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Counts III and V did not involve Rep. Kelly.
On July 25, 1980, defendant Kelly entered a plea of not guilty to all counts (i.e. Counts I, II and IV). The same day, the Government filed a motion for a protective order, claiming that Rep. Kelly had repeatedly made public statements as to his intention to release publicly all audio and video tapes and transcripts of his alleged crimes. (These materials, which the Government held as evidence, would be received by Rep. Kelly pursuant to the rules of discovery applicable to criminal cases.) The public disclosure of such materials, argued the Government, would impair the court's ability to empanel a fair and impartial jury and would possibly violate the rights of individuals whose voices and images appeared on the tapes. Accordingly, the Government asked the court to issue a protective order prohibiting the defendant from disclosing publicly any materials obtained through discovery.
In response to the Government's motion, Rep. Kelly argued that the Government had been disclosing information about the case to the public on a selective basis. He claimed that his constituents would be unable to properly and intelligently exercise their constitutional rights to vote in the upcoming election if the only information about the case given to them was to be the selective and prejudicial information disclosed by the Government. Unpersuaded by Rep. Kelly's arguments, the court, Chief Judge William B. Bryant presiding, granted the Government's motion for a protective order on August 15, 1980.
On September 4, 1980, Rep. Kelly filed a motion to dismiss the indictment due to selective prosecution. In the alternative, Rep. Kelly asked that an evidentiary hearing be provided to determine whether selective prosecution occurred. In support of the motion, he asserted that only one other Member of Congress voted against the President's legislative proposals more often than he did. Rep. Kelly further asserted that he was "extremely unkind" to members of the Carter Administration who appeared before his committee to testify. The defendant also alleged that in a conversation on February 2, 1980 at the Brooklyn office of the Organized Crime Strike Force, a member of the Strike Force inquired of Philip Heymann, Assistant U.S. Attorney General for the Criminal Division, "Did we get Kelly?” To which Mr. Heymann allegedly replied, "Yes, we got the troublemaker, Kelly.” The defendant next claimed that various newspaper accounts indicated that the Government had information concerning other political figures that was "equally as valid" as the information in the Government's possession regarding the defendant. By targeting him for investigation and prosecution, and by disregarding potentially incriminating evidence against supporters of the Administration, the Government, said Rep. Kelly, violated his Fifth Amendment right to the equal protection of the laws. At the least, argued Rep. Kelly, an evidentiary hearing should be held to explore the matter.
(2) commit any crime of violence to further any unlawful activity; or
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, man
agement, 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.
On October 29, 1980, the Government's response to the motion was filed and placed under seal.
On November 21, 1980, the defendant's motion was denied. In a short memorandum accompanying its order, the court stated that Rep. Kelly had failed to make even a colorable showing that he was prosecuted because of his political views or that he was singled out for prosecution.
On September 5, 1980, defendant Kelly had also moved to dismiss the indictment on the basis of Government disclosures and prejudicial publicity. In the alternative, Rep. Kelly asked that an evidentiary hearing on the matter be provided. In his motion, Rep. Kelly argued that unwarranted disclosures of information to the press about the ABSCAM investigation denied him the right to an unbiased and impartial grand jury, and also served to deny him an opportunity for an unbiased petit jury and a fair trial. He alleged that these disclosures were in violation of the Privacy Act (5 U.S.C. $ 522a) b), 18 U.S.C. § 1503 (obstruction of justice); and Rule 6(e) of the Federal Rules of Criminal Procedure.
In its October 30, 1980 response, the Government conceded that in February 1980 personnel within the Department of Justice were indeed responsible for serious leaks to the press concerning the ABSCAM investigation. The Government claimed however that most of the publicity generated by the leaks subsided by mid-February 1980 and that the press treatment of ABSCAM as a whole had been factual and non-accusatory. Moreover, said the Government, since February 1980 the defendant had taken every opportunity to discuss his case in public, thereby nullifying his right to complain about unauthorized Government disclosures. If the case was still alive in the minds of potential jurors, said the Government, it was because of Rep. Kelly's efforts, not those of the Government. The Government further argued that Rep. Kelly's claim that a fair trial would be impossible was speculative and premature. It was further alleged that an evidentiary hearing would serve no purpose since the Government had already admitted that the complained of disclosures were from Government sources.
On November 24, 1980, Rep. Kelly's motion to dismiss the indictment because of Government disclosures and prejudicial publicity was denied. No memorandum accompanied the court's order.
On September 15, 1980, Rep. Kelly had also moved to dismiss Count IV, stating that the Government manufactured the interstate travel alleged in the indictment. Specifically, he asserted that Government undercover agents called him to a meeting at a Washington, D.C. townhouse in order to ensure the presence of the interstate element necessary for a conviction under the Travel Act. In support of this motion, Rep. Kelly relied heavily upon the holding in United States v. Archer, 486 F.2d 670 (2d Cir. 1973), a case in which a Government operative went to a neighboring state and called a defendant, on orders from an Assistant U.S. Attorney, for the purpose of transforming a local crime into an interstate crime. Once again, the Government's memorandum in opposition to Rep. Kelly's motion was placed under seal by the court.
On November 21, 1980, Rep. Kelly's motion to dismiss Count IV was denied. In its Memorandum and Order the court stated that in the instant case, unlike in Archer, there was no evidence that the
Government set the situs for the bribe in order to create a Federal crime. The court viewed the Government's use of the Washington, D.C. townhouse, complete with its elaborate sound and videotape system, as entirely legitimate, especially in view of the fact that the townhouse had been in use by the FBI long before the Government could have known that a meeting with Rep. Kelly would ne cessitate his travel across state lines.
Also on September 15, 1980, Rep. Kelly moved to suppress the audio and video tapes of the alleged crimes. In support, he stated that the taping of his conversations in a private home violated his reasonable expectations of privacy and was contrary to the ruling in Katz v. United States, 389 U.S. 347 (1967). The court, on November 21, 1980, rejected this argument and denied the motion, stating:
The court is not without some sympathy for a private citizen who finds that his most confidential exchanges have been carefully preserved, and, in this case, exhaustively preserved for public use at trial. But Mr. Kelly's assertion was rejected by the United States Supreme Court a decade ago in United States v. White, 401 U.S. 745 (1971).
In White, the court held that there is no invasion of the fourth amendment when the government wires its agents and sends them into the home of a defendant for a chat. In White itself four of the recorded conversations took place in the home of a government informant. Therefore, the fact that Mr. Kelly's conversations were recorded in a house that was actually rented by the government does nothing to distinguish this case from White. In Both White and the present case the defendants were recorded in homes they believed were owned by private citizens. Mr. Kelly has no greater claim to privacy under the fourth amendment than did Mr. White. Memorandum and
Order, November 21, 1980, at 2-3] A third motion filed on September 15, 1980, was Rep. Kelly's motion to dismiss for failure to state an offense. His argument was that a violation of 18 U.S.C. $ 201(c) occurs when a public official solicits something of value in return for his being influenced in the performance of an official act. Rep. Kelly claimed that he could not possibly have been influenced in the performance of any official act because the requested official act (immigration assistance) could not have been rendered to the foreign businessmen, since, in reality, the foreign businessmen did not exist. Rep. Kelly thus asked that Count II be dismissed. Rep. Kelly further argued that if Count II had to be dismissed, so did Counts I (conspiracy) and IV (interstate travel) because they were predicated on violations of 18 U.S.C. & 201(c).
On November 21, 1980, the court denied Rep. Kelly's motion to dismiss for failure to state an offense. In a short memorandum and order, Chief Judge Bryant stated:
The United States Court of Appeals for the Second Circuit decided this precise issue in a virtually identical setting last August. See United States v. Myers, No. 80-1309 (August 8, 1980). The Myers court, citing United States v.
Brewster, 408 U.S. 501, 526-27, upheld the indictment
1980) Also on September 15, 1980, Rep. Kelly filed a motion entitled "Motion to Dismiss Pursuant to Speech or Debate Clause and Punishment Clause.” In his accompanying memorandum, Rep. Kelly stated that many of his present and former staff members were subpoenaed and testified before the grand jury, and that many of his documents were also subpoenaed and turned over to the grand jury. Rep. Kelly argued that if any of the testimony or materials considered by the grand jury involved legislative acts, the indictment would have to be dismissed as violative of the Speech or Debate Clause of the U.S. Constitution. Accordingly, he requested a hearing on the matter. Rep. Kelly also argued that the Punishment Clause of the Constitution, when read in conjunction with the Speech and Debate Clause, deprives the judicial branch of jurisdiction to question, charge, or punish any Member for legislative misconduct.
On November 25, 1980, defendant Kelly's "Motion to Dismiss Pursuant to Speech or Debate Clause or Punishment Clause” was denied. In its Memorandum and Order, the court stated that speech or debate material was not a substantial factor underlying Rep. Kelly's indictment; nor did the grand jury lack sufficient competent evidence to establish probable cause:
The question of speech or debate material tainting an indictment has been considered in the recent past by both the United States Court of Appeals for the Second and Third Circuits. United States v. Helstoski, No. 80–1592 (3rd Cir. November 3, 1980; United States v. Myers, No. 80-1309 (2nd Cir. August 8, 1980). Both courts started from the premise that ordinarily courts do not look behind the face of an indictment and invalidate it because the grand jury received incompetent evidence. Helstoski, slip op. at 6; Myers, slip op. at 4933. However, in Helstoski the court held that since privileged material “permeated the whole (grand jury] proceeding,” slip op. at 10, the privileged testimony was 'a substantial factor underlying the indictment," slip op. at 7, and the grand jury proceedings were thus "polluted by the presentation of evidence violating the speech or debate clause," slip op. at 6, the district court was correct in dismissing the indictment. In Myers, although the Court of Appeals affirmed the district court's denial of a motion to dismiss based on speech or debate material, the court acknowledged in a footnote that under
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, 96, cl. 1]
The Punishment Clause provides: "Each House may . . . punish its Members for disorderly Behavior." (art. I, 85, cl. 2]
certain conditions a district court might be justified in dis-
Once again it is unnecessary for the court to resolve conflicting standards proposed by other circuit courts. Under either the Third Circuit's "substantial factor underlying the indictment” standard, Helstoski, supra, or the Second Circuit's “sufficient competent evidence” standard, Myers, supra, Mr. Kelly's motion to dismiss the indictment on speech or debate clause grounds must fail. The court has reviewed the grand jury transcripts of associates of Mr. Kelly's. It is clear that speech or debate material was a very small part, if any, of the evidence presented to the grand jury. Further, the many video and audio tapes played for the grand jury resolve any doubt there may be on the sufficiency of nonspeech or debate grand jury evidence. See Myers, supra at 4934 n.10 (sustaining Judge Mishler's denial of a motion to dismiss; extensive tapes and recording held sufficient competent evidence to establish probable cause before the grand jury). 1
1 There is no merit whatsoever in Mr. Kelly's assertion that the punishment clause, art. I, 95, cl. 2, deprives the judiciary of jurisdictions over a Congressman. United States v. Brewster, 408 U.S. 501 (1972); United States v. Diggs, 613 F.2d 988
(D.C. Cir. 1979). [Memorandum and Order, November 25, 1980, at 1-2]
A fifth motion filed on September 15, 1980 by Rep. Kelly was his motion to dismiss on the grounds of Government overinvolement and overreaching. His argument was that the investigative tactics used by the Government during the ABSCAM operation were so grossly unfair that they violated his right to due process of law. It was Rep. Kelly's contention that the Government resorted to systematic abuses of law enforcement power to manufacture and then prosecute spurious offenses. After emphasizing that he was not claiming that he had been entrapped, the defendant claimed that in both United States v. Russell, 411 U.S. 423 (1973) and Hampton v. United States, 425 U.S. 484 (1976) a majority of the Court was unwilling to hold that overreaching police conduct could never violate due process rights. The defendant also cited United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978) as a case in which the overreaching defense was invoked and sustained. The defendant argued that a careful reading of Twigg and Russell along with United States v. Archer 486 F.2d 670 Cir. 1973), United States v. Corcione, 592 F.2d 111 (2d Cir. 1979) cert. denied 440 U.S. 985 (1979) and Greene v. United States, 454 F.2d 783 (9th Cir. 1971) indicated that a crucial factor in any examination of a law enforcement agent's conduct is 'the extent to which the agent generated unlawful activity where no unlawful activity had previously existed. The critical distinction, said Rep. Kelly, is between infiltrating ongoing criminal operations and initiating previously nonexistent criminal oper