ishment Clause.” In his accompanying memorandum, Rep. Kelly stated that many of his present and former staff members were subpoenaed and testified before the grand jury, and that many of his documents were also subpoenaed and turned over to the grand jury. Rep. Kelly argued that if any of the testimony or materials considered by the grand jury involved legislative acts, the indictment would have to be dismissed as violative of the Speech or Debate Clause of the U.S. Constitution. Accordingly, he requested a hearing on the matter. Rep. Kelly also argued that the Punishment Clause of the Constitution,? when read in conjunction with the Speech and Debate Clause, deprives the Judicial branch of jurisdiction to question, charge, or punish any Member for legislative misconduct.

On November 25, 1980, defendant Kelly's "Motion to Dismiss Pursuant to Speech or Debate Clause or Punishment Clause" was denied. In its Memorandum and Order, the court stated that speech or debate material was not a substantial factor underlying Rep. Kelly's indictment; nor did the grand jury lack sufficient competent evidence to establish probable cause:

The question of speech or debate material tainting an indictment has been considered in the recent past by both the United States Court of Appeals for the Second and Third Circuits. United States v. Helstoski, No. 80-1592 (3rd Cir. November 3, 1980; United States v. Myers, No. 80-1309 (2nd Cir. August 8, 1980). Both courts started from the premise that ordinarily courts do not look behind the face of an indictment and invalidate it because the grand jury received incompetent evidence. Helstoski, slip op. at 6; Myers, slip op. at 4933. However, in Helstoski the court held that since privileged material "permeated the whole [grand jury] proceeding,” slip op. at 10, the privileged testimony was "a substantial factor underlying the indictment,” slip op. at 7, and the grand jury proceedings were thus "polluted by the presentation of evidence violating the speech or debate clause," slip op. at 6, the district court was correct in dismissing the indictment. In Myers, although the Court of Appeals affirmed the district court's denial of a motion to dismiss based on speech or debate material, the court acknowledged in a footnote that under certain conditions a district court might be justified in dismissing an indictment on speech or debate clause grounds. Slip op. at 4934 n. 10. The Myers court held that such a motion to dismiss might lie if the privileged evidence constituted such a large proportion of the evidence before the grand jury as to raise a substantial question of whether the grand jury had sufficient competent evidence to establish probable cause." [Id.]

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]

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

Once again it is unnecessary for the court to resolve conflicting standards proposed by other circuit courts. Under either the Third Circuit's "substantial factor underlying the indictment” standard, Helstoski, supra, or the Second Circuit's “sufficient competent evidence” standard, Myers, supra, Mr. Kelly's motion to dismiss the indictment on speech or debate clause grounds must fail. The court has reviewed the grand jury transcripts of associates of Mr. Kelly's. It is clear that speech or debate material was a very small part, if any, of the evidence presented to the grand jury. Further, the many video and audio tapes played for the grand jury resolve any doubt there may be on the sufficiency of nonspeech or debate grand jury evidence. See Myers, supra at 4934 n.10 (sustaining Judge Mishler's denial of a motion to dismiss; extensive tapes and recording held sufficient competent evidence to establish probable cause before the grand jury). 1

1 There is no merit whatsoever in Mr. Kelly's assertion that the punishment clause, art. I, 35, cl. 2, deprives the judiciary of jurisdictions over a Congressman. United States v. Brewster, 408 U.S. 501 (1972); United States v. Diggs, 613 F.2d 988

(D.C. Cir. 1979). [Memorandum and Order, November 25, 1980, at 1-2]

A fifth motion filed on September 15, 1980 by Rep. Kelly was his motion to dismiss on the grounds of Government overinvolvement and overreaching. His argument was that the investigative tactics used by the Government during the ABSCAM operation were so grossly unfair that they violated his right to due process of law. It was Rep. Kelly's contention that the Government resorted to systematic abuses of law enforcement power to manufacture and then prosecute spurious offenses. After emphasizing that he was not claiming that he had been entrapped, the defendant claimed that in both United States v. Russell, 411 U.S. 423 (1973) and Hampton v. United States, 425 U.S. 484 (1976) a majority of the Court was unwilling to hold that overreaching police conduct could never violate due process rights. The defendant also cited United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978) as a case in which the overreaching defense was invoked and sustained. The defendant argued that a careful reading of Twigg and Russell along with United States v. Archer 486 F.2d 670 Cir. 1973), United States v. Corcione, 592 F.2d 111 (2d Cir. 1979) cert. denied 440 U.S. 985 (1979) and Greene v. United States, 454 F.2d 783 (9th Cir. 1971) indicated that a crucial factor in any examination of a law enforcement agent's conduct is the extent to which the agent generated unlawful activity where no unlawful activity had previously existed. The critical distinction, said Rep. Kelly, is between infiltrating ongoing criminal operations and initiating previously nonexistent criminal operations. In this regard Rep. Kelly stated that there was never any suggestion that there had ever existed an ongoing bribery conspiracy among Members of Congress that the Government sought to infiltrate. In short, it was alleged that had the Government not set up its fictitious operation and initiated contact with the defendant through its agents, no prosecution could ever have occurred.

Rep. Kelly further argued that court precedents indicate that overreaching is more likely to be found if the defendant can show that the investigating agents violated laws during the course of their investigation. In this vein, the defendant stated that Joseph B. Meltzer, who during the ABSCAM investigation portrayed himself as a top employee of a fictitious foreign businessman, Abdul, used the ABSCAM investigation as a cover to swindle numerous businessmen by promising them that Abdul would provide low interest loans for their business ventures. Rep. Kelly claimed that although the FBI was aware that Mr. Meltzer was defrauding innocent third parties, it took no action to stop him, and actively participated in the cover-up. Whether or not illegal (under 18 U.S.C. $ 4), said the defendant, the Government's conduct in the Meltzer affair was intolerable. A second example of alleged Government lawbreaking involved the Olympic Construction Company, which leased the Washington, D.C. townhouse where the video and audio tapes of Rep. Kelly were made. According to Rep. Kelly, newspaper reports indicated that the FBI provided Olympic with a $6 million interest free loan in return for Olympic's assistance in the investigation. According to Rep. Kelly, 18 U.S.C. $ 1001 (false statements) was violated when Olympic filed a contract bid with the Federal Government and failed to disclose the existence of this $6 million liability. Rep. Kelly charged that the Government again broke the law, specifically 18 U.S.C. $ 1005, when it induced the Chase Manhattan Bank to verify the existence of a fictitious bank account in the name of “Abdul Enterprises” to add credibility to the ABSCAM operation.

On November 7, 1980, the Government filed an opposition to Rep. Kelly's motion to dismiss on the grounds of Government overinvolvement and overreaching.

On December 8, 1980, Rep. Kelly's trial began. On January 26, 1981, he was found guilty on all three counts. Sentencing, which had been scheduled for February 23, 1981, was subsequently deferred,

apparently for an indefinite period of time. On February 10, 1981, Rep. Kelly filed a motion for a new trial and a motion to dismiss on the basis of due process violations (i.e. overreaching).

With respect to the motion to dismiss, Rep. Kelly repeated the arguments he had made in his September 15, 1980 motion to dismiss on the grounds of Government overinvolvement and overreaching. (Apparently, the court decided at some point that it would postpone

decision on that motion until after trial.) In addition, Rep. Kelly argued that: (1) Mr. Weinberg's salary was improper in that it was based upon the success of subsequent prosecutions; (2) the investigation was conducted so as to leave no "paper trail” and (3) Government investigators failed to exercise effective control over the activities of Mr. Weinberg. With respect to the motion for a new trial, Rep. Kelly argued, inter alia, that the verdict was contrary to the weight of the evidence, and that the court erred in refusing to utilize Rep. Kelly's proposed jury instruction regarding bribery.

Also on February 10, 1981, Rep. Kelly filed a motion for judgment of acquittal, arguing that there was no evidence upon which a reasonable person could conclude beyond a reasonable doubt that he was predisposed to commit the crimes alleged in the indictment. Thus, he said, he was entrapped as a matter of law.

On October 30, 1981, the Government filed a memorandum in opposition to Rep. Kelly's motion to dismiss. The Government began by pointing out that “the Supreme Court has never held but only suggested that police 'overinvolvement' in criminal activity might reach 'such proportions as to bar conviction of a predisposed defendant as a matter of due process.' Hampton v. United States, 425 U.S. 484, 493 (1976) (Powell, J., concurring); United States v. Russell, 411 U.S. 423, 431-432 (1973).” (Supplemental Opposition to Defendant's Motions to Dismiss Indictment ... October 30, 1981 at 2] The Government further stated that since the time the due process concept was first articulated in Russell and Hampton, the Government prevailed in every reported appellate decision except United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978), which the Government called an "aberration."

Next, the Government addressed Rep. Kelly's contention that the investigation was improper because it was not based on any reasonable suspicion that there existed an ongoing bribery conspiracy involving Members of Congress. The Government responded by stating that, as a matter of law, "not even a reasonable or good faith belief is required before an investigation may commence." [Id. at 12, citing, inter alia, United States v. Swets, 563 F.2d 989, 991 (10th Cir. 1977) and United States v. Martinez, 488 F.2d 1088 (9th Cir. 1973)]

Regarding the “paper trail” allegations, the Government responded that Rep. Kelly had failed to show that the absence of any records or memoranda had operated to deny him any constitutional right.

On May 13, 1982, Chief Judge Bryant issued a memorandum and order granting Rep. Kelly's February 10, 1981 motions to dismiss on due process grounds and for a judgment of acquittal. [United States v. Kelly, 539 F.Supp. 363 (D.D.C. 1982)] In finding that the investigation of Rep. Kelly had indeed involved outrageous tactics, Judge Bryant found it unnecessary to examine all of the defendant's allegations. Instead, Judge Bryant's decision turned on the fact that the evidence showed that Rep. Kelly had never been suspected of engaging in illegal activity prior to ABSCAM and that Rep. Kelly had rejected the initial offer of Messrs. Weinberg and Ciuzio to accept the bribe.

Having rejected the initial offer, said Judge Bryant, Rep. Kelly should not have been tested again, for by encouraging Rep. Kelly to accept the bribe after he had twice rejected it, the ABSCAM agents presented Rep. Kelly with a temptation that would not exist in the real world. Said the Judge:

The litmus test-or temptation-should be one which the individual is likely to encounter in the ordinary course. To offer any other type of temptation does not serve the function of preventing crime by apprehending those who, when faced with actual opportunity, would become criminals. Instead, it creates a whole new type of crime that would not exist but for the government's actions.

When improper proposals are rejected in these virtuetesting ventures, the guinea pig should be left alone. In or

dinary real life situations, anyone who would seek to cor-
rupt a Congressman would certainly not continue to press
in the face of a rejection for fear of being reported and ar-
rested. The FBI of course had no such restraints in this

case. (Id. at 374 (footnote omitted)]
In this same vein, Judge Bryant stated:

Assuming arguendo that public officials need even more attention from law enforcement of the type we are dealing with in this case, it should be done within the context of the purposes and efficacy of the bribery statute. Since the statute penalizes both parties to a bribe, it is highly unlikely that anyone other than a government agent immune from prosecution for violating this statute would make repeated flagrant attempts at corrupting a Congressman for fear that the Congressman would notify the FBI. The penalty clause in the statute is a strong deterrent for such conduct. If no one except the FBI can make such persistent attempts, this procedure does not catch criminals, but

creates them. (Id. at 376] Regarding the facts in the case, Judge Bryant found that Rep. Kelly first became aware of the bribe offer in late December 1979 when Mr. Ciuzio, a friend of his, told him that foreign businessmen would pay him for immigration assistance. Though Rep. Kelly rejected the offer, he did agree to meet with the "businessmen" because Mr. Ciuzio had told him that they were also interested in legitimately investing money in Rep. Kelly's home district. At that meeting, said Judge Bryant, Rep. Kelly made it apparent that he was there to discuss the legitimate investments, not immigration assistance, yet Agent Amoroso persisted in attempting to induce him to accept the bribe. Finally, Rep. Kelly agreed and accepted $25,000 as an initial payment.

Next, Judge Bryant pointed out that the instant case differed sig. nificantly from Russell in that the undercover agents in Russell did not violate any Federal statute and in Russell, which involved a narcotics conviction, the key ingredient in the manufacture of the narcotics, although supplied by Government agents, was obtainable from other sources. Judge Bryant then concluded his opinion:

To reiterate, I do not believe that testing virtue is a function of law enforcement. But this personal belief aside, and assuming that it is, the method of testing must be fair. If after an illegal offer is made, the subject rejects it in any fashion, the government cannot press on. Certainly when a person recognizes the difference between the legal and the illegal, and rejects the latter, the person should be free of further testing by a device which only government agents could have the audacity to use in the face of the penalties provided for their conduct. This standard creates a workable, discernible line separating the merely offensive and the constitutionally impermissible. Crossing this line is patently outrageous. A person corrupted under circumstances which only police officials can create or by a

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