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cannot be considered in the abstract, for the facts
The government further argues that the Abscam investigation was pursued in good faith and conducted professionally in view of the circumstances, that no right of any de fendant was infringed and, finally, that whether an operation such as Abscam is "good" or "bad" is a matter to be decided initially by the executive branch of our government, subject to legislation by Congress, but does not present 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 attack Judge Pratt discussed at length the law of entrapment.11 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, the defendants 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, neither Rep. Thompson nor Rep. Murphy had 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 Reps. Thompson and Murphy was that even if they had not been entrapped, the indictments 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 convictions. After noting that the defendants' 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 deci
11 Judge Pratt's discussion of entrapment is printed on pages 48–51 of this report.
sion of the Supreme Court found law enforcement officers'
It is clear that mere instigation of the crime does not
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 agents' 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)] The defendants' 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. 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.]
The defendants' 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 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) The defendants' 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 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 the general challenges—that the convictions were not a reliable measure of their 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. The defendants' 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 neither Rep. Thompson nor Rep. Murphy had shown "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 deliv
ered to the FBI for transcribing on a periodic basis. Most
in the bureau and the Department of Justice. (Id. at 67-68] Next, Judge Pratt addressed Rep. Thompson's and Rep. Murphy's contention that they were prejudiced at trial by the fact that many of the audiotapes made by Mr. Weinberg either contained gaps or were missing. 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 defendants' third 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, the defendants had shown neither a constitutional violation nor any resulting prejudice.
Another argument raised by Reps. Thompson and Murphy 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 the defendants, the Government had used these middlemen as its agents and was now responsible for the machinations of those middlemen. In discussing their 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 defendants' belief that "the government knew that Weinberg was untrustworthy and that defendants' 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 under-
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 warant ... [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. (Id.] With respect to the defendants' 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 (CA 2 1979);
U.S. v. Szycher, 585 F.2d 443 (CA 10 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 determing 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
97] Judge Pratt concluded his memorandum by addressing-and rejecting-a number of arguments Reps. Thompson and Murphy had made in support of motions they had made for a new trial and for a judgment of acquittal.
On August 13, 1981, Rep. Murphy was sentenced to 3 years imprisonment on Count I, and 2 years imprisonment on each of Counts III and V. The sentences, however, were to be served concurrently. In addition, Rep. Murphy was fined $10,000 for his con