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overreaching, it was Rep. Jenrette's contention that the nature and extent of the FBI involvement in creating and maintaining the ABSCAM operation was so outrageous as to bar prosecution under the due process clause of the Fifth Amendment. In support of this contention, the defendant relied on United States v. Russell, 411 U.S. 423 (1973); Hampton v. United States, 425 U.S. 484 (1976); United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978); and United States v. Archer, 486 F.2d 670 (2d Cir. 1973). These cases, said the defendant, indicated, first, that Government misconduct may be so egregious in a given case that prosecution will be barred regardless of whether the defendant was predisposed to commit the charged crime. Next, the defendant likened the facts of the instant case to the facts in Twigg, supra, a case in which the Third Circuit dismissed an indictment because of the Government's overinvolvement in the commission of the crime. In both Twigg and the instant case, said Rep. Jenrette, Government agents devised the illegal scheme and then initiated contact with the defendant. In fact, said Rep. Jenrette, the conduct of the Government agents in the present case was even more outrageous than in Twigg, since in Twigg evidence existed that the defendant was predisposed to commit the crime. By contrast, said Rep. Jenrette, the Government knew that he had no predisposition to engage in illegal activity, for in 1978 he had refused when undercover agents had attempted to involve him in a scheme to sell certificates of deposit overseas. In conclusion, Rep. Jenrette requested an extensive evidentiary hearing to determine whether overreaching had occurred.
In addition to seeking dismissal or an evidentiary hearing on the basis of overreaching and dismissal on the basis of entrapment, Rep. Jenrette's July 14, 1980 motion also sought dismissal on the basis of prejudicial pre-indictment publicity. In this regard, Rep. Jenrette claimed that someone connected with the ABSCAM investigation deliberately notified the national television networks that the FBI would send two agents to Rep. Jenrette's home on February 2, 1980. Accordingly, when the agents arrived, television crews were on Rep. Jenrette's front lawn ready to cover the event. The defendant further stated that FBI Director William Webster was quoted by the media as saying that the Government had a strong case against Rep. Jenrette. This statement, charged Rep. Jenrette, and the leak to the television networks regarding his February 2, 1980 interrogation, occurred prior to indictment, and represented an extreme violation of Rule 6(e) of the Federal Rules of Criminal Procedure (regarding grand jury secrecy). Rep. Jenrette further claimed that such disclosures: (1) caused highly prejudicial publicity; (2) undermined the rule requiring secrecy throughout the grand jury process; and (3) violated his rights under the Fourth, Fifth, and Sixth Amendments to the Constitution. At a minimum, concluded Rep. Jenrette, the Department of Justice should be ordered by the court to show cause why these disclosures should not be the basis for a finding of contempt.
On August 5, 1980, the Government responded to Rep. Jenrette's July 14, 1980 motion to dismiss. Addressing first the defendant's allegations of overreaching and entrapment, the Government, while conceding that its agents did approach Rep. Jenrette, argued that videotape recorded meetings with the Congressman would clearly
show that the agents did not threaten or intimidate the defendant, that they clearly spelled out the illegality of what they were proposing, and that the defendant was allowed the opportunity to consider the offer at a later date. Such conduct, claimed the Government, was no different from that of an undercover narcotics officer who approaches an individual and asks to purchase drugs. According to the Government, the only issue in either case is whether the individual who responds to the agent's invitation to commit the crime was predisposed to do so. Regarding Rep. Jenrette's argument that he was approached despite the Government's knowledge that he had previously refused to become involved in an unlawful scheme, the Government contended that court cases have held that it is permissible for Government undercover agents to initiate criminal activity even when there is no reason to believe that the defendant is engaged in wrongdoing. The Government concluded its argument by stating that if the court should decide that an evidentiary hearing on the matter was warranted, then such hearing should take place after trial because: (1) a pretrial hearing would make it more difficult to select an impartial jury because of the extensive news coverage which would be given the hearing; (2) the court's determination of Rep. Jenrette's overreaching claim would be avoided if Rep. Jenrette was found innocent; (3) a pretrial hearing would unnecessarily delay the trial; and (4) the court would be in a better position after trial to assess Rep. Jenrette's contentions, and a post-trial hearing would avoid the need to hear the same evidence twice since most of the facts relating to the Government's alleged misconduct would probably be presented during Rep. Jenrette's entrapment defense at trial.6
With respect to Rep. Jenrette's contentions regarding pre-indictment publicity, the Government began by admitting that Government sources were indeed responsible for serious leaks regarding ABSCAM. However, said the Government, it was highly unlikely that the grand jury was biased by news reports which primarily occurred four months prior to its deliberations. In addition, argued the Government, the evidence presented to the grand jury was certainly sufficient to establish probable cause to indict, and, in any event, dismissal of an indictment is improper unless the defendant can clearly show that the grand jury was improperly influenced in its actions.
On August 11, 1980, Rep. Jenrette filed a reply to the Government's August 5, 1980 response. The defendant took issue with the Government's contention that it is permissible for Government undercover agents to initiate criminal activity even without evidence of the defendant's predisposition to commit the crime. Instead, the defendant claimed that once the Government targets anyone for any reason and learns of a lack of predisposition to violate the law, it must turn its investigation elsewhere. Rep. Jenrette also argued that it would be "naive and insensitive" to follow the Government's recommendation that any overreaching hearing be held post-verdict. In Rep. Jenrette's view, the court was compelled to hold a hearing on the overreaching issue prior to submission of the case to the jury.
6 Entrapment defenses are ordinar
ented during trial and decided by the jury.
By oral order of August 28, 1980, Rep. Jenrette's motion to dismiss due to prejudicial pre-indictment publicity was denied. In a written order of the same day, Judge Penn indicated that he would reserve ruling on the overreaching issue until evidence was introduced at trial. No ruling was made with respect to Rep. Jenrette's allegations of entrapment.
On September 3, 1980, Rep. Jenrette filed a motion to suppress certain videotapes and telephone recordings of his allegedly criminal activity. Like his July 14, 1980 motion to dismiss the indictment, the motion to suppress was based on allegations that the Government's conduct during the investigation was so outrageous as to violate the defendant's Fifth Amendment right to due process. In his supporting memorandum, Rep. Jenrette relied heavily on the holding in Greene v. United States, 454 F.2d 783 (9th Cir. 1971). According to Rep. Jenrette, the Greene court listed five major factors probative of Government overreaching: (1) the agent initiated the contact; (2) the contact was of long duration; (3) the agent was substantially involved in the criminal activity; (4) the agent applied pressure to prod the defendant into illegal activity; and (5) the agent helped establish the illegal activity and the agent was the only illegal customer. According to Rep. Jenrette, the Greene criteria closely fit the factual situation of the present case.
Rep. Jenrette's trial began on September 5, 1980. Meanwhile, the Government, on September 8, 1980, responded to Rep. Jenrette's motion to suppress by claiming that Rep. Jenrette had made no specific attack on the propriety of the process which produced the materials he was seeking to suppress. Nor could he, said the Government, since all the recordings were made with the consent of at least one of the parties who was being recorded. Such one party consensual tape recordings, said the Government, are legally unassailable under 18 U.S.C. § 2511(2)(c) and many Supreme Court
On September 8, 1980, Rep. Jenrette's motion to suppress was denied. No memorandum accompanied the court's order.
On September 12, 1980 (while the trial was still in progress), the Government filed a legal memorandum on the subject of entrapment (as opposed to overreaching). Rep. Jenrette, said the memorandum, had argued that in order to overcome his entrapment defense, the Government would have to prove that he was predisposed toward criminal conduct prior to the commission of the crimes charged. In its memorandum, the Government challenged this argument claiming instead that the FBI could properly have offered defendant Jenrette an opportunity to commit crimes even if it had no basis for believing that he had been engaged in criminal conduct in the past. According to the Government, although evidence of a defendant's prior criminality could be relevant to the question of a defendant's predisposition, other factors could also be relied upon to prove predisposition-factors such as: (1) the willingness of the defendant to discuss criminal acts with the undercover agent; (2) the efforts of the defendant to maintain contact with the agent; and (3) evidence that after the original criminal act, as proposed by the agent, was completed the defendant embarked on a second, self-initiated plan to perform another criminal act. Using
these criteria, said the Government, it would become clear that Rep. Jenrette was predisposed to accept the bribes.
On October 7, 1980, the jury, which had been sequestered for the duration of the trial, found Rep. Jenrette and Mr. Stowe guilty on all counts.
Immediately after the jury returned its verdict, the court agreed to hear arguments on all outstanding motions on November 12 and 13, 1980. Among the outstanding motions was Rep. Jenrette's motion to dismiss on the basis of Government overreaching. (Apparently, at some point Judge Penn decided that this issue would be decided post-trial and not during the presentation of evidence as he had originally planned.)
The court conducted hearings on Rep. Jenrette's claims of overreaching on November 12 and 13, 1980, as scheduled. The hearings were reconvened on February 10, 1981 and adjourned on February 11, 1981. The hearings were reconvened on May 11, 1981 and were finally completed one week later.
At the conclusion of the hearings, the court instructed Rep. Jenrette to submit a memorandum addressing, among other things, the issues of overreaching and entrapment. Rep. Jenrette complied with the instruction by filing a 120 page memorandum on July 20, 1981.
Rep. Jenrette's July 20th memorandum began by describing, in general terms, the alleged improper overreaching practices engaged in by the Government during the course of the ABSCAM investigation:
[I]t should be axiomatic that the proper role of law enforcement in a civilized society is the investigation and discovery of those engaged in criminal activity. Any system in which the discovery of crime relies solely upon the instigation of crime cannot long be expected to respect the rule of law.
The FBI undercover operation now known as ABSCAM demonstrates some of the most serious dangers inherent in a law enforcement system that, without any meaningful supervision, viewed apprehension as so paramount that it was permitted to create an ongoing criminal enterprise for the sole purpose of testing public officials. While the defendant submits that the proper role of law enforcement is not, and should not be, that of a testor of the morality of any citizen, even if that premise is accepted for purposes of argument, it becomes clear that the FBI seriously abused its power in the present case. That abuse took the form of violations of statutory authority which revealed a shocking callousness to the rights of targets and defendants and a total indifference to those protections afforded any citizen in even the most simple criminal investigation. It is a case of where, in the government's apparent view, the ends justified the means. It was the government's myopic march towards that end however which violated the very same public trust that the ABSCAM operation misled the public into believing it had protected. [Post Hearing memoran
dum in Support of Defendant Jenrette's Motions to Dis-
In support of his contentions, Rep. Jenrette made six basic points. First, he alleged that the individuals responsible for the ABSCAM undercover operation made a number of organizational and operational decisions designed "solely for the purpose of immunizing the investigation from subsequent review and responsibility." [Id. at 10] For example, said the defendant, Mr. Weinberg and Mr. Stowe were at liberty to approach Members of Congress as they saw fit. According to Rep. Jenrette, the transcripts of the testimony taken during his trial revealed that the decision to investigate him was based on Mr. Stowe's allegations to Mr. Weinberg that Rep. Jenrette would accept a bribe; yet the "FBI made no attempt to even examine these allegations-much less confirm them." [Id. at 11] Further, said the defendant, the testimony of Mr. Weinberg's supervisor, FBI Agent Amoroso, indicated that, absent a tape recording, Agent Amoroso had no way of knowing what Mr. Weinberg said to Mr. Stowe. Thus, "Any attempt to obtain the details of the initial middleman discussions (which may or may not involve outrageous promises of wealth, jobs, or threats by Weinberg) is now covered by Amoroso's testimony that he relied strictly upon Weinberg's word on the initial contacts." [Id. at 13] In addition, claimed Rep. Jenrette, the ABSCAM investigators made very few written records during the course of the investigation. In fact, "Amoroso testified at trial he made absolutely no notes of his discussions with Weinberg." [Id. at 15] It was therefore Rep. Jenrette's conclusion that "the ABSCAM operation both by design and operation served to frustrate the goals of the judicial process." [Id. at 19]
Second, Rep. Jenrette contended that the Congressional committees that held hearings on the ABSCAM operation were told by Justice Department officials that certain investigative guidelines and review procedures were used during the investigation when in fact they were not. For example, said the defendant, on March 4, 1980 both FBI Director William Webster and Assistant Attorney General Philip Heymann told the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee that adequate safeguards and guidelines were in place during the ABSCAM investigation to prevent abuses by unscrupulous middlemen. According to Rep. Jenrette, Mr. Heymann told the Subcommittee that one such safeguard was the avoidance of offering excessively high inducements. Rep. Jenrette quoted Mr. Heymann as stating:
The opportunities for illegal activity created in the course