Petition — Williams v. States

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NX. 22,0973

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6.83 51 0 8

IN THE

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

QUESTIONS PRESENTED

1. Whether the methods employed by Goverrment agents

in the course of their involvement with Petitioner were outrageous

and overreaching, constituting a violation of Petitioner's Due

Process rights?

2. Whether a defendant's predisposition can be proven

by the introduction of non-criminal acts or by virtue of the

Gefendant's response to the Goverrment's suggesstion of crime,

following months of enticement by the Goverment?

QUESTIONS PRESENTED........ !m

TABLE OF CONTENTS .....«-+++> —

ED —

CPINICONS BELOW ..... — 2

JURISDICTION „ „ „ „ „46 „„ eee eee eee „ „„ „ „ „

X. Introduction „„ „„ „%%% %%% „% „% % „% „ „„ „ „ „4 eee

B. Biccel . “eee eee 8 © „ „ „ „%%% % % é—ͥ„rͤ — „ „

. Piney River „„ 6 „4%„%„„„ „„ „ „ eee

D. The F. B. 1. Piney River 8 r

E. The F. B. I. Resale „ „„ %%% % % % „„ „ „„ „ „ „414166

F. The Ritz Carlton Transaction n a

G. The F. B. TI. Asylum S ” rr] 2

H. The Joe Silvestri Conversation ......--

I. THE METHODS DOLOYED BY DVER®ENT

OF EXTICEMENT BY THE QVER@ENT......----

CONCLUSICN 655 „„

8 88ers r — 2 E * 8

23

TABLE OF AUTHORITIES

Sees Page

—— ate v. we ——. — 274 F. 86 (6th Cir.) ,cert denied,

Carlton v. United States, 198 F.2d 795 (9th Cir. 1932) 33

Dege v. United States, 308 F. 2d 534 (9th Cir. 19627/½..ꝑ ⅛U0lF. 33, 4

Hampton v. United States, 425 U.S. 484 (19760) Sevececcceésooeusane an

Hansford v. United States, 303 F.2d 219 (D.C. Cir. 1962).......++++-32, 4

Johnston v. United States, 426 F.2d 112 (7th Cir. 197) 34

Notaro v. United States, 363 F.2d 169 (9th Cir. 1966) .....ccseeeeeeeee32

Nutter v. United States, 412 F.2d 178 (9th Cir.) cert denied

9) eereeee eee see „ „ „66 „ „„ „„ „„ „ ee „ „„ „ „„ „66 dei

People v. Millen, 216 N. F. 2 375 (19770) ‚ —ͤ— 22 9 —*—*ͤ*ͤ»« 32

People v. Rodriguez, 243 cal. rp. 2 522 (1966) ‚ ͤ—Lͤ— L 2 —

Rocje v. United States, 401 F. 2 529 (Sth Cir. 1968), cert.

U. * 1103 (1969) eee eer er „„ „„ „„ 56 34

Rocha v. United States, 401 F. 2d 529 (Sth Cir. 1968), cert

Je e 303 U 8 1103 (1969) „ „„ „„ „„ „„ „ „ „ „ „ „46 „„ „„ „„ „ „ „ „ „ „ „ „6 „ „e. 34

Sorrells Vv. United States, 287 U.S. 435 D ee ee ee

Trice v. United States, 211 F. 2 513 (9th Cir.), cert

denied 346 U. F. 900 7 6b00 c60bseneeneneunn 34

United States v. Abbadessa, 470 F.2d 1333 (10th Cir. 197) 33, 4

United States v. Ambrose, 483 F.2d 742 (6th Cir. 197) 2

United States v. Archer, 486 F.2d 670 (2d Cir. 19%) 2424

United States v. Batres-Santolino, 521 F.Supp. 744 (N.D. Cal. 1980)...24

United States v. Becker, 62 F.2d 1007 (24 Cir. 193ù0ù⁴9u7 . 2

* , 453 F. 2d 101 (8th Cir. 1971)

U. 8s. 978 1K 33

United States v. Cohen, 489 F.2d 945 (24 Cir. 5

United States * Cooper, 321 F.2d 456 (6th Cir. eS

United Dametre, 464 F.2d 456 (6th Cir. TEED 000-0 00000600600000000000008 34

United States v. Freemen, 412 F. A 1181 (10th Cir. 1

United States v. Graves, 556 F.2d 1319 (Sth Cir. 1977) 24

United States v. Johnson, 371 F.2d 800 ( Cir. 1967)......... 32

United States z. Kelly, Slip Op. No. Cr. 80-00340 (D. O. c.

May * ) ee eee eee eee ee eee 2 eee dene 28

United States v. Klostermar, 248 F.2d 191 ( Cir. 1957).......28

United States v. Mosley, 496 F. 2d 1012 aff'd on rehear

F. th Cir. DEE. chbnccosacncadeoaneessbeéasecene

United States z. Parisi, 674 F.2d 126 (Ist Cir. 1982) 37

United States v. Prairie, 572 F.2d 1819 (9th Cir. 1978)........24

United States v. Quinn, 543 F.2d 640 (8th Cir. 1976) a cccces —

United States v. Russell, 411 U.S. 423 (197. 3 25, 26

United states v. Sherman, 200 F.2d 880 (2d Cir. 19527) 32

Sherman, 240 F.2d 949 (2d Cir.), rev'd on

United States v.

ther grands 356 U.S. 369 (1958)...... rer

United States V. Simon, 488 F.2d 133 (Sth Cir. „

United States v. Simon, 453 F.2d 111] (8th Cir. 197177. 33

United States v. Smith, 283 F.2d 760 (2d Cir.), cert. denied

U. * ( eee ses eeaseane

United States v. Stocker, 273 F.2d 754 (7th Cir.) cert

U.S. SIGE c kccoc eee ee eee eee e ccoses *

United States v. Swiderski, 539 F.2d 854 (24 Cir. 1976) 30

lnited States Vv. Twigg, 588 F. 2d 373 (34a Cir. ae 24

United States v. Viviano, 437 F.2d 295 (2d Cir. 1970)

Sort Genied, a2 U.S. 983 CSTE . bn dndoc eee

United States v. West, S11 F.2d 1083 ( Cir. 1973) 23

e 625 r. 20 1371 (9th Cir. 1980)

* ct. 863 . —— . .

Whiting v. United States, 296 F.2d 512 (lst Cir. ...e eee

Williamson v. United States, 311 F.2d 411 (Sth Cir. 1962).......28

iv

34

33

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

Petitioner Alexander Feinberg prays that a Writ of Certiorari to

review the judgment of the United States Court of Appeals for the Second

Circuit, which affirmed the judgment of conviction of the United States

District Court for the Eastern District of New York sentencing him to

a term of imprisonment of three (3) years and a fine of forty thousand

dollars. Following a jury trial, Petitioner was convicted of violation

of 18 U.S.C. §371, 5201, §203, §201(g), 8203 (a), and 1952.

OPTIONS BELOW

The opinion of the Court of Appeals dated April 5, 1983, affirming

the conviction of Petitioner is annexed as Appendix A. The Order of the

Court of Appeals, dated May 24, 1983, denying Petitioner Williams’ Peti-

tioner for a Rehearing En Banc is annexed as Appendix B.

JURISDICTION

The jurisdiction of the Supreme Court to review the Final Judgment

of the Court of Appeals for the Second Circuit is invoked under 28 U.S.C.

§1254(1).

When the Abscam investigation began, Alexander Feinberg was a respected,

seventy-two year old attorney with a small general practice in Cherry Hill, New

Jersey. (T-3197-99, 3207-12, 3294-95, 3389-91) KL Chief Prosecutor Thomas

Puccio confirmed the fact that prior to the investigation, there was not

one scintilla of evidence, or indeed even an allegation, that Mr. Feinberg had

ever been engaged in illegal activity. (T-661, DP-413, 778). Following

his service in the Navy during World War E, Mr. Feinberg established a private

legal practice. In 1951, he became an Assistant United States Attorney for

the State of New Jersey. He continued in that position until early 1953.

(T-3547). In the late 1960's he was appointed by President Johnson to the

Commission on Urban Problems. (T-3548).

Pursuing an interest in Democratic politics, he ran for Congress in 1958.

(T-3549). In the course of this campaign, he met and befriended Senator Williams

(71-3751, 4164-68). Although Mr. Feinberg wis unsuccessful in his bid for

Congress, his friendship with the senator endured. (T-3751, 3785).

* Citations to the record will be as follows: Testimony in the trial - 1;

Exhibits in the trial - R.“; Government Exhibits - G..“; Feinberg Exhibi

F..“: Williams Exhibits - "W.Ex."; and testimony in the Willians/Feinberg

Due Process hearings - "DP". |

Before the F.B.I. entered Mr. Feinberg's life, he had an interest,

together with a partner, in e small water company in New Jersey. Additionally,

through his legal practice, he became aware that the Ritz Carlton Casino, as

well as the Garden State Raceway were in need of financing. (T-3563-65, 3595-

96, 3679, 3685-88). None of these ventures were illegitimate in any way. Yet,

5 all became fruitful sources of innuendos in the prosecution's case against Mr.

Feinberg.

B. Biocel_

During a meeting with Senator Williams in the early 1970's Mr. Feinberg

met Henry A. Williams, III, (hereinafter referred to as Sandy Williams). (T-3549

50). Their business relationship commenced with a garbage recycling project

known as Biocel. (T~-1549-50).

The original corporation, created to put to use the expertise of its ,

founder, Ronald Penque, was Penque Williams, Inc. (T-1549-51, 2875-77). Despite

the fact that Biccel never produced any revenues, Biccel of New Jersey, Biocel

of Sussex and Biccel of Essex were formed to utilize local garbage recycling

| opportunities. (T-4181-86). Each of these projects proved to be a financial

and political disaster. (T-3555, 3568-69, 3583, 3834-35, 3946).

Mr. Feinberg had no financial interest in Bioccel. However, at the

request of Sandy Williams, he incorporated Biocel of New Jersey and Biccel of

Sussex, amd issued shares of stock in the latter to the wives of Mr. Feinberg,

Sandy Williams and Senator Willians. (T-1551-52, 2893, 3550-53, 3753-54). Mr.

Feinberg also represented Biccel before various regulatory bodies, in an effort

to obtain necessary permits. (T-2894-96, 2909, 3553-54). All of these pro-

ceedings were public; all stock interests were disclosed. (T-3554). According

to Penque, Biccel was defeated by local political pressure. (T-2902, 3041).

Mr. Feinberg after encountering severe problems with one permit application,

sought a meeting with the appropriate state commissioner. (T-3557). Unable to

reach then Commissioner Bardin, Mr. Feinberg asked Senator Williams to arrange

a meeting. (T-3557). Mr. Feinberg subsequently met the Commissioner, but the

permit was not reinstated. Commissioner Bardin emphatically denied that

either the Senator or anyone else had exerted political pressure on the

Commission. (T-3403-04, 3557, 3588). Both Penque and Mr. Feinberg denied

using improper political influence in attempting to obtain permits. (T-2901-03,

2910-11).

Mr. Feinberg also prepared an application for Biccel to participate in

certain dimping activities. (T-3558). Although Penque's recycling process

had been given favorable technical approval by several reputable institutions,

it was shunted aside in favor of a competitor. (T-3558). Convinced that Biccel's

loss was the result of improper influence, Sandy Williams decided to appeal“

to the Governor. When his efforts to make an appointment with Governor Byrne

failed, he contacted Senator Williams. Sandy Williams and Mr. Feinberg were

subsequently granted a meeting with Charles Corrella, a member of Governor

Byrne's staff. (T-1555-56). Corrella indicated only that he would relay

Sandy Williams’ allegations of improper influences to the Governor. (T-3559) .

During the Corrella meeting, in which Mr. Feinberg said nothing, Sandy Williams

never asked for any favorable consideration for Biocel and none was forthcoming

(T-1947-53, 2016, 3559).

In the senatorial campaign of 1976, Senator Williams suffered considerable

political embarrassment as a result of his involvement in Biccel. His opponents

leveled accusations that he had used undue influence in the application for

dumping permits in the Meadowlands. These allegations were denied by the

Senator and unsubstantiated by his opponents. Nevertheless, the Senator and

his supporters regretted his involvement in the project. (T-3555, 5568-69,

3583, 3834-35, 3946).

C. Piney River

Penque's recycling process required large amounts of phosphorous. (T-1564,

2914-22). If a cheap source could be found, the process would become extremely

valuable. Sandy Williams located a source in Piney River, Virginia. (T-1564,

2914-22) .

Penque and Sandy Williams obtained an option on mining property in Piney

River. (T+1564-65, 1823-25; G.Ex. 45, G.Ex. 40). In 1975-76, Sandy Williams

sought financing to purchase the property. He was introduced to the Stone

Foundation ("Stone") by Exrest Garrett and after some discussion, Stone agreed

to finance the mine. (T-1568). Title to the property was taken by the

newly-formed United States Titanium Corporation, ("USTC:) which was owned

as follows: Penque Williams, Inc, 56 2/38; Garrett, 33 1/3; and Alan Torriello,

10%. (T-1568). At the closing for the purchase of Piney River, A received

$600,000.00 from Stone. In turn, USTC gave Stone a mortgage of $1,200,000.00

on Piney River. Financing the debt became an inmediate problem. After one

mortgage payment, USTC went into default. (T-1573, 1577-78).

Sometime prior to the default, Sandy Williams, believing he had a malignancy,

prepared a document which stated, in essence, that one-half of everything he oed

belonged to Senator Williams. However, Sandy Williams never signed these documents

(G.Ex. 48; T-1571, 1574-75). The documents were given to Senator Williams who con-

sidered it a nice gesture but attached no particular value or substance to it

(T-4193-96) .

In 1977, Sandy Wiliiams discussed financing Piney River with his old

friend, George Katz. They obtained options on the property adjacent to that

owned by USTC. (T-1580, C. . 407.

Concommitant with the option transaction was a planned reorganization of

USTC which would allow for Garrett, Torriello, Katz and Sandy Williams to share in

the tion. According to Sandy Willians, the Senator was to shar

in Sandy's interests based on the above-described documents. (T-1580-81). The

tion never took place and the need for financing remined

After the USTC default, Sandy Williams, who was seeking loans, prevailed

upon the Senator to introduce him to certain financial institutions. Sandy

Williams testified that the Senator had exerted no undue pressure on either

of the two institutions to whom he was introduced. (T-1740-41). Furthermore,

at no time during the course of these negotiations did Sandy Williams indicate

that the Senator had an interest in the venture. (T-1742). All efforts to obtain

financing with these and other institutions were unsuccessful. (T-1787-88, 1803-0

All reparts obtained by Sandy Williams indicated that Piney River was a

valuable property only awaiting sufficient funds to commence viable econamic

operations. (T-2003, 2007, 2042). In 1979, the need to obtain this financing to

salvage the mining venture became desperate. (T-1896). Both Senator Williams anc

Mr. Feinberg believed, and continued to believe, that the project had merit 7

d. The F.B.I. Piney River Scam

Early in January 1979, Senator Williams, attending a political function

in Camden, New Jersey, (T-4227-28), had a short social conversation with Angelo

Errichetti, Mayor of Camden. Mayor Errichetti mentioned that he had been in

contact with certain financial advisors who appeared to have substantial

amounts of investment capital. (T-4232-33).

Senator Williams indicated he had some friends seeking funding and asked

Errichetti if Mr. Feinberg could call him. (T-4233). Thereafter, mr.

Feinberg arranged a meeting with Errichetti. (T-1582, 4235). Thus, the F.B.I.

entered Mr. Feinberg's life.

At the meeting were Special Agent John McCarthy, posing as Jack McCloud the

Chairman of Abdul enterprises, “ f. B. 1. informant Mel Weinberg, Errichetti, Mr.

Feinberg and Sandy Williams. (T-1583, 3562-€3). Sandy Williams dominated the

meeting, describing Piney River and its financing need. Sandy Williams indicated

that titanium extracted from the mine was to be used to manufacture paint. (T-617).

In response to Weinberg's query, Sandy Williams indicated that the owners of the

mine were Garrett, Katz, Torriello, Sandy Williams and mr. Feinberg. At some

point in the conversation, it was mentioned that the Senator was interested in

the venture. (T-1242, 1583-84). At the conclusion of the meeting, Sandy Willians

agreed to provide to Weinberg data concerning the mine. (T-1585; G.Ex. 46). In

addition, the Arabs were to commission an engineer to evaluate it. Sandy Wil-

liams indicated that the project would require ten to thirteen million dollars.

Weinberg immediately indicated that if the venture appeared viable, the Arabs

would be willing to provide the full thirteen million. (27-1885 C. Ex. 46)5/.

9 The corporate front for the Arab investment capital was Abdul Eterprises.

The background to its establishment and the manner in which the F.B.I. manipulated

its operation is thoroughly familiar to this Court as a result of previcus petitions

for certiorari by defendants involved in the Abscam probe.

3/ The amount of energy invested by the F.B.I./Strike Force team in attempting to

"make a case" against its defendants was astounding. Weinberg once remarked that,

“Once you get a sucker on the line, you got to keep calling him day and night

and never let him off." (T-1366). Weinberg and the met

Soon after this meeting, Errichetti called Mr. Feinberg and indicated

that the “Arabs” were interested in purchasing Garden state Raceway. At

Errichetti's request (T-3563-66), Errichetti, Weinberg and Special Agent Anthony

Amoroso, acting as Tony Devito, the new president of Abdul Enterprises, met

to discuss the proposal. (T-3556-57). The conversation started with "John

McCloud's" status as an old-time Boston politician who had a “certain way”

of doing things, the implication being that bribes had to be used in any business

transaction. (T-3567). Mr. Feinberg immediately declared that he did not do

business that way. (T-3567). He further stated that the easiest way to purchase

the race track was to proceed legitimately. (T-3572, 3576-77). Weinberg tried

again to get Mr. Feinberg to inculpate himself, indicating that the Senator was

an indispensible party for the financing. (T-3567). Mr. Feinberg stated that

the Senator had nothing to do with the matter. (T-3572).

This was the first of immumerable conversations initiated by Weinberg

urging concealment of Senator Williams’ interest in Piney Rover. Day after day,

month after month, Weinberg repeated this theme. After the Biocel disaster,

Mr. Feinberg end the Senator were extremely reluctant to prematurely disclose

the Senator's interest in Piney River. (T-3568-73, 3583). ‘They had learned that

however innocent and legitimate their efforts, such efforts could result in m-

warranted accusations and public embarrassment, which could needlessly damage

the Senator's career. (T-3568-69, 3583).

Originally, Mr. Feinberg was unsure of the law governing the Senator's

duty to disclose (G.Ex. 7A, pp. 1-3). He eventually sought expert advise from

tax counsel with regard to Piney River. Expert counsel confirmed Mr. Feinberg's

preliminary opinion that at this point it was unnecessary to disclose the

Senator's interest in Piney River, since it was nebulous and without econanic

value. (T-3606-07). Senator Williams and Mr. Feinberg persistently reiterated

that if the project were ever incorporated, and funded, thereby providing the

Senator with scmething of financial value, he would pramtly disclose his

holdings. Throughout Senator Williams and Mr. Feinberg believed that no prior

disclosure was legally required. (T03627-29, 3779; F. &. C).

In March 1979, Sandy Williams informed McCarthy that the American Cyanamid

plant in Savannah was for sale and that coupling this plant with Piney River

could have great profit potential. (T-1587). It would require an additional

one hundred million to finance both projects. (T-1587). The Arabs immediately

agreed to look into the possibilities. Neither Senator Williams nor Mr.

Feinberg were aware of this exchange at the time.

Shortly thereafter, Weinberg requested that Mr. Feinberg and Sandy Williams

bring the Senator to a party in Florida to meet “Sheik” Yassir Habib, the pur-

ported key involved in the financing of the mine. (T-1243-44, 3577). The

Senator and Mr. Feinberg paid their ow airfare. (1-3585)5/.

&/ Subsequently on April 13th upon learning that Senator Williams was going

on vacation, Weinberg urged Mr. Feinberg to convince the Senator to use Abdul's

corporate jet for the trip. After conferring with the Senator, Mr.

informed Weinberg that the Senate Rules precluded acceptance of the offer.

(P.Ex. K).

-10-

At the party, in response to a specific question from Weinberg, Mr. Feinberg

Stated that, although the Senator had no financial interest in the mine, he would

endorse the project privately. (G.Ex. A, pp. 18-20). This statement, of course,

was based upon Mr. Feinberg's belief that the Senator owned nothing until the

Project was formalized and funded. (T-3569, 3584). Mr. Feinberg stressed at the

party that the project must be handled in a legitimate manner. (G.Ex. 2A, pP. 21).

At a meeting subsequent to the party, not attended by either the Senator or

Mr. Feinberg, Sandy Williams discussed an additional seventy million needed to

Purchase the Cyanamid Savannah plant. Weinbero promptly and generously agreed to

the seventy million increase, on the condition that he and DeVito share a ten

percent interest in the venture and that it be a straight loan. (G.Ex.4A, P. 8).

Sandy Williams recalled that in May 1979, he had read various articles about the

military value of titanium, (T-1583, 5196). In a discussion with Katz concerning Gey-

exrment contracts, Sandy Williams expressed his belief that influence could not

be used because Government contracts were selected by hids, 718970 / In late

May 1979, Katz conveyed the information on titanium to Weinberg. (G.Ex 5A)

While Piney River had appeared viable to all involved before the idea of

govermment contracts was ever raised, once Weinberg learned of this possibility,

he employed it time and time again to attempt to coerce Mr. Feinberg and the

Senator into inculpating themselves by agreeing to conceal the Senator's

interest in Piney River. Now, according to Weinberg, there would be no project

At trial, Harold C. Petrowitz, an expert in government contracts, established

there was little or no way a member of Congress could influence goverrment con-

tracts, whether purchased under the Stock Pile Act or other goverrmentprocurement

regulation. (T-2778, 2849). Mr. Feinberg also testified that to his knowledg,

govermment contracts could only be obtained by sealed bid. (T-3599).

without government contracts and no Arab money without the Senator

agreeing to use his influence to procure the contracts. Further,

according to Weinberg, the Senator could not use his influence to obtain

the contracts if his interest were disclosed.

Weinberg began calling Mr. Feinberg, and asking whether he had seen

the articles about titanium - Mr. Feinberg had not. (G.Ex. 6A, p. )).

Weinberg then raised, for the first time, the idea of procurring gov-

exrment contracts. (G. EX. 6a, p. /. mr. Feinberg was beginning

to feel intense pressure from Weinberg to adopt the "Arab way”. He

attempted to pacify Weinberg by indicating that the Senator would

“make introductions”. Mr. Feinberg hoped that if Weinberg were placated,

the financing would become available. In reality, he thought that the

Senator would do what any Senator legitimately could do - make intro-

@uctions. (T+3599-3600). In Mr. Peinberg's mind, no improper activity

would be necessary since Piney River would sell itself on its merits.

During this same period Weinberg and Mr. Feinberg discussed creating

various corporations to acquire Piney River and the options to adjacent

properties. Weinberg arranged a luncheon at the Hotel Pierre purportedly

to discuss the corporate structure. (T-3592). He used this occasion

admissions. Just before the luncheon, Mr. Feinberg was approached in

the hotel men's room by Weinberg and Amoroso. They urged him to

persuade the Senator to use his influence to get goverrment

contracts. (G.Ex. DI). Mr. Feinberg stated that it should

8/ This is only one of the many instances where Weinberg directed the

scenario with uncanny skill not apparent until later. (T~3585, 3720,

3766). For example, Weinberg was obsessed with Senator Williams’

being in on meetings and “protecting the Senator”. (T-3766-77) .

be understood that the Senator could not obtain contracts but could only “open

up the doors” — he montemplated the Senator making a legitimate call or an

introduction. (T-3602). Weinberg persisted in his attempts. Mr. Feinberg

responded by stating that the Senator would not guarantee contracts, would not

perjure himself regarding the disclosure of any meaningful interest that he might

acquire in the mine, ard would disclose such an interest when it became viable.

(T-3601-04, 4279-80, F.Ex. M).

Weinberg, Amoroso and Feinberg joined the Senator and Sandy Williams in the

dining room. Enroute, Weinberg and Amoroso tried again, pressing Mr. Feinberg

about the Senator's ability to obtain goverrment contracts, especially if the

Senator were to have an interest in Piney River. Mr. Feinberg repeated that the

Senator could “open doors” (G.Ex. 7A-2, pp. 1-3), but made clear that any decision

regarding the disclosure of the Senator's interests in the venture had to wait

until he reviewed the law o collateral investments for a United States Senator.

(T-3604-06) .

In the luncheon meeting, Senator Williams unequivocally stated that he would

disclose any interest that he had in the proposed corporation, once the venture

became viable. (G. E. 7A-3; p. 2; T-3611, 4279). Mr. Feinberg testified that his

statement during the conversation, that he would take care of the disclosure issue,

was meant only to appease the Arabs. (7-3608-09) —/. The meeting concluded

with a vague agreement that new corporations should be established and that the

Arabs would buy out Torriello and Garrett. (T-816-17, 3613-14).

That evening Weinberg tried again by telephone. He insisted that Mr.

Feinberg provide him with another name in which to place the Senator's stock.

concerned, again, was going — I constantly was under pressure from

t this subject matter. I was trying to placate them because I

to succeed. I believed in it. I believed in them ard when

lieve in — you want to believe and I did.“ (T-3608-09,

Feinberg put him off. (G.Ex. GA, pp. 1-2). Mr. Feinberg later informed

Weinberg that the Senator wished to have his shares placed in his own name

and interest disclosed. (F.Ex. 0, p.2).

Weinberg continued to demand that no shares be issued in Senator Williams'

name. (T-3618-19) „ard in fact, made financing of the venture expressly contingent

on this condition.

On cross-examination, Weinberg confirmed that, in his opinion, Mr. Feinberg

did not have the power and guts to do what he and Amoroso asked of hum.

(T-1370). Thus, it is evident by Weinberg's own testimony that although he

was finally able to coerce Mr. Feinberg into saying things to appease him, even

Weinberg realized that Mr. Feinberg would not follow through with an improper

act. More coercion was applied.

Weinberg next requested that Mr. Feinberg prepare resumes of all interested

parties for the Sheik. He insisted that the Senator's resume incluie a state-

ment that the Senator would guarantee goverrment contracts. (T-3626). Mr.

Feinberg never prepared such a resume and was severely reprimanded by Amoroso

for not doing as the Arabs wished. (G. N. 10A, p. 5).

A meeting was called in June by Amoroso allegedly to discuss the new

corporations. Prior to this meeting, Weinberg emphasized to Mr. Feinberg that

the Senator's guarantee of govermment contracts was crucial to obtaining finan-

cing of theproject from the Arabs. Weinberg and Amoroso were particularly

angered when Mr. Feinberg insisted again that the Senator would take the shares

in the new corporations in his own name and disclose his interest.

(G.Ex. 10A, p.3). Displeasure deepened into anger when Mr. Feinberg presented

-14-

them with a memorandum in which the Senator extolled the virtue ard integrity

of the mining venture. (T-3630). They stated that this was insufficient to

satisfy an Arab, who, according to Weinberg, “can't read between the lines”.

Amoroso took Mr. Feinberg to task in no uncertain terms for his unwillingness

to “take care of t:.'ngs" as they wished. (G.Ex. 10A, p. 5, T-3635).

Weinberg and Amoroso then attempted to get the Senator to say what Mr.

Feinberg would not write. They arranged a meeting between the Senator and

the Sheik. Weinberg emphasized that at the meeting the Senator must "come on

strong", and indicate that he would guarantee goverrment contracts. (S. . 10A,

pP. 7; T-3641). When Errichetti forcefully repeated the demand that the Senator

must “come on strong” in order to impress the Sheik, (T-3639-40, 4285) , the Senator

felt that Errichetti was asiing him to do something out of character and stated

he would speak to the Sheik in his own way. (704285).

In response to Weinberg's continuing pressure, Mr. Peinberg attempted

to assure him that the Senator would act as they wished. Despite the assurances,

Mr. Feinberg testified that the Senator did not intend to guarantee contracts

or do any more than make telephone calls or introductions. (T-3640-41).

Obviously, Weinberg did not believe Feinberg's “assurances” since on that

same date, Weinberg again stressed to Katz that even further pressure would

have to be placed on the Senator. (F.Ex. G., p. ).

A few days before the Senator's meeting with the Sheik, Weinberg contacted

Mr. Feinberg to once again emphasize that the Senator must “come on strong”.

(G.Ex. 12A). It was Mr. Feinberg's belief that although the Senator would not

“come on strong", he would convince the Sheik that the project was truly

@ great one. (T-3642).

On the evening of June 27th, Errichetti and Mr. Feinberg, along with

Weinberg and Katz met at the Marriott Inn in Arlington, VA. Weinberg once again

insisted that the Senator say that he would guarantee the government contracts.

(T-3644-48; G. . 13A, p. 3).

The conversation between Errichetti, Weinberg, and Katz after Mr. Feinberg

left for the evening, is indicative of the lengths to which the other parties

were going in order to overcome the Senator's and Mr. Feinberg's reluctance to

acece to Weinberg's demands:

AE: I got Pet [Senator Williams) by the fucking

throat, I tell you about as close as I cam

in his office. Let me tell you something, cock-

sucker, don't you go fucking this thing up. I

On June 28th, Mr. Feinberg met briefly with the Senator before Weinberg

and Amoroso quickly ushered the Senator off to meet the Sheik. Unbeknownst to

Mr. Feinberg, the Senator had been given a lengthy coaching session by Weinberg

on what he should say and do. (S. N. 14A). Senator Williams was instructed by

Weinberg to stress his position in the Senate, his prominence, and the fact

that he could do favors. The Senator was informed that it was imperative he tell

the Sheik that he could exert influence to get the contracts, even though the

speech was all "bullshit". As Weinberg put it, the Senator was to be on stage

for twenty minutes”. Weinberg cynically characterized him as “the most expensive

TV star that ever got paid”. He urged the Senator to “throw names, be a star,

it was ‘the Arab ey. Mel even wore a tie for the casten. (T-4305, 4328).

By his own admission, in his meeting with the Sheik, the Senator foolishly |

bragged about his position in the Senate, his relationship to other members

of Congress, ard his ability to get things done. (T-4360). Although the Senator

knew virtually nothing about titanium, he attempted to impress the Sheik with the

importance of the metal. (G.Ex. 15A). At trial, he characterized much of

what transpired in this meeting as “baloney”. (T-4369-71, 4378). However,

when Amoroso suggested that the Senator's interest in the mine be concealed,

the Senator responded by firmly emphasizing the position he had taken at the

Hotel Pierre based upon Mr. Feinberg's advise, he intended to declare his

interest as soon as the project obtained financing and became meaningful.

(T-4351) .

Subsequently, it was agreed that Mr. Feinberg would establish certain corp-

orations for the purpose of acquiring the Savannah and Piney River properties.

Mr. Feinberg would prepare the necessary papers for the stockholder's meeting

including the requisite stock certificates. No stockholder agreement was ever

prepared. (F. N. T; T-3652). While insisting to Weinberg that all corporate

formalities must be observed, he did agree to Weingerg's demand that the

Senator's certificates be in blank, for the time being. (G.Ex. 17A, pp. 2-3)

-l7-

Prior to the stockholders’ meeting, and without Mr. Feinbery's knowledge,

Weinberg offered Sandy Williams $20,000.00 expense monies to be paid to the

Senator. The Senator refused. (G.Ex. 18A, p.2).

On July llth, a lengthy stockholders’ meeting was held at JFK airport.

Present were Mr. Feinberg, Erricheti, Weinberg, Amoroso, Katz, William Evoy,

and Sancy Williams. Three corporations were created. Cross-examination of

Amoroso and Weinberg confirmed that all issued stock was worthless. (T-1168-

69, 1363-64, 3569, 3567, 3664-65). Mr. Feinberg held the Senator's worthless

shares in trust for him. (T-3659). At Weinberg's and Amoroso's request the

stock certificates were conveyed to them, allegedly to be show to the Sheik.

(T=3659). The stock certificates at JFK Airport on August Sth, prior to a

departure for Europe. (G. N. 2A, p.4).

2. The F. B. I. Resale

Having been unable to coerce or bribe Mr. Feinberg or the Senator into

committing an incriminating act, in August 1979, the F.B.I. upoed the ante

with yet another scam. This time, a pretended sale of the mine to a second

group of phony Arabs. (T1170). Weinberg began this scam by informing Mr.

Feinberg and Katz that a separtate croup of Arabs was interested in purchasing

the mine at a profit of some seventy million dollars. The profit would be

realized at simutaneous closings. (T-1635, 3666-68). Weinberg and Amoroso

arranged a meeting on September 11, 1979, with Erricheti, Katz, Mr. Feinberg,

Sandy Williams and the Senator. (G. N. 2 T-3669). At this meeting, Weinberg

and Amoroso skillfully launched the resale scenario emphasizing that the resale

would net the parties seventy million dollars. (G. N. 23A, p.18; T-3670).

Fearful that seventy million dollars wouldn't be enough, Weinberg also suggested

a tax evasion scheme. However, his Swiss bank scheme was flatly rejected.

( G.Ex. 29A, pp.60-65; T3674-75) .

Weinberg insisted that if the resale was successful, the Senator mist stay

with the new entity in the same capacity as the persent venture. (G.Ex. 23A, p.29).

Weinberg emphasized that the resale depended on the Senator obtaining the govern-

ment contracts. (G.Ex. 23A, p.29; T-3672, 4453-56). When the meeting dispersed,

the corporations had no assets and the stock continued to be worthless. (T-3688).

It was decided at the meeting that they would go ahead with the resale.

F. The Ritz Carlton Transaction

tn late 1979, the New Jersey Casino Control Commission was considering an

application by the Ritz Carlton which would permit the Atlantic City Ritz to be

rebuilt rather than razed. (T+3679-81). Senator Willisns' wife, Jeanette,

contacted Mr. Feinberg and requested any assistance that Mr. Feinberg could render

in support of the Ritz’ application. (T-3682).

It was the general policy of the Casino Control Commission to invite comment

and input fram the public on all pending applications. (T3681). Because he was

personally acquainted with Ken McDonald, the Vice-Chairman of the Commission,

Mr. Feinberg chose to meet with him to persent the merits on behalf of the Ritz.

(7-368 2-83). Mr. Feinberg perfaced his remarks by stating that if he were “out

of order” McDonald should let him know. (T-3682). IU a short conversation, Mr.

Feinberg presented to McDonald the reasons why the Ritz should be allowed to

renovate rather than tear down the existing structure. McDonald indicated he

would look into the matter. Mr. Feinberg thanked him and left. The Ritz Carlton's

application to renovate was ultimately approved. (3684-83).

Subsequently, Mr. Feinbery was appointed counsel for the Ritz in New Jersey.

(T3686). In his capacity as general counsel for the Ritz, Mr. Feinberg became

aware of the difficulties encountered by the Ritz in obtaining financing for the

Casiro. The Ritz was in need of sche seventy million dollars.

Since Senator \/illians was a personal friend of the Chairman of the Board

of the Hardwick Corporation, which owned the Ritz Carlton, and the Senator's

wife was a paid consultant to Hardwick in 1979, the Senator also was aware that

the Ritz was seeking financing. (T-4487-94, 4497-99). At Mr. feinberg s request

he attended the meeting with Weinberg and Amoroso during which Mr. Feinber;

Presented documents in support of the Ritz’ application for a loan. (71-4500).

In the course of discussion, Mr. Feinberg stated that he believed there would

be no problem in obtaining a caming license for the casino. At trail, he testified

that this opinion was based on his knowledge that the principals were of hich

repute. (T-3696-97). He then attempted to impress Amoroso and Weinberg by

enagcerating the influence he had had on the grant of the Ritz’ application to

renovate. (G. E. 24A. pp.9, 11-12, 17-18).

Weinberg's own assessment that the principals owned nothing of value at

that time was one of the few true statements ever made by him. (G.Ex. 23A, pp.

58-59; 72673). Joseph Fusco testified that he was the staff member responsible

for making recommendations as to the Ritz C]rlton applications. He testified that

he handled the Ritz application personally and that the Commission adopted his

recommendations. (T-3241, 3245). He did not know the Senator at the time of the

Granting of the Ritz application. He stated that neither the Senator, Jeanette

Williams. nor Mr. Feinberg had any influence on the granting of the permit.

(T-3246-49). Fusco specifically noted that Mr. Feinberg had no Gealing with

Pusco's office. (T+3248-49). Mr. Fusco further testified that no outside

influence was ever attempted to be brought to bear on the Commission and the

Gecision was reached by the staff solely on the merits. (3276-82). Mr. Fusco

also testified that the dermit application submitted by the Ramada, and building

had structural difficulties. (T-3231).

Weinberg indicated that any loan provided by the Arabs would be available

at an attractive rate of interest of two points above prime. (T-3713-14).

Weinberf further indicated that if the Arabs financed the transaction, a finder's

fee of three million dollars would be reasonable. (S. N. 24A, p.23; T-3697).

The Senator testified that this was the first he had heard of a finder's fee.

(T4509) .

As in the Piney River transaction, Weinberc insisted that the Senator's

interest in this venture must be concealed. The Senator, however, once again,

ces ly nd ca*ed “ha he ‘ntended to disclose his interest. G. . 2, P- 41

T-45186-20). At this juncture Amoroso and Weinberog rsised the subject of Pine.

River. Again. they warned the Senator that his wish to declare his interest

in that project would ruin the chances of selling the proverty to the second

group of Arabs. ( G.Ex. 24A, 0.44). It was agreed thac Weinberg and Amoroso

would lock into the possiblity of financine the Ritz, but the F.B.I. abandoned

this scenario. (T3741).

G. The F.B.I. Asylum Scan

In early January, Weinberg called Mr. Feinbero to request a personal favor

for Sheik Yassir. Shortly thereafter for the purpose of ascertaining what the

“favor” was, Mr. Feinberg and Katz met with Amoroso and Weinberg at the Plaza.

(T-3717). During the conversation it was revealed that the Sheik was seeking

premanent residency in the United States. Amoroso suggested that a private

immigration bill could be introduced by the Senator. (1+-3719). Mr. Feinberg

kne nothing about private immigration bills. Be told Weinberg and Amoroso

that before any action could betaken, the Senator would need a complete back-

ground of the individual requesting assistance. (T-3719). Amoroso assured him

that there was nothing in the Sheik's background that would prohibit entry into

this country. (T+3719). Mr. Feinberg agreed to contact the Senator ard did so.

Qn January 19, 1980, Mr. Feinberg informed Amoroso that the Senator wuld

meet with the Sheik the next day. (T3721). Mr. Feinberg insisted again that

the matter had to be handled legitimately. (r. . v: 3721).

The Senator attended the meeting accompained by Sandy Williams, Katz and

Mr. Feinbers. After a short introduction, the Senator was left alone with

Amoroso and Special Agent Farhardt, posing as the Sheik. They offered the

Senator money. The Senator flatly rejected the offer without hesitation.

S. N. 24A). Sentor Williams indicated that he would assist the Sheik only if

the Sheik's claim of hardship was verified by his staff. The meeting concluded with

Amoroso agreeing to supply the request information.

H. The Joe Silvestri Conversation

On February 21, 1980, F.B.1. Agents visited and interviewed Mr. Feinberg at

his home. (17-3726, 3804). After being advised of his rights, Mr. fender

expressed hs desire to cooperate fully with them. (T3801). A far ranging

involvement with the Ritz Carlton Casino and the Piney River projects. (T3730,

3797-99, 3801). Mr. Peinberg chronicled his relationship with the Arabs from the

date of their first meeting. Mr. Feinberg assured the agents that the Senator had

intended to disclose his interests in the projects and he bed never intended to use

his position to cbtain goverrment contracts. ( T3734). He insisted that

neither he nor the Senator had done anything wrong. (T-3801-02)

In the course of the interview, Mr. Feinberg also discussed his relationship

with Joseph Silvestri, a housing contractor. Silvestri had been interested in

cbtaining financing for the Dunes Casino. (T-3727).

Sometime later, Mr. Feinberg called Joe Silvestri. That evening, Silvestri

returned the call while seated in Mr. Puccio's office. Unbeknomst to M. Feirberg,

Silvestri had been instructed by the Justic Department to lie about his whereabouts

and the attempt to induce Mr. Feinberg to lie or incriminate himself. (T-3737-38) .

The specific effort was directed toward asking Mr. Feinberg what Mr. Feinberg

would wish Silvestri to say to the F.B.I., if he, Silvestri, were questioned by

them. (1+-3740). Mr. Feinberg initially informed Silvestri that the Arabs were

actually Goverrment Agents. He further stated that during his interview with

the F.B.I., he had discussed Silvestri's role in the Dunes financing project.

F. . u, pp.2-5). Silvestri, then asked what he should do if contacted by the

F.B.I. Feinberg replied, Just tell en the truth”.

REASONS FOR GRANTING THE WRIT

— .

THE METHOOS Dre

AGENTS IN THE COURSE OF THEIR DYVOLVRENT

WITH PETITIONER WERE OUTRAGEOUS AND

OVERREACHING, CONSTITUTING A VIOLATION

OF PETITIONER'S QUE PROCESS RIGHTS

Since it first enunciated the entrapment defense in Sorrells

v. United States, 287 U.S. 435 (1932), the Supreme Court has been

divided on the factors which should be considered in establishing

such a defense. In Sorrells, the Court held that a finding that the

Goverrment had induced the defendant to commit a crime was not, in

itself, sufficient to sustain the entrapment defense. In addition to

the inducement, the defendant must not have been predisposed to

commit the crime charged.

Recognizing that this construction o. the entrapment defense

would afford the Government too much latitude, the Court enlarged the

potential scope of the defense in United States v. Russell, 411 U.S.

423 (1973). ‘There the Court warned that, even when a defendant was

predisposed to commit the offense, a situation could exist in which

che conduct of law enforcement agents is so outrageous that due

process principles would absolutely bar the Goverrment from invoking

judicial processes to obtain a conviction.” Id at 431-432 22/

In the subsequent decision of Hampton v. United States, 425 U.S.

484 (1976), the Court rejected a defendant's assertion of a due process

defense based on govermment misconduct. A plurality of the Court

concluded that the defense of entrapment was the sole remedy available

to a criminal defendant. However, just as significantly, the concurring

1 Following Russell, several Circuits invoked due process principles

as a basis for overturning narcotics convictions where government agents

had supplied the contraband to the defendants. United States v. West,

511 F.2d 1083 (3rd Cir. 1975); thited States v.

aff'd om rehearing 505 F.2d 1251 (Sth cir. 1974).

and dissenting Justices, constituting 4 majority, held that due process

was still a viable defense where there has been government misconduct.

Justice Powell, in his concurrence, affirmed that “there is certainly

a constitutional limit to allowing Goverrment involvement in crime",

425 U.S. at 493, n. 4 (quoting United States v. Archer, 486 F.2d 670

(2a Cir. 1973) A

Although reaching its decisior. on other grounds, the Second Circuit

in Archer had issued a stem warning regarding future misconduct

by agents of the government. Judge Friendly clearly indicated that

govermment agents who "displayed an arrogant disregard for the sanctity

of the state judicial and police process did indeed, violate the

principles of due process." Id at 677. Furthermore, the availability

of a due process defense, when the goverrment involvement in criminal

activities has reached the level of outrageousness, has been recognized

by the Third, Ninth, Fifth, and Eighth Circuits. mite States v. Twigs,

588 F.2d 373 (34 Cir. 1978); United States v- Prairie, 572 F.2d 1819

(9th Cir. 1976); United States v. Graves, 356 F.2d 1319 (Sth Cir. 1977);

United States v. Quinn, 543 r. 2d 640 (8th Cir. 1976).

pmong the relevant factors to be considered when a Geferdant has

raised the due process defense are (1) the defendant's prior lack of criminal

involvenant; <2” (2) the extent of the goverrment's involvement

in criminal activities; and (3) the persistence of the goverrment in

its attempts to entrap the defendant. United States V- Twigg, Supra;

United States v. Graves, supra at 1319; United States v. Batres@

SS

Santolino, 521 F.Supp. 744 (R. D. Cal. 1980).

1 In the view of the concurring Justices, however, the particular

acts by the government in Hampton did not violate due process, 425 U.S. at 495.

goverrment

conduct defense involved defendants who had previously been involved in

similar crimes or ongoing criminal enterprise. See, United States v.

Russell, 411 U.S. 423 (1973); United States v. lie, 0

Ur. Ben e e chf ; .

In its efforts to lure Petitioner into criminal activities the

Govermment created an escalating series of inducements which offered

Petitioner wealth beyond his wildest dreams. Initially, Abdul Enterprises

was to provide a $13,000,000.00 loan which would have rendered the Piney

River mine operable. Shortly thereafter, Weinberg indicated that the Arabs

might also be interested in providing additional financing of some seventy

million for the purchase of the Cyanamid property. Seventy million was

also offered for the Ritz Casino financing.

Just in case a loan of $100,000,000.00 was not enough to convince

Petitioner to do things "the Arab wey”, the Government created the resale

scam. The resale which was, of course, contingent on the Senator's non-

disclosure and procurement of Govermment contracts would net the principals

a profit of seventy million dollars. All of the sms offered were mind

boggling beyond anyone's wildest dreams.

Yet another offer of financing was made for the Ritz Carlton renovation

project. Weinberg expressed the willingness of the Arabs to provide

another loan for $70,000,000.00 at two points above the prime interest rate.

Mr. Feinberg would earn a finder's fee of three million dollars if the

financing materialized.

The incredible amount of these inducements cannot be considered the

same kind of ordinary temptation that Assistant Attorney General Hyman

found to be just "floating out there”. [Meyers D.P. Ex. 1 (cited in

United States v. Kelly, Slip. Op. No. Cr. 80-00340, n.47 (D.C. May 13,

1982)]. Defense comsel attempted to have the size of the inducement

consicered by the jury. However, the trial court rejected this request

to charge. (Feinberg's Request to Charge: Ct. Ex. 15, Request No. )).

Significantly, the extent of the inducements offered were not monitored by

anyone in the F. B. . or the Justice Department. It would appear that

Mel Weinberg was free to offer whatever the traffic would bear.

B. The instigation and Persistence of the Government

In striking contrast to the defendants in Sorrells, Sherman, Russell

and Hampton, Petitioner was not engaged in an ongoing course of criminal

Conduct. Petitioner was merely seeking financing for a mining venture from

which he hoped to make a legitimate profit. It was the Goverrment agents

who, at every tur, insisted that the desired financing be contingent upon

the commission of the crimes charged.

The shareholders in the mine had originally contemplated selling the

titanium to paint manufacturers. e “einberg learnedof the military

uses for titanium, he injected the issue of government contracts into the

transaction.

The night before the Hotel Pierre luncheon, and just as the long-awaited

financing was cn the verge of becoming a reality, Weinberg raised the issue

of goverrment contracts. He did not merely suggest that it would be

advantageous for the Senator to attempt to procure govermment contracts;

he insisted on it. Time and time again, Weinberg stressed that the success

of the financing was wholly contingent on the Senator's promise that he

would procure these contracts.

Mr. Feinberg made t clear from the start that the Senator would rot-

could not - procure govermment contracts. However, to appease the Arabs

and preserve the chances for financing, Petitioner indicated that the

Senator would “make introductions” to assist in the mining venture.

He never promised to procure goverrment contracts. Petitioner adhered

to this position throughout a lengthy period, despite ceaseless pressure

in the context of mind boggling inducements by the Government to make such

a guarantee.

Qn the issue of disclosure, it was Weinberg and the F. B. I. again,

that insisted on the concealment of the Senator's interest. Petitioner,

Feinberg, despite the manipulation of Weinberg, and the F.B.I. postponed

an the disclosure issue until he had had an opportunity to consult with

a tax attorney and examine the Senate Rules on Disclosure. After

careful consideration, Mr. Feinberg and the Senator determined that the

law did not demand disclosure of the Senator's interest until such time as the

shares attained some monetary value. Petitioner consistently stated that

at that time the Senator intended to declare his interest and pay taxes

on any profits.

As Petitioner was being continually manipulated with demands that he commit

these crimes the rewards for doing so sky-rocketed higher and higher. The

original loan for thirte.o million dollars ultimately mushroomed to

$170,000,000.00. The attainment of financing for the Ritz would have

personally netted Petitioner an additional $3,000,000.00. Dispersed

among these major inducements were more mind tests, designed by the Govern-

ment. The Senator was offered the use of Abdul Enterprises corporate jet,

$20,000.00 in expense monies and an unspecified bribe for obtaining residency

for the Sheik. All of these offers were flatly rejected. Weinberg also

suggested that the purported resale of the mine be transacted overseas, in

order to avoid taxation on the profits. All principals in the venture,

including Petitioner, rejected this scheme without hesitation.

-27-

Time and again Petitioner was tested; time and agin he refused to

commit any crime. As the Court stated in Williamson v. United States,

311 F.2d 411, 445 (Sth Cir. 1962): “There comes a time when enough is nore

than enough - it is just too much." These sentiments were echoed by Judge

Bryant in his decision setting aside the conviction of Abscam defendant

John Kelly:

testing

on the basis of winning the first battle

against temptation. He should not be required

to win a prolonged war of attrition against

chicanery...If the Govermment had no knowledge

of Kelly doing anything wrong up to his rejection

of illicit money, its continuing role as the third

man in a fight between his conscience and temptation

rages above the level of offensiveness to that

of being outrageous."

United States v. Kelly, (Slip Op.

See, U tates V. Klosterman,

248 F.2d 191 (3rd Cir. 1557).

The Second Circuit has long recognized the significance of persistent

effort on the part of the Government.

to the inducement of the agent.”

United States v. Viviano, supra

at 209 no.

In the opinion below, the Se d Circuit noted that the size of the

inducement in this case distinguished it from other Abscam convictions.

Nevertheless, the Court held that:

"We doubt that the size of an inducement

considered inconstitutional when of-

(Appendix A, p. 36)

To an attorney with a general practice in southern New Jersey, however,

the amount of money being offered by goverrment agents represented greater

wealth than he ever imagined he could attain.

More importantly, Mr. Feinberg initially anticipated realizing these

tremendous profits through a totally legitimate business venture. The

government first raised his hopes of making enormous sums of money and —

when his hopes and dreams had been aroused — made the success of that

renture wholly contingent on the commission of an illegal act. In so

doing, the government administered the ultimate "Morality Test" to as-

certain just how great a temptation would cause a law-abiding citizen

succumb.

The conduct of government agents in arousing the anticipation

of profits from a legitimate venture, then injecting illegality into

the venture, escalating the size of the inducement, and persistently

insisting that an illegal act be committed, constitutes outrageous and

overreaching behavior which violated Petitioner's right to due process.

Once the defense of entrapment had been raised, it was incumbent

upon the Government to prove, beyond a reasonable doubt, that Alexander

Feinberg had been predisposed to commit the crime charged in the indictment.

United States v. Swiderski, 539 F.2d 854 (2d Cir. 1976); United States v.

Viviano, 437 F.2d 295 (2d Cir.), cert. denied, 402 U.S. 983 (1971). Since

the existence of inducement was never in doubt, it was clear from the outset

that the Government's success in proving predisposition would determine

the outcome pf this case. Traditionally, predisposition has been proven

through the introduction of prior convictions or arrests, or testimony of

goverrment agents who had witnessed the commission of other crimes. However,

in the instant case that method was not available to the Goverrment. They

were faced with a defendant who wis a respected attorney with an exemplary

record. ‘The government met this challenge by introducing evidence of

mumerous legitimate business transactions as “similar acts", allegedly

probative of Petitioner's criminal predisposition.

A. The Legitimate Nature of the Similar Acts

By a repeated distortion of the facts, culminating in an inflamatory

summation, the Government succeeded in convincing the jury that Petitioner

had a long history of involvement in illegal activities and was, therefore,

predisposed to commit the crimes charged. In reality, each of the similar

acts introducea by the government was a legitimate business transaction.

Proof of this contention, regarding the Ritz Carlton transaction,

was provided by the Government itself. At the due process hearings, tes-

timony elicited by defense counsel revealed that at the exact time it was

seeking to introduce this transaction as relevant to predisposition, the

goverrment had in its files a documents which has become known as DP

Ex. 24. This Exhibit was a memorandum in which Assistant United States

Attomeys Plaza and Weir concluded that there was no impropriety in Mr.

Feinberg speaking with Ken McDonald on behalf of the Ritz Carlton's

application for permission to renovate the casino. The memorandum was

based on F. B. 1. 302's which contained the findings of an independent

investigation conducted at the request of the Strike Force.

Regarding Petitioner's involvement in Biocel, the only charges

impropriety were levelled during tne course of a political campaign. These

allegations were totally unsubstantiated. Both Petitioner and Sandy

Williams denied any wrong doing at trial.

Mr. Feinberg's conversation with Joe Silvestri clearly indicated

that he was confident nothing illicit had transpired during the search for

financing for the Dunes Casino. With regard to the Garden State Raceway,

Mr. Feinberg also desired to assist in obtaining financing, but rejected

Errichetti's and Weinberg's suggestions that pay-offs be required to

ensure the success of the venture.

Mr. Feinberg learned of each of these proejcts in the course of his

legal practice in southern New Jersey. His application for permits on the

part of the Biocel were within the scope of his duties as corporate counsel.

His activities in attempting to locate sources of financing for the Dunes,

Ritz Carlton and the Garden State Raceway were those of any businessman

and there was nothing illecal or improper in any of Petitioner's actions.

Nevertheless, the govermment through unfounded assertions and innuendo,

presented these ventures as examples of Petitimer's prior criminal conduct.

B. The Similar Acts Evidence Was Inacmissible

To Prove Petitioner's Predisposition

The United States Supreme Court has long held that when the defense

of entrapment has been raised:

"The accused will be subjected

to an appropriate and searching inquiry

into his own conduct and predisposition.”

Sherman v. United States, 356 U.S.

39, 373 (1556). ~=—

The introduction of similar acts evidence has been almost wiiversally

considered permissible for the purpose of rebutting an entrapment defense

The only states which do not permit similar acts evidence to be admitted

on the issue of predisposition in an entrapment case are California and Iowa.

See, People v. Rodriquez, 243 Cal. App. 522 (1966); People v. Mullen, 216

N.W.2d 375 (1974).

It is not necessary that the prior crimes, relevant to predisposition,

be the same as the cri charged. However, the prior conduct must be

“morally indistinguishable" from the crime charged and of the same kind”.

United States v. Viviano, 437 F.2d 295, 299 n.3 (2d Cir. 1970), cert.

denied, 402 U.S. 983 (1971); United States v. Sherman, 200 F.2d 880, 882

(2d Cir. 1952); United States v. Becker, 62 F.2d 1007, 1009 (2d Cir. 1938).

2 The Circuits are uniform in their acceptance of this rule. —

v. United States, 296 F.2d 512 (lst Cir. 1961); United States v. Sherman, 0

t. 2d 549 (2d Cir.), rev'd c other „ 356 7.5. 365 (1958); United

States v. Johnson, 371 F.2a 800 (3 1967) ; United States v.

Te F.2d 133 (th. Cir. 1973); United States v. Ambrose, 453 F.2d N Cth

Cir. 1973); United States v. Stocker, 273 F.2d 754 (7th Cir. cert. denied,

362 U.S. 963 (1960); United States v. Brown, 453 F.2d 101 (8th Cir. 1971),

cert. denied, 405 U.S. 978 (1972); Notaro v. United States, 363 F.2d 169 (9th

Cir. 1566); United States v. Freeman, 412 F.2d 1181 (10th Cir. 1969); Hansfor

v. United States, 303 F.od 215 (D.C. Ar. 1962).

Subject to the requirements of Rule 403 FRE, prior convictions for

similar offenses have been held admissible. Nutter v. United States, 412

F. 2d 178 (9th Cir.) rev'd on other grounds, 356 U.S. 369 (1958); Carlton v.

United States, 198 F.2d 795 (9th Cir. 1952). Although the distinctim

between a felony comviction and misdemeanor conviction may be determinative c

the admissibility of similar acts for the purpose of impeactment, this

distinction has no significance when such evidence is introduced to prove

Purthermore, the defendant need not have been convicted of the prior

crime which is admitted to prove predisposition. In such instances,

testimony has generally been offered by an undercover government agent who

has witnessed the defendant participating in an illegal activity. United

States v. Abbadessa, 470 F.2d 1333 (10th Cir. 1972); United States v.

Brown, 453 F.2d 101 (8th Cir. 1971). cert. denied, 405 U.S. 978 (1972);

United States v. Smith, 283 F.2d 760 (2d Cir.) ,cert denied 365 U.S. 851

(1960). Occasionally, an informant has testified to having witnessed the

defendant commit pricr similar crimes. United States v. Simon, 453 F.2d

lll (8th Cir. 1971). In some cases, the defendant's ow out-of-court

admissions of having committed prior crimes have been admitted on the issue

of predisposition. United States v. Demetre, 464 F.2d 1105 (8th Cir. 1972);

Dege v. United States, 308 F.2d 534 (9th Cir. 1962); United States v.

Stocker, 273 F.2d 754 (7th Cir.), cert denied, 362 U.S. 963 (1960).

Same circuits have allowed goverrment agents to testify regarding

an informant's disclosure of the defendant's prior criminal conduct. Rocha

v. United States, 401 F.2d 529 (Sth Cir. 1968), cert. denied 393 U.S.

1103 (1969); Trice v. United States, 211 F.2d 513 (9th Cir.), cert denied

346 U.S. 900 (1954). However, other circuits have excluded such hearsay

testimony on the grounds that its questionable probativity as to pre-

disposition was far outweighed by its prejudice to the defendant.

Johnston v. United States, 426 F.2d 112 (7th Cir. 1970); Hansford v.

United States, 303 F.2d 219 (D.C. Cir. 1962); Whiting v. United States,

296 F.2d 512 (lst Cir. 1961).

It is significant to note that whenever a defendant's prior acts

for which he had not been convicted were admitted to prove predisposition,

these acts were always clearly criminal in nature. Such evidence has been

most commonly admitted when it indicatei the defendant's past involvement

in drug transactions. United States v. Smith, 283 F.2d 760 (2d Cir.),

cert denied, 365 U.S. 851 (1960); United States v. Abbadessa, 470 F.2d

1333 (10th Cir. 1972); Unitec States v. Brown, 453 F.2d 101 (8th Cir.

1971), cert. denied, 425 U.S. 978 (1972); Rocha v. United States, 401 F. 20

529 (5th Cir. 1968), cert. denied, 393 U.S. 1103 (1969); United States v.

Cooper, 321 F.2d 456 (6th Cir. 1963); Trice v. United States, 211 F.2d

513 (9th Cir.), cert denied, 346 U.S. 900 (1954).

Testimony regarding a defendant's commission of crimes for which he

has not been convicted has also been acmittad when the prior acts con-

stituted: (1) bribery, United States v. Viviano, 437 F.2d 295 (2d Cir.

1970), cert. denied, 402 U.S. 983 (1971); (2) illegal manufacture of

liquor, Billingsley v. United States, 274 F. 26 (6th Cir.), cert. denied,

257 U.S. 656 (1921); (3) smuggling, Dege v. United States, 308 F.2d 534

(9th Cir. 1962); (4) forgery, United States v. Demetre, 464 F.2d 1105

(8th Cir. 1972); amd (5) illegal acquisition of firearms, Mnited States

v. Cohen, 489 F.2d 945 (2d Cir. 1973). In each of these instances, the

defendant's prior conduct was unequivocally illegal.

In striking contrast, Petitioner's previous attempts to obtain

permits for Biocel or the Ritz Carlton and secure financing for Biocel,

the Ritz, the Garden State Raceway and Piney River were legitimate

business activities.

Research has failed to uncover any case in any circuit where prior

similar acts, which did not clearly constitute a crime, were adnitted

to prove a defendant's criminal predisposition.

There is no way that Petitioner's behavior can be characterized

as a “ready response” to the Goverrment's inducements. At the Hotel

Pierre, when the issue was first raised, Petitioner made it clear that

the Senator would not guarantee the procurement of goverrment contracts.

He adherec to this position over a period of several months despite the

insistence of govermment agents that the proposed financing was

contingent on the Senator making this guarantee.

When the issue of disclosure was initially raised by Mel Weinberg,

Petitioner, again, resisted his demands. No decision was made wtil

Petitioner had consulted a tax attormey and the Senate Rules on Disclosure

After careful evaluation, Petitioner and the Senator determined that the

Senator's interest in the Piney River and subsequent ventures, need

not be disclosed until his shares had developed value. However, Petitiore

amd the Senator consistently stated that he would disclose his interest

as soon as the ventures became viable. This position directly contravened

the demands of the Arabs.

Petitioner was clearly unwilling to yield to the series of inducement

created and orchestrated by the Goverrment. In the face of an overwhelmir

onslaught of temptations and demands, Mr. Feinberg made consistent efforts

to keep all dealings with the Arabs legitimate. Thus, the only alternati.

which remained open to the Govermment was to prove Petitioner's predis-

position by the introduction of similar acts evidence.

Despite these facts the Second Circuit held the similar act

evidence introduced in the instant case to be admissible. The impact

of that decision is that when the defense of entrapment is based in

the future, predisposition may be proven by prior conduct which is not

criminal.

C. The Time When Predisposition is Assessed

The Second Circuit's decision in Petitioner's case impinges

upon the entrapment defense in still ancther way.

During the course of jury deliberation, the following inquiry was

made:

"Does entrapment have to be

of law. It is not a problem you even have to

worry about. It is there. The oly question

The Second Circuit held that the time for assessing predisposition

is the time when the criminal ooportmity first appears. The Court

Getermined that this time was May 3lst, when Petitioner and the Senator

were first told that the availability of financing wes contincent on

guaranteeing goverrment contracts. According to the Court, Petitioner

made a ready and willing response at that tire.

Although Petitioner would quarrel with this characterization of his

response, for purposes of this Petition attention will be directed

Muy at the Se ond Circuit's determination of the time at which predis-

position should be assessed.

By judging Petitioner's predisposition at the time the demand for a

Guarantee of contracts was made, the Court discoumted the months of time arg

energy invested by the goverrment in creating an inducement. Initially

the goverrment offered financing of thirteen million dollars for a legitimad

mining venture. Then additicnal financing of seventy million dollars

was offered for the Cyanamid plant. It was oly after the government

hac succeeded in creating anticipation and hopes for wealth that its

agents injectec the element of criminality. But a sophisticated scenario,

creating a series of tantilizing inducements had been set in motion months

earlier.

Predisposition must exist before the period of inducement and

persuasion begins. As the First Circuit has correctly noted:

“Obviously, an entrapped defendant will

always be willing and ready to cut

the offense after the inducement and

immediately before the crimes commission."

United States v. Parisi, 674 F.2d

126, 128 (ist cir. 1582) .

The Second Circuit's decision in Petitioner's case clears the way for

the goverrment in the future to go to any lengths in orchestrating

inducements to tempt and entrap an unsuspecting citizen - and to do so

with impunity.

2

CONCLUSIGN

For all of the foregoing reasons, it is respectfully prayed

that this Writ of Certiorari be granted.

Respectfully submitted,

HARRY C. BATCHELDER, JR.

CAROL PRENDERGAST

Attorneys for Petitioner

(212) 344-8880

Dated: New York, N.Y.

July 20, 1983