newman's opinion evaluated the argument that it was both unconstitutional and bad public policy to allow Executive branch officers to entice into crime Members of Congress who had never been suspected of criminal activity in the past. The court, however, found that there existed "no special constitutional rule that requires prior suspicion of criminal activity before [Members of Con 10 The circuit court's decision was dispositive not only of Rep. Lederer's appeal, but also of the appeals from judgments of conviction entered against Rep. Michael O. Myers, Rep. Frank Thompson, Jr., Rep. John M. Murphy, Angelo J. Errichetti, Howard L. Criden, and Louis Johan son. 21-618 0-83-8 gress] may be confronted with a governmentally created opportunity to commit a crime." [Id. at 835] What is available, continued the court, is the defense of entrapment, "which prevents conviction of a person induced to commit a crime unless the prosecution can establish the person's predisposition to commit the crime. . . But the defense of entrapment is not established simply because government agents 'offense' . . . or engage in 'deceit." [Id. (citations omitted)] And although Rep. Lederer did assert an entrapment defense at trial and accordingly could, on appeal, raise the issue of predisposition, his argument, said Judge Newman, was without merit. Under (United States v. Viviano, 437 F.2d 295, 299 (2d Cir.), cert denied, 402 U.S. 983 (1971) it was clear, continued Judge Newman, that predisposition could be established by the defendant's ready response to the inducement. In the instant case the videotape showed Rep. Lederer quickly responding to the offer to accept the bribe. Next, Judge Newman addressed Rep. Lederer's due process challenges and divided them into two groups. The first group involved "overinvolvement" challenges that consisted of allegations: (1) that the Government "created" the crimes; and (2) that the inducements to commit the crimes were unduly excessive. With respect to the first point, the circuit court found that although the undercover operation was elaborate, "its essential characteristic was the creation of an opportunity for the commission of crime by those willing to do so." [Id. at 837] Essentially, said Judge Newman, the Government merely set up a fictitious enterprise, disseminated the word that bribe money was available, and waited to "see who showed up." [Id.] Regarding the claim of excessive inducements, Judge Newman said that this argument was not that the bribes were excessively large, but that Rep. Myers had been promised that in return for his help the foreign businessmen would finance multi-million dollar projects in his home district. But this argument, wrote Judge Newman, was "an affront to all the law-abiding Members of Congress . . . who consider it a normal part of their public responsibilities to promote business activity for the benefit of their constituents." [Id. at 838] 11 The second group of due process challenges consisted of allegations that the Government failed to exercise effective control over Melvin Weinberg and that the entire investigation failed to conform with Department of Justice guidelines. Regarding Mr. Weinberg, Judge Newman stated, "The use of dishonest and deceitful informants like Weinberg creates risks to which the attention of juries must be forcefully called, but the Due Process Clause does not forbid their employment, detail their supervision, now specify their compensation." [Id. at 846] Regarding Justice Department guidelines, the court, citing United States v. Caceres, 440 U.S. 741 (1979), held simply that non-compliance with internal departmental guidelines "is not a ground for complaint." [Id.] Finally, the court considered Rep. Lederer's argument that even if due process did not require the dismissal of the indictment, the court should exercise its supervisory power over the administration 11 In discussing the issue of excessive inducements, Judge Pratt clearly was referring to the size of the bribes. See 527 F. Supp. 1227-1228. of criminal justice and dismiss the case. The court rejected this suggestion, finding that such power "does not permit courts to fashion their own 'subconstitutional' limitations on the conduct of law enforcement agents. [Id. at 847] Next, the court addressed Rep. Lederer's claim that the Speech or Debate Clause was violated when the Government introduced his Financial Disclosure Statement into evidence at trial. In this regard, Judge Newman stated: In that statement Lederer falsely listed his $5,000 share of On January 14, 1983, Rep. Lederer filed a petition for writ of certiorari in the U.S. Supreme Court. [No. 82-1-01183 CFY] The case is pending in the U.S. Supreme Court. The complete text of the July 24, 1981 opinion of the district 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 September 3, 1982 opinion of the circuit court is printed in the "Decisions" section of this report at page 691. United States v. Williams No. 82-1111 (2d 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. [Criminal Case No. 80-00575 (E.D. N.Y.)] |