court testimony, neither Agent Amoroso nor Agent Good prepared written records of any of the unrecorded telephone calls made by Mr. Weinberg to Mr. Stowe. This failure to take notes, insistec Rep. Jenrette, was not surprising, since the Justice Department had made "a deliberate decision not to establish a 'paper trail.' [Id. at 57]

Rep. Jenrette's fifth argument was that the individuals responsi ble for the investigation violated a number of Federal statutes. Ac cording to Rep. Jenrette, in mid-1978 John Harmon of the Office o Legal Counsel in the Justice Department submitted a memoran dum to the Attorney General in which he expressed his view that the FBI was conducting the ABSCAM investigation in probable vio lation of four Federal statutes: 31 U.S.C. § 484 (imposing on Federal officers a duty to transmit to the U.S. Treasury all monies received for the use of the United States); 18 U.S.C. § 648 (regarding embez zling or depositing funds belonging to the United States); 31 U.S.C § 665(a) (prohibiting officers of the United States from entering intc unauthorized contracts involving the payment of Government funds); and 41 U.S.C. § 11(a) (prohibiting entering into a contract on behalf of the United States without authorization).

Rep. Jenrette's sixth main assertion was that the Government lacked a reasonable basis for bringing him into the ABSCAM inves tigation. In support of this allegation of improper targeting, Rep. Jenrette stated that his reluctance to become involved in undercov er operations prior to ABSCAM, coupled with the fact that "not one government witness has given one factual predicate for suspecting that . . . Rep. Jenrette would do wrong," proved that he "was neither corrupt nor corruptible." [Id. at 73-74]

Rep. Jenrette's July 20th memorandum concluded its discussion of Government overreaching by calling on the court to: either (1) dismiss the indictment on the grounds that it was the product of evidence procured in violation of Rep. Jenrette's due process rights; or (2) grant a new trial at which the evidentiary fruits of the Government's constitutionally impermissible activities would not be introduced into evidence. In support of these requests, Rep. Jenrette stated that the decision in United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978) provided a model for the appropriate inquiry in the present case:

In Twigg the Court reviewed in detail the circumstances reflecting on the fairness of the investigation and prosecution. The Court considered it significant that the government informant approached the defendant with a proposal to manufacture amphetamines, and that the government agent, not the defendant, instigated the allegedly criminal activity. In the present case as well, the criminal activity was instigated by the government and sustained by the middleman at the government's direction. In Twigg, the Court found that there was no preexisting criminal enterprise, as was also the case here. Further, the defendant in Twigg was "lawfully and peacefully minding his own affairs," when the "conduct of the government agents... generated new crimes merely for the sake of pressing criminal charges against him." Id. at 381. The

same was true of Messrs. Jenrette and Stowe here. In fact, unlike the defendant in Twigg, neither Jenrette nor Stowe had any prior criminal involvement that raised any suspicion of corruptibility. Finally, the government agents in Twigg provided the idea for the crime, the location for the activities, and the money for the operations. Again, the same is true here. [Id. at 79]

Having concluded his arguments on the subject of overreaching, Rep. Jenrette, in his July 20th memorandum, proceeded to address the issue of entrapment. Quite simply, Rep. Jenrette stated that a review of the complete record established, as a matter of law, that the undercover operation entrapped him. Although the entrapment issue had been presented to the jury for its consideration, said the defendant, Judge Fullam's decision in United States v. Jannotti, 501 F.Supp. 1182 (E.D. Pa. 1980) demonstrated that the issue could be resolved by the court as a legal matter even in the face of a jury verdict adverse to the defendant. In the instant case, continued Rep. Jenrette, a finding of entrapment was necessary for two reasons. First, the Government had failed to show beyond a reasonable doubt that he was predisposed to commit any of the charged offenses. Second, it was impermissible for the Government to attempt repeatedly to induce him to commit a crime. On this second point Rep. Jenrette claimed that the undercover operation attempted to induce him to commit a crime on four different occasions. His position was that "the government, after the first three attempts proved unsuccessful, cannot be permitted to base a prosecution upon a complete fourth attempt." [Id. at 98] In support of this contention, Rep. Jenrette cited two cases which he relied on to support his July 14, 1980 motion to dismiss: United States v. Archer, supra, and Hampton v. United States, supra.

On August 31, 1981, the Government filed a memorandum in opposition to Rep. Jenrette's motions to dismiss and for a new trial. The Government's memorandum began with a detailed description of the history of the ABSCAM investigation, and more particularly, the investigation of Rep. Jenrette."

Next, the Government addressed Rep. Jenrette's claims regarding entrapment. Quoting Sherman v. United States, 356 U.S. 364, 372 (1932) the Government claimed that 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." [Government's Memorandum in Opposition to Defendants' Motions To Dismiss and Motion for a New Trial, August 31, 1981, at 25] Thus, said the Government, for entrapment to be established: (1) the Government must originate the crime and induce the defendant to commit it; and (2) the defendant must be an innocent person who would not have committed a crime of this sort had he not been thus induced. In United States v. Burkley, 591 F.2d 903 (D.C. Cir. 1978), continued the Government, the court made it clear that a "solicitation, request, or approach

* Portions of this material are printed in Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981, beginning at page 521.

by law enforcement officials to engage in criminal activity, standing alone, is not an inducement." " [Id. at 26, quoting Burkley at 913] In any event, said the Government, the question of inducement rested on disputed facts, and thus was properly submitted to the jury for its resolution.

With respect to predisposition, the Government asserted that:

[I]t is clear that the government can rely on a variety of factors to meet its burden, including proof of prior and subsequent similar criminal acts by the defendants. It is also perfectly proper for the government to prove predisposition by relying exclusively on evidence that demonstrates a willingness on the part of the defendants to commit the crimes charged by their ready response to the inducement. Burkley at 916. Both defendants pay lip service to this familiar law but seem to have difficulty accepting the fact that all the government need to have proved to establish that they were sufficiently predisposed was their willing and eager response to the government's offer. [Id. at 27] The Government then proceeded to compare the evidence of predisposition presented to the jury in the Burkley case with the evidence of predisposition presented to the jury in the instant case:

In Burkley, the court enumerated the facts that demonstrated that the defendant was predisposed to twice sell drugs to an undercover agent:

"(1) the defendant was initially willing to discuss the possibility of a narcotics transaction with the undercover agent;

"(2) the defendant voluntarily remained in contact with the agent; and

"(3) the defendant subsequently initiated a second sale
to the agent two months after the first sale."

The predisposition evidence in this case is a striking paral-
lel to the facts upheld in Burkley. The videotapes reveal
that both Jenrette and Stowe were initially willing to dis-
cuss the receipt of a bribe at the December 4, 1979 meet-
ing. Stowe exhibited absolutely no qualms about receiving
money for his friend's official acts. Indeed, he literally had
to be dissuaded several times by Amoroso from coming
prematurely to the townhouse to pick up the cash. Jen-
rette came to the townhouse knowing that money would
be offered to him in return for a legislative act. Jenrette's
only hesitation in accepting the offer was that he wanted
insulation from the actual passage of money. He "solved"
this problem by utilizing Stowe as the "bagman" to handle
the money. This "solution," his statement that "I've got
larceny in my blood," his concern about the serial num-
bers on the $100 bills being traceable, and his assumption
that he was dealing with criminals evince his ready re-
sponse to the government inducement. There can be no
doubt that each defendant "readily responded to the op-
portunity furnished by the . . . agents to commit the for-

bidden acts for which he is charged." United States v. Hansford, 303 F.2d 219, 222 (D.C. Cir. 1962). [Id. at 28]

The Government concluded its discussion of entrapment by asserting that a court's power to overturn a jury's finding that no entrapment occurred was very limited. Citing United States v. Spain, 536 F.2d 170, 173 (7th Cir. 1976), the Government stated that entrapment as a matter of law is established only when the absence of predisposition appears from uncontradicted evidence. Having failed to meet this test, and having been "captured on tape flagrantly talking about, encouraging, and committing serious criminal acts," Rep. Jenrette and Mr. Stowe "merited only guilty verdicts, not a finding of entrapment as a matter of law." [Id. at 29] With respect to overreaching (the so-called "due process defense"), the Government stated that the two key U.S. Supreme Court cases on overreaching, United States v. Russell, supra, and Hampton v. United States, supra, neither firmly established the existence of a due process defense nor clarified the boundaries and limitations of any such defense. In any event, continued the Government, even if the due process defense were to be recognized, it would be confined to the most outrageous Government conduct, "marked by a flagrant disregard for common decency and individual rights." [Id. at 34] Next, the Government discussed several "due process" cases, including United States v. Johnson, 565 F.2d 179 (1st Cir. 1977); United States v. Ordner, 554 F.2d 24 (2d Cir. 1976) cert. denied, 434 U.S. 824 (1977); United States v. Quintana, 508 F.2d 867 (7th Cir. 1975); United States v. Reynoso-Ulloa, 548 F.2d 1329 (9th Cir. 1977); and United States v. Quinn, 543 F.2d 640 (8th Cir. 1976). These cases, and especially United States v. Leja, 563 F.2d 244 (6th Cir. 1977), made it clear, claimed the Government, that the only circuit court case in which the due process defense prevailed, United States v. Twigg, supra, was "an aberration from the usual judicial view of the due process defense." [Id. at 38 (footnote omitted)]

The Government concluded its preliminary discussion of overreaching by asserting that under United States v. Payner, 447 U.S. 727 (1980) and United States v. Morrison, 449 U.S. 361 (1981) it was clear that:

[n]o relief on due process grounds is available to a defendant without a showing of government conduct that violated his constitutional rights and prejudiced him at trial. That is, Payner and Morrison are a complete bar to relief for a defendant who can only establish that another's. rights were violated during an investigation. [Id. at 39] Turning to Rep. Jenrette's specific charges of overreaching, the Government began with a discussion of Rep. Jenrette's allegation of improper targeting. The Government argued, as it had in its September 12, 1980 memorandum on entrapment, that "it is entirely permissible for Government undercover agents to initiate criminal activity even when there is no reason to believe that the defendant had been engaged in wrongdoing in the past." [Id. at 41] In support of this assertion the Government cited United States v. Swets, 563 F.2d 989 (10th Cir. 1977); United States v. Martinez, 488

F.2d 1088 (9th Cir. 1973); United States v. Jenkins, 480 F.2d 1198 (5th Cir. 1973); United States v. Silver, 457 F.2d 1217 (3rd Cir. 1972); and United States v. Rodrigues, 433 F.2d 760 (1st Cir. 1970). However, continued the Government, even if the court were to hold that the ABSCAM investigators had to have had a reasonable suspicion that Rep. Jenrette would commit a crime before approaching him, the "reasonable suspicion" standard was easily met:

The prior and ongoing investigation lent weight to Stowe's
representations about Jenrette. Stowe's representations
about Jenrette's willingness to engage in bribery were
timely and specific. Indeed, no bribe offer was authorized
by the government until Stowe confirmed that Jenrette
knew the details of the bribery arrangement and had
agreed to be a willing participant. Stowe's confirmation
was corroborated by Jenrette's behavior at the beginning
of the December 4 meeting, before any money was offered.
For Jenrette too, there was an overwhelming likelihood
before the bribe was offered that he would be responsive to
the criminal approach.10 [Id. at 47]

Next, the Government addressed Rep. Jenrette's assertions concerning excessive inducements. It seemed, said the Government, that Rep. Jenrette was taking "the anomalous position that public officials can be prosecuted for taking small bribes, but not for taking large ones." [Id. at 48-49] In any event, said the Government, U.S. District Court Judge George Pratt, who on July 24, 1981 rejected the due process claims of the ABSCAM defendants in New York, had persuasively explained why the sizes of the bribes offered to the ABSCAM defendants were not excessive, and perhaps not even relevant. (Judge Pratt's July 24th memorandum is printed at page 419 of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.)

The Government next addressed Rep. Jenrette's allegations concerning Justice Department review and control of the investigation. First, with respect to the Undercover Review Committee, the Government maintained that this body was created in the summer of 1979 to pass upon proposed future operations, and therefore had no responsibility with respect to the ABSCAM investigation which began before mid-1979. Turning to Rep. Jenrette's claim that Mr. Weinberg was the de facto leader of ABSCAM, the Government openly admitted that "Weinberg was, simply stated, a crook who got caught and who sought to mitigate his troubles by working for the FBI. He worked effectively and the Government paid him well

10 According to the Government's memorandum (at p. 46), by December 4, 1979, the day Rep. Jenrette was offered a urine, the FBI knew the following about him:

1. That he was associated with Mr. Stowe;

2. That Mr. Stowe had said that Rep. Jenrette was willing to engage in an illegal deal involving certificates of deposit;

3. That he had been the subject of a land fraud/bank fraud investigation in South Carolina;

4. That he was then the subject of a drug smuggling investigation, an obstruction of justice investigation, and other investigations involving false travel vouchers to Congress and illegal campaign contributions;

5. That Mr. Stowe had repeatedly represented that Rep. Jenrette knew of the bribe offer and would be a willing participant; and

6. That when Rep. Jenrette first came to the townhouse, he talked freely about the 'immigration problem.'