# United States v. Myers

> District Court, E.D. New York · July 24, 1981 · 527 F. Supp. 1206

URL: https://www.frixlaw.com/law-library/cases/2368969

## Case

- **Full name:** UNITED STATES of America v. Michael O. MYERS, Angelo J. Errichetti, Louis C. Johanson and Howard L. Criden, Defendants; UNITED STATES of America v. Raymond F. LEDERER, Angelo J. Errichetti, Louis C. Johanson and Howard L. Criden, Defendants; UNITED STATES of America v. Frank THOMPSON, Jr., John M. Murphy, Howard L. Criden and Joseph Silvestri, Defendants
- **Court:** District Court, E.D. New York
- **Decided:** July 24, 1981
- **Citations:** 527 F. Supp. 1206; 1981 U.S. Dist. LEXIS 9957
- **Precedential status:** Published
- **Opinion:** Opinion by Pratt
- **Judges:** George C. Pratt
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2368969

## How later opinions describe it (automated extraction)

- explaining that allegations that “not every conversation ... was preserved in a recording” did not demonstrate “a constitutional defect” but could be used as “an argument to the jury as to the credibility of the government’s case”
- applying “outrageous” standard to review alleged government due process violations

## Opinion text

TABLE OF CONTENTS
Page
I. ABSCAM 1209
II. THE SUBJECT CASES 1212
A. U._ S. v. Myers, Errichetti, Johanson and 1212
B. U. S. v. Lederer. 1213
C. U. S. v. Thompson and Murphy. 1213
III. PRETRIAL AND POST-TRIAL PROCEEDINGS 1214
IV. DEFENDANTS’ CLAIMS 1217
A. Claims of the Myers Defendants. 1217
B. Thompson’s Claims. 1218
C. Murphy’s Claims. 1218
D. Lederer’s Claims. 1218
E. Claims of the Government. 1219
V. GENERAL DISCUSSION OF BASIC LEGAL CONCEPTS 1219
A. Entrapment. 1219
B. Outrageousness. 1222
VI. SPECIFIC DISCUSSION OF DEFENDANTS’ CLAIMS 1224
A. General Nature of Abscam. 1224
1. Objective Entrapment and Entrapment as a Matter of Law. 1224
2. Outrageous Government Conduct. 1225
3. Selection of Targets. 1226
4. Size of Inducements. 1227
5. Need for Investigative Tactic. 1228
6. Lack of Reliability. 1229
B. Specific Operation of Abscam. 1230
1. Inadequate Safeguards. 1230
2. Missing Tapes. 1231
3. Verbal Insulation. 1231
4. Violations of Laws, Regulations, and Guidelines. 1232
5. “Red Flags”. 1233
6. Use of Middlemen. 1235
7. Book-writing. 1237
8. The “Asylum” Scenario. 1239
C. Weinberg and his Conduct. 1239
1. Weinberg's Criminal Background. 1239
2. Weinberg’s Finances. 1240
D. Miscellaneous Claims. 1241
1. FBI Interview of Lederer. 1241
2. Instructing Agents about Testimony. 1241
3. Entrapment of Lederer. 1241
4. Publicity Leaks. 1242
VII. JUDGE FULLAM’S DECISION IN U. S. v. JANNOTTI AND SCHWARTZ 1243
VIII. DEL TUFO, PLAZA AND WEIR 1245
IX. MOTIONS FOR JUDGMENTS OF ACQUITTAL AND NEW TRIALS 1247
A. The Myers Motions. 1247
B. Murphy’s Motions. 1248
C. Thompson’s Motion. 1250
X. CONCLUSION 1250
GEORGE C. PRATT, District Judge:
I. ABSCAM
“Abscam” is the code word given by the Federal Bureau of Investigation to an undercover “sting” operation conducted out of the FBI office at Hauppauge, Long Island, New York, under the supervision of agent John Good. Abscam began after Melvin Weinberg in 1977 was convicted in the Western District of Pennsylvania on his plea of guilty to fraud. In return for a sentence of probation Weinberg agreed to cooperate with the FBI in setting up an undercover operation similar to the London Investors, Ltd. “business” that Weinberg had used with remarkable success before his arrest and conviction in Pittsburgh.
For most of his life Weinberg had been a “con man” operating in the gray area between legitimate enterprise and crude criminality. For a number of years in the 1960s and early 1970s, he had been listed as an informant by the FBI and had provided his contact agent from time to time with intelligence about various known and suspected criminals and criminal activities in the New York metropolitan area and elsewhere, for which he had received in return occasional small payments of money. When he was arrested on the charge that led to his guilty plea, his informant status' was cancelled, later to be reinstated after his guilty plea and agreement to cooperate with the FBI.
As agent-in-charge of the FBI’s Long Island office Good was, at all times, the supervising agent for Abscam. Initially, Weinberg worked directly under special agent John McCarthy who later was replaced by special agent Anthony Amoroso. Both McCarthy and Amoroso worked undercover with Weinberg.
The general pattern of the “scam” or “sting” operation reflected Weinberg’s earlier theme of representing wealthy Arab interests who had large sums of cash available for business opportunities in this country. When operating outside the law in
*1210
Huntington, Long Island as London Investors, Weinberg’s method had been a “front-end scam” for real estate investment wherein he would promise to obtain large loans for his victims and pick-up “appraisal” or “processing” fees of several thousand dollars, but without ever producing the final loans.
Although not identical to London Investors, the initial plan developed by Weinberg and the FBI was similar. Weinberg was to present himself as a business agent for “Abdul Enterprises”, an organization backed by two extremely wealthy Arab sheiks looking for American outlets for their cash. He would pass the word of big money available for deals to other con men and people who move between the legitimate and illegitimate. If criminal proposals appeared, appropriate action would be taken by the FBI.
Weinberg and the agents set up business in an office in Holbrook, Long Island. The FBI’s code name “Abscam” came from the first two letters of “Abdul”, combined with the word “scam”.
At first Abscam’s focus was upon stolen and forged securities and stolen art work. Other “investment” opportunities soon presented themselves, and quickly the investigation turned itself toward Atlantic City and the gambling casinos which were then being proposed and constructed. As word spread about Weinberg’s contact with virtually inexhaustible Arab funds, Angelo Errichetti, who was both mayor of Camden, New Jersey, and a New Jersey state senator, came on the scene. Errichetti claimed to have extraordinary influence in obtaining gambling casino licenses, power over the commissioners who issued the licenses, connections with organized crime, ability to deal in narcotics, guns and counterfeit securities, as well as intimate knowledge of which members of the New Jersey legislature could be bought.
Errichetti brought to the undercover agents Howard Criden, a Philadelphia lawyer seeking to promote a gambling casino in Atlantic City. In July of 1979, Errichetti and Criden met with Weinberg and Amoroso on the sheiks’ yacht in Florida to discuss financing for the proposed casino that a client of Criden’s wanted to build. In the course of the day Amoroso and Errichetti discussed the problem that might be faced by the sheiks should a revolution occur in their country and should they want to come to the United States as permanent residents. Amoroso told Errichetti that he thought cooperation of public officials would be needed and that money would be no problem.
Immediately after this conversation Errichetti and Criden formed an alliance in which they undertook to produce for Amoroso and Weinberg public officials who, in return for money, were willing to use their influence with the government on the sheiks’ behalf. Meetings were arranged at various locations in New York, Philadelphia and Washington where the FBI monitored the proceedings with concealed videotape cameras and microphones. Where video-tap» was not feasible, audio recordings were used.
Cash payoffs were made by the undercover agents to six members of the House of Representatives, one immigration official, Mayor Errichetti, two members of the Philadelphia city council and, allegedly, to a member of the New Jersey Casino Control Commission. In addition to the transactions involving cash payments to public officials, Abscam was stringing along in separate discussions a number of persons, including Senator Harrison A. Williams, Jr. and Congressman John M. Murphy, in connection with promised investments on projects in which each was to hold an interest.
Toward the end of 1979 the credibility of Abdul Enterprises was beginning to wear thin, because the only cash produced were the $50,000 payments to congressmen, relatively small amounts when compared to the large business investments and bank deposits which had been promised by Weinberg and Amoroso. Security for the investigation was increasingly jeopardized as more and more people became aware of Abdul Enterprises and its activities, and the end of
*1211
the investigation was clearly in sight by December, 1979. Because much of the revealed political corruption focused on the Philadelphia area, at the request of the U. S. Attorney for the Eastern District of Pennsylvania the investigation was extended for a brief period in order to provide an opportunity for uncovering there additional corruption at the local level.
Saturday, February 2, 1980, was scheduled as the wrap-up day of the investigation, the day on which Abscam was to “go public”. A few days before that, some reporters got wind of the investigation and sought information about it, particularly from the U. S. Attorney in Philadelphia and from Thomas Puccio and his staff at the Eastern District Strike Force in Brooklyn. The government representatives managed to keep the publicity lid on until Saturday, February 2, 1980, when teams of FBI agents interviewed, almost simultaneously, many of those whose activities with Weinberg and Amoroso had marked them as either targets or key witnesses in the Ab-scam investigation.
Abscam’s surfacing brought extensive publicity, enhanced, perhaps, by almost simultaneous surfacing of other FBI “sting” operations, “Brilab” and “Pendorf” in the south and west parts of the country, respectively.
As a result of the Abscam investigation, grand juries returned the following indictments:
1.
U. S. v. Alexander Andrew Alexandria, Jr. and Alfred Carpentier,
docket no. CR 80-00102, Eastern District of New York, tried before Hon. Mark A. Costantino in October, 1980.
2.
U. S. v. Michael O. Myers, Angelo J. Errichetti, Louis C. Johanson and Howard L. Criden,
docket no. CR 80-00249, Eastern District of New York, tried before the undersigned in August, 1980.
3.
U. S. v. Raymond F. Lederer, Angelo J. Errichetti, Louis C. Johanson and Howard L. Criden,
docket no. CR 80-00253, Eastern District of New York, tried before the undersigned in January, 1981.
1
4.
U. S. v. Frank Thompson, Jr., John M. Murphy, Howard L. Criden and Joseph Silvestri,
docket no. CR 80-00291, Eastern District of New York, tried before the undersigned in November, 1980.
2
5.
U. S. v. Harry P. Jannotti, George X. Schwartz, Howard L. Criden and Louis C. Johanson,
docket no. CR 80-00166, Eastern District of Pennsylvania, tried before Hon. John P. Fullam in September, 1980.
3
6.
U. S. v. John W. Jenrette and John R. Stowe,
docket no. CR 80-00289, District of Columbia, tried before Hon. John G. Penn in September, 1980.
7.
U. S. v. Richard Kelly, Eugene Robert Ciuzio and Stanley Weisz,
docket no. CR 80-00340, District of Columbia, tried before Hon. William B. Bryant in December, 1980.
8.
U. S. v. Harrison A. Williams, Jr., Alexander Feinberg, George Katz and Angelo J. Errichetti,
docket no. CR 80-00575, Eastern District of New York, tried before the undersigned in April, 1981.
4
*1212
9.
U. S. v. Kenneth N. MacDonald and Angelo Errichetti,
docket no. CR 81-00366. Indictment returned June 18, 1981, Eastern District of New York, to be tried before the undersigned in November, 1981.
10.
U. S. v. Charles T. Walsh, Martin Gabey, Vincent J. Cuti, Jr., Nicholas Barbato, Angelo J. Errichetti, and Bowe, Walsh & Associates,
docket no. CR 81-00218. Indictment returned April 9, 1981; superseding indictment returned May 21, 1981, Eastern District of New York, to be tried before the undersigned in September, 1981.
5
The court is informed that the Abscam grand jury is still sitting in the Eastern District of New York, and that still more indictments are anticipated.
In all cases tried to date, the principal evidence against most of the defendants consisted of the videotapes of their own words and actions. That evidence was supplemented by audiotapes of meetings and telephone conversations, testimony by co-conspirators and unrelated third party witnesses, and documents. There was also testimony by FBI agents of interviews with various defendants. In addition, Amoroso and Weinberg testified, but primarily to set the scene and provide a framework for introduction in evidence of the video and audio tapes. Some defendants were severed for trial; all who were tried, were found guilty by the jury on one or more counts.
II. THE SUBJECT CASES
Before considering and deciding the parties’ claims on the instant motions, the court will review in more detail the circumstances of each of the three cases in which post-trial motions are now pending.
A.
U. S. v. Myers, Errichetti, Johanson and Criden.
The
Myers
trial involved four defendants. Defendant Michael O. Myers was a member of the United States House of Representatives from Philadelphia. He was brought to the undercover operatives through defendant Angelo J. Errichetti and defendant Howard L. Criden, who made contact with Myers through Criden’s law partner, defendant Louis C. Johanson.
Myers was the first congressman to take money in front of the Abscam TY cameras. He did so in a hotel room at Kennedy Airport on August 22, 1979 in the presence of Errichetti, Amoroso and Weinberg; Johanson and Criden had both travelled to Kennedy Airport for the occasion, but were not present when the money was given by Amoroso to Myers. All four , defendants shared in the $50,000, with Errichetti receiving $15,000, Myers $15,000 and Johanson and Criden $20,000, part of which they shared with their law partner, Ellis Cook, who testified at the trial as an immunized witness.
The specific charges against the defendants were bribery ( 18 U.S.C. § 201 (c)), criminal gratuity ( 18 U.S.C. § 201 (g)), interstate travel for unlawful activity ( 18 U.S.C. § 1952 ), and conspiracy ( 18 U.S.C. § 371 ). Myers was charged with direct violations of the first three offenses; the other defendants were charged with aiding and abetting Myers’ commission of the offenses. 18 U.S.C. § 2 .
Myers testified on his own behalf and attempted to convince the jury that when he appeared on the videotape and received the money in return for his promise to introduce a private bill to enable the sheik to enter and remain in this country, he was only “play acting”. He argued that he had no criminal intent under the federal statutes because he never intended ultimately -to do the acts for which he was receiving the money. In other words, Myers’ defense was essentially that although he was swindling the sheik, in no way was he compro
*1213
mising his congressional office. Resolution of that central fact question rested peculiarly within the jury’s province. They had the opportunity to view Myers on the witness stand and to evaluate his conduct and statements before the TV cameras. In fact, the jury asked to review the key videotapes during their deliberations. Ultimately they resolved this credibility issue against Myers.
Under the court’s instructions, the jury’s verdicts of guilty against all defendants necessarily established the elements of the crimes charged.
On the bribery count, 18 U.S.C. § 201 (c), the jury found that Myers received money from Amoroso in return for being influenced in his performance of an official act, and that he acted knowingly, wilfully and corruptly. The central issue presented to the jury was Myers’ intent when he took the money. The jury’s verdict determined that he took it with a specific intent to be influenced in connection with official matters relating to immigration, and that the other defendants aided and abetted him in his bribery.
Under the court’s instructions the jury returned no verdict on the criminal gratuity count, 18 U.S.C. § 201 (g), a lesser included offense of the bribery count (§ 201(c)), because they had found all defendants guilty of bribery.
On the interstate travel count, 18 U.S.C. § 1952 , the jury found that on August 22, 1979 Myers travelled in interstate commerce from Philadelphia to JFK airport in New York with intent to carry on the unlawful activity of receiving a bribe, that he thereafter performed an act either to carry on or promote the unlawful activity or to distribute its proceeds, and that he acted knowingly and wilfully. Again Errichetti, Criden and Johansen were found guilty as aiders and abetters.
On the conspiracy count, 18 U.S.C. § 371 , the jury found that all four defendants conspired to defraud the United States of the faithful and honest service of Congressman Myers and to have him receive money as a bribe in connection with the immigration, residency and citizenship problems of the fictitious middle eastern businessmen.
Once the jury resolved the central credibility issue as to whether Myers was “play acting” before the cameras with no intent to have it affect his official conduct, the evidence against the defendants was overwhelming, and there is no basis to set aside any of the verdicts for insufficiency of evidence.
B.
U. S. v. Lederer.
Trial of the
Lederer
events seemed like a rerun of the
Myers
story. Only the congressman was different. Raymond F. Lederer was also a member of the House of Representatives from Philadelphia. He was also brought to the undercover agents through the activities of Criden, Johanson and Errichetti. He, too, was given $50,000 in front of the TV cameras at a Kennedy Airport hotel in return for his promise to use his office and influence to assist the sheik in his immigration efforts. Lederer received only $5,000 of the total sum, however; the remainder was divided among Criden, Johanson and Errichetti.
The charges against the
Lederer
defendants were bribery (§ 201(c)), criminal gratuity (§ 201(g)), interstate travel for unlawful activity (§ 1952), and conspiracy (§ 371).
Lederer was tried alone.
See
note 1,
supra.
He presented a defense of entrapment which the jury resolved against him. The court ipstructed the jury that there was ample evidence of inducement and that the key entrapment issue for them to focus upon was whether or not Congressman Lederer was predisposed to commit the crimes charged. The jury’s verdicts resolved that issue against Lederer on each count. Those verdicts also establish all the necessary elements of each of the charges beyond a reasonable doubt. Once again, the videotape evidence showing Lederer accepting the money in return for his assurances of action on the sheik’s behalf in immigration matters was overwhelming.
C.
U. S. v. Thompson & Murphy.
Frank Thompson, Jr. and John M. Murphy, United States congressmen from Tren
*1214
ton, New Jersey and Staten Island, New York, respectively, were the third and fourth members of the House of Representatives to be indicted in the Eastern District of New York. The facts and charges against them were more complex and subtle than those against Myers and Lederer. Their codefendants, Criden and Joseph Silvestri, were severed.
See
note 2,
supra.
Although Thompson had received a $50,-000 payment from the undercover agents in Washington in connection with his own promise to provide immigration assistance to the sheik, the charges against him under this indictment grew out of a payment made to Congressman Murphy in a hotel near Kennedy Airport. The government’s evidence showed that Thompson had approached two other congressmen, John P. Murtha and defendant Murphy, encouraging them to meet with the sheik’s representatives in return for “walking around money” that would be shared with Thompson. The
Thompson-Murphy
trial was complicated by an involved transaction wherein Murphy and a business partner sought from the sheik financing for the acquisition of a shipping company in Puerto Rico.
Murtha refused to accept the money, and no indictment was returned against him. The jury found that Murphy did accept the money offered to him, and while the jury found Murphy not guilty of bribery, apparently because they were not satisfied that he had fully committed himself to use his influence on the sheik’s behalf, they did find Murphy guilty of receiving a criminal gratuity (§ 201(g)), conflict of interest (§ 203(a)), and conspiracy (§ 371). Pursuant to the court’s instructions, the jury did not return a verdict on the interstate travel count (§ 1952) since they found Murphy not guilty on the bribery count.
6
Thompson was found guilty of bribery (§ 201(c)), criminal gratuity (§ 201(g)), and conspiracy (§ 371). The jury found him not guilty on the conflict of interest charge (§ 203(a)); Thompson was not charged with a travel act violation.
The key transaction in the
Thompson-Murphy
case was the transfer of $50,000 to Murphy in a briefcase on October 20, 1979. Under the court’s instructions the jury’s verdicts establish that each defendant knowingly received part of the money that was in that briefcase. The jury was instructed, “if a defendant did not receive part of that money then you must find him not guilty on this count [bribery] as well as on the other substantive counts.”
Murphy did not testify, but through argument of counsel it was urged that Murphy did not know that there was money in the briefcase that was passed. Thompson did testify and claimed he knew nothing whatsoever of the Murphy transaction and denied having ever received any of its proceeds. Both contentions were rejected by the jury, which found each defendant guilty on some counts, and not guilty on others. Again, the videotape evidence against the defendants, corroborated by the testimony of Murtha and other non-government witnesses, established an overwhelming case. Weinberg and Amoroso provided their usual testimony linking together the various audio and video tapes.
III. PRETRIAL AND POST-TRIAL PROCEEDINGS
Extensive pretrial motions were made by all defendants in all three of these cases. Representatives Myers, Lederer, Thompson and Murphy all claimed legislative immunity under the speech and debate clause of the constitution, and pretrial appeals were heard by the Second Circuit on that issue. In all cases the district court’s orders refusing to dismiss the indictments were affirmed. The key decision was written by Judge Newman of the Second Circuit in
U. S. v. Myers,
635 F.2d 932 (CA2),
cert. denied,
449 U.S. 956 , 101 S.Ct. 364 , 66 L.Ed.2d 221 (1980).
A number of other issues wére raised by pretrial motion seeking dismissal of the in
*1215
dictment on grounds of governmental misconduct, denial of defendants’ due process rights in the conduct of the investigation, entrapment as a matter of law, and various other issues which during the course of the proceedings have been loosely referred to as the “due process” issues.
All three of these cases were originally assigned to Judge Mishler of this court. In his original disposition of the “due process" motions Judge Mishler reserved decision on the ground that the motions could be dealt with more effectively after presentation of the government’s case at trial. He indicated that if he found any merit to the due process claims, he would conduct a hearing between the government’s case and the defendants’ case and then decide the questions raised. Four days before the
Myers
case was to go to trial, however, Judge Mishler recused himself and these cases were reassigned to the undersigned.
Just before the trial began the “due process” arguments were again advanced by defendants who reasserted their desire for a pretrial hearing. By that time, Judge Fu11am in the
Jannotti
case in Philadelphia had conducted many days of pretrial “due process” hearings but had been unable to resolve the questions presented, which he finally reserved for post-trial determination. Under those circumstances, this court ruled that the due process hearing would be deferred until the jury in the
Myers
case retired to deliberate, and then any additional testimony that was required could be heard before the court sitting without a jury.
As matters developed, defense counsel in
Myers
argued persuasively that this court’s modified plan was impractical; as a result, the “due process” claims of the convicted defendants in the
Myers, Lederer,
and
Thompson
cases were heard simultaneously in January and February of 1981, at a consolidated hearing held shortly after the jury had found Lederer guilty.
The
Williams
trial did not take place until April, 1981, after the first “due process” hearing had been concluded; consequently, a separate “due process” he, .ing was conducted in June, 1981, and the post-trial motions in
Williams
will be decided separately after counsel have had an opportunity to brief the issues. All parties in all four cases were given the opportunity on the “due process” issues to rely upon all of the evidence developed, not only before this court in both “due process” hearings and in all four trials, but also before Judges Fullam, Penn and Bryant in their respective trials and due process hearings, to the extent that such evidence might be brought to this court’s attention before determination of the post-trial motions.
This court recognizes that the lengthy “due process” hearings permitted in these matters have extended well beyond what would be appropriate in the usual criminal case. Conscious decisions and express rulings were made permitting a wide-ranging scope of inquiry, seemingly endless cross-examination by defense counsel of a seemingly endless list of witnesses, and extensive use of hearsay and opinion testimony. In addition, the court ordered the government to produce many internal documents of the justice department and the FBI. At times the proceedings more resembled a series of depositions and requests for document production in a securities fraud or antitrust case than a hearing to determine whether the government had violated the “due process” rights of defendants in a criminal prosecution. In most instances, even when the court had doubts about the suitability of a line of questioning or whether a document should be produced, decision was resolved in favor of the defendants.
There were substantial reasons for such liberality to defendants, unprecedented in this court’s experience. In the first place, from the very beginning it was apparent that these were significant cases to the defendants, to the FBI, to the justice department, to the public, and perhaps even to the very structure of our governmental system. Large sums of money had been spent in the Abscam investigation. High-ranking members of Congress had been indicted. The integrity of both the FBI and the justice department had been vigorously
*1216
challenged. A novel investigative technique had been employed against members of Congress and others without prior specific suspicions.
7
And the entire matter had been given extensive national coverage in the news media, reflecting not only the importance of the criminal actions, but fundamental political and constitutional issues in which many segments of the population had an interest.
Second, since the United States Supreme Court has not yet expressly ruled on many of the legal issues presented, and the issues raised are novel questions of great public importance, final review by that body is a distinct possibility.
Third, it is advantageous for this court to have developed a complete record so that review on appeal can be final, without the need for a remand to develop further areas of possible inquiry. Already, enormous time and effort by all parties has been devoted to this case. Justice to the parties and to the public demands final resolution on one trip through the appellate review system if that is at all possible.
Fourth, the political, professional and business careers of the defendants have been destroyed or at least seriously compromised by the indictments, trials and convictions. Whatever final sentences might be imposed, the harm to these defendants from the mere fact of conviction was significant, thereby requiring meticulous review of every possible basis for vacating those convictions.
Fifth, although the cases before the undersigned were tried in the Eastern District of New York under the jurisdiction of the Second Circuit, all but one of the defendants reside in New Jersey or Pennsylvania under the jurisdiction of the Third Circuit. A serious claim was made by most of the defendants that the government had wrongly manufactured jurisdiction in the Eastern District of New York by scheduling the payoffs in this district to the prejudice of those defendants who reside in the Third Circuit. Since there appears to be some conflict between the views of the Third Circuit and the Second Circuit on “due process” problems,
compare, U. S. v. Twigg,
588 F.2d 373 (CA3 1978)
and. Government of Virgin Islands v. Smith,
615 F.2d 964 (CA3, 1980)
with U. S. v. Turkish,
623 F.2d 769 (CA2 1980)
and Grochulski v. Henderson,
637 F.2d 50 (CA2 1980),
cert. denied,
450 U.S. 927 , 101 S.Ct. 1383 , 67 L.Ed.2d 358 (1981), it appeared fair to both the government and the defendants to explore all factors that even remotely suggested some possibility of relief to the defendants under the precedents of either the Second or the Third Circuit.
Seventh, the nature of the claims asserted by defendants — over-involvement of the government in creating the crimes charged, specific governmental misconduct during the course of the investigation, and suppression of exculpatory information during the course of the investigation and trial — dealt primarily with factors beyond the direct knowledge of the defendants, so that whatever evidence could be developed would have to come by way of the hearing from government records and government witnesses.
Eighth, in the Abscam case tried in Philadelphia,
U. S.
v.
Jannotti et al.,
Judge Fu11am had conducted further “due process” hearings after the convictions and had found reasons for dismissing the indictments there.
U. S. v. Jannotti,
501 F.Supp. 1182 (ED Pa.1980) (appeal pending).
See
discussion of Judge Fullam’s decision in section VII,
infra.
In the course of his “due process” hearings, Judge Fullam at many points foreclosed testimony about the New York cases, and restricted his inquiry to matters that bore directly upon the Philadelphia phase of Abscam, a phase that focused primarily on local officials during a period of some 10 days at the very end of the investigation. In the present cases,
*1217
which involved elected federal officials engaged in activities over some seven months, the need for a more wide-ranging inquiry seemed compelling.
In short, the procedures followed by this court and the rulings made throughout the course of the due process hearings were guided by a sensitive concern for the rights of these defendants, an awareness of the unsettled legal principles governing disposition of defendants’ claims, and an appreciation of the public importance of the Abscam investigation in general and the conduct of these defendants in particular. Together, these factors persuaded the court that wherever possible, consistent with legitimate governmental needs for continued secrecy, open disclosure of the Abscam investigation and the government’s handling of it was both necessary and desirable.
As a result of the foregoing, the court has before it, and has considered in making this decision, all of the testimony developed in four weeks of the
Myers
trial, three weeks of the
Thompson
trial, one week of the
Lederer
trial, five weeks of the
Williams
trial, three weeks of the first due process hearing, and one week of the second due process hearing, making altogether approximately 17 weeks of trial presided over by this court represented in approximately 20,-000 pages of transcripts. In addition,' the court has reviewed all of the testimony in the due process hearings before Judge Fu11am, and those selected portions of the trials before Judges Fullam, Bryant and Penn, as well as the due process hearing before Judge Penn, that counsel have focused upon. The many volumes of the FBI’s Abscam files from both headquarters in Washington and the Brooklyn-Queens office were reviewed
in camera,
resulting in directions to the government to produce all or parts of many documents. The court has also reviewed and considered the government’s pre-prosecution memoranda, the so-called “Del Tufo memorandum”, the “Blumenthal report” on publicity leaks, a large number of video and audio tapes and transcripts, and hundreds of other exhibits.
The post-hearing memoranda of counsel constitute a stack of briefs some six inches high. An even larger stack of motion papers was created by the pretrial, prehearing, and mid-hearing submissions of counsel, many of which were incorporated by reference into their final submissions. All of those papers have been read and carefully considered by the court.
With that background, the court next turns to an outline of the specific claims of the parties and, finally, to a discussion of the merits of those claims together with the court’s findings and conclusions, where necessary, with respect to those claims.
IV. DEFENDANTS’ CLAIMS
A.
Claims of The Myers Defendants.
The four defendants in
Myers
have filed joint briefs in support of all post-trial motions and thus their arguments are referred to collectively. The
Myers
defendants essentially claim that the Abscam investigation did not uncover criminal conduct, but instead created or instigated any criminality that may be present, and that improper delegation of authority, lack of supervision, inadequate documentation and the reward system used by the government created such doubt as to the truth, reliability and integrity of the verdict as to require dismissal of the indictments. The
Myers
defendants urge, in effect, that notwithstanding their failure to claim entrapment at the trial, they are not precluded from now asserting a defense of “entrapment as a matter of law”, or “objective entrapment”. They urge that many states have recognized and legislatively adopted objective entrapment and that the federal courts should constitutionalize that trend.
More particularly, the
Myers
defendants argue that the government did not infiltrate or uncover ongoing criminal activity, but instead created such activity; that the government offered overwhelming inducements to the
Myers
defendants; that Ab-scam was conducted without adequate safeguards, particularly with respect to supervision of Weinberg; that the techniques employed by the government in Abscam were
*1218
“outrageous” within the meaning of
Hampton
v.
United States,
425 U.S. 484 , 96 S.Ct. 1646 , 48 L.Ed.2d 113 (1976); that there was entrapment as a matter of law; that' the compensation of Weinberg as an informant is unconstitutional; that it is improper to undertake a general investigation into the corruptibility of members of a particular branch of government without some “well-grounded basis”; that as a matter of constitutional law the “so-called due process defense or objective strand of the entrapment defense” should be available to a defendant subjected to “outrageous governmental investigatory action”; that the destruction, erasure or unexplained loss of tapes requires an inference that the tapes contained exculpatory material; and that in an undercover investigation the verbal assertion by a potential target that he or she desires to act within the law forecloses any further investigation of that individual.
B.
Thompson’s Claims.
Defendant Thompson advances arguments that are similar, although more focused. He urges what he characterizes as “the doctrine of governmental overreaching” as requiring dismissal here because the government instigated rather than discovered the crimes and because its selection of “targets” was arbitrary and unprincipled. Thompson further urges that the indictment should be dismissed because in the course of the Abscam investigation there were widespread and continuous violations of laws, regulations and guidelines in the control and monitoring of the informant Weinberg, in using Criden and other “middle men”, in lacking reasonable suspicion before bringing public officials before the video cameras, and in ignoring or disregarding “red flags” and substantial legal questions that arose. Thompson further argues that inadequate documentation of the investigation, unauthorized disclosures of information to the press by the government, attempts by the government to intimidate witnesses, failure to observe the requirements of
Brady v. Maryland,
373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1973), and other possible violations of law require dismissal of the indictment against him. Finally, Thompson urges that the circumstances of his involvement with Abscam constitute entrapment as a matter of law.
C.
Murphy’s Claims.
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 Congressman 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 Ab-scam 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.
D.
Lederer’s Claims.
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 (CA3 1978); provided improper incentives
*1219
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 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (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.
E.
Claims of the Government.
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 as developed at the trials reveals [sic] a collection of unscrupulous public officials who were never “victimized” by the informant or the intermediaries and whose guilt was clear because they were clearly guilty, not because they had been manipulated to appear in compromising positions before the cameras. Government’s memorandum at 1.
The government further argues that the Abscam investigation was pursued in good faith and conducted professionally in view of the circumstances, that no right of any defendant was infringed and, finally, that whether an operation such as Abscam is “good” or “bad” is a matter to be decided initially by the executive branch of our government, subject to legislation by Congress, but does not present judicial questions under the due process clause.
As an alternative to dismissal of the indictment, all defendants also move for a new trial on various grounds, including insufficient evidence, errors in the charge, and
Brady
violations.
See
section IX,
infra.
Y. GENERAL DISCUSSION OF BASIC LEGAL CONCEPTS
Whenever government agents, in carrying out their law enforcement functions, assist criminals or participate with them in their criminal activity, questions arise as to the propriety or legitimacy of the government’s conduct and as to whether the law should punish a person for engaging in governmentally instigated criminal activity. The answers must draw on considerations of philosophy, psychology, statutory construction, constitutional law, practical needs of law enforcement, and even undifferentiated visceral feelings about right and wrong.
A.
Entrapment.
Much of the judicial discussion of these questions has focused on the ideas generally encompassed in the concept “entrapment”. Although virtually all judges have agreed that an innocent person who was “entrapped” by government agents into committing a criminal act should not be convicted, there is less agreement on the proper principles underlying the concept of entrapment and on what factors do or do not constitute entrapment.
Under the so-called “subjective” approach to the defense of entrapment, two factors must be considered: Was the defendant’s criminal conduct “induced” by the government agent? If it was, was the defendant “predisposed” , to commit the crime? This subjective approach focuses upon the con
*1220
duct and propensities of the particular defendant in each case. It is for the jury to determine, first, whether there is sufficient evidence of “inducement” and, if so, whether the government has proven beyond a reasonable doubt that the defendant was “predisposed”.
8
In theory, the subjective approach to entrapment is grounded in legislative intent: if an otherwise innocent person was entrapped by a government agent into performing a criminal act, the legislature never intended that his conduct be punished.
Sorrells v. U.S.,
287 U.S. 435 , 52 S.Ct. 210 , 77 L.Ed. 413 (1932);
U.S. v. Russell,
411 U.S. 423 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 (1973).
“Objective” entrapment is a term applied to either of two different concepts. Under one view of “objective” entrapment the focus is not upon the propensities and predispositions of the individual defendant, but instead upon an objective standard of “persons who would normally avoid crime and through self-struggle resist ordinary temptations”,
Sherman v. U.S.,
356 U.S. 369, 384 , 78 S.Ct. 819, 826 , 2 L.Ed.2d 848 (Frankfurter, J., concurring), in order to determine whether the inducement tendered by the government agent was unacceptable.
9
The second view of “objective” entrapment focuses upon the conduct of the government agents in each particular case to determine whether that conduct “falls below standards, to which common feelings respond, for the proper use of governmental power”.
U.S. v. Russell,
411 U.S. at 441 , 93 S.Ct. at 1647 (Stewart, J., dissenting). However, and despite eloquent arguments in several dissenting and concurring opinions,
Sorrells,
287 U.S. 435 , 52 S.Ct. 210 , 77 L.Ed. 413 ;
Sherman,
356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 ;
Russell,
411 U.S. 423 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 ; and
Hampton,
425 U.S. 484, 486 , 96 S.Ct. 1646, 1648 , 48 L.Ed.2d 113 the “objective” approach to entrapment has never been accepted by any majority of the Supreme Court.
Some confusion has arisen because “objective” entrapment, the view that over-involvement of the government in the commission of a crime requires dismissal of an indictment, has also been called “entrapment as a matter of law”. Further semantic confusion has arisen, however, because the term “entrapment as a matter of law” has also been applied to a situation where, on the evidence presented, no jury could find beyond a reasonable doubt, that the defendant was predisposed to commit the crime that was induced by the government agents.
Sherman v. U.S.,
356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 ;
see U.S. v. Jannotti,
501 F.Supp. at 1200 . Under that view, “entrapment as a matter of law” simply means that insufficient evidence was presented to warrant the case going to the jury on the issue of defendant’s predisposed state of mind.
Entrapment is a difficult, conceptually slippery, and philosophically controversial concept. Ever since
Sorrells v. U.S.,
287 U.S. 435 , 52 S.Ct. 210 , 77 L.Ed. 413 (1932), the Supreme Court has divided sharply on the standards to be applied in reviewing the conviction of a person whose criminal conduct was in part facilitated by government agents. In
U.S. v. Russell,
411 U.S. 423 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 (1973), a Supreme
*1221
Court majority of five claimed to adhere to
Sorrells
as a precedent of long standing that had already once been reexamined and implicitly reaffirmed in
Sherman v. U.S.,
356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958). Writing for the court in
Russell ,
Justice Rehnquist pointed out that “since the [entrapment] defense is not of a constitutional dimension, Congress may address itself to the question and adopt any substantive definition of the defense that it may find desirable.” 411 U.S. at 433 , 93 S.Ct. at 1643 (footnote omitted).
Four Supreme Court decisions are central to the issue of entrapment.
Sorrells,
287 U.S. 435 , 52 S.Ct. 210 , 77 L.Ed. 413 ;
Sherman,
356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 ;
Russell,
411 U.S. 423 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 ; and
Hampton,
425 U.S. 484 , 96 S.Ct. 1646 , 48 L.Ed.2d 113 . Familiarity with the majority, concurring, and dissenting opinions in those decisions is assumed. From those decisions as a whole it appears that the “objective” view of entrapment as espoused by Justice Brennan in
Hampton
has never been accepted by a majority of the Supreme Court. The “subjective” view has been adopted in
Sorrells, Sherman
and
Russell
and appears to be still acceptable to a present majority of the current Supreme Court bench, at least in most cases, where a defendant’s predisposition has been established.
Hampton
presents a more complex picture. There, three justices voted to solidify the subjective approach so that under no circumstances, regardless of how egregious the governmental conduct, could a defendant who was found by a jury to have been predisposed to commit the crime have the indictment dismissed for governmental misconduct. 425 U.S. 484 . Three other justices believed that the circumstances showed that governmental officials had purposefully created the crime in
Hampton and that
such creative activity by governmental officials required dismissal despite defendant’s predisposition to commit the crime. 425 U.S. at 495 , 96 S.Ct. at 1652-53 (Brennan, J., dissenting). Two other justices in an opinion written by Justice Powell found that
Hampton
was controlled by
Russell ,
that Hampton had not even raised the issue of predisposition, and that his entrapment defense, therefore, failed for lack of proof. 425 U.S. at 490 , 96 S.Ct. at 1650 (Powell, J., concurring). Justice Powell declined,'however, to close the door entirely upon the possibility of court intervention in an extreme case. He refused to accept the premise “that, no matter what the circumstances, neither due process principles nor [the Supreme Court’s] supervisory power could support a bar to conviction in any case where the Government is able to prove predisposition.” 425 U.S. at 495 , 96 S.Ct. at 1653 . In footnote, Justice Powell added:
I emphasize that the cases, if any, in which proof of predisposition is not dis-positive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction. This would be especially difficult to show with respect to contraband offenses which are so difficult to detect in the absence of undercover Government involvement. One cannot easily exaggerate the problems confronted by law enforcement authorities in dealing effectively with an expanding narcotics traffic * * * which is one of the major contributing causes of escalating crime in our cities. * * * Enforcement officials, therefore, must be allowed flexibility adequate to counter effectively such criminal activity. 425 U.S. at 496 n.7, 96 S.Ct. at 1653 n.7 (citations omitted).
Thus as the Court divided in
Hampton ,
with Justice Stevens taking no part: three judges would make predisposition the only issue; three judges would eliminate predisposition entirely; and the decisive two concurring votes, expressed in Justice Powell’s opinion, indicate that predisposition is not only relevant but will be dispositive in all but the “rare” case where police over-involvement in the crime reaches “a demonstrable level of outrageousness”. Since Hampton had been predisposed, and since the police involvement in his crime was not “outrageous”, his conviction was affirmed. The three dissenting judges would elimi
*1222
nate consideration of predisposition entirely and would instead devote their attention only to governmental misconduct. While they would prefer to be more restrictive of permissible governmental involvement in crime than Justice Powell’s test of “outrageousness”, the dissenters’ position a
fortiori
accepts the “outrageousness” standard, making it the point in the continuum of escalating police involvement in crime where five members of the present court agree that a conviction should be overturned and an indictment dismissed.
Until further word from the Supreme Court, therefore, as a matter of strict legal precedent, this court must assume that while the subjective view of entrapment is the general guide, it is nevertheless subject to an overriding exception that under either the court’s supervisory power
10
or the due process clause, a predisposed defendant cannot be convicted if police over-involvement in his crime reaches “a demonstrable level of outrageousness”.
See U.S. v. Johnson,
565 F.2d 179, 181 (CA 1 1977).
B.
Outrageousness.
What conduct by law enforcement officials would be “outrageous”? No clear standard has evolved. Many partially relevant factors have been discussed, argued, and either accepted or rejected in various opinions on the subject. The court has reviewed and carefully considered numerous cases, including the following: (1) United States Supreme Court:
Sorrells v. U.S.,
287 U.S. 435 , 52 S.Ct. 210 , 77 L.Ed. 413 ;
Sherman v. U.S.,
356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 ;
U.S. v. Russell,
411 U.S. 423 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 ;
Hampton
v.
U.S.,
425 U.S. 484 , 96 S.Ct. 1646 , 48 L.Ed.2d 113 ; (2) Second Circuit Court of Appeals:
U.S.
v.
Viviano,
437 F.2d 295 (CA2),
cert. denied,
402 U.S. 983 , 91 S.Ct. 1659 , 29 L.Ed.2d 149 (1971);
U.S. v. Nunez-Rios,
622 F.2d 1093 (CA2 1980);
U.S. v. Corcione,
592 F.2d 111 (CA2 1979);
U.S. v. Archer,
486 F.2d 670 (C.A.2 1973);
U.S.
v.
DeSapio,
435 F.2d 272 (CA2 1970),
cert. denied,
402 U.S. 999 , 91 S.Ct. 2170 , 29 L.Ed.2d 166 (1971);
U.S. v. Brown,
603 F.2d 1073 (CA2 1979); (3) Cases from other circuits:
U.S. v. Smith,
538 F.2d 1359 (CA9 1976);
U.S. v. Quinn,
543 F.2d 640 (CA8 1976);
U.S. v. Graves,
556 F.2d 1319 (CA5 1977),
cert. denied,
435 U.S. 923 , 98 S.Ct. 1485 , 55 L.Ed.2d 516 (1978);
U.S. v. Leja,
563 F.2d 244 (CA6 1977),
cert. denied,
434 U.S. 1074 , 98 S.Ct. 1263 , 55 L.Ed.2d 780 , 436 U.S. 948 , 98 S.Ct. 2853 , 56 L.Ed,2d 790 (1978);
U.S. v. Johnson,
565 F.2d 179 (CA1 1977),
cert. denied,
434 U.S. 1075 , 98 S.Ct. 1264 , 55 L.Ed.2d 780 (1978);
U.S. v. Twigg,
588 F.2d 373 (CA3 1978);
U.S. v. Szycher,
585 F.2d 443 (CA10 1978).
Of all the foregoing cases, only one, the Third Circuit’s decision in
Twigg ,
has actually held that an indictment should be dismissed under the supervisory power or due process clause because governmental conduct was “outrageous”. Although most'of the other cases recognize the possibility of such a conclusion, none of them has held under the circumstances presented to the court that dismissal of the indictment was an appropriate remedy.
11
The central issue now tendered by defendants in this case is whether the circum
*1223
stances of the, Abscam investigation and the government’s conduct toward the particular defendants reached “a demonstrable level of outrageousness” sufficient to require dismissal of the indictments. Before addressing the circumstances of Abscam and the particular problems of these cases, however, it may be useful to list many of the factors that have been the focal point of discussion in the cases cited by counsel. Among those factors are the following:
1. Did the government agents initiate or instigate the criminal activity?
2. Was the government’s participation essential to the crime?
3. Had the defendant engaged in similar criminal activity before the government agent came on the scene?
4. Was the activity of the government agent, when viewed alone, criminal?
5. How easy or difficult is the job of law enforcement officers in combatting the kind of criminal activity involved?
6. Do the police need to use the kinds of tactics utilized in order to effectively detect the crime?
7. Did the government provide the instruments or implements (e.g., drugs, laboratory equipment, chemicals, money, suitcases) to commit the crime?
8. If an informant was used, was the informant reliable? Did he have a criminal record?
9. Was the informant paid a fee contingent upon the number or importance of defendants apprehended or convicted?
10. Did the informant violate the law, or urge others to violate it?
11. Did the informant or the undercover agents exert pressure or use threats on defendants to induce them to commit the crime?
12. Did the informant or undercover agents engage in other activities, not directly related to the crime, which violated the law or were dishonorable?
13. Did the government agents show a proper regard for judicial and police processes?
14. Did the government’s agents perjure themselves by false reports to the police, to a judge, or to a grand jury?
15. Did the activities of the agents actually harm innocent citizens not the subject of the investigation?
16. Did the activities of the government agents have any direct adverse social consequences?
17. Did the undercover agents stand by while crimes were being committed in their presence?
18. What was the value to law enforcement of the information being obtained by the informant and undercover agents?
19. How important was the crime and its detection in the overall social scheme?
20. How closely were the informant’s activities supervised by the government agents?
21. Was the claimed outrageous conduct of the agents an isolated instance, or was it part of a widespread and continuous system?
22. Did the investigative technique complained of produce a substantial danger of unreliability and thereby potentially expose innocent people to prosecution and possible conviction?
12
Although there are some indications from some dissenting justices in the United States Supreme Court that undercover activities, deception, trickery and similar tech
*1224
ñiques by police should be impermissible under our constitution, the great majority of opinions on the subject, and all holdings by the Supreme Court and, as far as this court is aware, by the circuit courts as well, have recognized that in order to combat crime in our society it is permissible for police to employ artifice and stratagem, to use undercover agents who deal directly with criminals, and to present opportunities and facilities to them for the commission of an offense.
VI. SPECIFIC DISCUSSION OF DEFENDANTS’ CLAIMS
We turn now to a discussion of the merits of the defendants’ claims. For discussion purposes the claims will be divided into four groups:
A. General Nature of Abscam.
B. Specific Operations of Abscam.
C. Weinberg and His Conduct.
D. Miscellaneous Arguments.
A.
General Nature of Abscam.
1.
Objective Entrapment and Entrapment as a Matter of Law.
All defendants urge, as a primary contention, that the indictment should be dismissed because the Abscam investigation did not uncover criminal conduct, but instead created and instigated it. This argument challenges the essential nature of the government’s “sting” operation, which presented to defendants a false and fictitious but convincing “scenario” of a wealthy sheik willing to pay cash for promises of assistance in his immigration to the United States. Defendants argue that this scenario induced them to participate in criminal events they otherwise would not have engaged in, simply because absent the government’s actions they would not have had the opportunity to do so — at least with this sheik.
The central defect in defendants’ argument is that it simply does not represent the law as established by the United States Supreme Court. As noted in the “general discussion”, section V,
supra,
eloquent dissents have urged that objective entrapment be adopted as a constitutional principle so that whenever a government agent provided the impetus for a crime, prosecution would be barred. If that were the law, clearly these convictions would have to be dismissed; indeed, if that were the law, these prosecutions would never have been brought. However, and as already noted, whenever the dissenting or concurring justices on the Supreme Court have urged objective entrapment as a principle of constitutional law or as a basis for invoking the supervisory power,
see Hampton,
425 U.S. 484 , 96 S.Ct. 1646 , 48 L.Ed.2d 113 ;
Sorrells,
287 U.S. 435 , 52 S.Ct. 210 , 77 L.Ed. 413 ;
Russell,
411 U.S. 423 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 ; and
Sherman,
356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 , the majority has rejected the concept. Thus, except for the possible availability of an “outrageous governmental conduct” argument, discussed below, defendants’ entrapment claims in these cases are 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. As already noted, the focus of this defense is upon whether the defendant was predisposed to commit the crime.
Predisposition is generally a question of fact to be determined by the jury. Of all the defendants before the court in these three cases, only defendant Lederer requested that the issue of entrapment be submitted to the jury, and, of course, the jury found him predisposed, a decision that cannot be overturned because it is supported by sufficient evidence. Since the other defendants did not request an entrapment charge, the issue of subjective entrapment is no longer open to them.
13
Substantial parts of the memoranda submitted by the
Myers
defendants focus upon
*1225
why this court should apply the principles of objective entrapment. But in view of the consistent position taken by the United States Supreme Court against the arguments of its dissenters, it would be improper for this court to decide these cases by adopting objective entrapment. Presumably, the Supreme Court could overrule its clear precedents to the contrary and impose such a fundamental change on our criminal justice system. Similarly, it is within the province of Congress to define the entrapment defense in objective terms, and the fact that a number of states have done so might be persuasive argument to a legislator. But the argument is unpersuasive to this district judge in light of the clear federal precedents that reject objective entrapment.
2.
“Outrageous” Government Conduct.
Even if objective entrapment is not to be the standard, defendants argue, these 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 a conviction.” This argument stems from
Russell,
411 U.S. at 431-32 , 93 S.Ct. at 1642-43 , where Justice Rehnquist, speaking for the majority, acknowledged that such a situation of “outrageous” conduct “may some day be presented”. Justice Rehnquist repeated that thought in
Hampton,
425 U.S. at 489 , 96 S.Ct. at 1649 .
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 may some day bar prosecution. Defendants argue that those cases, those circumstances and that conduct have arrived with Abscam.
It is clear that mere instigation of the crime does not render law enforcement activity “outrageous”. Here, the government presented a fictitious sheik, seeking to buy favorable legislative action. Undercover agents offered money in return for defendant legislators’ promises to introduce a private immigration bill. In simple terms, bribes were offered by the undercover agents and accepted by the defendant congressmen.
14
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”.
15
*1226
3.
Selection of
“Targets”.
Defendants argue that Abseam was “outrageous” because its selection of congressional targets was arbitrary and unprincipled. Early in the first due process hearing this court stated that in the absence of evidence to the contrary it would assume that there was no “probable cause” or even “reasonable suspicion” which might be used as a predicate for making a bribe offer to any of the defendant congressmen. No evidence is before the court that any of the defendant congressmen committed any pri- or similar violations or engaged in any course of conduct or other circumstances that would warrant suspicions of criminality in the conduct of their legislative affairs.
16
Under these circumstances, defendants argue, to permit targets to be selected by middlemen violated due process because it did not provide sufficient protection to the innocent. Both legally and factually the argument fails. On the legal side, Judge Newman noted on the earlier appeal in
Myers
that 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 940-41 .
See also U.S. v. Ordner,
554 F.2d 24 (CA2 1977).
Factually, too, the argument is undercut by what happened with representative Patten and Senator Pressler, who had been brought to the undercover agents by middleman Silvestri. DP Exs. 21 & 22, respectively. Neither one apparently knew he had been brought before the sheik’s representatives to be offered money in return for a promise of favorable legislative action. However, neither one was overwhelmed by the circumstances, and each declined the offer. Pressler, particularly, acted as citizens have a right to expect their elected representatives to act. He showed a clear awareness of the line between proper and improper conduct, and despite his confessed need for campaign money, and despite the additional attractiveness to him of the payment offered, he nevertheless refused to cross into impropriety.
The court is convinced that the defendant congressmen appeared through a “self-selecting” procedure that involved the other defendants as well. The agents did not set out to offer bribes to any particular congressman. They set no standards, established no criteria. Instead, the middlemen, Errichetti, Criden and Silvestri, carried the word that money was there for the taking by any congressman who would promise to give legislative aid to the sheik’s heed for asylum in the United States. Weinberg’s description of Abseam accurately characterizes what happened: “We put out the word that money was available, we had a honey pot and the flies came.” Schwartz Trial Tr. 2.65 (Sept. 11, 1980).
Uncontroverted testimony established that no prospect was rejected or vetoed either by the agents or by higher authorities in the justice department. No congressional defendant was forced to attend the videotaped meeting, and no congressman was contacted directly by any of the undercover agents. Prior to the payoff meetings all contacts with the congressmen were through the middlemen, who apparently believed the sheik’s offer, who claimed to have influence with the congressmen, and who claimed to be able to produce congressmen willing to take bribes. With the convicted congressmen, these claims proved accurate; with some other legislators, the middlemen
*1227
did not live up to the abilities they had boasted of. In some cases, as noted above, after the legislator appeared, he rejected the offer of money.
With each defendant brought before the TV cameras, the criminal nature of the proposed deal was made clear. Each of the congressmen was a sophisticated politician who clearly was aware what was being requested of him and what the money was being offered for. While Amoroso and Weinberg talked around the point somewhat and did not mention the word bribe in the on camera discussions, they handled the matter in each case as tactfully and delicately as one might suppose, given the nature of their undercover role as agents of foreign principals offering a bribe to a high public official.
17
But, as the videotapes clearly showed and as the juries necessarily concluded, each congressman was aware of the criminal nature of the transaction, and each acted wilfully.
The claim that the justice department “targeted” only supporters of Senator Kennedy in his presidential race was unsupported by the evidence.
In short, on this record it is clear that those defendants who appeared and accepted bribes were not “targets” in the sense that any government agent selected them for some sort of “honesty test”; instead, each was a willing volunteer seeking illegal and corrupt payments.
4.
Size of Inducements.
All defendants argue 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.
18
Congressmen Myers, Lederer, Thompson and Murphy were each given $50,000. In addition, each was told that the sheik would invest money in the congressman’s district. The inducements were clearly improper in the case of the cash payments, although arguably proper in the case of promised investments. Even with the investments, however, at least some of the congressmen seemed more interested in obtaining deposits in favorite banks than in truly developing the resources of their own districts. With Murphy, moreover, there was the added transaction of a contemplated loan to enable him and his business partner to buy a shipping company.
In another Abscam matter relating to a new gambling casino, Errichetti is alleged to have received part of a $100,000 payment made by the undercover agents. In addition, he seems to have been promised a lucrative job with the casino once it opened. Criden first contacted the undercover agents when he sought financing for a casino; if successful, he and his law firm would have received a fee that ran in seven figures. Later activities by both Errichetti and Criden demonstrate, however, that they produced bribe-taking congressmen because of the cash they received as part of the payoff. There is no evidence to connect their motivations for these crimes with their hoped-for bonanzas if the casino project went ahead. Certainly none of these defendants were in the position Judge Fullam found Jannotti and Schwartz to be in: “either take the bribe or lose the investment for your community.”
While there may be “inducements” that are “overwhelming”, such as a threat
*1228
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 matter how much money is offered to a government official as a bribe or gratuity, he should be punished if he accepts. It may be true, as has been suggested to the court, that “every man has his price”; but when that price is money only, the public official should be required to pay the penalty when he gets caught. In short, as a matter of law, the amount of the financial inducements here could not render the agents’ conduct outrageous or unconstitutional.
But even if the size of the inducements were relevant, on the facts here they do not approach “overwhelming”. The undercover agents were dealing with members of Congress, sophisticated people who function at the highest level of our government. In these inflationary times, $50,000 is simply not an overpowering sum of money. The agents sought to keep the bribes reasonable and realistic in light of all the circumstances, and the sheer length of time Abscam ran without raising suspicions or being exposed testifies to the agents’ success in making all' aspects of the bribe offers seem real.
Moreover, there were several participants in each of these transactions, so the amount of bribe money each congressman could expect to actually receive varied from between $5,000 and $20,000. Furthermore, it is evident that the inducements offered were not so great as to cause every official who appeared before the cameras to agree to commit a crime, because Senator Pressler, Congressman Patten and Congressman Murtha all refused. Nor do we know how many congressmen, if any, were approached by the middlemeii, offered the $50,000, and refused outright to even visit with the sheik’s representatives to discuss the matter. Taken together, all these factors make it clear that the inducements offered were not overwhelming. The difference between those public officials who took bribes and those who refused cannot be found by examining the inducements offered. Honest congressmen would refuse a bribe offer; dishonest ones took the money.
Judge Fullam, in his due process ruling in
Jannotti ,
found the inducements offered by the government to be so “attractive” and “exceedingly generous” that defendants’ acceptance of the money could not establish proof of predisposition, and he therefore held that the inducements resulted in entrapment as a matter of law. It may be that he reached that conclusion because the bribe money was forced on defendants by threats of withholding the hotel investment, a substantial benefit to their city, if defendants did not take the money. To the extent that Judge Fullam may have felt that the amount of a bribe offer, standing alone, may insulate its recipient from prosecution, this court respectfully disagrees.
5.
Need for the Investigative Tactic.
A vital factor in evaluating the government’s conduct is whether there was any particular need for the kind of investigative tactic employed. The Supreme Court has recognized with drug-related offenses that undercover activities by governmental agents is necessary for proper law enforcement:
The illicit manufacture of drugs is not a sporadic, isolated criminal incident, but a continuing, though illegal, business enterprise. In order to obtain convictions for illegally manufacturing drugs, the gathering of evidence of past unlawful conduct frequently proves to be an all but impossible task. Thus in drug-related offenses law enforcement personnel have turned to one of the only practicable means of detection: the infiltration of drug rings and a limited participation in their unlawful present practices. Such infiltration is a recognized and permissible means of investigation; if that be so, then the supply of some item of value that the drug ring requires must, as a general rule, also be permissible. For an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them. Law enforcement tactics such as this can
*1229
hardly be said to violate “fundamental fairness” or “shocking to the universal sense of justice.”
U.S. v. Russell,
411 U.S. at 432 , 93 S.Ct. at 1643 (citation omitted).
Although discovered and prosecuted less frequently than drug trafficking, political corruption through bribery is regrettably found among public officials, not only in this country but abroad. While this court is not prepared to characterize the bribery of public officials as “a continuing, though illegal, business enterprise”, clearly it is not simply a “sporadic, isolated criminal incident”. Like drug offenses, bribery is difficult to detect. Both are “victimless crimes” in the sense that no one with knowledge of the usual transactions has a motive to report the illegality to law enforcement officials.
Moreover, with bribery, nothing more is required than the quick passing of money in return for a promise of performance by the public official of an act that appears to be an appropriate part of his public duties. With drug deals, at least one part of the transaction is clearly illegal — the contraband. With bribery, both parts of the transaction are apparently legitimate: (1) money and (2) actions by public officials. Detecting bribery, therefore, is probably even more difficult than detecting drug offenses.
Some would say, however, that mere difficulty of detection does not create a need for undercover, infiltrating tactics such as were used in Abscam. More is needed, specifically a serious harm to society, and there are those who would argue that bribery and corruption in our public officials should be viewed with a tolerant “boys will be boys” attitude. This argument the court rejects categorically. Honesty, integrity, truthfulness and sincerity are essential qualities for effective leadership in our society. Tolerance of corruption has no place here. The cynicism and hippocracy displayed by corrupt officials, pretending to serve the public good, but in fact furthering their own private gain, probably pose a greater danger to this country than all of the drug traffickers combined. Corrupt leaders not only betray their constituents, but also contribute to a moral decay in American society that many view as the forerunner of economic, political and social disaster.
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.
6.
Lack of Reliability.
One of the central notions running through the concepts of entrapment, governmental overinvolvement in crime, and due process violations for “outrageoúsness” is a deep judicial concern that juries’ convictions be reliable measures of defendants’ culpability. Courts must intervene when conduct by a government agent, or for that matter by any other person, creates a substantial risk that the “guilty” verdict is not a reliable evaluation of what a defendant did.
With these Abscam verdicts, reliability is high. In each of these cases the essence of the government’s case was found on the videotapes. The full meetings with congressmen were recorded from start to finish, with no editing of the tapes either during or after the meetings. A more reliable basis for conviction can hardly be imagined. Through the videotapes the juries were permitted to see the actual crimes committed. Compared to the ordinary trial where oral testimony can at best only partially recreate an event, the reliability of the Abscam evidence was increased many
*1230
times over.
19
Not only was there no question of the actual words used by the participants, but the jury could also perceive the added dimensions of tone of voice, timing of comments, and even the defendants’ gestures and mannerisms. The issue of “credibility”, determining whether the events occurred as the government contends, an issue that dominates so many criminal trials, was virtually eliminated from these trials. Thus, there is> absent from the reliability calculus one of the major hazards to truth and justice that is present when only oral testimony recreates the events.
Finally, review of the tapes in each case confirms that the jury was not only authorized, but virtually compelled to find each of the congressional defendants guilty.
B.
Specific Operation of Abscam.
1.
Inadequate Safeguards.
Defendants argue that Abscam was conducted “without adequate safeguards”, particularly with respect to the supervision of Weinberg. They point out that during the more than one year of Abscam’s operation, Weinberg was accompanied by agents Amoroso or McCarthy only half the time, and that the rest of the time he was free of government supervision.
There are several flaws in this argument as a ground for attacking the convictions. In the first place, none of the defendants has shown any direct or specific harm resulting from the alleged lack of supervision. Defendants’ claims in this regard are amorphous and unfocused. Perhaps they can best be viewed as generalizations or characterizations to be applied to the other specific instances of misconduct charged to Weinberg discussed below.
Second, defendants cite no authority holding that the constitution requires the FBI to impose a particular degree of supervision on an informant.
The third flaw in the argument is that even though a lack of supervision may connote a defect in an investigation, the only relevant question is whether ultimately that defect affected the reliability of the result, and, as shown in the discussion of reliability, Section VI-A-6,
supra,
on this point the government rates well.
The fourth defect in this argument is factual, for the supervision imposed on Weinberg was more than adequate to the circumstances of this investigation. Weinberg recorded literally hundreds of conversations and telephone calls outside of the agents’ presence. While Weinberg was given some discretion as to what calls to record, this court is satisfied that he exercised that discretion by recording all calls and conversations that he could consistently with safety and convenience. There is no evidence presented by any of the defendants that a particular phone call or conversation exonerated him or that the lack of a particular recording in any way prejudiced him.
Undoubtedly, there were many unrecorded phone calls and conversations in which Weinberg participated over the many months of the investigation, but the evidence shows no pattern or purpose to them that would warrant an inference of misconduct or evil intent. Nor does the constitution demand that the FBI or an informant record every conversation with a subject. Preserving evidence in electronic form may add credence to the government’s case, but failure to record raises no constitutional defect; it does no more than possibly reduce the persuasive quality of the government’s case in the eyes of the jury.
Moreover, and contrary to defendants’ assertions, Weinberg was supervised extensively by the FBI. In an investigation that spanned many months and meetings all along the east coast, Weinberg was in virtually daily contact with Amoroso, and his recordings were delivered to the FBI for
*1231
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, and each reported regularly to their respective superiors in the bureau and the Department of Justice.
Finally, the ultimate “safeguard” in these cases was that the central part of the criminal conduct charged to each congressional defendant was recorded on videotape so that the jury could directly interpret, assess and evaluate its every nuance, its full flavor, its pervasive aura of corruption.
2.
Missing Tapes.
All defendants argue in one way or another that entire tapes or parts of tapes are “missing”. This argument is directed not to any videotapes, but only to audiotapes, most of which were recorded by Weinberg. In some instances, entire conversations were not recorded; Weinberg explained that he sometimes had conversations over the telephone when his recorder was not available, and that at other times he did not have blank tapes available. On occasion Weinberg recorded over a previously recorded conversation that he regarded as unimportant. There is no evidence that the recordings thereby erased were anything but what Weinberg judged them —unimportant. Once when he was flying to New York from Florida, a number of tapes, less than 10, were stolen from his flight bag, an incident he promptly reported to Amoroso. With some conversations the recorded portion does not begin until after the conversation had obviously begun; with others, the recorded portion ceases before the conversation ends.
All of these claims add up to an assertion that not every conversation during Abscam between Weinberg and various subjects was preserved in a recording. As already discussed,
20
however, this is not a constitutional defect. While it offered to defendants an argument to the jury as to the credibility of the government’s case, the argument did not prove to be persuasive.
The
Myers
defendants argue, in addition, that the “missing” tapes require an inference that they contained exculpatory material. However, they explain neither what effect the inference should have nor in what way the unrecorded conversations could exculpate any of the defendants. Nor did they request such a charge to the jury.
21
Perhaps defendants seek a “per se” rule that whenever a law enforcement agent fails to record a conversation the defendant automatically must be acquitted on the presumption that the unrecorded material would have totally exonerated him from guilt. Such an argument must be rejected out of hand as frivolous. Trials are a search for truth and fairness, not a game to be run by automatic, unrealistic rules. Absent even a hint of what benefit to defendants the information on the “missing” tapes would offer, the effect of any “missing” tapes ceased to be relevant upon the return of the juries’ verdicts.
3.
Verbal Insulation.
The
Myers
defendants argue that when a potential target in an undercover investigation merely states that he desires to act within the law, the government should be automatically foreclosed from any further investigation of him. Presumably, the basis for this argument is the law’s concern that an innocent person not be unlawfully entrapped into criminal conduct.
Defendants’ argument goes too far, however. If adopted, it would provide a corrupt politician easy insurance against any undercover investigation, for when the sug
*1232
gestión of improper conduct was raised, all the subject would have to do would be to invoke the magic incantation. “I desire to act within the law” and then plunge into his nefarious activities, confident that thereafter any statements or conduct by him would be immune from investigation. Such a
per se
rule would soon frustrate virtually all undercover law enforcement.
As presently viewed by the Supreme Court the law protects the innocent in an undercover investigation, not by honoring incantations of “verbal insulation”, but by making available the defense of subjective entrapment to be determined by a jury, always with power reserved to the court to set aside any conviction obtained by “outrageous” government conduct that disregards principles of fundamental fairness. It is not “outrageous” merely because the agents did not cease their efforts immediately upon a politician’s initial proclamation of honesty.
4.
Violations of Laws, Regulations and Guidelines.
Defendants argue that dismissal of the indictments is required because in the course of Abscam the government engaged in widespread and continuous violations of laws, regulations and guidelines. Significantly, they do not point to violations of the constitution, nor do they relate any of the claimed violations to any particular constitutional rights of these defendants. Instead, their arguments are aimed at the operation of Abscam in general.
It is clear, however, 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.
U.S. v. Morrison,
449 U.S. 361 , 101 S.Ct. 665 , 66 L.Ed.2d 564 (1981). In Justice White’s opinion, rare in the Supreme Court because it was unanimous, he noted
absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment [for a sixth amendment right to counsel violation] is plainly inappropriate, even though the violation may have been deliberate. This has been the result reached where a Fifth Amendment violation has occurred, and we have not suggested that searches and seizures contrary to the Fourth Amendment warrant dismissal of the indictment. 101 S.Ct. at 669 (footnotes omitted).
In support of the reference to the fifth amendment, Justice White cited
U.S. v. Blue,
384 U.S. 251 , 86 S.Ct. 1416 , 16 L.Ed.2d 510 (1966), where the Court had commented that so drastic a step as barring prosecution altogether for having acquired incriminating evidence in violation of the fifth amendment
might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book. 384 U.S. at 255 , 86 S.Ct. at 1419 .
Again, in
U.S. v. Payner,
447 U.S. 727 , 100 S.Ct. 2439 , 65 L.Ed.2d 468 (1980), a majority of the Supreme Court concluded that due process comes into play only when the governmental activity in question violates some protected right of the particular defendant. Violation of a third party’s right does not warrant court intervention on due process grounds.
The Second Circuit in
U.S. v. DeSapio,
435 F.2d 272 (CA2 1970),
cert. denied,
402 U.S. 999 , 91 S.Ct. 2170 , 29 L.Ed.2d 166 (1971), reached a similar conclusion when it commented:
The difficulty courts have had in explicating and marking the boundaries of the defense of entrapment, * * * suggests the inadvisability of attempting to develop a penumbral doctrine that would add to the many collateral issues now pervading criminal trials still another, a judicial determination whether the activities of an informer had passed some ill-defined acceptable bounds. Where, as here, there is no claim that the informer’s activity infringed any specific of the Bill of Rights or any statute of the United States relating to the conduct of investigations, and the competing considerations are such that we are unable to conclude
*1233
that it violates the “decencies of civilized conduct”, * * * such decisions had best be left to the executive branch, which is accountable for its conduct to congress. 435 F.2d at 281 (citations omitted).
In
U.S. v. Szycher,
585 F.2d 443 (CA10 1978), the Tenth Circuit also recognized a possible due process defense based upon outrageous conduct by law enforcement people. The informant there had used and distributed cocaine to others, had fraudulently solicited credit, had converted and stolen property, had failed to pay his just debts, had a past criminal record, and had been paid $300 a head by the government agents for each person he could bring into the drug trade. These factors, separately or together, were insufficient to warrant dismissal of the indictment, however, because they did not infringe any right of the defendant. To present a valid defense, the court held, the misconduct “must be postured as connected in some way to the commission of the acts for which the defendant stands convicted”. 585 F.2d at 447 .
Even with formal administrative regulations, violation does not require so mild a sanction as suppression of evidence,
U.S. v. Caceres,
440 U.S. 741 , 99 S.Ct. 1465 , 59 L.Ed.2d 733 (1979); much less could violation of regulations or guidelines require dismissal of an indictment.
Defendants point to certain “guidelines” for the conduct of undercover investigations that had been established by Attorney General Levi and that were referred to by Assistant Attorney General Heymann in his testimony before a congressional committee looking into Abscam after it went public. While many of those guidelines may have been aimed at producing “reliable” evidence, none of them alone expresses a constitutional standard.
From the justice department’s point of view, an indictment should not be brought without an excellent chance for a conviction; weak cases, therefore, are to be avoided. Most of the guidelines have the dual purposes of injecting basic fairness into the proceedings and of assuring a convincing case when the investigation is concluded. Failure of an investigator to follow any particular guideline or any combination of guidelines, however, does not authorize a court to invalidate a conviction. Mere weak spots in the government’s case are properly the subject of evidence and argument before the jury, as they were in these cases, and they may increase the chances of acquittal. But they neither guarantee nor warrant dismissal by the court.
Defendants also point to the failure by FBI agents to make the usual “302 reports” of some of the events which occurred in the course of the Abscam investigation. Amoroso made few, if any. His explanation was that he was working undercover and that the truly significant events in which he participated were fully recorded on tape, video and audio. For him, completing 302 reports that summarized conversations already fully recorded electronically would have been useless paperwork. While 302s are desirable, perhaps indispensable for the FBI to effectively function in its overall operations, their absence does not raise constitutional issues in these cases. Lack of documentation of the government’s investigation raises issues of credibility, but not of constitutionality.
5.
“Red Flags”.
Defendants argue that the justice department recklessly disregarded certain “red flags” which should have put them on notice that the investigators were “out of control”. The focus here is upon a series of claimed instances of Weinberg’s misconduct, coupled with certain warnings and questions that were raised about the investigation by Robert Del Tufo, United States Attorney for New Jersey, and two members of his staff, Robert Weir, and Edward Plaza.
First, as to the claimed misconduct by Weinberg, none of the instances, even if true, has any direct relationship to any protected right of these defendants. Except for the three expensive watches that Weinberg promptly turned over to the FBI, there is inconclusive evidence in the record about the gifts. The court is satisfied that DiLorenzo, Errichetti’s nephew, lied about
*1234
the microwave oven. The other evidence of gifts is simply unpersuasive.
It is true that Weinberg encouraged Errichetti and Rosenberg to provide forged certificates of deposit, supposedly to be used by the sheik as security for release of cash from his overseas banks. This technique, however, simply furthered the overall investigation and was carried on under the supervision • of and with the knowledge of the FBI. By convincing Errichetti and Rosenberg that Weinberg, Amoroso and the sheik were willing to act illegally, Weinberg carried forward the theme of the overall scam, and made his other overtures to them appear more credible. No social harm came from this conduct; the phony CDs were turned over to the FBI and were never used.
Similar considerations control Weinberg’s receipt from Errichetti of a letter forged over the signature of Senator Williams. Weinberg and Amoroso had told Errichetti that the new Arab businessmen who were considering buying the titanium mine would like confirmation in writing that Senator Williams would guarantee government contracts for purchase of the titanium after the sale, just as he had agreed to do for the original investors before the sale. Errichetti volunteered to supply such a document, indicating his willingness and ability to have it forged. There was no impropriety in Amoroso and Weinberg permitting Errichetti to go ahead when the only result was to have the forged document delivered to them. Indeed, the document constitutes powerful evidence of the depths of corruption to which Errichetti, an elected public official, has sunk.
Much attention at the due process hearings was focused upon the so-called “coaching incident” involving Weinberg, Errichetti and Senator Williams on June 28, 1979. Just before Williams was to meet the sheik, Weinberg and Errichetti spoke to him about the impending meeting and how they thought Williams should speak and act. Prior recorded conversations among co-conspirators Errichetti, George Katz, Alex Feinberg and Sandy Williams had revealed that Senator Williams was close-mouthed, reluctant to push his own position, and frankly unimpressive to the likes of Errichetti. Weinberg, of course, desired to have Williams appear before the sheik (and the hidden TV camera) without inhibition or restraint so that he would clearly reveal his position, made clear by him and his co-conspirators, that he would guarantee titanium contracts. In Weinberg’s conversation with Williams, which Weinberg recorded, he urged Senator Williams to impress upon the sheik how important and influential the senator was, that he should “come on strong”, that what he said was not important because Williams was “on stage for 20 minutes”. Weinberg told Williams “You gotta just play and blow your horn. The louder you blow and mention names, who you control * * Williams Ex. 14.
Defendants argue that this kind of “coaching” of subjects in advance of their appearances before the hidden cameras is grossly improper and typical of the overall conduct of Abscam. It is neither. While not to be condoned, because it creates a serious danger of unreliability, such conduct by Weinberg could be the basis for corrective judicial action only if it appeared that it actually had some effect upon Williams’ own behavior. When he testified at his own trial, however, Williams stated that he pat' no attention to what Weinberg had told him, and that when he appeared before the sheik he knew what he was going to say and he said it. Williams Tr. 4284-86. Moreover, Williams was not a weak, naive, inexperienced person. On the contrary his intelligence, strength and insight had carried him to the very heights of political prominence and power.
Nor was the “coaching” incident typical of Abscam. Except when on camera, at the meetings, Weinberg did not speak to any other of the congressional defendants at any time, let alone at the critical point just before the meetings. Thus, none of the present defendants can claim to have been directly affected by the Williams “coaching” incident, nor was there any pattern of
*1235
similar operations that in some way might be said to have affected the rights of these defendants.
22
Considerable evidence was presented at the due process hearing about a meeting at the home of special agent Larry Schneider in New Jersey, held on August 9,1979. The meeting was attended by Weinberg, Good, several FBI agents from New Jersey, and Plaza and Weir from Del Tufo’s office.
According to Plaza and Weir, Weinberg was criticized at that meeting for having given Senator Williams instructions prior to the June 28th meeting. This testimony was corroborated to some extent by two of the New Jersey FBI agents. Weinberg’s alleged response was that if he did not put words into the subjects’ mouths the government would never be able to make cases.
By the time of the due process hearing Plaza and Weir, and, of course, the defendants, urged that this incident with Williams constituted serious misconduct that jeopardized the entire investigation. Plaza and Weir testified that a serious argument developed between Plaza and Weinberg at the August. 9 meeting, and that “putting words in subjects’ mouths” became a major point of concern for the rest of the investigation.
There is no question but that some sparks were generated at the August 9th meeting. Plaza’s abrasive manner and blunt criticism caused Weinberg to argue with him and later even to threaten to quit Abscam if Plaza and the New Jersey prosecutors were going to run it. Even before the August 9th meeting Lawrence Scharf of the Eastern District strike force had cautioned Weinberg that he should not put words into the subjects’ mouths. Weinberg and Good disliked and distrusted Plaza and his participation in the investigation. Whatever may have been said at the August 9th meeting, over the ensuing months Plaza and Weir wrote several memoranda criticizing Ab-scam and its handling by Puccio’s staff in the Eastern District of New York, but the “coaching” incident received only passing reference. To the extent that Plaza and Weir urge that it was a continuing and active point of dispute, therefore, they are inaccurate. By the time of the August 9th meeting it was past history, and the technique was not thereafter repeated. The motivations for the conduct and testimony by Plaza and Weir and their superior, Robert Del Tufo, are discussed in section VIII,
infra.
6.
Use of Middlemen.
The congressional defendants uniformly complain of the government’s use of middlemen such as Criden, Errichetti and Silvestri. They characterize them as having been “deputized” so that the government could evade its own responsibilities. Under this argument, defendants urge that after it became apparent that Weinberg could not “coach” the subjects before they appeared on camera, the government then had Weinberg “coach” Criden, Errichetti and Silvestri so that the middlemen in turn could tell the congressional subjects what they were supposed to say and do when they met with the sheik’s representatives. In effect, defendants argue, the middlemen themselves were made representatives of the government, which now must answer for their misconduct.
To suggest that the government be held responsible for the criminal, corrupt, self-seeking machinations of Errichetti and Criden is ludicrous. Those men, as' well as Silvestri, smelled easy money to be made by bringing in corrupt politicians who would promise the sheik special favors in return for money. The government, of course, realized how venal and corrupt Errichetti and Criden were. From the agents’ point of view, the surprising thing was that any public official would do business with such people and, worse yet, permit himself to be brought into strange surroundings to dis
*1236
cuss private legislation with strangers representing foreign businessmen, and, worst of all, to accept money under those circumstances.
The government’s “use” of Criden, Errichetti and Silvestri 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 , 93 S.Ct. at 1643 . Like drug trafficking, trafficking in corrupt political influence is extremely difficult to detect. In a bribery transaction, as with a drug sale, both participants are satisfied with the result. There is no “victim”; each side receives what it requested. The ultimate victims of drug sales are the users who become addicted and enslaved to an extra-legal system that forces upon many of them a life of crime, misery and death. While less dramatic, the consequences of bribery are more insidious. No one suffers immediate pain; indeed, with a successful bribe, only the participants know it occurred. The overall consequences to society, however, are very dangerous.
As Judge Newman noted on a pretrial appeal in the
Myers
case,
[B]ribery is a secretive enterprise, not likely to be detected as long as the bribe giver and taker maintain their silence. A sting operation, it is urged, provides a needed law enforcement weapon. Finally, emphasis is placed on the high public interest in guarding against corruption in the legislative process. The known availability of a bribery sting can act as a powerful deterrent.
U.S. v. Myers,
635 F.2d 932, 939 (CA2 1980).
When public officials are as readily corrupted as were the defendants in these cases, the republic is in grave danger. Far more threatening to our national survival than any foreign enemy is corruption and rot at the center of our government. If legislative action by members of congress can be purchased with funds supplied by unseen foreigners, in jeopardy is the very core of our democratic government, faithful representation of citizens by their elected representatives.
Detection of bribery is difficult, if not impossible, unless either the one who offers or the one who receives the bribe cooperates with law enforcement. Because most bribes occur in secret, usually in a “one-on-one” situation, proof of such meetings by electronic recording is essential. In order to detect and successfully prosecute crimes of the type committed here, law enforcement officers must have considerable latitude to infiltrate the activity, to pose as persons willing to pay money for favors, to encourage others to produce corrupt politicians who will accept bribes, to present a misleading appearance by use, for example, of the “sheik” scenario, complete with yacht, airplane, private hotel suites and other trappings of wealth, and to secretly record the resulting bribe transactions. Middlemen are a necessary part of the overall investigative effort, for a corrupt politician would be most unlikely to respond directly to a stranger’s bribe overtures. More likely, he would prefer to work through a “bag man” or at least through someone in whom he has confidence, generated perhaps by past personal experience in similar matters.
In these Abscam cases, the government presented no independent evidence of any prior arrangements between these middlemen and the defendant congressmen. The government did have, however, confident assurances by the middlemen that they had the contacts and that they could and would produce congressmen ready to take bribes. With these defendants, those assurances must have been based on something more than mere hope, be it actual knowledge, past experience, or whatever. But on whatever the middlemen relied, it obviously combined with ready corruptibility on the part of the defendants.
The agents had no duty to independently verify the middlemen’s claims of access to corrupt congressmen; simply waiting to see what happened was verification sufficient to provide reliability. In some cases the middlemen’s claims proved unfounded; in others, however, as with these defendants, the claims sadly proved to be accurate.
*1237
Unlike the other congressional defendants, Thompson did not accept his money on the first offer. After he left the meeting, Criden argued extensively with Amoroso, claiming that there had been an earlier understanding between Criden and Weinberg that the payment could be made to Criden for later delivery to Thompson. When Amoroso made it clear that the payment would have to be made either directly to Thompson or to Criden in Thompson’s presence, Criden asked for a second opportunity to bring Thompson to them. That same evening he returned with Thompson who, then, readily accepted the money.
Although Thompson tries to make much of these differences, his rights were in no way infringed by these events. Placing these recorded meetings together, Thompson’s understanding of what was happening and his willingness to accept the bribe money were crystal clear to the jury and to this court.
Citing the interim meeting on October 9, 1979 wherein Criden, Weinberg and Amoroso discussed Thompson’s refusal of the money in his first appearance before the cameras, Thompson argues that the government in many ways improperly authorized Criden to misrepresent to Thompson what was going on. Such an interpretation of the interim meeting is misleading. A more accurate view is that Criden was disappointed by Amoroso’s failure to give up the money to Criden and Thompson, even though Thompson had not committed himself to assist the sheik on immigration.
In effect, what Amoroso and Weinberg did was to give Criden a second chance to demonstrate Thompson’s corruption. Perhaps he had not sufficiently prepared Thompson for the meeting; perhaps Thompson had temporarily lost his nerve. In any event, Criden said he was confident that proper assurances could be made and that delivery of the money could be made in Thompson’s presence based on those assurances. An overall evaluation of the two Thompson meetings, linked by the interim meeting between Criden, Amoroso and Weinberg, was uniquely a problem for the jury, and raises no constitutional issue.
Moreover, in the actual context of the trial, the events of October 9th were not the conduct for which Thompson was charged or convicted. They, together with the testimony by Congressman John Murtha, merely provided background to show that Thompson had aided and abetted Murphy in Murphy’s receipt of a $50,000 payoff at a subsequent meeting.
Ultimately, Thompson’s arguments come down to a contention that the evidence against him lacked reliability and was insufficient to prove beyond a reasonable doubt that he was aware that he was engaging in bribe activities. on October 9, 1979. However, reliability is provided by the videotaped episodes, and by the testimony of Congressman Murtha. What interpretation should be placed upon that testimony and upon what was said and done in front of the video cameras was a function for the jury. There was no way for the government to prove what Criden said to Thompson over the telephone or in Thompson’s office. Thompson, himself, testified to those conversations, but evidently the jury did not believe him. If these events failed to measure up to the justice department’s recommended guidelines, that might help the justice department determine whether or not a strong case was “made”, but it does not render Thompson’s conviction unconstitutional.
7.
Book-writing.
Defendants contend that their constitutional rights have been violated because of alleged book-writing activities by Weinberg, Puccio and a retired FBI agent, Neil Welsh. Agent Welsh had little contact with Abscam while it was going on, has not yet written a book, is not shown to be about to, and in any event, is a retired agent over whom the government has no control and for whom it has no responsibility.
Weinberg, himself, has not written a book, but did cooperate with one Robert Greene, who published a book in April 1981
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about Weinberg and Abscam.
23
Since Weinberg is not a federal employee, his conduct cannot be controlled directly. It may be, as defendants contend, that Weinberg surreptitiously obtained from FBI files copies of some of the photographs appearing in Greene’s book. There is no evidence, however, that the FBI or anyone from the Department of Justice assisted him in that activity. Most important, defendants have failed to show that Weinberg’s cooperation with Greene in any way infringed any right of the defendants, all of whom were tried and convicted before the book was published. In fact, the Greene book project may have actually assisted defendants, for they used information in Greene’s outline for the book as a basis for cross-examining Weinberg at trial and information taken directly from the book in an attempt to bolster their arguments on these motions.
The problems presented by allegations that Puccio agreed to author or co-author a book are different. Puccio was head of the Eastern District Strike Force all during Ab-scam, and he was the highest “line” agent of the justice department with direct, daily supervision of Abscam. He also prosecuted all three of the cases now under consideration as well as Senator Harrison Williams and Alexander Feinberg. Clearly and uniquely, he controlled and directed Ab-scam.
Defendants contend that Puccio agreed with Jack Newfield, an editor of
The Village Voice,
to write a book about Abscam. If true, such an agreement would be grossly improper, if not a criminal violation under at least the conflict of interest prohibition of 18 U.S.C. § 203 . Upon closer examination, however, defendants’ allegations have proved to be mere wishful thinking.
Newfield and Puccio have known each other since 1976 and became close personal friends in 1978 when both became fathers. They and their families have vacationed together; they meet frequently on a social basis. In the summer of 1979, Newfield, who has written a number of books on social topics, inquired of Puccio whether he would be interested in collaborating on a book about federal law enforcement based primarily upon Puccio’s experience in the Strike Force. Puccio’s response was that he might be interested someday, but could not consider it as long as he remained employed by the government. Newfield persuaded Puccio to meet once with Newfield’s literary agent, who, after discussing the book possibility with them, concluded that such a book would have only limited sales appeal. Nothing further was done about such a book. At that time, neither Newfield nor the literary agent knew anything about Ab-scam.
Newfield first learned of Abscam when it went public on February 2, 1980. Shortly after that, Newfield’s agent, recognizing the sales potential of an insider’s story on Abscam, asked Newfield if Puccio would collaborate on a book covering the investigation. Doubting that he would do so, Newfield nevertheless asked Puccio about it and received the expected reply, that Puccio could not even discuss the matter until the cases were closed and Puccio had left the department. Despite Puccio’s unwillingness, Newfield himself signed a contract with a publisher to write a book on Abscam, and the contract made provision for the possibility of an unnamed collaborator who would receive a substantial cash advance. Puccio did not know about the collaboration clause until January, 1981. Both Puccio and Newfield testified that there was no formal or informal agreement or understanding between them with respect to the collaboration clause, and the court believes them.
Obviously, Newfield and his publisher would like to have Puccio as a collaborator on a book about Abscam, as no doubt would many other authors and publishers. It is equally obvious to this court, after hearing both Newfield’s and Puccio’s testimony on the subject, that Puccio never agreed to write such a book, and he has never considered doing so as long as he remains an employee of the justice department. At all
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times Puccio has acted with complete integrity and propriety with respect to New-field’s overtures to him about such a book. Nothing in these circumstances in any way taints the integrity of Abscam, its resulting prosecutions, or Puccio’s handling of them.
8.
The “Asylum Scenario”.
There was some conflict in testimony in the various trials as to precisely how, when, where, and by whom the so-called “asylum scenario” was created. It may have been suggested by Weinberg in the spring of 1979. It may simply have occurred to Amoroso when he read of General Somoza’s problems in remaining in this country, problems +hat were extensively covered by the news media just one day before Criden and Errichetti arrived on the yacht in Florida to discuss casino financing. While the differences in testimony might be proper considerations for the jury in determining the credibility of Weinberg and Amoroso, the ultimate facts surrounding origination of the asylum scenario are immaterial to this case. Whether it came from Weinberg, or Amoroso, or someone else, makes no difference to any issue before the court, nor to any issue before the jury except credibility. The undisputed facts are that it was discussed on the yacht with Errichetti, who, on the plane ride back to Philadelphia discussed it with Criden, and that shortly thereafter Criden and Errichetti together began producing politicians who accepted the bribes offered to them.
C.
Weinberg and His Conduct.
Defendants focus a number of attacks on Melvin Weinberg, whose peculiar talents undoubtedly contributed much to the success of Abscam. Some of these arguments are dealt with in earlier sections of this decision,
e.g.,
VI-A-3, VI-B-1, VI-B-2, VI-B-5, VI-B-6 and VI-B — 7,
supra.
This part of the decision considers some of the remaining arguments against the government’s use of Weinberg in this investigation.
1.
Weinberg’s Criminal Background.
Defendants argue 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. For Abscam to have been successful, however, the investigation required a man of Weinberg’s unusual persuasive talents. He was an experienced con man, who in the past had successfully played the role of front man for wealthy Arabs, and who had numerous contacts in the gray world of those who associate with organized crime figures, influence peddlers, crooked businessmen and corrupt politicians. Clearly, Weinberg does not have the “pure” background one might reasonably expect in an FBI special agent. But it was precisely because of his unsavory background, his ability to lie convincingly, his understanding of the corrupt mind and his ability to imagine and execute a grand charade on the scale of Abscam that Weinberg was enlisted for the investigation. Further, Weinberg gave considerable credibility to the entire undercover operation; persons dealing with Weinberg in the context of Abscam could check him out with other sources and be wrongly assured that they were not dealing with government agents. Weinberg had a track record that no legitimate government agent could provide or falsify.
Moreover, the government was not required to find Weinberg “reliable”, as would be the case if he were an informant whose information was used to obtain a search warrant. As indicated elsewhere in this decision, section VI-A-6,
supra,
the basic reliability for the investigation, and ultimately for the prosecutions, was guaranteed by having the crimes committed on camera under circumstances guided by Agent Amoroso and closely supervised by Agent Good.
Defendant Murphy would analogize Weinberg’s prior “front fee scam technique” to his claimed solicitations of gifts and loans from subjects of the investigation. But even assuming that Weinberg in Abscam solicited gifts and loans, they were incidental to the scam and not the heart of the transaction. The focal point of the
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criminal transaction here was the substantial financial benefit of $50,000 delivered to the congressmen. While anything of value Weinberg received from defendants beyond the knowledge of the FBI may subject Weinberg to difficulties in his relationship with the FBI, that fact would not in any way alter or detract from the acts of the defendants. Throughout these trials, defense counsel sought to make Weinberg’s character and activities the key issue before the juries, thus distracting from the conduct and motivations of the defendants. These issues were unsuccessful “red herrings” at the trials, and they are “red herrings” still.
The court finds no constitutional infirmity in the government’s use of a person of Weinberg’s background as a central figure in this undercover operation.
2.
Weinberg’s Finances.
Defendants also urge that their due process rights have been infringed because of (a) the amount of money paid to Weinberg during the investigation and prosecutions, (b) a possible promise to Weinberg of a bonus at the end, and (c) the government’s failure to require Weinberg to pay income taxes.
There is no question but that Weinberg has been substantially compensated for his Abscam services. The total payments to him at the time of the
Williams
trial amounted to approximately $150,000. From approximately April 1979 to April 1981 he was paid by the FBI at the rate of $3,000 per month, plus expenses, plus certain bonuses in recognition of work perceived by the Bureau to be exceptional. In addition, Weinberg testified that he expected to receive a substantial additional payment when Abscam is concluded. He hopes it will be on the order of $100,000. Both Weinberg and the FBI agents deny that any bonus has been guaranteed to him or that any additional payments are conditional upon the ultimate success of the prosecutions.
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 (CA2 1979);
U.S. v. Szycher,
585 F.2d 443 (CA10 1978).
By cooperating with the government in establishing and operating Abscam, Weinberg has essentially devoted nearly three years of his life to this investigation. His personal safety is in serious jeopardy, and there is little that he can do in the future by way of either legitimate or illegitimate activity. His “career” as a con man has ended because he is so well known. Legitimate businessmen undoubtedly would shun him, because of his confessed criminal history and obvious talent for subterfuge, trickery and lying.
Whether his contribution to law enforcement in these cases and the personal sacrifices he 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 dis

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2368969. Public record. Not legal advice.