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the circumstances of his involvement with Abscam constitute entrapment as a matter of law.
Defendant Murphy argues that the government's conduct of the Abscam investigation violated principles of fundamental fairness because the justice department targeted congressmen in violation of principles of separation of powers and the speech or debate clause, failed to take into account the nature of Murphy's duties as a legislator, and failed to consider the right of all citizens to petition Congress and Congressmen Murphy for redress of grievances. Murphy further argues that his prosecution was the product of governmental overreaching in the creation and promotion of crime and that the government's outrageous creative activity was designed to lure Murphy into criminality without any indication of his predisposition or prior agreement to engage in wrongdoing. He further argues that as to him the government deliberately or recklessly created ambiguous and misleading evidence of criminality. Murphy's final argument focuses upon claimed misconduct by the government in the Abscam investigation and prosecution, and argues that the misconduct caused him specific prejudice. He contends that dismissal of the indictment would not harm any legitimate law enforcement purpose, but on the contrary would serve as a deterrent against any
future Abscam-type abuses. [527 F. Supp. at 1218] Next, Judge Pratt outlined the Government's response 10 to the defendants' arguments:
The government argues that the Abscam investigation in its totality was both appropriate and constitutional, that the rights of none of the defendants were violated by the investigation and that there was no exculpatory evidence withheld from the defense. In the government's view, all of the defendants' "due process” contentions basically fall into two categories, neither of which has validity: governmental “over-involvement” in the creation of criminal activity, and the government's failure to take measures to ensure that innocent people would not be wrongfully ensnared and convicted. The government urges that defendants' claims
cannot be considered in the abstract, for the facts
10 Judge Pratt's July 24th order and memorandum was dispositive not only of Rep. Thompson's and Rep. Murphy's due process claims, but also of the claims of Reps. Lederer and Myers who raised similar due process issues during their ABSCAM prosecutions. As a result, the Government's response addressed the claims not only of Reps. Thompson and Murphy, but also of Reps. Lederer and Myers. 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 Reps. Thompson and Murphy and those indicted with them, but also to all the defendants in the Myers and Lederer ABSCAM cases.
lated to appear in compromising positions before
The government further argues that the Abscam investi-
1219] 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 attack Judge Pratt discussed at length the law of entrapment.11 Having reviewed the law of entrapment, Judge Pratt found that the argument that prosecution must be barred whenever a Government agent provided the impetus for a crime, "simply does not represent the law as established by the United States Supreme Court.” [Id. at 50] Thus, since the concept of "objective entrapment” had never been recognized by the Supreme Court, the defendants' entrapment claim was “restricted to principles of subjective entrapment, where the creative activity of the government entraps into criminal conduct a defendant who was not predisposed to commit the crime.” (Id.] However, said the court, the issue of predisposition is generally a question of fact to be determined by a jury. In the instant case, the court continued, neither Rep. Thompson nor Rep. Murphy had requested a jury charge on the question of entrapment. Thus, the issue of subjective entrapment could not now be raised before the court.
The second general challenge raised by Reps. Thompson and Murphy was that even if they had not been entrapped, the indictments should be dismissed because the Government's handling of the investigation was so outrageous that due process principles would absolutely bar the Government from invoking judicial processes to obtain convictions. After noting that the defendants' argument was based on the opinions of Justice Rehnquist in Russell and Hampton, the court disposed of this challenge by stating:
It is important to recognize, however, that in neither Russell nor Hampton was the questioned governmental conduct held to be "outrageous". Nor has any other decision of the Supreme Court found law enforcement officers' conduct to be so "outrageous" as to require dismissal of an indictment. Thus, even though the Supreme Court has yet to be confronted with or to offer a description of circumstances sufficiently outrageous to warrant dismissal, the governing principle remains that in some case, under some circumstances, the conduct of law enforcement officials
11 Judge Pratt's discussion of entrapment is printed on pages 52 through 55 of this report.
may some day bar prosecution. Defendants argue that
It is clear that mere instigation of the crime does not
Clearly, the government agents created the opportunity for criminal conduct by offering the bribes. But their involvement falls far short of being "outrageous” for two reasons. In the first place, each of the legislators could simply have said “no” to the offer. U.S. v. Myers, 635 F.2d at 939. Three other legislators faced with identical offers, Senator Pressler, Congressman Patten and Congressman Murtha did precisely that as shown by the videotapes in evidence as DP Exs. 22, 21, and Thompson trial Ex. 29. Second, the extent of governmental involvement here is far less than that in Hampton, where the government not only supplied heroin for the defendant to sell, but also produced an undercover agent to buy it from him. Even under those circumstances, where the government was active on both sides of a narcotics sale, the Supreme Court did not consider the agents' conduct to be "outrageous"; a fortiori here, where the agents acted only on one side, by offering money to congressmen in return for favors, the involvement of the undercover agents was not “outrageous”.
[Id. at 1225 (footnotes omitted)] The defendants' third general challenge was that "to permit targets to be selected by middlemen violated due process because it did not provide sufficient protection to the innocent." [Id. at 1226) This argument, said the court, was both legally and factually unsupportable. It was legally infirm, said the court, because "the Constitution does not require reasonable suspicion before a congressman may be made the subject of an undercover sting. U.S. v. Myers, 635 F.2d at 940-941. See also U.S. v. Ordner, 544 F.2d 24 (CA2 1977).” [Id.] The argument was factually infirm because "the agents did not set out to offer bribes to any particular congressman. They set no standards, established no criteria." (Id.]
The defendants' fourth general argument was that "the inducements offered to the congressmen were overwhelming, designed to overpower their otherwise adequate resistance and to induce honest and innocent people to commit a crime they would normally avoid.” (Id. at 1227 (footnote omitted)] Judge Pratt rejected this argument, stating that the size of the inducement was irrelevant:
While there may be “inducements” that are "overwhelming, such as a threat against the life of a loved one, when the inducement is nothing but money or other personal gain, this court does not believe that the size of the inducement should be a determinative factor in whether a
public official can be prosecuted for accepting it. No
tional. [Id. at 1227-1228] The defendants' fifth argument was that there was no need for the Government to establish a wholly fictitious operation to ferret out public corruption. The court readily dismissed this argument, stating:
This court believes that the great majority of government officials, including those in Congress, are honest, hard-working, dedicated and sincere. However, the government needs to have available the weapons of undercover operations, infiltration of bribery schemes, and “sting” operations such as Abscam in order to expose those officials who are corrupt, to deter others who might be tempted to be corrupt, and perhaps most importantly, to praise by negative example those who are honest and square-dealing. Without the availability of such tactics, only rarely would the government be able to expose and prosecute bribery and other forms of political corruption. (Id. at
1229] Turning to the last of the general challenges that the convictions were not a reliable measure of their culpability-the court stated that because the essence of the Government's case consisted of videotapes, “A more reliable basis for conviction can hardly be imagined.” [Id.]
Next, the court considered a number of specific challenges to the operation of ABSCAM. The defendants' first argument was that ABSCAM was conducted without adequate safeguards, particularly with respect to the supervision of Mr. Weinberg. The problem with the argument, however, said the court, was that neither Rep. Thompson nor Rep. Murphy had shown "any direct or specific harm resulting from the alleged lack of supervision." [Id. at 1230] Moreover, the supervision of Mr. Weinberg, according to the court, was in fact “more than adequate to the circumstances of this investigation.” [Id.] In this regard the court stated:
In an investigation that spanned many months and meetings all along the coast, Weinberg was in virtually daily contact with Amoroso, and his recordings were delivered to the FBI for transcribing on a periodic basis. Most importantly, the key events on which the government relied in presenting its cases, the appearances before the videotape cameras, took place in the presence of the FBI agents, and occasionally under the direct supervision of an attorney from the Eastern District Strike Force. Beyond that, supervising agent Good and strike force chief Puccio
continually monitored the progress of the investigation,
1231] Next, Judge Pratt addressed Rep. Thompson's and Rep. Murphy's contention that they were prejudiced at trial by the fact that many of the audiotapes made by Mr. Weinberg either contained gaps or were missing. The court disposed of these arguments by finding that no evidence had been introduced to support the assertion that the unrecorded or missing conversations were important.
The defendants' third specific argument was that dismissal of the indictment was required because during the investigation Government officials violated numerous laws, regulations, and guidelines. Like its predecessors, this argument was rejected by the court. “It is clear", said Judge Pratt, that for a court to dismiss an indictment there must be not only a constitutional violation, but also some resulting adverse effect or prejudice to the defendant." [Id. at 1232 (citation omitted)] In the instant case, concluded Judge Pratt, the defendants had shown neither a constitutional violation nor any resulting prejudice.
Another argument raised by Reps. Thompson and Murphy was that the Government's use of middlemen such as Messrs. Criden, Errichetti, and Silvestri was an irresponsible attempt to insulate the Government from its responsibility to conduct a fair investigation. In effect, said the defendants, the Government had used these middlemen as its agents and was now responsible for the machinations of those middlemen. In discussing their assertion, Judge Pratt termed it “ludicrous.” In the court's view, the Government's use of middlemen "was no more improper than an undercover agent's infiltration of a drug ring in order to gain the confidence of its members and obtain evidence necessary for conviction. U.S. v. Russell, 411 U.S. at 432.” [Id. at 1236]
The last major due process challenge concerned the conduct of Mr. Weinberg. It was the defendants' belief that “the government knew that Weinberg was untrustworthy and that defendants' due process rights were violated when the government permitted such a person to play a major role in Abscam." [Id. at 1239] Judge Pratt addressed this contention by conceding that Mr. Weinberg had an “unsavory background.” (Id.) But it was precisely because of this background, said Judge Pratt, that Mr. Weinberg was so valuable:
[Mr. Weinberg's] ability to lie convincingly, his under-
Moreover, the government was not required to find