Petition — Frank Thompson, Jr. v. United States

Supreme Court brief1983

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Supreme Co 4.4. C..

1 E o

82-1199

In The

Supreme Court of the United States

October Term, 1982

No.

FRANK THOMPSON, JR.,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

U.S. COURT OF APPEALS FOR

THE SECOND CIRCUIT

FRANK ASKIN

Counsel of Record

Constitutional Litigation Clinic

Rutgers Law School

15 Washington St.

Newark, N.. 07102

(201) 648-5687

DANIEL H. POLLITT

University of North Carolina Law School

Chapel Hill, North Carolina 27514

Attorneys for Petitioner

PRINTINGHOUSE PRESS—(212) 719-3120

QUESTIONS PRESENTED

1. Whether the principle of legislative

independence, which inheres in the consti-

tutional doctrine of separation of powers,

is violated when agents of the executive

branch of government attempt to lure a

member of Congress into criminal conduct

without basis to believe he is corrupt and

without reasonable suspicion of criminal

activity within the legislative branch

generally.

ae Whether the principle of legislative

independence and/or the radiations of the

First and Fourth Amendments are violated

when undercover agents of the Executive

Branch, without cause or reasonable

suspicion, lure a member of Congress into

a seemingly private setting and sur-

reptitiously videotape confidential dis-

cussion of legislative matters, processes

and persons.

3. Whether it constitutes outrageous and

— . ——

overreaching conduct in violation of the

Due Process Clause when federal agents

(a) fabricate a criminal enterprise

and seek to entice suspicion-free persons

into corruption;

(b) delegate selection of targets to

largely unsupervised middlemen who are

known criminals and have motive to

fabricate evidence;

(e) ignore their own rules and gquide-

lines specifically designed to minimize

the dangers of violating individual

rights; and

(d) lure the unsuspecting target before

a hidden video camera where skilled agent-

actors exploit his known drinking problem

to create an ambiguous and circumstantial

filmed record staged to convey an aura of

corruption.

4. Whether, contrary to the opinion be-

low, the doctrine of entrapment as enun-

ciated in United States v. Sorrells and

Subsequent cases, permits a defendant who

fails to assert entrapment as a factual

defense at trial to assert it as a legal

defense to his conviction.

5. Whether a jury instruction on "cred-

ibility" which refers in progressively

harsher language to a defendant's "motive

for false testimony" and "strong motive to

lie," "chills" the right to testify on

one's own behalf, and thus denies the

right to a fair trial in a federal court.

6. Whether a defendant is denied a fair

trial, Due Process of Law, and his right

under Brady v. Maryland and United States

Aus when, despite a specific dis-

covery request, the prosecutor conceals

and a key witness denies that the witness

was promised that he would not be indicted.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ‚(—ͤ—*⁊ 222

TABLE OF AUTHORITIES · —*—*̃

OPINIONS BELOW „% %

JURISDICTION 999945252255

CONSTITUTIONAL PROVISIONS —

STATEMENT OF THE CASE Coecccccces

REASONS FOR GRANTING THE WRIT eee

I. THE AUTHORITY OF GOVERN-

MENT AGENTS, IN THE

ABSENCE OF EITHER

INDIVIDUALIZED SUSPICION

OR CAUSE TO BELIEVe ANY

LAW HAS BEEN VIOLATED,

TO LURE A MEMBER OF

CONGRESS BEFORE A HIDDEN

CAMERA TO TEMPT HIM INTO

CORRUPTION AND USE THE

RESULTING VIDEOTAPE

THIS COURT 6 0% 0% 06% 0% „ „ „ „ „

II.

B. THE SURREPTITIOUS

ABOUT TO BE COMMITTED,

JEOPARDIZES RIGHTS OF

PRIVACY PROTECTED BY

THE CONJUNCTION OF THE

FIRST AND FOURTH AMEND-

MENTS AS WELL AS THE

PRINCIPLE OF LEGISLAT-

IVE INDEPENDENCE ...

THIS COURT MUST PROVIDE

GUIDELINES TO THOSE WHO EN-

FORCE AND ADMINISTER OUR

CRIMINAL JUSTICE SYSTEM AS

TO THE DUE PROCESS RESTRAINTS

UPON GOVERNMENT AGENTS IN THE

INDUCEMENT OF AND PARTICIPA-

TION IN CRIMINAL ENTERPRISE .

III. THE JURY INSTRUCTION ON

CREDIBILITY CHILLS THE RIGHT

OF A CRIMINAL DEFENDANT TO

TAKE THE WITNESS STAND ON

HIS OWN BEHALF, IMPROPERLY

INFLUENCES THE JURY, AND

CONFLICTS WITH THE

DECISIONS OF THIS COURT IN

HICKS v. UNITED STATES AND

REAGAN v. UNITED STATES .... 58

IV. THE DECISION BELOW UPHOLDING

THE GOVERNMENT'S CONCEALMENT

OF THE IMMUNITY GRANTED

CONGRESSMAN MURTHA DENIED

PETITIONER THOMPSON HIS RIGHT

TO A FAIR TRIAL, AND CON-

FPLICTS WITH THIS COURT'S OPINION IN

BRADY v. MARYLAND AND

RELATED CASES eee ee eee ees 62

CONCLUSION „ „„ „„ „„ „ „„ „„ „ „„ „ „„ % „ „„ „6 „ „ „ „ „ W 65

TABLE OF AUTHORITIES

CONSTITUTION

U.S. Const. Article I, § 6

First Amendment

Fourth Amendment

Fifth Amendment

Separation of Powers ........

FEDERAL STATUTES

18 U.S.C. §201(c)

18 U.S.C. §201(g)

18 U.S.C. §203(a)

18 U.S.C. §371

18 U.S.C. 81982272?22

CASES

Brady v. Maryland,

373 U.S. 83 (19633D3S30¶－:—9œꝗ0

Buckley v. Valeo,

424 U.S. 1 (1976) “eee —

Delaware v. Prouse,

440 U.S. 648 (1979) „ „„ „„ „„ „„ „„

DeMarco v. United States,

415 U.S. 449 (1974) ........

Giglio v. United States,

405 U.S. 150 (1972) eeeeeeee

vii

Pages

Passim

16,62,64

Grayned v. City of Rockford,

408 9. 8. 104 (1972) „ „ „ „„ „ „ „ 33

Hampton v. United States,

425 93. 8. 484 (1976) „„ „„ „„ „„ „„ 6„„ 45

Hicks v. United States,

150 U.S. 442 (1893) eeeeee 58,60

Immigration & Naturalization

Service v. Chadda,

51 U. S. L. V. 3453 (Dec. 4,

1982) „ „„ „ „% „„ „% „% % „„ „ „ „„ „ „% „„ 25

Lopez v. United States,

373 U.S. 427 (19633 24, 35, 36,

37,38

Marshall v. Barlow's Inc.,

436 U.S. 307 (1978) oeeeneeve 33

New Jersey v. Kelley, et al.,

Sup. Ct. of N.J., Bergen

County, Law Div. (1982) ... 56

Nixon v. Administrator of

General Services,

433 U.8. 625 (i977) . . „ „„ „ 43

Northern Pipeline Const. v.

Marathon Pipeline Co.,

. s. 102 8. Ct. 2858

(1981) „ „„ „„ „„ „ „% „ „ „„ „% % „% „ „ „% „44 25,26

Olmstead v. United States,

277 U.S. 438 (1928) 41

Osborn v. United States,

385 U. 8. 323 (19866) 41

Papachristou v. City of

Jacksonville,

0 9.86. 256 (3972) . . . „„ 33

viii

Reagan v. United States,

157 U.S. 301 (1693) 58,60

Silverman v. United States,

365 U.S. 303 (1961111. 41

Sorrells v. United States,

287 U.S. 435 (19377777 45,46

Taylor v. United States,

390 F.2d 278 (8th Cir. 1968),

cert. denied, 393 U.S. 869

8) eee » % „ „4 61

United States v. Agurs,

427 U.S. 97 (1976) 64

United States v. Brewster,

408 U.S. 501 (1972) “ee „4 „4 25,30

United States v. Demma,

523 F.2d 981 (9th Cir. en banc,

1975) „ „ „ „ „ „ „„ „„ „„ „% „ „„ „% „% ˙„„ „ „ „ 46

United States v. Helstoski,

442 U.S. 477 (1979) 451 ꝙ 29

United States v. Jannotti,

501 F. Supp. 1182 (1980),

reversed, 673 F. 2d 578 (3d Cir.

1982), cert. denied, U.S.

— 102 8. Ct. 2906 (1982) 30,47

United States v. Johnson,

383 U.S. 169 (1966) ——̃ 2 26,27, 28,

United States v. Kelly,

539 F. Supp. 363 (DC DC 1981) 47

United States v. Myers,

635 F. 2d 932 (1980), cert.

denied, 449 U.S. 956 (1980) 20

United States v. Nixon,

418 U.S. 683 (197999) 25,43

United States v. Saletko,

452 F.2d 193 (7th Cir. 1971),

cert. denied, 405 U.S. 1040

2 TUS eeerPece@er@gCcrtrr eee ¢

United States v. Twigg,

588 F.2d 373 (1978) eevee

United States v. U.S. District

Court,

407 U.S. 297 (1972) *oenee

United States v. White,

49,50

39,40

401 U.S. 745 (1971) — . . 24,35,36,37

United States v. Will,

449 U. 8. 200 (1980) oeneee

Youngstown Sheet & Tube v.

Sawyer,

343 U.S. 579 (1952) „60 0 0 0

OTHER SOURCES

Books and Articles

Dix, “Undercover Investigations

and Police Rulemaking,” 53

Tex. E. Rev. 203 (1975575

Editorial, Sch Indisestion,”

New Jersey Law Journal

Federalist Papers, No. 48 eevee

Gould, "A Defeat for Law and Order,"

New York Law Journal

Feb. * „ „ „ „ „„ „ „% „% „ „ „ „6 „

8 The Works of Thomas Jefferson

322 (Ford EG. 1904) cccccccces

27,28

Marx, "Who Really Gets Stung" Some

Issues Raised by the New Police

Undercover Work," Crime and

Delinguency (April aaa 55

George Orwell, "1984" „ 6 „ „ „ 0 42

Weimann, "Effects of Laboratory

Videotaping Procedures on Selected

Conversation Behaviors,"

7 Human Communications Research

81) „„ „ „ „ „% „ „% „% „% „% „% „% „ „ „ „ „ „„ 42

Westin, Privacy and Freedom (1967) 41

CONGRESSIONAL MATERIAL

Final Report of the Senate Select

Committee: "The ABSCAM Operation:

An Example of the Benefits and

Risks of a Long-Term, Complex FBI

Undercover Operation and a Demon-

stration of the Need for Modifica-

tion to Existing Statutes, Guide-

lines and Operational Procedures,"

97th Cong., 2d Session ....34,50,51,52,55

Hearings Before the Subcommittee on

Civil and Constitutional Rights

of the House Committee on the

Judiciary, 97th Cong., 2d Session,

Statement of William Robertson ... 49,53

Report of the Senate Select Committee

to Study Governmental Operations

with Respect to Intelligence

Activities, 94th Cong., 2d Session,

Book 111 (1976) 2 „„ „ „% „% % % % % % „ „ „ „) 23

OPINIONS BELOW

The opinion of the United Stats Court of Appeals

for the Second Circuit, denying Petitioner's Petition

for Rehearing on November 17, 1982 is reported at 692

F.2d 860, and is set forth in the Appendix at la.

The opinion of the Court of Appeals for the

Second Circuit, affirming, on September 3, 1982, the

conviction entered in the United States District

Court for the Eastern District of New York (George C.

Pratt, Judge) of Frank Thompson for violations of 18

U.S.C. §§201(c), 201(g), and 371 is reported

at 692 F.2d 823, and is set forth in the Appendix at

4a.

The opinion of the District Court for the

Eastern District of New York (George C. Pratt, Judge)

denying Petitioner's post-trial due process claims is

reported at 527 F. Supp. 1206 (1981), and is set

forth in the Appendix at 84a.

The opinion of the Court of Appeals for the

Second Circuit denying appellant's pre-trial motion

to dismiss the indictment is reported at 642 F.2d 699

(1980), and is set forth in the Appendix at 273a.

JURISDICTION

The judgment of the Court of Appeals for the

Second Circuit, affirming the judgment of conviction

entered by the District Court, was entered on

September 3, 1982. The order of the Court of Appeals

for the Second Circuit denying the Petition for

Rehearing was entered on November 17, 1982. This

Petition for Certiorari was filed within sixty days

of the final order of the Court of Appeals for the

Second Circuit. This Court's jurisdiction 1s invoked

under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS

This case involves the First, Fourth and Fifth

Amendments and Article 1, Section 1.

STATEMENT OF THE CASE

This 1s an ABSCAM case ~~ but it is different

from most other ABSCAM cases in that the defendant

former member of Congress denies that he ever suc-

cumbed to the FBI's blandishments.

lhe unf que and circumstantial facts of the

Thompson case require a fairly detailed “.atement.

At the time of his downfall at the hands of the

Federal Bureau of Investigation and the Brooklyn

Strike Force, Frank Thompson had served his country

with honor and distinction for nearly 40 years,

starting with his commission as an ensign in the

Naval Reserve in October 1941; through distinguished

naval service in World War II which brought him a

Bronze Star, Gold Star, and a Naval Commendation

Combat Medal; a return to active Naval duty during

the Korean War; 3 terms in the New Jersey

Legislature; and 13 terms in the United States House

of Representatives, during which time he earned

legislative distinction for his efforts on behalf of

the arts, education, labor and civil rights.?

As ABSCAM impressario, Prosecutor Thomas Puccio,

frequently acknowledged to the trial court, there was

not the slightest hint during all those years of

political activity that Frank Thompson was in one

eFH Thompson's record of public service was set

forth by the 8 character witnesses he presented at

trial. For example, Former Rep. Father Robert

Drinan of Massachusetts called him: “one of the

greet whe TET hag without blemish"

Tr. at 2093-4), (References to the transcript of

proceedings at trial are designated Tr. at

whit corrupt or had ever sought any legal personal

financial gain from his public service. Nevertheless,

Prosecutor Puccio and the FBI agreed to permit a

known swindler and con artist, Howard Criden,* to

bring Thompson before hidden ABSCAM cameras where he

could be tempted into corruption.

Thompson's involvement with ABSCAM - the FBI

ploy to have agents pose as representatives of fic-

titious sheiks prepared to invest petro dollars in

the U.S. and to offer financial rewards to coopera-

MRE the post-trial Due-Process hearing, Puccio

admitted there was no basis for 3 to seduce

Frank Thompson into taking a bribe. Puccio

acknowledged: “Other than what had been developed

through the ABSCAM tapes that had been made, ... we

had nothing else specific on Congressman Thompson."

(op Tr. at 300-1. “DP Tr." refers to post-trial Due

Process hearing.) Or, more directly: "There was no

eo that pertained to Thompson." (OP Tr. at

der iden had A ne demonstrated his unrel ta-

ability and cupidity some months before when he

attempted to swindle his purported Arab“ colleagues

(who unknown to him were actually FBI agents) out of

$50,000 by having his law partner, Ellis Cook, pose

as an official of the Immigration Service, Mario

Noto, who was to accept a bribe for alleged future

services. (Tr. at 1230-1, 1093). Despite this

deception, the FBI continued to rely on Criden's

representations that certain public officials were

corrupt and could be bribed,

tive public officials -- began on October 1, 1979,

when the manager of his Lawrenceville, .d.

congressional office informed the Congressman that a

constituent named Joseph Silvestri had called for an

appointment because “he had some Arab investors

interested in investing” in Thompson's district

“relative to real estate and other matters." (Tr. at

2275) An appointment was made for October 4, and was

noted in Thompson's office calendar. The following

notation was added later:

Mr. Silvestri called again, and

this is in regard to some Arabs

in the United States loaning money

to Americans. He will be there by

himself and maybe with their attorney.

Arabs are late getting here and are

still at the Ritz in New York.

(Ex. TI; Tr. at 2280)

At that meeting, Thompson was introduced by

Silvestri to Howard Criden, a Philadelphia lawyer who

explained to Thompson that his Arab clients had in

excess of $200 million deposited in the Chase

Manhattan Bank and were prepared to invest large sums

in Thompson's economically depressed 4th District

“principally in real estate and possibly in cer-

tificates of deposit." (Tr. at 2283) Although that

was the first time Criden and Thompson had ever met,

Criden had announced to the fake Arabs a week earlier

he had Thompson “all lined up." (Ex. IA at 1,3)

Following the meeting, Thompson called

Philadelphia Judge James Crumlish, with whom Thompson

had served in the Navy and whom Criden mentioned as

an acquaintance. Judge Crumlish confirmed that

Criden was a former member of the Philadelphia

District Attorney's office and that his reputation

was good. (Tr. at 2290-1)

The First October 9 Meeting

On October 9, Criden picked up Thompson at

his Capitol Hill office and drove him to a noon

meeting with the representatives of the "Arabs" at a

townhouse on W Street in Washington. Explaining how

he got Thompsom to come to the house, Criden later told

SExhibit 1A-27A are transcripts of various video

and/or audio tape recordings. Ex. 1A is the

transcript of a telephone conversation between Criden

and FBI Middleman Melvin Weinberg, a convicted

swindler who devised the ABSCAM scenario for the FBI

in an effort to avoid imprisonment on unrelated

convictions.

Weinberg and FBI agent Anthony Amoroso -- who Criden

knew only as "Tony De Vito" -- that he had used "the

certificates of deposit and shit like that“ as a

"come-on." (Ex. 7A2) The meeting took place in

front of the FBI's hidden cameras.© As all the tapes

open, Agent Amoroso was counting out $50,000 in $100

bills into a briefcase. He comments to the camera

(and some future jury) that the money was for Frank

Thompson, Jr. (Ex. 7Al at 1) Thompson then enters

with Criden, who introduces him to DeVito (Agent

Amoroso) and sting-man Weinberg. After several

drinks and desultory conversation about wines and the

price of real estate, Weinberg turns the conversation

to the sheiks and possible future immigration

problems. The following exchange then takes place:

Amoroso/DeVito: Can this be

OPetitioner beseeches the Court to view all of

the October 9 videotapes in order to get a true pic-

ture of ABSCAM as it relates to Frank Thomspon. The

Court of Appeals viewed none of the three videotapes

prior to decision. It finally viewed the final

October 9 segment after defendant filed a Petition

for Rehearing. (283a) (a“ refers to the Appendix

to this Petition.) Petitioner has certified the five

October 9 videotapes (Ex. 7) for immediate transmit-

tal to the Court pursuant to Rule 19.1.

stalled for an extended period

of time, and then what to do

while the bill is, while the bill

is.

Frank Thompson: Well, it can be

stalled, but it’s very difficult,

very difficult.

Amoroso/DeVito: Well, that's what

the money 1s for, is to, Ts to, you

know, keeping this thing going.

Frank Thompson: Well, I'm not

looking for any money, and uh... It

depends on the circumstances. I mean

if the person is clean, not a

Communist and not a known criminal

and ... (Ex. 7Al at 13) (emphasis added)

After further discussion about the intricacies

of the immigration laws, Frank Thompson picked up the

phone, called his office, and discussed the matter

with Jane Butterfield, his immigration specialist.

(Ex. 7Al at 14-16) He asked her to put a memo on his

desk, which, according to office practice, meant to

check it out with the Immigration and Naturalization

Service. (Tr. at 2213)7

The conversation turned to the possibility of

This 1s hardly the action of a criminal

conspirator.

investments, particularly Certificates of Deposit in

three small independent Trenton banks, and Weinberg

assured Thompsor there was no problem:

You got to remember he's got

approximately four hundred mil-

lion or more. He keeps that in

this country at all times. All

right?

Weinberg then turned the conversation back once more

to the immigration problem:

So, what there has to be done is,

is there has to be a bill presented

by some politician to put into

Congress for him to stay here as a

political refugee... What I'm ask-

ing you actually in plain English

is that he could depend upon you to

try to help him. (Ex. 7Al at 17)

(emphasis supplied)

Thompson gave this conditional response:

On the basis of this conversa-

tion, I'll say to you, I'll be

glad to help if I can, but you

must understand the limitations

of our law and the complications

that there are in it. What I say

to you is, if your client needs

help, uh, meets the standard re- 1

quirements that that client will

get the help and get it speedily

and efficiently. (Ex. 7Al at 28)

At the close of the meeting Amoroso/DeVito told

Criden he wanted to talk to him after he dropped

Thompson back at the Capitol.

Criden's Meeting With Weinberg and Anoroso

When Criden returned to the W Street house after

taking Thompson back to the Capitol, Agent Amoroso

expressed great discomfort over Thompson's refusal to

accept money:

I'm uncomfortable ... we dealt

with two other guys® ... we did

business, everything was fine...

but the guy says to me he don't

want anything, alright. Later

on he started mentioning about

us putting money in banks down

there... now that could of been

what he wanted. (Ex. 7A2 at 1-2)

Amoroso then told Criden 27 additional times he

distrusted what had occurred. He accused Criden of

trying to “rip him off," and accused him "of not

telling Thompson what the facts were." (Tr. at 953)

Finally, Amoroso tells Criden to “call him up and

scratch him.“ (Ex. 7A2 at 10) Shortly thereafter

“Presumably ABSCAM defendants Myers and Lederer.

the phone rang (Ex. 7A2 at 13), and Amoroso

thereafter changed his tune.9 He agreed that Thompson

need not accept the cash, nor even verbal ly

acknowledge receipt of the cash. Weinberg then

Summed up the new ground rules: "Let's get the rules

Straight now. We agreed that you come here, nothing

de said, just hand him the valise." (Ex. 7A2 at 30)

Criden emphasized: "No conversation except that

here's some documents or shit like that." (Ex. 742

at 32-33)10 In case Criden couldn't convince Thompson

to follow the new script, the old pro Weinberg had

some sage advice:

(T]he shittin' guy's a boozer.

{Ex. 7A2 at 37)

Kk kk kkk

Give him another drink...

9hmoroso frequently received instructions in this

manner from Justice Department officials who moni-

tored these meetings via closed-circuit television.

10The arrangement is directly contrary to the

Department of Justice guidelines for this type of

entrapment situation. The guidelines require that

the bribe be up front, that the cash be delivered

directly and by hand and the quid pro uo be spelled

out in plain English. (DP Ex. Id at TE; DP Tr. at

448-52)

(Ex. 7A2 at 40)11

The final meeting on October 9

Criden went back to the Capitol, located

Congressman Thompson, and told him several things.

First, he told Thompson that the Arabs were ready to

invest in Certificates of Deposit, and they wanted

the names of the local Trenton banks. Thompson wrote

out the names of the three banks on a card, and

handed it to Criden. Second, Criden warned that the

Arabs were distressed when Thompson had let it be

known that the Sheik might need political asylum.

This was meant to be a deep secret.!2 Third, Criden

said he could drive Thompson home that night

(Thompson did nct have his car) and stop off at W

Street to deliver the information concerning the

Butterfield immigration memorandum. (Tr. at 2318;

“*Although there are frequent references in the

tapes to Thompson's perceived drinking problem,

(e.g.: Ex. 7A2 at 34, where Thompson is referred to

as an “alky"), the videotapes show Amoroso and

Weinberg providing him at least 3 drinks during the

60 minutes Thompson spent with them on October 9).

12This can easily explain why Thompson was so ready

to concur in the need for caution at the final

meeting -- a fact which the Court of Appeals found

highly incriminatory. (22a, 80a)

Ex. TC) He also said they might pick up some busi-

ness papers.

The tapes show what happened next. It opens

with Agent Amoroso again stuffing $50,000 in one

hundred dollar bills into a briefcase. (Ex. 7A5 at 1.)

Thompson and Criden arrived at 7 p.m. and stayed

for about 15 minutes. As soon as they arrived,

Criden took the briefcase from the nightstand and put

it on the floor in front of Thompson. Criden said,

enigmatically: "Frank understands the situation."

Amoroso/DeVito replied: "I just want to make sure

that, you know, you understand. There's the

briefcase." (Ex. 7A5 at 1) At this point, both

Thompson and Criden reached for the briefcase.

Thompson quickly relinquished it to Criden, and said

“Look at that for me, will you. 13

tSThTs statement has taken on extraordinary signi-

ficance in this case. The prosecution, in what can

only be described as a case of pure wishful thinking,

has consistently translated those words as Look

after that for me will you" (7A5 at 2), words indi-

cating that Thompson was aware there was money in the

briefcase. Indeed, the Court of Appeals was so

impressed with that alleged statement, it quoted it

at three separate and unrelated parts of its opinion

to demonstrate that the evidence against Thompson was

clear and that his due ie rights were scrupu-

There was then a discussion based on the

immigration report prepared by Jane Butterfield (Ex.

7A5 at 4-5), and a discussion about investments in

the Trenton Banks and in Trenton real estate develop-

ments. Finally Amoroso/DeVito suggested that Criden

might be "good for a $10,000 campaign contributon."

Thompson replied: "No, no." (Ex. 7A5 at 11)

Thompson continued: "I wouldn't take a ten

thousand...." At this point Criden laughed, and

Amoroso/DeVito changed the subject to Certificates of

Deposit and real estate investments. (Ex. 7A5 at

12-13)14 The meeting ended, and Criden drove Thompson

Tously protected. (See 22a, 47a, and 80a) In his

Petition for Rehearing, defendant pointed out the.

inaccuracy of the quote,.urged the Court to at least

view and listen to the tapes of October 9 and sub-

mitted an affidavit from an audio engineer stating

that the video tape clearly states ‘you look at that

for me, will you'" (326a), words consistent with

Thompson's claim that he thought the case contained

business documents. The Court then viewed the final

October 9 2 — and astoundingly concluded that Af ter

viewing and hearing the videotape, we cannot de cer-

tain whether the disputed word was at!“ or ‘after’ ."

(2a) Then, ignoring the heavy emphasis it had

placed upon that sentence in its first opinion, the

Court of Appeals announced that it really made no

difference which version was correct. Id.

In connection with Thompson's claim that he met

with Criden, Amoroso and * to obtain new bus i-

ness for Trenton, the sa reflects continuing

to his home in Alexandria, Virginia.15

The Indictment and Conviction

None of the foregoing constitutes the substan-

tive offenses for which the defendant was indicted,

but it was the evidence relied on by the prosecution

as proof of Thompson's participation in a bribery

conspiracy. Frank Thompson was actually indicted

for a connected series of offenses growing out of the

alleged passage of a briefcase filled with money to

Criden in the presence of Representative John Murphy

at a Kennedy Airport motel on October 20, 1] days

after the meeting at the townhouse in Georgetown. 16

efforts tn this regard. Tr. at 2520, 1249, 1639-43,

1327, 1389, 1390.

15criden later told his partner, Ellis Cook, that

he had passed Thompson $20,000 in $100 bills in the

back of the rented limousine (Tr. at 1246), but the

chauffeur hired for the occasion did not see or hear

any such thing. (Tr. at 1536, 1549) The indictment

does not charge a bribe was given at this time; it

charges a bribe payment was made to Thompson several

weeks later at a restaurant in New Jersey.

16Former Congressman Murphy stood trial with

Thompson and is filing a Petition for Certiorari con-

temporaneous with Thompson's. Rather than devote

precious space to the October 20 meeting at Kennedy

Airport, Petitioner will assume that the Murphy peti-

tion will set forth the events that transpired there,

none of which further incriminated Thompson.

The government's evidence came from Ellis Cook, who

testified under immunity that his partner Criden had

told him that he gave $25,000 of the money on October

22 to Thompson to share with Murphy. In addition,

Rep. John Murtha of Pennsylvania, who falsely denied

that he had been promised immunity for his own ABSCAM

role, 17 testified that Thompson spoke to him on the

House floor about some rich Arabs who had money to

invest in their districts and that “there would also

be some walking around money available" for coopera-

tive Congressmen in the amount of $50,000.

Based on the above testimony, a jury found

Petitioner guilty of bribery (18 USC 201)(c),

conflict of interest (18 USC 201(g), and conspiracy

(18 USC 371). He was acquitted of accepting an le-

gal gratuity (18 USC 203(a). The trial judge

dismissed a count under the Travel Act (18 USC 1952).

“ITE Was only subsequent to trial’ that defendant

discovered that Murtha had in fact been assured by

fatlure of the prosecution to correct Wirehe's. false

testimony has been consistently cited by defendant as

a violation of Brady v. Maryland, 373 U.S. 83. See

pages 62-65, infra.

Subsequent to the jury verdict, the trial court

conducted a lengthy combined hearing into the claims

of a number of ABSCAM defendants that their indict-

ments and conviction violated Due Process. All of

those motions were denied. (84a)

The trial judge deferred sentencing of Thompson

pending a post-appeal review of his medical situation

and temporarily imposed a statutory sentence under 18

USC 4205(c).

The Motion for a New Trial

After defendant filed Notice of Appeal, infor-

mation began to be revealed from various sources

(including Weinberg's former wife) that Melvin

Weinberg had caused at least one other ABSCAM target,

a former member of the New Jersey casino contro!

Commission, Kenneth MacDonald, to be falsely accused

of accepting a bribe while Weinberg himself pocketed

the “bribe” money. The new evidence {is now the

basis of a motion by defendant Thompson for a new

trial which was denied by the trial court and is

pending appeal in the Second Circuit. (Docket No.

82-1271) 18

REASONS FOR GRANTING THE WRIT

This petition poses issues of extraordinary

significance to the future of law-enforcement in this

country as well as to the future of our constitu-

tional structure. The trial judge wrote that from

the very beginning of ABSCAM:

[It was apparent that these were signi-

ficant cases to the defendants, to the FBI,

to the Justice Department, to the public,

and perhaps even to the very structure of

our governmental system.... The integrity

of both the FBI and the Justice Department

has been vigorously challenged. A novel

investigative technique has been employed

against members of Congress and others

without specific suspicions. And the

entire matter had been given extensive

national coverage in the news media, re-

flecting not only the importance of the

criminal actions, but fundamental political

and constitutional issues in which many

tot Ts defendant e: position that the pro-

secution was aware all along of Weinberg's double-

dealing with MacDonald but concealed that information

despite specific discovery requests. Since Thompson

claims that he was similarly victimized, he contends

that he should have been permitted to present to the

jury the evidence of how Mel Weinberg had victimized

Mr. MacDonald,

Defendant suggests to the Court that it might wish

to defer action on this Petition pending disposition

of the new trial appeal. If affirmed, that matter

might appropriately be merged with this one.

segments of the population had an interest.

(115-6a)

ABSCAM is sui generis. Little in our jurispru-

dence precisely prepares us for the issues it pre-

sents -- especially as they are framed by the convic-

tion of former Congressman Frank Thompson, r., a

much honored public servant who had never been

tainted with the hint of corruption during a long and

distinguished military and political career until he

was lured before the secret cameras of ABSCAM.

As a test of our criminal jurisprudence, the

outcome of this case will decide whether law enfor-

cement in this country is to be transformed from a

system of prevention and detection to one of creation

and inducement.

Equally far-reaching is the potential impact of

this case upon the political and legislative process

and upon fundamental rights of privacy of all

Americans. As the Court of Appeals observed in

regard to ABSCAM:

The Executive Branch of the

government of the United States

has carried out a plan to de-

termine whether members of the

Legislative Branch and others

would commit bribery offenses

if presented with the opportunity

to do so. In a constitutional

democracy this maneuver inevitably

raises sensitive issues of public

policy and public law. (251a)19

Other sensitive issues of law and public policy

are raised by the use of hidden cameras to surrep-

titiously film private conversations of individuals

about whom there was no suspicion of corruption or

reason to believe they were criminally inclined.

This Court has never addressed the issue of uncon-

sented videotaping of private individuals by law-

enforcement agerts, let alone the question of the

propriety of luring a member of a coordinate branch

of government before those cameras on the pretext of

discussing legitimate legislative business.

n ates v. Myers, ‘ 32, 934 (1980),

cert. den. 449 U.S. 956 (1980) (hereinafter referred

to as Myers I). This was the pre-trial, interlocu-

tory appeal by one of the ABSCAM defendants tried in

the Eastern District of New York. (Included in the

Appendix beginning at 250a)

I. THE AUTHORITY OF GOVERNMENT AGENTS, IN

THE ABSENCE OF EITHER INDIVIDUALIZED

SUSPICION OR CAUSE TO BELIEVE ANY LAW

HAS BEEN VIOLATED, TO LURE A MEMBER OF

CONGRESS BEFORE A HIDDEN CAMERA TO

TEMPT HIM INTO CORRUPTION AND USE THE

RESULTING VIDEOTAPE AS THE BASIS FOR A

CRIMINAL PROSECUTION, PRESENTS

IMPORTANT QUESTIONS OF FEDERAL LAW

WHICH HAVE NEVER BEEN DECIDED BY THIS

COURT

As set forth earlier, Congressman Thompson, a

man of impeccable reputation, was lured to the W

Street townhouse solely on the representation of a

known swindler and confidence man, Howard Criden,

that Thompson could be corrupted. 20 Criden was

20The FBI's sting-man, Mel Weinberg, Launched

Criden on his hunt for political big-game with the

following words of encouragement:

Mel Weinberg (MW): Now, who else we

got lined up?

Howard Criden (HC): Well, we can get

anybody you want, any one. Within

reason I can produce almost anybody

you want.

MW: ... OK now the only other thing

I want to ask you is how about some

Repub] icans? Doesn't it look bad

it's all Democrats?

HC: Alright I'll try ... I'll go to

work on that today to try to get you

some ... Would you like some governors?

MW: Yeah why not.

allowed to bait his ABSCAM hook with promises of eco-

nomic relief for Thompson's depressed Congressional

district. Indeed, it would have bordered on neglect

of fiduciary responsibility to his constitutents for

Thompson to have out-of-hand rejected Criden's offer

of millions of dollars available for job-producing

investments in the Trenton, N.J. area.

Having lured the unsuspecting Congressman to an

apparently private meeting with the promise of aid

for his distressed district, the Executive Branch's

agents proceeded to ingratiate themselves into his

confidence, displaying a false air of comraderie

while plying him with liquor.2! All the while, of

HC: Congressmen, Senators, Governors,

what else?

MW: Any guy in Washington (IA) and they're

happy as a lark ... (Ex. MC at 1-2)

2lsee fn. 11, supra. Howard Criden later testified

before the Senate Select Committee on ABSCAM that

Thompson “after drinking rather heavily all afternoon

.. . was pretty well shot by the time we came back for

the second meeting." (Criden Testimony at 95) (The

Criden Senate testimony is included in the appendix

to John Murphy's motion for a new trial filed Dec.

14, 1982 in the Eastern District of New York, Docket

No. 80 CR 00291)

course, the Executive Branch's cameras were grinding

away, recording for posterity any lewd, obscene or

impolitic comment or gesture made by the Congressman

in this apparently private and confidential

atmosphere.

During the course of some 60 minutes of candid

and unguarded conversation, the agents succeeded in

goading Thompson to belittle and ridicule several of

his Congressional colleagues (Ex. 7Al at 7-8, 11-12);

brag about his power and influence in Congress and

New Jersey politics (Ex. 7Al at 6-7; 7A5 at 8-9); and

generally comport himself in locker-room fashion.

Anyone watching the October 9 tapes will quickly

recognize that whether or not Frank Thompson had done

anything remotely incriminating in front of that hid-

den camera, those tawdry tapes would be a powerful

weapon in the hands of any political opponent.22

The Court of Appeals, however, could find no

“€Recent history reminds us that one former FBI

Di rec tor maintained sensitive materials in a private

"Do Not File” file in his private office. See Final

Report of the Senate Select Comm. to Study

Governmental Operations with Respect to Intelligence

Activities, 94th Congress, 2d. Session, Book III at

358 (1976).

constituti zal violation in the behavior of the

agents of the Executive Branch. It dispatched

defendant's claims of violation of legislative inde-

pendence and the doctrine of separation of powers

with the assertion that "the Constitution does not

provide Members of the Legislative Branch with any

extra protections beyond that guaranteed to all

citizens" with the exception of Section 6, Article I,

the Speech or Debate Clause, which defendant conceded

was not directly applicable to the issue. (28a)

Defendant's objection to surreptitious videotaping in

the absence of either judicial warrant or reasonable

suspicion was summarily rejected with a reference to

United States v. White, 401 U.S. 745 (1971) and Lopez

v. United States, 373 U.S. 427 (1963).23 (82a)

“~The Court below also erroneously suggested that

defendant had waived objection to the videotapes by

failure to submit a timely motion to suppress their

use at trial. (82a) In his Petition for Rehearing,

defendant pointed out that he had indeed asserted in

his pretrial motion to dismiss the indictment that:

“Alternatively, the evidentiary fruits of these acti-

vities, including the videotapes ... should be

suppressed." (At p. 22, n.12) The Court of Appeals

failed to respond to this point in its denial of the

Petition for Rehearing. Ce

A. The Holding of the Court of Appeals, That

Aside From Art. I, Sec. 6, the Constitution

Provides No Protection Against Executive

Encroachments Upon Legislative

Independence, Threatens Fundamental

Principles of Separation of Powers Which

Are the Bedrock of Our Political Democracy

There is nothing arcane or academic in the con-

cept that ours is a government of Separation of

Powers with appropriate and strong checks and balan-

ces. Northern Pipeline Const. v. Marathon Pipeline

Co. U.S. » 102 S.Ct. 2858, 2864 (1981);

United States v. Will, 449 U.S. 200, 101 S.Ct. 471,

482 (1980). See also Immigration and Naturalization

Service v. Chadda, No. 80-1832, reargued before this

Court, 51 U.S.L.W.°3453 (Dec. 14, 1982). And as this

Court noted in United States v. Nixon, certain rights

and privileges "can be said to derive from the supre-

macy Of each branch within its own assigned area of

constitutional duties." 418 U.S. 683, 705 (1974)

It is true that this Court has held that the

Speech or Debate Clause, Art. I, Sec. 6, does not

immunize members of Congress from prosecution under

bribery statutes, United States v. Brewster, 408 U.S.

501 (1972), and petitioner makes no claim to any

general immunity. It is his contention, however, that

the principle of Separation of Powers, of which the

Speech or Debate Clause is but “one manifestation...

for ensuring the independence of the legislature,"

United States v. Johnson, 383 U.S. 169, 179 (1966)

should be held to preclude the arbitrary targeting of

members of Congress as the unwitting subjects of

Executive Branch experimentation in the corrup-

tibility of public officials. As this Court only

recently repeated, the checks and balances built into

the tripartite Federal Government were regarded by

the Framers as "a self-executing safeguard against

the encroachment or aggrandizement of one branch at

the expense of the other." Northern Pipline, supra,

102 S.Ct. at 2864, quoting Buckley v. Valeo, 424 U.S.

1, 122 (1976) (per curiam).

The Separation of Powers principle was described

by James Madison in the Federalist Papers as one

requiring that none of the branches “possess,

directly or indirectly, an overruling influence over

the others in the administration of their respective

powers." (Federalist Papers, No. 48, quoted in

United States v. Johnson, supra, 383 U.S. at 178-9.)

This point was expanded by Thomas Jefferson, who

wrote that “it was part of the common law, adopted as

law of this land, that [the people's]

Representatives, in the discharge of their functions,

should be free from the cognizance or coercion of the

coordinate branches, Judiciary and Executive." 8 The

Works of Thomas Jefferson 322 (Ford. Ed. 1904).

Preservation of that principle, Mr. Justice Jackson

reminded us in the Steel Seizure Cases, requires

constant vigilance, because the inherent power and

prestige of the Presidency "exerts a leverage upon

those who are supposed to check and balance his power

which often cancels their effectiveness."

Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579,

653-4 (1952). (concurring opinion)

Commitment of the law enforcement and prosecu-

torial functions in the Executive made it necessary

to surround members of the legislative branch with

protections against the misuse of those functions.

The Speech or Debate Clause is one of those shields

which "prevent intimidation by the executive and

accountability before a possibly hostile judiciary."

United States v. Johnson, supra, 383 U.S. at 180-1.24

But the Speech cr Debate Clause has a narrowly

restricted scope, and this Court has not hesitated to

rely on the very structure of our government, as

tive attempts to overreach the legislative branch.

See, e.g., Youngstown Sheet & Tube v. Sawyer, supra.

In the final analysis, Mr. Justice Jackson observed

in Youngstown, "men have discovered no technique for

preserving free government except that the Executive

be under the law." 343 U.S. at 655. Enforcement of

that command is the special province of the judicial

branch, which is why this Court must now determine

the legal limits of Executive intrusion into the

affen the ABSCAM prosecutors developed the asyl un

scenario," they necessarily focused on members of

Congress (DP Tr. at 1421), in whom the Constitution

lodges authority over matters of immigration and

naturalization. That focus was adopted despite the

absence of evidence of actual corruption involving

immigration legislation.

legislative domain when the legislators themselves

have not provoked Executive action by prior viola-

tions of normative rules which the Executive is

empowered to enforce.

As Mr. Chief Justice Burger has more recently

reminded us, the main inspiration for the long

struggle for legislative independence, both in this

country and in England, has been the fear of “the

instigation of criminal charges against critical or

disfavored legislators by the Executive..." United

States v. Helstoski, 442 U.S. 477, 491-2 (1979),

quoting from United States v. Johnson, supra, 383

U.S. at 182. Even “the mere threat of an indictment

is enough to intimidate the average Congressman and

jeopardize his independence." Id. at 205. The

danger that disfavored legislators will become the

targets of prosecution by the Executive is greatly

enhanced when the allegedly illegal conduct that is

made the subject of prosecution is entirely the pro-

duct of government inducement. For in such a

situation there is no natural check on the selection

of targets25 or on overzealous efforts to generate a

prosecution.

Further compounding the problems inherent in the

application of bribery “stings” to the conduct of

elected officials is their dependence on the campaign

contributions of constituent groups. As Mr. Justice

White has noted, “(mutuality of support between

legislator and constituent is inevitable.... It will

be the rare Congressman who never accepts campaign

contributions from persons or interests whose view he

has supported or will support, by speech making,

voting, or bargaining with fellow legislators."

United States v. Brewster, 408 U.S. at 558

(dissenting opinion). This provides, as Mr. Justice

White further noted, wide “scope for an Executive

prone to fish in legislative waters ... The possibi-

2Syudge Fullam, who presided at the Philadelphia

trial, observed that Mel Weinberg was strongly moti-

vated to produce results for his FBI employers."

United States v. Jannotti, 501 F. Supp. 1182, 1193

(1980), reversed 673 F.2d 578 (3d Cir., 1982), cert.

denied, U.S. „ 102 S.Ct. 2906 (1982).

Weinberg also indfcated a desire to even up the score

by producing “some Republicans." (Ex. MC at 1-2)

lities are indeed endless, as is the potential for

abuse." 408 U.S. at 560.

Robert Stewart, the Attorney in Charge of the

Justice Department's Newark Strike Force, commented

on this problem in an early ABSCAM memo. In his

judgment, ABSCAM posed dangers not present in more

traditional sting operations involving contraband,

where the illegality of the transaction involved is

unmistakable from the outset. According to Stewart:

In the present investigation, the

circumstances are fundamentally

different because there is nothing

inherently illegal about either

the nature of the meeting place

or the general topic of conversa-

tion. Indeed, absent specific facts

to the contrary, there is an initial

presumption of legality because of

‘the positions which the suspects

occupy and because of the ostensibly

legitimate nature of the things under

discussion--whether those things be

the operation of a business, economic

develcpment in a particular area, or

the protection of the human rights and

indeed the very life of a foreign

national who is touted as nothing more

than a legitimate entrepreneur. Hence,

the decision for further investigative

action cannot be controlled by the

criteria which govern such decisions

in a conventional “sting” operation,

but must depend instead upon the demon-

‘nfect the parcicular traasaction with

illegality. (op Ex. 15 at 4)

To prevent the improper targeting of non-predisposed

defendants, Prosecutor Stewart thought it necessary

to develop an independent basis on which to assess

each individual's willingness to engage in criminal

activity. Id. That was not done here. The govern-

ment relied completely and uncritically on Howard

Criden's representations as to Thompson's corrupt

intentions--despite the fact that Criden had pre-

viously demonstrated his unreliability in a variety

of contexts .26

Police discretion to single out targets for sur-

veillance and/or prosecution is intolerable under any

circumstances because of the “grave danger" of abuse,

Delaware v. Prouse, 440 U.S. 648, 662 (1979), holding

that highway police may not arbitrarily choose which

motorists to investigate absent reasonable cause to

205ee Statement of the Case. Moreover, executive

branch agents persisted in their efforts to compro-

mise Thompson even after he had rejected their ini-

tial offers of a bribe (Ex. 7Al at 13) and even

though Agent Anoroso remained unpersuaded that

Thompson had any intention of succumbing to their

corrupt offers. (Ex. a

select one rather than another. And OSHA inspectors

may not arbitrarily choose which business to target

for safety inspection. Marshall v. Barlow's, 436

U.S. 307 (1978). Otherwise, individuals would be

subjected to the whim and caprice of prosecuting

officials. See also Papachristou v. City of

Jacksonville, 405 U.S. 156 (1972) (vagrancy statute),

and Grayned v. City of Rockford, 408 U.S. 104 (1972)

(picketing regulation).

In each of the above-cited cases, this Court was

concerned with the dangers of arbitrary and discrimi-

natory enforcement inherent in any scheme which

lacked objective standards limiting the discretion of

the public officials responsible for enforcing the

law. In none of those cases did the Court assign to

the defendant the nigh impossible task of

demonstrating that the government had actually abused

its discretion in selecting him as the target for

prosecution or investigation. Instead, the Court

insisted on the observance of objective standards to

justify governmental intrusion on the individual's

privacy and security.27 Certainly, the need for

restraint on arbitrary action is far more compelling

here, where the instrusion involves the marshalling

of sophisticated and powerful manipulative techniques

to entice members of a coordinate branch of govern-

ment into criminal activity.

Since it is unquestioned that at the time former

Congressman Thompson was subjected to inducement to

commit federal crimes the government had absolutely

no basis for suspecting that he had ever conducted

his legislative affairs in a corrupt or illegal

manner, 28 this case presents the appropriate vehicle

for determining the scope of FBI authority to tempt

27While the Senate Select Committee concluded that

ABSCAM itself did not encroach upon legislative inde-

pendence or endanger "the constitutonally mandated

separation of powers,” it did assert that “Secret

police powers exercised honorably by today's high-

minded officials can readily be tomorrow's abuses in

the hand of less scrupulous administrators." (Final

Report, "Summary of Recommendations," at 70.) -

28as the trial court noted, there was no evidence

of any prior activity on the part of any of the

defendants, including Thompson, that “would warrant

suspicions of criminality in the conduct of their

legislative affairs." (148a)

legislators into corruption.

B. The Surreptitious Videotaping of

a Congressman's Conversation, in

the Absence of a Warrant or Reason-

able Suspicion to Believe a Crime

Had Been Or Was About to be Committed,

Jeopardizes Rights of Privacy Protected

by the Conjunction of the First &

Fourth Amendments as Well as the

Principle of Legislative Independence

The Court of Appeals mechanically applied this

Court's holdings in White, supra, and Lopez, supra,

in concluding that “mechanical recordings of the

sights and sounds to which the agents could have

testified were proper evidence." (81-2a) In so

doing, the Court failed to consider (1) the fact that

in both White and Lopez the police had probable cause

to believe the targets of the surveillance were

involved in commission of a crime; (2) the substan-

tial differences between audio and videotaping and

the impact on society of unrestricted police use of

hidden cameras; or (3) the impact of such methods

upon the political process when employed against a

member of the legislative branch.

In both Lopez and White, government agents had

implanted either a recorder or a transmitter on an

informer involved with the defendant in an illegal

transaction.29 In each case, this Court held there

was no constitutional infirmity in using a device

that could corroborate the informant's testimony

about the transaction. Both Lopez and White were

suspects in ongoing criminal investigations against

whom there was substantial probable cause to believe

they were about to commit a crime.20 The only

substantial constitutional issue involved was

whether, despite probable cause, such surveillance

required advance judicial approval in the form of a

warrant.

In sharp contrast, the FBI had neither a warrant

nor probable cause to target Frank Thompson. Thus,

this case presents the issue of electronic sur-

23Tn Lopez, the informant recorded the conversation

on a tape recorder concealed on his body. In White,

the radio transmitted the conversation to agents who

were monitoring the frequency.

30Lopez was an innkeeper who had previously

offered the wired Internal Revenue agent a bribe to

minimize his tax liability. 373 U.S. at 430. White

was a narcotics dealer who had previously engaged in

illegal ee with the bugged informant. 401

U.S. at ;

veillance in a context not contemplated by this Court

in either Lopez or White.

If, in fact, law enforcement agencies have carte

blanche to electronically monitor the conversations

of Americans, elected officials or not, whenever

there is other-party consent, the implications for

our notions of privacy and liberty are far-reaching.

Even in the far less threatening circumstances of

Lopez, Mr. Justice Brennan's dissent warned of the

deliterious social consequences of assigning such

powers to police agencies: “Electronic surveillance,

in fact, makes the police omniscient, and police

omniscience is one of the most effective tools of

tyranny." 373 U.S. at 466. In addition to the

dangers such surveillance posed to the rights of pri-

vacy and liberty guarded by the Fourth and Fifth

Amendments, Justice Brennan also warned of its capa-

city to stifle free communication and discourse

guarded by the First Amendment: “Electronic

surveillance destroys all anonymity and all privacy;

it makes government privy to everything that goes

on." Id. at 471. Twenty years before ABSCAM,

Justice Brennan added these prophetic words:

I cannot but believe that if we continue

to condone el ec tronic surveillance by

federal agents by permitting the fruits

to be used in evidence in the federal

courts, we shall be contributing to a

climate of official lawlessness and

conceding the helplessness of the

Constitution and this Court to protect

rights ‘fundamental to a free society.

(Id. at 470)

Several years later, Mr. Justice Harlan, the

author of the Lopez majority opinion, echoed the

Brennan dissent when police monitors were permitted

to tune in on the bugged conversation in the White

case. Calling for judicial supervision of such prac-

tices, Mr. Justice Harlan wrote that "were third-

party bugging a prevalent practice, it might well

smother that spontaneity... that liberates daily

life.” Id. at 787. Without a warrant procedure, he

warned, every law-abiding member of society is at

risk." Id. at 789.

Growing judicial concerns over the consequences

of a “bugged” society were noted by Professor George

Dix of the University of Texas Law School in

“Undercover Investigations and Police Rulemaking," 53

Tex. L. Rev. 203 (1975). Warning of the threat to

privacy interests when police use electronic sur-

veillance techniques, Professor Dix noted "the effect

may be indirect. Each person not themselves the sub-

ject of such investigations may be affected by aware-

ness that such investigations occur and the possibi-

lity that they may be subjected to one." Id. at

211-12. Professor Dix emphasized that “especially

important activities," such as the free exchange of

ideas, will be undermined by “actual or anticipated

undercover investigations." Id. at 212.

A similar theme was sounded by this Court in a

unanimous opinion in United States v. United States

District Court, 407 U.S. 297 (1972) holding unconsti-

tutional so-called "domestic security" wiretaps in

the absence of a warrant. There, the Court warned

that "Fourth Amendment protections become the more

necessary when the targets of official surveillance

may be those suspected of unorthodoxy in their

political beliefs," because "[t]he price of lawful

public dissent must not be a dread of subjection to

an unchecked surveillance power." Id. at 314

Analogous issues are raised by this case. In

District Court, this Court forbade the electronic

surveillance of political dissidents without a

warrant based on probable cause because of the pall

that would be cast over the right of dissent if

government agents were allowed to exercise such power

in the name of "so vague a concept as the power to

protect ‘domestic security. Id. at 314 In this

case, the Court should consider the scope of FBI

power to secretly videotape Frank Thompson under the

equally vague rubric of ferreting out official

corruption, because of the impact such power in the

hands of the executive branch would have upon the

political independence of members of the legislative

branch. This case, like District Court, involves a

"convergence of First and Fourth Amendment values not

present in cases of ‘ordinary’ crime." Id. at 313.

The threat posed grows increasingly ominous as

science furnishes police agencies with ever more

sophisticated and intrusive means of surveillance. 31

See generally A. Westin, Privacy and Freedom (1967).

Electronic audio bugging intrudes upon the privacy of

an individual's spoken word; videotaping goes

substantially further by seizing the visual mani-

festations of an individual's actions as well as

aural impressions. Recent sociological and psycholo-

gical studies have examined the impact on behavior of

overt videotaping. It is obviously much more dif-

STK half century ago, In Olmstead v. United States,

277 U.S. 438, 474 (1928), Mr. Justice BrandeTs

predicted:

Ways may some day be developed by which the

Government without removing papers from

secret drawers, can reproduce them in

court, and by which it will be enabled to

expose to a jury the most intimate

occurrence of the home ... Can it be that

the Constitution affords no protection

against such invasions of individual

security?

Much later, the Court in Silverman v. United States,

365 U.S. 505, 509 (1961), warned of "frightening

paraphernalia which the vaunted marvels of an

electronic age may visit upon human society.” A few

years later Justice Douglas warned that "we are

rapidly entering the age of no privacy, where

everyone is open to surveillance at all tines.“

Osborn v. United States, 323 U.S. 322, 341 (1966).

ficult to test the impact on behavior of covert

videotaping once it is socially recognized that such

surveillance is permissible. Ironically, other

government agencies have apparently acknowledged the

dangers of surreptitious videotaping and have adopted

strict guidelines forbidding its use in funded

research. See Weimann, “Effects of Laboratory

Videotaping Procedures on Selected Conversation

Behaviors," 7 Human Communications Research 302 (1981).

But surely the most vivid description of the

impact of the ubiquitous video-camera on human beha-

vior comes not from social science, but from litera-

ture. It is from George Orwell's classic novel of

life in the fictional Oceania, which, appropriately,

takes place in the year "1984":

There was, of course, no way of

knowing whether you were being

watched at any given moment. How

often, or on what system, the

Thought Police plugged in on any

individual wire, was guesswork.

It was even conceivable that

they watched everybody all the

time. But at any rate they could

plug in your wire whenever they

wanted to. You had to live--did

live, from nabit that became in-

stinct--in the assumption that

every sound you made was overheard,

and, except in darkness, every

movement scrutinized.

[George Orwell, 1984]

This case presents this Court an opportunity to con-

sider just how far this society shall be permitted

to proceed down that chilling path. If the FBI could

film the meetings of Frank Thompson at the house on W

Street, then why could they not do the same after

luring him to a barroom or an illicit bedroom--

possibly on a theory of ferreting out Congressmen who

might be subject to sexual blackmail? If they can do

it to a Congressman who has legislative jurisdiction

over the FBI why not to a judge before whom their

prosecutions are to be tried?

In United States v. Nixon, 418 U.S. 683 (1974)

and Nixon v. Administrator of General Services, 433

U.S. 425 (1977), this Court recognized a qualified

privilege of confidentiality in Executive conver-

sations which can be breached only for the weightiest

of reasons. The same identical considerations apply

at both ends of Pennsylvania Avenue. Congressmen,

too, and those who assist them, like the President

and his advisors “must be free to explore

alternatives in the process of shaping policies and

making decisions and to do so in a way many would be

unwilling to express except privately.... The privi-

lege is fundamental to the operation of Government

and inextricably rooted in the separation of powers

under the Constitution.” 418 U.S. at 708.

The Court again emphasized that the confiden-

tiality of Presidential communications rests not on

any specific clause of the Constitution, rather “the

privilege can be said to derive from the supremacy of

each branch within its own assigned area of consti tu-

tional duties." 418 U.S. at 705. Certainly the

doings of Congressmen acting in their assigned area

of constitutional duties warrant and need the same

degree of constitutional protection.

II. THIS COURT MUST PROVIDE GUIDELINES TO THOSE

WHO ENFORCE AND ADMINISTER OUR CRIMINAL

JUSTICE SYSTEM AS TO THE DUE PROCESS RE-

STRAINTS UPON GOVERNMENT AGENTS IN THE

INDUCEMENT OF AND PARTICIPATION IN

CRIMINAL ENTERPRISE

Since its decision in Sorrells v. United States,

287 U.S. 435 (1932), a half century ago, this Court

has attempted periodically to define the outer limits

of government participation in criminal acivity in an

effort to apprehend law-breakers. In the Court's

most recent endeavor, an opinion which apparently

reflected the least common denominator of a then

majority merely acknowledged that government action

might at some point reach a “demonstrable level of

outrageousness“ that would violate Due Process and

bar the prosecution from obtaining a conviction of

the accused. Hampton v. United States, 425 U.S. 484,

495 n.7 (1976) (Powell, J., concurring.) Petitioner

suggests this is the appropriate case for the Court

to articulate the appropriate Due Process standards

and/or to define the reach of its own supervisory

powers in controlling official law-breaking.32

—S2stice Petitioner assumes that other ABSCAM defen-

dants will devote substantial parts of their peti-

tions to this issue, and a of space

The absence of meaningful standards has provoked

an enormous amount of critical legal commentary and

has created confusion and conflict in the lower

federal courts, as the disparate treatment of ABSCAM

prosecutions graphically demonstrate. Two of the

three District Court Judges who have thus far heard

these cases have found that the government's conduct

went beyond the Due Process pale. Judge Fullam found

that the “techniques employed" by the FBI “went far

constraints, we will severely limit our argument on

this important point.

In view of space limitations, Petitioner will

also omit argument concerning the lower courts’ refu-

sal to allow him to seek acquittal on the basis of

legal entrapment because he declined to seek a jury

instruction on the question. (See Question Presented

No. 4) The Court of Appeals held that “a defendant

who fails to assert entrapment as a factual defense

at his trial, cannot assert it as a legal defense to

his conviction.” (29a) Petitioner believes that

ruling was inconsistent with the theory behind this

Court's holding in Sorrells, supra, that entrapment

does not have to be raTséd by a plea in bar but is

hye by a plea of not guilty, 287 U.S. 452,

ecause proof of non-entrapped acts is a materia)

element of every offense under federal statutes. See

United States v. Demma, 523 F.2d 981, 983 (9th Cir.,

ould the Court grant cert, he

— 5 Tike to reserve the right to brief that issue.

beyond the necessities of legitimate law

enforcement." United States v. Jannotti, supra, 501

F. Supp. at 1204. Although the Court of Appeals

reversed, 673 F.2d 578 (3d Cir., 1982), it had simi-

Jar difficulty in determining the appropriate legal

standard:

If the contours of the entrapment

defense are imprecise, we have at

least been able to make an effort

to delineate them. A similar de-

lineation of the conduct circun-

scribed by the due process defense

is, at best, elusive. (673 F.2d

at 606)

Viewing the same set of facts, Judge Aldisert,

writing for himself and Judge Weis in dissent, found

that ABSCAM “eminates a fetid odor whose putrescence

threatens to spoil basic concepts of fairness and

justice," and compared the methods employed by the

FBI to those of the Gestapo. 673 F.2d at 613. Judge

Bryant, who presided at the Kelly case (United States

v. Kelly, 539 F.Supp. 363 (DC, oc 1981), also

acquitted the defendant on Due Process grounds,

because the government agents persisted in their

effort to corrupt the Congressman after he had

rejected their initial bribe offer -- a situation

remarkably similar to what was done to Thompson. 539

F. Supp. at 377.33

In this case, Judge Pratt could discern no clear

standard from the case law to determine whether the

government conduct was “outrageous,” but constructed

his own 22-point test. (138-40a) The Second Circuit

ignored Judge Pratt's standard, and appeared to limit

the Due Process defense to cases of coercion and

bodily intrusion. (32a)

The conflict in the Circuits over the proper due

process standard is graphically reflected in the

unseemly struggle that took place between the United

States Attorneys offices in New Jersey and Brooklyn

over ABSCAM procedures, resulting in a decision by

the chief prosecutor to try as many of the cases as

possible in the Second Circuit rather than in the

Third Circuit, where the prevailing precedent was

S3Judge Penn has had these same issues under advi-

sement for more than a year in the Jenrette case.

(D.C., D.C. Crim. Case 90-289)

United States v. Twigg, 588 F.2d 373 (1978) .34 Former

New Jersey United States Attorney William Robertson

testified to this conflict before the House Judiciary

Committee on September 16, 1982, stating that he had

unsuccessfully resisted pressures from Washington to

transfer the cases to the Eastern District of New

York because he felt that would be improper “forum

shopping."39

341m Twigg, the 3rd Circuit had dismissed a prose-

cution because government agents had generated crimes

by the defentant "merely for the sake of pressing cri-

minal charges against him when ... he was lawfully

and peacefully minding his own affairs." 588 F.2d at

1 to Robertson:

Af ter the conclusion of the meeting,

Mr. Weingarten approached me privately

and indicated that “Washington” wanted

him to determine what my position or re-

actior, would be to transferring the

MacDonald matter to the Eastern District

of New York in order to avoid the impact

of the Twigg decision.... [Alfter I had

a chance reflect further on the trans-

fer question, I indicated to Mr. McMurray

. that he should advise Mr. Weingarten

that I thought about the proposal some

more and that I firmly opposed any trans-

fer of the matter since it would be viewed

as forum shopping and an abuse of the

Grand Jury in the District of New Jersey.

(FBI Undercover Guidelines: Hearings

Before the Subcomm. on Civil and

Constitutional Rights of the House

Committee on ae 97th Cong.,

—

This case is the paradigm of government

“outrageousness" under the test employed by the Third

Circuit in Twigg -- the creation of a criminal

enterprise out of whole cloth and the enticement of

suspicion-free persons into the net. 36 Indeed, it

would appear that in targeting Thompson the FBI

violated the Attorney General's own Guidelines on

Criminal Investigations of Individuals and

Organizations, which provide that individuals "should

be free from law enforcement scrutiny that is under-

taken without a valid factual predicate,"37 and

2d Sess. (Hereinafter House Hearings),

unpublished statement of William

Robertson at 24-5).

360ne ABSCAM critic commented: "It is bad, evil,

illegal and unconstitutional for officers of the

United States to engage in the deliberate manufacture

of crimes in the hope that their synthetic crimes

will ensnare the bad guys." Gould, "A Defeat for Law

and Order," New York Law Journal (Feb. 15, 1980).

37The American Civil Liberties Union in its report

on "The Lessons of SCA“ as well as almost every

scholar who has commented on ABSCAM -- both those who

support such sting operations as necessary law enfor-

cement techniques and those opposed to them -- agree

that there ought to be a factual threshhold of suspi-

cion before a bribe offer is made. A number of those

comments are set forth in the Final Report of the

Senate Select Committee on ABSCAM. See especially

excerpts from Professor James Q. Wilson, the

further provide:

An investigation may be opened

when there are facts and cir-

cumstances that “reasonably

indicate” a federal criminal

violation has occurred, is

occurring or will occur. This

standard of “reasonable indication"

is substantially lower than pro-

bable cause, but does require

specific facts or circumstances

175 8185 a MOG E (DP Ex. 3)

emphasis a

ABSCAM makes clear that the Justice Department and

FBI cannot be relied upon to enforce their own guide-

lines for protection of individual rights and empha-

sizes the need for judicial guidelines.

criminologist; Amitai Etzioni, professor of sociology

at George Washington University; and Professor Louis

Seidman of the Georgetown Law Center. ("The ABSCAM

Operation: An Example of the Benefits and Risks of a

Long-Term, Complex FBI Undercover Operation and a

Demonstration of the Need for Modifications to

Existing Statutes, Guidelines and Operational

Procedures," Final Report of the Senate Select

Committee, Introduction at 5-6. Hereinafter Senate

Final Report. References are to the mimeographed

version, each separately titled section of which is

independently paginated.)

38 1 though these Guidelines were not promulgated

until Dec. 2, 1980, the issuing statement by Attorney

General Civiletti asserted that they essentially

“reaffirm current investigative practices of the

FBI."

Indeed, not only was the Attorney General's

“predicate” Guideline violated by the ABSCAM pro-

bers, wholesale violations of many of the investiga-

tive Guidelines are pointed out in the Final Report

of the Senate Select Committee. That Report harshly

criticizes the operation for reliance on corrupt and

unreliable middlemen who were permitted to clan-

destinely share in alleged bribe payments and went

largely unsupervised in their endeavors to entice

suspicion-free public officials before the ABSCAM

cameras.29 Former New Jersey US Attorney William

99 n9 the Select Committee’ s findings:

The FBI's consistent practice in ABSCAM

was to rely, in approving bribe offers,

upon the representations of middlemen

that specified public officials would

accept bribes. Some of those represen-

tations were uncorroborated in every

sense of the word: the FBI had no ex-

trinsic evidence that the named public

official had previously accepted or

solicited a bribe or had committed any

other crime; and the FBI had no extrinsic

evidence that the middleman knew the

public official well enough to know

whether his own representations about the

public offical were true.... In some

cases the FBI continued to rely on niddle-

men even after they had proved to be un-

reliable in this regard. (Summary of

Findings at 39-40)

Robertson was even more scathing in his criticism of

his former Justice Department colleagues in testimony

before the House Judiciary Committee. Robertson

testified that his superiors in Washington even

resisted his office's demands that exculpatory evi-

dence be examined and turned over to those who were

indicted. He declared: "I have never during the

course of my career as a prosecutor been exposed to

such institutional resistance and an intentional

attempt to thwart the discovery of facts that were

relevant to a criminal investigation." (House

Furthermore, the Committee found that “the

middleman had a strong incentive to produce as many

public officials as he could, hoping that some per-

centage of them could be persuaded to accept bribes,

whatever their initial inclinations or past records

pig + Ma been. (Deficiencies Actual and Alleged,

at 27

The Committee also found the FBI ignored guide-

lines requiring that all “bribe” offers be “clear and

unambiguous” as to their illegal nature.

(Allegations That Videotape Meetings With Thompson

and Mur phy Were Deliberately Ambiguous, at 3) for

example: “Despite instructions from FBI HQ that on

their face seemed to forbid it, Amoroso allowed

Criden to leave both [the Murphy and Thompson]

meetings in possession of 7 money." (Id. at 7)

Hearings, Robertson statement at 53)

The evidence of such "due process“ infringements

in the ABSCAM record are massive and are common to

all of the ABSCAM prosecutions.49 Unique to the

Thompson prosecution, and what makes this probably

the most “outrageous” case of all, is the deliberate

effort of FBI sting-man Weinberg to seduce the defen-

dant by working on his perceived weakness for alco-

hol. It will not go down as one of law-enforcement's

finest hours when Weinberg instructed Criden on how

to get Thompson to accept their offer before the

camera:

THE SHITTIN GUY'S A BOOZER;

***

GIVE HIM ANOTHER ORINK41

vnd presumably will be detailed in the other Cert

petitions. £.g., Petitioner is aware that the Murphy

Petition will focus on the creation of false evidence

by creative and selective use of audio and video

tapes and the use of ambiguous language.

4lthis may well have been the incident the editors

of the prestigous New Jersey Law Journal had in mind

when they wrote: “Where citizens“ stomachs are

turned by fundamental unfairness, is there an equiva-

lent federal organ to detect that unfairness? The

ABSCAM gece rent wending their way through the

judicial system will tell whether there is a federal

stomach capable of being turned." Editorial, "ABSCAM

Unless this Court grants Certiorari, such opera-

tions are going to become, indeed already have

become,42 commonplace in American law enforcement.

Professor Alan Dershowitz of Harvard Law School rec-

cently observed:

The scam as a technique of law

enforcement is now out of control.

Every prosecutor, undercover in-

vestigator and policeman ... is

free to conduct any scam he sees

fit without fear of judicial

rebuke.... The government cannot

be allowed to select targets at

will, expose them to all manner of

temptation and then pounce on those

who succumb. (quoted in the

Senate Final Report, Introduction at 2)

Indigestion,” (Feb. 5, 1982)

42The budget for FBI “sting” operations rose from

$1 million to $4.5 million and the number of such

operations from 53 to 463 between 1977 and 1981.

(Senate Final Report, Introduction, at 1.) The

Select Committee further reports that the Internal

Revenue Service, the Drug Enforcement Administration,

the Immigration and Naturalization Service and state

and local governments are greatly expanding the use

of “sting” operations. (Id. at 10)

Such operations are appealing to police for

several reasons. First of all, compared to real

crime it's like shooting fish in a barrel.

Furthermore, as a sociologist states, it's a way of

avoiding disfavored legal restraints. See Marx, “Who

Really Gets Stung? Some Issues Raised by the New

Police Undercover Work," Crime and Delinquency

(April, 1982) ya

Professor Dershowitz's observation is regularly

confirmed by reports of mini-ABSCAMs all across the

country. A sampling:

° In Bridgeport, Conn. the Chief of Police

wound up arresting an FBI sting-man who was told by

the FBI to offer the chief a bribe in exchange for a

towing franchise. The Bridgeport police confiscated

both the FBI "payoff" and its surveillance equipment.

(See New York Times, Aug. 21, 1981, B3)

° A New Jersey Superior Court Judge recently

dismissed the indictment of several jockeys for

fixing races at the instigation of State Police emu-

lating the FBI. (New York Times Jan. 7, 1982, II,

9:1) Noting that the police had no basis to suspect

any of the jockeys were corrupt, the Judge declared:

"The government in effect committed crimes in order

to ensnare some jockeys. If police agencies are

given such free rein, then the only limits *o their

undercover ‘stings’ are their imaginations." (New

Jersey v. Kelley, et. al., Sup. Ct. of N.J., Bergen

County, Law Div., Ind. No. SGJ-85-82(4), Nov. 8, 1982)

. In Cleveland, the FBI spent 4 years seeking

to corrupt judges and other court personnel in an

alleged bribery investigation. The Cleveland

'Criden' was a man named Marvin Bray, who said he

could fix judges for a price. Bray had friends pose

as judges and wound up splitting the FBI's bribe

money with them. (Cleveland Plain Dealer, July 4,

1982) The only people who wound up indicted were

sting-man Bray and two of his associates who imper-

sonated judges. In the process, however, the FBI

smeared the reputation of Municipal Judge Clarence

Gaines before discovering the man who impersonated

Judges Gaines before the FBI's hidden cameras was one

of Bray's associates. (Cleveland Plain-Dealer, July

21)

Unless this Court agrees to review this case and

set some threshhold requirement before police can

instigate crimes and attempt to ensnare suspicion-

free citizens, we are all suspects -- and the U.S.A.

will be a nation of suspects.

III. THE JURY INSTRUCTION ON CREDIBILITY

CHILLS THE RIGHT OF A CRIMINAL

DEFENDANT TO TAKE THE WITNESS STAND ON

HIS OWN BEHALF, IMPROPERLY INFLUENCES

THE JURY, AND CONFLICTS WITH THE

DECISIONS OF THIS COURT IN HICKS X.

UNITED STATES AND REAGAN V. UNITED

STATES

Thompson took the stand at trial and testified

in his own defense that he neither had promised to

assist the fictional sheiks in their immigration

problems, nor had he received any beneficial quid pro

quo in exchange. In contradiction, the Government

produced two live witnesses, Ellis Cook and John

Murtha. Cook gave hearsay testimony under immunity

that his partner Criden had told him that he gave

$25,000 to Thompson. (Tr. at 430-431) Murtha

testified that Thompson came to him on the floor of

the House, said some Arabs had several hundred

million dollars for investment, and that mere would

also be some walking around money available ...

$50,000." (Tr. at 441-442)

Credibility of the witnesses was significant.

On this issue, Judge Pratt began the Thompson part of

the credibility charge with the comment that a defen-

dant “has a deep personal interest in the result of

his prosecution.” He then continued to refer in

progressively harsher language to Thompson's

“greatest interest in its outcome;" to Thompson's

“motive for false testimony;" to Thompson's “interest

in result ... of a character possessed by no other

witnesses,” and finally to Thompson's “strong motive

to lie." The judge culminated this phase of the

charge with the comment that although Thompson “has a

strong motive to lie to protect himself, it by no

means follows that he's not capable of telling the

truthful, straightforward story.“ (Tr. at 3085-6)

The contrast could not have been more extreme in the

credibility charge regarding the government wit-

nesses. Judge Pratt informed the jury that the

Government must “take the witnesses to a transaction

as they are," otherwise "it would be difficult to

detect or prosecute some wrongdoers." He concluded

that “The thrust of all that I have said to you about

accomplices, informers and immunized witnesses is to

caution you to be careful in reviewing that testimony

and weigh it with care." (Tr. at 3083) (emphasis

added)

This charge is in direct conflict with the only

two directly applicable decisions of this Court. In

Hicks v. United States, 150 U.S. 442, 451 (1893), the

trial judge had charged the jury to consider the

self-interest of the defendant which might lead him

“away from the truth.“ The Supreme Court reversed

the conviction because of the charge, stating:

[It must de remembered that men may testify

truthfully, although their lives hang in

balance, and that the law, in its wisdom, had

provided that the accused shall have the right

to testify in his own behalf. Such privilege

would be a vain one if the judge, to whose

lightest word the jury, properly enough, give a

great weight, should intimate that the dreadful

condition in which the accused finds himself

should deprive his testimony of probability.

(150 U.S. at 452)

The Court cited Hicks with approval in Reagan v.

United States, 157 U.S. 301 (1895) and emphasized

that the trial court

is not at liberty to charge the jury

directly or indirectly that the defendant

is to be disbelieved because he is a defen-

dant, for that would practically take away

the benefit which the law grants when it

gives him the privilege of being a witness.

(157 U.S. at 310)

No Circuit other than the 2d has permitted

charges that explicitly instruct the jury that a

defendant “has a strong motive to lie to protect

himself." Compare opinion by Judge (now Mr. Justice)

Blackmun in Taylor v. United States, 390 F.2d 278,

284-5 (8th Cir., 1968). See also United States v.

Saletko, 452 F.2d 193, 197 (7th Cir., 1971), cert.

den. 405 U.S. 1040 (1972).

With the increasing use of immunized witnesses

and informers, with the growing need for defendants

in "scam" types of prosecutions to explain away the

deliberate manufactured ambiguities captured on

secret government camera, the type of credibility

charge given below is nothing short of a corrup-

tion of the truth seeking function of the trial pro-

cess. It demands this Court's review.

IV. THE DECISION BELOW UPHOLDING THE

GOVERNMENT'S CONCEALMENT OF THE IMMUNITY

GRANTED CONGRESSMAN MURTHA DENIED

PETITIONER THOMPSON HIS RIGHT TO A FAIR

TRIAL, AND CONFLICTS WITH THIS COURT'S

OPINION IN BRADY V. MARYLAND AND RELATED CASES

Congressman John Murtha was the only witness in

this case to take the stand and give direct, first

hand testimony implicating Thompson in the criminal

charges. The issue of his credibility thus was cru-

cial in this case.

There was a videotape showing Murtha in a

compromising situation with FBI agents at the W Street

house. Consequently, prior to trial, Thompson made a

specific request for any materials regarding witness

immunity, including "all information reflecting or

referring to or constituting, containing, reflecting

or suggesting: (a) any promises or indications of

immunity, leniency, decisions not to prosecute or

favorable treatment to any person, including ... John

p. Murtha.” (letter to Thomas J. Puccio, Esq. dated

June 23, 1980, Exhibit A to Motion for Production of

Documents and other Materials) (emph. added) The

government did not inform Thompson prior to trial of

any "deals" with Congressman Murtha.

At trial, Murtha was pressed hard on cross-

examination, but kept denying that any dea!“ had

been made with the government. (Tr. at 1864, 1865,

1885, 1893). The government was asked to state on the

record the full extent of any promises or assurances

made to Murtha; and Prosecutor Puccio denied any pro-

mise that Murtha would not be indicted at a later

time. (Tr. at 1932)

At trial's end, Thompson wanted a stipulation on

Murtha's status for closing argument, and Puccio

stated that he would not speculate on whether or not

there would be any future indictments. (Tr. at

2781-2782) Irving Nathan, then Deputy Assistant

Attorney General, was in the courtroom at the time,

and said nothing. He later admitted at the “due

process” hearings that a decision had been made not

to indict Murtha at the time the decision was made to

go ahead with the indictments against Thompson and

Murphy. (DP Tr. at 608). He further testified that

the House Ethics Committee, of which Murtha was a

ranking member, had been advised in the summer of

1980, about the time Congressman Kelly was indicted,

that no additional indictments would be sought. (DP

Tr. at 611-612)

This Court held in Brady v. Maryland, 373 U.S.

83 (1963) that the suppression by the prosecution of

evidence favorable to the accused is a violation of

due process when the evidence is material to either

guilt or punishment. When a specific request is

made, the evidence suppressed is deemed material if

its disclosure “might have affected the outcome of

the trial." United States v. Agurs, 427 U.S. 97, 104

(1976). Government concealment that a witness

testified under a grant of immunity or promise of

leniency is a classic example of a Brady violation.

DeMarco v. United States, 415 U.S. 449 (1974); Giglio

v. United States, 405 U.S. 150 (1972).

Full disclosure is especially required when it

is the government which originates the criminal

design and implements the details through corrupt

middlemen to add the requisite touch of authenticity

to the “scam.”

The high risk of corruption and sel f-

aggrandizement requires that the prosecutor be held

to the highest duty to disclose all information rele-

vant to the defendant's preparation for trial, and

for a fair trial itself.

The issue here is important to the conduct of

criminal trials in federal courts, is recurrent, and

warrants this Court's attention.

CONCLUSION

The Petition for Certiorari should be granted.

January 1983

Respectfully submitted,

Frank Askin

Constitutional Litigation Clinic

Rutgers Law School

15 Washington Street

Newark, New Jersey 07102

(201) 648-5687

Counsel of Record

Daniel Pollitt

c/o Univ. of North Carolina

Law School

Chapel Hill, No. Carolina 27514

Neil Rutledge

3636 16th St., N.W. - B402

Washington, D.C. 20010

Attorneys for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.