formant whose information was used to obtain a search With respect to the defendants' additional argument-that Mr. Weinberg had been given an exorbitant salary by the Government, and that he was promised a bonus for each conviction-Judge Pratt found that in point of fact Mr. Weinberg's remuneration was neither exorbitant nor contingent in any way upon convictions. In addressing the alleged contingent fee agreement, Judge Pratt said: Here the court finds that Weinberg's payments in Abscam have not been contingent. Even if they were, however, that would be but one more fact to be weighed in determining the reliability of the results obtained. Payments to informants contingent upon successful prosecution of those with whom they deal have been judicially criticized, but such payments do not require dismissal of an indictment. See, e.g., U.S. v. Brown, 602 F.2d 1073 (CA 2 1979); U.S. v. Szycher, 585 F.2d 443 (CA 10 1978). [Id. at 1240] In addressing the amount of Mr. Weinberg's salary, Judge Pratt said: Whether his contribution to law enforcement in these cases and the personal sacrifices [Mr. Weinberg] has endured, during both the investigation and the prosecutions, are worth the amount of money the government has conferred upon him, is perhaps a matter for serious consideration by the justice department and even by congress. It is not, however, a matter upon which this court will pass judgment for purposes of determining whether the fruits of his activities on behalf of the government should be dismissed. How much money is paid to a government informant is peculiarly a decision for the executive department, and not one for judicial review at the behest of a defendant who was caught by the informant's activities. [Id.] Judge Pratt concluded his memorandum by addressing-and rejecting a number of arguments Reps. Thompson and Murphy had made in support of motions they had made for a new trial and for a judgment of acquittal. On August 13, 1981, Rep. Murphy was sentenced to 3 years imprisonment on Count I, and 2 years imprisonment on each of Counts III and V. The sentences, however, were to be served concurrently. In addition, Rep. Murphy was fined $10,000 for his conviction under Count I and $10,000 for his conviction under Count III, for a total fine of $20,000. Execution of the prison sentence was stayed pending Rep. Murphy's appeal. The notice of appeal to the U.S. Court of Appeals for the Second Circuit was filed on August 24, 1981. [No. 81-1346] Rep. Thompson was likewise sentenced on August 13. Judge Pratt ordered him imprisoned "for the maximum period authorized by law." (This would amount to an imprisonment of 22 years.) However, the court ordered that the Director of the Bureau of Prisons furnish to the court a background report on Rep. Thompson together with any recommendations he might have with respect to probation. (See 18 U.S.C. § 4205.) However, execution of the prison sentence was stayed pending the filing of an appeal. Rep. Thompson's notice of appeal to the U.S. Court of Appeals for the Second Circuit was filed on August 24, 1981. [No. 81-1345] Rep. Murphy's appellate brief was filed on January 18, 1982. Rep. Thompson's brief was filed on January 27, 1982. In these briefs, both defendants alleged that erroneous jury instructions had been given. Moreover, each defendant set out at great length the facts and circumstances which in their view showed that the investigation was conducted in so outrageous a manner as to warrant dismissal under the Due Process Clause of the Fifth Amendment. The Government's brief, which responded to both briefs, was filed on February 19, 1982. On March 3, 1982, and March 31, 1982, Reps. Murphy and Thompson, respectively, filed reply briefs, and on April 5, 1982 the case was argued before circuit judges Lombard, Friendly, and Newman. On September 3, 1982, the U.S. Court of Appeals for the Second Circuit issued its decision, affirming the July 24, 1981 decision of the district court and upholding the verdict against Rep. Thompson, but reversing the verdict against Rep. Murphy on Count III (conflict of interest) because of an erroneous jury instruction. [United States v. Myers, 692 F.2d 823 (2d Cir. 1982)] The circuit court's opinion, which was written by Judge Newman, outlined the evidence in the case and described the defendants' defenses at trial. Basically, Reps. Murphy and Thompson had argued that they had never received any money. Turning first to the "broad claims asserted, with slight variations, by some or all seven of the appellants" 12 [692 F.2d at 834], Judge Newman's opinion evaluated the argument that it was both unconstitutional and bad public policy to allow Executive branch. officers to entice into crime Members of Congress who had never been suspected of criminal activity in the past. The court, however, found that there existed "no special constitutional rule that requires prior suspicion of criminal activity before [Members of Congress] may be confronted with a governmentally created opportunity to commit a crime." [Id. at 835] What is available, continued the court, is the defense of entrapment, "which prevents conviction of a person induced to commit a crime unless the prosecution can establish the person's predisposition to commit the crime But the defense of entrapment is not established simply because government agents 'afford opportunities or facilities for the commission of the offense' . . . or engage in 'deceit'." [Id. (citation omitted)] In any event, said the court, Reps. Murphy and Thompson had failed to assert the entrapment defense at trial and therefore the issue could not now be considered by the appellate court. 12 The circuit court's decision was dispositive not only of Reps. Murphy's and Thompson's appeal, but also of the appeals from judgment of conviction entered against Rep. Raymond F. Lederer, Rep. Michael O. Myers, Angelo J. Errichetti, Howard L. Criden, and Louis Johanson. 21-618 0-83-7 Next, Judge Newman addressed the defendants' due process challenges and divided them into two groups. The first group involved "overinvolvement" challenges that consisted of allegations: (1) that the Government "created" the crimes; and (2) that the inducements to commit the crimes were unduly excessive. With respect to the first point, the circuit court found that although the undercover operation was elaborate, "its essential characteristic was the creation of an opportunity for the commission of crime by those willing to do so." [Id. at 837] Essentially, said Judge Newman, the Government merely set up a fictitious enterprise, disseminated the word that bribe money was available, and waited to "see who showed up." [Id.] Regarding the claim of excessive inducements, Judge Newman said that this argument was not that the bribes were excessively large, 13 but that the defendants had been promised that in return for their help the foreign businessmen would finance multi-million dollar projects in his home district. But this argument, wrote Judge Newman, was "an affront to all the law-abiding Members of Congress . . . who consider it a normal part of their public responsibilities to promote business activity for the benefit of their constituents." [Id. at 838] The second group of due process challenges consisted of allegations that the Government failed to exercise effective control over Melvin Weinberg and that the entire investigation failed to conform with Department of Justice guidelines. Regarding Mr. Weinberg, Judge Newman stated, "The use of dishonest and deceitful informants like Weinberg creates risks to which the attention of juries must be forcefully called, but the Due Processes Clause does not forbid their employment, detail their supervision, nor specify their compensation." [Id. at 846] Regarding Justice Department guidelines, the court, citing United States v. Caceres, 440 U.S. 741 (1979), held simply that non-compliance with internal departmental guidelines "is not a ground for complaint." [Id.] The court also considered the defendants' argument that even if due process did not require the dismissal of the indictment, the court should exercise its supervisory power over the administration of criminal justice and dismiss the case. The court rejected this suggestion, finding that such power "does not permit courts to fashion their own 'subconstitutional' limitations on the conduct of law enforcement agents." [Id. at 847] Next, the court addressed Rep. Thompson's claim that he should not have been charged with bribery since it was impossible for him to render immigration assistance to foreign businessmen who in fact did not exist. In rejecting this argument the court stated: The claim is unavailing here for the basic reason that the crime charged did occur. The indictment charged and the evidence established that Thompson received a bribe in return for his corrupt promise to take official action. That suffices to constitute a violation of § 201(c). United States v. Brewster, supra, 408 U.S. at 525-26, 92 S.Ct. at 2544. Whether the promise was carried out is irrelevant, 13 In discussing the issue of excessive inducements, Judge Pratt clearly was referring to the size of the bribes. See 527 F. Supp. 1227-1228. id. at 527, 92 S.Ct. at 2544, and it is no defense that the promise could not have been carried out either because of the official act to be taken was beyond the defendant's authority, or had already been taken. Neither is it a defense that the public official will not be called upon to take official action because of the fictitious nature of the person alleged to be seeking assistance. "Official act" is defined as action on any matter that "may at any time be pending" before a public official, 18 U.S.C. § 201(a). Introducing a private immigration bill qualifies as an "official act," whether or not the beneficiary of such a bill is a real person. It was not necessary for the investigators to continue Abscam to the point of having bills introduced, conduct that would, in any event, have been immunized by the Speech or Debate Clause. [Id. at 850 (citations omitted)] Finally, the court addressed Rep. Thompson's contention that the Speech or Debate Clause was violated when the lower court allowed the Government to introduce into evidence his conversations with Rep. John Murtha on the House floor, in which he suggested that Rep. Murtha join him in accepting a bribe. Judge Newman responded to this argument by stating, "One would think that a Congressman, even when grasping for objections to a criminal conviction, would understand that the Speech or Debate Clause accords immunity to what is said on the House floor in the course of the legislative process, no to whispered solicitations to commit a crime." [Id. at 860 (citation omitted)] On January 14, 1983, both Rep. Murphy and Rep. Thompson filed petitions for writ of certiorari with the U.S. Supreme Court. [Nos. 82-1-00187 CFY and 82-1-01199 CFY, respectively] Status-The case is pending in the U.S. Supreme Court. The complete text of the August 26 opinion of the circuit court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981. The complete text of the July 24, 1981 opinion of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981. The complete text of the September 3, 1982 opinion of the circuit court is printed in the "Decisions" section of this report at page 691. United States v. Lederer No. 81-1347 (2d Cir.) and No. 82-1-01138-CFY (U.S. Supreme On May 28, 1980, U.S. Representative Raymond F. Lederer 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. Lederer 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. 80-00253 (E.D.N.Y.)] 1 Count I of the four count indictment charged the defendants with conspiracy, contrary to 18 U.S.C. §371.2 Specifically, it was alleged that on September 3, 1979, defendant Errichetti informed "Tony DeVito" and Melvin Weinberg that Rep. Lederer, in return for $50,000, 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 and Anthony Amoroso, Jr., a Special Agent of the Federal Bureau of Investigation ("FBI"), and Mr. Weinberg was a private citizen assisting the FBI. It was further alleged that on September 11, 1979, Rep. Lederer and Mr. Errichetti had a meeting with DeVito and Mr. Weinberg at which Rep. Lederer was paid $50,000. In return, said Count I, Rep. Lederer assured Mr. Weinberg and DeVito that he would introduce in Congress private immigration bills designed to ensure the lawful immigration of the foreign businessmen. According to Count I, this $50,000 was then delivered to defendant Criden who placed it in a safety deposit box. As for Mr. Johanson, it was alleged that he withdrew $5,000 from the safety deposit box for delivery to Rep. Lederer. Finally, it was alleged that the $50,000 was to be divided among all the defendants. Count II charged that by soliciting and receiving $50,000 in return for his promise to introduce private immigration bills, as alleged in Count I, Rep. Lederer committed bribery, contrary to 18 U.S.C. §201(c).3 The remaining defendants were charged with aiding and abetting Rep. Lederer in the commission of bribery. Accordingly, they were charged with criminal liability as principals, pursuant to 18 U.S.C. § 2.4 Count III stated that Rep. Lederer, by agreeing to introduce private immigration bills in return for $50,000, violated the illegal gratuity statute, 18 U.S.C. § 201(g).5 Again, the remaining defend 1 Specifically, conspiracy to violate 18 U.S.C. § 201 (bribery and fraud). 218 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 the conspiracy, is a misdemeanor only, the punishment of such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. 318 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 profit under the United States. 418 U.S.C. §2 provides: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, 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. 518 U.S.C. § 201(g) provides: Whoever, being a public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official 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. |