Petition — Howard L. Criden v. United States

October Term, 1982

HOWARD L. CRIDEN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RICHARD BEN-VENISTE

BEN-VENISTE & SHERNOFF

Attorneys for Petitioner

4801 Massachusetts Avenue, N.W.

Suite 400

Washington, D.C. 20016

(202) 966-6000

7961 ‘LUTZ APPELLATE PRINTERS, INC.

NY (212) 840-9494 © (516) 222-1606 @ (914) 683-9363

NJ (201) 257-6850 @ PA (215) $63-5$87 @ DC (202) 783-7288 @ MA (617) $42-1114

we EEE ey

QUESTIONS PRESENTED FOR REVIEW

1. Whether the government’s conduct in ABSCAM ensnaring

petitioner Howard Criden in illegal activity through the use of

an agent provocateur (Melvin C. Weinberg) and his corrupt,

unwitting accomplice (Angelo J. Errichetti) — solely for the

purpose of prosecuting petitioner and his co-petitioners — was

sO Outrageous as to violate due process of law and fundamental

fairness.

2. Whether the prosecution’s misconduct in suppressing

evidence and deliberately misleading the jury, defense counsel and

the trial court and deliberately creating massive pre-indictment

publicity violated due process of law and fundamental fairness.

ii

PARTIES

The parties to the proceeding before the Court of Appeals

for the Second Circuit whose judgment petitioner seeks to reverse

were defendants-appellants Michael O. Myers, Angelo J.

Errichetti, Louis Johanson and Howard L. Criden (Nos. 81-1342,

81-1343, 81-1344 and 81-1441, respectively), Frank Thompson,

Jr. and John M. Murphy (Nos. 81-1345 and 81-1346, respectively),

and Raymond F. Lederer (No. 81-1347), and appellee the United

States of America.

iii

TABLE OF CONTENTS

Page

Questions Presented for Review ..............0 cee cues i

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Constitutional Provision Involved ............ 0.00 ee cues 2

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Pk cecehdapeekaRReKRoresa tne weecR screen 8

Criden Replaces Errichetti..............ccce00. ll

iv

Contents

Page

Reasons for Granting the Writ:

I. The government’s conduct in ensnaring petitioner in

illegal activity was so Outrageous as to violate due

process of law and fundamental fairness. ........ 13

Il. The prosecution’s willful failure to comply with its

obligations to protect the integrity of the judicial

process was a continuation of a course of misconduct

and requires dismissal of the indictment.......... 21

EE a in bike ba kann CARNES COE Me peeee sh VERkehaenas 27

TABLE OF CITATIONS

Cases Cited:

Brady v. Maryland, 373 U.S. 83 (1963) ............... 17, 21

Giglio v. United States, 405 U.S. 150 (1972)........... 17, 21

Hampton v. United States, 425 U.S. 484 (1976)......... 20

Napue v. Illinois, 360 U.S. 264 (1959) .............0005 21

United States v. Agurs, 427 U.S. 97 (1976)............ 7, 2

United States v. Brown, 602 F. 2d 1073 (2d Cir. 1979)..... 21

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

rev’d, 673 F. 2d 578 (3d Cir.), cert. denied, 102 S. Ct.

Se Wes Ui ak casas un asad sakacees «40% i

Vv

Contents

Page

United States v. McQuin, 612 F. 2d 1193 (9th Cir.), cert.

oo 20

United States v. Myers, 692 F. 2d 823 (2d Cir. 1982)

EMME CEEG Wa WE Seth ess beckenseeneccesss 25, 26

United States v. Myers, 527 F. Supp. 1026 (E.D.N.Y. 1981),

aff?d, 692 F. 2d 823 (2d Cir. 1982)............... passim

United States v. Quintana, 508 F. 2d 867 (7th Cir. 1975)

DE ge a eee 20

United States v. Russell, 411 U.S. 423 (1973) ........... 20

Statutes Cited:

SE AREAL ELS CEE TECPETTR TCT CEETEET ETS 3

EE CH AaW es wae eG NAN S se4csuK pascseeseceses 3

ET Va ceedhsehoccsccescctceceessccsecceees 3

Cen Ccine cc Sndaednenanesendbes sie cassess 3

Es SSCS RSS R aC sadiresceveceaseuccees 2

United States Constitution Cited:

ERIS FES A> kee :

vi

Contents

Page

Rules Cited:

Supreme Court Rules:

ES See ore et 2

Le iw Nidbd bade eaevaaewse ss 2

Other Authority Cited:

Final Report of the Senate Select Committee to Study Law

Enforcement Undercover Activities of Components of

the Department of Justice.......... 6, 18, 19, 22, 23, 24

APPENDIX

Appendix A — Court of Appeals Order Denying Re-

a at aoe hae Sn linwig hikes Fe heb ened aes la

No.

Supreme Court of the United States

—~-

October Term, 1982

HOWARD L. CRIDEN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals, reported at 692 F. 2d

823 (2d Cir. 1982), appears in Appendix A to the petition of John

M. Murphy (hereinafter ‘‘Murphy App. A’’), to which reference

is made herein. The opinion of the Court of Appeals on petitioner

Criden’s petition for rehearing, not officially reported, appears

as Appendix A hereto. The opinion of the United States District

Court for the Eastern District of New York (Pratt, J.), reported

at 527 F. Supp. 1206 (E.D.N.Y. 1981), appears in the appendix

2

to the petition of Frank Thompson (hereinafter ‘‘Thompson

App.’’), to which reference is made herein.

JURISDICTION

The judgment of the Court of Appeals was dated and entered

September 3, 1982. A timely petition for rehearing was denied

on November 17, 1982. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1) and Rules 17.1(a) and (c) of the Rules

of this Court.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the United States Constitution

provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without

due process of law; nor shall private property be

taken for public use, without just compensation.

STATEMENT OF THE CASE

Procedural Background

Petitioner Howard L. Criden (‘‘Criden’’) was charged in a

three-count indictment alleging (1) a conspiracy to commit bribery

3

and to defraud the United States in violation of 18 U.S.C. §§201

and 371; (2) bribery of a public official in violation of 18 U.S.C.

§201; and (3) unlawful travel in interstate commerce in violation

of the Travel Act, 18 U.S.C. §§1952 and 2. Charged with Criden

were Michael O. Myers, then United States Congressman for the

First District of Pennsylvania; Angelo J. Errichetti, then Mayor

of Camden, New Jersey; and Louis Johanson, then a member

of the Philadelphia City Council. At the time of the indictment,

Criden was 53 years of age and a partner in the Philadelphia law

firm of Criden, Johanson, Dolan, Morrissey and Cook.

At the conclusion of a three-week jury trial presided over

by the Honorable George C. Pratt, United States District Judge

for the Eastern District of New York, Criden and his co-defendants

Myers, Errichetti and Johanson, were convicted on all three counts

of the indictment. After extensive post-trial hearings, Judge Pratt

denied motions by petitioner and his co-defendants to vacate the

guilty verdicts and dismiss the indictment on the ground that the

government’s conduct in the ABSCAM investigation and in the

prosecution of charges at trial violated the Due Process Clause

of the Fifth Amendment.

Thereafter, Criden’s sentencing was delayed because he

suffered a heart attack. On October 7, 1981, Criden was sentenced

to concurrent periods of imprisonment for five years on each of

Counts One and Three, and six years on Count Two, and to fines

totaling forty thousand dollars ($40,000.00).

In an opinion dated September 3, 1982, the United States

Court of Appeals for the Second Circuit (Lumbard, Friendly and

Newman, JJ.), denied Criden’s appeal from his conviction.' On

1. By the same opinion, the Court of Appeals affirmed the convictions of

petitioner Criden’s co-defendants Myers, Errichetti and Johanson and the

convictions, in related ABSCAM cases, of defendants-appellants Frank

Thompson, Jr., John M. Murphy (with the exception of his conviction on Count

Three of the indictment against him, which was reversed and remanded for new

trial), and P «.mond F. Lederer (see 692 F. 2d at 826; Murphy App. A at 2a).

November 17, 1982, the Court of Appeals denied Criden’s motion

for rehearing.

Factual Background

‘**ABSCAM’” is the code word given by the Federal Bureau

of Investigation (‘‘FBI’’) to an undercover operation undertaken

by the FBI office at Hauppauge, Long Island, New York in

January 1978 . ABSCAM began when the FBI adopted the plan

of Melvin C. Weinberg, a long time confidence man who for sev-

eral years in the mid 1970's, and while listed as an informant by the

FBI, operated a ‘‘front-fee’’ confidence game utilizing a ruse

similar to what became the ABSCAM premise (T 1862).’ Although

2. The following abbreviations have been used for citations to the record

herein:

a. “DP_W_”’ refers to the transcript of the joint due

process hearing before Judge Pratt held from January 12

through February 16, 1981. ‘DP Ex.’ refers to exhibits

introduced during the due process hearings before Judge Pratt.

b. “TW” refers to the transcript of the trial in United

States v. Myers, et al., Cr. No. 80-00249, 80-00253 and

80-00291 (E.D.N.Y.), held on August 11 through August 30,

1980. **Gov't. or Def. Ex..." refers to exhibits introduced

during the Myers trial.

c. “PDP IW” refers to the transcript of hearings

before Judge Fullam in United States v. Criden, et al., Cr.

No. 80-166 (E.D. Pa.) held on July 7 through July 30, 1980.

“PDP Il___.”’ refers to a second series of hearings before

Judge Fullam held on September 24 through September 26,

1980.

d. Other references to other ABSCAM trials, hearings

or exhibits are in the same form, ¢.g., the Jenrette trial

transcript is referred to as ‘‘Jenrette T___."’; the Jenrette due

process hearing is referred to as ‘‘Jenrette DP___.,"’ etc.

finally caught and convicted for this fraudulent scheme,’ Weinberg

escaped the three-year jail sentence imposed after his conviction

by making a deal to work for the FBI (527 F. Supp. at 1209;

Thompson App. at 91a).

Under the ABSCAM scheme, Weinberg was to present himself

as a business agent for ‘‘Abdul Enterprises,’’ an organization

backed by two extremely wealthy Arab sheiks looking for

American outlets for their cash (id.). At first the ABSCAM

investigation focused on the recovery of stolen art work and other

contraband (id.). It was not until December 1978, when Weinberg

met with then Camden Mayor Angelo Errichetti, that the

investigation turned to political corruption (DP 4321).

Errichetti

Between December 1978 and July 1979 Errichetti was involved

in a myriad of dealings with Weinberg and various FBI undercover

agents who played supporting roles to Weinberg’s lead. Among

Errichetti’s early ABSCAM episodes were his dealings with New

Jersey Casino Control Commissioner Kenneth MacDonald and

United States Senator Harrison Williams. Throughout his dealings

with Errichetti, and with the explicit consent of his FBI supervisors,

Weinberg portrayed himself as a corruptly disloyal employee of

an Arab sheik of enormous wealth (T 1859-60). Moreover,

Weinberg represented that he and those whom he selected as

confederates could make personal fortunes by manipulating the

sheik through the trust he placed in Weinberg. Errichetti, far from

a shrinking violet, plunged into partnership with Weinberg. As

discussed infra at pages 18-20, 22-25, despite petitioner’s repeated

discovery and Brady demands, it was not until the Senate Select

3. This scheme netted Weinberg perhaps as much as one million dollars

($1,000,000.00) on which he paid no taxes (T 1925-25, 3400).

Committee released its findings in December 1982* that petitioner

learned of the full extent of the arrangements made between

Weinberg and Errichetti to share in bribes and fees, or the devious

maneuvers Weinberg utilized to defraud his FBI superiors.

Criden and Johanson

The ABSCAM investigation had been ongoing for almost

18 months before petitioner and his law partner Johanson were

lured into its web in their quest to obtain financing for a client’s

Auantic City hotel-casino project (527 F. Supp. at 1210; Thompson

App. 95a-96a).’ In the course of inquiring as to financing sources

for his client’s project, Johanson was referred to Errichetti who,

in turn, referred the matter to Weinberg who arranged for a

discussion in Florida (id.).

On July 26, 1979, Criden, Johanson and Errichetti met with

Weinberg and FBI Agent Anthony Amoroso (‘‘Tony De Vito’’)

on a yacht provided by the FBI (id.). Criden had not met either

Errichetti or Weinberg prior to this meeting.

On the yacht, Criden and Johanson showed Weinberg and

Amoroso architectural renderings and financial projections relating

to the hotel-casino project (PDP I 7.20-22; T 579). Weinberg

and Amoroso told Johanson and Criden that the sheik would

be interested in the project (T 923). Weinberg further stated that

he expected to secure the sheik’s approval within 30 to 60 days

(PDP I 1.8).

4. Final Report of the Senate Select Committee to Study Law Enforcement

Undercover Activities of Components of the Department of Justice (December

15, 1982) (hereinafter ‘Senate Select Committee Report’’).

5. The client had agreed that if the desired financing were to be obtained

through Criden’s efforts, a very substantial fee, between $3-5 million, would

be earned by Criden’s firm (PDP II 1.9). The government conceded that the

attempt to arrange financing for the project was a legitimate business proposal

(T 882, 1003, 1267; PDP I 3.123; PDP II 3.35).

7

Following the discussion of the hotel-casino project, the group

took a pleasure cruise. During this trip, Amoroso stated to

Errichetti that the sheik was concerned about political asylum

because he anticipated that he would be forced to emigrate from

his country in the future and wished to protect himself against

the immigration problems experienced by Anastasio Somoza, the

former Nicaraguan government leader, whose difficulties in

obtaining asylum in the United States were then being detailed

by the press (527 F. Supp. at 1210; Thompson App. at 95a-96a;

see also T 580-81). Errichetti responded that ‘the could line up

proper politicians to handle it’’ (T 581). Amoroso volunteered

that money ‘“‘would be no problem’’ (T 581).

On their return flight to Philadelphia, Errichetti told Criden

that he looked upon the opportunities provided by the sheik

through Weinberg as ‘‘fantasy, a fairytale’ (PDP II 1.9, 1.117).

Errichetti related that he had had prior business dealings with

the representatives of the sheik and that the sheik would pay

‘substantial fees’’ to meet public officials with titles (PDP II 1.9),

In this regard, Errichetti stated that he previously received a fee

of $100,000 merely for introducing the representatives of the sheik

to a public official (PDP II 1.10).° According to Errichetti, the

sheik merely wanted to be associated with public officials; there

were ‘‘no strings attached’ (PDP II 1.117). Errichetti told Criden

that if Criden were to introduce political figures to the sheik, it

would enhance his chance to obtain financing for his client's hotel-

casino project as well as result in a handsome fee for Criden

(PDP II 1.119).

Upon his return to Philadelphia, Criden discussed the matter

of introductions to politicians with his law partners, including

Johanson (692 F. 2d at 830; Murphy App. A at 13a). Specifically,

6. This apparently related to a $100,000 payment received by Errichetti in

connection with the MacDonald matter, See p. 23, infra.

Criden explained that an introduction fee would be earned by

the firm and shared with the politician and Errichetti merely for

setting up a meeting with the sheik. No quid pro quo was involved;

the politician would not be asked to do anything in return for

the money (T 1268; PDP II 1.14), Johanson agreed to contact

United States Representative Michael O, Myers, whom he knew

as a fellow Philadelphia ward leader. (See 692 F, 2d at 830, 831;

Murphy App. A at 13a, 16a.)

Myers

In early August 1979, Johanson met with Myers and Johanson

described to him the ‘rich Arab sheik’? who would pay $100,000

in return for introductions to important persons (T 2709),

Johanson told Myers that he and Criden would receive $25,000

as a share of this fee for arranging the introduction and that Myers

would receive the same amount as his share. The balance, stated

Johanson, would be split among Errichetti, Amoroso and

Weinberg (T 2712). When Myers asked Johanson whether

anything would be expected of him, Johanson assured Myers that

Myers would not be required to do anything in return for the

money (T 2712). Johanson concluded the conversation with the

comment that Errichetti would tell Myers ‘‘word for word just

what to do and what to say’’ (T 2713).

Thereafter, a meeting was scheduled for August 22, 1979 at

the Travelodge International Hotel at Kennedy Airport in New

York (692 F. 2d at 830; Murphy App. A at |4a). Immediately

prior to this meeting, Errichetti met with Myers, telling the

Congressman

You've got to come on strong . . . Did you ever

see me on television? . . . You know how positive

I am, how strong I come on? That is the way

you've got to act. The Sheik likes tough guys. Tell

9

how powerful you are. Maybe talk about

immigration. You will never do anything. Don’t

worry about that. I got that covered. .. . Mel is

going to be in the room with us, Mel is our friend,

He wouldn’t let anything happen to get you in

trouble, (T 2717).

Loathe to leave anything to chonce, Weinberg slipped out

of the hotel room where FBI technicians were making final

preparations to videotape the meeting, and, ostensibly without

the knowledge of the FBI supervisor in charge of the investigation

(DP 2673), went to the hotel lobby to give Errichetti a final set

of instructions (T 1650). (See discussion infra at pages 15-16.)

Thereafter, Errichetti informed Myers of a change of plans,

i.e., that the sheik would not be at the meeting, although one

of his representatives would be present. Myers, who had previously

been assured by Errichetti that he could talk about any topic since

the sheik was not fluent in English, expressed concern that

questions would be asked of him which he could not answer

(T 2718). Errichetti responded:

Tell them [you will] do anything they want, don’t

worry about that. You don’t ever have to worry

about the Sheik coming to America because Mel

already told me if he has to leave his country

arrangements have been made in South America

and they never intend to come to America,

(T 2718).

Myers and Errichetti then went up to the hotel room where

Weinberg and Amoroso were waiting. Neither Criden nor

Johanson attended this meeting although both had come to the

airport. Neither Criden nor Johanson was invited to participate

10

in the conversations wherein Weinberg instructed Errichetti and

Errichetti coached Myers.’

Myers cannot be criticized for underplaying his role. In the

course of the August 22, 1979 meeting he repeatedly exaggerated

his position, influence and personal associations (692 F. 2d at

830-31; Murphy App. A at 14a). Myers readily agreed to assist

the sheik with any immigration problem and, if necessary, to

introduce a private bill on the sheik’s behalf (id.). At the

conclusion of the meetings, Myers was handed an envelope by

Amoroso containing $50,000 in cash (id.). Upon leaving the hotel

room, Myers gave the envelope to Errichetti and Johanson and

Myers immediately drove back to Philadelphia. (/d.; see also

T 2740.) Myers never saw or spoke to Errichetti again (T 2740).

Prior to departing from New York, Errichetti met briefly

with Criden and transferred the envelope to him, after removing

$15,000 as his share of the proceeds. (See 692 F. 2d at 831; Murphy

App. A at 15a.) Criden then returned to his law office in

Philadelphia where he met with Johanson and Myers (id.). Myers

accepted $15,000 and then departed (id.).

Aside from the general report from Errichetti to Criden that

Myers had done well, no one reported the substance of the meeting

to Criden or Johanson.

Consistent with Weinberg’s assurances (to Errichetti, and,

indirectly, to Myers, Criden and Johanson) that Myers would never

be called upon to do anything for the Sheik, Myers was never

asked by the investigators for so much as a telephone call or letter

of inquiry on official stationery to demonstrate a willingness to

actually use his position in return for the money he accepted.

7, The Court of Appeals erroneously attributed to Criden a role in coaching

Myers (see 692 F. 2d at 837, 838, 840 and n.14, 842; Murphy App. A at 28a,

3la, 36a and n.14, 41a). Manifestly, the evidence showed that Criden played

no part in Myers’ coaching (T 2715-19).

11

Criden Replaces Errichetti

In the ensuing months Criden became more entangled in the

ABSCAM web. With the possibility of concluding the Atlantic

City hotel-casino financing deal and with other attractive business

Opportunities dangled before him, Criden continued to try to

accommodate Weinberg’s voracious appetite for public officials

to meet the sheik’s representatives and collect their free money.

Criden eventually replaced Errichetti (who had tired of Weinberg’s

inability to deliver on promises of major projects to be funded

by the sheik) in fishing the rivers and tributaries of public

officialdom — using the promise of hundreds of millions in

investments in the politician’s district as bait for the desired

meetings. Although only one of these transactions — a January

24, 1980 meeting among Criden, Myers and two FBI undercover

agents — was admitted into evidence at trial, we mention them

here in order to illustrate the evolving relationship between Criden,

Errichetti and Weinberg.

The January 24, 1980 Meeting

Although Eastern District Strike Force Chief Thomas P.

Puccio submitted his pre-prosecution memorandum covering, inter

alia, Representative Myers in December 1979, the United States

Attorney’s Office in Philadelphia requested an opportunity to lure

Myers into another videotaped session where local Philadelphia

corruption could be discussed. Criden was selected as the

appropriate vehicle to arrange Myers’ return engagement.’

8. By late January 1980, Criden was dealing with the sheik’s representatives

on a C.O.D. basis — irrespective of whether the politician he produced would

mouth the words triggering payment to him, Criden was promised, and received,

payments simply for bringing politicians to the scheduled meetings

(PDP II 1.46-51). In the case of the ‘‘second’’ Myers meeting, Criden was

promised $5,000 merely for producing Myers at the meeting (PDP II 1.46).

12

Weinberg advised Criden that the sheik, who proposed to

build a multi-million dollar hotel complex in the slums of South

Philadelphia, wanted assurances from local office holders that

he would not run into zoning problems for such a project.’

Weinberg suggested that Criden introduce Representative Myers

to a Michael Cohen, who was identified to Criden as a ‘‘new’’

representative of the sheik, but who actually was FBI Agent

Michael Wald (PDP II 1.48).

Thus Criden telephoned Myers on January 24, 1980, inviting

him to meet the sheik’s ‘‘new’’ representative who was interested

in investing money in Philadelphia (T 2743). Myers agreed to meet

Mr. Cohen that evening at the Barclay Hotel in Philadelphia (692

F. 2d at 831; Murphy App. A at 15a). Myers testified at trial

that he believed the same ground rules applied at this meeting

as were applicable at the prior meeting, namely that he ‘‘had to

impress them that [he] was a strong guy the same way [he] did

back in the August meeting’’ (T 2747).

Again, Myers’ performance must have exceeded the

investigators’ expectations. Aided by substantial quantities of

alcohol pressed on him by the agents, Myers again exaggerated

his importance and his association with various ‘‘influential’’

individuals.'° Myers also complained that he had been short-

changed in his earlier dealings with the sheik’s representatives,

and the undercover agents offered io pay him an additional $35,000

9. For asummary of this undercover scenario, see United States v. Jannotti,

501 F. Supp. 1182, 1193-99 (E.D. Pa. 1980), rev'd, 673 F. 2d 578 (3d Cir.), cert.

denied, 102 S. Ct. 2906 (1982).

10. For example, when Cohen asked him about the Philadelphia Mafia,

Myers boasted of his relationship to one ‘Skinny Razor’’ whom he described

as a big man in the Mafia’s downtown operation in Myers’ own district (Gov't.

Ex. 7A at 83). In point of fact, the said Mr. Razor — the subject of a lurid

newspaper story in Myers’ youth — had been dead for over a decade (T 2625-26).

13

(692 F. 2d at 831; Murphy App. A at 15a). Consistent with

Weinberg’s previous assurances, no request was made of Myers

after this meeting to perform the slightest official act. The tape

of the January 24, 1980 meeting was admitted into evidence over

the objections of all defendants (T 2571).

REASONS FOR GRANTING THE WRIT

I.

The government’s conduct in ensnaring petitioner in iliegal

activity was so outrageous as to violate due process of law and

fundamental fairness.

In utilizing Weinberg and Errichetti to produce and

compromise Representative Myers at the August 22, 1979 meeting,

the government was relying on men of proved unreliability, whose

willingness to lie, misrepresent and otherwise play fast and loose

with the truth to satisfy their own ends already was well

documented. Judge Fullam found that Weinberg ‘‘represented

the archetypical amoral fast-buck artist.’’ United States v. Jannotti,

501 F. Supp. 1182, 1193 (E.D. Pa. 1980), rev’d, 673 F. 2d 578

(3d Cir.), cert. denied, 102 S. Ct. 2906 (1982). Errichetti, whose

dealings with the ABSCAM undercover operatives had predated

the Myers transaction by some eight months, was already known

by the ABSCAM investigators to exaggerate, boast and generally

go beyond the limits of truthfulness in his dealings with Weinberg

and others. Despite knowledge of Weinberg’s and Errichetti’s lack

of trustworthiness, the government made no effort to impose even

minimum safeguards on their involvement in the ABSCAM

investigation.

Indeed, Weinberg was unsupervised at least half of the time

he was engaged in ABSCAM (T 1054; Jenrette T 862, 924).

Moreover, although Weinberg’s background as a lifelong

14

confidence man and swindler might have suggested that he would

cut corners to achieve his assigned objective of maneuvering public

officials before the FBI cameras, the government did not

implement special controls for Weinberg nor even seek to enforce

those instructions which were given to Weinberg.

For example, although Weinberg was ordered to tape every

conversation he had with a middleman or public official (T 939),

he disobeyed this instruction with regularity and with impunity,

and only a fraction of his conversations were recorded

(DP II 1.36). And, although Weinberg claimed to have furnished

to the FBI all of the tapes he made of conversations with targets

and middlemen, his assertion that certain tapes were stolen from

him was incredible at best (T 1839, 3413).''

Furthermore, Weinberg deliberately violated an instruction

that he tape all conversations from beginning to end (T 939-41,

1050, 1057; PDP II 3.29; Jenrette T 911). While Weinberg

claimed no tape was altered or interrupted, expert testimony

established the contrary at the Myers trial (T 1638, 1885, 3349,

3372). Additional evidence of Weinberg’s tampering with tape

recordings surfaced only after the conclusion of the trial.'?

11. See infra at p. 24.

12. For example, a tape-recording of a July 14, 1979 conversation between

Weinberg and George Katz, a figure in the ABSCAM investigation involving

Senator Williams, was not made availabie to petitioner and his co-defendants

until the post-trial due process hearings (DP Ex. 58). This tape, which included

a 57 foot gap, provides a cornucopia of compelling circumstantial evidence

supporting a number of petitioner’s contentions at trial. Significantly, this tape

demonstrates that two weeks prior to Criden’s meeting on the yacht with the

sheik’s representative, Weinberg set forth the essential elements of the asylum

scenario and the double sting, i.e. that the politicians would not be called upon

to perform (DP Ex. 58 at 3, 11, 14-16, 21-23, 29). (See also, discussion infra

at p. 25.)

15

Moreover, Weinberg was given carte blanche in his contact

with middlemen allowing him ‘‘to operate in the manner he

thought best’’ (PDP II 3.17, Jenrette T 888-90, 912). Weinberg

received no direction as to when he should report conversations

with middlemen and such oral reports as he did make were never

reduced to writing (PDP II 3.5).

Nor was Errichetti given sufficient supervision although he

had become, at least as of June 28, 1979, an agent of the ABSCAM

operatives for purposes of attracting public officials to meet with

undercover agents (692 F. 2d at 840 n.13; Murphy App. A at

35a-36a n.13). For example, while the New Jersey prosecutors

attempted to admonish Weinberg for his actions in connection

with Senator Williams, absolutely no effort was made to correct

Errichetti’s subsequent use of those same tactics with Myers. In

fact, Errichetti testified that the same scenario as was used with

Senator Williams was set for Representative Myers

(PDP II 1.120-22), i.e., the Congressman was instructed ‘‘to come

on strong,”’ ‘‘play act,’’ ‘‘promise anything’ (PDP II 1.120,

1.134).

Nor was any effort made by the FBI to tape-record the

prearranged meeting between Weinberg and Errichetti which

immediately preceded Myers’ August 22 scheduled introduction

to the ‘‘sheik’’ (later modified to his representatives). (See

discussion supra at page 9.) Significantly, Agent Good, who

was present at the hotel prior to the August 22, 1979 Myers

meeting, testified he had no knowledge that Weinberg left the

room to meet with Errichetti before Myers was brought upstairs

(DP 2673-74, 4153).'’ Thus, Weinberg was able to get Errichetti

to do the briefing of Myers — the same duty Errichetti had shared

13. The same Agent Good acknowledged that he had authorized Weinberg

to meet with Senator Williams to brief him as to what was expected to be heard

from him when he addressed the sheik (Myers DP 2809).

16

with Weinberg vis-a-vis Sen. Williams — instructing him to have

Myers go on stage for twenty minutes, talk tough, promise

anything, that it was all ‘‘play-acting’’ and that the Congressman

would never be called upon to do anything (PDP II 1.119-121).

Weinberg’s credentials as a master con artist who spent his

entire adult life living by his wits at the expense of those whose

trust he gained is amply documented in the record (T 1921-30,

1993-99). That Weinberg could have been used at all seems to

be a direct contravention of Justice Department guidelines.'* But

to have used him as an agent-provocateur — not as an

‘**informant’’ as the government would like him characterized —

was intolerable. The absence of instruction, supervision and

reporting requirements relating to Weinberg allowed him to

structure the investigation according to his own design,

‘**scamming”’ both the targets and, presumably, his FBI and strike

force ‘‘supervisors.’’'’

In achieving the ‘‘bottom line’ result of producing

incriminating videotapes, Weinberg was armed by his supervisors

with two important facts: first, he was told that the Congressmen

would never be called upon to perform any official act

(PDP II 3.26); and second, he was allowed to incorporate as part

of the ‘‘scenario’’ that he and Amoroso would portray themselves

as disloyal to the eccentric sheik (T 1860-61, 2102, 2107; DP 4373;

PDP I 5.142).

Thus, Weinberg could with impunity assure the prospective

target — be he public official or middleman — that the public

official need only talk tough and come on strong, agree with

whatever was suggested, and emphasize his own importance

14. See DP Ex. 6, the so-called Levi Guidelines.

15. See infra, pp. 22-26.

17

(Schwartz T 2.96-97; PDP II 1.39, 1.120). All this conformed

to the ‘“‘Arab way’’ and was expected (Schwartz T 2.106). At

the same time, Weinberg could give assurance that nothing would

ever be requested of the official; it was all talk, ‘‘all bullshit,"’

so that Weinberg/ Amoroso and the others could split the resulting

fees from the ‘‘goose that laid the golden egg’’ (T 1860-61). Not

only did the government use a man whose past suggested that

he would be unreliable and would have no respect for an oath

to tell the truth, but his very dealings with the ABSCAM team

demonstrated as much.

The Court of Appeals erred in its analysis of the adequacy

of the materials made available at trial relating to Weinberg’s

credibility. Basically, the court found adequate the information

relating to Weinberg’s history of misconduct prior to ABSCAM

and the payments he received from the government in connection

with ABSCAM (692 F. 2d at 846-47; Murphy App. A at 49a-51a).

But the court’s reasoning misses the mark. The extraordinary

danger in using Weinberg as the government did in ABSCAM

was that he would continue to lie and cheat and wou. skew the

investigation to maximize his rewards no matter how justice might

be perverted.'*

While the Circuit Court points to one clear example of

Weinberg’s coaching involving Senator Williams and Errichetti

(692 F. 2d at 839-40; Murphy App. A at 32a-36a), several other

examples of misconduct — known contemporaneously to the

government during the investigation, as well as others which have

come to light after the trial — further demonstrate Weinberg’s

ability to claim rewards for achievement in return for what was

really a charade.

16. It is here that the due process, government overreaching/ prosecutorial

misconduct argument becomes inextricably intertwined with the Brady, Giglio

and Agurs arguments set forth infra at pp. 21-26.

1. The Williams Coaching Session. In June 1979, Errichetti

assured Weinberg that he had instructed United States State

Senator Harrison Williams as follows:

. . . All you’re gonna do is give a speech like you

never gave in your life. Not much left to say.

You’re gonna fucking guarantee that fucking

* contract. ... I said, ‘*You’re gonna fucking say

it. | don’t give a fuck. Never mind about doing

it. You’re gonna fucking say it.’’

Senate Select Committee Report, ‘‘Allegations Regarding the

Investigation of Senator Harrison A. Williams,’’ at 56 (emphasis

added). In connection with the Williams’coaching episode, FBI

supervisor John Good testified that he had instructed Weinberg

to meet privately with Senator Williams ‘‘to brief him as to what

we expected to hear from him when he addressed the Sheik.’’

(Myers DP 2809). The Senate Committee concluded:

‘**To instruct Weinberg to meet with the suspect,

without being accompanied by any undercover

special agent, only moments before a crucial

meeting at which an expression of the suspect's

true intentions was to be sought was not merely

undesireable; it was egregious."

(Senate Select Committee Report, ‘‘Allegations Regarding the

Investigation of Senator Harrison A. Williams,’’ at 60).

2. The MacDonald Pay-Off. In another pre-Myers situation

involving New Jersey Gaming Commissioner Kenneth MacDonald,

Errichetti candidly told Weinberg he would never offer or give

MacDonald any money. Weinberg’s response was that they would

19

**hold that in abeyance, we'll work on that.’’'’ (Transcript, March

8, 1979, at 27; see also, Senate Select Committee Report,

‘Allegations Regarding Kenneth H. MacDonald,"’ at 19).

Ultimately, an agreement was struck between Weinberg and

Errichetti wherein Errichetti was given $100,000 in currency while

MacDonald looked the other way. MacDonald was indicted but

died before trial.

To add icing to the cake, Weinberg, as we now know, induced

Errichetti to engage in a completely staged conversation on April

1, 1979 about the MacDonald ‘‘payoff,’’ ostensibly for the purpose

of impressing another employee of the fictitious sheik who would

be ‘‘surreptitiously’’ listening to the ‘‘private’’ conversation

between Weinberg and Errichetti.'* Again, this tape was withheld

from petitioner.

3. Katz Tape-Recording. In a July 14, 1979 taped

conversation between Weinberg and one George Katz (DP Ex.

58), Weinberg laid out the essential elements of the devious double

sting — that the politicians, even though paid, would not be called

upon to perform: ‘‘between you and me we don’t want and

probably never even use them, you follow me?’’ (DP Ex. 58 at

22).

4. Williams Forgery. In another example of double-

scamming, Weinberg accepted Errichetti’s known forgery of a

letter purportedly signed by Senator Williams showing support

for the sheik’s project when Errichetti stated that Williams would

not himself sign such a letter (302 Report of Bruce Brady, Sept.

14, 1979; see also, Senate Select Committee Report, ‘‘Allegations

17. This tape was withheld from Criden until after the Myers trial.

18. See Senate Select Committee Report, ‘‘Allegations Regarding Kenneth

N. MacDonald,"’ at 35.

20

Regarding the Investigation of Senator Harrison A. Williams,”’

at 55 fn.).

5. The Mario Noto/Nopo Incident. The clear understanding

between Errichetti and Weinberg that their partnership was based

on defrauding the mythical sheik reached its zenith a few weeks

after the August 22, 1979 Myers meeting when Errichetti produced

an impersonator posing as an Immigration and Naturalization

Service official to meet with Weinberg and Amoroso (T 1239,

et seq.).

As demonstrated above, Weinberg was clearly an agent

provocateur. The Court of Appeals misperceived Weinberg’s role,

finding that ‘‘the essential conduct of the agents and their paid

informant was to see who showed up to take the bribes and

videotape them in the act of doing so."’ [692 F. 2d at 837 (footnote

omitted); Murphy App. A at 29a (footnote omitted)].

Furthermore, even without the benefit of information uncovered

by the Senate Committee, the Court of Appeals erred in concluding

that ‘‘[w]hatever may be the due process limit of government

participation in crime, it was not reached here.’’ [id. (citations

omitted)]. Clearly, the government’s involvement in the ABSCAM

‘*crimes’’ surpassed the ‘‘level of outrageousness’’ which ought

to limit the police in a free society. Hampton v. United States,

425 U.S. 484, 495 n.7 (1976) (Powell, J., concurring). See aiso,

United States v. Russell, 411 U.S. 423, 441 (1973) (Stewart, J.,

dissenting). Compare, United States v. McQuin, 612 F. 2d 1193,

1196 (9th Cir.), cert. denied, 445 U.S. 954 (1980); United States

v. Quintana, 508 F. 2d 867, 876-78 (7th Cir. 1975).

Moreover, the government’s conduct was particularly

egregious here because, as the trial court found (527 F. Supp.

at 1226; Thompson App. at 148a), Criden and the other defendants

21

were not suspected of misconduct at the time they were lured into

the ABSCAM net. The inducement initially dangled before Criden

and his law partners to become involved with the ABSCAM

operatives was overwhelming. The opportunity to earn millions

of dollars in fees in connection with obtaining financing for a

legitimate substantial hotel-casino project was, as one of Criden’s

law partners described it, a lawyer's ‘‘once-in-a-lifetime’’ dream

come true (T 1262-63).

The prosecution's willful failure to comply with its obligations

to protect the integrity of the judicial process was a continuation

of a course of misconduct and requires dismissal of the indictment.

The course of prosecutorial misconduct relating to the

ABSCAM investigation did not cease with the return of the

indictments. In several crucial areas of inquiry the prosecution

either suppressed evidence or deliberately misled the jury, defense

counsel and the trial court. In other areas, Weinberg’s perjuries

and obstructions of justice remained hidden until investigative

bodies other than the Department of Justice brought them to light,

well after the trial.

Despite sufficient judicial warning against the danger of

uncontrolled use of “‘informants’’ who might corrupt the

truthseeking process [see United States v. Brown, 602 F. 2d 1073

(2d Cir.), cert. denied, 444 U.S. 952 (1979)], and the obligations

imposed by Brady v. Maryland, 373 U.S. 83 (1963); Napue v.

Illinois, 360 U.S. 264 (1959); Giglio v. United States, 405 U.S.

150 (1972); and United States v. Agurs, 427 U.S. 97 (1976),

information crucial to the defense was deliberately withheld, and

material perjury was committed in the course of petitioner’s trial.

For example, the Court of Appeals concluded that ‘‘the jury

was entitled to conclude that this [/.e., the Myers August 22, 1979

22

meeting] was no charade."’ (692 F. 2d at 838; Murphy App. A

at 32a). Conversely, however, the jury would have been entitled

to reject Weinberg’s denial that he orchestrated a charade in the

Myers case, particularly if it had before it the relevant facts

concerning Weinberg’s willingness to orchestrate other charades

in the same time frame for which he was paid handsomely by

the FBI, as well as his obvious willingness to defraud the FBI

for additional personal profit in matters material to ABSCAM.

The requirements of brevity dictate that petitioner can only

list the areas relevant to this point:

1. The prosecution failed to correct Weinberg's perjurious

testimony at the Myers trial wherein he misstated the reason for

a $15,000 bonus he received from the FBI. As was later

documented, a few weeks before the Myers meeting was arranged,

Weinberg was paid $15,000 for his role in the

MacDonald/Errichetti payoff (DP Ex. 59; T 1815). The

prosecution left the defense and the trial court with the false

impression that the $15,000 bonus was unrelated to ABSCAM

(T 1736-38, 1776, 3045).'* The Court of Appeals did not discuss

this matter even though petitioner Criden set out the full

background at pages 53-60 of his appellate brief below.

2. Weinberg defrauded the FBI out of a $5,000 bonus

involving an incident wherein he supposedly risked his life to save

the ABSCAM investigation (DP Ex. 61). After the trial, it was

learned that Weinberg had fabricated the entire story simply to

obtain money from the FBI (DP 4362).’°

19. As of April 1981, Weinberg had received approximately $150,000 for

his ABSCAM efforts (527 F. Supp. at 1240; Thompson App. at —_).

20. See also, Senate Select Committee Report, ‘Introduction,"’ at 36, ef seq.

23

3. Weinberg surreptitiously received from Errichetti a portion

of the $100,000 paid to Errichetti supposedly for MacDonald.

Weinberg’s deviousness in obtaining this kickback, oBstructing

justice and constructing an alibi for his perjurious denials provide

an astounding insight into the criminal mind:

a) Weinberg deliberately failed to record a conversation

with Errichetti in which plans for receipt of the kickback were

made;

b) On April 1, 1979, the day after the $100,000 was paid

to Errichetti ostensibly for transmittal to MacDonald, Weinberg

met privately with Errichetti to receive the kickback, unbenounced

to the FBI agents working with him;

c) To provide an alibi for later use, Weinberg recorded

a conversation with Errichetti for which he constructed a false

preamble which misrepresented the actual time of the conversation;

and

d) Weinberg got Errichetti to make certain statements

on the ‘‘alibi tape’’ by telling Errichetti that someone (whom

Weinberg needed to mislead) was going to be ‘‘secretly’’ listening

to their conversation.

All of the above was pieced together after the Myers trial

by prosecutors from Washington, D.C. and members of the Senate

Select Committee who had access to Weinberg’s telephone toll

records (which were refused petitioner). See Senate Select

Committee Report, ‘‘Introduction,’’ at 36-40.

4. Weinberg deliberately failed to record dozens of

substantive conversations he had with ABSCAM targets and

deliberately omitted portions of certain conversations from the

tapes he turned in (Def. Ex. 19, 20; T 3319-24). See also, Senate

24

Select Committee Report, ‘‘Failures of Evidence Management,”’

at 20.

5. Weinberg deliberately withheld at least one other tape

recording he had made of a conversation with petitioner, falsely

claiming it had been stolen from his luggage (T 1839, et seq.;

Jenrette DP 1099-1104).?'

6. Weinberg, with at least the government’s passive

assistance, perjured himself at the Myers trial about his

unauthorized solicitation of money and other items from the

targets of the investigation. At trial, the defense produced witnesses

who testified to personal knowledge of various items including,

inter alia, television sets, stereo equipment and an electronic oven

delivered from Errichetti to Weinberg. Weinberg and the

prosecution vigorously refuted these allegations, branding the

defense witnesses as biased perjurers.

After the post-trial due process hearing Weinberg’s wife

committed suicide and in the course of the ensuing investigation

by Florida County police, the very items Weinberg was alleged

to have received were found in his home. Since the FBI agents

were present in this home on several occasions after the allegations

of Weinberg’s solicitation and receipt of these specific items were

made, their failure to report the items is at least suspect.*?

Unfortunately, the continued cover-up regarding these items

21. The Senate Committee Report sets forth Weinberg’s ‘astounding

plethora of self-contradictory testimony’’ on this subject. See Senate Select

Committee Report, ‘Failures of Evidence Management,’’ at 41-48.

22. For an extensive discussion of this issue, see Senate Select Committee

Report, ‘‘Management, Supervision, and Control of Weinberg,"’ at 1-21. As to

FBI supervisor Good's testimony on the subject, the Committee found: ** While

it may not be technically perjurious, such clearly misleading testimony constitutes

unacceptable conduct that ranking FBI officials should not tolerate."’ /d. at 11 fn.

25

resulted in the court below crediting Weinberg’s perjurious denials

(692 F. 2d at 846-47; Murphy App. A at 49a-50a).

The importance of Weinberg’s perjury on these items should

not be underestimated. The question of whether Weinberg would

lie to his FBI ‘‘supervisors’’ to achieve his personal goals in the

investigation was central to the defense of the Myers case.

7. The government suppressed a July 14, 1979 tape-recorded

conversation between Weinberg and ‘‘middleman’’ George Katz

(DP Ex. 58). This tape would have greatly assisted the defense

by providing an explicit recitation by Weinberg to Katz of the

**double-scam”’ i.e., that the politicians who would accept money

would not have to actually do anything. Weinberg further confided

in Katz that his employers ‘‘. . . don’t know what’s going on on

our end... . they don’t think anything’s wrong on the double.’”’

(DP Ex. 58 at 29).

The court below correctly concluded that the ‘‘use of

dishonest and deceitful informants like Weinberg creates risks to

which the attention of juries must be forcefully called.’’ (692 F.

2d at 846; Murphy App. A at 48a). Yet, demonstrably the trial

jury here saw only the tip of the iceberg. Their ability to evaluate

not just Weinberg’s sordid past, but the full extent of his venality

during the investigation was fatally obstructed by perjury and

obstruction of justice which was not unraveled until after the trial.

To this sordid witches’ brew must be added the government’s

Outrageous and deliberate leak to the public media of the

prosecution’s version of the ABSCAM investigation several weeks

before the return of indictments. The trial court found:

First, the voluminous appendices to the parties’

papers, containing thousands of pages of reprinted

newspaper and magazine articles as well as

26

transcripts of radio and television broadcasts, attest

to the fact that beginning on February 2, 1980 and

continuing to the date of these indictments and

beyond, the public was deluged with media reports

of the ABSCAM investigation into these

defendants’ activities. Moreover, many of these

reports were replete with what may charitably be

characterized as hostile statements and innuendo,

treating the defendants’ guilt as a foregone

conclusion, itemizing the ‘‘evidence’’ against them,

and reporting that ‘‘indictments were

forthcoming.’’ Finally, we must, in the light of

the government’s admission of the fact, accept the

contention that many of these reports contained

information supplied by one or more Justice

Department officials. . . .

United States v. Myers, 510 F. Supp. 323, 324-25 (E.D.N.Y. 1980).

27

CONCLUSION

The combination of governmental overreaching in creating

crime for the sole purpose of prosecuting those who succumbed

to extraordinary inducements, the disregard for safeguards

designed to protect against abuses of due process, the willingness

of those running the investigation to allow a thoroughly amoral

invividual free reign to use any means at his disposal to ensnare

the unwary, the deliberate and pernicious government leaks to

the press, and the deliberate attempt by the prosecution to

withhold, cover-up and obfuscate exculpatory evidence require

that the petitioner’s conviction be overturned. Even if none of

these abuses taken alone would justify reversal, taken together

they provide a mosaic of such outrageous misuse of prosecutorial

power and resulting unfairness to petitioner that the conviction

obtained thereby must be overturned.”?

WHEREFORE, petitioner respectfully urges this Court to

grant certiorari and, upon that grant, to vacate the decisions of

the Court of Appeals and the District Court and overturn his

conviction.

Respectfully submitted,

RICHARD BEN-VENISTE

Attorney for Petitioner

23. Petitioner Criden also adopts, to the extent applicable, the arguments

set forth by his co-defendants in their related petitions for certiorari.

la

APPENDIX A — COURT OF APPEALS ORDER DENYING

REHEARING

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

Nos. 81-1342; 81-1343; 81-1344; 81-1446; 81-1345; 81-1346;

81-1347

FILED NOV. 17, 1982

At a stated term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court House,

in the City of New York, on the 17th day of November, one

thousand nine hundred and eighty-two.

UNITED STATES OF AMERICA,

Appellee,

Vv.

MICHAEL O. MYERS, ANGELO J. ERRICHETTI, LOUIS

JOHANSON, and HOWARD L. CRIDEN,

Defendants-Appellants.

UNITED STATES OF AMERICA,

Appellee,

Defendants-Appellants.

2a

Appendix A

FRANK THOMPSON, JR. and JOHN M. MURPHY,

UNITED STATES OF AMERICA,

Appellee,

|

Vv.

RAYMOND F. LEDERER,

Defendant-Appellant.

A petition for rehearing containing a suggestion that the action

be reheard in banc having been filed by counsel for the defendants-

appellants, Michael O. Myers, Angelo J. Errichetti, Louis

Johanson, and Howard L. Criden.

Upon consideration by the panel that heard the appeal, it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc

has been transmitted to the judges of the court in regular active

service and to any other judge on the panel that heard the appeal

and that no such judge has requested that a vote be taken thereon.

A. Daniel Fusaro, Clerk

s/ Maureen Mintzer

Operations Manager