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By oral order of August 28, 1980, Rep. Jenrette's motion to dismiss due to prejudicial pre-indictment publicity was denied. In a written order of the same day, Judge Penn indicated that he would reserve ruling on the overreaching issue until evidence was introduced at trial. No ruling was made with respect to Rep. Jenrette's allegations of entrapment.
On September 3, 1980, Rep. Jenrette filed a motion to suppress certain videotapes and telephone recordings of his allegedly criminal activity. Like his July 14, 1980 motion to dismiss the indictment, the motion to suppress was based on allegations that the Government's conduct during the investigation was so outrageous as to violate the defendant's Fifth Amendment right to due process. In his supporting memorandum, Rep. Jenrette relied heavily on the holding in Green v. United States, 454 F.2d 783 (9th Cir. 1971). According to Rep. Jenrette, the Greene court listed five major factors probative of Government overreaching: (1) the agent initiated the contact; (2) the contact was of long duration; (3) the agent was substantially involved in the criminal activity; (4) the agent applied pressure to prod the defendant into illegal activity; and (5) the agent helped establish the illegal activity and the agent was the only illegal customer. According to Rep. Jenrette, the Greene criteria closely fit the factual situation of the present case.
Rep. Jenrette's trial began on September 5, 1980. Meanwhile, the Government, on September 8, 1980, responded to Rep. Jenrette's motion to suppress by claiming that Rep. Jenrette had made no specific attack on the propriety of the process which produced the materials he was seeking to suppress. Nor could he, said the Government, since all the recordings were made with the consent of at least one of the parties who was being recorded. Such one party consensual tape recordings, said the Government, are legally unassailable under 18 U.S.C. $ 2511(2)(c) and many Supreme Court
On September 8, 1980, Rep. Jenrette's motion to suppress was denied. No memorandum accompanied the court's order.
On September 12, 1980 (while the trial was still in progress), the Government filed a legal memorandum on the subject of entrapment (as opposed to overreaching). Rep. Jenrette, said the memo randum, had argued that in order to overcome his entrapment defense, the Government would have to prove that he was predisposed toward criminal conduct prior to the commission of the crimes charged. In its memorandum, the Government challenged this argument claiming instead that the FBI could properly have offered defendant Jenrette an opportunity to commit crimes even if it had no basis for believing that he had been engaged in criminal conduct in the past. According to the Government, although evidence of a defendant's prior criminality could be relevant to the
question of a defendant's predisposition, other factors could also be , relied upon to prove predisposition-factors such as: (1) the willing
ness of the defendant to discuss criminal acts with the undercover agent; (2) the efforts of the defendant to maintain contact with the agent; and (3) evidence that after the original criminal act, as proposed by the agent, was completed the defendant embarked on a second, self-initiated plan to perform another criminal act. Using
these criteria, said the Government, it would become clear that Rep. Jenrette was predisposed to accept the bribes.
On October 7, 1980, the jury, which had been sequestered for the duration of the trial, found Rep. Jenrette and Mr. Stowe guilty on all counts.
Immediately after the jury returned its verdict, the court agreed to hear arguments on all outstanding motions on November 12 and 13, 1980. Among the outstanding motions was Rep. Jenrette's motion to dismiss on the basis of Government overreaching. (Ap parently, at some point Judge Penn decided that this issue would be decided post-trial and not during the presentation of evidence as he had originally planned.)
The court conducted hearings on Rep. Jenrette's claims of overreaching on November 12 and 13, 1980, as scheduled. The hearings were reconvened on February 10, 1981 and adjourned on February 11, 1981. The hearings were reconvened on May 11, 1981 and were finally completed one week later.
At the conclusion of the hearings, the court instructed Rep. Jenrette to submit a memorandum addressing, among other things, the issues of overreaching and entrapment. Rep. Jenrette complied with the instruction by filing a 120 page memorandum on July 20, 1981.
Rep. Jenrette's July 20th memorandum began by describing, in general terms, the alleged improper overreaching practices engaged in by the Government during the course of the ABSCAM investigation:
[I]t should be axiomatic that the proper role of law enforcement in a civilized society is the investigation and discovery of those engaged in criminal activity. Any system in which the discovery of crime relies solely upon the instigation of crime cannot long be expected to respect the rule of law.
The FBI undercover operation now known as ABSCAM demonstrates some of the most serious dangers inherent in a law enforcement system that, without any meaningful supervision, viewed apprehension as so paramount that it was permitted to create an ongoing criminal enterprise for the sole purpose of testing public officials. While the de fendant submits that the proper role of law enforcement is not, and should not be, that of a testor of the morality of any citizen, even if that premise is accepted for purposes of argument, it becomes clear that the FBI seriously abused its power in the present case. That abuse took the form of violations of statutory authority which revealed a shocking callousness to the rights of targets and defendants and a total indifference to those protections afforded any citizen in even the most simple criminal investigation. It is a case of where, in the government's apparent view, the ends justified the means. It was the government's myopic march towards that end however which violated the very same public trust that the ABSCAM operation misled the public into believing it had protected. [Post Hearing memoran
dum in Support of Defendant Jenrette's Motions to Dis
miss and for New Trial July 20, 1981, at 5-6] In support of his contentions, Rep. Jenrette made six basic points. First, he alleged that the individuals responsible for the ABSCAM undercover operation made a number of organizational and operational decisions designed "solely for the purpose of immunizing the investigation from subsequent review and responsibility." (Id. at 10) For example, said the defendant, Mr. Weinberg and Mr. Stowe were at liberty to approach Members of Congress as they saw fit. According to Rep. Jenrette, the transcripts of the testimony taken during his trial revealed that the decision to investigate him was based on Mr. Stowe's allegations to Mr. Weinberg that Rep. Jenrette would accept a bribe; yet the "FBI made no attempt to even examine these allegations-much less confirm them." [Id. at 11) Further, said the defendant, the testimony of Mr. Weinberg's supervisor, FBI Agent Amoroso, indicated that, absent a tape recording, Agent Amoroso had no way of knowing what Mr. Weinberg said to Mr. Stowe. Thus, “Any attempt to obtain the details of the initial middleman discussions (which may or may not
involve outrageous promises of wealth, jobs, or threats by Wein: berg) is now covered by Amoroso's testimony that he relied strictly
upon Weinberg's word on the initial contacts." [Id. at 13] In addition, claimed Rep. Jenrette, the ABSCAM investigators made very
few written records during the course of the investigation. In fact, 1. "Amoroso testified at trial he made absolutely no notes of his dis
cussions with Weinberg." [Id. at 15) it was therefore Rep. Jenrette's conclusion that "the ABSCAM operation both by design and operation served to frustrate the goals of the judicial process.” (Id. at 19]
Second, Rep. Jenrette contended that the Congressional committees that held hearings on the ABSCAM operation were told by Justice Department officials that certain investigative guidelines and review procedures were used during the investigation when in fact they were not. For example, said the defendant, on March 4, 1980 both FBI Director William Webster and Assistant Attorney General Philip Heyman told the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee that adequate safeguards and guidelines were in place during the ABSCAM investigation to prevent abuses by unscrupulous middlemen. According to Rep. Jenrette, Mr. Heyman told the Subcommittee that one such safeguard was the avoidance of offering excessively high inducements. Rep. Jenrette quoted Mr. Heyman as stating:
The opportunities for illegal activity created in the course
But despite these public assurances, said Rep. Jenrette, “the government's own evidence establishes that the attitude of the undercover operatives was to offer any amount of money that would elicit a commitment.” (Id. at 23] Thus, Agent Amoroso allegedly "told Rep. Jenrette that he could 'name his figure. [Id. More over, “not even Agent Amoroso could testify as to what was promised to Mr. Stowe by Weinberg. Weinberg, not surprisingly, could only recall conversations with Stowe that were tape recorded.” (Id. (transcript citations omitted)] Rep. Jenrette further alleged that contrary to what Mr. Heyman and Mr. Webster told the Subcommittee, the FBI made no independent evaluation of middlemen information regarding Rep. Jenrette's willingness to accept a bribe Rep. Jenrette thus concluded that "the safeguards that the FBI promised Congress either never existed or did not operate in the real world." (Id. at 26)
Rep. Jenrette's third main argument was that the Justice Department exercised no effective review of the ABSCAM investigation. For example, the Undercover Review Committee, which was composed of officials from the FBI and the Department of Justice, was designed, according to Rep. Jenrette, to ensure that all undercover operations would be carefully planned and conducted. However, since “no written reports [or] oral presentations were given to the committee) ... the committee made no review until after the fact and ... its purpose was informational rather than supervisory." [Id. at 31-32] Equally alarming, argued Rep. Jenrette, was the fact that Mr. Weinberg was the de facto leader of the operation: "Even Agent Amoroso admitted at the trial that he had no way of knowing what Weinberg was proposing to middlemen, and that Weinberg was unsupervised a good portion of the time." [Id. at 34, transcript citations omitted) In support of his argument that Mr. Weinberg was the leader of the investigation, Rep. Jenrette made several points:
One of the most obvious signs of Weinberg's dominance of the operation is his salary. Even Mr. Amoroso admitted at trial that $133,000.00 over an 18 month-period was considerably more that he, as Weinberg's FBI supervisor earned. This figure, later amended by post-trial government disclosures, did not include “expenses” which could be at best termed generous.
Even more suspect is how the FBI reacted to Weinberg's salary. Anthony Amoroso, who after one meeting, recommended a salary increase from $1,000 to $3,000 per month, claimed at trial to know nothing about Weinberg's salary . . . Thus it is interesting to note that when Amoroso and Weinberg first met the only thing they discussed (other than Weinberg's boyhood) was Weinberg's salary.
The second indication of Weinberg's role as a leader in the operation can be found in the deference paid to Weinberg's style of operation. As the incident between Agent Good and Messrs. Plaza-Weir demonstrates, the FBI was
7 In his memorandum, Rep. Jenrette claimed that FBI Agent John Good, who was Agent Amoroso's supervisor, prevented Assistant U.S. Attorneys Plaza and Weir from questioning Mr. Weinberg.
far more concerned with Weinberg's ruffled feathers than an inquiry into the truth. Moreover, even other FBI agents were not allowed to interview Weinberg for fear of upsetting him.
This deferential attitude goes a long way in explaining the complete trust put in Weinberg's judgments. It also supplies the background as to why nothing was done to correct Weinberg's obvious failings as an investigator. Thus, when Amoroso testified that Weinberg did not turn tapes over to the FBI as soon as they were made because Weinberg himself did not "feel the need” to do so, the inability to control becomes clear. (Id. at 40-41 (transcript ci
tations and footnotes omitted)] In this same vein, Rep. Jenrette stated:
When Mr. Puccio 8 testified that he could not attribute any of his initial information to anyone other than Weinberg, the danger of Weinberg the con-man is clearly present. The fact that Weinberg was compensated partially by bonus should raise further doubts. Added to this equation is the fact that no one checked any of the rumors supplied by Weinberg. Thus one reaches inevitable conclusion that Weinberg had substantially more control over the operation than did most of the employees of the Department of Justice. The possibility of such control being vested in Melvin Weinberg is outrageous. The decision to permit such control is not only outrageous government conduct but inexcusable neglect of the duty of law enforcement.
[Id. at 36-37 (transcript citations and footnotes omitted)] Rep. Jenrette's fourth point was that the Government's failure to monitor the ABSCAM investigation resulted in numerous investigative irregularities. One such alleged irregularity involved the FBI's informant file on Mr. Weinberg, which in Rep. Jenrette's view was "but a bare skeleton of what it should have been.” [Id. at 45] The chief of the FBI's Informant Unit, said Rep. Jenrette, "testified that a 137 [informant) file should contain the following items which apparently ... were not present: a 302 of any instructions given to an informant; a memo reflecting the fact the informant had been instructed on the elements of entrapment; and regular written informant reviews.” [Id. at 46] Rep. Jenrette concluded that these omissions indicated that the Government "deliberately elected to violate its own precedent and refused to generate any material for the 137 file which could serve as a check on Mr. Weinberg's veracity." (Id.] Next, Rep. Jenrette claimed that no one involved in the investigation ever attempted to recover, or learn the contents of, three tapes stolen from Mr. Weinberg's suitcase at an airport in January 1980. Finally, the defendant stated that despite the fact that the FBI's Operations Manual requires FBI agents to record investigative notes on a Form 302 whenever an interview with a prospective witness or suspect may become the subject of
* Thomas P. Puccio, Attorney-in-Charge of the Justice Department's Organized Crime Strike Porce for the Eastern District of New York, prosecuted the ABSCAM cases involving CongressDen Myers, Lederer, Murphy, and Thompson.