# Petition — Lederer v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 461 U.S. 961

## Text

— 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0285%3A1. Public record. Not legal advice.