process which only the authorities are licensed to use, has
been made into a criminal by his own government. (Id. at

377] On June 10, 1982, the Government filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit. (No. 821660]

On August 31, 1982, Rep. Kelly filed a motion to dismiss the Government's appeal, arguing that the appeal violated the double jeopardy provision of the Fifth Amendment. According to Rep. Kelly, the instant case involved a fact-based judgment of acquittal. Citing United States v. Martin Linen Supply Co., 430 U.S. 564 (1977), Rep. Kelly argued that if a judgment of acquittal is fact-based, as opposed to legally-based, the Government cannot pursue an appeal. Rep. Kelly then argued that Judge Bryant's decision was based on facts:

If the trial court had relied solely on the issue of due process violations, the court would have merely granted the motion to dismiss and would have denied the post-verdict motion for judgment of acquittal. Judge Bryant, by granting the judgment of acquittal, clearly found under the facts that there was inducement and that predisposition had not been proven. In other words, Judge Bryant found that the facts established that the Appellee was en

trapped. [Motion to Dismiss Appeal, August 31, 1982, at 9] On September 3, 1982, the Government filed a memorandum in opposition to Rep. Kelly's motion to dismiss the appeal. In this memorandum, the Government argued that the Double Jeopardy Clause was designed to protect individuals from being tried twice for the same offense. In the instant case, continued the Government, the possibility of retrial did not exist, since a successful appeal by the Government would merely reinstate the jury's original finding of guilt. Thus, said the Government, the Double Jeopardy Clause did not protect Rep. Kelly against the Government's appeal. On November 15, 1982, the Government filed its appellate brief.

ically, the Government's brief made three points: (1) the undercover agents had ample reason to offer a bribe to Rep. Kelly; (2) the factual premise of the district court's ruling was properly rejected by the jury; and (3) the district court's legal theory—that law enforcement officers who persist in offering a bribe in the face of an initial rejection violate real-world restraints and thus violate due process-was untenable. Regarding the first point, the Government argued at the outset that its agents did not need probable cause or reasonable suspicion of past misconduct before offering Rep. Kelly the bribe. Even if probable cause or reasonable suspicion were needed, said the Government, there could be no doubt that those standards were met by virtue of the fact that: (1) certain associates of Rep. Kelly indicated he would accept the bribe; and (2) well before the F.B.I. agents ever met with Congressman Kelly, “they had witnessed the spectacle of at least five members of Congress within a four-month period readily accepting the invitation of Abscam to sell their public office.” (Brief for Appellant, November 15, 1982, at 53] With respect to its second point, the Government stated that in dismissing the indictment the district had in effect rejected the jury's finding that Rep. Kelly was predisposed to accept the bribe. The evidence, said the Government, showed only that Rep. Kelly was unwilling to accept the bribe personally; there was ample evidence that Rep. Kelly wanted to accept the payments through intermediaries. Thus, said the Government, the jury was entirely justified in concluding that Rep. Kelly was predisposed to commit the crimes, and Judge Bryant, by finding that Rep. Kelly had “rejected” the initial bribe offer, had exceeded his authority by disregarding a completely reasonable finding of fact by the jury. As to the third point, the Government argued that “even if the District Court had not usurped the function of the jury in concluding that Kelly spurned the bribe offer and yielded only to repeated inducement, its legal basis for ruling that the agents' conduct reached a demonstrable level of outrageousness' is untenable." [Id. at 65 (citation omitted)] In this regard, the Government contended that the notion that an initial rejection of a bribe by a public official would deter a real bribe-giver “rests on unsubstantiated conjecture about how bribe-givers behave in real-life situations." [Id. at 66] The Government elaborated:

21-618 0-83-6

To a person intent on corrupting an official, but wary of being reported for attempted bribery, it is not at all clear that an initial refusal would be significant. If he is sufficiently uncertain that the official will take a bribe, he is unlikely to risk even a first rejection for fear of being reported. On the other hand, if he has adequate assurances from intermediaries that the target is favorably disposed, he is not likely to be deterred by an initial disclaimer of interest, believing instead that the official is merely being cautious. The District Court heard no testimony and cited no evidence about the manner in which “real” bribes are transacted; the probability, we submit, is that they rarely involve a simple offer and acceptance, unpreceded by demurrals, courting, and efforts to substitute a less "incrimi

nating" transaction. (Id. at 67] Moreover, said the Government, adoption of this "one refusal” rule would permit a corrupt politician to structure his initial response to a bribe offer in a way that would effectively preclude his prosecution. "An official willing to accept a payoff," said the Government, "would pretend lack of interest initially, calculating that a real influence-seeker would not be deterred, but knowing that an undercover agent would be by virtue of a ‘one refusal bars prosecution' rule.” (Id. at 68]

On December 13, 1982, Rep. Kelly filed his brief. He responded to the Government's first point (that the Government had reasonable suspicion or probable cause to believe that Rep. Kelly would accept the bribe) by outlining the evidence and case law and concluding that predisposition to commit the crime had to exist before the introduction of the inducement and that the Government failed to prove such predisposition. Thus, said Rep. Kelly the District Court found-and correctly so—that he had been entrapped as a matter of law. With respect to the Government's second point (that the trial court improperly overturned the jury's finding that Rep. Kelly was predisposed) Rep. Kelly responded that the due process defense involved questions to be decided by the court, not the jury. And finally, regarding the propriety of the “one refusal” rule, Rep. Kelly argued that Judge Bryant had based his decision on a variety of factors; he had not proposed a "one refusal" rule. In reality, said Rep. Kelly, Judge Bryant's opinion was based upon Rep. Kelly's multiple refusals to accept the bribe as well as his findings that: (1) the Government had no reason to suspect Rep. Kelly of previous illegal activity; and (2) the middlemen in the case (i.e., Rep. Kelly's associates) were known to the Government as con artists whose statements to the undercover agents regarding Rep. Kelly's intentions were unworthy of belief. With respect to the public policy implications of Judge Bryant's opinion, Rep. Kelly reiterated that the lower court decision was limited to the facts of this case and that “the due process defense cannot be embodied in fixed rules, and the courts must proceed on a case by case basis.” (Id. at 57 (citations omitted)]

On January 11, 1983, the case was argued before circuit judges Robinson, MacKinnon, and Ginsburg.

Status—The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit.

The complete text of the May 13, 1982 opinion of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1982. United States v. Murphy

and United States v. Thompson

Nos. 81-1346 and 81-1345 (2d Cir.) and Nos. 82-1-01187-CFY

and 82–1-01199-CFY (U.S. Supreme Court) On June 18, 1980, a Federal grand jury in the Eastern District of New York returned a five count indictment against U.S. Representatives Frank Thompson, Jr. of New Jersey and John M. Murphy of New York. Also indicted were Howard L. Criden (a Philadelphia attorney) and Joseph Silvestri. [Criminal Case No. 80– 00291 (E.D.N.Y.)]

Count I charged the defendants with conspiracy, contrary to 18 U.S.C. § 371.2 Specifically it was alleged that sometime between July 26, 1979 and February 2, 1980 defendant Silvestri agreed to introduce defendant Criden to Members of Congress who would be willing, in return for payments, to assist certain foreign businessmen to enter and remain in the United States. These businessmen were purportedly represented by "Tony DeVito" who was, in reality, Anthony Amoroso, Jr., a Special Agent of the Federal Bureau of Investigation ("FBI'). Also supposedly serving as agent for these foreign businessmen was Melvin Weinberg. In reality, however, Mr. Weinberg was a private citizen assisting the FBI.

Specifically, conspiracy to violate 18 U.S.C. § 201 (bribery and fraud) and 18 U.S.C. § 203 (conflict of interest).

2 18 U.S.C. $ 371 provides: If two or more persons conspire either 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 conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

Allegedly, Mr. Silvestri introduced Mr. Criden to Rep. Thompson. A meeting then allegedly took place at which Rep. Thompson received $50,000 (to be shared with Mr. Criden and Mr. Silvestri) from Mr. Weinberg and DeVito. In return, said the indictment, Rep. Thompson gave assurances that he would introduce and support private immigration bills to enable the foreign businessmen to immigrate to the United States. To ensure such immigration, Rep. Thompson also allegedly agreed to exert his influence with those agencies of the United States responsible for enforcing U.S. immigration laws.

Count I further charged that Rep. Thompson introduced Mr. Criden to Rep. Murphy who also agreed to receive, and did receive, $50,000 (to be shared with Rep. Thompson and Mr. Criden) from DeVito and Mr. Weinberg in return for his assurances that he, like Rep. Thompson, would exert his influence as a U.S. Representative to enable the foreign businessmen to immigrate to the United States. In addition, charged Count I, Rep. Murphy agreed to utilize his position as Chairman of the House Committee on Merchant Marine and Fisheries to advance the interests of certain shipping companies. In return, said the indictment, Rep. Murphy would receive from the foreign businessmen a financial interest in the companies.

Count II charged that Reps. Thompson and Murphy by soliciting and receiving money in return for their promises to assist the foreign businessmen with their immigration problems, as described in Count I, committed bribery, contrary to 18 U.S.C. $ 201(c).3

Count III repeated the allegations of Count II, and charged that such actions and promises by Reps. Thompson and Murphy placed them in a position of conflicting interests contrary to 18 U.S.C. § 203 (a).4

Count IV charged that on October 20, 1979, Mr. Criden, aided and abetted by Reps. Thompson and Murphy, traveled interstate (from Pennsylvania to John F. Kennedy International Airport in New York) with intent to promote an unlawful activity, to wit,

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 any fraud on the United States; or

(3) being induced to do or omit to do 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 point under the United

States. * 18 U.S.C. $ 203(a) provides, in pertinent part: Whoever, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receives or agrees to receive, or asks, demands, solicits, or seeks, any compensation for any services rendered or to be rendered either by himself or another-

(1) at a time when he is a Member of Congress, Member of Congress Elect, Delegate from the District of Columbia. Delegate Elect from the District of Columbia. Resident Commissioner, or Resident Commissioner Elect shall be fined not more than $10,000 or imprisoned for not more than two years, or both; and shall be incapable of holding any office of honor, trust, or profit under the United States.

bribery. Such interstate travel was said to violate 18 U.S.C. $ 1952 (Travel Act).5 Further, Count IV charged that Reps. Thompson and Murphy, by aiding and abetting Mr. Criden, were punishable as principals pursuant to 18 U.S.C. & 2.6

Count V charged that Rep. Murphy, by soliciting and receiving payment in exchange for his promise to provide immigration assistance, violated the illegal gratuity statute, 18 U.S.C. § 201(g). Count V also charged Rep. Thompson and Mr. Criden with aiding and abetting Rep. Murphy in the commission of this crime. Accordingly, Rep. Thompson and Mr. Criden were said to be punishable as principals under 18 U.S.C. § 2.

On June 23, 1980, both Rep. Thompson and Rep. Murphy entered pleas 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 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 14, 1980, the Committee's application was granted.

At some point prior to July 11, 1981 the Government filed a motion for a protective order to prevent Rep. Murphy from showing the Government's videotapes of him to the public. In his July 11, 1980 response to the motion, Rep. Murphy asserted that the Government had been selectively disclosing information concerning

518 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, management, 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. 6 18 U.S.C. $ provides: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commisson, 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.

718 U.S.C. § 2011g) provides: Whoever, being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharges of social duty, directly or indirectly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

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