ities, administrators in the Executive Branch and ultimately law-makers in the Legislative Branch. In Brewster the Supreme Court pointed out that if that decision underestimated "the potential for harassment, the Congress, of course, is free to exempt its Members from the ambit of Federal bribery laws." 408 U.S. at 524. By the same token, if the risks of a bribery sting operation outweigh its benefits, Congress always has the power to make the more limited modification of redefining the offense to exclude, in the case of Members of Congress or others, acceptance of bribes offered by undercover agents of the Government. With the policy choice thus fully within the control of Congress, we cannot conclude that the separation of powers doctrine creates a constitutional barrier to the law enforcement technique selected by the Executive Branch.9 * Appellant also seeks to bolster his challenge to a bribery sting operation by contending that a prosecution founded on this technique presents a political question inappropriate for the Judicial Branch. This is simply another way of characterizing the public policy issues that are available for resolution by Congress. [Id. at 939] Further, the court held that the legislative history of section 201 failed to show that Congress did not intend to allow the statute to be used when Government agents establish fictitious undercover operations that ensnare Members of Congress. Regarding Rep. Myers' claim that the references to legislative acts in the indictment rendered the indictment invalid, the court stated that such references were made "for the entirely permissible purpose of detailing the nature of the corrupt promise allegedly made." [Id. at 937] This indictment, said the court, "contemplates no inquiry into the taking of any legislative action or the motivation for it." [Id.] Rep. Myers' argument that the indictment presented a nonjusticiable political question was disposed of by the court in its discussion of the public policy issues inherent in deciding whether undercover agents should be allowed to entice Members of Congress to accept bribes. [See footnote 9, quoted above.] On October 10, 1980, Rep. Myers filed a petition for writ of certiorari with the U.S. Supreme Court. [No. 80-527] The petition was denied on November 6, 1980. [449 U.S. 826] On July 10, 1980 (the same day he filed his original motion_to dismiss the indictment on a variety of grounds), Rep. Myers also filed a motion to dismiss on the grounds of prejudicial pre-indictment publicity and Government misconduct. Regarding publicity, he alleged that top officials of the Justice Department and the FBI, as well as members of the United States Attorney's Office and other members of the Government involved with ABSCAM, had publicly discussed such matters as: (1) the relative strength of the Government's case; (2) the character, motivation, and guilt of the defendant; (3) the rulings a judge should make on various legal issues, such as the entrapment defense; (4) the legality of the investigative procedures used; and (5) the proper interpretation of the videotapes. Rep. Myers relied on Berger v. United States, 295 U.S. 78 (1934) in arguing that this pretrial publicity would deny him his due process right to a fair trial, and that the indictment therefore should be dismissed. Regarding Government misconduct, Rep. Myers stated that the Government violated both Rule 6(e) of the Federal Rules of Criminal Procedure and Justice Department regulations (28 CFR § 50.2) by disclosing publicly matters occurring before the grand jury. These disclosures allegedly involved: (1) detailed descriptions of videotapes which were to be shown to the grand jury; (2) the dates when indictments were expected; and (3) the charges expected to be contained in the indictment. Rep. Myers further asserted that these actions by the Government may have well violated two Federal statutes: 5 U.S.C. § 552a[b] (the Privacy Act) and 18 U.S.C. § 1501 (obstruction of justice). He concluded by calling upon the court to demonstrate its intolerance of the Government's conduct by exercising its supervisory power to dismiss the indictment. On August 7, 1980, Rep. Myers' motion to dismiss on the grounds of prejudicial pre-indictment publicity and Government misconduct was denied. In an opinion accompanying the order, Judge Mishler noted that the conduct of the Government officers who disclosed information of the investigation was "grossly improper and possibly illegal." [United States v. Myers, Cr. No. 80-00249 (E.D.N.Y.) Memorandum of Decision and Order, August 7, 1980, at 7] Nevertheless, Judge Mishler held that neither the Fifth Amendment nor any requirement that the judiciary oversee the proper administration of criminal justice mandated dismissal of the indictment. Turning to Rep. Myers' Fifth Amendment claim, Judge Mishler stated that he knew of no case in which an indictment had been dismissed upon the ground that the grand jury was prejudiced by pre-indictment publicity. Moreover, said Judge Mishler, in order to prevail on his Fifth Amendment argument, Rep. Myers would have to bear a heavy burden of demonstrating that he suffered actual prejudice as a result of the publicity. In so holding, Judge Mishler recognized that in United States v. Sweig, 316 F. Supp. 1148 (S.D.N.Y. 1970), aff'd 441 F.2d 114 (2d Cir. 1970). Judge Frankel suggested, in dicta, that Government generated pre-indictment publicity could warrant dismissal even without a showing of actual prejudice. Judge Mishler, however, held that because "other measures are available to deter and punish prosecutorial conduct, . . . it would be inappropriate to give the defendants a 'windfall' by dismissing the indictment simply because some unidentified and possibly low-level member of the prosecutor's office failed to adhere to his duty." [Id. at 13] In coming to this conclusion, Judge Mishler relied on United States v. Stanford, 589 F.2d 299 (7th Cir. 1978), cert. denied, 440 U.S. 983 (1979). The court turned next to Rep. Myers' claim that the indictment should be dismissed pursuant to the court's supervisory power to discourage Government misconduct. Judge Mishler began by stating that courts undoubtedly have supervisory authority over the administration of justice, but that this authority must be invoked with extreme care. He called dismissal of an indictment an "extreme sanction" and stated that under United States v. Fields, 592 F.2d 638, 647 (2d Cir. 1978), cert. denied, 442 U.S. 917 (1979) dismissal is warranted only to achieve one or both of two objectives: First, to eliminate prejudice to a defendant in a criminal prosecution; second, to help to translate the assurances of the United States Attorneys into consistent performances by their assistants. As to the first situation described in Fields, Judge Mishler stated that Rep. Myers had failed to show actual prejudice. As to whether dismissal would "help to translate assurances by the United States Attorneys into consistent performances by their assistants," Judge Mishler held that it would not. He stated that the Fields court had been referring to situations such as those exemplified by United States v. Estepa, 471 F.2d 1132 (2d cir. 1972)-a case in which an indictment was dismissed because the prosecutor had failed to heed repeated warnings by the court not to use hearsay evidence before the grand jury. In the present case, said Judge Mishler, this pattern of constant disregard of court directives was absent. Further, the present case did not fall within the ambit of Fields because here the Attorney General, by instituting an investigation of the disclosures and publicly promising to deal severely with the guilty employees, would provide any necessary deterrence against future Government misconduct. Also on July 10, 1980, Rep. Myers moved to dismiss the indictment on the ground that the manner in which the Government conceived of and conducted its investigation was so outrageous and offensive as to constitute a violation of Rep. Myers' due process rights. In support of this charge of Government overreaching, Rep. Myers charged that ABSCAM involved gross improprieties and outright illegalities on the part of FBI agents and Department of Justice personnel. According to the defendant, the Government created a criminal enterprise known as Abdul Enterprises, Inc., whose purpose was originally to uncover those dealing in contraband and stolen property, but which soon turned to luring political targets into a carefully orchestrated scheme of deceit and bribery. These political targets, moreover, were not chosen because of any suspicion that they were involved in criminal activity. Nevertheless, they were enticed to attend meetings with Government undercover agents posing as representatives of an Arab sheik anxious to invest his wealth in legitimate business enterprises in the target's political locale. Once in attendance, the defendant contended, he was lied to and maneuvered into compromising positions through a carefully developed plan in which calculated questions led imperceptibly to illicit activity. Moreover, said Rep. Myers, the sordid scheme was made even more reprehensible by the very presence of Government attorneys at or near the sites of these meetings, who saw to it, through continuing surreptitious communication with the undercover operatives, that Federal jurisdiction was "manufactured." The defendant also charged that in the course of its investigation the Government, in order to protect its undercover operation, violated numerous state and Federal laws, as well as the internal regulations and policies of the FBI and the Department of Justice. For example, it was alleged that Government agents filed false affidavits with a Federal court; allowed one of their undercover opera tives to use Abdul Enterprises in order to swindle numerous businessmen; illegally established a front organization and filed false statements with Federal agencies; introduced misrepresentations into the banking system by creating a bogus account; and obtained a lease on a townhouse in Washington, D.C. by resorting to false pretenses. The defendant concluded that these systematic abuses by law enforcement authorities, culminating in the instant indictment, were unprecedented in scale. The only way to maintain the integrity of the judicial process, concluded Rep. Myers, would be to dismiss the instant indictment. On August 7, 1980, Judge Mishler filed a memorandum and order addressing Rep. Myers' claims of Government overreaching. The Judge began by pointing out that Rep. Myers was not raising an entrapment defense. He also noted that Federal courts do have the power to preclude a criminal prosecution because of Government misconduct. The court would entertain Rep. Myers' motion, said the Judge, but not before trial as he had requested. Because the defendant was challenging almost every facet of the investigation, the court concluded that a pre-trial hearing would unduly delay the trial. Further, said Judge Mishler, the publicity that would undoubtedly surround such a pre-trial hearing would make it difficult to select an unbiased jury. Accordingly, the court reserved ruling on Rep. Myer's motion until the conclusion of the Government's case at which point hearings on the matter would be conducted if necessary. On August 8, 1980, the case was transferred from Judge Mishler to Judge George Pratt. On August 11, 1980, Rep. Myers' trial began. On August 29, 1980, Rep. Myers was found guilty on all three counts (as were the other defendants). Hearings on Rep. Myers' motion to dismiss on the grounds of Government overreaching began on January 12, 1981. These "due process" hearings concluded on February 16, 1981. On March 24, 1981, Rep. Myers filed a memorandum in support of his motion to dismiss on the ground of overreaching. In this memorandum, he also alleged that he had been entrapped. On May 1, 1981 the Government filed a memorandum in response. On July 24, 1981, Judge Pratt issued an order and memorandum in which Rep. Meyers' motion to dismiss was denied. In his 136 page memorandum Judge Pratt began his discussion of the Myers case by outlining the claims Rep. Myers had made in his post-trial motion: The four defendants in Myers have filed joint briefs in support of all post-trial motions and thus their arguments are referred to collectively. The Myers defendants essentially claim that the Abscam investigation did not uncover criminal conduct, but instead created or instigated any criminality that may be present, and that improper delegation of authority, lack of supervision, inadequate documentation and the reward system used by the government created such doubt as to the truth, reliability and integrity of the verdict as to require dismissal of the indictments. The Myers defendants urge, in effect, that notwithstanding their failure to claim entrapment at the trial, they are not More particularly, the Myers defendants argue that the government did not infiltrate or uncover ongoing criminal activity, but instead created such activity; that the government offered overwhelming inducements to the Myers defendants; that Abscam was conducted without adequate safeguards, particularly with respect to supervision of Weinberg; that the techniques employed by the government in Abscam were "outrageous" within the meaning of Hampton v. United States, 425 U.S. 484 (1976); that there was entrapment as a matter of law; that the compensation of Weinberg as an informant is unconstitutional; that it is improper to undertake a general investigation into the corruptibility of members of a particular branch of government without some "well-grounded basis"; that as a matter of constitutional law the "so-called due process defense or objective strand of the entrapment defense" should be available to a defendant subjected to "outrageous governmental investigatory action"; that the destruction, erasure or unexplained loss of tapes requires an inference that the tapes contained exculpatory material; and that in an undercover investigation the verbal assertion by a potential target that he or she desires to act within the law forecloses any further investigation of that individual. [Memorandum and Order, July 24, 1981, at 3132] 8 Next, Judge Pratt outlined the Government's response to Rep. Myers' arguments: The government argues that the ABSCAM investigation in its totality was both appropriate and constitutional, that the rights of none of the defendants were violated by the investigation and that there was no exculpatory evidence withheld from the defense. In the government's view, all of the defendants' "due process" contentions basically fall into two categories, neither of which has validity: governmental "over-involvement" in the creation of criminal activity, and the government's failure to take measures to ensure that innocent people would not be wrongfully ensnared and convicted. The government urges that defendants' claims *Judge Pratt's July 24th order and memorandum was dispositive not only of Rep. Myers' due process claims, but also of the claims of Reps. Lederer, Thompson, and Murphy who raised similar due process issues during their ABSCAM prosecutions. As a result, the Government's response addressed the claims not only of Rep. Myers, but also of Reps. Lederer, Thompson, and Murphy. Further, whenever in Judge Pratt's memorandum reference is made to the "defendants" it should be understood that the court is referring not only to Rep. Myers and those indicted with him, but also to all the defendants in the Lederer, Murphy, and Thompson ABSCAM cases. |