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440 U.S. 741 (1979).[Id. at 55] Furthermore, claimed the Government, "not only do the claimed infractions need to rise to constitutional dimensions for relief, they must also violate the constitutional rights of the defendants. United States v. Payner, supra: United States v. Morrison, supra.[Id. at 56-57] Using these tests, asserted the Government, it was clear that Rep. Jenrette's arguments lacked merit:

A showing that Weinberg could have been better super-
vised in 1978 or that Amoroso should have made a 302 on
a particular occasion serves the defendants not at all
unless they show real, not hypothetical, prejudice to them-
selves. Since there is not a hint of evidence in the record
that any constitutional right of either defendant was vio-
lated or that any procedure in the investigation resulted in
the production of unreliable evidence that was used
against the defendants, their effort to raise the banner of
alleged violation of in-house rules, regulations and guide-

lines must prove unavailing. (Id. at 57] With respect to Rep. Jenrette's claims regarding the stolen tapes and the Government's alleged decision not to establish a paper trail, the Government asserted that Rep. Jenrette made "no credible showing that something not produced redounded to [his) detriment." [Id. at 66] With respect to Rep. Jenrette's claim that agents Amoroso and Good purposely failed to take notes, the Government said, “It is true that there were many meetings within the Justice Department during the Abscam investigation wherein Justice personnel . . . took no notes. We submit that it is totally unrealistic to expect that they would take notes on such occasions and totally incorrect to suggest that they had a legal obligation to do so." (Id. at 63] With respect to the missing tapes the Government said:

We realize, of course, that the lost airport tapes immedi-
ately bring to the fore United States v. Bryant, 439 F.2d
642 (D.C. Cir. 1971), a case which imposes upon the govern-
ment an obligation to preserve all evidence which might
be favorable to the defense. Bryant coupled this rule with
a pragmatic test for when sanctions are to be imposed
against the government for failure to preserve evidence.
The court must balance:
the degree of negligence or bad faith involved, the impor-
tance of the evidence lost, and the evidence of guilt ad-
duced at trial.
439 F.2d at 653.

There is no evidence that the three or four lost tapes
were willfully destroyed. The view of the tapes most favor-
able to the defense is that the government transported the
tapes from Florida to New York in a negligent manner
and that when the government learned of the loss and
learned from Weinberg that the contents of the tapes were
insignificant, its investigation into the loss was perfunc-
tory. The circumstances of the loss and the government's
response cannot obscure (1) the fact that there is no credi-
ble evidence that the lost tapes had anything to do with

the defendants; and (2) the overwhelming evidence of guilt
adduced at trial. There is much authority that if the gov-
ernment loses evidence inadvertently, sanctions will rarely
be imposed, especially where evidence of guilt is strong.
See e.g., United States v. Bundy, 472 F.2d 1266 (D.C. Cir.
1972); United States v. Miranda, 526 F.2d 1319 (2d Cir.
1975); Armstrong v. Collier, 536 F.2d 72 (5th Cir. 1976);
United States v. Maynard, 476 F.2d 1170 (D.C. Cir. 1973);
United States v. Harrison, 524 F.2d 421 (D.C. Cir. 1975). (Id.

at 65-66] Turning next to Rep. Jenrette's allegations regarding violations of numerous Federal statutes, the Government asserted that by December 1979, when Rep. Jenrette accepted the bribe, “the Abscam operation was in conflict with none of the laws cited in the Harmon document." (Id. at 70]

On September 11, 1981, Rep. Jenrette filed a reply memorandum reiterating many of his previous allegations regarding the "outrageous” conduct of the Abscam investigators.

On September 22, 1981, Rep. Jenrette's motion to dismiss on the basis of Government overreaching was taken under advisement.

Status—The case is still pending in the U.S. District Court for the District of Columbia. There was very little docketed activity in the case during 1982 and the begining of 1983. United States v. Myers

No. 81-1342 (2d Cir.) and No. 82–1-01255-CFY (U.S. Supreme

Court) On May 27, 1980, U.S. Representative Michael O. Myers of Pennsylvania was indicted by a Federal grand jury in the U.S. District Court for the Eastern District of New York. Indicted with Rep. Myers were Angelo J. Errichetti, the Mayor of Camden, New Jersey and a member of the New Jersey State Senate; Howard L. Criden, a Philadelphia attorney; and Louis C. Johanson, a member of the Philadelphia City Council and a member of Mr. Criden's law firm. [Criminal Case No. 80-00249 (E.D.N.Y.)]

Count I of the three count indictment charged the defendants with conspiracy, contrary to 18 U.S.C. $ 371.2 Specifically, it was alleged that on August 5, 1979 defendant Errichetti met with “Tony DeVito” and Melvin Weinberg and told them that Rep. Myers, in return for cash payments, would assist businessmen from the Middle East to enter and remain in the United States. Purportedly, DeVito and Mr. Weinberg were agents of these foreign businessmen. In reality, however, DeVito was Anthony Amoroso, Jr., a Special Agent of the Federal Bureau of Investigation ("FBI”), and Mr. Weinberg was a private citizen assisting the FBI. Also purportedly serving as agents for the foreign businessmen were "Ernie

1

Specifically, conspiracy to violate 18 U.S.C. § 201 (bribery and fraud). 2 18 U.S.C. § 371 provides: If two or more persons conspire either to 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 of 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 provided for such misdemeanor.

Poulos" and "Michael Cohen." In reality, however, these individuals were Ernest Haridopolos and Michael Wald, respectively, Special Agents of the FBI.

Allegedly, on August 22, 1979, defendants Myers and Errichetti had a meeting with Mr. Weinberg and DeVito during which Rep. Myers received $50,000. In return, said Count I, Rep. Myers assured DeVito and Mr. Weinberg that he would introduce in Congress private immigration bills designed to insure that the foreign businessmen would be allowed to immigrate to the United States. The indictment further claimed that Rep. Myers retained $15,000 of the $50,000 received, and that the remaining $35,000 was divided among defendants Criden, Errichetti, and Johanson. Having understood that he was to receive $50,000, not $15,000, Rep. Myers, said Count I, subsequently demanded an additional $35,000 from Poulos and Cohen as a condition to his rendering immigration assistance to the foreign businessmen.

Count II charged that Rep. Myers, by soliciting and receiving payment in return for his promise to provide immigration assistance, committed bribery, contrary to 18 U.S.C. $ 201(c).3

The remaining defendants were charged with aiding and abetting Rep. Myers in the commission of bribery. Accordingly, they were charged with criminal liability as principals, pursuant to 18 U.S.C. 8 2.4

Count III charged that on August 22, 1979 the defendants traveled in interstate commerce (from New Jersey and Pennsylvania to New York) with intent to promote an unlawful activity, to wit, bribery. Such travel was said to violate 18 U.S.C. $ 1952 (Travel Act).5

On June 5, 1980, Rep. Myers entered a plea of not guilty to all counts.

On July 1, 1980, the Committee on Standards of Official Conduct of the U.S. House of Representatives (“Committee") filed an application for an order authorizing the Department of Justice to disclose to the Committee ABSCAM-related material (except grand jury transcripts) in the custody of the Department or the grand jury. The application explained that under clause 4(e)(1) of Rule X of the Rules of the House, the Committee was authorized to investigate alleged violations by Members of their official duties. The Committee also stated that on March 27, 1980, the House adopted Resolution 608 which specifically directed the Committee to conduct a full investigation into the ABSCAM affair and to report any recommendations for disciplinary action to the full House. The Committee further stated that the information sought through the instant application was essential if Congress was to carry out its constitutional function of imposing discipline on its Members. The application concluded by noting that the Committee would take precautions—including requiring Committee Members and Committee counsel to execute confidentiality agreements—to prevent unnecessary or inappropriate disclosures of materials and information received. On July 4, 1980, the Committee's application was granted.

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 make opportunity for the commission of fraud, on the United States; or

(3) being induced to do or omit to 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. 4 18 U.SC. $ 2 provides: (a) Whoever commits an offense against the United States or aid, abets, counsels, commands, induces or procures its commision 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.

5 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 to

(1) distribute the proceeds of any unlawful activity; or
(2) commit any crime of violence to further 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.

On July 10, 1980, Rep. Myers filed a motion to dismiss in which he attacked the indictment on a variety of grounds. It was his belief that the indictment: (1) violated the doctrine of separation of powers and the Speech or Debate Clause of the U.S. Constitution; 6 (2) failed to state an offense; (3) was predicated on an unconstitutional statute, to wit, 18 U.S.C. $ 201; and (4) raised political questions and was therefore nonjusticiable.

Regarding the first claim, Rep. Myers stated that the grand jury based its indictment of him, in significant part, on documents and other information that were privileged under the Speech or Debate Clause. Specifically, the defendant alleged that Federal law enforcement officials obtained information regarding his past activities regarding private immigration bills from the House Information System ("HIS'') and presented this information to the grand jury. Rep. Myers also claimed that four members of his legislative staff, pursuant to subpoenas duces tecum, were ordered to transmit his appointment books, travel logs, and telephone logs to the grand jury, and that apparently the staff members complied. In arguing that this HIS information and the official logs and books reflected instances of legislative acts, and therefore could not constitutionally be scrutinized under the Speech or Debate Clause, Rep. Myers relied heavily on the holding in In Re: Grand Jury Investigation, 587 F.2d 589 (3rd Cir. 1978). Finally, Rep. Myers claimed that it appeared that the grand jury was shown videotapes of him. Allegedly, these videotapes should not have been shown because they "contained references to past legislative acts and the motivation therefor, specific references to speech or debate on the floor of the House of Representatives, and references to numerous acts which are indeed integral parts of the deliberative and communicative proc

.” [Motion of Michael O. Myers to Dismiss Indictment, July 10, 1980, at 14] Rep. Myers stated that when an indictment has been tainted by a grand jury's consideration of matters protected by the Speech or Debate Clause, the only remedy is dismissal. In support of this contention, Rep. Myers cited the opinion of U.S. Dis

ess

6 The Speech or Debate Clause of the U.S. 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, § 6 cl. 1)

21-618

0-83_-4

trict Court Judge Curtis Meanor in United States v. Helstoski. (See page 71 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case.) Rep. Myers' final point was that even if his indictment was not tainted by the consideration of legislative acts, it would still have to be dismissed because in order to defend himself at trial he would have to introduce evidence of his legislative acts. In effect, said Rep. Myers, a trial on this indictment would impermissibly force him to either waive his Speech or Debate Clause protection or relinquish his due process right to present a full and complete defense.

Next, the defendant asserted that the indictment failed to state an offense. His argument was that 18 U.S.C. $ 201(c) (bribery) requires proof that the defendant corruptly agreed to be influenced in his performance of an official act. If no official act has been or could be performed, reasoned Rep. Myers, then no bribery could be charged. Thus, said the defendant, this indictment was defective because it was impossible for him to render immigration assistance (i.e. perform an official act) for the benefit of foreign businessmen who in fact did not exist.

Rep. Myers' third argument was that section 201 was unconstitutional both on its face and as applied. Regarding facial validity, Rep. Myers stated that the passage of section 201 was an unconstitutional infringement upon the separation of powers doctrine, the Speech or Debate Clause, and the Punishment Clause. In Rep. Myers' view, the separation of powers doctrine “provides that one branch of government may not intrude into the exclusive functioning of another branch ... yet this is precisely what the instant legislation attempts to do in diverting consideration of matters involving the behavior of House Members, to branches other than the legislative branch." [Motion of Michael O. Myers to Dismiss Indictment, July 10, 1980 at 25-26] With respect to section 201's validity under the Speech or Debate Clause, Rep. Myers said:

[T]he Speech or Debate Clause states that no legislator may be questioned in any arena regarding speech or debate. Defendant suggests that the passage of this legislation invaded this protection for it provided for judicial scrutiny of and executive enforcement of acts coming within the purview of the Speech or Debate Clause. A constitutional provision cannot be so infringed upon by a legislative enactment, absent a constitutional amendment.

(Id. at 24] Regarding the Punishment Clause, Rep. Myers said:

This Constitutional provision thus sets forth a mandated procedure by which House Members can maintain internal control over their body. This Constitutional provision cannot be so ignored by the passage of Section 201, which directly violates the underpinning of the Punishment Clause, and delegates to other branches of government, the responsibility for punishing and examining House Members for alleged disorderly conduct. (Id. at 25]

* The Punishment Clause of the U.S. Constitution provides: "Each House may ... punish its Members for disorderly Behavior.” (art. I § 5, cl. 2]

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