ants were charged with aiding and abetting Rep. Lederer, thereby incurring liability pursuant to 18 U.S.C. § 2. Count IV charged that on September 10 and 11, 1979, the defendants traveled in interstate commerce (from Washington, D.C., New Jersey, and Pennsylvania to New York) with intent to promote unlawful activity, to wit, bribery. Such travel was said to violate 18 U.S.C. § 1952 (Travel Act).6 On June 5, 1980, Rep. Lederer entered a plea 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 the 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. On July 8, 1980, Rep. Lederer filed a motion to dismiss on the grounds of prosecutorial misconduct and prejudicial pre-indictment publicity. According to the defendant, prejudicial information concerning ABSCAM and the defendant had been both leaked and openly disclosed to the media. These prejudicial disclosures have included extensive comments to the press and public 618 U.S.C. § 1952 provides, in pertinent part: (a) Whoever travels in interstate of 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. ring to matters known only to the government and which The defendant explained that the leaks and disclosures were prejudicial not only because they "purport to disclose to the entire nation the supposed facts of the case... thereby 'indicting' persons in the press before any jury has been convened," but also because "they create a general atmosphere in which the grand jurors are expected to 'do their duty' as the governments sees it in light of the 'overall significance' of the case." [Id. at 6] After quoting a variety of ABSCAM-related comments as they appeared in the media, Rep. Lederer asserted that such disclosures and leaks by the Government not only violated his Fifth Amendment right to due process of law but also violated Rule 6(e) of the Federal Rules of Criminal Procedure (dealing with grand jury secrecy), the Privacy Act (5 U.S.C. § 552a[b]). Justice Department regulations (28 C.F.R. § 16.56) and the American Bar Association Code of Professional Responsibility (specifically, Disciplinary Rule 7-107). Rep. Lederer called on the court to take "stern measures . . . to assure the public that such breaches of law by the Government will not be tolerated in our judicial system." [Id. at 28] Rep. Lederer thus concluded that dismissal of the indictment was mandated by the Government's misconduct as well as by the resulting prejudice. Rep. Lederer maintained, however, that under Estes v. United States, 381 U.S. 538 (1965) it was not necessary for him to show actual prejudice where, as here, the Government's conduct was inherently prejudicial. On August 7, 1980, Rep. Lederer's motion to dismiss on the grounds of prejudicial pre-indictment publicity and prosecutorial 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. Lederer, Cr. No. 80-00253 (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. Lederer's 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. Lederer 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 be grounds for 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. Lederer's 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. Lederer had failed to show actual prejudice. As to whether dismissal would "help to translate assurances of 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. On July 7, 1980, Rep. Lederer had also 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. Lederer's due process rights. In support of this charge of Government overreaching, Rep. Lederer 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 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, 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 its undercover operatives to use Abdul Enterprises in order to swindle numerous businessman; 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. Lederer, would be to dismiss the instant indictment. On August 7, 1980, Judge Mishler filed a memorandum and order addressing Rep. Lederer's claims of Government overreaching. The Judge began by pointing out that Rep. Lederer 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. Lederer's 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. Lederer's motion until the conclusion of the Government's case at which point hearings on the matter would be conducted if necessary. On August 7, 1980, the case was transferred from Judge Mishler to Judge George Pratt. 7 Government overinvolvement and overreaching should not be confused with entrapment. The former is based on the notion that the conduct of law enforcement agents may be so outrageous in a given case as to constitute a denial of a defendant's due process rights. In such cases the focus of judicial inquiry is on the conduct of the Government agents. Entrapment, on the other hand, occurs when a law enforcement agent induces the commission of an offense by a person who was not predisposed to commit the offense. When entrapment occurs prosecution is precluded on the theory that Congress could not have intended to impose criminal punishment on individuals who were induced by the Government to perform a criminal act. The focus of inquiry in entrapment cases is on the state of mind (predisposition) of the defendant. The leading cases on overreaching are United States v. Russell, 411 U.S. 423 (1973) and Hampton v. United States, 425 U.S. 484 (1976). On January 6, 1981, Rep. Lederer's trial began. Three days later, he was found guilty on all four counts. On January 12, 1981, the court began hearings on the issue of Government overreaching. These "due process" hearings concluded on February 20, 1981. On April 8, 1981, Rep. Lederer filed a memorandum in support of his motion to dismiss on the grounds of overreaching. In addition, the memorandum argued that Rep. Lederer was entrapped "as a matter of law." The Government filed a memorandum in response on May 1, 1981. On July 24, 1981, Judge Pratt issued a decision denying Rep. Lederer's motion to dismiss. [United States v. Myers, 527 F. Supp. 1206 (E.D.N.Y. 1981)] In his 136 page memorandum, Judge Pratt began his discussion of the case by outlining the claims Rep. Lederer had made in his post-trial motion: Defendant Lederer claims he was deprived of due process and that he was the victim of entrapment as a matter of law because Abscam constitutes outrageous conduct on the part of government agents in that they created rather than discovered crime; allowed Weinberg and Amoroso to act in an uncontrolled fashion; manufactured jurisdiction over defendants; selected a venue that would avoid the Third Circuit's decision in U.S. v. Twigg, 588 F.2d 373 (CA 3 1978); provided improper incentives for Weinberg; appealed to the civic duty of targets to involve them in Abscam; improperly used "middle men"; attempted to mislead the court and jury about the creation of the "asylum scenario"; permitted an FBI agent, the government prosecutor and Weinberg to separately contract to write books about Abscam; failed to safeguard against entrapment; trapped Lederer into giving a false statement to the FBI; withheld evidence of Weinberg's criminal record; leaked untruthful stories to the press in order to interfere with cooperation among codefendants; destroyed evidence; withheld prior statements of Amoroso and Weinberg; violated the principles of Brady v. Maryland, 373 U.S. 83 (1973); and instructed agents to testify falsely and to withhold information at the trial. Lederer further argues that he was entrapped as a matter of law. [527 F. Supp. at 1218-1219] Next, Judge Pratt outlined the Government's response to Rep. Lederer's arguments: 8 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 evi 8 Judge Pratt's July 24th order and memorandum was dispositive not only of Rep. Lederer's due process claims, but also of the claims of Reps. Myers, 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. Lederer, but also of Reps. Myers, 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. Lederer and those indicted with him, but also to all the defendants in the Myers, Murphy, and Thompson ABSCAM cases. |