Mr. White did not take any money. According to Mr. Brewer (who testified about these events before a Senate Judiciary Committee subcommittee on December 2, 1980), said Senator Williams, the failure of Mr. White to accept money indicated to Mr. Brewer that "White was tipped off" by a high Justice Department official. [Brief on Motion of Harrison A. Williams, Jr., for Dismissal of Indictment upon Grounds of Selective Prosecution, December 23, 1980, at 4] The Senator further alleged that the Government went to extraordinary lengths to make it seem, on videotape, that he had committed a crime. Whenever he attempted to explain that he would take no money, said Senator Williams, DeVito would interrupt him or otherwise cut him off. Senator Williams concluded that on the basis of these facts, it was clear that the Government violated his rights to equal protection and freedom of association by targeting him for prosecution based upon his support of Senator Kennedy. Senator Williams called upon the court to allow him to subpoena Government documents relating to selective prosecution. He also requested a hearing on the matter at which the Government would have the burden of proving that selective prosecution did not occur. Also on December 23, 1980, Senator Williams filed a motion to dismiss certain portions of the indictment. He requested: (1) dismissal of Count I for failure to allege an overt act; (2) dismissal of the conspiracy to defraud portion of Count I for failure to state an offense; (3) dismissal of Counts II, III, and IV as duplicitous (i.e. containing two or more distinct offenses); and (4) dismissal of Counts VI, VII, and VIII as multiplicitous (i.e. charging a single offense in several counts). At the arraignment of Senator Williams on November 6, 1980, defense counsel had requested that the court schedule a "due process" hearing for December 15, 1980. The purpose of this hearing would be to determine whether Government officials in planning and implementing the investigation of Senator Williams became so involved in the criminal activity they were investigating that any prosecution of the Senator on the basis of evidence procured during the investigation would be barred under the due process clause of the Fifth Amendment. On November 25, 1980, the court decided that the due process hearing should be postponed until after trial. On December 12, 1980, Senator Williams filed a motion to reconsider the court's November 25, 1980 ruling. The Senator argued that it was improper to compel him to undergo a trial without first. considering the due process issues. In support of this contention, Senator Williams referred to the opinion of Circuit Judge Newman in United States v. Myers, 635 F.2d 932 (2d Cir. 1980). In Myers, Judge Newman had stated that "it would not be too extravagant to suggest that a Member of Congress should be entitled to pretrial review of the denial of any legal claim that could be readily resolved before trial and would, if upheld, prevent trial or conviction on a pending indictment." [635 F.2d at 936] On January 19, 1981, the Senator's motion to reconsider was denied. In a memorandum issued on February 9, 1981, the court explained its January 19th decision by noting that Judge Newman's suggestion fell considerably short of a requirement that district courts grant all Members of Congress pretrial hearings. Judge Pratt further stated that even if the procedure suggested by Judge Newman were to apply, it still would be limited to a "legal claim" that could "readily" be resolved. "Experience with the ABSCAM cases," said Judge Pratt, "has shown that the due process claims are substantially grounded upon and intertwined with the evidence presented at trial." [Memorandum, January 19, 1981, at 4] Accordingly, the decision of the court to schedule the due process hearing after trial was not amended. On January 19, 1981, Senator Williams filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit. [No. 81-1022] On February 9, 1981, the district court issued a memorandum addressing Senator Williams' December 23, 1980 motion to dismiss on the ground of selective prosecution. The court found that the claim of selective prosecution was one of the issues encompassed in the due process hearing which would be held, if necessary, following trial. Accordingly, a decision on the motion was reserved. On February 20, 1981, Senator Williams filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit [No. 81-1061] contesting Judge Pratt's decision to reserve ruling on the selective prosecution claims. On March 25, 1981, the circuit court dismissed the appeal as untimely under Rule 4(b) of the Federal Rules of Appellate Procedure. On March 13, 1981, Senator Williams filed a motion to suppress all tape recordings directly or indirectly involving Mr. Weinberg. In support of this motion, Senator Williams argued that Mr. Weinberg had operated as a "contingent fee informer" who received cash bonuses from the FBI whenever he succeeded in ensnaring high public officials. Thus, Mr. Weinberg "had a special incentive to pick and choose just what would go on tape so he could show government agents that he was succeeding and would then receive more money immediately. If indictments were later thrown out, at least he had his money in advance." [Brief on Motion of Harrison A. Williams, Jr. to Suppress All Tape Recordings Directly or Indirectly Involving Melvin Weinberg, March 13, 1981, at 6] Further, said Senator Williams, Mr. Weinberg exercised so much control over the decision whether to tape record particular conversations that "we have a total of 176 tapes which have problems of one kind or another. Either they start in the middle of a conversation or have gaps. Those with gaps or which stop during a conversation often go blank when obviously significant subjects are to be discussed." [Id. at 7] Relying on United States v. Fields, 592 F.2d 638 (2d Cir. 1978), cert. denied, 442 U.S. 1917 (1979) and United States v. Brown, 462 F. Supp. 184 (S.D.N.Y. 1978), Senator Williams argued that there were other remedies, short of dismissal, which a court could invoke to deter such misconduct. One remedy, continued Senator Williams, and an appropriate one in this case, was suppression of the tainted evidence: As this Court has seen in the prior ABSCAM cases there is no question but that tape evidence is very powerful, hardly matched by testimony. If a government agent at his whim and in his own pecuniary interests can decide what tape evidence the jury will hear, whereas the defendant is left to rely upon only testimonial evidence as to what hap pened at other times, then a miscarriage of justice is Senator Williams' motion to suppress the tapes was denied by Judge Pratt from the bench. On March 25, 1981, Senator Williams filed a notice of appeal to the Second Circuit. [No. 81-1097] On March 26, 1981, the circuit court dismissed the appeal, holding that under United States v. Myers, 635 F.2d 932 (2d Cir. 1980) claims that could not be readily resolved by an appellate court should not be given appellate review prior to trial. On March 27, 1981, the U.S. Court of Appeals for the Second Circuit issued an order affirming Judge Pratt's denial of Senator Williams' December 5, 1980 motion to dismiss on Speech or Debate Clause grounds. In this same order, the circuit court also affirmed Judge Pratt's denial of Senator Williams' December 12, 1980 motion to reconsider Judge Pratt's November 25, 1980 decision to postpone the due process hearings until after trial. The circuit court's opinion explaining its decisions was filed on March 31, 1981. [United States v. Williams, 644 F.2d 950 (2d Cir. 1981)] Turning first to the Speech or Debate Clause issues, the circuit court stated that although Senator Williams' aides should not have been questioned before the grand jury on Senator Williams' past legislative actions, the introduction of this tainted testimony raised no "substantial question of whether the grand jury had sufficient competent evidence to establish probable cause." [Id. at 952, quoting 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- tially founded upon and intertwined with the evidence to 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. On December 22, 1981, Judge Pratt issued a post-trial memorandum and order addressing Senator Williams' motion to suppress and motion to dismiss on due process grounds. [United States v. Williams, 529 F. Supp. 1085 (E.D.N.Y. 1981)] With respect to suppression of the tapes, the court found that Senator Williams' motion to suppress was not filed in the appropriate form for purposes of Rule 12 of the Federal Rules of Criminal Procedure. Accordingly, the court found that Senator Williams had waived his right to challenge the tapes on Fourth Amendment grounds. With respect to due process violations by ABSCAM investigators, the court found that some of Senator Williams' arguments were in reality entrapment arguments and that most of those arguments were identical to the arguments raised by the defendants and rejected by Judge Pratt in his decision in United States v. Myers, Cr. No. 80-00249 (E.D.N.Y. July 24, 1981). Two new challenges raised by Senator Williams-that the jury instructions on entrapment were erroneous and that there was insufficient evidence for the jury to find that he was predisposed to commit the crimes-were rejected by the court. Turning to the true due process issue (i.e., whether the conduct of ABSCAM investigators was so outrageous as to bar prosecution as a matter of law), the court reviewed Senator Williams' specific examples of conduct allegedly constituting outrageous behavior. First, Senator Williams had alleged that immediately prior to a June 28, 1979 meeting between Senator Williams and Habib, Messrs. Amoroso and Weinberg had instructed Senator Williams to exaggerate his influence and power when speaking to Habib. Because of this "coaching," said Senator Williams, the FBI tape of the meeting gave the jurors a misleading and prejudicial view of Senator Williams' involvement in the alleged crime. After reviewing the record, however, Judge Pratt found that the trial testimony of Senator Williams himself refuted the argument that anyone had "put words in his mouth." Second, Senator Williams had alleged that Mr. Amoroso deliberately interrupted a meeting between Habib and Senator Williams when it became apparent to FBI investigators filming the meeting that Senator Williams was about to explain why he did not want money in return for immigration assistance. The court rejected this argument, however, finding that the evidence supported the view that the interruption by Mr. Amoroso was not intentional, and that even if it was intentional the Senator was later given an opportunity to explain his reason for refusing the money. Third, Senator Williams had argued that because a November 27, 1979 internal FBI memorandum had suggested that the case against Senator Williams was weak, the Justice Department should have dropped its investigation. The court responded to this argument by stating, "Merely because some government employees were not overly impressed with the strength of the Williams case does not mean that the government was precluded from testing the sufficiency of its evidence before the grand jury. . . or from convincing a petit jury of defendants' guilt beyond a reasonable doubt." [Id. at 1100] With respect to selective prosecution, the court held that it simply did not occur, stating, "The court further finds that there were no orders from superiors directing the investigators to focus upon particular individuals, nor were there any orders forbidding them from pursuing any leads that the investigation opened up." [Id. at 1101] Similarly rejected by the court was the argument that the amount of money offered Senator Williams constituted an unfair temptation. The court concluded its opinion. by reviewing-and dismissing-a number of claims that the Government had engaged in misconduct during trial. Senator Williams was sentenced on February 16, 1982. Under each of Counts I, II, V, VI, and IX, Senator Williams was sentenced to 3 years imprisonment and a $10,000 fine. Under each of Counts III, IV, VII, and VIII, he received a sentence of two years imprisonment and a $10,000 fine. All of the prison sentences were ordered to run concurrently. As for the fines, those imposed under Counts II, III, and IV were made concurrent, as were those imposed under Counts VI, VII, and VIII. Thus the total fine was $50,000 (i.e., Count I-$10,000; Counts II, III and IV-$10,000; Count V-$10,000; Counts VI, VII and VIII-$10,000; Count IX-$10,000). Execution of the sentence was stayed pending the outcome of the likely appeal. On March 10, 1982, Senator Williams filed a motion to reopen the due process hearings and to reargue his March 13, 1981 motion to suppress the Weinberg tapes. According to the Senator, a recently discovered affidavit of Marie Weinberg, Melvin Weinberg's wife, and a transcript of her conversations with a news reporter, Indy Badhwar, represented "tangible evidence of Weinberg's perjury and clear evidence of extensive perjury by Government agents before this Court and others considering ABSCAM cases." [Notice of Motion to Reopen . . ., March 10, 1982, at 5] In the affidavit, which was signed by Mrs. Weinberg shortly before her death in January 1982, Mrs. Weinberg stated, "I make this affidavit because I feel my husband committed perjury with the knowledge of the FBI which injured a number of innocent people and I want the truth to be known." [Id., Exhibit A, at 7] Specifically, in the affidavit and transcript Mrs. Weinberg alleged that Mr. Errichetti gave Mr. Weinberg a number of "gifts" including three television sets and a stereo system. She also stated that FBI agents apparently lost 44 recorded tapes which had been in her home and which, upon request, she had turned over to FBI agents. These allegations, said Senator Williams, constituted evidence that: (1) the tapes introduced into evidence were not processed or stored in a tamper-proof fashion; and (2) Government agents intentionally failed to disclose the fact that Mr. Weinberg |