6. There appears to have been no adequate controls to limit exercise of prosecutorial discretion to guarantee that targets were not being selected for invidious reasons of either personal malice or political vengeance. [Brief Amici Curiae of the American Civil Liberties Union in Support of Defendants' Motion For a Pre-Trial Hearing . . ., July 11, 1980, at 4-5] Government misconduct of the type alleged by the defendants, said the ACLU, threatens settled principles of separation of powers because Members of Congress will not be "willing to risk invoking the wrath of the Executive if they know the Executive has the authority to conduct exhaustive investigations of its legislative foes and entice them into wrong-doing even without any cause whatsoever to focus on them as individuals[.]" [Id. at 10] The ACLU further asserted that if the allegations were proven the pre-trial dismissal of the indictment would be required. Accordingly, the ACLU called on the court to conduct a pre-trial hearing on the matter since "the burden of standing trial, irrespective of the possibility of eventual conviction, may place a substantial burden on the rights of political freedom." [Id. at 14]

On August 7, 1980, Judge Mishler issued a memorandum and order addressing the issue of Government misconduct. The Judge noted that Federal courts do indeed have the power to preclude a criminal prosecution because of investigative misconduct by the Government. The court would entertain the defendant's motion, said the Judge, but not before trial as the ACLU had requested. Because the defendants were 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 the defendants' motion until the conclusion of the Government's case at which point hearings on the matter would be conducted if necessary.

On July 11, 1981, Reps. Murphy and Thompson had filed a motion to dismiss on the ground of prejudicial pre-indictment publicity and Government misconduct. Regarding publicity, they 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 defendants; (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. The defendants relied on Berger v. United States, 295 U.S. 78 (1934) in arguing that this pretrial publicity would deny them their due process right to a fair trial, and that the indictment therefore should be dismissed. Regarding Government misconduct, they stated that the Government violated 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. They further asserted 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). Reps. Murphy and Thompson 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, Reps. Murphy and Thompson's 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. Thompson et al., Cr. No. 80-00291 (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 the defendants' 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 their Fifth Amendment argument, the defendants would have to bear a heavy burden of demonstrating that they 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 had suggested, in dicta, that Government generated pre-indictment publicity could be grounds for 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 the 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 Reps. Murphy and Thompson had failed to show actual prejudice. As to whether dismissal would "help to translate assurances of 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 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.

On July 11, 1980 (the same day they filed their original motion to dismiss on the ground of prejudicial pre-indictment publicity), Reps. Murphy and Thompson filed a motion to dismiss the indictment as violative of the Speech or Debate Clause of the U.S. Constitution. The defendants argued that the grand jury which returned their indictments had probably considered evidence reflecting on their official actions as Members of Congress. In support of this contention, the defendants claimed that several portions of the indictment contained allegations of facts that would compel one to believe that evidence protected by the Clause had been considered. The defendants stated that when an indictment has been tainted by a grand jury's consideration of matters protected by the Clause the only remedy is dismissal of the indictment. In support of this contention, Reps. Murphy and Thompson 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 Congress, March 1, 1981 for a discussion of that case.) In any event, said the defendants, they should be allowed to review the grand jury transcripts to see if violations of the Speech or Debate Clause did indeed occur.

On July 11, 1980 (the same day it was filed), the motion to dismiss on Speech or Debate Clause grounds was denied. No opinion accompanied the court's order. Four days later, the defendants filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit.

On August 26, 1980, the circuit court issued a decision affirming the ruling of the district court. [United States v. Murphy et al., 642 F.2d 699 (2d Cir. 1980)] The circuit court found that the arguments raised by the defendants had previously been rejected in United States v. Myers, 635 F.2d 932 (2d Cir. 1980). (See page 35 of this report for a discussion of that case.) According to the court, the factual situation in Myers was "not different in any material respect" from the factual situation in the present case. [642 F.2d at 700] In addition, neither the defendant in Myers nor the defendants here had made any claim "that the grand jury did not hear significant

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]

and sufficient evidence unprotected by the Speech or Debate Clause..." [Id.]

On November 10, 1980, the trial of Reps. Thompson and Murphy began, and on December 3, 1980 the jury returned its verdict. Rep. Murphy was found guilty under Count I (conspiracy), Count III (conflict of interest), and that portion of Count V concerning illegal gratuities. Rep. Murphy was found not guilty under Count II (bribery). Pursuant to the court's instruction during trial, Count IV (interstate travel) was dismissed. Similarly, Rep. Thompson was found guilty under Count I and part of Count V. Unlike Rep. Murphy, however, he was found guilty of bribery. He was found not guilty under Count III. During trial, Count IV was dismissed.

On January 12, 1981, the court commenced a series of hearings on the Government overreaching claims of Reps. Murphy and Thompson. The issues considered during these hearings were: (1) whether the ABSCAM operation amounted to Government overinvolvement in the creation or manufacture of the crimes; (2) whether there were specific incidents of misconduct in the ABSCAM operation by Government operatives over and above any Government involvement in the creation of the crimes; (3) whether in the conduct of the operation there were specific violations of statutes, regulations, or guidelines binding on the Government; (4) whether there was impermissible targeting or selection of individuals for investigation and prosecution in the ABSCAM operation; and (5) whether the evidence in either of the cases established entrapment as a matter of law. These due process hearings ended on February 16, 1981.

On March 19, 1981, Rep. Thompson filed a memorandum in support of his motion to dismiss the indictment on due process grounds. Rep. Murphy apparently did not file a post-trial due process memorandum. The Government filed a memorandum in response to Rep. Thompson's and Rep. Murphy's claims on May 1, 1981.

On July 24, 1981, Judge Pratt issued an order and memorandum in which the due process claims of Reps. Thompson and Murphy were denied. In his 136 page memorandum, Judge Pratt began his discussion of the case by outlining the claims Reps. Thompson and Murphy had made:

Defendant Thompson . . . urges what he characterizes as "the doctrine of governmental overreaching" as requiring dismissal here because the government instigated rather than discovered the crimes and because its selection of "targets" was arbitrary and unprincipled. Thompson further urges that the indictment should be dismissed because in the course of the Abscam investigation there were widespread and continuous violations of laws, regulations and guidelines in the control and monitoring of the informant Weinberg, in using Criden and other "middle men", in lacking reasonable suspicion before bringing public officials before the video cameras, and in ignoring or disregarding "red flags" and substantial legal questions that arose. Thompson further argues that inadequate documentation of the investigation, unauthorized disclosures of

information to the press by the government, attempts by the government to intimidate witnesses, failure to observe the requirements of Brady v. Maryland, 373 U.S. 83 (1973), and other possible violations of law require dismissal of the indictment against him. Finally, Thompson urges that the circumstances of his involvement with Abscam constitute entrapment as a matter of law.

Defendant Murphy argues that the government's conduct of the Abscam investigation violated principles of fundamental fairness because the justice department targeted congressmen in violation of principles of separation of powers and the speech or debate clause, failed to take into account the nature of Murphy's duties as a legislator, and failed to consider the right of all citizens to petition Congress and Congressmen Murphy for redress of grievances. Murphy further argues that his prosecution was the product of governmental overreaching in the creation and promotion of crime and that the government's outrageous creative activity was designed to lure Murphy into criminality without any indication of his predisposition or prior agreement to engage in wrongdoing. He further argues that as to him the government deliberately or recklessly created ambiguous and misleading evidence of criminality. Murphy's final argument focuses upon claimed misconduct by the government in the Abscam investigation and prosecution, and argues that the misconduct caused him specific prejudice. He contends that dismissal of the indictment would not harm any legitimate law enforcement purpose, but on the contrary would serve as a deterrent against any future Abscam-type abuses. [Memorandum and Order, July 24, 1981, at 33-34]

Next, Judge Pratt outlined the Government's response 10 to the defendants' 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

10 Judge Pratt's July 24th order and memorandum was dispositive not only of Rep. Thompson's and Rep. Murphy's due process claims, but also of the claims of Reps. Lederer and Myers who raised similar due process issues during their ABSCAM prosecutions. As a result, the Government's response addressed the claims not only of Reps. Thompson and Murphy, but also of Reps. Lederer and Myers. 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 Reps. Thompson and Murphy and those indicted with them, but also to all the defendants in the Myers and Lederer ABSCAM cases.