Petition — Lederer v. United States

— a

82-1183

a vos |

SUPREME COURT OF THE UNITED STATES

October Term, 1982

RAYMOND F. LEDERER.

Petitioner

o:

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE SECOND CIRCUIT

Timothy J. Savage

Timothy J. Savage,

A Professional Corporation

4714 Oxford Ave.

Frankford and Oxford Avenues

Philadelphia, PA 19124

(215) 537-4800

Attorney for Petitioner

THE LEGAL INTELLIGENCER, 10th & SPRING GARDEN STREETS, PHILA, PA 19123 (215) 236-2000 «<q

QUESTIONS PRESENTED

1. Did the Executive’s creating a scenario compati-

ble with the activities of an honest and effective

Congressman for the purpose of luring Members of Con-

gress into a criminal act, despite the absence of any rea-

son to suspect them of ongoing corruption or abuse of

office, violate the principles underlying the constitu-

tional doctrine of the “separation of powers” and the

Speech or Debate Clause of the Constitution?

2. Did the government’s conduct in the ABSCAM

operation and prosecutions, including its failure to su-

pervise and to control its informant and middlemen, ini-

tiation and participation in crimes, temptation of public

officials without any reasonable basis for believing they

were corruptible and failure to correct inadequacies and

questionable techniques when confronted with them,

reach the level of outrageousness and governmental

overreaching violating due process standards?

3. Did the prosecution’s evidentiary use of a finan-

cial report filed by petitioner in the House of Representa-

tives in the course of his official duties as a Congress-

man violate the Speech or Debate Clause of the

Constitution?

4. In an entrapment case, can the issue of the de-

fendant’s predisposition be determined without consid-

ering the interplay of governmental inducement and

predisposition, that is, by relying solely upon the defen-

dant’s committing the criminal act without regard to his

state of mind at the time when he was first approached

by the government’s agents and without regard to the

manner in which he was approached?

5. Is the entrapment defense available only to a de-

fendant who admits he committed the alleged crime?

6. If the Congress has the constitutional right to

punish its own Members and the Executive and the Ju-

diciary can punish them for the same offense, is the

Double Jeopardy Clause violated?

TABLE OF CONTENTS

Page

a svg. a'nl'g 046s. p04, 06 a kt i

EI ea ee te iv

aia ayo Ais Wk 5 04.0 4's b-0-¥ draws ]

rate Way ala ae)4 ane owe ea a8 oe ee 2

Constitutional and Statutory Provisions Involved . 2

MUMOUINOMNE GE CIO CASO wi tect c cee 4

Reasons For Granting The Writ ............... s)

The Implications Of The Government's

ABSCAM Investigation And Prosecution Of

Members Of Congress Upon The Separation Of

Powers Doctrine And The Speech Or Debate

Clause Of The Constitution Requires This

Court To Define The Constitutional Line Sepa-

rating The Executive And The Legisiative

Ee Cesena 656.6 0k sss 53065 50s 9 9

The Inability Of The Circuit Courts Of Appeals

To Define The Standards To Be Applied in

Disposing Of Due Process Challenges To The

ABSCAM Operation And The Conflict Among

The District Courts Regarding The Legality Of

ABSCAM Demonstrates The Need For This

Court To Explain And To Clarify Its Decision

In Hampton v. United States And To Deter-

mine Itself Whether The Government’s Con-

duct Was So Outrageous As To Invoke This

Court’s Supervisory Power ............... 14

The Dispute Among The Federal Courts Re-

garding Whether A Defendant's Predisposition

In An Entrapment Case May Be Proven Solely

By His Committing The Act Without Consider-

TABLE OF CONTENTS— Continued )

Page

ing The Governmental Inducement Requires

Resolution By This Court ................ 19

Whether Prosecutorial Use Of A Report Filed

By A Congressman In the House of Represen-

tatives Violates The Speech or Debate Clause

Of the Constitution Has Not and Should Be De-

COE TI SE 6 os ie tno eb eek 22

This Court Should Settle The Conflict Among

The Circuits On the Issue of Whether a De-

fendant Asserting An Entrapment Defense

Must First Admit the Elements Of the Crime

Charged, Including the Requisite Criminal In-

ee ry a ee re eT eae err Re oe 24

The Court Has Not Decided Whether The Dou-

ble Jeopardy Clause of the Constitution Has

Been Violated Where A Member of Congress

Has Been Subjected To Punishment By The

Executive And the Judicial Branches On the

One Hand And By the Congress On The Other

For the Same Offense ............000e00- 25

CI 25h oa nh ee ier aa ea Tats 26

wn

CITATIONS

Cases Page

Gravel v. United States, 408 U.S. 606 (1974) .... 23

Helstoski v. Meanor, 422 U.S. 477 (1979) ...... 22

Kilbourn v. Thompson, 103 U.S. 168 (1881) .... 23

Sherman v. United States, 356 U.S. 369 (1958) .. 19

Sorrells v. United States, 287 U.S. 435 (1932). 19,20

United States v. Alexandro, 675 F.2d 34 at 43 (2d

Sa EE x4 as 0 6ha Mesa Ke aaa Berens lace ack ee 1]

United States v. Brewster, 408 U.S. 501 (1972) 6, 10,

11

United States v. Greenfield, 554 F.2d 179 (5th Cir.

ae 3 RRP Pe ter ae Ary eure earn a Saag 25

United States v. Hampton, 425 U.S. 484(1976) 15, 18,

19, 22

United States v. Jannotti, 501 F.Supp. 1182 (E.D.

i PEED hs eee caeaa Ae 5, 15, 18

United States v. Jannotti, 673 F.2d 578 at 606 (3d

Cir. 1982) cert. denied, _.. ~ U.S. ____, 102

S.Ct. 2906, 73 L. Ed. 2d 1315 (1982) 13, 15,17

United States v. Johnson, 383 U.S. 169, 181(1966) 10,

11, 23

United States v. Kelly, 539 F.Supp. 363, 365-367

Ears AED 6 ok vines wane 5, 11, 15, 18, 21

United States v. Myers, 635 F.2d 932, 936 (2d Cir.

1980), cert. denied, 449 U.S. 956 (1980). 10, 13

United States v. Russell, 411 U.S. 423 (1973) 18, 19,

20, 22

United States v. Valencia, 645 F.2d 1158 (2d Cir.

MR es a ene ans Oe ae N Saas ota 25

TABLE OF CITATIONS—(Continued )

Cases Page

CONSTITUTION AND STATUTES:

JF oe ee. oe 2, 23

U.S. Comet. art. [, 66,clh 1........ 2, 9, 22

U8. Comet. amend. V.... 0.5 c ccc: 3, 26

United States Code, Title 18:

eee Vouyer 3,8

Ss Loaf | 3, 8

ede |: a 3, 8

ok a 4,8

United States Code, Title 28:

LS So S| § } rr 2

Rules of the House of Representatives, Rules

XLVII, 95th Cong., 2d Sess. 635-36 (1979) .. 23

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

RAYMOND F. LEDERER,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner Raymond F. Lederer respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Second Circuit entered in this case on September 3,

1982.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Second Circuit, affirming the opinion of the

United States District Court, is reported at 692 F.2d 823

(2d Cir. 1982).' A copy of the opinion is printed in the

Appendix at A.1-81.

1. Parties Involved: In addition to the parties to this Petition,

the judgment of the United States Court of Appeals for the Second

Circuit affected Michael O. Myers, Angelo J. Errichetti, Louis

]

2

The opinion of the United States District Court for

the Eastern District of New York, which was affirmed by

the appellate court panel, is reported at 527 F.Supp.

1206 (E.D.N.Y. 1981). A copy of this opinion is printed

in the Appendix filed with the Petition for Writ of

Certiorari in the related case of Frank Thompson, Jr. vs.

United States, which is incorporated herein. Thompson

Appendix, 84A.

JURISDICTION

On September 3, 1982, the United States Court of

Appeals for the Second Circuit affirmed the judgment of

the District Court. A.82. A petition for rehearing with

suggestion for rehearing in banc was denied on Novem-

ber 17, 1982. A copy of the judgment denying rehearing

is reprinted in the Appendix at A.83-4. This Court’s

jurisdiction is invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution:

Article I, §5, cl. 2:

“Each House may determine the rules of its

Proceedings, punish its Members for disorderly Be-

havior, and, with the Concurrence of two-thirds, ex-

pel a Member.”

Article I, §6, cl. 1:

“.. . for any speech or debate in either House,

they [Senators and Representatives] shall not be

questioned in any other Place.”

NOTE — (Continued)

Johanson and Howard Criden (Docket nos. 81-1342, 81-1343, 1344,

and 1446), Frank Thompson, Jr. and John M. Murphy (Docket nos.

81-1345 and 1346). The court below issued a single opinion and judg-

ment incorporating all of these appeals. A.1-83.

Amendment V:

“No person shall... . be deprived of life, liberty

or property without due process of law; . . .

“.. . nor shall any person be subject for the

same offense to be twiced put in jeopardy of life or

limb; .. .”

United States Code, Title 18:

§201. Bribery of public officials and witnesses

(c) Whoever, being a public official or person

selected to be a public official, directly or indirectly,

corruptly asks, demands, exacts, solicits, seeks, ac-

cepts, receives, or agrees to receive anything of

value for himself or for any other person or entity, in

return for:

(1) being influenced in his performance of

any official act; or

(2) being influenced to commit or aid in

committing, or to collude in, or allow, any

fraud, or make opportunity for the commission

of any fraud on the United States; or

(3) being induced to do or omit to do any

act in violation of his official duty; or

(g) Whoever, being a public official, former

public official, or person selected to be a public offi-

cial, otherwise than as provided by law for the prop-

er discharge of official duty, directly or indirectly

asks, demands, exacts, solicits, seeks, accepts, re-

ceives, or agrees to receive anything of value for

himself for or because of any official act performed

or to be performed by him.

§371. Conspiracy to commit offense or to defraud

United States

If two or more persons conspire either to com-

mit any offense against the United States, or to de-

fraud the United States, or any agency thereof in

any manner or for any purpose, and one or more of

such persons do any act to effect the object of the

conspiracy, each shall be fined not more than

$10,000 or imprisoned not more than five years, or

both.

§1952. Interstate and foreign travel or transporta-

tion in aid of racketeering enterprise

(a) Whoever travels in interstate or foreign

commerce or uses any facility in interstate or for-

eign commerce, including the mail, with intent to—

(1) distribute the proceeds of any unlawful

activity; or

(2) commit any crime of violence to further

any unlawful activity; or

(3) otherwise promote, manage, establish,

carry on, or facilitate the promotion, manage-

ment, establishment, or carrying on, of any un-

lawful activity,

and thereafter perforiis or attempts to perform

any of the acts specified in subparagraphs (1),

(2), and (3), shall be fined not more than

$10,000 or imprisoned for not more than five

years, or both.

STATEMENT OF THE CASE

Petitioner Raymond F. Lederer, while a Member of

the United States House of Representatives, was investi-

gated and indicted for charges arising from the govern-

ment’s infamous ABSCAM operation. As were six other

Congressmen in separate trials, petitioner was convicted

of accepting money in return for promising to introduce

private immigration bills.

In early 1978, the Federal Bureau of Investigation

(“FBI”) created ABSCAM to recover stolen art and secu-

rities. To give the illusion of a legitimate business opera-

5

tion, the FBI created Abdul Enterprises of which two fic-

titious sheiks were the owners. The company had an office

in Holbrook, New York and a phony bank account in

Chase Manhattan Bank. Melvin Weinberg (“Weinberg”)*

and FBI Agent Anthony Amoroso (“Amoroso”), who

used the name “Tony DiVito”, were portrayed as the

sheik’s representatives. In short, everything was done to

convey the impression of wealthy Arabs interested in

business ventures.”

Eighteen months after its inception, the operation

designed to “sting” orgar.ized crime figures in their on-

going criminal endeavors evolved into a pursuit of

elected officials for the purpose of placing them in a

criminal scenario created by the government. This per-

version of ABSCAM began during a phase of the oper-

ation’s investigation of the role of organized crime in the

casino industry in Atlantic City. One of the persons to

come into contact with the undercover operatives was

Angelo Errichetti (“Errichetti”), the Mayor of Camden

and a New Jersey State Senator. He bragged to

Weinberg and the agents of his political connections in

New Jersey. He assured them he could pave the way for

the “sheik” to obtain a casino license. At that point, ef-

forts were made to identify and to record illegal pay-

ments to public officials who Errichetti claimed would

help them secure the license.

Ata meeting on a yacht, Errichetti introduced to the

“sheik’s representatives” Howard Criden (“Criden”) and

2. The FBI employed the talents of Weinberg, a convicted

swindler and confidence man, at a salary of $3,000.00 a month. He

was a professional con man retained by the federal government to

commit white collar crime. So long as ABSCAM was alive,

Weinberg received his salary and expenses.

3. The nature of the operation is graphically described by Dis-

trict Judge George C. Pratt in his opinion at 527 F. Supp. at 1209-

10. A,10-12. How it worked was also described by the various dis-

trict court judges in other ABSCAM cases. For example, United

States v. Kelly, 539 F. Supp. 363, 365-367 (D.D.C, 1982); United

States v. Jannotti, 501 F. Supp. 1182 (E.D. Pa. 1980),

6

Louis Johanson (“Johanson”), two Philadelphia lawyers

representing a client who owned property in Atlantic

City which he wished to develop. The purpose of the

meeting was to discuss a legitimate business venture in-

volving the sheik’s building a casino on the client's prop-

erty. During the cruise, Amoroso had a private conversa-

tion with Criden and Errichetti. The agent told the

mayor that the sheik was concerned about his employ-

ees and wanted political protection in the event they

were forced to leave their country. Amoroso later ad-

mitted that what he had in mind were Congressmen."

Errichetti assured Amoroso it could be done.

On the plane trip home, Errichetti and Criden

talked of the sheik’s willingness to pay for introductions

to people with political titles. Errichetti suggested

Criden enhance his client's casino deal by contacting

officials to introduce to the sheik. He added that they

would not be asked to do anything.

Back in Philadelphia, Criden told Johanson and an-

other law partner, Ellis Cook, of his conversation with

Errichetti and Amoroso. He asked Johanson, a City

Councilman and a ward leader, to get in touch with two

Philadelphia Congressmen with whom he had a political

relationship.

One of the Congressman whom Johanson knew

was Congressman Lederer, the petitioner. At the end of

July, Johanson asked Lederer to meet with the sheik to

talk about immigration matters and foreign investments

in his district. Johanson told Lederer that Johanson’s law

firm could make a fee for the introduction. According to

Cook, when Johanson told Lederer that the firm would

receive $50,000.00, the Congressman told him he would

be glad to do it for his friend Johanson and “all he

4. Amoroso testified before Judge Fullam and Judye Pratt that

he originated the idea of trying to bribe public officials to assist the

sheik in immigration matters. A.13 fn. 4. Before Judge Pratt. he

stated unequivocally that he was after Congressmen specific

7

wanted was a $5,000.00 contribution for the spring pri-

mary”. Johanson never told him that the sheik wanted

him to or he had to sponsor legislation.

On September 11, 1979, Lederer arrived in New

York where he was met by Johanson and Criden who

drove him to the Hilton Inn. Errichetti accompanied

Lederer to the meeting with the sheik’s representatives.

As Weinberg told him to do, Errichetti instructed

Lederer how to act at the meeting.

After Lederer was introduced to Weinberg and

Amoroso, he wasted no time in telling them what his pri-

ority was. He was interested in the port of Philadelphia

and had obviously been told they were too. Throughout

the entire meeting, Lederer reiterated his interest was

bringing the sheik’s money into Philadelphia.

The sheik’s investing in the port and Philadelphia

translated into employment for Lederer’'s constituents.

He could not have been clearer when Lederer said, “Put

my people to work and I'll show you what I can do”.

The sheik’s representatives assured Lederer of their

employer's intentions of investing in Philadelphia.

Amoroso assumed Errichetti had made this clear to him.

Amoroso, in his role as president of Abdul, gave Lederer

the impression that he would put the Congressman’s

“people to work”. He certainly wanted Lederer to believe

that the sheik was going to invest in America and was

going to have his people working in Philadelphia. When

Lederer said loyalty was a two-way street, Amoroso re-

plied, “that’s why we're gonna come into Philadelphia”.

In fact, the whole conversation was about the sheik com-

ing to America to live and to invest in Philadelphia.

In this context, Lederer was willing to assist the

sheik and his family as he had done for others in the

past. However, before doing so, certain other conditions

had to be met. First, the sheik had to be humanitarian

and not an undesirable. Second, Lederer wanted to meet

him.

8

Near the end of the meeting, the discussion was

about arranging a meeting with the sheik himself, Then,

after Lederer got up and was on his way out, Amoroso

handed him a package containing $50,000.00, which

was given to the lawyers whom Lederer understood

were to receive a substantial fee, The lawyers, after

giving Errichetti $20,000.00 and the sheik's representa-

tives $5,000.00 and after placing $5,000.00 in an enve-

lope marked for Lederer, split the money among them-

selves. The distribution of the fee was done outside of

Lederer's presence,

Four months later, the news of ABSCAM broke,

The government, in what the Department of Justice

later admitted was “plainly prohibited by Department

Regulations, FBI Operating Procedures, and the Code of

Professional Responsibility”, leaked the names of all

public officials implicated in the ABSCAM operation to

the news media, Thereafter, the public was inundated

with statements and opinions of government officials

and prosecutors, By the time Lederer stood trial,

ABSCAM was a household word,

On May 28, 1980, Lederer was indicced in the East-

ern District of New York for bribery, 18 U.S.C, §201(c),

accepting an illegal gratuity, 18 U.S.C, §201(g), violat-

ing the Travel Act, 18 U.S.C, §1952, and conspiracy, 18

U.S.C, §371, Although he had been indicted with thre»

others, Lederer stood trial alone.”

At his trial, Lederer argued that he had been

entrapped, A,25-27. The government introduced no ex-

trinsic evidence of Lederer's predisposition. It relied to-

tally upon a video tape of Lederer's forty-five minute

meeting with the undercover operatives,

After the jury's guilty verdict, the district court

conducted extensive hearings to determine if the due

5. Indicted with Lederer were Errichetti, Johanson and Criden.

They were severed from Lederer after their cor setions in a similar

case involving Congressman Michael O, Myers.

9

process rights of Petitioner and the other ABSCAM de-

fendants convicted in that jurisdiction were violated, In

addition, it considered testimony from other proceedings

involving ABSCAM, A.8-9. The district court ruled that

there were no «rial errors and Lederer's due process

rights were not violated by the government,

On appeal, the United States Court of Appeals for

the Second Circuit, by a panel of three circuit judges,

upheld the district court's findings while conceding that

the government's conduct in ABSCAM was subject to

criticism, A.82. Petitioner sought a rehearing before the

Second Circuit sitting in banc, On November 17, 1982,

Petitioner's request for rehearing was denied, A.84,

REASONS FOR GRANTING WRIT

I. The Implications Of The Government's ABSCAM Inves-

tigation And Prosecution Of Members Of Congress

Upon The Separation of Powers Doctrine And The

Speech Or Debate Clause Of The Constitution Re-

quires This Court To Define The Constitutional Line

Separating The Executive And The Legislative

Branches.

The ABSCAM operation, as it focused upon Mem-

bers of Congress, invokes the constitutional doctrine of

the separation of powers and the Speech or Debate

Clause of the Constitution.” Because it raises serious

questions affecting the independence of the Legislative

Branch, it impacts upon the American system of govern-

ment.

The issue is not whether the Executive can pros-

ecute a member of the Legislative Branch, That ques-

tion was resolved by this Court more than a decade ago

in United States v, Brewster, 408 U.S, 501 (1972),

where a divided Court held that the Speech or Debate

6. U.S, Const. art, 1, §6, cl.1,

10

Clause did not immunize Congressmen from prosecu-

tion for bribery offenses,

The issue now arising from ABSCAM is whether

the Executive can instigate and create the crime itself

for the purpose of incriminating members of the Legisla-

tive Branch by tempting them without any reason to be-

lieve they were predisposed to commit a crime and then

prosecuting them for it, The same dangers of a poten:

tially vindictive Executive recognized by the Second Cir-

cuit itself in United States v, Myers, 635 F.2d 932, 936

(2d Cir, 1980), cert, denied, 449 U.S, 956 (1980) and

this Court in United States v, Johnson, 383 U.S, 169,

181 (1966) and in Brewster, supra at 521-523, demand

an examination of the government's conduct of an un-

dercover operation aimed at members of the Legislative

Branch,

The Second Circuit held that “the Constitution does

not provide Members of the Legislative Branch with any

extra protections beyond those guaranteed to all citi-

zens”, A.25, Consequently, it concluded that the Execu-

tive was not required to have a reasonable suspicion or

probable cause of a Congressman’s criminal activity or

propensity before attempting to engage him in a crimi-

nal venture, The remedy for a legislator in such a situa.

tion, according to the panel, is “the traditional defense of

entrapment”, A.25, Therefore, it held that the Executive

was free “to test the virtue of Members of a coordinate

branch of government”, A,25,

The focal point of the Second Circuit's analysis was

the individual Congressional defendant and not the deli-

cate balance between the Executive and the Legislative

Branches, In this particular case, the more compelling

issue is the American constitutional scheme of govern-

ment, As this Court has said, “The immunities of the

Speech or Debate Clause were not written into the Con-

stitution simply for the personal or private benefit of

Members of Congress, but to protect the integrity of the

legislative process by insuring the independence of indi-

vidual legislators”. United States v. Brewster, 408 U.S.

501 at 507 (1972). See also, United States v. Johnson,

383 U.S. 169 (1966).

In analyzing the fundamental fairness of ABSCAM

as it affected petitioner, who at the time of the New York

meeting and his trial was a Congressman, one must con-

sider that FBI Agent Anthony Amoroso and informant

Melvin Weinberg actively sought to lure “Congressmen”

before the cameras, the bait included financial invest-

ment in their Congressional districts and employment

for their constituents,’ the expectation was that the

Congressmen would agree to assist the wealthy inves-

tors immigrate into this country, and the Congressmen

had never previously abused their office.” In short, in as-

sessing the validity of the Executive's actions in luring

the Congressmen from the halls of Congress for the pur-

pose of testing their virtue,’ the Court must consider

that the government agents created a scenario compati-

ble with the activities and duties of an honest and effec-

tive Congressman.

Without any reason to believe there was ongoing

corruption in the Congress,'” the Executive Branch ac-

7. In his analysis of the claims made by Congressman Richard

Kelly, Judge Bryant observed that the formula used to attract the

officials “included a strong legitimate attraction”. United States v.

Kelly, 539 F.Supp. 363, 371 (D.D.C. 1982)

8. Judge Pratt found “no evidence .. . that any of the defend-

ant congressmen committed any prior 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”.

Thompson Appendix, 148A. See also, United States v. Kelly, supra

at 471.

9. Judge Bryant found that the “sole objective of the operation”

wus to test the virtue of Members of Congress. United States v.

Kelly, 539 F.Supp. at 373. In another Second Circuit ABSCAM

cause, Judge Kaufman said the operation was set up “to test the faith

of those in the high echelons of government”. United States v.

Alexandro, 675 F.2d 34 at 43 (2nd Cir. 1982).

10. Both the Second Circuit and the district court acknowl-

edyed the absence of any reason to suspect the Congressional de-

fendants of prior criminal inclinations. A.25. See also, United States

v, Kelly, 539 F. Supp. at 371.

12

tively went after members of the Legislative Branch in

an effort to obtain incriminating words and deeds result-

ing in their prosecution and fall from power. Permitting

the government agents to pursue members of the Legis-

lative Branch without any basis to believe they are cor-

rupt and to create criminal activity for the purpose of im-

plicating them in criminality created by the Executive

Branch crosses the line separating the two powers. We

do not dispute that the investigation of reputed or sus-

pected corrupt Members of Congress and the use of un-

dercover operé ives in such an investigation are legiti-

mate. However, creating crime to ensnare or to tempt

innocent legislators is not.

The danger is obvious. It makes possible for a vin-

dictive or manipulative Executive to destroy or to intimi-

date a Senator or a Congressman who does not share the

same political philosophy or does not support the pro-

grams of the Administration.

It has been alleged that the Congressmen and the

Senator implicated in ABSCAM were targeted because

they did not support President Carter and instead sup-

ported Senator Kennedy as the Democratic nominee for

President. Certainly, no one has proven nor probably

ever will prove the allegation. What is possible is that a

device such as ABSCAM, if it is tolerated and given the

imprimatur of the Judicial Branch, could be the vehicle

for such political reprisals and threats in the future.

The possibility that the Executive can contort or

mold legitimate activity into the basis for prosecution in-

timidates and dampens the independence of the Legisla-

tive Branch. Faced with the potentiality of an ABSCAM

Executive, Congressmen will be reluctant to engage in

dialogue with their constituents, impairing their overall

function. Thus, to allow the government's agents, with-

out any scintilla of evidence of a pattern of bribe-taking

among Congressmen in general and of any indicia of

predisposition of a particular Congressman to take a

bribe, to create crimes in a perfectly legitimate scenario

13

in order to ensnare Congressmen has a chilling effect on

the effective relationship between a legislator and his

constituents.

Another danger is that the Executive can use the

artiface of an investigation to inquire into a legitimate

legislative act. He may do so for purely political reasons.

Using investigators posing as constituents, the Execu-

tive could surreptitiously question a Congressman’s per-

formance of his official acts and his reasons for voting for

particular legislation. Thus, the guise of an investigation

could provide a device to defeat the purpose of the

Speech or Debate Clause.

The mere ability to investigate any Congressman or

Senator it wishes invests the Executive with enormous

power to eliminate opposition. Even if the investigation

reveals no wrong doing, the harm may be done. In a

world where public opinion is so influenced by the news

media, one cannot underestimate the devastating effect

of the mere disclosure of an investigation upon a public

official. The results, no matter what they are, come too

late.

To hold that the safeguard against such govern-

mental abuses is the ability of a Member of Congress to

say “no”, as suggested by both the Second and Third

Circuits,'! is overly simplistic and unrealistic. We do not

live in a world of perfect and infallible human beings.

Everyone is vulnerable to temptation. Public officials are

susceptible to the same probiems and pressures as ev-

eryone else. Thus, the question arises — shall the Exec-

utive be permitted to exploit human frailties for political

benefit?

Will allowing the Executive Branch to go after legis-

lators who have enjoyed excellent reputations and have

never been suspected of corruption undermine that

11. United States v. Myers, 635 F.2d 932 at 939 (2d Cir. 1980)

cert. denied, 449 U.S. 956 (1980); United States v. Jannotti, 673

F.2d 578 at 606 (3d Cir. 1982) cert. denied, ___s—~U.S. ___, 102

S.Ct. 2906, 73 L. Ed. 2d 1315 (1982).

14

“bedrock of our political system” — the doctrine of the

separation of powers? With its unlimited resources, the

administration could relentlessly seek the opposition’s

breaking point. Once having found it, the Executive

could destroy or cripple the legislature.

Where should the line be drawn? Unfortunately, in

this case, the Second Circuit panel did not draw the line

separating the two powers, that is, the Executive and the

Legislative Branches. Though cognizant of the inherent

dangers of political reprisal, it merely stated that the gov-

ernment did not cross the forbidden line. In not defining

the permissable limits of the Executive’s power to inves-

tigate members of Congress for crimes that it created,

the Second Circuit has left the door open for a vindictive

or manipulative Executive to destroy or to intimidate an

unsympathetic legislator or even a hostile Congress.

The task of delineating the rights and the preroga-

tives of two coequal branches of government cannot be

left to the Executive or the Legislative Branch as sug-

gested by the Second Circuit. A.79. It is not for the Con-

gress to decide whether ABSCAM was illegal. The inter-

pretation of constitutional principles rests solely with the

Judiciary. Consequently, it is the Judicial Branch which

must accept the responsibility of protecting the constitu-

tional doctrine of the separation of powers and insuring

the independence of the Legislature.

How the ABSCAM objectives, methodology and

possibilities are treated by this Court shall become the

rubric for all future undercover operations affecting the

Congress. If this Court fails to consider the constitu-

tional implications of ABSCAM, it will give its tacit ap-

proval to future investigations of possibly a greater scope

and extent into the Legislative Branch.

II. The Inability Of The Circuit Courts Of Appeals To

Define The Standards To Be Applied In Disposing Of

Due Process Challenges To The ABSCAM Operation

And The Conflict Among The District Courts Regard-

15

ing the Legality Of ABSCAM Demonstrates The Need

For This Court To Explain And To Clarify Its Decision

In Hampton v. United States And To Determine Itself

Whether The Government’s Conduct Was So Outra-

geous As To Invoke This Court’s Supervisory Power.

The unprecedented ABSCAM operation has been

the subject of national debate. The law enforcement

techniques employed by the FBI have been severely

criticized by people in and out of government. In fact,

the government’s conduct in ABSCAM has been con-

demned by circuit judges'* and district judges.'* Thus,

before such techniques, especially when employed to

ensnare a member of the Legislative Branch, receive a

final stamp of approval, this Court should examine the

government’s ABSCAM investigation in light of its im-

pact upon the due process rights of the individuals in-

volved and, at the same time, define what the Hampton

“due process analysis”'* requires.

Despite a professed commitment to protect the

rights of individuals against the dangers inherent in

undercover operations using informants, the Depart-

ment of Justice failed miserably to follow its own guide-

lines in the ABSCAM investigation. The operatives went

uncontrolled and unsupervised, they initiated crimes,

they failed to monitor and to direct the activities of

informant Melvin Weinberg and other middlemen, they

tempted public officials without any reasonable basis for

believing they were corruptible, they deputized middle-

12. See, United States v. Jannotti, 673 F.2d at 612 (Judges

Aldisert and Weis dissenting).

13. See, United States v. Jannotti, 501 F.Supp. 1182 (E.D. Pa.

1980); United States v. Kelly, 539 F.Supp. 363 (D.D.C. 1982). In

another case involving Congressman Jenrette, Judge Penn report-

dly has been critical of the government's conduct in ABSCAM.

ever, he has yet to issue an opinion.

United States v. Hampton, 425 U.S. 484 (1976).

16

men to set up and bring in the victims of the scam and

they failed to correct inadequacies and questionable

techniques when confronted with them — all of which

were in contravention of the Justice Department’s own

guidelines and contradicted what Assistant Attorney

General Heymann swore were the procedural safe-

guards employed in such operations and in ABSCAM

specifically.

A Senate select committee investigating the

ABSCAM operation found that Weinberg shared in at

least one and probably more bribes intended for an offi-

cial, repeatedly lied under oath during the ABSCAM ti-

als and grand jury proceedings, received unauthorized

gifts, failed to record all his conversations with suspects,

continually duped his FBI superiors and was laxly su-

pervised. The committee concluded that the FBI's con-

duct of the investigation “created unnecessary and

undue risks to civil liberties”.'°

Despite their dismissing due process attacks upon

the convictions of ABSCAM defendants, both the Sec-

ond and Third Circuit Courts conceded that the govern-

ment’s conduct in ABSCAM was not unquestionable

and was subject to criticism.'® How the appellate courts

reconciled their own reservations about the govern-

ment’s conduct in ABSCAM and their ultimate conclu-

sion that it did not violate the defendant's due process

rights is unclear.

15. It would be impossible to catalog the multitude of in-

stances of illegalities, improprieties, irregularities and inadequacies

of the government’s conduct in ABSCAM within the space

permitted. Suffice it to refer to a sampling of the findings and criti-

cisms of those who have examined ABSCAM. Only a full review on

certiorari will reveal the totality of the government's overreaching.

16. Judge Newman wrote, “We are not passing judgment on

the wisdom of the ABSCAM investigation, nor on whether the

means by which is was conducted conformed to internal adminis-

trative standards of the Department of Justice or to other standards

that the Executive Branch might choose to adopt or the Legislative

Branch might require. . . . The conduct of the investigation, though

17

While recognizing that this Court has established a

separate constitutional defense based upon due process

principles where the government’s conduct and partici-

pation in criminal opportunities created by it is so outra-

geous as to require the acquittal of even a predisposed

defendant, both the Second Circuit and the Third Cir-

cuit failed to clearly define the standard of outrageous-

ness against which they tested the ABSCAM operation.

It is obvious that they were not sure of the standards

required in the due process analysis. In fact, the Third

Circuit majority acknowledged the elusiveness of a defi-

nition. It stated:

“If the contours of the entrapment defense are

imprecise, we have at least been able to make an ef-

fort to delineate them. A similar delineation of the

conduct circumscribed by the due process defense

is, at best, elusive. Part of the difficulty stems from

the differing views by those who must interpret the

constitutional standard as to what are ‘immutable

and fundamental principles of justice.’” United

States v. Jannotti, 673 F.2d 578 at 606 (3d Cir.

1982).

Likewise, the Second Circuit found the definition

lacking. In fact, it appeared that the panel did not know

what the boundaries were. Throughout its opinion, the

panel referred to the “outrageous” or due process stand-

ard as a vague concept. For example, in discussing the

government’s conduct, Judge Newman stated:

subject to some criticism, affords no basis for rejecting the convic-

tions”. A.79-80.

Similarly, the Third Circuit warned that its decision in the

Jannotti case should not be considered an “imprimatur either of ap-

proval or disapproval on the government's conduct”. The majority

indicated that it had differing views as individuals on the “necessity

advisability of the entire ABSCAM project”. 673 F.2d at 610.

18

“Whatever may be the due process limit of gov-

ernmental participation in crime, it was not reached

here”, (Emphasis supplied), A.29.

“Whatever conduct might transgress the stand-

ard outlined in Hampton and Russell, the facts of

the investigation are not even close to the line”.

(Emphasis supplied), A.41,

“Perhaps at some point deliberate governmen-

tal efforts to render ambiguous events over which

agents can exercise considerable control would

transgress due process limits of fundamental fair-

ness. Wherever those limits [due process} might be,

they have not been crossed in these cases”, (Em-

phasis supplied). A.43,

Yet, two district judges, Judges Fullam and Bryant,

who had the opportunity to assess the credibility of the

witnesses during extensive hearings, found that the

bounds of fair play had been © <ceeded and the govern-

ment’s conduct was outrageous. In their view, the due

process standard had been violated. See, United States v.

Jannotti, 501 F.Supp. 1182 (E.D. Pa, 1980); United

States v. Kelly, 539 F.Supp. 363 (D.D.C. 1982),

This uncertainty with respect to the definition and

the parameters of the “due process” defense is under-

standable. Since this Court's decision in Hampton, there

has been no articulation of what constitutes “outra-

geous” conduct so as to invoke the judiciary'’s supervi-

sory power over law enforcement and the administration

of justice. Though district courts and circuit courts have

entertained such claims, the Supreme Court has not de-

cided any case involving the entrapment and due proc-

ess defenses in the context of an undercover operation of

the scope and extent of ABSCAM. This case presents the

opportunity for this Court to issue the definitive word on

the parameters of these defenses and the differences be-

tween them. In addition, it points out the need for this

Court to establish the limits and standards of law en-

19

forcement activities in the government's instigation of

crimes which it intends to prosecute,

III. The Dispute Among The Federal Courts Regarding

Whether A Defendant's Predisposition In An Entrap-

ment Case May Be Proven Solely By His Committing

The Act And Without Considering The Governmental

Inducement Requires Resolution By This Court

Where a defendant has been induced to commit a

crime by the government's agents, he cannot be con-

victed unless he was “predisposed”. United States v.

Hampton, 425 U.S. 484 (1976); United States v, Rus-

sell, 411 U.S, 423 (1973); Sherman v, United States, 356

U.S. 369 (1958); Sorrells v, United States, 287 U.S, 435

(1932). Thus, the government must prove beyond a rea-

sonable doubt that the defendant possessed a criminal

predisposition when the government agents presented

him an opportunity to commit the crime. Sorrells v.

United States, 287 U.S. at 442.

What is “predisposition” and how to determine a

person's predisposition are questions which have

plagued the courts. Admittedly, proving a defendant's

predisposition may be difficult. Nevertheless, because

there is lacking any evidence of prior bad conduct or rea-

sonable suspicion of criminal intent does not excuse the

government from proving criminal predisposition, To

rely solely upon a defendant's action at the time of the

commission of the crime relieves the government of its

burden and effectively eliminates the entrapment de-

fense because it ignores the equally important factor of

governmental inducement.

Entrapment occurs when the government agents

“implanted the criminal design in the mind of the de-

fendant”. The inducement causes the act. Conse-

quently, it is when the inducement is made and not

when the subsequent action occurs that is the relevant

time frame for determining a defendant's predisposition.

20

Equally important is the inducement itself, that is, the

type of and manner in which the inducement is pre-

sented, Thus, any attempt to determine predisposition

without a full evaluation of inducement is worthless.

Lederer requested the standard jury instruction on

the law of entrapment as approved by this Court in

United States v, Russell, 411 U.S, at 427. He requested

that the jury be instructed to acquit him if it had a rea-

sonable doubt whether he had “the previous intent or

purpose to commit any offense of the character here

charged, and did so only because he was induced or per-

suaded by some officer or agent of the government”,

Over Lederer’s objection, the trial judge instead in-

structed the jury that the defense applies only to a per-

son who was “unwilling to commit an unlawful act until

induced or peisuaded” by government agents, Thus, the

district court equated lack of “predisposition” with the

“unwillingness” to commit the crime.

The trial court further told the jury that the time for

“determining the question of predisposition” was the

September 11th meeting, the videotape of which had

been shown to the jury, The relevant time for determin-

ing the defendant's predisposition is not when the crime

is being committed or has been completed but when the

defendant is first approached by the government's

agents with the criminal design, Sorrells v, United

States, 287 U.S. at 442. It is the defendant's state of

mind and inclinations before his initial exposure to the

government agent that is the focal point of the inquiry.

Thus, the jury was precluded from determining whether

the criminal seed had been sown by the government

agents prior to the meeting.

Similarly, the Second Circuit rejected petitioner's

claim that he had been entrapped as a matter of law, Ob-

viously, because it could find no other indicia of a prior

criminal intent or purpose, the panel also relied upon the

videotape of the September 11th meeting. It concluded

that petitioner's predisposition was established by his

21

“ready response” to the inducement at that meeting.

A.26-27.

The approach taken by the district court and the cir-

cuit court demonstrates a misapprehension of the law of

entrapment. The emphasis was placed not on whether

the government had induced petitioner to commit the

crime but whether he performed the criminal act. The

problem with this approach is that it puts the proverbial

“cart before the horse”.

The error in the district and the circuit courts’ inter-

pretation and application of the entrapment defense is

apparent and emphasized in this particular case, Both

ignored the manner in which the government

approached the petitioner to get him to come to the

meeting in the first instance. They overlooked the lure of

financial investments in petitioner's Congressional dis-

trict, which District Judge Bryant characterized as “le-

gitimate incentives designed to encourage apparently in-

nocent persons, . .”. United States v. Kelly, 539 F. Supp.

363 at 371 (D.C.C. 1982). According to the govern-

ment’s evidence, the delegated middlemen, Criden and

Johanson, were dispatched to bring in Congressmen in

July and almost immediately thereafter Johanson asked

petitioner to meet with representatives of a wealthy

sheik “to talk about immigration matters and finances in

the district”.

There are cases where a problem will not arise be-

cause the inducement and the commission of the crime

occur simultaneously. It is in such a case as this one

where the initial contact by the government agents took

place a few months before the September 11th meeting

that the problem arises. How petitioner was first

approached and what transpired from the first contract

until the meeting is pertinent and relevant to the issue of

government inducement.

No where in the decisions of this Court is there lan-

guage from which one can conclude that predisposition

may be proven by reference solely to the defendant's

22

commission of the crime, In fact, in the two most recent

entrapment cases decided by this Court, Hampton and

Russell, the element of predisposition had been con-

ceded, This Court has not given any direction as to the

requisite proof of criminal predisposition,

If the government is permitted to mold and manu-

facture the “ready response” evidence and then rely

upon it as the sole evidence of predisposition, there will

be no entrapment defense, In effect, proof of the alleged

criminal act is all that the government would have to

prove, Inducement would become irrelevant and the

government could dangle the largest carrot for anyone

prior to the criminal scene which it has written, directed

and produced for later display to a jury to prove a defen-

dant’s predisposition, Therefore, it is necessary to clarify

the relationship between inducement and predisposition

and to resolve the confusion surrounding the sufficiency

of “ready response” evidence of predisposition,

IV. Whether Prosecutorial Use Of A Report Filed By A

Congressman In the House of Representatives Vio-

lates The Speech Or Debate Clause Of the Constitu-

tion Has Not And Should Be Decided By This Court,

The prosecution, over objection, introduced a copy

of the Ethics and Financial Disclosure Statement which

petitioner had filed with the Clerk of the House of Repre-

sentatives on June 2, 1980. Ruling on the objection, the

district judge found that petitioner had waived the pro-

tection of the Speech or Debate Clause!’ by filing it — a

similar argument made by the government and rejected

by this Court in Helstoski v, Meanor, 422 U.S. 477

(1979),

The use of the disclosure statement at petitioner's

trial was improper and unconstitutional if it was pro-

17, U.S, Const, art, 1, §6, cl, 1

23

tected by the Speech or Debate Clause, Members of the

Congress may not be questioned about their “legislative

acts” or the motivation for the performance of those acts,

United States v, Johnson, 383 U.S, 169 (1966); Kilbourn

v, Thompson, 103 U.S, 168 (1881), Hence, the question

becomes: Does the financial statement constitute a “leg-

islative act” within the meaning of the privilege?

The Speech or Debate Clause has not been literally

construed, It has been interpreted “broadly to effectuate

its purposes”, United States v, Johnson, 383 U.S, at 180,

Within its protective ambit is anything “generally done

in a session of the House by one of its members in rela-

tion to the business before it”, Kilbourn v, Thompson,

103 U.S, at 204, It extends to “the communication proc-

ess by which Members participate in committee and

House proceedings with respect to... matters which

the Constitution places within the jurisdiction of either

House.” Gravel v. United States, 408 U.S, 606 (1974),

The Constitution specifically provides that the

House may determine its own rules and proceedings,

U.S, Const, art, 1, §5, cl. 2. In filing the Ethics and Dis-

closure Statement with the Clerk of the House, Lederer

was complying with House rules, which were estab-

lished to monitor Members’ observance of the limitations

on outside earned income, RULES OF THE HOUSE

OF REPRESENTATIVES, RULES XLVII, 95th Cong,,

2nd Sess, 635-36 (1979), Thus, because “keeping its

own house” in order is the constitutional prerogative of

the House, anything done in that regard, including the

filing of reports, is shielded by the Speech or Debate

Clause,

This case does not involve a prosecution for filing a

false financial report, If it did, there would be no ques-

tion that it was permissable to use the report at trial,

Here, the prosecution used the report in an unrelated

prosecution, Whether this evidentiary use was violative

of the Speech or Debate Clause is an important issue

which has not been and should be addressed by this

Court,

24

V. This Court Should Settle The Conflict Among The Cir-

cuits On The Issue Of Whether A Defendant Asserting

An Entrapment Defense Must First Admit The Ele-

ments Of The Crime Charged, Including the Requisite

Criminal Intent.

It has generally been assumed that entrapment is a

defense available only to a defendant who admits that he

has committed the crime charged, What happens to the

defendant who agrees that he was present at a govern-

mentally produced scene because he was induced to

come there but maintains that what he did there was

equally consistent with innocence? Is he deprived of the

opportunity to have a jury decide in the first instance

whether he had committed the crime because he also re-

quests that they decide whether he was entrapped if

they resolve the first issue against him?

The government's own evidence regarding the peti-

tioner’s prior intent or reason for going to the September

11th meeting was elicited through Ellis Cook, According

to Cook, Johanson told him that Lederer only wanted a

$5,000,00 campaign contribution from the payment in-

tended for his friend Johanson's law firm, While ac-

knowledging that in some cases there may be a “close

question as to whether money was received as an illegal

bribe or a lawful contribution”, A.46-47, the Second Cir-

cuit panel held it against the Petitioner because he did

not testify at trial that he thought he was receiving a po-

litical contribution, It said, ". . . he made no claim at trial

that he thought the shiek's representatives were making

a donation to his campaign. His sole defense was entrap-

ment”, A.47, fn 20, Thus, because petitioner argued that

he was induced by the government to come to the meet-

ing to receive the payment, the appeals court would pre-

clude him from submitting to the jury the issue of

whether the payment was illegal (a bribe) or legal (a

campaign contribution),

The jury should be first asked to decide whether a

defendant has committed a crime, If it decided that he

25

has, the jury can then decide whether he should be ac-

quitted because he was entrapped, having been induced

by the government to commit the acts which he had not

been predisposed to do. The jury should not be

precluded from deciding the issue of guilt because the

defendant chose to argue entrapment.

The Second Circuit has had the opportunity to can-

vass the circuits to find how they treat this issue. In

United States v. Valencia, 645 F.2d 1158 (2d Cir. 1980),

it detailed the state of the law in each circuit. It con-

cluded that “the circuits appear to be in conflict, our own

cases are not altogether consistent, and the Supreme

Court cases do not address the question”. Id., at 1172.

The resolution of this splitting question has impor-

tant implications in a criminal intent case. Possibly a

defendant committed the physical acts charged but had

not possessed the criminal intent.'* See, United States v.

Greenfield, 554 F.2d 179 (5th Cr. 1977). Depending

upon the circuit in which he is tried, the defendant can

or cannot argue that he was entrapped if he doesn’t first

admit all of the elements of the crime charged. See,

United States v. Valencia, 645 F.2d at 1170.

Now is the time for this Court to settle this question

in the interest of uniformity among the circuits.

VI. This Court Has Not Decided Whether The Double

Jeopardy Clause Of The Constitution Has Been Vio-

lated Where A Member Of Congress Has Been Sub-

jected To Punishment By The Executive And The Ju-

dicial Branches On The One Hand And By The

Congress On The Other For The Same Offense.

Implicit in the Second Circuit's opinion is the ra-

tionale that even though the Congress may punish or ex-

18. For example, in the ABSCAM cases, the government clev-

erly mixed together legal and illegal inducements. If the defendant

chose to submit the entrapment issue to the jury, he would have to

admit unwillingly that he was induced to help the sheik for a bribe

and not for the promise of investments in his Congressional district.

26

pel one of its own members for wrongdoing, the Execu-

tive can prosecute and the Judiciary can also punish that

member for the same wrongdoing. Does this double

punishment violate the Double Jeopardy Clause?'”

If there is unconstitutional double punishment,

then only one Branch can punish an errant Member of

Congress. Which one shall it be?

Obviously, the answers to these questions raise im-

portant issues bearing upon the respective rights and

prerogatives of the three branches of government. Thus,

because these issues have not been answered, this Court

should examine this case in light of the constitutional

principles of the separation of powers and the double

jeopardy clause.

CONCLUSION

For the reasons set forth in this Petition and in the

petitions filed by the other “parties involved” who are

identified at page 1 of this Petition,*° a writ of certiorari

should issue to the Court of Appeals for the Second Cir-

cuit.

Respectfully submitted,

TIMOTHY J. SAVAGE, ESQUIRE

Frankford and Oxford Avenues

4714 Oxford Avenue

Philadelphia, Pennsylvania 19124

(215) 537-4800

Attorney for Petitioner,

Raymond F. Lederer

19. U.S. Const. Amend. V.

20. The factual statements and the reasons for granting a writ

of certiorari set forth in the related petitions of Michael O. Myers,

Angelo Errichetti, Louis Johanson, Howard Criden, Frank Thomp-

son, Jr. and John M. Murphy are incorporated herein and adopted

by Raymond F. Lederer insofar as they apply to and are consistent

with his Petition.