for his performance." [Id. at 52] However, said the Government, "In no case that we know has a court overturned a jury's verdict on the basis of the 'unsavoriness' of the Government informant." [Id.] The Government further stated that neither Federal statutory law nor judicial case law places any limit on how much the Government can pay an informant. At any rate, said the Government, Mr. Weinberg's fee was reasonable. Moreover, Mr. Weinberg's method of operation was consistent with the way informants normally operate: Typically, informants are "sent out on the street" to generate activity in an area of law enforcement interest. The "junkie" informant or the informant looking for illegal arms will let it be known that he is looking for a buy. Weinberg, at the outset of the investigation, merely let it be known that he had wealthy employers who were looking for "investments" and later that his employers might be in need of private immigration bills. Again typically, the informant returns to the government with intelligence that he has picked up that the government then uses to shape the course of its investigation. The government necessarily relies on the judgment of its informant, who receives a mass of information "on the street" and transmits to the government what he chooses to transmit. The FBI's use of Weinberg did nothing more than follow this typical pattern. He had contact with many, many people in the early stages of the investigation. The FBI relied on him to advise them if the proposals he received had the potential to lead to criminal activity. With Weinberg, and unlike many informants, the FBI checked his recommendations with the many tapes he produced. It was not just Weinberg's opinion the FBI had when deciding how to view a middleman during the investigation. In most instances, and certainly with Stowe, they had the middleman's own representations on tape to use to help to decide how best to proceed. [Id. at 53-54] After explaining that Mr. Weinberg was never allowed to take any significant investigative step without prior approval by the FBI, the Government stated that the important question was whether "anything significant [would] have occurred differently in this case had Weinberg been supervised every minute of the day and been given no discretion at all." [Id. at 55] Obviously, said the Government, the answer was "No." Thus, Mr. Weinberg's supervision "affected none of the legally significant acts of the defendants and this fact is a bar to relief for the defendants on this issue." [Id.] Next, the Government responded to Rep. Jenrette's allegation that the Government's failure to monitor the ABSCAM investigation resulted in numerous investigative irregularities. Although the Government denied that any significant investigative violations occurred, it took the position that even assuming, arguendo, that such violations did occur, "the infractions of in-house rules by the FBI or Justice. . . cannot justify dismissal of an indictment unless they amount to constitutional violations. United States v. Caceres, 440 U.S. 741 (1979)." [Id. at 55] Furthermore, claimed the Government, "not only do the claimed infractions need to rise to constitutional dimensions for relief, they must also violate the constitutional rights of the defendants. United States v. Payner, supra: United States v. Morrison, supra." [Id. at 56-57] Using these tests, asserted the Government, it was clear that Rep. Jenrette's arguments lacked merit: A showing that Weinberg could have been better supervised in 1978 or that Amoroso should have made a 302 on a particular occasion serves the defendants not at all unless they show real, not hypothetical, prejudice to themselves. Since there is not a hint of evidence in the record that any constitutional right of either defendant was violated or that any procedure in the investigation resulted in the production of unreliable evidence that was used against the defendants, their effort to raise the banner of alleged violation of in-house rules, regulations and guidelines must prove unavailing. [Id. at 57] With respect to Rep. Jenrette's claims regarding the stolen tapes and the Government's alleged decision not to establish a paper trail, the Government asserted that Rep. Jenrette made "no credible showing that something not produced redounded to [his] detriment." [Id. at 66] With respect to Rep. Jenrette's claim that agents Amoroso and Good purposely failed to take notes, the Government said, "It is true that there were many meetings within the Justice Department during the Abscam investigation wherein Justice personnel. . . took no notes. We submit that it is totally unrealistic to expect that they would take notes on such occasions and totally incorrect to suggest that they had a legal obligation to do so." [Id. at 63] With respect to the missing tapes the Government said: We realize, of course, that the lost airport tapes immedi- the degree of negligence or bad faith involved, the impor- 439 F.2d at 653. There is no evidence that the three or four lost tapes were willfully destroyed. The view of the tapes most favorable to the defense is that the government transported the tapes from Florida to New York in a negligent manner and that when the government learned of the loss and learned from Weinberg that the contents of the tapes were insignificant, its investigation into the loss was perfunctory. The circumstances of the loss and the government's response cannot obscure (1) the fact that there is no credible evidence that the lost tapes had anything to do with the defendants; and (2) the overwhelming evidence of guilt adduced at trial. There is much authority that if the government loses evidence inadvertently, sanctions will rarely be imposed, especially where evidence of guilt is strong. See e.g., United States v. Bundy, 472 F.2d 1266 (D.C. Cir. 1972); United States v. Miranda, 526 F.2d 1319 (2d Cir. 1975); Armstrong v. Collier, 536 F.2d 72 (5th Cir. 1976); United States v. Maynard, 476 F.2d 1170 (D.C. Cir. 1973); United States v. Harrison, 524 F.2d 421 (D.C. Cir. 1975). [Id. at 65-66] Turning next to Rep. Jenrette's allegations regarding violations of numerous Federal statutes, the Government asserted by December 1979, when Rep. Jenrette accepted the bribe, "the Abscam operation was in conflict with none of the laws cited in the Harmon document." [Id. at 70] On September 11, 1981, Rep. Jenrette filed a reply memorandum reiterating many of his previous allegations regarding the "outrageous" conduct of the Abscam investigators. On September 22, 1981, Rep. Jenrette's motion to dismiss on the basis of Government overreaching was taken under advisement. Status-The case is pending in the U.S. District Court for the District of Columbia. The court has not yet issued its decision on Rep. Jenrette's motion to dismiss. United States v. Myers No. 81-1342 (2d Cir.) On May 27, 1980, U.S. Representative Michael O. Myers of Pennsylvania was indicted by a Federal grand jury in the U.S. District Court for the Eastern District of New York. Indicted with Rep. Myers were Angelo J. Errichetti, the Mayor of Camden, New Jersey and a member of the New Jersey State Senate; Howard L. Criden, a Philadelphia attorney; and Louis C. Johanson, a member of the Philadelphia City Council and a member of Mr. Criden's law firm. [Criminal Case No. 80-00249 (E.D.N.Y.)] Count I of the three count indictment charged the defendants with conspiracy,1 contrary to 18 U.S.C. § 371.2 Specifically, it was alleged that on August 5, 1979 defendant Errichetti met with "Tony DeVito" and Melvin Weinberg and told them that Rep. Myers, in return for cash payments, would assist businessmen from the Middle East to enter and remain in the United States. Purportedly, DeVito and Mr. Weinberg were agents of these foreign businessmen. In reality, however, DeVito was Anthony Amoroso, Jr., a Special Agent of the Federal Bureau of Investigation ("FBI"), and Mr. Weinberg was a private citizen assisting the FBI. Also purportedly serving as agents for the foreign businessmen were "Ernie Poulos" and "Michael Cohen." In reality, however, these individ 1 Specifically, conspiracy to violate 18 U.S.C. § 201 (bribery and fraud). 218 U.S.C. §371 provides: If two or more persons conspire either to to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. uals were Ernest Haridopolos and Michael Wald, respectively, Special Agents of the FBI. Allegedly, on August 22, 1979, defendants Myers and Errichetti has a meeting with Mr. Weinberg and DeVito during which Rep. Myers received $50,000. In return, said Count I, Rep. Myers assured DeVito and Mr. Weinberg that he would introduce in Congress private immigration bills designed to ensure that the foreign businessmen would be allowed to immigrate to the United States. The indictment further claimed that Rep. Myers retained $15,000 of the $50,000 received, and that the remaining $35,000 was divided among defendants Criden, Errichetti, and Johanson. Having understood that he was to receive $50,000, not $15,000, Rep. Myers, said Count I, subsequently demanded an additional $35,000 from Poulos and Cohen as a condition to his rendering immigration assistance to the foreign businessmen. Count II charged that Rep. Myers, by soliciting and receiving payment in return for his promise to provide immigration assistance, committed bribery, contrary to 18 U.S.C. § 201(c).3 The remaining defendants were charged with aiding and abetting Rep. Myers in the commission of bribery. Accordingly, they were charged with criminal liability as principals, pursuant to 18 U.S.C. §2.4 Count III charged that on August 22, 1979 the defendants traveled in interstate commerce (from New Jersey and Pennsylvania to New York) with intent to promote an unlawful activity, to wit, bribery. Such travel was said to violate 18 U.S.C. § 1952 (Travel Act).5 On June 5, 1980, Rep. Myers entered a plea of not guilty to all counts. On July 1, 1980, the Committee on Standards of Official Conduct of the U.S. House of Representatives ("Committee") filed an application for an order authorizing the Department of Justice to disclose to the Committee ABSCAM-related material (except grand jury transcripts) in the custody of the Department or the_grand jury. The application explained that under clause 4(e)(1) of Rule X 318 U.S.C. § 201(c) provides: Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself or for any other person or entity in return for (1) being influenced in his performance of any official act; or (2) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of fraud, on the United States; or (3) being induced to do or omit to any act in violation of his official duty, shall be fined not more than $20,000 or three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States. +18 U.SC. § 2 provides: (a) Whoever commits an offense against the United States or aid, abets, counsels, commands, induces or procures its commision is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. 518 U.S.C. § 1952 provides, in pertinent part: (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to (1) distribute the proceeds of any unlawful activity; or (2) commit any crime of violence to further any unlawful activity; or (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both. of the Rules of the House, the Committee was authorized to investigate alleged violations by Members of their official duties. The Committee also stated that on March 27, 1980, the House adopted Resolution 608 which specifically directed the Committee to conduct a full investigation into the ABSCAM affair and to report any recommendations for disciplinary action to the full House. The Committee further stated that the information sought through the instant application was essential if Congress was to carry out its constitutional function of imposing discipline on its Members. The application concluded by noting that the Committee would take precautions-including requiring Committee Members and Committee counsel to execute confidentiality agreements-to prevent unnecessary or inappropriate disclosures of materials and information received. On July 4, 1980, the Committee's application was granted. On July 10, 1980, Rep. Myers filed a motion to dismiss in which he attacked the indictment on a variety of grounds. It was his belief that the indictment: (1) violated the doctrine of separation of powers and the Speech or Debate Clause of the U.S. Constitution; 6 (2) failed to state an offense; (3) was predicated on an unconstitutional statute, to wit, 18 U.S.C. § 201; and (4) raised political questions and was therefore nonjusticiable. Regarding the first claim, Rep. Myers stated that the grand jury based its indictment of him, in significant part, on documents and other information that were privileged under the Speech or Debate Clause. Specifically, the defendant alleged that Federal law enforcement officials obtained information regarding his past activities regarding private immigration bills from the House Information System ("HIS") and presented this information to the grand jury. Rep. Myers also claimed that four members of his legislative staff, pursuant to subpoenas duces tecum, were ordered to transmit his appointment books, travel logs, and telephone logs to the grand jury, and that apparently the staff members complied. In arguing that this HIS information and the official logs and books reflected instances of legislative acts, and therefore could not constitutionally be scrutinized under the Speech or Debate Clause, Rep. Myers relied heavily on the holding in In Re: Grand Jury Investigation, 587 F.2d 589 (3rd Cir. 1978). Finally, Rep. Myers claimed that it appeared that the grand jury was shown videotapes of him. Allegedly, these videotapes should not have been shown because they "contained references to past legislative acts and the motivation therefor, specific references to speech or debate on the floor of the House of Representatives, and references to numerous acts which are indeed integral parts of the deliberative and communicative process .. [Motion of Michael O. Myers to Dismiss Indictment, July 10, 1980, at 14] Rep. Myers stated that when an indictment has been tainted by a grand jury's consideration of matters protected by the Speech or Debate Clause, the only remedy is dismissal. In support of this contention, Rep. Myers cited the opinion of U.S. District Court Judge Curtis Meanor in United States v. Helstoski. (See page 71 of Court Proceedings and Actions of Vital Interest to the 5 The Speech or Debate Clause provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1] |