should be dismissed. Regarding Government misconduct, Rep. Myers stated that the Government violated both Rule 6(e) of the Federal Rules of Criminal Procedure and Justice Department regulations (28 CFR § 50.2) by disclosing publicly matters occurring before the grand jury. These disclosures allegedly involved: (1) detailed descriptions of videotapes which were to be shown to the grand jury; (2) the dates when indictments were expected; and (3) the charges expected to be contained in the indictment. Rep. Myers further asserted that these actions by the Government may have well violated two Federal statutes: 5 U.S.C. § 552a[b] (the Privacy Act) and 18 U.S.C. § 1501 (obstruction of justice). He concluded by calling upon the court to demonstrate its intolerance of the Government's conduct by exercising its supervisory power to dismiss. the indictment. On August 7, 1980, Rep. Myers' motion to dismiss on the grounds of prejudicial pre-indictment publicity and Government misconduct was denied. In an opinion accompanying the order, Judge Mishler noted that the conduct of the Government officers who disclosed information of the investigation was "grossly improper and possibly illegal." [United States v. Myers, Cr. No. 80-00249 (E.D.N.Y.) Memorandum of Decision and Order, August 7, 1980, at 7] Nevertheless, Judge Mishler held that neither the Fifth Amendment nor any requirement that the judiciary oversee the proper administration of criminal justice mandated dismissal of the indictment. Turning to Rep. Myers' Fifth Amendment claim, Judge Mishler stated that he knew of no case in which an indictment had been dismissed upon the ground that the grand jury was prejudiced by pre-indictment publicity. Moreover, said Judge Mishler, in order to prevail on his Fifth Amendment argument, Rep. Myers would have to bear a heavy burden of demonstrating that he suffered actual prejudice as a result of the publicity. In so holding, Judge Mishler recognized that in United States v. Sweig, 316 F. Supp. 1148 (S.D.N.Y. 1970), aff'd 441 F.2d 114 (2d Cir. 1970). Judge Frankel suggested, in dicta, that Government generated pre-indictment publicity could warrant dismissal even without a showing of actual prejudice. Judge Mishler, however, held that because "other measures are available to deter and punish prosecutorial conduct, . . . it would be inappropriate to give the defendants a 'windfall' by dismissing the indictment simply because some unidentified and possibly low-level member of the prosecutor's office failed to adhere to his duty." [Id. at 13] In coming to this conclusion, Judge Mishler relied on United States v. Stanford, 589 F.2d 299 (7th Cir. 1978), cert. denied, 440 U.S. 983 (1979). The court turned next to Rep. Myers' claim that the indictment should be dismissed pursuant to the court's supervisory power to discourage Government misconduct. Judge Mishler began by stating that courts undoubtedly have supervisory authority over the administration of justice, but that this authority must be invoked with extreme care. He called dismissal of an indictment an "extreme sanction" and stated that under United States v. Fields, 592 F.2d 638, 647 (2d Cir. 1978), cert. denied, 442 U.S. 917 (1979) dismissal is warranted only to achieve one or both of two objectives: First, to eliminate prejudice to a defendant in a criminal prosecution; second, to help to translate the assurances of the United States Attorneys into consistent performances by their assistants. As to the first situation described in Fields, Judge Mishler stated that Rep. Myers had failed to show actual prejudice. As to whether dismissal would "help to translate assurances by the United States Attorneys into consistent performances by their assistants," Judge Mishler held that it would not. He stated that the Fields court had been referring to situations such as those exemplified by United States v. Estepa, 471 F.2d 1132 (2d cir. 1972)-a case in which an indictment was dismissed because the prosecutor had failed to heed repeated warnings by the court not to use hearsay evidence before the grand jury. In the present case, said Judge Mishler, this pattern of constant disregard of court directives was absent. Further, the present case did not fall within the ambit of Fields because here the Attorney General, by instituting an investigation of the disclosures and publicly promising to deal severely with the guilty employees, would provide any necessary deterrence against future Government misconduct. Also on July 10, 1980, Rep. Myers moved to dismiss the indictment on the ground that the manner in which the Government conceived of and conducted its investigation was so outrageous and offensive as to constitute a violation of Rep. Myers' due process rights. In support of this charge of Government overreaching, Rep. Myers charged that ABSCAM involved gross improprieties and outright illegalities on the part of FBI agents and Department of Justice personnel. According to the defendant, the Government created a criminal enterprise known as Abdul Enterprises, Inc., whose purpose was originally to uncover those dealing in contraband and stolen property, but which soon turned to luring political targets into a carefully orchestrated scheme of deceit and bribery. These political targets, moreover, were not chosen because of any suspicion that they were involved in criminal activity. Nevertheless, they were enticed to attend meetings with Government undercover agents posing as representatives of an Arab sheik anxious to invest his wealth in legitimate business enterprises in the target's political locale. Once in attendance, the defendant contended, he was lied to and maneuvered into compromising positions through a carefully developed plan in which calculated questions led imperceptibly to illicit activity. Moreover, said Rep. Myers, the sordid scheme was made even more reprehensible by the very presence of Government attorneys at or near the sites of these meetings, who saw to it, through continuing surreptitious communication with the undercover operatives, that Federal jurisdiction was "manufactured." The defendant also charged that in the course of its investigation the Government, in order to protect its undercover operation, violated numerous state and Federal laws, as well as the internal regulations and policies of the FBI and the Department of Justice. For example, it was alleged that Government agents filed false affidavits with a Federal court; allowed one of their undercover opera tives to use Abdul Enterprises in order to swindle numerous businessmen; illegally established a front organization and filed false statements with Federal agencies; introduced misrepresentations into the banking system by creating a bogus account; and obtained a lease on a townhouse in Washington, D.C. by resorting to false pretenses. The defendant concluded that these systematic abuses by law enforcement authorities, culminating in the instant indictment, were unprecedented in scale. The only way to maintain the integrity of the judicial process, concluded Rep. Myers, would be to dismiss the instant indictment. On August 7, 1980, Judge Mishler filed a memorandum and order addressing Rep. Myers' claims of Government overreaching. The Judge began by pointing out that Rep. Myers was not raising an entrapment defense. He also noted that Federal courts do have the power to preclude a criminal prosecution because of Government misconduct. The court would entertain Rep. Myers' motion, said the Judge, but not before trial as he had requested. Because the defendant was challenging almost every facet of the investigation, the court concluded that a pre-trial hearing would unduly delay the trial. Further, said Judge Mishler, the publicity that would undoubtedly surround such a pre-trial hearing would make it difficult to select an unbiased jury. Accordingly, the court reserved ruling on Rep. Myer's motion until the conclusion of the Government's case at which point hearings on the matter would be conducted if necessary. On August 8, 1980, the case was transferred from Judge Mishler to Judge George Pratt. On August 11, 1980, Rep. Myers' trial began. On August 29, 1980, Rep. Myers was found guilty on all three counts (as were the other defendants). Hearings on Rep. Myers' motion to dismiss on the grounds of Government overreaching began on January 12, 1981. These "due process" hearings concluded on February 16, 1981. On March 24, 1981, Rep. Myers filed a memorandum in support of his motion to dismiss on the ground of overreaching. In this memorandum, he also alleged that he had been entrapped. On May 1, 1981 the Government filed a memorandum in response. On July 24, 1981, Judge Pratt issued a decision denying Rep. Myers' motion to dismiss. [United States v. Myers, 527 F. Supp. 1206 (E.D.N.Y. 1981).] Judge Pratt began his discussion of the Myers case by outlining the claims Rep. Myers had made in his post-trial motion: The four defendants in Myers have filed joint briefs in support of all post-trial motions and thus their arguments are referred to collectively. The Myers defendants essentially claim that the Abscam investigation did not uncover criminal conduct, but instead created or instigated any criminality that may be present, and that improper delegation of authority, lack of supervision, inadequate documentation and the reward system used by the government created such doubt as to the truth, reliability and integrity of the verdict as to require dismissal of the indictments. The Myers defendants urge, in effect, that notwithstanding . their failure to claim entrapment at the trial, they are not precluded from now asserting a defense of "entrapment as a matter of law", or "objective entrapment." They urge that many states have recognized and legislatively adopted objective entrapment and that the federal courts should constitutionalize that trend. More particularly, the Myers defendants argue that the government did not infiltrate or uncover ongoing criminal activity, but instead created such activity; that the government offered overwhelming inducements to the Myers defendants; that Abscam was conducted without adequate safeguards, particularly with respect to supervision of Weinberg; that the techniques employed by the government in Abscam were "outrageous" within the meaning of Hampton v. United States, 425 U.S. 484 (1976); that there was entrapment as a matter of law; that the compensation of Weinberg as an informant is unconstitutional; that it is improper to undertake a general investigation into the corruptibility of members of a particular branch of government without some "well-grounded basis"; that as a matter of constitutional law the "so-called due process defense or objective strand of the entrapment defense" should be available to a defendant subjected to "outrageous governmental investigatory action"; that the destruction, erasure or unexplained loss of tapes requires an inference that the tapes contained exculpatory material; and that in an undercover investigation the verbal assertion by a potential target that he or she desires to act within the law forecloses any further investigation of that individual. [527 F. Supp. at 1217-1218] 8 Next, Judge Pratt outlined the Government's response to Rep. Myers' arguments: The government argues that the ABSCAM investigation "cannot be considered in the abstract, for the facts as de- Judge Pratt's July 24th order and memorandum was dispositive not only of Rep. Myers' due process claims, but also of the claims of Reps. Lederer, Thompson, and Murphy who raised similar due process issues during their ABSCAM prosecutions. As a result, the Government's response addressed the claims not only of Rep. Myers, but also of Reps. Lederer, Thompson, and Murphy. Further, whenever in Judge Pratt's memorandum reference is made to the "defendants" it should be understood that the court is referring not only to Rep. Myers and those indicted with him, but also to all the defendants in the Lederer, Murphy, and Thompson ABSCAM cases. lous public officials who were never "victimized" by the in- The government further argues that the Abscam investi- The court then proceeded to group the defendant's challenges into two categories: general and specific. The court found that there were six general challenges, the first of which was that the indictment should be dismissed because the Abscam investigation did not uncover criminal conduct, but instead created and instigated it. Before addressing the merits of this contention, Judge Pratt discussed at length the law of entrapment: Much of the judicial discussion of these questions has focused on the ideas generally encompassed in the concept "entrapment". Although virtually all judges have agreed that an innocent person who was "entrapped" by government agents into committing a criminal act should not be convicted, there is less agreement on the proper principles underlying the concept of entrapment and on what factors do or do not constitute entrapment. Under the so-called "subjective" approach to the defense of entrapment, two factors must be considered: Was the defendant's criminal conduct "induced" by the government agent? If it was, was the defendant "predisposed" to commit the crime? This subjective approach focuses upon the conduct and propensities of the particular defendant in each case. It is for the jury to determine, first, whether there is sufficient evidence of "inducement" and, if so, whether the government has proven beyond a reasonable doubt that the defendant was "predisposed". In theory, the subjective approach to entrapment is grounded in legislative intent: if an otherwise innocent person was entrapped by a government agent into performing a criminal act, the legislature never intended that his conduct be punished. Sorrells v. U.S., 287 U.S. 435 (1932); U.S. v. Russell, 411 U.S. 423 (1973). "Objective" entrapment is a term applied to either of two different concepts. Under one view of "objective" entrapment the focus is not upon the propensities and predispositions of the individual defendant, but instead upon an objective standard of "persons who would normally avoid crime and through self-struggle resist ordinary temptations", Sherman v. U.S., 356 U.S. 369, 384 (Frankfurter, J., |