tect the Fifth Amendment privilege under the doctrine of Kastigar v. United States, 406 U.S. 441 (1972).

Although the Government admitted that "no immunity can physically restrain presentation of an indictment by another federal prosecutor, a state prosecutor, or even this United States attorney," the memorandum argued that Rep. Eilberg would "merely have to demonstrate that he gave testimony under a grant of immunity and the heavy burden would shift to the prosecutor to prove that all of the evidence he proposes to use was derived from legitimate independent sources." [Id. at 3] Otherwise, said the Government, the evidence would be excludable.

The Government concluded:

The immunity granted to Eilberg, though of the “hippocket" variety, may be construed by this court as sufficient to confer the minimum immunity required by the constitution. United States v. Quatermain, 613 F.2d 38 (3d Cir. 1980). On this basis this court may override Eilberg's claim of privilege and direct that the government's conduct of the testimonial inquiry go forward, and the fruits will not be usable against Eilberg in a criminal prosecutuion in any forum. Kastigar, supra; Commonwealth v. Fattizzo, 223 Pa. Super. 378, 299 A.2d 22 (1972).

The testimony and information sought is under a grant of immunity co-extensive with and sufficient to protect Eilberg's Fifth Amendment rights. He must give the discovery or suffer sanction of default judgment. [Id. at 4]

On September 30, 1982, Rep. Eilberg filed a reply memorandum regarding his claim of privilege under the Fifth Amendment. In sum, the reply contended that the plea agreement on its face simply did not extend to Rep. Eilberg the full and complete immunity which the Government contended it did. In particular, the memorandum asserted, Rep. Eilberg would not be protected from criminal prosecution for matters about which he testified if the testimony went beyond the outlines of the plea agreement:

[W]hen the Supreme Court spoke in Kastigar of transactional immunity being broader than use and derivative immunity, the Supreme Court was quite plainly speaking of the conventional form of transactional immunity. For example, if the witness says under transactional immunity "I robbed the bank" then he is immunized for the offense of the bank robbery. Under use and derivative use immunity, the witness is not immunized for the bank robbery but neither the statement nor its fruits may be used against him.

The immunity granted by the plea agreement is a species of transactional immunity but, unlike conventional transactional immunity, it is static and does not expand by virtue of Mr. Eilberg's disclosures. In other words, the plea agreement immunity protects Mr. Eilberg against criminal prosecution for the matter defined in the plea agreement. It does not protect him against a criminal prosecution for "any transaction, matter or thing" about which he testi

fies. [Defendant's Reply Regarding Claim of Privilege
Under the Fifth Amendment, September 30, 1982, at 2]

Although Rep. Eilberg stated that it was not necessary for him to have conventional transactional immunity in order to be compelled to respond to the disputed interrogatories, he did insist that to overcome his claim of privilege he must be given use and derivative immunity for his disclosures. He therefore suggested the following resolution of the issue:

If the memorandum filed on behalf of the Government in this Civil action accurately reflects the Government's construction of the plea agreement, and the Government is willing to be bound by this construction, then Mr. Eilberg will provide substantive answers to the interrogatories without further delay. If the Government will furnish in appropriate form a statement to be filed of record in this Civil action that with respect to Mr. Eilberg's statement "the fruits will not be usable against Eilberg in a criminal prosecution of any forum", then Mr. Eilberg concedes that he has no valid basis for further assertion of fifth amendment privilege with respect to the interrogatories. [Id. at 3]

On December 23, 1983, a hearing was held on the Government's motion for a default judgment during which Judge Pollak indicated from the bench that it would be denied, essentially for the reasons put forward by Rep. Eilberg. On December 30, 1982, Judge Pollak issued a written order denying the motion and further directing that, conditioned on the Government's formally granting use and derivative immunity for all discovery testimony, Rep. Eilberg must answer the Government's interrogatories within ten days of that grant of immunity.

Status-The case is pending in the U.S. District Court for the Eastern District of Pennsylvania. There has been no further docketed activity in the case through March 1, 1983.

The complete text of the October 22, 1980 opinion of the Pennsylvania 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 October 19, 1981 memorandum opinion of the District of Columbia district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982.

The complete texts of the March 31, 1982 and August 18, 1982 memoranda of the Pennsylvania district court are printed in the "Decisions" section of Court Proceeding and Actions of Vital Interest to the Congress, September 1, 1982.

United States v. Lederer

Civil Action No. 81-3028 (E.D.N.Y.)

In May 1980, U.S. Representative Raymond F. Lederer of Pennsylvania was indicted by a Federal grand jury on four counts, including bribery. In January 1981, a jury found him guilty on all four counts, and on August 13, 1981 he was sentenced to three

years imprisonment and fined $20,000. (See page 91 of this report for a discussion of that case.)

As a follow-up to that criminal prosecution, the Government filed a civil action against Rep. Lederer, Angelo J. Errichetti, Louis C. Johanson, and Howard L. Criden on September 17, 1981 in the U.S. District Court for the Eastern District of New York. The Government's complaint contained six counts. Jurisdiction was asserted under 28 U.S.C. § 1345.

Count I alleged that between July 26, 1979 and November 1, 1979 the defendants conspired to violate 18 U.S.C. § 201 (bribery and fraud). Specifically, Count I alleged that the defendants agreed that in return for $50,000 (to be shared among them) Rep. Lederer would use his influence as a U.S. Representative to assist foreign businessmen in their efforts to immigrate to the United States. Count I further stated that on September 11, 1979 undercover FBI agents actually delivered this $50,000 bribe to the defendants. After alleging that $4,500 of the $50,000 sum was subsequently recovered by the United States, Count I concluded by requesting that the court find that the defendants, jointly and severally, owed the United States $45,500 (plus pre-judgment interest) in "wrongfully received" money.

Count II repeated the allegations of Count I and further alleged that the conduct of the defendants resulted in their being "unjustly enriched by $45,500 which they continue to retain, all at the expense of the United States of America." Again, the Government, in Count II, asked the court to find the defendants jointly and severally liable for $45,500 plus pre-judgment interest.

Count III repeated the allegations of Count I and further alleged that the aforementioned $45,500 "rightfully belongs to the United States of America." A finding of joint and several liability was again requested.

Count IV repeated the allegations of Count I and further alleged that by his conduct Rep. Lederer "breached his fiduciary duty to the United States to render fair, honest, and uncorrupted service as a Member of Congress." Under Count IV the Government asked that Rep. Lederer be ordered to pay $45,500 plus pre-judgment interest.

Count V repeated the allegations of Counts I and IV and further alleged that "defendant Lederer holds all sums that he wrongfully received in trust for the United States of America.” Under Count V the Government again asked that Rep. Lederer be ordered to pay $45,500 plus pre-judgment interest.

Count VI did not involve Rep. Lederer.

On November 19, 1981, Rep. Lederer filed an answer in which he denied the material allegations of the complaint and further averred that as to each of the first five counts of the complaint the Government failed to point out that it was a party to the alleged fraud. As a result, answered Rep. Lederer, those counts alleged facts which "form the basis of a contract or agreement in violation of public policy. As such the contract referred to is void as against public policy and the Court should not enforce such a contract."

On August 4, 1982, the case was referred to U.S. Magistrate David F. Jordan who on the same day scheduled a status confer

ence for October 21, 1982. Subsequently, the status conference was postponed until March 2, 1983.

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

United States v. Myers

Civil Action No. 81-3026 (E.D.N.Y.)

In May 1980, U.S. Representative Michael O. Myers of Pennsylvania was indicted by a Federal grand jury on three counts, including bribery. In August 1980, a jury found him guilty on all three counts, and on August 13, 1981 he was sentenced to three years imprisonment and fined $20,000. (See page 39 of this report for a discussion of that case.)

As a follow-up to that criminal prosecution, the Government filed a civil action against Rep. Myers, Angelo J. Errichetti, Howard L. Criden, and Louis C. Johanson on September 17, 1981 in the U.S. District Court for the Eastern District of New York. The Government's complaint contained six counts. Jurisdiction was asserted under 28 U.S.C. § 1345.

Count I alleged that between July 26, 1979 and February 2, 1980 the defendants conspired to violate 18 U.S.C. § 201 (bribery and fraud). Specifically, Count I alleged that the defendants agreed that in return for $50,000 (to be shared among them) Rep. Myers would use his influence as a U.S. Representative to assist foreign businessmen in their efforts to immigrate to the United States. Count I further stated that on August 22, 1979 undercover FBI agents actually delivered this $50,000 bribe to the defendants. After alleging that $4,500 of the $50,000 sum was subsequently recovered by the United States, Count I concluded by requesting that the court find that the defendants, jointly and severally, owed the United States $45,500 (plus pre-judgment interest) in "wrongfully received" money.

Count II repeated the allegations of Count I and further alleged that the conduct of the defendants resulted in their being "unjustly enriched by $45,500 which they continue to retain, all at the expense of the United States of America." Again, the Government, in Count II, asked the court to find the defendants jointly and severally liable for $45,500 plus pre-judgment interest.

Count III repeated the allegations of Count I and further alleged that the aforementioned $45,500 "rightfully belongs to the United States of America." A finding of joint and several liability was again requested.

Count IV repeated the allegations of Count I and further alleged that by his conduct Rep. Myers "breached his fiduciary duty to the United States to render fair, honest, and uncorrupted service as a Member of Congress." Under Count IV the Government asked that Rep. Myers be ordered to pay $45,500 plus pre-judgment interest. Count V repeated the allegations of Counts I and IV and further alleged that "defendant Myers holds all sums that he wrongfully received in trust for the United States of America." Under Count V the Government again asked that Rep. Myers be ordered to pay $45,500 plus pre-judgment interest.

Count VI did not involve Rep. Myers.

On July 28, 1982, the case was referred to U.S. Magistrate David F. Jordan who on the same day scheduled a status conference for October 10, 1982. Subsequently, the status conference was postponed until March 2, 1983.

On January 21, 1983, Rep. Myers filed an answer in which he denied the material allegations of the complaint and further averred that as to each count in the complaint the Government failed to point out that it was a party to the alleged fraud. As a result, answered Rep. Myers, the complaint alleged facts which formed the basis of "a contract or agreement made in violation of public policy, and as such, the said contract is void as against public policy and this court should not enforce such a contract." Status-The case is pending in the U.S. District Court for the Eastern District of New York.

United States v. Thompson and United States v. Murphy

Civil Action No. 81-3027 (E.D.N.Y.)

In June 1980, U.S. Representatives Frank Thompson, Jr. of New Jersey and John M. Murphy of New York were indicted by a Federal grand jury on five counts, including bribery. In December 1980, a jury found each of them guilty on three counts, and on August 13, 1981, they were sentenced. (See page 75 of this report for a discussion of those cases.)

As a follow-up to the criminal prosecutions, the Government filed a civil action against Reps. Thompson and Murphy on September 17, 1981 in the U.S. District Court for the Eastern District of New York. The eight count complaint also named Howard L. Criden, Angelo J. Errichetti, and Louis C. Johanson as defendants. Jurisdiction was asserted under 28 U.S.C. § 1345.

Count I alleged that between July 26, 1979 and February 2, 1980 the defendants conspired to violate 18 U.S.C. § 201 (bribery and fraud) and 18 U.S.C. § 203 (conflict of interest). Specifically, Count I alleged that the defendants agreed that in return for $100,000 (to be shared among them) Reps. Thompson and Murphy would use their influence as U.S. Representatives to assist foreign businessmen in their efforts to immigrate to the United States. Count I further stated that in October 1979 undercover FBI agents actually delivered $100,000 in bribery money to the defendants. After alleging that $5,000 of the $100,000 was subsequently recovered by the United States, Count I concluded by requesting that the court find that the defendants, jointly and severally, owed the United States $95,000 (plus pre-judgment interest) in "wrongfully received"

money.

Count II repeated the allegations of Count I and further alleged that the conduct of the defendants resulted in their being "unjustly enriched by $95,000 which they continue to retain, all at the expense of the United States of America." Again, the Government, in Count II, asked the court to find the defendants jointly and severally liable for $95,000 plus pre-judgment interest.

Count III repeated the allegations of Count I and further alleged that the aforementioned $95,000 "rightfully belongs to the United States of America." A finding of joint and several liability was again requested.