Amicus Brief — Frank Thompson, Jr. v. United States

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& No. 82-1199

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

>

FRANK THOMPSON, JR.,

Petitioner,

—vVsS.—

UNITED STATES OF AMERICA,

Respondent.

MOTION OF THE AMERICAN CIVIL LIBERTIES

UNION FOR LEAVE TO FILE AND BRIEF

AMICUS CURIAE IN SUPPORT OF PETITIONER’S

APPLICATION FOR A WRIT OF CERTIORARI

BURT NEUBORNE

Counsel of Record

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

FRANK THOMPSON, JR.

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE IN SUPPORT OF PETITIONER'S

APPLICATION FOR A WRIT OF CERTIORARI

The American Civil Liberties Union

respectfully moves for leave to file

the annexed brief amicus curiae in

support of petitioner's application for

a writ of certiorari to the United

States Court of Appeals for the Second

Circuit.

The American Civil Liberties

Union is a nationwide, non-partisan

organization of over 250,000 members

dedicated to the protection of

fundamental liberties guaranteed by

the Constitution. One of the basic

guarantees of our Constitution assures

Americans that they will not be the tar-

get of intrusive governmental investi-

gative techniques in the absence of

particularized information, subject to

effective verification by an independent

authority, tending to suggest that the

target of the investigation is involved

in, or possesses information concerning,

a violation of law. When the investi-

gative techniques in question are the

traditional ones of search, seizure

or arrest, this Court has painstakingly

evolved a legal structure designed to

shield Americans from arbitrary fishing

expeditions based upon subjective consid-

erations which do not rise above the

level of hunch. E.g. Delaware v. Prouse,

» 44 «

440 U.S. 648 (1979); Brinegar v. United

States, 338 U.S. 160 (1949); Payton v.

New York, 445 U.S. 573 (1980). In such

traditional contexts, the government

must, generally, obtain a warrant from

a neutral magistrate upon a showing of

probable cause before initiating the

intrusive investigative technique. Even

in the less structured context of investi-

gative street stops, this Court has re-

quired an investigating officer to demon-

strate an "“articulable suspicion" and not

a mere hunch, as a pre-condition to con-

ducting intrusive investigative activity.

E.g. Terry v. Ohio, 392 U.S. 1 (1968).

This petition arises out of a non-

traditional investigative technique --

the Abscam investigation, pursuant to

which selected members of Congress were

encouraged by a government informant

- iii -

and corrupt middlemen to commit an unlaw-

ful act while being videotaped by the

FBI at a pre-selected location. While

the Abscam technique is non-traditional,

it is clearly as intrusive as a garden

variety search which would have required

a warrant and probable cause; and far

more intrusive than a street stop which

would have required a demonstration of

articulable suspicion. In contrast with

those more traditional forms of investi-

gation, the Abscam technique is subject

to no effective restraints whatever.

No effective mechanism existed to assist

in selecting the targets; no effective

controls existed on the conduct of the

investigation. In a very real sense,

the investigation, with its extraordi-

narily intrusive techniques verging on

entrapment and its sensitive separation

-iv-

of powers overtones, unrolled on the

basis of the hunches and improvisa-

tions of totally unrealiable govern-

ment informants, corrupt middlemen and

the lower echelon law enforcement per-

~ sonnel who work with them. Putting aside

the serious separation of powers and en-

trapment issues raised by the Abscam

investigation, it seems clear that if

non-traditional investigative techniques

such as those used in Abscam are to

supplement the traditional law enforce-

ment arsenal, this Court should consider

the extent to which the Fourth Amendment

and the Due Process Clause require a

degree of procedural protection surround-

ing their use. Specifically, at least

the following questions require resolu-

tion by this Court:

1) What substantive standard

should be met before a law

enforcement agency may uti-

lize techniques similar to

those used in Abscam in the

investigation and detection

of crime?

2) What procedures should be

required in order to auth-

orize intrusive investiga-

tive techniques similar to

those used in Abscam?

3) What standards and proce-

dures should exist in con-

nection with the targeting

of a specific individual or

group for intrusive investi-

gative techniques similar to

those used in Abscam?

The current state of the law fails

to provide adequate guidance to con-

scientious law enforcement officials

and, because of its lack of precision,

virtually invites abuse. Indeed, the

conduct of the Abscam investigation it-

self demonstrates that hunch and subjec-

tivity dominated the process. Accord-

ingly, the American Civil Liberties

-vi-

Union respectfully moves for leave to

file a brief amicus curiae in support

of petitioner's application for a writ

of certiorari in the hope that the Court

will utilize this opportunity to estab-

lish badly

the use of

techniques

needed guidelines governing

newly evolved investigative

similar to those used against

the petitioner.

February 9,

Respectfully submitted,

VY fu% Pm,

BURT EUBORNE

Counsel of Record

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

1983

*. 985 \°

TABLE OF CONTENTS

Page

MOTION FOR LEAVY TO FILE BRIEF

AMICUS CURIAE a 0066000 6006600 69.0066068. 5

TABLE OF AUTHORITIES... .cccecseeseee ix

INTEREST OF AMICUS CURIAE....seeeeeeeee L

STATEMENT OF THE CASE....ceccccecseseee Ll

REASONS FOR GRANTING THE WRIT......+++- 5

INTRUSIVE INVESTIGATIVE TECH-

NIQUES SIMILAR TO THOSE USED

IN THE ABSCAM INVESTIGATION

MAY NOT BE UTILIZED IN THE

ABSENCE OF:

A. Facts or Circumstan-

ces Which Reasonably

Indicate That the In-

vestigation Will Detect

Criminal Activity That

is Occurring or Likely To

Occur in The Absence of

the Investigation;

B. Reliable Facts or Cir-

cumstances Indicating

That a Specific Target

is Engaging, Has En-

gaged, or is Likely To

Engage in the Illegal

Activity in Question;

and

C. A Determination By An

Independent Authority,

Preferably a Neutral Magi-

strate, That the Prerequi-

sites Set Forth in (A) and

(B) Exist.

- viii -

TABLE OF AUTHORITIES

Cases: Page

Brinegar v. United States,

338 U.S. 160 C1969) wccvceececeseses iii

Delaware v. Prouse,

440 U.S. 648 (1979) wecccccvcccecoces ii

Hampton v. United States,

425 Uses 484 (1976) wccccccceccceces 6

Hoffa v. United States,

385 U.S. 293 (1966) ~.ccocccvecesseseos 5

Lopez v. United States,

373 U.S. 427 (L963) ccccecoesseceeess 6

On Lee v. United States,

383 um FF 747 (1952) cccoccenvescesee 6

Payton v. New York,

445 U.8. 573 (1960) .cccccveccccccse saa

Terry v. Ohio,

392 U.S. 1 (1968) ccccececesessscees £34

United States v. Russell,

411 U.S. 423 (1973) cccccccescesesce 6

United States v. White,

401 Diwe 545 (1974) coccscecceecesse 5

Statutes

18 Us8eCe § 201 [Oa occcscneeeestnsenes 1

18 DaweGs § 203(B) cccccevcesenecessese 1

- ix -

Other Authorities

Page

F.B.1. Undercover Guidelines: Over-

sight Hearings Before Subcommittee

on Civil and Constitutional Rights

of the House Judiciary Committee,

97 Cong., lst Sess. (G.P.O. Serial

MO. 16) ccocccccccvcccccceccceeccccese &@

Report to the Select Committee to

Study Law Enforcement Undercover

Activities of the Review By Its

Counsel of the Confidential

Files Of the F.BoZ. cocccccccccce Lydeh

Testimony Before the Senate Select

Committee to Study Law Enforce-

ment Undercover Activity ‘eeeeeeeenenenene 4

Amsterdam, Perspectives on the

Fourth Amendment, 58 U. Minn.

L. Rev. 349, 406-09 CAG7E) cosceeseccee 8

INTEREST OF AMICUS CURIAE

The interest of the amicus curiae is

set forth in the foregoing motion.

STATEMENT OF THE CASE

The petitioner is a former member of

Congress who was convicted of bribery

(18 U.S.C. § 201 (a)) and conflict of in-

terest (18 U.S.C. § 203 (a)) arising out

of the Abscam investigation. The Abscam

investigation evolved in three phases.

Its initial phase involved a traditional

"sting" operation designed to apprehend

persons dealing in stolen or contraband

property. See generally, Sections III

and IV, Report to the Select Committee

to Study Law Enforcement Undercover Ac-

tivities of the Review By Its Counsel

of the Confidential Abscam Files of the

F.B.1I., pp.5-12, August 18 1982.

The principal F.B.I. informant, Mel Weinberg,

and local bureau agents escalated the in-

vestigation in the fall of 1978 into a

general investigation into political cor-

ruption in New Jersey. Ibid, p.7; Testimony

of William Webster, F.B.I. Undercover Guide-

lines: Oversight Hearings Before Sub-

committee on Civil and Constitutional

Rights of the House Judiciary Committee,

97 Cong., lst. Sess. (G.P.O. Serial No. 18),

April 20, 1982, p.20. Finally, in January,

1980, the investigation broadened into a

general investigation into Congressional

corruption. Ibid, p.1ll. See also, Webster,

Ibid, p.23.

At the initial "sting" level, little

or no danger of abuse existed, since the

illegal activity was narrowly defined

and the targeted parties involved were

self-selecting. However, when the

investigation moved to the area of politi-

cal corruption in New Jersey and, event-

ually, in the United States Congress,

serious issues are raised as to whether a suf-

ficient factual predicate existed to war-

rant the expanded investigation in general

and the choice of specific targets in

particular. The decision to zero in on

political corruption, first, in New Jersey,

and later, in the Congress may or may not

have been based on more than hunch and

rumor. Certainly, however, the choice

of specific targets was seriously flawed,

since the principal decisions as to spe-

cific targets were made by corrupt mid-

dlemen and an unreliable F.B.I. infor-

mant. The net effect of the laxness in

selecting specific targets was the im-

proper involvement of innocent persons,

such as Senator Pressler and Congressman

Hughes, in the investigation. Indeed, it

appears that the principal, if not the

only control on the choice of specific

targets was the F.B.I.'s reliance on the

self-interest of corrupt middlemen to

produce equally corrupt members of Con-

gress. See, e.g. Senate Select Committee

to Study Law Enforcement Undercover Ac-

tivities, pp.118-120 (Testimony of Irvin

B. Nathan); pp. 27-28 (Testimony of

Michael Wilson). See generally, Section X,

The Use of Unwitting Middlemen as a Tech-

nigue for Identifying Suspects and Estab-

lishing Reasonable Suspicion in Report to

the Select Senate Committee By Its Counsel,

pp.28-34.

Thus, whatever the merits of the

Abscam technique as a means of investi-

gating consensual crime, it seems clear

that no effective mechanisms existed to

determine whether a sufficiently high pro-

bability of criminal activity existed --

either as a general matter, or with re-

ference to specific targets -- to justify

its use.

REASONS FOR GRANTING THE WRIT

Although the Court has evolved an

elaborate structure to protect individ-

ual liberty in the context of searches

(including wiretapping), seizures, arrests

and street stops, it has provided virtu-

ally no guidance in the areas of less

traditional investigative techiques, such

as the use of undercover agents and pre-

text crimes. E.g. United States v. White,

401 U.S. 545 (1971); Hoffa v. United States,

385 U.S. 293 (1966); On Lee v. United

States, 383 U.S. 747 (1951); Lopez v.

United States, 373 U.S. 427 (1963),

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

(1976); United States v. Russell, 411

U.S. 423 (1973). The net result has been

the growth of a highly intrusive investi-

gative technique with virtually no con-

trols on its use. In the Abscam case, the

technique involved, not only the use of

undercover agents and pretext crimes, but

the sound and video recording of targets.

When, amicus submits, an investigative

technique achieves such a level of in-

trusiveness, this Court should not ignore

the capacity of abuse latent in its mis-

use. Law enforcement personnel at every level

now have carte blanche to engage in intrusive

undercover activity reaching the verge of

entrapment with no judicial controls.

This Court should grant the petitions

for certiorari arising out of the Abscam

convictions and enunciate the necessary

substantive and procedural rules to permit

innovative law enforcement activity to

flourish without endangering basic Fourth

Amendment values.

In fact, such rules are relatively

uncomplicated and generally accepted.

First, the Court should recognize that the

Fourth Amendment and the Due Process

Clause impose a degree of restraint on

the use of intrusive investigative tech-

niques. Second, the Court should reiter-

ate that such techniques cannot be used

in the absence of facts or circumstances

which reasonably indicate that they will

detect criminal activity which is occurring

or is likely to occur in the absence of

the investigation. Third, the Court

should admonish that such techniques cannot

be used against a specific target in the

absence of particularized information

linking the target to criminal activity.

Finally, the Court should insist upon a

procedural mechanism to assure that sub-

stantive standards governing the use of

such techniques are being respected

Such a set of Fourth Amendment guide-

lines would impose no restrictions on

legitimate law enforcement activity,

while providing badly needed protection

against arbitrary or bad faith investiga-

tions. Amsterdam, Perspectives on the

Fourth Amendment, 58 U. Minn. L.Rev. 349,

406-09 (1974).

CONCLUSION

The petition for certiorari should

be granted.

Respectfully submitted

BURT NEUBORNE

Counsel of Record

JERRY BERMAN

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800