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inducement should be a determinative factor in whether a public official can be prosecuted for accepting it. No matter how much money is offered to a government official as a bribe or gratuity, he should be punished if he accepts. It may be true, as has been suggested to the court, that "every man has his price"; but when that price is money only, the public official should be required to pay the penalty when he gets caught. In short, as a matter of law, the amount of the financial inducements here could not render the agents' conduct outrageous or unconstitu

tional. [Id. at 59) Rep. Myers' fifth argument was that there was no need for the Government to establish a wholly fictitious operation to ferret out public corruption. The court readily dismissed this argument, stating:

This court believes that the great majority of government officials, including those in Congress, are honest, hard-working, dedicated and sincere. However, the government needs to have available the weapons of undercover operations, infiltration of bribery schemes, and "sting" operations such as Abscam in order to expose those officials who are corrupt, to deter others who might be tempted to be corrupt, and perhaps most importantly, to praise by negative example those who are honest and square-dealing. Without the availability of such tactics, only rarely would the government be able to expose and prosecute bribery and other forms of political corruption. [Id. at 63

64] Turning to the last of Rep. Myers' general challenges-that the convictions were not a reliable measure of his culpability-the court stated that because the essence of the Government's case consisted of videotapes, "A more reliable basis for conviction can hardly be imagined." (Id. at 64)

Next, the court considered a number of specific challenges to the operation of ABSCAM. Rep. Myers' first argument was that ABSCAM was conducted without adequate safeguards, particularly with respect to the supervision of Mr. Weinberg. The problem with the argument, however, said the court, was that Rep. Myers had failed to show "any direct or specific harm resulting from the alleged lack of supervision." [Id. at 66] Moreover, the supervision of Mr. Weinberg, according to the court, was in fact "more than adequate to the circumstances of this investigation.” (Id.] In this regard, the court stated:

In an investigation that spanned many months and meetings all along the coast, Weinberg was in virtually daily contact with Amoroso, and his recordings were delivered to the FBI for transcribing on a periodic basis. Most importantly, the key events on which the government relied in presenting its cases, the appearances before the videotape cameras, took place in the presence of the FBI agents, and occasionally under the direct supervision of an attorney from the Eastern District Strike Force. Beyond that, super

vising agent Good and strike force chief Puccio continually
monitored the progress of the investigation, and each re-
ported regularly to their respective superiors in the

bureau and the Department of Justice. (Id. at 67-68] Next, Judge Pratt addressed Rep. Myers' contention that he was prejudiced at trial by the fact that many of the audiotapes made by Mr. Weinberg either contained gaps or were missing. Allegedly, exculpatory conversations were not recorded at all. The court disposed of these arguments by finding that no evidence had been introduced to support the assertion that the unrecorded or missing conversations were important.

The court described Rep. Myers' third specific argument as follows: "The Myers' defendants argue that when a potential target in an undercover investigation merely states that he desires to act within the law, the government should be automatically foreclosed from any further investigation of him." (Id. at 70] The court found, however, that if Rep. Myers' argument were adopted, “all the subject would have to do would be to invoke the magic incantation ‘I desire to act within the law' and then plunge into his nefarious activities, confident that thereafter any statements or conduct by him would be immune from investigation." (Id. at 70-71]

Rep. Myers' fourth specific argument was that dismissal of the indictment was required because during the investigation Government officials violated numerous laws, regulations, and guidelines. Like its predecessors, this argument was rejected by the court. “It is clear”, said Judge Pratt, “that for a court to dismiss an indictment there must be not only a constitutional violation, but also some resulting adverse effect or prejudice to the defendant.(Id. at 71-72 (citation omitted)] In the instant case, concluded Judge Pratt, Rep. Myers had shown neither a constitutional violation nor any resulting prejudice.

Another argument raised by Rep. Myers was that the Government's use of middlemen such as Messrs. Criden, Errichetti, and Silvestri was an irresponsible attempt to insulate the Government from its responsibility to conduct a fair investigation. In effect, said Rep. Myers, the Government had used these middlemen as its agents and was now responsible for the machinations of those middlemen. In discussing this assertion, Judge Pratt termed it “ludicrous." In the court's view, the Government's use of middlemen "was no more improper than an undercover agent's infiltration of a drug ring in order to gain the confidence of its members and obtain evidence necessary for conviction. U.S. v. Russell, 411 U.S. at 432.” (Id. at 83]

The last major due process challenge concerned the conduct of Mr. Weinberg. It was the defendant's belief that “the government knew that Weinberg was untrustworthy and that defendant's due process rights were violated when the government permitted such a person to play a major role in Abscam.” [Id. at 93] Judge Pratt addressed this contention by conceding that Mr. Weinberg had an “unsavory background." [Id. at 94] But it was precisely because of this background, said Judge Pratt, that Mr. Weinberg was so valuable:

[Mr. Weinberg's] ability to lie convincingly, his understanding of the corrupt mind and his ability to imagine and execute a grand charade on the scale of Abscam (was the reason) that Weinberg was enlisted for the investigation. Further, Weinberg gave considerable credibility to the entire undercover operation; persons dealing with Weinberg in the context of Abscam could check him out with other sources and be wrongly assured that they were not dealing with government agents. Weinberg had a track record that no legitimate government agent could provide or falsify.

Moreover, the government was not required to find Weinberg “reliable”, as would be the case if he were an informant whose information was used to obtain a search warrant ... [T]he basic reliability for the investigation, and ultimately for the prosecutions, was guaranteed by having the crimes committed on camera under circumstances guided by Agent Amoroso and closely supervised

by Agent Good. [İd.) With respect to the defendant's additional argument-that Mr. Weinberg had been given an exorbitant salary by the Government, and that he was promised a bonus for each conviction-Judge Pratt found that in point of fact Mr. Weinberg's remuneration was neither exorbitant nor contingent in any way upon convictions.

In addressing the alleged contingent fee agreement, Judge Pratt said:

Here the court finds that Weinberg's payments in Abscam have not been contingent. Even if they were, however, that would be but one more fact to be weighed in determining the reliability of the results obtained. Payments to informants contingent upon successful prosecution of those with whom they deal have been judicially criticized, but such payments do not require dismissal of an indictment. See, e.g., U.S. v. Brown, 602 F.2d 1073 (CA2 1979);

U.S. v. Szycher, 585 F.2d 443 (CA10 1978). [Id. at 96] In addressing the amount of Mr. Weinberg's salary, Judge Pratt said:

Whether his contribution to law enforcement in these cases and the personal sacrifices [Mr. Weinberg) has endured, during both the investigation and the prosecutions, are worth the amount of money the government has conferred upon him, is perhaps a matter for serious consideration by the Justice Department and even by Congress. It is not, however, a matter upon which this court will pass judgment for purposes of determining whether the fruits of his activities on behalf of the government should be dismissed. How much money is paid to a government informant is peculiarly a decision for the executive department, and not one for judicial review at the behest of a defendant who was caught by the informant's activities. (Id. at

Judge Pratt concluded his memorandum by addressing-and rejecting-a number of arguments Rep. Myers had made in support of motions he had made for a new trial and for a judgment of acquittal.

On August 13, 1981, Rep. Myers was sentenced to 3 years imprisonment for each of the 3 counts on which he was found guilty. The sentences, however, were to be run concurrently. In addition, Rep. Myers was fined $10,000 for his conviction under Count I and $10,000 for his conviction under Count II, for a total of $20,000. Execution of the prison sentence was stayed pending Rep. Myers' appeal.

On August 24, 1981, Rep. Myers filed a notice of appeal to the
U.S. Court of Appeals for the Second Circuit. [No. 81-1342]
On appeal, Rep. Myers argued, inter alia, that:

The indictment and prosecution of Congressman Myers
violated his immunity under the Speech or Debate Clause.
Moreover, the criminal investigation of a Member of Con-
gress as part of the Executive's sting operation without a
probable cause basis violated the separation of powers doc-
trine which underpins that immunity. [Brief on Behalf of
Defendants-Appellants Michael Myers, Angelo Errichetti,

and Louis Johanson, January 5, 1982, at iii-iv] And that:

The tactics utilized by the Government as part of its
Abscam investigation were destructive of defendants due
process rights. The tactics violated constitutional protec-
tions designed to insulate citizens from governmental over-
reaching and creation of crime and also rendered it impos-
sible to fairly determine in the context of a criminal pros-
ecution whether defendants committed the crimes alleged

in the indictment.[Id. at iv] The arguments raised in support of these contentions were identical to those raised before the district court.

The Government, in turn, filed its brief on February 16, 1982. Once again, it repeated the arguments that prevailed before the district court.

StatusThe case is pending before the U.S. Court of Appeals for the Second Circuit.

The complete text of the August 8, 1980 opinion of the circuit court is printed in the “Decisions” section of Court Actions and Proceedings of Vital Interest to the Congress, March 1, 1981.

The complete text of the July 24, 1981 memorandum and order of the district court is printed in the “Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981. United States v. Kelly

Criminal Case No. 80-00340 (D.C.C.) On July 15, 1980, U.S. Representative Richard Kelly of Florida was indicted by a Federal grand jury in the District of Columbia. Indicted with Rep. Kelly were Gino Ciuzio, a private citizen living in Florida, and Stanley Weisz, a private citizen living in New York. (Criminal Case No. 80–00340 (D.D.C.)]

Count I of the five count indictment charged the defendants with conspiracy, contrary to 18 U.S.C. $ 371.2 It was alleged that between November 1979 and February 1980 the defendants agreed that Rep. Kelly would use his power and influence as a Member of the U.S. House of Representatives to provide immigration assistance to foreign businessmen. Purportedly acting as agents for the foreign businessmen were "Tony DeVito" and Melvin Weinberg. In actuality, 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.

According to Count I, it was agreed that in return for Rep. Kelly's assistance, Mr. Weinberg and DeVito would pay him $250,000. It was further charged that on January 8, 1980, Rep. Kelly received $25,000 from Mr. Weinberg and DeVito as an initial payment. According to the terms of the conspiracy, said Count I, Rep. Kelly would keep $100,000 of the $250,000 sum, with Mr. Ciuzio, Mr. Weisz, and unindicted co-conspirator William Rosenberg sharing the other $150,000 equally.

Count II charged that by soliciting and receiving a sum of money in return for his promise to provide immigration assistance to the foreign businessmen, Rep. Kelly committed bribery, contrary to 18 U.S.C. $ 201(c).3 Count II further charged Mr. Ciuzio and Mr. Weisz with aiding and abetting Rep. Kelly to commit bribery. Accordingly they were charged with criminal liability as principals, pursuant to 18 U.S.C. § 2.4

Count IV charged that on January 8, 1980, Rep. Kelly traveled interstate (from Florida to Washington, D.C.) with intent to promote unlawful activity, to wit, bribery. Such travel was said to violate 18 U.S.C. $ 1952 (Travel Act).5

Specifically, conspiracy to violate 18 U.S.C. 8 201(c) (bribery). 218 U.S.C. $371 provides: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner of 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 of such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

* 18 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 any fraud, on the United States; or

(3) being induced to do or omit to do 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.S.C. 82 provides: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, 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 principle. *18 U.S.C. 8 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 (1) distribute the proceeds of any unlawful activity; or

Continued

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