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"cannot be considered in the abstract, for the facts as de-
veloped at the trials reveals (sic) a collection of unscrupu-
lous public officials who were never “victimized” by the in-
formant or the intermediaries and whose guilt was clear
because they were clearly guilty, not because they had
been manipulated to appear in compromising positions
before the cameras.”—Government's memorandum at 1.

The government further argues that the Abscam investi-
gation was pursued in good faith and conducted profession-
ally in view of the circumstances, that no right of any de-
fendant was infringed and, finally, that whether an oper-
ation such as Abscam is “good” or “bad” is a matter to be
decided initially by the executive branch of our govern-
ment, subject to legislation by Congress, but does not pres-
ent judicial questions under the due process clause. (Id. at

35-36] The court then proceeded to group the defendant's challenges into two categories: general and specific. The court found that there were six general challenges, the first of which was that "the indictment should be dismissed because the Abscam investigation did not uncover criminal conduct, but instead created and instigated it." [Id. at 49] Before addressing the merits of this contention, Judge Pratt discussed at length the law of entrapment:

Much of the judicial discussion of these questions has focused on the ideas generally encompassed in the concept "entrapment". Although virtually all judges have agreed that an innocent person who was "entrapped" by government agents into committing a criminal act should not be convicted, there is less agreement on the proper principles underlying the concept of entrapment and on what factors do or do not constitute entrapment.

Under the so-called “subjective” approach to the defense of entrapment, two factors must be considered: Was the defendant's criminal conduct "induced" by the government agent? If it was, was the defendant "predisposed” to commit the crime? This subjective approach focuses upon the conduct and propensities of the particular defendant in each case. It is for the jury to determine, first, whether there is sufficient evidence of "inducement' and, if so, whether the government has proven beyond a reasonable doubt that the defendant was “predisposed”. In theory, the subjective approach to entrapment is grounded in legislative intent: if an otherwise innocent person was entrapped by a government agent into performing a criminal act, the legislature never intended that his conduct be punished. Sorrells v. U.S., 287 U.S. 435 (1932); U.S. v. Russell, 411 U.S. 423 (1973).

“Objective” entrapment is a term applied to either of two different concepts. Under one view of "objective" entrapment the focus is not upon the propensities and predispositions of the individual defendant, but instead upon an objective standard of “persons who would normally avoid crime and through self-struggle resist ordinary tempta

tions", Sherman v. U.S., 356 U.S. 369, 384 (Frankfurter, J., concurring), in order to determine whether the induce ment tendered by the government agent was unacceptable.

The second view of objective" entrapment focuses upon the conduct of the government agents in each particular case to determine whether that conduct "falls below standards, to which common feelings respond, for the proper use of governmental power”. U.S. v. Russell, 411 U.S. at 441, (Steward, J., dissenting). However, and despite eloquent arguments in several dissenting and concurring opinions, Sorrells, 287 U.S. 435; Sherman, 356 U.S. 369, Russell, 411 U.S.; and Hampton, 425 U.S. 486, the "objective” approach to entrapment has never been accepted by any majority of the Supreme Court.

Some confusion has arisen because "objective" entrapment, the view that over-involvement of the government in the commission of a crime requires dismissal of an indictment, has also been called "entrapment as a matter of law”. Further semantic confusion has arisen, however, because the term "entrapment as a matter of law” has also been applied to a situation where, on the evidence presented, no jury could find beyond a reasonable doubt, that the defendant was predisposed to commit the crime that was induced by the government agents. Sherman v. U.S. 356 U.S. 369; see U.S. v. Jannotti, 501 F. Supp. at 1200. Under that view, "entrapment as a matter of law” simply means that insufficient evidence was presented to warrant the case going to the jury on the issue of defendant's predisposed state of mind.

Entrapment is a difficult, conceptually slippery, and philosphically controversial concept. Ever since Sorrells v. U.S., 287 U.S. 435 (1932), the Supreme Court has divided sharply on the standards to be applied in reviewing the conviction of a person whose criminal conduct was in part facilitated by government agents. In U.S. v. Russell, 411 U.S. 423 (1973), a Supreme Court majority of five claimed to adhere to Sorrells as a precedent of long standing that had already once been reexamined and implicitly reaffirmed in Sherman v. U.S., 356 U.S. 369 (1958). Writing for the court in Russell, Justice Rehnquist pointed out that "since the entrapment defense is not of a constitutional dimension, Congress may address itself to the question and adopt any substantive definition of the defense that it may find desirable." 411 U.S. at 433 (footnote omitted).

Four Supreme Court decisions are central to the issue of entrapment. Sorrells, 287 U.S. 435; Sherman, 356 U.S. 369; Russell, 411 U.S. 423; and Hampton, 425 U.S. 484. Familiarity with the majority, concurring, and dissenting opinions in those decisions is assumed. From those decisions as a whole it appears that the "objective” view of entrapment as espoused by Justice Brennan in Hampton has never been accepted by a majority of the Supreme Court. The "subjective" view has been adopted in Sorrells, Sherman, and Russell and appears to be still acceptable to a present

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majority of the current Supreme Court bench, at least in most cases, where a defendant's predisposition has been established.

Hampton presents a more complex picture. There, three justices voted to solidify the subjective approach so that under no circumstances, regardless of how egregious the governmental conduct, could a defendant who was found by a jury to have been predisposed to commit the crime have the indictment dismissed for governmental misconduct. 425 U.S. 484. Three other justices believed that the circumstances showed that governmental officials had purposefully created the crime in Hampton and that such creative activity by governmental officials required dismissal despite defendant's predisposition to commit the crime. 425 U.S. at 495 (Brennan, J. dissenting). Two other justices in an opinion written by Justice Powell found that Hampton was controlled by Russell, that Hampton had not even raised the issue of predisposition, and that his entrapment defense, therefore, failed for lack of proof. 425 U.S. at 490 (Powell, J., concurring). Justice Powell declined, however, to close the door entirely upon the possibility of court intervention in an extreme case. He refused to accept the premise “that, no matter what the circumstances, neither due process principles nor [the Supreme Court's] supervisory power could support a bar to conviction in any case where the Government is able to prove predisposition.” 425 U.S. at 495. In footnote, Justice Powell added:

I emphasize that the cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction. This would be especially difficult to show with respect to contraband offenses which are so difficult to detect in the absence of undercover Government involvement. One cannot easily exaggerate the problems confronted by law enforcement authorities in dealing effectively with

expanding narcotics traffic * which is one of the major contributing causes of escalating crime in our cities. Enforcement officials, therefore, must be allowed flexibility adequate to counter effectively such criminal activity.

425 U.S. at 496 n. 7 (citations omitted). Thus as the Court divided in Hampton, with Justice Stevens taking no part: three judges would make predisposition the only issue; three judges would eliminate predisposition entirely; and the decisive two concurring votes, expressed in Justice Powell's opinion, indicate that predisposition is not only relevant but will be dispositive in all but the "rare" case where police over-involvement in the crime reaches "a demonstrable level of outrageousness”. Since Hampton had been predisposed, and since the police

an

involvement in his crime was not "outrageous”, his conviction was affirmed. The three dissenting judges would eliminate consideration of predisposition entirely and would instead devote their attention only to governmental misconduct. While they would prefer to be more restrictive of permissible governmental involvement in crime than Justice Powell's test of "outrageousness”, the dissenters' position a fortiori accepts the "outrageousness” standard, making it the point in the continuum of escalating police involvement in crime where five members of the present court agree that a conviction should be overturned and an indictment dismissed.

Until further word from the Supreme Court, therefore, as a matter of strict legal precedent, this court must assume that while the subjective view of entrapment is the general guide, it is nevertheless subject to an overriding exception that under either the court's supervisory power or the due process clause, a predisposed defendant cannot be convicted if police over-involvement in his crime reaches "a demonstrable level of outrageousness". See U.S. V. Johnson, 565 F.2d 179, 181 (CA 1 1977) (Id. at. 37-42

(footnotes omitted)] Having reviewed the law of entrapment, Judge Pratt found that the argument that prosecution must be barred whenever a Government agent provided the impetus for a crime, "simply does not represent the law as established by the United States Supreme Court." (Id. at 50] Thus, since the concept of "objective entrapment" had never been recognized by the Supreme Court, Rep. Myers' entrapment claim was “restricted to principles of subjective entrapment, where the creative activity of the government entraps into criminal conduct a defendant who was not predisposed to commit the crime." (Id.] However, said the court, the issue of predisposition is generally a question of fact to be determined by a jury. In the instant case, the court continued, Rep. Myers had not requested a jury charge on the question of entrapment. Thus, the issue of subjective entrapment could not now be raised before the court.

The second general challenge raised by Rep. Myers was that even if he had not been entrapped, the indictment should be dismissed because the Government's handling of the investigation was so outrageous that due process principles would absolutely bar the Government from invoking judicial processes to obtain a conviction. After noting that the defendant's argument was based on the opinions of Justice Rehnquist in Russell and Hampton, the court disposed of this challenge by stating:

It is important to recognize, however, that in neither Russell nor Hampton was the questioned governmental conduct held to be "outrageous". Nor has any other decision of the Supreme Court found law enforcement officers' conduct to be so "outrageous" as to require dismissal of an indictment. Thus, even though the Supreme Court has yet to be confronted with or to offer a description of circumstances sufficiently outrageous to warrant dismissal, the governing principle remains that in some case, under some

circumstances, the conduct of law enforcement officials
may some day bar prosecution. (Rep. Meyers argues) that
those cases, those circumstances and that conduct have ar-
rived with Abscam.

It is clear that mere instigation of the crime does not
render law enforcement activity "outrageous”. Here, the
government presented a fictitious sheik, seeking to buy fa-
vorable legislative action. Undercover agents offered
money in return for defendant legislators' promises to in-
troduce a private immigration bill. In simple terms, bribes
were offered by the undercover agents and accepted by the
defendant congressmen.

Clearly, the government agents created the opportunity for criminal conduct by offering the bribes. But their involvement falls far short of being "outrageous" for two reasons. In the first place, each of the legislators could simply have said "no" to the offer. U.S. v. Myers, 635 F.2d at 939. Three other legislators faced with identical offers, Senator Pressler, Congressman Patten and Congressman Murtha did precisely that as shown by the videotapes in evidence as DP Exs. 22, 21, and Thompson trial Ex. 29. Second, the extent of governmental involvement here is far less than that in Hampton, where the government not only supplied heroin for the defendant to sell, but also produced an undercover agent to buy it from him. Even under those circumstances, where the government was active on both sides of a narcotics sale, the Supreme Court did not consider the agent's conduct to be "outrageous"; a fortiori here, where the agents acted only on one side, by offering money to congressmen in return for favors, the involvement of the undercover agents was not "outrageous". (Id.

at 52-54 (footnotes omitted) Rep. Myers' third general challenge was that “to permit targets to be selected by middlemen violated due process because it did not provide sufficient protection to the innocent." [Id. at 54] This argument, said the court, was both legally and factually unsupportable. It was legally infirm, said the court, because "the Constitution does not require reasonable suspicion before a congressman may be made the subject of an undercover sting. U.S. v. Myers, 635 F.2d at 940-941. See also U.S. v. Ordner, 544 F.2d 24 (CA2 1977).[Id. at 54-55) The argument was factually infirm because "the agents did not set out to offer bribes to any particular congressman. They set no standards, established no criteria." [Id.]

Rep. Myers' fourth general argument was that “the inducements offered to the congressmen were overwhelming, designed to overpower their otherwise adequate resistance and to induce honest and innocent people to commit a crime they would normally avoid." [Id. at 57 (footnote omitted)] Judge Pratt rejected this argument, stating that the size of the inducement was irrelevant:

While there may be “inducements” that are “overwhelming”, such as a threat against the life of a loved one, when the inducement is nothing but money or other personal gain, this court does not believe that the size of the

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