« ForrigeFortsett »
same was true of Messrs. Jenrette and Stowe here. In fact,
same is true here. (Id. at 79] Having concluded his arguments on the subject of overreaching, Rep. Jenrette, in his July 20th memorandum, proceeded to address the issue of entrapment. Quite simply, Rep. Jenrette stated that a review of the complete record established, as a matter of law, that the undercover operation had entrapped him. Although the entrapment issue had been presented to the jury for its consideration, said the defendant, Judge Fullam's decision in United States v. Jannotti, 501 F.Supp. 1182 (E.D. Pa. 1980) demonstrated that the issue could be resolved by the court as a legal matter even in the face of a jury verdict adverse to the defendant. In the instant case, continued Rep. Jenrette, a finding of entrapment was necessary for two reasons. First, the Government had failed to show beyond a reasonable doubt that he was predisposed to commit any of the charged offenses. Second, it was impermissible for the Government to attempt repeatedly to induce him to commit a crime. On this second point Rep. Jenrette claimed that the undercover operation attempted to induce him to commit a crime on four different occasions. His position was that "the government, after the first three attempts proved unsuccessful, cannot be permitted to base a prosecution upon a complete fourth attempt.” (Id. at 98] In support of this contention, Rep. Jenrette cited two cases which he had relied upon in support of his July 14, 1980 motion to dismiss: United States v. Archer, supra, and Hampton v. United States, supra.
On August 31, 1981, the Government filed a memorandum in opposition to Rep. Jenrette's motions to dismiss and for a new trial. The Government's memorandum began with a detailed description of the history of the ABSCAM investigation, and more particularly, the investigation of Rep. Jenrette. 9
Next, the Government addressed Rep. Jenrette's claims regarding entrapment. Quoting Sherman v. United States, 356 U.S. 364, 372 (1932) the Government claimed that entrapment exists “ 'when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.'” [Government's Memorandum in Opposition to Defendants' Motions To Dismiss and Motion for a New Trial, August 31, 1981, at 25] Thus, said the Government, for entrapment to be established: (1) the Government must originate the crime and induce the defendant to commit it; and (2) the defendant must be an innocent person who would not have committed a crime of this sort had he not been thus induced. In United States v. Burkley, 591 F.2d 903 (D.C. Cir. 1978), continued the Government, the court made it clear that a “ 'solicitation, request, or approach
Portions of this material are printed in Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981, beginning at page 521.
by law enforcement officials to engage in criminal activity, stand-
[I]t is clear that the government can rely on a variety of
and eager response to the government's offer. (Id. at 27] The Government then proceeded to compare the evidence of predisposition presented to the jury in the Burkley case with the evidence of predisposition presented to the jury in the instant case:
In Burkley, the court enumerated the facts that demonstrated that the defendant was predisposed to twice sell drugs to an undercover agent:
"(1) the defendant was initially willing to discuss the possibility of a narcotics transaction with the undercover agent;
"(2) the defendant voluntarily remained in contact with
"(3) the defendant subsequently initiated a second sale
. . agents to commit the for
bidden acts for which he is charged." United States v.
Hansford, 303 F.2d 219, 222 (D.C. Cir. 1962). [Id. at 28] The Government concluded its discussion of entrapment by asserting that a court's power to overturn a jury's finding that no entrapment occurred was very limited. Citing United States v. Spain, 536 F.2d 170, 173 (7th Cir. 1976), the Government stated that entrapment as a matter of law is established only when the absence of predisposition appears from uncontradicted evidence. Having failed to meet this test, and having been "captured on tape flagrantly talking about, encouraging, and committing serious criminal acts,” Rep. Jenrette and Mr. Stowe "merited only guilty verdicts, not a finding of entrapment as a matter of law.” (Id. at 29]
With respect to overreaching (the so-called “due process defense"), the Government stated that the two key U.S. Supreme Court cases on overreaching, United States v. Russell, supra, and Hampton v. United States, supra, neither firmly established the existence of a due process defense nor clarified the boundaries and limitations of any such defense. In any event, continued the Government, even if the due process defense were to be recognized, it would be confined to the most outrageous Government conduct, "marked by a flagrant disregard for common decency and individual rights." [Id. at 34] Next, the Government discussed several "due process" cases, including United States v. Johnson, 565 F.2d 179 (1st Cir. 1977); United States v. Ordner, 554 F.2d 24 (2d Cir. 1976) cert. denied, 434 U.S. 824 (1977); United States v. Quintana, 508 F.2d 867 (7th Cir. 1975); United States v. Reynoso-Ulloa, 548 F.2d 1329 (9th Cir. 1977); and United States v. Quinn, 543 F.2d 640 (8th Cir. 1976). These cases, and especially United States v. Leja, 563 F.2d 244 (6th Cir. 1977), made it clear, claimed the Government, that the only circuit court case in which the due process defense prevailed, United States v. Twigg, supra, was "an aberration from the usual judicial view of the due process defense.” (Id. at 38 (footnote omitted)]
The Government concluded its preliminary discussion of overreaching by asserting that under United States v. Payner, 447 U.S. 727 (1980) and United States v. Morrison, 449 U.S. 361 (1981) it was clear that:
[n]o relief on due process grounds is available to a defendant without a showing of government conduct that violated his constitutional rights and prejudiced him at trial. That is, Payner and Morrison are a complete bar to relief for a defendant who can only establish that another's ...
rights were violated during an investigation. [Id. at 39] Turning to Rep. Jenrette's specific charges of overreaching, the Government began with a discussion of Rep. Jenrette's allegation of improper targeting. The Government argued, as it had in its September 12, 1980 memorandum on entrapment, that “it is entirely permissible for Government undercover agents to initiate criminal activity even when there is no reason to believe that the defendant had been engaged in wrongdoing in the past." [Id. at 41] In support of this assertion the Government cited United States v. Swets, 563 F.2d 989 (10th Cir. 1977); United States v. Martinez, 488
F.2d 1088 (9th Cir. 1973); United States v. Jenkins, 480 F.2d 1198 (5th Cir. 1973); United States v. Silver, 457 F.2d 1217 (3rd Cir. 1972); and United States v. Rodrigues, 433 F.2d 760 (1st Cir. 1970). However, continued the Government, even if the court was to hold that the ABSCAM investigators had to have had a reasonable suspicion that Rep. Jenrette would commit a crime before approaching him, the “reasonable suspicion” standard was easily met:
The prior and ongoing investigation lent weight to Stowe's
the criminal approach. 10 (Id. at 47] Next, the Government addressed Rep. Jenrette's assertions concerning excessive inducements. It seemed, said the Government, that Rep. Jenrette was taking "the anomalous position that public officials can be prosecuted for taking small bribes, but not for taking large ones." (Id. at 48-49] In any event, said the Government, U.S. District Court Judge George Pratt, who on July 24, 1981 rejected the due process claims of the ABSCAM defendants in New York, had persuasively explained why the sizes of the bribes offered to the ABSCAM defendants were not excessive, and perhaps not even relevant. (Judge Pratt's July 24th memorandum is printed at page 419 of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.)
The Government next addressed Rep. Jenrette's allegations concerning Justice Department review and control of the investigation. First, with respect to the Undercover Review Committee, the Government maintained that this body was created in the summer of 1979 to pass upon proposed future operations, and therefore had no responsibility with respect to the ABSCAM investigation which began before mid-1979. Turning to Rep. Jenrette's claim that Mr. Weinberg was the de facto leader of ABSCAM, the Government openly admitted that "Weinberg was, simply stated, a crook who got caught and who sought to mitigate his troubles by working for the FBI. He worked effectively and the Government paid him well for his performance.” (Id. at 52] However, said the Government, “In no case that we know has a court overturned a jury's verdict on the basis of the 'unsavoriness' of the Government informant.' [Id.] The Government further stated that neither Federal statutory law nor judicial case law places any limit on how much the Government can pay an informant. At any rate, said the Government, Mr. Weinberg's fee was reasonable. Moreover, Mr. Weinberg's method of operation was consistent with the way informants normally operate:
10 According to the Government's memorandum (at p. 46), by December 4, 1979, the day Rep. Jenrette was offered a bribe, the FBI knew the following about him:
1. That he was associated with Mr. Stowe;
2. That Mr. Stowe had said that Rep. Jenrette was willing to engage in an illegal deal involving certificates of deposit;
3. That he had been the subject of a land fraud/bank fraud investigation in South Carolina;
4. That he was then the subject of a drug smuggling investigation, an obstruction of justice investigation, and other investigations involving false travel vouchers to Congress and illegal campaign contributions;
5. That Mr. Stowe had repeatedly represented that Rep. Jenrette knew of the bribe offer and would be a willing participant; and
6. That when Rep. Jenrette first came to the townhouse, he talked freely about the 'immigration problem.'
Typically, informants are “sent out on the street” to generate activity in an area of law enforcement interest. The "junkie” informant or the informant looking for illegal arms will let it be known that he is looking for a buy. Weinberg, at the outset of the investigation, merely let it be known that he had wealthy employers who were looking for “investments” and later that his employers might be in need of private immigration bills.
Again typically, the informant returns to the government with intelligence that he has picked up that the government then uses to shape the course of its investigation. The government necessarily relies on the judgment of its informant, who receives a mass of information “on the street” and transmits to the government what he chooses to transmit. The FBI's use of Weinberg did nothing more than follow this typical pattern. He had contact with many, many people in the early stages of the investigation. The FBI relied on him to advise them if the proposals he received had the potential to lead to criminal activity. With Weinberg, and unlike many informants, the FBI checked his recommendations with the many tapes he produced. It was not just Weinberg's opinion the FBI had when deciding how to view a middleman during the investigation. In most instances, and certainly with Stowe, they had the middleman's own representations on tape to use to
help to decide how best to proceed. (Id. at 53-54) After explaining that Mr. Weinberg was never allowed to take any significant investigative step without prior approval by the FBI, the Government stated that the important question was whether "anything significant (would) have occurred differently in this case had Weinberg been supervised every minute of the day and been given no discretion at all.” (Id. at 55) Obviously, said the Government, the answer was "No." Thus, Mr. Weinberg's supervision “affected none of the legally significant acts of the defendants and this fact is a bar to relief for the defendants on this issue.” (Id.]
Next, the Government responded to Rep. Jenrette's allegation that the Government's failure to monitor the ABSCAM investigation resulted in numerous investigative irregularities. Although the Government denied that any significant investigative violations occurred, it took the position that even assuming, arguendo, that such violations did occur, “the infractions of in-house rules by the FBI or Justice . . . cannot justify dismissal of an indictment unless they amount to constitutional violations. United States v. Caceres,