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Count I of the nine count indictment charged the defendants with conspiracy, contrary to 18 U:S.C. $ 371.2 Specifically it was alleged that between January 1, 1979 and February 2, 1980 the defendants were involved in a scheme whereby Senator Williams promised to use his influence as a U.S. Senator to attempt to obtain U.S. Government contracts that would benefit a titanium mine and processing facility in Piney River, Virginia. It was alleged that Senator Williams, in return for his promise, received a $100 million loan from "Sheik Yassir Habib" who was, in reality, Richard Farhart, a Special Agent of the Federal Bureau of Investigation (“FBI”). Allegedly, the defendants, along with Habib, Melvin Weinberg (purportedly an agent of Habib but in reality a private citizen assisting the FBI), and "Tony DeVito” (purportedly another Habib agent, but in reality FBI Special Agent Anthony Amoroso, Jr.) formed three corporations into which the $100 million loan was channeled.
According to the indictment, at that point Mr. Weinberg and De Vito, along with defendants Katz, Feinberg, and Errichetti, transferred shares of stock in these corporations to Senator Williams whose name was omitted from the stock certificates in order to conceal his interest. The indictment alleged that it was further a part of the conspiracy that the defendants agreed to sell the corporations to a second group of foreign investors for $70 million, and that, upon sale, Senator Williams would retain a concealed interest in the enterprise and would continue to try to obtain Government contracts for it. The indictment further charged that in addition to promising to exert influence to obtain government contracts Senator Williams promised Habib that he would introduce in Congress a private immigration bill that would enable him to remain in the United States.
Count II charged that Senator Williams, by soliciting and receiving the $100 million loan and the shares of corporate stock in return for his promise to be influenced in his consideration of matters involving the awarding of Government contracts, committed bribery, contrary to 18 U.S.C. & 201(c).3
Specifically, conspiracy to violate 18 U.S.C. § 201 (bribery and fraud) and 18 U.S.C. $ 203 (conflict of interest).
2 18 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 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 the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment pro vided for such misdemeanor.
3 18 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 inake 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 official 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 profit under the United States.
Count III repeated the allegations of Count II, and claimed that such actions and promises by Senator Williams violated the illegal gratuity statute, 18 U.S.C. $ 201(g). 4
Count IV repeated the allegations of Count II, and claimed that such actions and promises by Senator Williams placed him in a position of conflicting interests, contrary to 18 U.S.C. $ 203(a).5
Count V stated that on August 5, 1979, Senator Williams traveled interstate (from New Jersey to John F. Kennedy International Airport in New York) with intent to promote unlawful activity, to wit, bribery. Such travel was said to violate 18 U.S.C. $ 1952 (Travel Act).6
Count VI charged that by planning to solicit $70 million for the sale of the three corporations (in which he would retain an interest), and by agreeing to continue his efforts to influence government contract awards, Senator Williams committed bribery, contrary to 18 U.S.C. 201(c).
Count VII repeated the claims of Count VI, and charged that such promises and actions by Senator Williams violated the illegal gratuity statute, 18 U.S.C. $ 2010g).
Count VIII repeated the allegations of Count VI, and charged that such actions and promises by Senator Williams violated the conflict of interest statute, 18 U.S.C. $ 203(a).
Count IX charged all defendants with traveling from Washington, D.C. to John F. Kennedy International Airport in New York on September 11, 1979 for the purpose of carrying on an unlawful activity, to wit, bribery, contrary to 18 U.S.C. § 1952.
Each of Counts II through VIII charged the remaining named defendants with aiding and abetting Senator Williams in his illegal activities. Accordingly, the remaining defendants were charged with criminal liability under each of these counts, pursuant to 18 U.S.C. $ 2.7
* 18 U.S.C. $ 2011g) provides: Whoever, being a public offical, former public official, or person selected to be a public offical, otherwise than as provided by law for the proper discharge of official 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 nore than two years, or both.
518 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, Member 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. 6 18 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
(1) distribute the proceeds of any unlawful activity; or
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, man
agement, 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.
718 U.S.C. 82 provides: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, 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.
On November 6, 1980, Senator Williams pled not guilty to all counts.
On December 5, 1980, Senator Williams filed a motion to dismiss the indictment on the ground that the grand jury considered material protected by the Speech or Debate Clause. 8 Specifically, he alleged that two of his Congressional staff members were subpoenaed to appear before the grand jury where one was questioned in detail about Senator Williams' prior and pending legislative acts regarding private immigration bills, and the other staff member was questioned on the same subject and also about Senator Williams past legislative actions regarding strategic weapons. Senator Williams also asserted that the grand jury improperly viewed a videotape of a January 15, 1980 meeting between him and Habib during which proposed immigration legislation for the benefit of Habib was discussed. The consideration by the grand jury of these legislative acts, said Senator Williams, tainted the grand jury process and mandated the dismissal of the indictment.
On the same day, the Government filed a memorandum in opposition to Senator Williams' motion to dismiss on Speech or Debate Clause grounds. The Government claimed that Senator Williams' arguments were identical to those raised and rejected in United States v. Murphy, and United States v. Thompson. (These cases are discussed on page 75 of this report.) The Government argued that an indictment is not normally subject to dismissal on the ground that there was incompetent evidence before the grand jury. Moreover, said the Government, the defendant did not even attempt to show that the grand jury would have had no probable cause to indict had the challenged evidence not been presented to it.
On December 10, 1980, District Court Judge George Pratt denied Senator Williams' motion to dismiss. The court, in its memorandum and order, addressed first the issue of the videotape of Senator Williams and Habib. Judge Pratt reviewed United States v. Helstoski, 442 U.S. 477 (1979) and United States v. Brewster, 408 U.S. 501 (1972) and found that the Speech or Debate Clause does not prohibit the consideration of evidence of promises to perform future legislative acts. Thus, the court held that it was not improper for the grand jury to review videotapes of Senator Williams promising to perform future legislative acts for Habib. With respect to the testimony given by Senator Williams' assistants before the grand jury, the court stated that it was indeed improper for the Government to have questioned_the aides regarding Senator Williams' past legislative activities. But this tainted evidence, said the court, did not constitute a substantial portion of the evidence before the grand jury. In addition, said the court, the indictment did not appear to be based on or involve the tainted evidence.
On December 18, 1980, Senator Williams filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit. (No. 80-1474]
On December 23, 1980, Senator Williams moved to dismiss the indictment on the ground of prejudicial pre-indictment publicity. In an accompanying memorandum, the Senator stated that he first became aware that the FBI was investigating him on February 2, 1980 when FBI agents arrived at his Washington, D.C. home and informed him of that fact. Due to leaks from Justice Department personnel to the media, said Senator Williams, film crews from the National Broadcasting Company were aware of the impending FBI visit and recorded the entire event. Thus began the media's involvement in the case-an involvement which was so pervasive that "[bly the time the grand jury was empaneled on March 17, 1980 all of the allegations against Senator Williams concerning ABSCAM had been fully reported[.]" As a result, "No grand juror could reasonably claim not to have been exposed to it or influenced by it." (Brief on Motion of Harrison A. Williams, Jr. For Dismissal Due to Pretrial Publicity, December 23, 1980, at 7] Fuel for these media reports, explained the Senator, was regularly supplied by Justice Department personnel:
8 The Speech or Debate Clause of the United States Constitution provides that "for any Speech or Debate in either House (U.S. Senators and U.S. Representatives) shall not be questioned in any other Place." (art. I, 96, cl. 1]
They have disclosed the names of those under investigation who they believed would be indicted; the crimes which they allegedly committed; the judgment that they did indeed commit such crimes; the precise facts relating to such crimes; the content of particular pieces of evidence, such as videotapes; the testimony which witnesses will give; the supposed mental states and motives of the persons to be accused; the inapplicability, in the government's view, of certain theories, such as entrapment; the validity of the procedures used in conducting the investigation; and the overall importance of the case to law enforcement ef
forts. (Id. at 8] In support of these contentions, Senator Williams' memorandum included numerous ABSCAM related quotes which appeared in newspapers and Congressional hearing transcripts and which were attributed variously to FBI Director William Webster, U.S. Attorney General Benjamin Civiletti, Assistant U.S. Attorney General Philip Heymann, and “government sources.” Senator Williams then went on to explain that the Government's deliberate release of prejudicial information was designed to influence the grand jury:
While the government was releasing extensive details of their activities to the press, much of which was inaccurate, and while high ranking officials of the Department of Justice continued to make public statements of opinion concerning the strength of cases against the Congressmen involved, nothing by way of exculpatory information has ever been given to the press. The grand jury was exposed to the government's case, and to commentary on the government's case even before being summoned to consider the charges. The government presentation of their case to the press went far beyond the permissible limits of presentation of the case to the grand jury. The government thus has done by indirection, through the use of the press, that which they were prohibited from doing directly in the grand jury room. Through its actions the government assured that the grand jury would be assembled as a mere
tool of the government rather than as an independent in
vestigative body. [Id. at 21] The Senator further asserted that he had a right "to have the charges against him presented to a grand jury which was not only free from undue government control ... but also one . . . insulated from outside community pressures” of the type which necessarily result when the community is continually presented with only such information as the Government chooses to disclose. (Id.) After arguing that the Government's conduct violated not only the due process clause but also Rule 6(e) of the Federal Rules of Criminal Procedure (dealing with grand jury secrecy), Senator Williams asserted that the Government's case against him was not a strong one and that the weakness of its case coupled with the outrageousness of its employees' conduct required a dismissal.
On January 14, 1981, the Government filed its response to Senator Williams' motion regarding pre-indictment publicity. The Government stated that “the press treatment of ABSCAM as a whole, was sober, factual and non-accusatory." (Government's Memorandum, January 14, 1981, at 1] In addition, asserted the Government, Senator Williams had failed to show any actual prejudice stemming from the informational leaks. In support of its allegation that a showing of actual prejudice was necessary, the Government pointed to the August 7, 1980 opinion of Judge Mishler in United States v. Myers. (See page 39 of this report for a discussion of that case.)
On February 9, 1981, Senator Williams' motion to dismiss on the basis of prejudicial pre-indictment publicity was denied. In a memorandum accompanying the order Judge Pratt stated that arguments similar to Senator Williams' had already been rejected by Judge Mishler in United States v. Myers, United States v. Lederer, and United States v. Thompson. The court found that Judge Mishler's opinions in those cases were equally applicable to the instant case.
Also on December 23, 1980 (the date of his original motion to dismiss on the basis of prejudicial pre-indictment publicity), Senator Williams filed a motion to dismiss on the ground of selective prosecution. In his supporting memorandum the Senator stated that it was "odd” that six of the seven Members of Congress indicted in ABSCAM were supporters of Senator Edward Kennedy, who was then engaged in a primary battle with President Carter for the Democratic presidential nomination. Further, said Senator Williams, the Kennedy name was used by the Government to draw Kennedy supporters into the Government's web. The Senator stated that FBI Special Agent John McCarthy was represented to be "John McCloud," financial advisor to Senator Kennedy, and FBI Special Agent Margo Demeny was represented to be “Margo Kennedy," a cousin of the Massachusetts Senator. Next, Senator Williams claimed that Democratic National Chairman John White, a close associate of President Carter, was, according to FBI informant James Brewer, also a subject of the ABSCAM investigation. According to Mr. Brewer, said the Senator, a meeting between FBI agents and Mr. White was scheduled, and all signs indicated that Mr. White would accept a bribe. Yet when the meeting took place