Petition — Williams v. States

Utice - Supreme Court, U,

83-256 abides.

AUG 17 1983

No. 83-

ALEXANDER L STEVAS

IN THE : es

Supreme Court of the United States

OCTOBER TERM, 1983

HARRISON A. WILLIAMS, JR.,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ERWIN N. GRISWOLD

Counsel of Record

CLAIRE L. SHAPIRO

JONES, DAY, REAVIS & POGUE

1735 Eye Street, N.W.

Washington, D.C. 20006

(202) 861-3898

GEORGE J. KOELZER

JOEL N. KREIZMAN

EVANS, KOELZER, OSBORNE,

KREIZMAN & BASSLER

P. O. Box BB

Red Bank, New Jersey 07701

Counsel for Petitioner

WILSON - Epgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether the trial court committed prejudicial error

when, in response to a specific question from the jury,

it instructed the jury to determine predisposition by

focusing on the time when the accused committed

the crime.

2. Whether the Government’s (a) initiation of an “in-

vestigation” without any predicate, (b) continua-

tion of that investigation with active efforts to de

velop crime for nearly five months before any crim-

inal opportunity was presented to the accused, and

(ce) offering exorbitant financial inducements while

Saying that the accused’s statements need never be

acted upon, was so outrageous as to violate due process

of law.

3. Whether extensive warrantless electronic surveillance

is consistent with the Fourth Amendment, when it

is conducted in the absence of some basis for sus-

picion of criminal activity.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................0000ccccccssecececeoseeees i

EN Sa Lg y | CEE OTEn Vv

1 eenceeeasnetunteindatlneeapeiienied 1

J a EIR A OUNCE et Po 1

CONSTITUTIONAL PROVISIONS INVOLVED........ 2

REESE Rr oene oMCORIE SL CNRE aE 2

I os cossuileaspubananaieiacenetosiion

Se apainieenesembetonbiehein

EA LTE AT EE 10

REASONS FOR GRANTING THE WRIT .................... 12

I. THE SUPPLEMENTAL INSTRUCTION ON

THE TIME FOR DETERMINING PREDIS-

POSITION MISSTATED THE LAW IN A

FUNDAMENTAL MANNER .......000.0......20000000000 12

A. The Entrapment Defense Established by

This Court Determines Predisposition by

Focusing on the Time When the Government

Began Its Efforts to Induce the Alleged Of-

FE eg SE eee Como UT ar Ee 12

B. The Improper Supplemental Charge War-

CIID i... cennisesenioiesiibbemiamiioiecanel 17

Il. THE ACTIONS OF THE GOVERNMENT

WERE SO OUTRAGEOUS THAT THEY

AMOUNT TO A DENIAL OF DUE PROCESS

5 A SLE RS ERS Re ee atl ee aa 20

Y

? <<. 2-3 8

iv

TABLE OF CONTENTS—Continued

. The Lower Federal Courts Have Been Un-

able to Define the Government Conduct Pro-

hibited by the Outrageousness/Due Process

ON a ee eee

The Due Process Limits on Government Con-

duct in a Bribery Investigation Should Be

No Broader Than Those Established by the

Department of Justice and the F.B.I. to En-

sure the Fairness of the Abscam Operation...

The Government’s Conduct During Its In-

vestigation of Senator Williams Was Out-

III. UNDER THE CIRCUMSTANCES OF THIS

CASE, INCLUDING THE ABSENCE OF A

PREDICATE, THE EXTENSIVE ELEC-

TRONIC SURVEILLANCE, WITHOUT A

WARRANT, WAS A VIOLATION OF THE

pt yg Ys i, ) cen ene

I nooks san esas daclnsencexccencncoipcinnelanssin Manes

APPENDICES (separately bound):

A.

B.

Opinion of United States Court of Appeals

for the Second Circuit ...........................cccccosees

Opinion of United States District Court for

the Eastern District of New York ................

Judgment of United States Court of Appeals

for the Second Circuit ...................-.....ccccccesseses

. Order of United States Court of Appeals for

the Second Circuit Denying Petition for Re-

SI aos ccsbiinithevictishaeshcscamahctgua ace careiaies

. Entrapment Charge Given by the United

States District Court for the Eastern District

Oe Te OE ine cee ee ee

Page

20

30

46a

Vv

TABLE OF AUTHORITIES

Cases: Page

Arroyo V. Jones, 685 F.2d 35 (2d Cir. 1982) ......... 18

Brewer v. Williams, 430 U.S. 387 (1977) ................. 22

Criden Vv. United States, No. 82-1240, cert. denied,

R&B, IN or Sos Ree 2

Desist v. United States, 394 U.S. 244 (1969)........ 28

Hampton v. United States, 425 U.S. 484 (1976).... 12, 20

Jannotti v. United States, cert. denied, 457 U.S.

I asia 2, 26

Katz v. United States, 389 U.S. 347 (1968) ............. 28

Kotteakos v. United States, 328 U.S. 750 (1946) ..17, 19-20

Lederer Vv. United States, No. 82-1183, cert. denied,

ne ns SET 0 I = anincsnceoeseseaben aciealnanaimiins 2

Lopez V. United States, 373 U.S. 427 (1968)........ 29

Miranda Vv. Arizona, 384 U.S. 436 (1966) .............. 22

Murphy v. United States, No. 82-1187, cert. de-

nied, 108 S. Ct. 2487 (1988) ..........................2..... 2

Myers Vv. United States, No. 82-1255, cert. denied,

ee eB a | RRR ree ee? 2

On Lee Vv. United States, 343 U.S. 747 (1952)........ 29

Sherman v. United States, 356 U.S. 369 (1958) ..12, 14-16

Sorrells v. United States, 287 U.S. 435 (19382) ....12, 14-16

Spano v. New York, 360 U.S. 315 (1959) ............ 22

Terry V. Ohio, 392 U.S. 1 (1968) ......................ccccce0ee 28

Thompson Y. United States, No. 82-1199, cert. de-

oe. tee me Oe Geer (IUGR)... 2

United States v. Batres-Santolino, 521 F. Supp. 744

A a ae 21, 22, 27

United States v. Jannotti, 501 F. Supp. 1182 (E.D.

TD i ea li ee 21, 25

United States v. Jannotti, 673 F.2d 578 (3d Cir.

I oe a a ae 22, 26

United States v. Kelly, 539 F. Supp. 636 (D.D.C.

Ss IEA an ee OE Ae as ME IT 21

United States v. Kelly, 707 F.2d 1460 (D.C. Cir.

SRILA. 5 Senne» LTA LESS 22

United States v. Marcello, 537 F. Supp. 402 (C.D.

ie ay EES ee Are wee) 27

United States v. Myers, 527 F. Supp. 1206 (E.D.

N.Y. 1981) ........ 21

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. Russell, 411 U.S. 423 (1978)....12, 16, 20

United States v. Twigg, 588 F.2d 373 (3d Cir.

IS oo ass a ashienpscphiehincivacncntioteanenpielaianeianan 21, 22

United States v. White, 401 U.S. 745 (1970)........ 27-30

Constitution and Statutes:

SS | | ; cnc Ree ene a nae 30

RO OD a cesisneeeneceniicniorenenclasie totes 10

te OD oo cccirntn vic nedgusleulsbemnenedanavaneebintntas 10

gp Dog nee een eeee er sores 10

Be IT ai pre serrcccssnsesninnacdnnstechemnaiennialieniaiea 10

cc eeerseteaninanipenianioninanannainnia 10

dik al "nen 2

U.S. Const. Fourth Amendment ........................2.... 2, 27-28

U.S. Const. Fifth Amendment ............................-+++- 2

Miscellaneous:

Devitt & Blackmar, FEDERAL JURY PRACTICE & IN-

STRUCTIONS (3d ed. 1977) ..................ceseeeseeeeecceeees 16, 21

Green, THE STING MAN: THE INSIDE STORY OF

FE Ee ae 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-

HARRISON A, WILLIAMS, JR.,

“ Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, Harrison A. Williams, Jr. 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 case on April 5, 1983.’

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Second Circuit is reported at 705 F.2d 6038, and is

reprinted in Appendix A (infra, pp. la-45a). The opin-

ion of the United States District Court for the Eastern

District of New York on due process questions is re-

ported at 529 F. Supp. 1085, and is reprinted in Ap-

pendix B (infra, pp. 46a-87a).

JURISDICTION

On April 5, 1983, a panel of the United States Court

of Appeals for the Second Circuit affirmed the judgment

of the District Court. The judgment is reprinted in

! Parties involved: In addition to the petitioner, Alexander Fein-

berg was an appellant in the proceedings before the Second

Circuit. He has filed a petition: No. 83-5108.

2

Appendix C (infra, pp. 88a-89a). A petition for rehear-

ing, with a suggestion for rehearing en banc, was denied

on May 24, 1983. The order denying rehearing is re-

printed in Appendix D (infra, pp. 90a-91a). By an order

signed on July 7, 1983, Justice Marshal] extended the

time for filing the petition to and including August 22,

1983.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254/1).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V:

No person shall be . . . deprived of life, liberty,

or property, without due process of law.

United States Constitution, Amendment IV:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shal] issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

STATEMENT

L Introduction

This is one of a series of cases arising out of the

F.B.I.’s Abscam investigation. Although this Court has

denied certiorari in the earlier cases,’ strong factual and

legal distinctions justify the grant of certiorari in this

case.

With the exception of Senator Williams, each of the

other Congressmen was lured into Abscam by a clearly

2 Certiorari was denied in Ledere v. United States, No. 82-1183,

Murphy Vv. United States, No. 82-1187, Thompson v. United States,

No. 82-1199, Criden v. United States, No. 82-1240, and Myers et al.

Vv. United States, No. 82-1255, on May 31, 1983. See 108 S. Ct.

2437-38. Certiorari was also denied in Jannotti v. United States,

457 U.S. 1106.

us

Lis. PA A

8

illegal proposal—the promise of money in exchange for

the introduction of immigration legislation on behalf of

a rich Arab sheik. Moreover, each of the other Con-

gressmen was identified by a middleman as a person

willing to accept a bribe and, in fact, each of them did

accept a cash bribe (ranging from $5,000 to $50,000)

after one or two meetings with representatives of the

sheik.

The Government’s attempts to develop a criminal case

against Senator Williams, described below in some detail,

had a different origin and followed a very different

path, making this the only case where the issue of en-

trapment was fully litigated. These distinctions make

this the ideal case for the Court to give further defini-

tion to the defenses available to a defendant when the

Government has actively participated in the creation of

a crime.

IL. Facts*

In January, 1979, Angelo Errichetti, the Mayor of

Camden, New Jersey, met with Senator Williams at the

*A copy of the transcript of the Williams-Feinberg trial, the

due process hearing, and the tape transcripts, has been lodged with

the Clerk of this Court. Citations to this record will be made as

follows:

a. Testimony in the Williams-Feinberg trial—T (page). The

trial transcript is reproduced in the green volumes (num-

bered 1 through 5), reprinted for the Senate Select Com-

mittee on Ethics.

b. Exhibits in the Williams-Feinberg trial—Ex. (number

or letter). Tape transcripts are also cited to their page in

the green volume (number 6), reprinted for the Senate

Select Committee on Ethicsa—(Sen. Comm. Print, Pt. 6, p.

(page) ).

c. Testimony in the Williams-Feinberg due process hearings

—DP (page). The due process transcript is reproduced in

the blue volume, reprinted for the Senate Select Committee

on Ethics.

d. Exhibits in the Williams-Feinberg due process hearings

—DP Ex. (number).

4

reopening of a navy shipyard. T 4232-33. Errichetti told

the Senator about a wealthy Arab sheik who was look-

ing for investment and financing opportunities in the

United States. Jd. The Senator conveyed the news of

this apparently legitimate opportunity for financing to

two close friends, Alex Feinberg and Sandy Williams

(no relation), who were seeking funding for a titanium

mining venture aimed at the production and sale of paint

pigment. T 1582, 4234. Those two friends got in touch

with Errichetti, who relayed their request for financing

back to the Government agents and, at the same time,

linked those individuals to Senator Williams. T 616-17.

The Government had absolutely no reason at that time

to suspect Senator Williams of any past, present, or fu-

ture wrongdoing. Even Thomas Puccio, the prosecutor in

the case, admitted that there was no reason “to question

Williams’ integrity before his name came up in this

ease.” DP 413-14. And F.B.I. Agent Goode, who was in

charge of the Abscam operation, admitted they were

starting with a “clean slate” so far as Senator Williams

was concerned. DP 778. Nevertheless, without any at-

tempt to determine whether the Senator was in fact cor-

rupt, the F.B.I. promptly began its affirmative efforts to

implicate the Senator in wrongdoing.*

Representing themselves to be employees of a wealthy

Arab sheik, they scheduled a meeting with the Senator’s

friends for the very next day (January 11, 1979). At

the meeting, Sandy Williams described the mining prop-

erty, confirmed the viability of the venture, identified

potential customers for the various products (a nearby

foundry for iron ore and several paint companies for

* There is a very disturbing aspect to this. The record shows that

the Government operatives knew that Senator Williams once had an

alcohol problem. Ex. 13A, p. 8 (Sen. Comm. Print, Pt. 6, p. 90).

Based upon this fact, Mel Weinberg, in a book written about his

activities, described Senator Williams as “typica! of many former

alcoholics, warm wax waiting to be impressed.” R. W. Green, THE

STING MAN: THE INSIDE STorY oF ABSCAM 159 (1981).

5

titanium slag), and asked for a loan of $12-13 million.

T 1583-85. There was no suggestion at this meeting that

government contracts, or any other impropriety, were in-

volved. See T 664. As supervising F.B.I. Agent Goode

later testified, the mining venture “was on initial ap-

pearance, a legitimate operation.” DP 894.

Despite the absence of any indicia of criminality, the

Government agents expressed serious interest in financing

the mining project, and in mid-March used a government

plane to fly undercover F.B.I. agents with Sandy Williams

and George Katz (an investor in the mine) to view the

property. T 620, 1586. Sandy Williams mentioned an-

other plant that was capable of processing the titanium

slag from the mine into titanium dioxide, the ingredient

actually used as white paint pigment. T 1248-49, 1587.

Once again, however, there was no reference during the

visit to government contracts or any other form of im-

propriety. T 681-82.

But the Government was not deterred. They invited

Senator Williams to a party given by the “sheik” in Flor-

ida on March 23, 1979, purportedly to honor Mayor Erri-

chetti, and at the party suggested to the Senator that he

get directly involved in financing the mine. See Ex. 2A,

pp. 18-20 (Sen. Comm. Print, Pt. 6, pp. 20-22). Shortly

after this party, the Government upped the ante by agree-

ing to provide $100 million in financing for the appar-

enciy legitimate business venture. Ex. 4A, pp. 4-5, 8

(Sen. Comm. Print, Pt. 6, pp. 40-41, 44).

With this foundation laid, the Government operatives

switched the focus of the venture from titanium dioxide

for paint pigment (the only product in which Senator

Williams and his associates were interested) to govern-

ment contracts for titanium metal, which, they suggested,

® Even the Second Circuit admits that “the $100 million loan

was initially discussed in connection with what appeared to be an

entirely legitimate business transaction”. United States vy. Wil-

liams, 706 F.2d at 621; App. 38a.

i

6

Senator Williams could help to obtain. The first refer-

ence to government contracts came on April 23, 1979,

after three and a half months of extensive government

build-up, when Melvin Weinberg, the Government opera-

tive, bluntly asked Sandy Williams:

MW: Alright, now what about uh, let me ask you

a question. There’s a lot of government con-

tracts that, ya know, on the chemicals.

SW: Right.

MW: Now, can Williams get us the bids on them?

Sandy Williams rejected the notion, making it clear

that such a plan of action had not been anticipated or

even considered. _

SW: Well, I don’t know about that. The main

thing is with this Cyanamid thing....

MW: Yeah.

SW: They’ve got customers they’ve had for twenty,

thirty and forty years.

MW: Right.

SW: And if established business and, of course, big

big people that buy are paint manufacturers.

MW: Right.

SW: And if we wanna increase our business, we’ll

have to, we'll have to go into like Sherwin-

Williams and people like that and try to get

their business away from somebody else.

Ex. WQ, p. 4 (Sen. Comm. Print, Pt. 6, p. 375).

The Government ignored this negative response, and

scheduled a May 31, 1979 meeting with the Senator and

his friends. Prior to the meeting, a Government agent

broached the government contracts idea with Alex Fein-

berg. Feinberg, like Sandy Williams, made it clear that

he had not previously considered government contracts as

part of the deal.

7

TD: Is he going to be able to steer any kind of con-

tracts from the Committee that he’s on to

ward, toward the operation that we’re going to

get involved with? I mean...

AF: Well, this I didn’t know until now I have to

ask him that.

Ex. 7A-2, p. 1 (Sen. Comm. Print, Pt. 6, p. 54).

Thus, the critical element of criminality supporting

Senator Williams’ conviction, an agreement on his part

to get government contracts for the mining venture, was

nothing planned, contemplated, or originated by Wil-

liams. It was solely a product of the affirmative action

of the Government operatives. Moreover, as the Govern-

ment conceded in its brief below, it was May 31, 1979,

after this Government plan to foment crime had been

going on for nearly five months, before the Government

made its first “presentation to him [Senator Williams]

of a corrupt proposal.” Gov’t Brief in Ct. of App., p. 76.

So even if the Senator did accept the criminal opportu-

nity at the May 31 meeting (and there is a dispute

about what actually occurred at that meeting), that ac-

ceptance must be viewed as the product of the months

of Government activities preceding it.

The Government’s efforts to create a crime intensified

after the direct criminal proposal was presented. At the

suggestion of his supervisors, Mel Weinberg scheduled

a direct meeting between Senator Williams and the sheik.

Ex. 10A, pp. 4-6 (Sen. Comm. Print, Pt. 6, pp. 78-75).

In anticipation of that meeting, Weinberg increased the

pressure on the Senator’s friends to force the Senator

into expressly agreeing to get government contracts, told

the Senator’s friends exactly what he would be expected

to say, and assured the Senator and his friends that the

Senator would never have to act upon his promise. The

following are typical of Weinberg’s comments:

I personally think Feinberg’s jerking us off... Let

Tony and you speak to Senator. . . and all we want

to hear from him is that he’s going to get us some

8

Government contracts.... [He later added) I don’t

think he’s got the fucking balls to control Williams

. Well, you straighten, you get a hold of Pete

and straighten him out.”

Ex. WR, p. 4 (Sen. Comm. Print, Pt. 6, p. 396); Ex.

WS, pp. 5, 7 (Sen. Comm. Print, Pt. 6, pp. 406, 408).

the Senator’s gotta be told alright? In no certain

terms that he’s gotta move his fucking ass to get the

goddamn government contracts.

Ex. 10A, p. 2 (Sen. Comm. Print, Pt. 6, p. 71).

All bullshit . . . . And that’s it, it goes no further,

it’s all talk, all bullshit... . You’re on stage for

twenty minutes.

Ex. 14A, pp. 4, 5, & 7 (Sen. Comm. Print, Pt. 6, pp. 96-

97, 99). See also Ex. 183A (Sen. Comm. Print, Pt. 6, p.

87).

Finally, Weinberg met personally with Senator Wil-

liams and Errichetti immediately before the June 28

meeting with the sheik. In an almost unbelievable and

surely inexcusable manner Weinberg told the Senator

again and again, and in strong terms, precisely what to

say. See Ex. 14A (Sen. Comm. Print, Pt. 6, pp. 93-103).

Excerpts from this “coaching” session forcefully illus-

trate the point.

Forget the mine. Don’t even mention the mine....

How high you are in the Senate. He’s interested

in you.... Who you know in the Senate can do you

favors .. . how important you are. Without, with-

out you there is no deal. You are the deal. You put

this together. You worked on this and you can get,

you got the government contracts. Without me there

is no government contracts. ... You know the names

to mention....

You gotta just play and blow your horn. The louder

you blow and mention names, who you control.

9

Ex. 14A, pp. 2-3, 6 (Sen. Comm. Print, Pt. 6, pp. 94-95,

98). Influenced by Weinberg’s insistent pressures and

certain that he would never have to act on his words,

Senator Williams talked about his connections with in-

fluential members of Government. See Ex. 15A (Sen.

Comm. Print, Pt. 6, pp. 104-130). In addition, although

he never expressly guaranteed government contracts, he

responded favorably to statements by others concerning

his ability to obtain them.

But the Government still was not satisfied. They in-

vented and tried to implicate the Senator in two new

criminal scenarios. The first involved an exorbitant fi-

nancial lure. In September, 1979, the Government created

a second group of Arabs interested in buying the mining

venture at a $70 million profit. T 1120-21; see Ex. 238A,

pp. 18, 25 (Sen. Comm. Print, Pt. 6, pp. 225, 282). Of

course, the Government operatives asserted that this sec-

ond group of Arabs also insisted upon the Senator’s help

to get government contracts. See Ex. 23A, pp. 17-18

(Sen. Comm. Print, Pt. 6, pp. 224-25).

In the second scenario, implemented in January of 1980,

the Government tried to catch Senator Williams in the

money-for-immigration-assistance scam that had worked

so well with the other Congressmen. Contrary to the prac-

tice in the other cases, however, when the Government

set up the “asylum scenario” meeting between the Senator

and the sheik they intentionally and inexcusably refrained

from mentioning the bribe possibility to Senator Williams

and his associates. DP 479-80, 1132. Thus, the Senator

had no reason to think that the meeting with the

had any illegal purpose. Indeed, his statements at

meeting show that he anticipated a purely legi

transaction. See Ex. 25A, pp. 2-5 (Sen. Comm.

Pt. 6, pp. 349-52). Moreover, in striking contrast

other Congressmen, Senator Williams directly and

edly refused the offer of money.

¢f

eH

i

10

RF: I, I will for, for your help, er, assistance

and assistance—I would like to give you, er,

you know, some money for, for permanent—

HW: No.

RF: —residence.

i1W: No, no, no. This, this is when I work in that

area, that kind of activity, it is purely a

public not er, no.

Ex. 25A, pp. 8&9 (Sen. Comm. Print, Pt. 6, pp. 355-56).

In sum, then, the Government’s unrelenting efforts to

cause the clear and unambiguous commission of a crime

continued unabated for a full year, at which time further

activities were precluded by massive press leaks.

LIL Procedural! History

On October 30, 1980, Senator Williams was indicted

in the Eastern District of New York for violations of

18 U.S.C. §§ 201(c) (bribery), 201(g) (conflict of in-

terest), 203(a) (accepting an illegal gratuity), 371 (con-

spiracy), and 1952 (Interstate Travel Act). He pleaded

not guilty on all counts, and took the stand to explain

his statements and actions. At the same time, he claimed

that the Government’s actions in this investigation con-

stituted entrapment and outrageous conduct, in violation

of his due process rights.

The entrapment defense was presented to the jury for

decision. The district court judge gave a lengthy and

involved instruction ou the law of entrapment. T 5572-

80.° In brief, he told the jury that the defendants need

only show Government inducement, at which point the

burden shifts to the Government to show that the de-

fendants were predisposed beyond a reasonable doubt to

commit the crimes charged. The judge also discussed in

some detail the meaning of predisposition.

* The full text of the district court’s entrapment charge, given

twice (T 5572-80, 5700-07), is set forth in Appendix EB, infra, pp.

92a-96a.

a

11

Several hours after beginning deliberations, a con-

fused jury asked the judge to explain the entrapment

defense one more time. T 5673. At the judge’s request,

the jury formulated several specific questions pertaining

to entrapment, including a crucial question inquiring

about the point in time at which predisposition must be

established?” T 5698. Following an extended colloquy

with counsel, T 5685-95, the judge instructed the jury

that predisposition should be determined as of the time

when the crime was committed. T 5698-99. The judge

then repeated his original lengthy entrapment charge.

In this context, the jury returned a verdict of guilty on

all counts of the indictment.

The Second Circuit stated unequivocally that the dis-

trict court’s supplemental] instruction was erroneous, but

decided that the error was not prejudicial. United States

v. Williams, 705 F.2d at 618; App. 3la-32a. The appel-

late court reached this conclusion by focusing on May 31,

1979, the time when the Government admittedly first

presented the criminal opportunity directly to Senator

Williams, and by deciding that sufficient evidence ex-

isted to permit the jury to conclude that Senator Wil-

liams was predisposed at that point in time.

The outrageousness/due process defense was reserved

by the judge for post-trial determination. The district

court rejected the due process claim presented in this case,

without indicating the parameters of the outrageousness/

due process defense. See United States v. Williams, 529

F. Supp. 1085, 1097-1102 (E.D.N.Y. 1981); App. 65a-

77a. The Second Circuit, while admitting that “we do

not know what sort of circumstances the [Supreme]

Court believes would meet this elusive standard,” also

‘ The question asked by the jury was as follows:

Does entrapment have to be established from day one of the

indictment or can it be established further along in the opera-

tion ?

12

rejected the due process challenges. United States v. Wil-

liams, 705 F.2d at 619-20; App. 35a.

REASONS FOR GRANTING THE WRIT

L THE SUPPLEMENTAL INSTRUCTION ON THE

TIME FOR DETERMINING PREDISPOSITION

MISSTATED THE LAW IN A FUNDAMENTAL

MANNER.

Over the past 50 years, this Court has decided four

eases which have established and defined the general scope

of the entrapment defense. These are Sorrells v. United

States, 287 U.S. 435, Sherman v. United States, 356 U.S.

369, United States v. Russell, 411 U.S. 423, and Hampton

v. United States, 425 U.S. 484. Despite these decisions,

however, there is considerable uncertainty in the lower

courts about the precise application of the defense. This

case gives the Court the opportunity to clarify an im-

portant aspect of the law of entrapment, to the benefit of

the public, the lower courts, and the bar.

A. The Entrapment Defense Established by This Court

Determines Predisposition by Focusing on the Time

When the Government Began Its Efforts to Induce

the Alleged Offense.

After hearing lengthy instructions and commencing

deliberations, the jury asked the district court judge to

explain the entrapment defense once again. T 5673.

At the judge’s request, the jury formulated several more

specific questions, including the following significant

inquiry:

Does entrapment have to be established from day

one of the indictment or can it be established fur-

ther along in the operation?

T 5689. Over objections from counsel, the judge

responded:

The inducement question here is a matter of law.

It is not a problem you even have to worry about.

It is there. The only question that you have to de

13

cide in order to answer the element of entrapment is

was the defendant predisposed to commit the crime.

You said from day one, or at some other time. You

have to decide when the crime was committed, if you

get to that element, and then determine as of that

time when he committed the crime was he predis-

posed to do it or wasn’t he. (Emphasis supplied.)

T 5699. The judge then repeated verbatim the lengthy

entrapment charge previously given. T 5700-07. But

the answer to the jury’s specific question was firmly im-

planted in their minds, and they promptly determined

that Senator Williams had committed the crimes charged

and was at “that time” predisposed to do so.

The jury’s question and the district court’s precise re-

sponse raise a fundamental question of federal law not

previously decided by this Court. It is important that

the Court resolve this issue now, for if the suppiemental

instruction is allowed to stand, then the entrapment de-

fense firmly established by this Court will, in effect, be

vitiated. After all, virtually all defendants are disposed

to commit the crime charged at the time they actually do

80.

The court of appeals clearly recognized the error in

the district court’s instruction when it stated that “[a]s

a general proposition of law the fragment of the supple-

mental response now challenged by appellants was erron-

eous. A defendant’s predisposition is not to be assessed

‘as of that time when he committed the crime’.” United

States v. Williams, 705 F.2d at 618; App. 3la. According

to the court of appeals “predisposition refers to the

state of mind of a defendant before government agents

make any suggestion [directly to a defendant] that he

should commit a crime.” Jd. Since the court of appeals

found that Senator Wiliams was first directly asked to

obtain government contracts on May 31, 1979, five months

after the Government’s operation had been initiated,

they looked only to that date in analyzing and finding

predisposition.

14

The appellate court’s interpretation of the law, like

the supplemental instruction given by the district court,

distorts both the meaning of predisposition and its func-

tion in the entrapment defense. Both interpretations of

the law of predisposition by the courts below totally ig-

nore the cumulative effects of escalating Government in-

itiative and inducements occurring over a period of nearly

five months from January through May of 1979—i.e.,

the Government’s encouragement of the legitimate tita-

nium venture, leading up to its agreement to finance that

project, first, to the extent of $13 million, and then of

$100 million, the injection of a criminal element into the

legitimate business venture, and an entire course of

conduct aimed at overcoming the hesitancy expressed by

the Senator and his associates over the acceptance of this

criminal] idea. And the Second Circuit ignored these ac-

tions of inducement for the paradoxical] reason that they

came before instead of simultaneous with or after the

direct criminal suggestion.

If either of the lower court interpretations of the

law of predisposition is accepted, the universally con-

demned commercial practice of “bait and switch” be

comes an accepted law enforcement technique. The Gov-

ernment can interpose itself into a legitimate transaction,

carry it along for months, offer vast inducements to

advance it, and then on its own motion, switch to a crim-

inal proposal, relying on the atmosphere it has earlier

created to ensure its acceptance, and none of those actions

are of any relevance if a predisposition to accept has

been developed by the time the crime is proposed. Such a

result is inconsistent with the essential goal of the en-

trapment defense as set forth by this Court, that is, to

keep the Government from manufacturing crime. See

Sherman v. United States, 356 U.S. at 372; Sor-

rells v. United States, 287 U.S. at 448, 452.

15

To avoid the creation of crime, a majority of the Court

in Sorrells v. United States, 287 U.S. at 442, held that il-

legal entrapment exists—

when the criminal design originates with the officials

of the Government, and they implant in the mind of

an innocent person the disposition to commit the

alleged offense and induce its commission in order

that they may prosecute.

The controlling question was ‘whether the defendant is a

person otherwise innocent whom the Government is seek-

ing to punish for an alleged offense which is the product

of creative activity of its own officials.” Jd. at 451. That,

of course is exactly this case. No one suggests to this

day that the offense here was the product of the creative

activity of Senator Williams and his friends. The crimi-

nal element here was created and introduced by the

Government.’

Twenty-six years after Sorrells, in Sherman v. United

States, 356 U.S. 369, a majority of this Court reaffirmed

the commitment to the entrapment defense as it was de-

fined by the Court in Sorrells. Neither case specifically

discussed the precise time for determining predisposition.

The Court’s opinions, however, focus on the time when

§ Even the district court judge recognized that the criminal sug-

gestion came from the Government, when he said:

I mean the government was there. They set it up. They re-

quested that he guarantee the taking of the titanium contracts.

They are in a sense trying to create the crime. They are set-

ting him up quite obviously.

I mean it starts with the government, this particular event.

Regardless of what other transaction he might have engaged

in, this particular event would not have happened but for the

government going to the extent it did.

Quite obviously, the government arranged this thing.

T 4714, 4715, 4717.

16

the Government agent first approached the defendant and

began his efforts to induce commission of a crime. In

Sorrells, for example, the Court commented upon the de-

fendant’s reputation as an industrious, law-abiding citi-

zen before the agent lured him into committing the crime

charged. 287 U.S. at 411. And in Sherman, the Court’s

focus on the time before inducement and not the time of

the actual criminal suggestion, was evident in its state-

ment that the Government’s evidence was “insufficient to

prove petitioner had a readiness to sell narcotics at the

time Kalchinian [the informant] approached him.” 356

U.S. at 376.

This emphasis on the defendant’s state of mind prior to

the intrusion of the Government is evident in what this

Court referred to in United States v. Russell, 411 U.S.

423, 427 n.4, as the “standard entrapment instruction.”

This instruction, taken from Devitt and Blackmar, 1

FEDERAL JURY PRACTICE & INSTRUCTIONS § 13.09, p. 364

(8d ed. 1977), contains the following language:

If, then, the jury should find beyond a reasonable

doubt . . . that, before anything at all occurred re-

specting the alleged offense involved in this case, the

defendant was ready and willing to commit crimes

such as are charged in the indictment, whenever

opportunity was afforded, and that government offi-

cers or their agents did no more than offer the oppor-

tunity, then the jury should find that the defendant

is not a victim of entrapment. (Emphasis supplied.)

There is nothing in this jury instruction or in the case

law which indicates that “anything at all” should be lim-

ited, as the Second Circuit suggests, to the ultimate sug-

gestion of a crime. On the contrary, it must be given its

plain and natural meaning, which includes any actions

taken by the Government to interfere with the defendant’s

volitional processes and lead him into a criminal act. The

district court should have instructed the jury to determine

whether the defendant was predisposed to commit the

crime charged before “anything at all” occurred respect-

17

ing the alleged offenses charged in this case. This charge

would have directed their attention to “day one” of the

long series of actions by the Government agents to lay

the ground work for and eventually to induce the criminal

act charged.

B. The Improper Supplemental Charge Warrants

Reversal.

As the Second Circuit correctly decided, the supplemen-

tal instruction now challenged by petitioner is erroneous

as a matter of law. See United States v. Williams,

705 F.2d at 618; App. 3la. Consequently, the verdict

which crucially rested on this instruction should have been

reversed if the instruction had a “substantial influence”

upon the jury’s determination. This standard for rever-

sal in a criminal case was established by this Court in

Kotteakos v. United States, 328 U.S. 750, 764-65, when it

stated :

If when all is said and done, the conviction is sure

that the error did not influence the jury or had but

very slight effect, the verdict and the judgment

should stand, except perhaps where the departure is

from a constitutional norm or a specific command of

Congress. . . . But if one cannot say, with fair

assurance, after pondering all that happened without

stripping the erroneous action from the whole, that

the judgment was not substantially swayed by the

error, it is impossible to conclude that substantial

rights were not affected. The inquiry cannot be

merely whether there was enough to support the

result, apart from the phase affected by the error.

It is rather, even so, whether the error itself had

substantial influence. If so, or if one is left in grave

doubt, the conviction cannot stand.

Any other approach would subvert the due process re-

quirement that a criminal conviction must be based upon

proof beyond a reasonable doubt.

In determining whether a supplemental instruction had

the substantial influence required to mandate reversal,

18

an appellate court must keep in mind the special impor-

tance and impact of such a charge. The unique features

of a supplemental charge were well summed up by the

Second Circuit in the recent decision of Arroyo V. Jones,

685 F.2d 35, 39 (2d Cir. 1982):

First, it will have been the most recent or among

the most recent, bit of instruction they [the jury]

will have heard, and will thus be freshest in their

minds. Moreover, it will have been isolated from the

other instructions they have heard, thus bringing it

into the foreground of their thoughts. Because sup-

plemental instructions are generally brief and are

given during a break in the jury’s deliberations, they

will be received by the jurors with heightened alert-

ness rather than with the normal attentiveness which

may well flag from time to time during a lengthy

initial charge. And most importantly, the supple

mental charge will normally be accorded special] em-

phasis by the jury because it will generally have

been given in response to a question from the jury.

Because of the preeminence of the supplemental charge,

particularly one related to a vital issue, the error is not

cured by a repetition of a prior confusing and unillumi-

nating abstract charge. Jd.

The influence of the disputed supplemental charge was

obvious here. The jury was unable to reach a decision on

the predisposition question based solely upon the initial

charge. Thus, the judge’s direction to focus on the point

in time when the crime was committed may well have

been the determinative factor leading to the jury’s rejec-

tion of the entrapment defense. While the jury apparently

found Senator Williams predisposed on the day he com-

mitted the crime charged (and we do not know from

the general verdict whether that day was May 31, 1979,

June 28, 1979, or some later date), it is probable that

the jury would have found a lack of predisposition to

commit the crime charged on some earlier date. For ex-

ample, if the jury found that the crime was committed

coh

19

on May 31, 1979, as did the Second Circuit, they may

have found Senator Williams nondisposed on March 23,

1979, when he first met with Government agents, and

surely would have found him nondisposed on January 11,

1979, when the Government began its efforts to induce

crime. Similarly, if the jury found that the crime was

committed on June 28, 1979, when Senator Williams met

the sheik, the poor quality of the May 31 tape and the

audible statements by the Senator on that tape indicating

an intent to disclose his interests in the mine, might have

led to a finding that he was nondisposed on May 31,

1979, March 23, 1979, or January 11, 1979.

The court of appeals found the erroneous instruction

harmless, in essence, because available evidence would

have permitted the jury to find that Senator Williams ac-

cepted the criminal opportunity when it was first pre

sented on May 31, 1979. United States v. Williams, 705

F.2d at 609, 619; App. 10a, 33a-34a, 39a. But, as the

Court stated in Kotteakos, the mere fact that there is

enough evidence to support the jury’s result if a correct

interpretation of the law is applied is not enough to pre-

vent reversal by an appellate court.*® Kotteakos v. United

States, 328 U.S. at 764. Reversal is unnecessary only

when the error did not influence the jury or had only a

slight effect. Jd. Since the erroneous supplemental in-

struction challenged here undoubtedly had a “substantial

influence” on the criminal conviction, reversal with direc-

tions as toa correct charge is required.

* The Second Circuit also suggested that the improper supple

mental charge did not require reversal because the objection was

not properly preserved for review. However, trial counsel indicated

his opposition to the supplemental charge before it was given when

he stated that “The government has to prove predisposition from

day one. In other words, from on or about the first day of Janu-

ary, 1979 these two men were predisposed beyond a reasonable

doubt.” T 5685-86. In addition, after the charge, counsel asked

that all prior objections be incorporated by reference. T 5708.

Since the district court had, throughout the trial, relieved counsel

er

20

Il. THE ACTIONS OF THE GOVERNMENT WERE SO

OUTRAGEOUS THAT THEY AMOUNT TO A DE-

NIAL OF DUE PROCESS OF LAW.

A. The Lower Federal Courts Have Been Unable to

Define the Government Conduct Prohibited by the

Outrageousness/Due Process Defense.

In United States v. Russell, 411 U.S. 428, the third

significant entrapment case presented to this Court, the

Court recognized that entrapment was not the only de-

fense available to a defendant when the Government

played a significant role in the creation of the crime

charged. Although the Court in that case rejected the

defendant’s claim that he was entrapped as a matter of

law because the Government agent had supplied him with

a scarce ingredient essential to the manufacture of a con-

trolled substance, id. at 427, it noted that:

We may some day be presented with a situation in

which the conduct of law enforcement agents is so

outrageous that due process principles would abso-

lutely bar the government from invoking judicial

processes to obtain a conviction.

Id. at 431-32. The continued viability of this outrageous-

ness/due process defense was confirmed several years later

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

a majority of the Court found that the Government role

in the creation of crime exceeded the proper limits in the

“rare” case where Government overinvolvement in the

crime reached “a demonstrable level of outrageousness.”

Id. at 494 & n.7. The Court did not attempt in either

case, however, to explain more specifically the parameters

of this due process defense.

of restating objections already made, presentation of the specific

objection after the instruction was read was unnecessary.

Moreover, if the instruction was plain error, as the appellate

court recognized, then failure ty object would not, by itself, stand

in the way of reversal. Kotteakos v. United States, 328 U.S. at 765.

21

This lack of guidance from this Court has made most

lower federal courts reluctant to prohibit any Govern-

ment conduct, no matter how extreme, so iong as it is

purportedly aimed at the detection of crime. In fact, of

the dozens of cases raising this due process issue, we are

aware of only two reported cases, United States v. Twigg,

588 F.2d 373 (3d Cir. 1978), and United States v.

Batres-Santolino, 521 F. Supp. 744 (N.D. Cal. 1981),

where the due process defense has been sustained. More-

over, in the existing void, the courts have produced a

number of vague and inconsistent decisions.

These problems are amply illustrated by the various

Abscam-related cases. One district court judge, who pre-

sided at the trials of five Congressmen, has consistently

found the Government conduct to be within acceptable

bounds. See, e.g., United States v. Williams, 529 F. Supp.

1085 (E.D.N.Y. 1981), App. B; United States v. Myers,

527 F. Supp. 1206 (E.D.N.Y. 1981) (Judge Pratt). Two

other district court judges who heard Abscam cases,

however, found the conduct of the Government to be out-

rageous. See United States v. Kelly, 539 F. Supp 363

(D.D.C. 1982) (Judge Bryant); United States v. Jan-

notti, 501 F. Supp. 1182 (E.D. Pa. 1981) (Judge Ful-

lam). One of those judges was reversed by an appellate

court which acknowledged that a “delineation of the con-

duct circumscribed by the due process defense is, at best,

1° The confusion among district judges is further shown by the

charge in the case of United States v. Buckalew, which is set forth

in Devitt and Blackmar, 1 FEDERAL JURY PRACTICE & INSTRUCTIONS

872-73 (3d ed. 1977). The judge there charged the jury that “out-

rageousness” was a matter to be determined by the jury. He stated:

“|... you must determine whether these acts, as you find them,

reach an intolerable degree of over-reaching governmental partici-

pation.” He further charged that “if the governmental activities

reached the point that I have just defined in your minds, then the

predisposition of any defendant would not matter.” On the basis

of this charge, the jury found the defendants not guilty of the

offense of breaking into and entering a Selective Service Board

office in Camden, New Jersey.

t

22

elusive.” United States v. Jannotti, 673 F.2d 578, 606

(8d Cir, 1982). The other judge was reversed by an

appellate court which limited the due process guarantee

to “coercion, violence, or brutality to the person,” ™ but

indicated dissatisfaction with such a narrow interpreta-

tion and asked this Court to elaborate further on the

outrageousness defense. See United States v. Kelly, 707

F.2d 1460, 1474, 1476 (opinion of Ginsburg, J.) (D.C.

Cir. 1983). In the present case, the Second Circuit rejected

Senator Williams’ due process claims, but at the same

time admitted that it did “not know what sort of cir-

cumstances the Court believes would meet this elusive

standard.” United States v. Williams, 705 F.2d at 619;

App. 35a.

The uncertainty thus expressed by three appellate courts

concerning the proper limits of the outrageousness/due

process defense points out the need for guidance from

this Court on this important constitutional issue. With-

out such guidance, lower courts will continue in their

reluctance to condemn any type of Government involve-

ment in the creation of crime, and the limits of what is

or is not outrageous Government conduct will in fact be

determined by the self-interest and imagination of Gov-

ernment operatives and paid informants. The due proc-

ess defense established by this Court on two separate

occasions requires definition here or it will be rendered

meaningless.

11 Other courts have not found any similar constraints in this

Court’s pronouncements. See, e.g., United States v. Twigg, 588

F.2d 873 (3d Cir. 1978); United States v. Batres-Santolino, 521

F. Supp. 744 (N.D. Cal. 1981). Physical coercion and duress are

already prohibited by other narrowly-defined defenses. Moreover,

this Court has recognized in a number of cases that prohibited

official compulsion can be mental as well as physical. See, e.g.,

Brewer v. Williams, 430 U.S. 387; Miranda v. Arizona, 384 U.S.

486; Spano v. New York, 360 U.S. 315. Indeed, sophisticated psy-

chological stratagems (including peer pressure) designed to push

an individual into taking a desired course of action are often

harder to resist than more obvious forms of coercion, since they

are subtle, cumulative, and difficult to detect.

23

B. The Due Process Limits on Government Conduct

in a Bribery Investigation Should Be No Broader

Than Those Established by the Department of

Justice and the F.B.L to Ensure the Fairness of

the Abscam Operation.

While the essential nature of due process makes it dif-

ficult to fashion a rule applicable to all circumstances,

it does not preclude the formulation of general guide

lines applicable to categories of undercover investigations.

We suggest that the outer limits of due process in a

bribery case should be no wider than the three safeguards

adopted by the Department of Justice to implement the

Attorney General’s Guidelines on the Use of Informants

in Criminal Investigations (‘Levi Guidelines’) in the

context of the Abscam operation. DP Ex. 6 & 110. Those

Guidelines were established to ensure that “each under-

cover operation is carried out in a manner which is fair,

unambiguous, productive of successful prosecutions, and

which minimizes the impact on or even the involvement

with innocent persons.”” DP Ex. 110, at 138. Moreover,

officials heading the agency viewed the safeguards as

“essential” to the fair conduct of an investigation. Jd. at

152. Thus, failure to adhere to those Guidelines is a

strong indication that the Government conduct does not

meet due process requirements of essential fairness, that

it is indeed outrageous, and that it should not be tolerated

by any court.”

Those safeguards, which were not applied in the pres-

ent case, are as follows. First, undercover techniques

such as those used in Abscam may be used only “when

we [the Government] reasonably suspect that criminal

activity of a given type or pattern is occurring or is

likely to occur.” DP Ex. 110, at 152. Accordingly, when

the Government makes the first move it conducts “a care-

12 As Solicitor General Thatcher said in his brief for the Gov-

ernment (p. 13) in the Sorrells case: “... the courts are the con-

stituted agencies for the protection of the individual against the

misuse of authority.”

24

ful evaluation of anything we are told by intermediaries

about the possible interest of other persons in a criminal

transaction, and an attempt to check such claims to the

extent practicable.” Jd. at 139. Second, where prior as-

surances of criminality are not possible, the F.B.I.

“make[(s] clear and unambiguous to all concerned the

illegal nature of any opportunity used as a decoy.” Id.

at 139, 170. In other words, the F.B.I. structures the

operation so that it is self-selective—i.e., so that anyone

who meets with Government agents has selected himself

for criminal activity. Jd. at 153. Finally, under the

guidelines, F.B.I. undercover operations are modeled “on

the real world” as closely as possible. DP Ex. 110, at 140.

“{I]nducements or promises or attractiveness that the

real world doesn’t offer’ are not offered in the context

of an undercover operation. Jd. at 154.

Of course, instances of Government misconduct in ad-

dition to the failure to abide by the standards explained

above, would provide further confirmation of the out-

rageousness of the Government conduct in a particular

case.

C. The Government’s Conduct During Its Investigation

of Senator Williams Was Outrageous.

A review of the Government’s conduct in the present

case reveals that the Government violated each of the

three safeguards established by the F.B.I. to ensure a

fair investigation. A thorough review also shows a

course of Government activity that reeks of impropriety.

First, the Government admittedly had no prior reason

to believe that Senator Williams was involved in crimi-

nal activity of a given type or pattern. DP 413, 415,

778. Moreover, they did not make any attempt to eval-

uate either the mining venture or the persons connected

with it before scheduling a meeting with the Senator’s

associates. See, e.g., DP 369-72. In fact, the go-ahead

for this investigation was given so quickly—within hours

of the time that the Senator’s name was mentioned—

25

that it was not humanly possible for the Government

adequately to check out this lead. And there was, in fact,

nothing illegitimate about the mining venture and its

need for capital.

Nor did the Government, in the absence of prior crim-

inality, make clear the illegal nature of the financing

being offered. Errichetti was not told that the sheik

was interested only in financing corrupt business ven-

tures, and the Senator’s friends were not told, until sev-

eral months into the “investigation,” that active partici-

pation by the Senator was sought in connection with the

financing. Similarly, Senator Williams was denied the

opportunity to select himself for a criminal act since he

had no reason to think that the Abdul representatives

were engaging only in shady deals. In fact, he selected

himself and his friends for an apparently legitimate op-

portunity to obtain financing for what, as far as he knew

(and apart from the Government’s deliberate deception),

was a legitimate business proposal. See DP 894. Since

self-selection is effective only if a person knows what he

is selecting himself for, the mechanism here failed of its

essential purpose. DP Ex. 110, at 153.

Finally, the opportunities presented to the Senator did

not mirror the rea] world. The rea] world does not offer

$100,000,000 loans for business ventures previously un-

able to obtain even $12-13 million to get them opera-

tional. Nor does the real world offer $70 million profits

that can be made simultaneously with the receipt of the

loan. More importantly, the rea] world does not grant a

person such exorbitant financial rewards simply for mak-

ing a representation that he is told need never be acted

upon.

The entire course of Government conduct here also

confirms the impropriety of the Government’s actions.”

143 There are many other facts in this record showing extraor-

dinary Government impropriety. While it is not possible to state

them all at length in this petition, two examples are—

1. The Government arranged with the Chase Manhattan

Bank that it would tell persons inquiring about the “sheik”

26

The Government utilized the services of a known and con-

victed confidence man.’* It promoted deception through

the use of F.B.I. agents who falsely represented that

they were agents of a non-existent sheik. These agents

utilized a government plane to take Senator Williams’

associates to inspect the mine. They introduced Senator

Williams to the supposed sheik on a “yacht” in Florida.

They proposed financing of $100,000,000 to cover the ac-

quisition of the American Cyanamid processing plant,

the titanium mine, and working capital. And all of this

was done by the Government over a period of nearly five

months before they ever made a “corrupt proposal” to

Senator Williams. Indeed, one may fairly wonder: Who

was conspiring prior to May 31, 1979? Was it Senator

Williams and his friends, or was it the many Government

officers and agents who converted a legitimate business

inquiry into a crimina] scheme and fabricated the gov-

ernment contracts plot?

Nor did the Government stop after the direct sugges-

tion of the criminal] proposal. Government agents assured

the Senator and his associates that he would never have

to engage in any illegal acts. They “coached” him for a

meeting with the sheik. They pressured the Senator’s

friends to act as unwitting Government agents. And

they presented increasingly more devious and enticing

that he was a depositor, with a balance of many millions of

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

(E.D. Pa. 1980) ; see T 817.

2. As a part of an effort to produce evidence that Senator

Williams would get government contracts, Errichetti forged a

letter with Senator Williams’ signature on Senate stationery.

Ex. WD (Sen. Comm. Print, Pt. 6, pp. 435-41). This was done

with the knowledge of Anthony Amoroso, one of the Govern-

ment agents. Jd. Although the letter was not used, Senator

Williams was not notified, and Errichetti was not prosecuted

for this crime.

14 Judge Sloviter, in United States v. Jannotti, 673 F.2d 578, 581

(8d Cir. 1982), called him a “career swindler.”

27

criminal schemes in order to trap the Senator in a clearly

illegal act. This is a case “where the defendants had no

prior criminal involvement, and were not about to em-

bark on any criminal] activities when the government

agents induced them to become involved in” criminal

conduct.”

The real issue on the merits of this case is not the

conduct of Senator Williams. Without the Government’s

actions, the Senator would never have thought of com-

mitting the crimes charged. He would still be the distin-

guished public servant that he had been for most of his

adult life. Thus, it is the Government's year-long effort

to destroy his long career of public service that is the

proper focus here. And when that effort is analyzed, it is

clear that the Government’s conduct is outrageous and

should not receive the blessing of this Court.

Ill. UNDER THE CIRCUMSTANCES OF THIS CASE,

INCLUDING THE ABSENCE OF A PREDICATE,

THE EXTENSIVE ELECTRONIC SURVEILLANCE,

WITHOUT A WARRANT, WAS A VIOLATION OF

THE FOURTH AMENDMENT.

At the outset of this case, without any reason to sus-

pect particular crimina] conduct to appear, the Govern-

ment subjected Senator Williams and his associates to ex-

tensive audio and video surveillance. They justified this

conduct on the ground that these recordings were “con-

sensual tapes,’ that is, that the consent of the Govern-

ment agent to electronic surveillance of each conversa-

tion removed it from the protection otherwise afforded

by the Fourth Amendment.

The Government’s argument is, of course, derived from

this Court’s decision in United States v. White, 401 U.S.

745, which sustained consensual governmental surveil-

lance on the facts of that case. But the White decision is

a slim reed, at best considered dictum, since a majority

% Devitt, J., in United States v. Marcello, 587 F. Supp. 402, 408

(C.D. Calif. 1982), distinguishing that case from Batres-Santalino,

supra.

28

of the Court agreed that the result was determined by

this Court’s decision in Desist v. United States, 394 U.S.

244, which held that Katz v. United States, 389 U.S. 347,

should not be applied retroactively. Only four members

of the Court—Chief Justice Burger, and Justices White,

Stewart, and Blackmun—concurred in the decision on the

merits. Justice Black concurred in the result on the basis

of his dissenting opinion in the Katz case, 389 U.S. at

364, which rested on his view that the Fourth Amend-

ment does not apply to electronic surveillance; and Jus-

tice Brennan concurred in the result only on the basis

of the Desist case, making it clear that he agreed with

the dissenters but would “go further.” United States v.

White, 401 U.S. at 765. Justices Douglas, Harlan and

Marshail dissented.

The dissenting opinion of Justice Harlan in White, 401

U.S. at 768-95, is particularly trenchant. He pointed out

that, when “recent Fourth Amendment decisions .. .

are read” with others he discussed, “the primacy of an

additional general principle becomes equally evident: of-

ficia] investigatory action that impinges on privacy must

typically, in order to be constitutionally permissible, be

subjected to the warrant requirement.” Jd. at 781. He

referred particularly to this Court’s decision in Terry Vv.

Ohio, 392 U.S. 1, where the Court held, in his words,

“that any restraint of the person, however brief and

however labeled, was subject to a reasonableness exami-

nation.” United States v. White, 401 U.S. at 784. He

continued:

The impact of the practice of third-party bugging,

must, I think, be considered such as to undermine

that confidence and sense of security in dealing with

one another that is characteristic of individual rela-

tionships between citizens in a free society. ...

Were third party bugging a prevalent practices, it

might well smother that spontaneity—reflected in

frivolous, impetuous, sacreligious, and defiant dis-

course—that liberates daily life. ... All these values

are sacrificed by a rule of law that permite official

29

monitoring of private discourse limited only by the

need to locate a willing assistant.

Id. at 787-89. And he concluded that a warrant rule—

would not end electronic surveillance. It would pre-

vent public officials from engaging in that practice

unless they first had probable cause to suspect an

individual of involvement in illegal act’: ities and had

tested their version of the facts before a detached

judicial officer.

Id, at 789-90.

In view of the fact that the White case is so widely

and freely used even though it has never commanded a

majority of this Court on the merits, it is appropriate

that the Court should now reexamine the issue. More-

over, it is particularly appropriate that the issue should

be reviewed in this important case where it is squarely

presented on the facts, and where the facts are very dif-

ferent from those involved in White.

In White, the Government listened in on conversations

occurring over a several-week period, forecasting actual

deliveries or payments for narcotics. The Gove:nment

expected on each occasion to obtain evidence of a narcotics

violation, and indeed, the surveillance was narrowly cir-

cumscribed so as to obtain evidence of those crimes. More-

over, the electronic surveillance in cases relied upon by

this Court in White (On Lee v. United States, 343 U.S.

747, and Lopez v. United States, 373 U.S. 427) was sim-

ilarly focused on a limited number of discussions of

specific crimes.

It is a far cry trom those situations to the present

case where hundreds of hours of tapes were made in

many locations over nearly a year, many of them made

before there was any intimation of criminal conduct.

Moreover, the recordings were not made to obtain evi-

dence of specific ongoing criminal conduct. On the con-

trary, the seizures here were wholesale, clearly part of a

“fishing expedition” led by a creative con-man for the

purpose of recording situations where Senator Williams

and his associates might be pressured either into im-

30

proper conduct or the appearance of improper conduct.

This is just the sort of situation where the warrant rule

could well serve its constitutional purpose. The question

is inherent in the nature of the case, and should receive

this Court’s review."*

CONCLUSION

For all of the foregoing reasons, a writ of certiorari

should be granted.

Respectfully submitted,

ERWIN N. GRISWOLD

Counsel of Record

CLAIRE L, SHAPIRO

JONES, DAY, REAVIS & POGUE

1735 Eye Street, N.W.

Washington, D.C. 20006

(202) 861-3898

GEORGE J. KOELZER

JOEL N. KREIZMAN

EVANS, KOELZER, OSBORNE,

KREIZMAN & BASSLER

P. O. Box BB

Red Bank, New Jersey 07701

Counsel for Petitioner

August, 1983

1 It is true that this contention was not specifically raised prior

to trial in this case, as required by Rule 12 of the Federal Rules

of Criminal Procedure. This Court may nevertheless consider the

issue “for cause shown.” Fed. R. Crim P. 12(f).

Senator Williams is not making a routine Fourth Amendment

cuppression argument. On the contrary, he is suggesting that the

extensive and long-continued surveillance occurring in the present

“investigation,” initiated without any prior reason to expect par-

ticular crimina! conduct to occur, is far too broad and sweeping to

be covered by this Court’s narrowly divided decision in the White

case. Moveover, this question was an integral part of the due proc-

ess argument which was expressly reserved by the trial court for

post-trial decision.