Petition — MICHAEL O. MYERS v. UNITED STATES (Nos. 82-1255, 82-1183, 82-1187, 82-1199, 82-1240)

Ve ~ 12595

In The A

Supreme Court of the United States

OCTOBER TERM, 1982

MICHAEL O. MYERS,

ANGELO J. ERRICHETTI,

LOUIS JOHANSON,

Petitioners,

THE UNITED STATES OF AMERICA.

x

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS, FOR THE SECOND CIRCUIT

ALAN DEXTER BOWMAN

STEVEN H. GIFIS

One Palmer Square, Suite 410

Princeton, N.J. 08540

Attorneys for Petitioners,

Myers, Errichetti and

Johanson

ALAN DEXTER BOWMAN

STEVEN H. GIFIS

HENRY F. FURST

NEIL JOKELSON

ROCHELLE NEWMAN

On the Petition

RAYMOND A. BROWN

HENRY F. FURST

Brown, Brown & Furst, P.A.

Gateway One

Newark, N.J. 07102

Attorneys for Petitioner,

Errichetti

JOHN J. DUFFY

2800 Two Girard Plaza

Philadelphia, Pa. 19107

Attorneys for Petitioner,

Johanson

NEIL JOKELSON

ROCHELLE NEWMAN

Jokelson & Rosen

215 South Broad Street

Philadelphia, Pa.

Attorneys for Petitioner,

Myers

THE SUPERIOR APPELLATE PRINTING COMPANY

AREA CODE 609

443.4900

i

QUESTIONS PRESENTED

Whether A Due Process Defense To Conviction

Is Mandated By The Fifth Amendment And, If

So, Whether Petitioners' Assertions Of The

Defense With Respect To The Conduct Of Law

Enforcement Operatives In The ABSCAM Sting

Operation Requires Dismissal Of The

Indictment Or In The Alternative

Suppression Of Evidence Derived From

Unconstitutional Investigatory Method-

ology?

Whether the Speech or Debate Clause And The

Doctrine Of Separation Of Powers Immunize

Petitioner Myers From A Prosecution

Stemming From A Sting Operation Directed At

Congress Absent Any Probable Cause Or

Predicate Indicating That Either He Or

Other Congresman Were Involved In Criminal

Conduct?

ii

3. Whether The Admission Of Subsequent Criminal Acts As

Proof Of Intent On An Earlier Occasion Is Violative Of

The Right To A Fair Trial?

Ss -—

iii

TABLE OF CONTENTS

PAGE

Questions Presented ..cccssecceccccscseses i

Table of Contents ......- TTT TT onvens see iii

Table of Authorities .......e6- iveeeweeces vii

Opinion Below .eeveeevvvees oocccccccccces l

Jurisdiction ener eeeeeeeeeeeeeeeeeeee eenereeee 2

Constitutional, Statutory and Rule

Provisions Involved ...eceeees eT eTriT 2

I. Statement of the Case cevccccccccccccs 2

i. Procedural Background ..seeeeeees 2

cs. Introduction eeeeeeeeeeeeeeeeeeeeee 4

iii. ABSCAM - Its Genesis, Growth

and Development ...secesceveees 6

Se URAPORUStION ceccdcdccsrctcececees 6

b. The Manner Of Recruitment

Of Melvin Weinberg And

His Conduct eee eeeeeeeeeeeeeeeeee 8

iv. Factual Background ..sesceseseeees 12

a. The Initial Transaction in

Myers serene eeeeeeeeeeeeeeeweeeeeee 12

b. The Second Transaction in

Myers ener eeeeeeeeeeeeeeeeeeeeeeene 17

Il. Tne Jurisprudential Significance

Of The Arguments To Be Raised

Before The Court wesvsccccccccccces 19

iv

CONTENTS

a. The Due Process Violation ..... ee

b. Congressman Myers' Immunity

Based On The Speech Or

Debate Clause And The

Separation Of Powers Doctrine ..

c. Admission Of Subsequent Acts

As Proof Of Intent On A Prior

CECHSIOR cceccevecvocecsce seeennees

Reasons For Granting The Writ

POINT I CERTIORARI SHOULD BE

GRANTED TO PERMIT THIS

COURT TO DETERMINE

WHETHER A DUE PROCESS

DEFENSE EXISTS WITHIN

OUR CONSTITUTION. IF

SUCH A DEFENSE 1S

FOUND TO EXIST THIS

COURT MUST SCRUTINIZE

THE TACTICS UTILIZED

BY THE GOVERNMENT AND

STATE WHETHER THE

OVER-REACHING AND

CREATION OF CRIME

WHICH EARMARKED- THE

ABSCAM INVESTIGATION

VIOLATED PETITIONERS’

RIGHTS REQUIRING DIS-

MISSAL OF THE INDICT-

MENT OR IN THE ALTER-

NATIVE SUPPRESSION OF

ALL EVIDENCE DERIVED

FROM ILLEGAL TACTICS. ..

i. The Due Process FocuS ..ceesesees

ii. The Analysis Undertaken By

The Second Circuit ..ccccccccees

PAGE

19

24

27

30

32

35

Vv

CONTENTS

—_—

Q. Creation Of Crimes ccccoccccccces 35

db. Size OF IndUuCeMENtS coccccccccese 36

Ce Coaching eeneeeeeeeneeeneeeeneeeneeneee 37

d. Impairment Of Accurate Fact-

finding eoeeeoeeeeeveeeeee eeneeoeeveee 38

iii. The Thrust of ABSCAM Was The

Manufacture Of Criminal

Offenses eeneeee e*eenerieeeeeneeeneeeeee 39

iv. The Manner Of Supervision

Of The ABSCAM Investigation

And The Means Of Generating

Evidence Was So Deficient

That It Acted To Suppress

Compilation Of Exculpatory

Evidence And Rendered De-

fendants Unable To Fairly

Defend In Violation Of Due

PFOCESS coccccccccccccccccccccecs 47

POINT il CERTIORARI SHOULD’ BE

GRANTED TO FACILITATE

A DETERMINATION BY

THIS COURT AS TO

WHETHER THE INDICTMENT

AND PROSECUTION OF

CONGRESSMAN MYERS

VIOLATED HIS IMMUNITY

UNDER THE SPEECH OR

DEBATE CLAUSE. AND,

THIS COURT MUST ALSO

DETERMINE WHETHER THE

CRIMINAL INVESTIGATION

OF A MEMBER OF

CONGRESS AS PART OF

THE EXECUTIVE'S STING

OPERATION WITHOUT A

POINT III

vi

CONTENTS

PROBABLE CAUSE BASIS

VIOLATED THE SEPARA-

TION OF POWERS DOC-

TRINES. coccccccccccccces

THIS COURT SHOULD

GRANT CERTIORARI TO

ISSUE A RULE AS TO THE

ADMISSIBILITY INTO

EVIDENCE OF PROOF OF

CRIMINAL INTENT ACTS

WHICH OCCUR SUBSEQUENT

TO TERMINATION OF THE

CONSPIRACY AND SUB-

STANTIVE OFFENSES

CHARGED IN THE

INDICTMENT. ccccccccccces

Conclusion eeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

PAGE

49

56

65

vii

TABLE OF AUTHORITIES

Cases Cited:

Archer v. Commissioner of Corrections,

646 F.2d 44, 47 (2 Cir. 1981), cert.

den. 454 U.S. 851 (1981) eeeeeeeeeeeeee

Bruce v. Alaska, 612 P.2d 1012, 1014

(Sup. ae 1980) eee eveaeeeeeeeeeeeeeeee

California v. McIntire, 591 P.2d 527,

528 (Sup. Cr. 1979) eee eee eee eee eee eee

Cf. People v. Isacceson, 878 N.E. 2d

78 (Gt. App. 1978) eeeeeeeeeeeeeeeeeeee

Greene v. United States, 454 F.2d 783

(9 Cir. 1971) ee ee

Hampton v. United States, 425 U.S.

PAGE

21

22

22

45

44

484, £495 no7 (1976) cccccccccccccccccce 5p passim

Marbury v. Madison, 1 Cranch 137, 2

- Ed. 60 (1803) eeeeeeoeeeeeeveeeeee eevee

Michigan v. Wisneski, 292 N.W. 2d 196,

198 (Ct. App. 1980) eeeeeoeoeveeeeeeeeeeee

Minnesota v. Ford, 276 N.W. 2d 178,

182 (Sup. Ce; 1979) eee eneeeeeeeeeeeeeee

New Jersey v. Molnar, 81 N.J. 475,

L484 (1980) ccccccccccccccccccccccccccces

Norman v. Texas, 588 S.W. 2d 340,

346 (Ct. Apps 1973) ceccccccccccccceees

North Dakota v. Berger, 285 N.W.

2d 533, 539 (Sup. Ct. 1979) eeeeeeeeee

Ohio v. Metcalf, 396 N.E. 2d 786,

791 (cy, App. 1977) eeeeeeeee eee eee tees

55

22

22

22

22

22

22

viii

AUTHORITIES

Cases Cited Cont'd:

Pacelli v. United States, 588 F.2d

167. 178 (Bil. Chee TGS) woccesvecave A

Pennsylvania v. Jones, 363 A.2d

1281, 1284 (Super. Ct. 1976) ..eceees oe

Sorrells v. United States, 287 U.S.

435, 441 (1932) cccccccccccccccccccceces

Tzimopaulous v. United States, 554

F.2d 1216, 1217-1218 (1 Cir. 1977) ....

United States v. Bermudez, 526 F.2d

69, GH (2 Cir. 1975) cccccccecseccoeses

United States v. Bocra, 623 F.2d

281, 288-289 (3 Cir. 1980) eeeeeeeeeeee

United States v. Boyd, 595 F.2d 120

(3 Cir. 1978) ee ee)

United States v. Briola, 660 F.2d

763, 764 (10 Cir. 1981) eeeeeeee eee eeee

United States v. Brewster, 408 U.S.

59 (1972) e*sveevreeeeeeeeeeeeeeeeeeeeeeeee

United States v. Brown, 635 F.2d

1207, 1212-1214 (6 Cir. 1981) eeeeeeeee

United States v. Catanzaro, 407 F.2d

998 (3rd Cir. 1969) eeeeeeeeeeeeeeeeeee

United States v. Childs, 598 F.2d 169,

173 (D.C. Cir. 1979) eeeeeeeeeeeeeeeeee

United States v. Fierson, 419 F.2d

1020, 1022 (7 Cir. 1969) eeeeeeeeeeeeee

PAGE

58,59,60

44

54

45

40

58

57

ix

AUTHORITIES

PAGE

Cases Cited Cont'd:

United States v. Gallo, 543 F.2d 361,

364 [Det Cir. 1976) ee 58

United States v. Gonzalez, 539 F.2d

1238, 1239-1240 (9 Cir. 1976) .cccccces 45

United States v. Helstoski, 442 U.S.

Tt eee cbaecereseebeeesessccceece 26, 51

United States v. Helstoski, Crim. No.

76-201 (D.N.J. Feb. 27, 1980) eee eeeee 26

United States v. Jannotti, 673 F.2d

578 (3 Cir. 1982) Oe 41,48,54

Cf. United States v. Jimenez, 613 F.2d

1573, 1376 (5 Cir. 1960) wccccccccccces 60

United States v. Johnson, 383 U.S. 177,

i Coleco eee a seseneeneesceece 26, 54

United States v. King, 587 F.2d 956,

SE a. DOE) cenecnsncesecooscecoce 58

United States v. Krezdorn, 639 F.2d

1327, 1331 (5 Cir. 1961) ccccccscccsccece 63

United States v. Mack, 643 F.2d 1119,

1121-1122 (5 Cir. 1981) eee eee eee eeeee 57

United States v. Myers, 572 F. Supp.

1206 (E.D.N.Y. 1981) cocccccccccccscces 4, 39

United States v. Myers, 635 F.2d 932,

(2 Cir. 1980) cccccccccccccccccccccccce . 3,passim

United States v. Payner, 447 U.S. 727

(1980) eevee eeveeeneeeeeneeeeeeeeeeeneeeeee 48

AUTHORITIES

PAGE

Cases Cited Cont'd:

United States v. Powell, 587 F.2d

443, 449 (9 Cir. 1978) cocccccccccccece 60

United States v. Russell, 411 U.S. 423,

426 (1973) coeccees ec cccccccece eccccccce 42,44,51

Utah v. Taylor, 599 P.2d 496, 503

(Sup. Ct. 1979) wecseseees occcccccccoes 22

Rule Cited:

Fed. R. Evid. LOL(b) wccccccccccccccccces 56, passim

Statutes Cited:

18 U.S.CoAe $2 cccccccccccccccccccccccccs 2. 3

16 U.S.C.A.. $201 wcccccccccccvccsccccccce 2, 3

18 U.S.C.A. $371 wecceee Orr ererry. ecccce 2, 3

18 U.S.C.A. $1952 cccccccccccccees eccccce 2, 3

28 U.S.C.A. Sec. 1254(1) woccccccccccees ‘ 2

U.S.C.A. Const. Amend. 5 cccccceccsecess 2

Other Authorities Cited:

Federalist No. 48 (Cooke Ed.) sscceeeeees 25

McCormick, Evidence Sec. 157, at 327,

n.2 (1954) eee eee ee eee eee eee eer eee ree 57

xi

AUTHORITIES

PAGE

Other Authorities Cited Cont'd: |

Weinstein and Berger, Weinstein's

Evidence Vol. 2, Sec. 404 [08] at

404-45 eeneeeveaenene SCCVweeseseevseesoes eeee sews 6 asd 57

Wigmore, Evidence Sec. 302 (3d Ed.

1940) ee 57

In The

Supreme Court of the United States

October Term, 1982

MICHAEL O. MYERS

ANGELO ERRICHETTI

LOUIS JOHANSON

Petitioners,

v.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

Petitioner prays that a writ of certiorari issue

to review the judgment of the United States Court of

Appeals for the Second Circuit entered in this proceeding

on September 3, 1982.

Opinion Below

The opinion of the United States Court of

Appeals for the Second Circuit is appended to this Petition

as Appendix A. That opinion is published at 692 F.2d 823 (2

Cir. 1982)

Jurisdiction

The jurisdiction of the Supreme Court to review

the Final Judgment of the United States Court of Appeals

for the Second Circuit is based on 28 U.S.C.A. Sec.

1254(1).

Constitutional, Statutory and

Rule Provisions Involved

Petitioner seeks review of issues of law arising under

18 U.S.C.A. §201, 18 U.S.C.A. $371, 18 U.S.C.A. §1952, 18

U.S.C.A. §2 and U.S.C.A. Const. Amend. 5. They are

appended to this petition as Appendix B.

I.

STATEMENT OF THE CASE

i,

Procedural Background

On May 27, l980 Indictment No. CR-80-00240

was filed. That indictment charged petitioners Angelo

Errichetti, Michael O. Myers and Louis Johayson with:

-2-

a

conspiracy in violation of 18 U.S.C.A. $371; bribery in

violation of 18 U.S.C.A. §201(c) and §2 and, traveling in

interstate commerce to facilitate unlawful activity in

violation of 18 U.S.C.A. §1952 and 18 U.S.C.A. §2.' Howard

Criden was also named in the indictment.

A pretrial motion to dismiss was denied. The

Second Circuit affirmed that denial in an opinion which

discussed objections to the prosecution based on the speech

or debate clause and other related issues, United States v.

Myers, 635 F.2d 932 (2 Cir. 1980). A pretrial decision was

also made to conduct an evidentiary hering respecting due

process concerns subsequent to trial. Trial ultimately

commenced on August 11, l980 before the Honorable George

C. Pratt, U.S.D.J. and a jury. Thereafter, on August 29,

I980 guilty verdicts were returned as to petitioners with

respect to each count in the indictment. On August 13, I981

Judge Pratt imposed sentence on petitioners. Judge Pratt

1 Petitioner herein specifically adopt all

arguments raised in the petition for certi-

orari to be filed on behalf of petitioner

Howard L. Criden.

=3-

imposed aggregate sentences of three years imprisonment on

petitioners Myers and Johanson and an aggregate sentence

of six years imprisonment on petitioner Errichetti.

Subsequent to trial, an extensive hearing was

conducted before Judge Pratt respecting due process issues.

On July 24, 198] Judge Pratt issued an opinion denying any

relief to petitioners on due process grounds. See United

States v. Myers, 572 F.Supp. 1206 (E.D.N.Y. 1981), Timely

notices of appeal were filed respecting issues raised both

within the trial and the due process hearing. On September

3, lo82 the Second Circuit affirmed petitioners' convictions.

ii,

Introduction

This petition stems from the ABSCAM "sting

operation" perpetrated upon petitioners by the Federal

Bureau of Investigation. The Factual Background set forth

herein incorporates events relevant to this action as these

events were developed at both trial and the subsequent due

process hearing. The basic issue to be determined by this

Court is whether the ABSCAM investigatory methodology

reached the "demonstrable level of outrageousness" requisite

to a finding that it violated due process. Hampton v. United

States, 425 U.S. 484, 495 n.7 (1976). What has been said

thus far respecting the magnitude and significance of the

due process issue is not intended to obscure the examination

of other claims herein relating exclusively to the primary

right at issue in every appeal from a criminal conviction,

viz. the general right to a trial free of serious error and

unfairness,

The due process concerns impact upon two

areas. The violations relate to disregard of safeguards

designed to ensure that law enforcement methodology does

not rise to a level of outrageousness which is more

deleterious to the pubic good than the crimes sought to be

prevented and to making certain that all investigations are

supervised and documented in a fashion which facilitates

cogent judicial scrutiny. With regard to documentation and

supervision, failings in this area acted in this case to

preclude any reliable determination by a jury of the nature

of interaction between law enforcement operatives and the

unwitting petitioners, The violations which we allege must

be remedied by provision of relief to petitioners and

articulation of reasonable guidelines to be applied in

judicial review of future investigations.

iii.

ABSCAM - Its Genesis, Growth And Development

a. Introduction

The ABSCAM operation commenced in January

of 1978. (PDP3.185-1 to 5). A front operation was used by

the FBI to establish the charade of the existence of a rich

Arab Sheik who was willing to finance various projects.

(Tl7-l-4 to 8). The fictitious sheik was represented as having

money to invest in projects proposed by persons who could

deliver to him politicians who would become his friends.

(NYDP Ex.58). The representatives of the Sheik, who were

in reality undercover FBI agents and a paid informant

(Melvin Weinberg), would then prepare the politican to

accept money before the video-tape cameras. In connection

with this plan, the ABSCAM operatives were instructed to

turn away individuals who proposed wholly legitimate

ventures. (Tl714; Tl7ls). Moreover, assuming that an

illegitimate proposition was made, the ABSCAM operatives

were instructed to limit any inducements to amounts which

would comport with sums likely to be offered in the real

world,

Approaches were initiated by Weinberg to

various individuals whom he perceived to have the abilty to

lure public officials. Weinberg began this process by

violating the first instruction, viz. to refrain from attempts

to corrupt persons who proposed legitimate deals. (NYDP

4281 to 4283). He also continually offered inducments which

are not likely to occur within a real world situation,

offering as much as $42,000,000 to William Rosenberg for

his participation in doctoring stolen or forged securities.

(NYDP4284 to 4287). That offer was in addition to an offer

to finance a legitimate project. (NYDEP4282-3 to 5).

Weinberg also asked Rosenberg for $15,000. This act was the

beginning of Weinberg's double dealing and attempts to

make side money. (NYDP 4388-24).

In December of 1978, Weinberg met Errichetti.

Weinberg's introduction to Errichetti sparked the phase of

ABSCAM which gave rise to the instant prosecution. None

of the individuals herein were believed to be corrupt prior

to the approach to them by the ABSCAM operatives. In

-7-

short, the "sting operation" designed to ensnare persons such

as petitioner Myers was not premised on probable cause or

any form of suspicion of past corruption. The investigation

was premised upon determining whether promises of

investments in the public officials' home districts and

payments in amounts ranging between $50,000 and $100,000

would be sufficient to prompt the politicians to promise to

perform official acts in an influenced manner. Weinberg's

role was to fashion a meeting at which the politician would

be prepared to state before the cameras that he would

perform official acts in return for the money. (T.l066-1067).

b. The Manner Of Recruitment Of Melvin Weinberg And

His Conduct

Weinberg's involvement in ABSCAM stemmed

from a conviction in Federal Court in lo77. (T1587-l5 to

20). Weinberg was convicted of mail fraud, wire fraud and

conspiracy. (T1s87-24; T1687-18 to 22). His sentence for the

offenses, viz. a three year jail term, was modified to

probation because of his agreement to work for the FBI as

a paid informant. (Tls88-18 to 21).2 The deal was that

2 Weinberg defrauded various individuals of

Weinberg would "get four cases" for the government in

return for probation. (Tl690-2 to 3). Thereafter, in 1978 he

became a paid informant on an ongoing basis. Weinberg

received a monthly salary from the FBI for his efforts.

Weinberg's activities as a paid informant in 1978

were a continuation of cooperation which he provided to the

FBI in the 1966's. (PDP3.65-1 to lo). Weinberg worked for

the FBI during the period of time in which he was

operating the fraudulent schemes which ultimately led to

his apprehension and conviction. (PDP3.67-17 to 24).

Weinberg lied to the FBI about his personal activities.

(PDP3.70-17 to 19). Consistent with his past, Weinberg

engaged in double dealings, i.e. attempts to generate

personal gain, while he was being paid by the government

to make cases in ABSCAM. This double dealing included

solicitation of money and gifts which were not reported to

his superiors.

In addition to having a private plane, yacht,

office and luxurious townhouse at his disposal, Weinberg was

paid $133,000 (T2020-2 to 20; T2023-13). Weinberg is at this

$200,000. As part of his arrangement with the

government, he was not required to pay any

restitution to the victims. (T1687-10 to 13).

-9-

point in time receiving $3,000 per month as a paid

informant and thus his compensation for ABSCAM is

approaching $200,000. Weinberg expects to receive a

substantial bonus subsequent to completion of his testimony

and other participation in the trials. (T1853). Interestingly,

Weinberg has not filed tax returns for the years 1977, 1978

and 1979. (TI802-2 to 23). Weinberg received a $15,000

reward for one transaction. (D.P.Ex. 59). That reward was

discussed with the prosecutor (Puccio) and clearly stimulated

Weinberg toward zealous procurement of other public

officials. A book publisher has also promised Weinberg a

$loo,ooo advance for a book on his role in ABSCAM,

(Ti972-6 to 13). He has already received $15,000. Weinberg

also expects to reap profits from a film contract. (Tl972-2

to 14).

To facilitate the making of cases, Weinberg

selectively recorded conversations. It was not until April

1979, five months after he met Errichetti, that Weinberg

was even instructed to record all conversations. (Jenrette

Tr.). He also erased portions of recordings and distorted the

contents. (T1638-7 to Il; Tl956-22 to 25; NYDPol6 Tlo422;

NYDP Ex.79). Indeed, in one circumstance, it was necessary

-10-

for Weinberg to destroy certain tapes. He claimed at trial

that the tapes were stolen. (TI839-22 to 25). Although the

tapes were allegedly made within a week of their

disapperance, Weinberg could not remember the names of

the subjects recorded or the topics of the conversations.

(T1840-% to 9).

We iterate that Weinberg was paid "to make

cases." (Tl690-2 to 3). In June of 1979, a tape was made of

a prep session at which Weinberg prepared Senator Williams

to perform for the camera. The tape was scrutinizd by

Weinberg's superiors and he was admonished not to lead

politicians into incriminatory activity. (NYDP350-1).

Thereafter, he was severely criticized on August 9, 1979,

for this form of coaching by Edward Plaza and Robert

Weir, Assistant United States Attorneys from the Newark

office. (NYDPIl206-l2). Significantly, from that point

forward, no tapes were made of prepatory sessions relating

to the public officials. Moreover, Weinberg at no time

thereafter participated in any such session with a politician.

He recruited Errichetti and later Criden to perform this

function.

iv.

Factual Background

a. The Initial Transaction In Myers

In July of 1979, defendant Criden was

approached by two individuals, Messrs. Niefeld and Berman,

regarding development of a parcel of real property in

Atlantic City. These individuals were seeking assistance in

securing financing for a casino-iiotel to be constructed on

the property. (PDPl.5-] to 5). Criden was given authorization

to seek financing and a potential buyer for the completed

casino-hotel. (PDPI.5-6 to lo). Criden informed petitioner

Johanson, his law partner, of the arrangement. (PDPI.s-ll to

12). Thereafter, Johanson discussed the project with an

individual named Meiler. (PDPI.5-l4 to 15). Meiler suggested

that his neighbor, petitioner Errichetti, m ght be of

assistance. (PDPI.5-16 to 21; PDP2.5-l4 to 18). Arrange-

ments were made to present feasibility studies to

Errichetti. To this end, a meeting was convened at Meiler's

home. (PDP1.6-1 to 3; PDP2.5-20 to 22). The meeting was

attended by Johanson, Errichetti and Meiler. (PDP2.5-20 to

22).

-I2-

Errichetti reviewed the materials and agreed to

seck financing. In return, he was offered an interest in the

project. Errichetti then placed a telephone call to

Weinberg. Johanson spoke to Weinberg. (PDP2.5-23 to 25).

Weinberg stated that he represented a wealthy Arab Sheik

and would discuss provision of financing for the project.

(PDP1.6-13 to 18), A meeting was arranged for July 26,

lo979, in Fort Lauderdale, Florida. Prior thereto, Johanson

verified Weinberg's representation that the sheik had

$400,000,000 on deposit at the Chase Manhattan Bank in

New York. (PDP2.7-lo to 20).

On the evening of July 25, lo79 Meiler,

Errichetti, Johanson and Criden booked passage on a

commercial airline flight to Fort Lauderdale. (PDPI.6-l9 to

22). Criden and Errichetti were introduced to one another

for the first time on the plane. (PDPI.127-14 to lg). Anthony

Amoroso, an FBI agent posing as Anthony DiVito, and

Weinberg met the group at the airport. (PDPI.6-23 to 25).

The following day, a meeting was convened aboard a yacht

utilized by Amoroso and Weinberg as part of the "sting

operation." (PDPI.7-9 to Il).

-13-

Johanson and Criden made a presentation to

Amoroso and Weinberg concerning financing of the wholly

legitimate casino-hotel project. (PDPI.7-20 to 22; T579-l4 to

lg). Amoroso and Weinberg indicated that the sheik would

be interested in this project. (T923-lo to 13). Weinberg

stated that he expected to secure the approval of the sheik

within 30 to 60 days. (PDPI.8-3 to 12), The potential gain to

Criden and Johanson would have been ‘anywhere from

$3,500,000 to $5,000,000".(PDPl.9-8 to 9). A second

conversation ensued on the upper deck among Weinberg,

Errichetti, Amoroso and Criden. (Tr.§81-6 to 10), Amoroso

stated to Errichetti that the Sheik was concerned about

obtaining asylum in the United States because he

anticipated that he might shortly be forced to emigrate.

(T581-16 to 20).

On the return flight to Philadelphia, Errichetti

stated to Criden that his association with the Sheik's

representatives was “like a fantasy, a fairy tale."

(PDP1.9-12 to 15). He indicated that the Sheik would pay

"substantial fees" to meet public officials with titles.

(PDP1.9-17 to 21; PDP-1.10-1 to §), Errichetti stated that

-14-

the Sheik merely wanted to be associated with public

officials and there were "no strings attached," (PDP1.117-14

to 15).

Criden discussed the matter of introductions to

politicans with his law partners, including Johanson.

(PDPI.11-16 to 19). Johanson occupied a seat on the

Philadelphia City Council and had significant political

assocations. (PDPI.Il-l7 to 19). Criden requested that Ellis

Cook, a member of the law firm research the propriety of

such introductions. Cook concluded that such introductions

were wholly proper. (PDPI.12-6 to lo).3

Johanson contacted petitioner Myers. (T2708-4 to

13). Johanson described to Myers the "rich Arab Sheik" and

the casino-hotel project which was presented to the Sheik's

representatives. (T2709-16 to lg). Johanson then expressed to

Myers the offer conveyed to him by Criden that the Sheik

would pay $loo,o00 in return for introductions to important

persons. Johanson unequivocally stated to Myers that there

3 Cook, an unindicted co-conspirator, testified

at trial under a grant of immunity. Cook

stated on the government's case-in-chief that

it was the understanding of the group that

there was no quid pro quo.

-15-

would not be any quid pro quo. (T2709-l2 to 16). Johanson

iterated that Myers would not be required to do anything in

return for the money. (T27l2-1 to 16).

Johanson informed Criden that Myers was willing

to meet with the sheik. Prior to the day of the meeting,

Errichetti was told by Weinberg that he (Weinberg) would

meet with Myers to prepare him for his conference with

the Sheik. (PDpl.lIlo-lo to 25). Weinberg altered these plans

and informed Errichetti that he should coach Myers.

(PDPI.l20-14 to 18). Errichetti pulled Myers aside and

provided him with the prepatory speech given to Errichetti

by Weinberg. (PDPl.l20-l4 to 18), Errichetti emphasized, as

he believed was his understanding with Weinberg, that any

representations by Myers “would all be falsehoods."

(PDPI.120-14 to 18),

Thereafter, Errichetti informed Myers that the

sheik would not attend the meeting and one of his

representatives would substitute. Myers expressed concern

because he was previously told that he could tak about any

topic since the sheik did not understand the English

language. Errichetti retorted:

-16-

Tell them to 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.

(T2718-20 to 25). Cf.

(PDP1.121-17 to 25).

The meeting convened and Myers performed in a

manner consistent with his instructions. (T272Il-5 to

2739-17). When the meeting concluded, Myers was handed

an envelope by Amoroso containing $50,000. (T2739-18 to

21). After he departed from the room, Myers gave the

envelope to Errichetti. (T2739-18 to 25), Myers never saw

nor spoke to Errichetti again in connection with this or any

ABSCAM transaction. (T2740-2).

b. The Second Transaction In Myers

On January 24, lo80 Myers received a telephone

call from Criden. Myers was invited by Criden to meet with

a "new" representative of the Sheik, Mr. Cohen, Myers was

told that Cohen was interested in investing money in

-17-

Philadelphia. (T2744-1 to 3). A meeting was convened at the

Barclay Hotel. Mr. Cohen was in fact Michael Wald, an FBI

agent. (T2747-l2 to 1s). Myers was of the view that the

same ground rules applied 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." (T2747-22 to 25).

The meeting was attended by Myers, Wald and

Haridoplos, who was also an FBI agent. Myers, during the

meeting, told Wald and Haridopolos that on the previous

occasion in which he met with the Sheik's representatives,

he did not receive the amount of money he anticipated.

(T2779-8 to 12). Myers returned to the Barclay Hotel the

following evening subsequent to a call from Wald. (T2795-16

to 17). Myers at the meeting, consistent with his un-

derstanding that he was play-acting, indicated to Wald and

Haridopolos that "he could handle any problem that could

ever exist." (T2718-23 to 25).

Petitioners were convicted of each of the

counts in the indictment. The Second Circuit affirmed the

convictions. This petition follows,

The Jurisprudential Significance Of The Arguments

To Be Raised Before The Court

Petitioners Myers, Errichetti and Johanson have

selected three issues to be raised before this Court. The

issues celate to: (1) recognition and application by this

Court of the so-called due process defense to conviction;

(2) the mature and scope of Congressman Myers' immunity

under the Speech and Debate Clause; and (3) the admis-

sibility of subsequent criminal acts into evidence as proof

of intent on an earlier occasion, The national and juridical

importance of these issues cannot be gainsaid. These issues

arise within the context of a challenge to an unprecedented

expenditure of Executive Branch resources to determine the

corruptibility of Congressmen who had not previously

demonstrated any moral frailty or breach of fiduciary duty.

These claims are outlined below and detailed at length in

the reasons for granting the writ.

a. The Due Process Violation

-19-

> —

This Court must issue a statement respecting

the existence or non-existence of the "due process defense"

to conviction. And, in the event that this Court firmly

endorses the vitality of such a defense, a definition as to

its nature and scope must be set forth. Presently, the

precedential basis for the defense in the federal system lies

within the concurring opinion of Justice Powell in Hampton

v. United States, 425 U.S. 484, 495 (lo75). In Hampton

Justice Powell expressed the view that "[plolice over-

involvement in crime [could] reach a demonstrable level of

outrageousness [sufficient] to bar conviction." Id, at 495

n.7. We believe that the Constitution mandates recognition

of the defense since it is the exclusive means to remedy

unsavory and outrageous law enforcement methodology.

In denying petitioners relief on due process

grounds, the Second Circuit rejected the defense. The Court

stated:

In assessing this

collection of claims, we

acknowledge intimations

in decisions of the

Supreme Court that the

due process requirement

of fundamental fairness

may have a_ special

pertinence when

Government creates

-20-

opportunities for

criminal conduct...At

the same time, we

recognize that, with the

exception of a decision

by a divided panel of

the Third Circuit,

United States v. Twigg,

88 F.2d 373 (3 Cir.

978), convictions have

not been, invalidated by

federal appellate courts

on grounds of excessive

government _ involve-

ment...United States v.

Myers, 692 F.2d 823,

837 (2 Cir. 1982).

The Second Circuit further noted that in Archer v.

Commissioner of Corrections, 646 F.2d 44, 47 (2 Cir. 1981),

cert. den. 454 U.S. 851 (Io8l), it rejected "the due process

claim" and this Court denied certiorari. Consistent with the

importance of this case and ‘the ambiguous precedential

value of a denial of certiorari, the court chose to analyze

the facts of the instant matter and issue a finding with

respect to whether a due process violation inhered. Despite

evidence clearly establishing government over-reachine and

creation of crime, the court stated "[w]hatever may be the

due process limit of governmental participation in crime, it

was not reached here." 692 F.2d supra at 837.

-2I-

Contrary to the decision of the Second Circuit

herein, the majority of State courts addressing this issue

within the last several years have recognized that there is

no value to society in prosecutions that result from

government conduct which is as outrageous as that engaged

in by the subject of the investigation.4 The highest value to

society, with respect to the administration of criminal

justice, is in ensuring that the techniques employed by law

enforcement are fair and rational and bear a reasonable

relationship to the evil sought to be uprooted. Where

government resorts to conduct more offensive than that of

the criminal element, the greatest need for deterrence

relates to prevention of a recurrence of the government's

4 See New Jersey v. Molnar, 81 N.J. 475, 484

(1980); Norman v. Texas, 588 S.W.2d 340, 346

(Ct. App. 1973); Pennsylvania v. Jones, 363

A.2d 1281, 1284 (Super. Ct. 1976); Michiganv.

Wisneski, 292 N.W.2d 196, 198 (Ct. App. I980);

North Dakota v. Berger, 285 N.W.2d 533, 539

(Sup. Ct. 1979); Ohio v. Metcalf, 396 N.E.2d

786, 791 (Ct.App. 1977); Minnesota v. Ford,

are N.W.2d 178, 182 (Sup. Ct. 1979); Bruce v.

Alaska, 612 P.2d lol2, lolg (Sup. Ct. 1980);

Utah v. Taylor, 599 P.2d 496, 503 (Sup. Ct.

1979); California v. McIntire, 591 P.2d 527,

528 (Sup. Ct. lo79).

-22-

acts as opposed to mere apprehension of the criminal.

ABSCAM was such an example of outrageous and un-

acceptable law enforcement.

The so-called due process form of the

entrapment defense objectively focuses upon investigatory

tactics and the affect that these tactics might have on an

unwary innocent person. Stated somewhat differently, the

objective entrapment defense does not scrutinize the

predisposition to commit crime or lack thereof of the

defendant. The defense is focused upon the interest in

structuring investigations which do not have the capacity to

bring about unreliable and undesirable results.

This Court is compelled by the Constitution to

identify the defense and determine whether its application

to this case renders the convictions a nullity. This Court is

the ultimate arbiter of disputes respecting the substance of

the Bill of Rights. If the due process defense exists within

our federal Constitution, it exists for all whether the situs

of a prosecution is in a state or federal court. As

importantly, it shields all citizens from improper

governmental conduct without respect to the particular

status of a given citizen.

-23-

b. Congressman Myers' Immunity Based On The Speech Or

ebate Clause And Ihe separation Of Powers

Doctrine

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

I980) (hereinafter Myers I), a panel of the Second Circuit

considered the Speech or Debate clause and Separation of

Powers doctrine issues implicit in the ABSCAM prosecution

insofar as it reached Members of Congress. The Myers I

Court received the issue as part of a pretrial appeal of

denial of a motion to dismiss the indictment. The Court

heard argument and considered substantial briefs. The

panel's opinion disposed of those issues unfavorably for

petitioner Myers. Those same issues were raised as part of

the post-conviction appeal of Congressman Myers. It was

hoped that the arguments would persuade the Court to

reexamine its conclusions in Myers I, supra, and vindicate

the critical constitutional interests implicated by this

unprecedented prosecution.

However, in its second opinion below (herein-

after Myers II), the court iterated its view that "members

of Congress enjoy no special constitutional rule that

requires prior suspicion of criminal activity before they may

-24-

be confronted with a governinentally created opportunity to

commit crime." 692 F.2d supra at 835. It is submitted that

this Court must elucidate the nature of the Speech or

Debate Clause and the Separation of Powers doctrine in a

fashion which corrects the perception of the Myers I and

Myers II courts. These provisions of the Constitution must

be upheld as an effective shield against the form of

arrogant intimidation of Congress by the Executive

demonstrated within ABSCAM.

The investigation of one branch of our

tri-partite government by another, referred to aptly by the

Myers I Court as a "maneuver", implicates the core values

of our constitutional scheme. The framers of the Consti-

tution labored hard to erect a system of checks and

balances to protect each branch from encroachment by the

others. See Federalist No. 48 (Cooke Ed.). The Speech or

Debate clause was insisted upon as one such form of

security. The clause was drawn from the English

Parliamentary Privilege won by the Parliament in the

English Bill of Rights of 1689. The English Parliamentary

Privilege capped the struggle of the Commons over

successive monarchs who “utilized the criminal and civil law

-25-

to suppress and intimidate critical legislators." United

States v. Johnson, 383 U.S. 177, 178 (1966). Lifetime tenure

for federal judges (with salary protection) and the concept

of "Executive Privilege" are illustrations of "practical

security" imbedded in our system for the protection of the

other two branches.

Although this Court has not interpreted the

Speech or Debate clause to insulate Members of Congress

from bribery prosecutions, it has generously construed the

clause to prevent any use whatever of past legislative acts

or the motivations therefor. See, United States v. Helstoski,

442 U.S. 477 (lo79). It is abundantly clear in the instant

case that the indictment was returned by a grand jury

which depended heavily upon protected material furnished it

under its subpoena power. Petitioner Myers asserts again

that the indictment itself violated his rights under the

Speech or Debate clause. See United States v. Helstoski,

Crim. No. 76-201 (D.N.J. Feb 27, Il980) (unpublished)

(Dismissing the Helstoski Indictment on remand on this

ground).

-26-

———————<—< I

As one of the checks and balances of our

constitutional system, the Speech or Debate clause cannot

be left as shallow as it has been demonstrated to be in the

trials of the ABSCAM Members of Congress. To breath

some life into the clause, this Court must develop a

corrollary principal of constitutional law. In this petition,

we specifically request that this Court find as an aspect of

Separation of Powers some requirement of probable cause

or reasonable suspicion to be prerequisite to the application

of an undercover sting operation directed by the Executive

branch against members of the Legislative or Judicial

branches. This would draw a reasonable compromise between

the English rule of absolute privilege from criminal

prosecution and this Court's present position that members

of the Congress not be absolutely immune from prosecution

for bribery.

c. Admission Of Subsequent Acts As Proof Of Intent On A

“Prior Occasion

At trial, the court instructed the jury that the

conspiracy charged in the indictment was limited to

"[conduct] relating to Congressman Myers and the

immigration, residency and citizenship status of the

-27-

[fictitious] sheik." (T4060). The alleged object of the

conspiracy was to involve Myers in bribery or acceptance of

a gratuity. The trial court specifically stated that peti-

tioners were not charged with a conspiracy which en-

compassed “any other Congressmen; any Senators; any hotel

projects or zoning problems in Philadelphia; any gambling

casino projects in Atlantic City; any port develoment

projects in Philadelphia, any dealings with organized crime,

unions, or local or state officials, or any other matters."

(T4060). On the basis of the analysis adopted by the court,

the conspiracy charged in the indictment terminated on

August 22, l979, immediately after the meeting at JFK

Airport and division of the $50,000 received by petitioner

Myers in connection therewith. No other proof of concerted

conduct involving Myers, Errichetti, Johanson and Criden

subsequent to that date was adduced at trial.

The court's instruction to the jury setting forth

the parameters of the conspiracy was prompted by

admission into evidence of acts of petitioner Myers and

Criden which occurred subsequent to August 22, 1979. The

court admitted evidence that Criden and petitioner Myers

met with new representatives of the Sheik five months

after termination of the conspiracy. Those meetings

incorporated the extraneous and inflammatory matters which

the court was compelled to inform the jury were outside

the conspiracy charged in the indictment. Those extrinsic

acts were proffered by the government as proof of pe-

titioner Myers' and Criden's criminal intent respecting the

earlier transaction. (TG4061). Since the conspiracy was

terminated, these acts were concededly not in furtherance

of it nor bore any relationship to it. Those acts also bore

no relationship to the substantive bribery count.

Admission of the subsequent acts as proof of

petitioner Myers' intent respecting the conspiracy and

bribery counts charged in the indictment was clearly

erroneous and in the context of this case denied petitioners

a fair trial. The evidence merely tended to demonstrate a

propensity to commit crime, which prejudiced each

defendant at trial. In its opinion below, to avoid any ruling

respecting the admissibility of subsequent acts as proof of

intent on an earlier occasion, the Second Circuit disagreed

with the trial court as to the date when the conspiracy

terminated. In that fashion the Court sidestepped an issue

of great jurisprudential significance in the context of

-29-

appropriate circumscription of use of “other crimes"

evidence. Subsequent acts are not probative of intent on a

prior occasion. This Court must issue an opinion respecting

the clear jeopardy to a defendant's rights which such

evidence poses when admitted into a criminal trial.

Reasons For Granting The Writ

Point |

CERTIORARI SHOULD

BE GRANTED TO

PERMIT THIS COURT

TO DETERMINE

WHETHER A DUE

PROCESS DEFENSE

EXISTS WITHIN OUR

CONSTITUTION, IF

SUCH A DEFENSE IS

FOUND TO EXIST THIS

COURT MUST

SCRUTINIZE THE

TACTICS UTILIZED BY

THE GOVERNMENT AND

STATE WHETHER THE

OVER-REACHING AND

CREATION OF CRIME

WHICH EARMARKED

THE ABSCAM INVESTI-

GATJION VIOLATED

PETITIONERS' RIGHTS

REQUIRING DISMISSAL

OF THE INDICTMENT

OR IN THE ALTER-

NATIVE SUPPRESSION

OF ALL’ EVIDENCE

DERIVED FROM

ILLEGAL TACTICS.

-30-

The Second Circuit erred in ruling that the

ABSCAM investigation was not so outrageous as to violate

the petitioners' due process rights. Preliminarily, we

emphasize that it is our view that a due process defense is

mandated by the Constitution. And, recognition of the

defense requires reversal of petitioners’ convictions. We

predicate our claim as to a due process violation on two

combined bases. The first basis of our claim relates to the

generally outrageous and unconscionable nature of the

investigation which had the effect of creating as opposed to

ferreting out crime. The second basis of the claim is that

purposeful defects in the government's investigatory

methodology were such that it placed petitioners in the

posture of being unable to adequately defend against the

charges at trial. This result stems from manufacture by the

government of inculpatory evidence in conjunction with

purposeful suppression of indicia of innocence central to a

fair assessment of the events by a trial jury. And, even

assuming that indicia of innocence was negligently as

opposed to purposefully suppressed, the injury and necessity

for remedy are no less compelling. The tactics from which

-3I-

=

-

this combined claim stem are: (') the targeting of the

legislative branch without probable cause; (2) offers of

inducements in surrealistic amounts; (3) erasure and

destruction of tapes; (4) selective recording of conver-

sations; (5) inadequate documentation of events by FRI

personel; (6) specific failures respecting recording con-

versations involving Weinberg and middlemen (petitioner

Errichetti and Criden); (7) the general failure to supervise

Weinberg; (8) permitting Weinberg to engage in double

dealing; (9) offering Weinberg huge sums of compensation,

including bonuses, for making cases and testifying at trial;

and (lo) use of a personage such as Weinberg at all to

"sting" a United States Congressman.

We submit that this Court must issue a clear

statement which will preclude a future investigation which

has as its parameters only the imagination of particular

governmental operatives and paid informants.

The Due Process Focus

-32-

The interest of preventing the manufacture or

instigation of crime must be susceptible to vindication by

virtue of a challenge to the jury's verdict and the in-

dictment itself under the broad protections of due process.

There are recognized boundaries to investigatory tactics in

a free society that is committed to protecting the rights of

all of its citizens from overreaching and abusive prosecution

of criminal causes.5

The due process test is more difficult to apply

than the subjective test of entrapment (which focuses upon

the predisposition of the defendant) but at the same time is

even more vital to a free society since it acts essentially

as a limitation on the police power of the state. The

liberty vs. security balance inherent in the due process test

is one that American courts must draw in a host of other

5 It is now well-recognized that only a three

justice plurality suggested otherwise in

Hampton; two justices concurring said they

would recognize a due process defense in-

dependent of entrapment in an appropriate case

and three justices said they would have

applied such a defnese to Hampton itself.

Justices Stevens and O'Connor have not

expressed their views on the matter so that at

least five and possibly seven justices have

stated that a due process defense of the kind

outlined herein is valid at least for the

federal courts.

-33-

criminal law issues. It is one which we are reminded in

each setting depends upon the "totality of the circum-

stances." The interest in this case is in determining the

balance where the object is a criminality test aimed at

Congress. In this context, we emphasize that there was no

report of imminent danger being acted upon by the ABSCAM

investigatory crew mor any suspicion of widespread

corruption in the Congress requiring drastic law en-

forcement efforts.

Under the fundamental fairness and totality of

the circumstances approach, the ABSCAM investigation

exceeded the police power of the federal government. In

general, the central due process violation is the same

concern that lies at the core of the entrapment defense

itself: the investigation in the instant matter did not

uncover criminal conduct. Unmistakably, the subject matter

of this indictment was the product of instigation by the

government. It is manifestly not the province of law

enforcement to create or instigate criminality. And, that is

the heart of the first due process violation.

-34-

A second evil arising in this case is that the

overriding goal of securing convictions resulted in an infirm

investigatory methodology. The method of investigation

employed in this case, in terms of collection of evidence,

has made it impossible to reliably determine guilt in a

criminal trial. The manner of the investigation, particularly

selectively recording conversations and failure to record

others, irretrievably renders unreliable any outcome and

dismissal with prejudice is the only practical remedy.

ii

The Analysis Undertaken By The Second Circuit

The Second Circuit affirmed in toto the

activities of law enforcement officials within the context of

the ABSCAM investigation. The Court considered and denied

petitioners' claims of relief on the basis of evidence of

governmental creation of crimes; excessive inducements and

coaching of congressmen.

a. Creation Of Crimes

With respect to the claim of creation of

crimes, the Myers II Court found that the level of

governmental involvement did not reach the "due process

-35-

limit of governmental participation in crime." 692 F.2d

supra at 837. In the view of the Myers II Court, the

ABSCAM sting operation "was the creation of an oppor-

tunity for the commission of crime by those willing to do

so." 692 F.2d supra at 837. Contrary to the facts as

adduced at the due process hearing, the Court characterized

"the essential conduct of the agents and their paid in-

formant [as] to see who showed up to take bribes and

videotape them during so." 692 F.2d supra at 837.

b. Size Of Inducements

The Second Circuit made no cogent statement

with respect to the issue as to the size of the inducments

offered to Congressman Myers and petitioners Errichetti and

Johanson. With respect to the Congressmen involved, the

Myers II Court merely stated that the congressrnen did not

appear to be reluctant in the acceptance of money as a

precondition to the sheik's decision to invest millions of

dollars in projects within their districts. 692 F.2d supra at

838. With regard to the non-Congressmen petitioners, the

Court did not utter any opinion as to propriety of in-

ducments in multi-million dollar amounts. 692 F.2d supra at

-36-

837-838. In short, the Myers II Court did not provide any

sound analytical opinion with respect to the size of

inducements.

c. Coaching

The coaching issue was obscured by the Second

Circuit in a statement that petitioners "seek to create a

due process violation by combining an erroneous inter-

pretation of the bribery statute with an unrealistic

assessment of the facts." 692 F.2d supra at 840. As part of

this analysis, the Second Circuit stated that the "play-

acting" defense, employed at trial with the acquiescence of

the trial court, is not a defense to bribery. 692 F.2d supra

at 840.9 The Myers II Court then stated that the coaching

“claim would only have merit if there were insufficient

evidence of defendants' predisposition to playact or if the

agents' conduct were so extreme as to exceed due process

limits." 692 F.2d supra at 842. With regard to the due

6 Whether or not playacting is a defense to

bribery is not an issue herein. Assuming that

playacting is not a defense the coaching

aspect of the investigatory methodology

becomes proof that the agents prodded the

Congressmen into crimes by convincing them

that the conduct was lawful.

-37-

process implications, the Court was speaking of the

subjective test of entrapment as opposed to the so-called

due process defense. In this context, the court stated that

“promp t acquiescence shows a predisposition to accept a

bribe, whether or not a promise of official action is

intended to be kept." 692 F.2d supra at 842. With regard to

any implication of the objective due process defense, the

Court stated that the “bare suggestion to a Congressman

that he take a bribe, even for a promise he need only

pretend to make, surely does not violate a constitutional

standard of outrageous behavior." 692 F.2d supra at 843.

d. Impairment of Accurate Fact-finding

In assessing the claim of impairment of accurate

fact-finding, the court commenced its analysis with mention

of a “well-established reluctance to dismiss criminal

prosecutions because of faulty Government investigation."

692 F.2d supra at 843. Recognizing that petitioner urged

efforts "to frame standards for undercover investigations,"

the Myers Il Court nonetheless simplified its task by stating

“[w]herever the [due process limits of fundamental

fairness] might be, they have not been crossed in these

-38-

cases." 692 F.2d supra at 843. With specific respect to the

employment and utilization of Weinberg the Court stated

the "Due Process Clause does not forbid [his] employment,

detail [his] supervision, nor specify [his] compensation."

692 F.2d supra at 846. The Myers Il, in essence, was willing

to tolerate without qualification future investigations of this

type.

The Thrust Of ABSCAM Was The Manufacture Of

Criminal Offenses

The Myers II Court was constrained to recognize

that to be legitimate an undercover operation must be

geared to identification of criminality as opposed to

creation or manufacture of crime. This principle is

purportedly recognized by the government. This distinction

between improper instigation of crime and legitimate

identification of criminal activity is the thrust of the first

prong of defendants’ due process claim. That ARSCAM had

the earmarks of manufacture of crime was recognized and

consistently emphasized by the prosecutors in the District

of New Jersey. See United States v. Myers, 527 F.Supp.

1206 (E.D.N.Y. 1981).

-39-

A proper focus may have been assumed when

the FBI initially decided to employ Melvin Weinberg but did

not last very long as ABSCAM unfolded. With no predicate

basis of probable cause or need, it was transformed into an

elaborate, costly and sophisticated undercover "sting"

operation designed to ensnare public officials who for a

price would agree to do or pretend to do things which were

illegal. The goal was to have the politicians accept money

on camera with the promise that they would aid an

imaginary sheik in an immigration problem.

Although courts have not yet specifically limited

the approach of undercover agents to targets whom they

have probable cause to believe are engaged in illegal

activity, United States v. Catanzaro, 407 F.2d 998 (3rd Cir.

1969), some minimal level of suspicion should be a

pre-requisite to the approach. See Tzimopaulous v. United

States, $54 F.2d 1216, l2l7-1218 (1 Cir. 1977). Otherwise, the

operatives may find a level of susceptibility among a fairly

large section of the community, and the police function, if

given this full license, will tend to promote rather than

prevent crime. See United States v. Bocra, 623 F.2d 281,

288-289 (3 Cir. 1980).

Numerous cases in the state and federal courts

have now embraced either the objective theory of

entrapment or the overreaching and overinvolvement due

process defense. The leading case, decided in the Third

Circuit is United States v. Twigg, supra. Twigg has retained

its vitality despite the opinion of the Third Circuit in

“United States v. Jannotti, 673 F.2d 578 (3 Cir. 1982), an

ABSCAM-related case in which the due process defense did

not lead to reversal of the convictions. . The Jannotti

Court nonetheless specifically upheld its recognition of the

due process defense in Twigg. The Jannotti Court merely

stated that the facts before it did not rise to the

demonstrable level of outrageousness which it reviewed in

Twigg. The Jannotti Court was also careful to note that its

findings as to the lack of a due process violation in the

case before it did not bear any relationship to whether the

police conduct in ABSCAM may have violated the rights of

other defendants. Simply put, the Jannotti court might well

have found a due process violation in Myers.

In Twigg, a government informant, seeking to

make cases, contacted an acquaintance of 20 years to

discuss development of an amphetamine laboraory. The

-41-

target expressed interest and with the copious assistance of

the informant and the DEA an operation was constructed.

The operation did not previously exist and there was no

reason to believe that it would have come into existence

absent the active intervention of the government's

informant and the government's provision of resources.

Moreover, the informant's initial target recruited another

individual, Twigg, to assist in the operation. Although the

informant did not specifically generate this result, it

occurred with the full knowledge of the informant's

contacts at the DEA. Entrapment was tried to the jury by

the informant's initial target but not by Twigg since Twigg

was not brought into the operation by the government's

agent. The jury found pre-disposition and convicted. The

Third Circuit reversed in an exhaustive decision.

After reviewing this Court's decisions in

Hampton and Russell, and a variety of circuit court deci-

sions before and since, the majority held that a due process

defense of over-reaching and overinvolvement was not

barred by Hampton and Russell and indeed that a majority

of the Supreme Court would clearly embrace such a defense

in the appropriate case. The majority further found that the

-42-

——<—— lc k,l lc

absence of an on-going criminal activity which ws infil-

trated and exposed condemned the prosecution. The majority

found that "the conduct of the government

agents...generated new crimes merely for the sake of

pressing criminal charges." Twigg Id. at 381. Likewise, in the

instant case there was no suggestion that Congressman

Myers was engaged in any covert operation of accepting

bribes nor, as was conceded by the district court, is there

any suggestion that he was ever involved in anything

criminal in the past.

The dissent in Twigg was of the view that the

majority had improperly used the due process analysis to

reestablish the objective approach to entrapment after its

rejection by a majority in Hampton. It should be emphasized

though that the dissent did not disagree with the majority's

condemnation of the overreaching. Rather, the dissent

assumed the position that the federal courts after Hampton

lacked authority to create a police-conduct defense under

the banner of due process for a pre-disposed individual, But

the majority correctly met that argument by noting that

-43-

both Russell and Hampton involved infiltration into on-going

criminal operations. See United States v. Briola, 660 F.2d

763, 764 (lo Cir. 1981).

And, to make the analogy between Twigg and

the instant cas¢ complete, it must be noted that in Twigg

the defendant drought in by the codefendant and not by the

government's information was also immunized by due

process from a valid conviction since the misconduct in

creating the offense was so “demonstrably outrageous" that

it barred a valid prosecution. The court noted in Twigg that

it was puzzled why the Government was extending such

leniency to its informant in exchange for the convictions of

two men with no apparent criminal designs. See id, at 381

n.9.

The basic difference between infiltration of

existing ongoing criminal operations and generation of

criminal conduct also underpinned the Court's decision in

Greene v. United States, 454 F.2d 783 (9 Cir. lo7l), wherein

the governmental effort was rebuked. In Green, a federal

agent instigated the defendants to reinvolve themselves in

the production of bootleg liquor subsequent to their release

from prison. The agent participated in construction of a

-44-

still and offered to supply equiment and an operator. The

agent also provided sugar, a key ingredient, at wholesale

prices and was the only customer of the operation. The

Green Court reversed the conviction, finding that the agent

had sought out and preyed upon the defendants immediately

upon their release from prison. Cf. People v. Isacceson, 878

N.E.2d 78 (Ct. App. 1978); United States v. Brown, 635 F.2d

1207, l2l2-l2lq (6 Cir. 1981); United States v. Gonzalez, 539

F.2d 1238, 1239-1240 (9 Cir. 1976).

Examples of ABSCAM's overreaching and

overinvolvement abound in the record. The government

obviously manufactured a crime which otherwise was not

likely to have occurred. The investigation focused indis-

criminately on Congress. With specific regard to Myers, he

was approached by respected attorneys who were induced by

Weinberg to generate introductions to Congressmen.

Johanson and Criden approached Weinberg with a wholly

legitimate transaction. Weinberg and Amoroso dangled huge

amounts of money before them in terms of financing of the

project. Amoroso and Weinberg, however, made introductions

to public officials a condition precedent for financing. This

scenario was the creative activity of the government.

-45-

Bribes as instigated by Weinberg and Amoroso were wholly

outside the scope of Criden's and Johanson's purposes in

contacting them.

Weinberg, the government's chief operative,

immediately involved himself in criminal conduct. He

provided stolen and forged certificates of deposit to

Rosenberg and solicited gifts. Weinberg not only feigned

double-dealing on his employers, he actually engaged in it

and in such a way as to provide Errichetti instant ascension

to millionaire status. Further, he performed his agent

responsibilities, viz. recordings of conversations and

erasures, in such a fashion as to furtiier enhance the

creation of crime.

Exorbitant gain was offered to all of the Myers

defendants. Myers was promised $50,000 for a feigned

performance. Johanson and Criden were offered the

opportunity to divide between $3,500,000 to $5,000,000.

Errichetti was offered interests in a real estate company

whose initial venture would yield $3,000,000 with a 9%

interest in a $50,000,000 profit, a titanium mine, a

-46-

condo:ninium, a position as the sheik's highly paid personal

representative as well as interests in casino-hotels in

Atlantic City and finders fees on loans and other deals.

It is clear that there was no responsible

perception that the ABSCAM scenario would prevent further

crime since there was no evidence that any criminal

activity was afoot. A wholly legitimate deal was proferred

by petitioners Criden and Johanson. The response was

creation of a bribery scenario by Weinberg and Amoroso

which was unrelated to the legitimate deal.

iv.

The Manner Of Supervision Of The ABSCAM Investigation And

The Means Of Generating Evidence Was So Deficient That It

Acted To Suppress Compilation Of Exculpatory Evidence And

Rendered Defendants Unable To Fairly Defend In Violation

Of Due Process

The manner of supervision of Weinberg, who was

essentially without guidance in his efforts to generte

evidence of criminality, was impermissibly deficient since it

resulted in the creation of an offense in which petitioners’

complicity may not be reliably determined. Tapes were

erased and destroyed, conversations were selectively

recorded and Weinberg was permitted to manipulate

-47-

es

middlemen by conducting meetings with them without the

knowledge of the government. In his meetings and conver-

sations with middlemen, Weinberg created the playacting

rationale which instigated Myers to participate. However,

since those meetings and conversations were not recorded,

an unfair swearing contest has resulted. The net effect was

that Weinberg structured a criminal case by preserving

inculpatory evidence and suppressing exculpatory evidence.

Contrary to the Second Circuit's analysis of

United States v. Payner, 447 U.S. 727 (l980), we submit

that courts have retained supervisory power over the

administration of criminal justice. Payner establishes the

proposition that the nature of a violation of a third party's

Fourth Amendment’ rights does not require a

judicially-fashioned remedy respecting a claim for relief by

an individual other than the party whose rights were

violated. The Jannotti Court too recognized that the focus

must be upon the rights of the individual seeking to assert

a claim for remedy. Where an individual's own rights have

been violated a court not only has the authority to fashion

a supervisory remedy but also a responsibility to do so.

That responsibility is now upon this court.

POINT Il

CERTIORARI SHOULD

BE GRANTED TO

FACILITATE A

DETERMINATION BY

THIS COURT AS TO

WHETHER THE

INDICTMENT AND

PROSECUTION OF

CONGRESSMAN MYERS

VIOLATED HIS

IMMUNITY UNDER THE

SPEECH OR DEBATE

CLAUSE. AND, THIS

COURT MUST ALSO

DETERMINE WHETHER

THE CRIMINAL

INVESTIGATION OF A

MEMBER OF CONGRESS

AS PART OF _ THE

EXECUTIVE'S STING

OPERATION WITHOUT

A PROBABLE CAUSE

BASIS VIOLATED THE

SEPARATION OF

POWERS DOCTRINES.

Creation by the Executive of the ABSCAM

proceedings was a novel, unprecedented assault by one

branch of government upon another. The Executive in-

tentionally sought to invade the independence of the

-49-

Legislative Branch of government. The scheme devised by

the Executive Branch and directed against members of the

Legislative Branch was instituted without any basis to

believe that Congress as a whole or any particular

Congressman was soliciting or accepting bribes. Succinctly

stated, it is conceded by all that the bribe offer made to

petitioner Myers was not underpinned by a predicate finding

that Myers was in any way predisposed to commit the

crime of bribery.7 The factual predicate upon which the

Governinent made its decision to attempt to solicit Myers

and the other ABSCAM Congressmen were the repre-

sentations of middlemen, most notably the Government's

informant Mel Weinberg.

These facts completely distinguish the ABSCAM

prosecution against Myers and related Congressmen from all

previous executive branch prosecutions of Congressmen in

that all such prior prosecutions involved either ongoing

7 It should also be noted that it is our view

that playacting remains a viable defense to

bribery. Thus, we hold the opinion that

petitioner did not accept a bribe. The

government, prior to offering the money and

staging the performance convinced petitioner

Myers that he would not commit a criminal act

by accepting the money.

-50-

criminal activity involving a Congressman or a prosecution

where the executive branch had valid probable cause to

commence an investigation targeted against a specific

Congressman. See Sorrells v. United Sttes, 287 U.S. 435,

441 (1932); United States v. Russell, 411 U.S. 423, 426

(1973). The government in-this case manufactured a

fictitious crime and lured otherwise honest congressmen into

it.

The validity of the instant prosecution depends

upon this Court's acceptance of the proposition that the

executive branch can without probable cause entice

Congressmen into a fictitious form of criminality. This

precise danger was perceived by this Court in its opinion in

United States v. Helstoski, 442 U.S: 477 (l979). In discussing

the policy reasons behind the speech and debate clause, the

Helstoski Court stated:

[I]t is apparent from

- greg A of hao

clause that the privilege

was not born eiaank

of a desire to avoid

private suits...out rather

to prevent intimidation

by the executive and

accountability before a

possibly hostile

judiciary.

-$I-

There is little doubt

that the instigation of

criminal charges against

critical or disfavored

legislators by the

executive in a judicial

forum was the chief

fear prompting the long

struggle for parli-

amentary privilege in

England and, in the

context of the

American system of

separation of powers, is

the predominate thrust

of the Speech or

Debate Clause...

We reaffirmed that

principle in Gravel v.

United States...when we

noted that the

‘fundamental purpose' of

the Clause was to free

‘the legislator' from

executive and judicial

oversight .that realis-

tically threatens to

control his conduct as a

legislator.

If the executive branch through its politically

appointed prosecutors is given the power and discretion to

test selected Congressmen without sufficient probable

cause, the potential for abuse is manifest. It was not so

long ago in our country's history that great concern was

expressed over an enemy's list utilized by the then Attorney

-$2-

General of the United States at the instance of the

President of the United States. The concern as expressed

was the potential and actual abuse represented by such a

list of persons who perforce became targets of investigation

and/or prosecution.

Contrary to the suggestion of the Myers I Court

the danger of a politically motivated prosecution is not

overcome by the opportunity for a potential Congressional

target to clear himself by saying no as such a conclusion

does not express repugnance at the ill-founded investigation

itself. It is the attempt to intimidate and not the

conclusion of the bribe solicitation, be it successful or

unsuccessful, which violates the separation of powers

doctrine. At the very least, the prospect of an abusive

executive investigation will inhibit Congressmen who are

not predisposed to commit crimes or to corrupt their office

in their conversations with third parties.

In Myers I the Second Circuit concluded that

the essence of the argument made herein involves choices

of public policy rather than constitutional imperatives. This

Court has not limited the argument in that fashion. What is

clear is that the issues raised herein are fundmental to the

-53-

structure of government. In United States v. Brewster, 408

U.S. 59 (1972), and United States v. Johnson, 383 U.S. 169

(1966), this Court expressed great concern and indeed

division concerning the scope of the separation of powers

doctrine. The issues raised herein are far from settled.

ABSCAM involves an executive branch pro-

secution technique which is unprecedented in the history of

this county. The circuit court's opinion in the instant case

and its companion cases represent a constitutional blank

check to the executive branch to engage in future-like

activity. It is appropriate that this court review ab initio

the constitutional concerns raised herein so that all

branches of government may understand their position

vis-a-vis one another. Even if this court should conclude

that the separation of powers doctrine were not violated by

the instant prosecution tactics, such a declaration by this

Court would obviate the confusion which will surround

future interpretations of Myers I and Jannotti.

The solution does not lie in awaiting con-

gressional response in the form of legislation or of future

Justice Department regulations. Neither response would be

of constitutional dimension. It is this Court which since

-54-

Marbury v. Madison, | Cranch 137, 2 L.Ed. 60 (1803), has

reserved to itself the final word concerning the resolution

of constitutional dilemmas. Accordingly, it is no answer to

say that ABSCAM-type abuses may be corrected by

non-judicial actions to the extent that such abuses impinge

upon constitutional doctrine.

Acceptance of a rule of probable cause as a

prerequisite for directing a sting operation against the

Congress or the Judiciary would sacrifice very little in

terms of protecting the public from corrupt legislators or

judges. Where the Executive had reason to believe

particular legislators or judges were engaged in corrupt

activity it would be empowered to proceed with whatever

law enforcement tools were appropriate. It simply could not

without such a basis undertake to test randomly or

otherwise members of the other branches to see whether

they were corruptible. In petitioners' view this would be a

desirable limitation on all sting operations. Tricks, deceit

and guile as well as a highly paid informant were employed

to test the Congress. If ABSCAM is to teach us anything

about our institutions it would be preferable to conclude

-55-

that the checks and balances system needs some rein-

forcement rather than that one branch is steeped in

potential for corruption.

POINT Ill

THIS COURT SHOULD

GRANT CERTIORARI

TO ISSUE A RULE AS

TO THE ADMISSIBILITY

INTO EVIDENCE OF

PROOF OF CRIMINAL

INTENT ACTS WHICH

OCCUR SUBSEQUENT

TO TERMINATION OF

THE CONSPIRACY AND

SUBSTANTIVE

OFFENSES CHARGED

IN THE INDICTMENT.

FedR.Evid.404(b) now governs the admission of

evidence of other crimes, wrongs or acts in a federal

criminal trial. The cule states inter alia:

Evidence of other

crimes, wrongs or acts

is not admissible to

prove the character of

2 person in order to

show that he acted in

conformity therewith. It

may, however, be

admissible for other

purposes, such

as...intent...plan,

knowledge...

-56-

————

The cule on its face would appear to clearly set forth the

limited purposes for which “other crimes, wrongs or acts"

evidence may be admitted. Courts, however, repeatedly

over-extend the state of mind exception, finding that nearly

any past criminal act or wrong is relevant to state of

inind, Ordinarily, the sole grounds upon which such evidence

is excluded is that the offense or act is not sufficiently

similar nor close enough in time to be relevant. United

States v. Fierson, 4lo F.2d lo2o, lo2z2 (7 Cir. 1969). See

McCormick, Evidence Sec. 157, at 327, n.2 (1954); Wigmore,

Evidence Sec. 302 (3d Ed. l940) (cases admitting prior

criminal acts as evidencing intent); Weinstein and Berger,

Weinstein's Evidence Vol. 2, Sec. 404 [08] at 404-45.

The area of challenge in this case is with

respect to whether subsequent acts which transpired in

January of 1980 can be fairly characterized as being

probative of intent on August 22, lo79. Several circuits

have adopted an interpretation of Fed.R.Evid.4o4(b) which

permits admission in certain contexts of subsequent acts of

a defendant as proof of his intent at an earlier time. See,

United States v. Bermudez, 526 F.2d 89, 95 (2 Cir. 1975);

United States v. Mack, 643 F.2d Illo, Ilal-lla2 (5 Cir. 1981);

-$7-

United States v. Childs, 598 F.2d l69, 73 (D.C. Cir. lo79);

Pacelli v. United States, 588 F.ad 167, 173 (D.C. Cir. lo79);

United States v. King, 587 F.2d 956, 962 (9 Cir. 1lo78);

United Sttes v. Gallo, 543 F.ad 361, 364 (D.C. Cir. 1976).

The analytical underpinning of the cases in which admission

of "subsequent other crimes" evidence has been affirmed is

faulty.

With respect to the clear untrustworthiness of

admission of subsequent act evidence, United States v.

Boyd, 595 F.2d l2o (3 Cir. 1978), is particularly instructive.

In that case, the Third Circuit flatly rejected an inter-

pretation of Fed.R.Evid.4o4(b) which admits subsequent

other crimes evidence. In Boyd, the trial court admitted

testimony of an undercover officer that on three days

after expiration of the conspiracy charged in the indict-

ment, which concerned the manufacture and distributin of

methamphetamine, he discussed with one defendant a

purchase of drugs and tht more than two months after the

conspriracy he met with another defendant for a similar

purpose. In finding reversible error, the Boyd Court stated:

«The logic of showing prior

intent or knowledge by

proot ot subsequent

activity escapes us, Nor

-§8-

do we understand how,

logically, a post-conspiracy

purchase of a chemical in-

gredient tends to prove

modus operandi of the

prior manufacturing

_— [so5 F.ad at

26

In regard to the ineffectiveness of a limiting instruction, as

to the rights of codefendants, the Boyd Court stated:

The trial court gave an

instruction limiting the

use of [the] testimony

to Pare and Lipton, and

to the specific purpose

of proving that they

were members of the

conspiracy. Once Pare

and Lipton were

connected to the

conspiracy, however,

their out-of-court

statements could be

considered by the jury

against codefendants.

Thus, the court's

admonitory instruction

was, we believe, wholly

ineffective in insulating

the codefendants in from

the prejudicial effects

of Gotf's testimony.

[$95 F.ad at la7).

We believe that Boyd is representative of the

most cogent position respecting the relevance of subsequent

act evidence, Cf, United States v. Jimenez, 613 F.ad 1573,

-59-

1376 (5 Cir. lo8o) ; United States v. Powell, 587 F.ad 443,

449 (9 Cir. 1978). Accordingly, we urge this Court to adopt

the position of the Third Circuit in United States v. Boyd,

supra, and reject as constitutionally infirm the interp-

retation of Fed.R.Evid.404(b) which permits admission of

evidence of subsequent criminal acts as proof of intent on

an earlier occasion, The inappropriate use of subsequent act

evidence in this case is illustrative of the need for a strict

rule. An analysis of the eivdence indicates that it was not

demonstrated to be relevant as to any issue in dispute, The

particular ac.s were wholly non-probative as to Sec.2ol

intent on August 22, lo79. The January meetings were

merely evidence of a new plan to fleece the Sheik.

Petitioner Myers was the only defendant to

testify at trial. In essence, the defense which he presented

was that he was playacting and did not accept the money

in return for being influenced in his official acts, The jury

was instructed that a finding of playacting warranted

acquittal. Myers was recruited by the other defendants to

merely meet with the Sheik, Prior to the meeting, he was

coached by Errichetti to come on strong. There was no

clear evidence to the contrary. The government basically

-60-

relied on the testimony of Weinberg and Amoroso and the

videotape. Weinberg and Amoroso testified that it was made

clear to Errichetti that the [fictitious] Sheik would have an

expectation of favor subsequent to payment of the money.

(Tlo645-5 to 14; T1675-3 to 5). However, there were no

tapes or other evidence supporting this proposition.

Contrarily, Ellis Cook, an immunized witness of the

government, who was also an unindicted co-conspirator,

testified that the understanding of the group was tht the

Congressman would not be required "to do something [in

return]." (TIl38-5). Viewed in this light, it is clear that the

government was hard-pressed on the basis of the evidence

which ic generated to prove Sec. 20] intent. Its exclusive

means of proof was the videotaped performance which by

itself was proof of an actus reus but standing alone was

hardly convincing proof of a Sec. 201 mens rea in light of

the Congressman's playacting defense which was accepted by

the trial court. Therefore, the tape at trial merely resulted

in the jury having to determine whether a duly-elected

Congressman was truthfu! in stating that on August 22, l9o79

he was playacting. While the Congressman could not retain

-6I-

his honor in view of the tape, he could nonetheless place

his credibility before the jury with respect to the narrow

issue of Sec. 20] intent.

This dilemma stemmed from the government's

ABSCAM modus operandi. The government did not

contemplate as part of its investigation that the

Congressman would be approached and actually requested to

exert some influence. (Tlo46-§ to 8). The Congressman's

response to such an approach, absent tapes concerning what

he was told by middlemen, would be the only reliable

evidene of intent.

Resolution of the dilemma by the trial court

and the government was in the form of admission of

evidence of the subsequent acts. Petitioner Myers did not

contest that he participated in a plan to fleece the Sheik.

He, as all the other defendants, did contest the issue as to

a Sec. 20] intent on August 22, l979. The subsequent acts

did not to any degree elucidate the issue of a Sec. 20]

intent on an earlier occasion. Those acts at best merely

cumulatively demonstrated the plan to take money. The

result of their admission, under circumstances where they

bore no relevancy respecting the issue of Sec. 20] intent on

~62-

August 22, l979 was to indicate to the jury tht petitioner

Myers and Criden had criminal dispositions.And, since

petitioners Johanson and Errichetti were involved with

them, they too must have such a disposition.

Admission of the wholly irrelevant subsequent

act evidence in this case resulted in the jury hearing from

the mouth of a United States Congressman statements

concerning corruption in all areas of the City of

Philadelhia, including the Mayor and City Council and

Atlantic City. Those acts also incorported references to the

Mafia and improprieties in Washington and throughout the

fabric of government. There is no basis upon which it may

be argued tht improper admission of such evidence may

under any circumstances be deemed harmless. Indeed, the

sheer number of the areas of corruption which were

referred to would in itself overwhelm a jury. United States

v. Krezdorn, 639 F.2d 1327, 1331 (5 Cir. 1981). In short, the

evidence merely tended to demonstrate a propensity toward

crime and to shock the jury's conscience,

We submit that the erroneously admitted

evidence was of such a character tht it precluded fair

consideration of petitioners' cases by the jury. Even

-6 3-

assuming that subsequent act evidence is admissible under

certain circumstances, the subsequent acts in this case were

clearly more prejudicial than probative. Indeed, they were

fatally prejudicial.

CONCLUSION

For the foregoing reasons, we

respectfully request that this Court grant

this petition for certiorari.

Respectfully submitted,

s/R.A.B.

s/H.F.F.

fin Kk Bewrin

ALAN DEXTER BOWMAN

STEVEN H,. GIFIS

HENRY F, FURST

NEIL JOKELSON

ROCHELLE NEWMAN

ON THE PETITION

DATED: January 14, 1983