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viction under Count I and $10,000 for his conviction under Count III, for a total fine of $20,000. Execution of the prison sentence was stayed pending Rep. Murphy's appeal. The notice of appeal to the U.S. Court of Appeals for the Second Circuit was filed on August 24, 1981. [No. 81-1346)
Rep. Thompson was likewise sentenced on August 13. Judge Pratt ordered him imprisoned “for the maximum period authorized by law.” (This would amount to an imprisonment of 22 years.) However, the court ordered that the Director of the Bureau of Prisons furnish to the court a background report on Rep. Thompson together with any recommendations he might have with respect to probation. (See 18 U.S.C. § 4205.) However, execution of the prison sentence was stayed pending the filing of an appeal. Rep. Thompson's notice of appeal to the U.S. Court of Appeals for the Second Circuit was filed on August 24, 1981. [No. 81-1345)
Rep. Murphy's appellate brief was filed on January 18, 1982. Rep. Thompson's brief was filed on January 27, 1982. In these briefs, both defendants alleged that erroneous jury instructions had been given. Moreover, each defendant set out at great length the facts and circumstances which in their view showed that the investigation was conducted in so outrageous a manner as to warrant dismissal under the Due Process Clause of the Fifth Amendment.
The Government's brief, which responded to both briefs, was filed on February 19, 1982.
Status—The case is pending in the U.S. Court of Appeals for the Second Circuit.
The complete text of the August 26, 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 Actions and Proceedings of Vital Interest to the Congress, September 1, 1981. United States v. Lederer
No. 81-1347 (2d Cir.) On May 28, 1980, U.S. Representative Raymond F. Lederer of Pennsylvania was indicted by a Federal grand jury in the U.S. Dis. trict Court for the Eastern District of New York. Indicted with Rep. Lederer were Angelo J. Errichetti, the Mayor of Camden, New Jersey and a member of the new Jersey State Senate; Howard L. Criden, a Philadelphia attorney; and Louis C. Johanson, a member of the Philadelphia City Council, and a member of Mr. Criden's law firm. [Criminal Case No. 80-00253 (E.D.N.Y.)]
Count I of the four count indictment charged the defendants with conspiracy, contrary to 18 U.S.C. $371.2 Specifically, it was alleged that on September 3, 1979, defendant Errichetti informed “Tony DeVito” and Melvin Weinberg that Rep. Lederer, in return for $50,000, would assist businessmen from the Middle East to enter and remain in the United States. Purportedly, DeVito and Mr. Weinberg were agents of these foreign businessmen. In reality, however, DeVito and Anthony Amoroso, Jr., a Special Agent of the Federal Bureau of Investigation (“FBI'), and Mr. Weinberg was a private citizen assisting the FBI.
Specifically, conspiracy to violate 18 U.S.C. § 201 (bribery and fraud).
2 18 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 or for any purpose, and one or more of such persons do any act to effect the object of the con spiracy, 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.
It was further alleged that on September 11, 1979, Rep. Lederer and Mr. Errichetti had a meeting with DeVito and Mr. Weinberg at which Rep. Lederer was paid $50,000. In return, said Count I, Rep. Lederer assured Mr. Weinberg and DeVito that he would introduce in Congress private immigration bills designed to ensure the lawful immigration of the foreign businessmen. According to Count I, this $50,000 was then delivered to defendant Criden who placed it in a safety deposit box. As for Mr. Johanson, it was alleged that he withdrew $5,000 from the safety deposit box for delivery to Rep. Lederer. Finally, it was alleged that the $50,000 was to be divided among all the defendants.
Count II charged that by soliciting and receiving $50,000 in return for his promise to introduce private immigration bills, as alleged in Count I, Rep. Lederer committed bribery, contrary to 18 U.S.C. & 201(c).3 The remaining defendants were charged with aiding and abetting Rep. Lederer in the commission of bribery. Accordingly, they were charged with criminal liability as principals, pursuant to 18 U.S.C. § 2.4
Count III stated that Rep. Lederer, by agreeing to introduce private immigration bills in return for $50,000, violated the illegal gratuity statute, 18 U.S.C. § 201(g).5 Again, the remaining defendants were charged with aiding and abetting Rep. Lederer, thereby incurring liability pursuant to 18 U.S.C. $2.
Count IV charged that on September 10 and 11, 1979, the defendants traveled in interstate commerce (from Washington, D.C., New Jersey, and Pennsylvania to New York) with intent to promote un
*18 U.S.C. 5 201(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 principal. * 18 U.S.C. 8 201(g) provides: Whoever, being a public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him shali be fined not more than $10,000 or imprisoned for not more than two years, or both.
lawful activity, to wit, bribery. Such travel was said to violate 18 U.S.C. $ 1952 (Travel Act).6
On June 5, 1980, Rep. Lederer entered a plea of not guilty to all counts.
On July 1, 1980, the Committee on Standards of Official Conduct of the U.S. House of Representatives ("Committee") filed an application for an order authorizing the Department of Justice to disclose to the Committee ABSCAM-related material (except grand jury transcripts) in the custody of the Department or the grand jury. The application explained that under clause 4(e)(1) of Rule X of the Rules of the House, the Committee was authorized to investigate alleged violations by Members of their official duties. The Committee also stated that on March 27, 1980 the House adopted Resolution 608 which specifically directed the Committee to conduct a full investigation into the ABSCAM affair and to report any recommendations for disciplinary action to the full House. The Committee further stated that the information sought through the instant application was essential if Congress was to carry out its consititutional function of imposing discipline on its Members. The application concluded by noting that the Committee would take precautions—including requiring Committee Members and Committee counsel to execute confidentiality agreements—to prevent unnecessary or inappropriate disclosures of materials and information received. On July 14, 1980, the Committee's application was granted.
On July 8, 1980, Rep. Lederer filed a motion to dismiss on the grounds of prosecutorial misconduct and prejudicial pre-indictment publicity. According to the defendant, prejudicial information concerning ABSCAM and the defendant had been both leaked and openly disclosed to the media. These prejudicial disclosures
have included extensive comments to the press and public
6 18 U.S.C. § 1952 provides, in pertinent part: (a) Whoever travels in interstate of 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
(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.
the "facts” of the ABSCAM investigation. (Memorandum
Indictment Publicity, July 8, 1980, at 3-4] The defendant explained that the leaks and disclosures were prejudicial not only because they "purport to disclose to the entire nation the supposed facts of the case ... thereby 'indicting' persons in the press before any jury has been convened," but also because “they create a general atmosphere in which the grand jurors are expected to do their duty' as the governments sees it in light of the 'overall significance of the case." (Id. at 6] After quoting a variety of ABSCAM-related comments as they appeared in the media, Rep. Lederer asserted that such disclosures and leaks by the Government not only violated his Fifth Amendment right to due process of law but also violated Rule 6(e) of the Federal Rules of Criminal Procedure (dealing with grand jury secrecy), the Privacy Act (5 U.S.C. § 552a[b]. Justice Department regulations (28 C.F.R. $ 16.56) and the American Bar Association Code of Professional Responsibility (specifically, Disciplinary Rule 7-107). Rep. Lederer called on the court to take "stern measures ... to assure the public that such breaches of law by the Government will not be tolerated in our judicial system.” (Id. at 28] Rep. Lederer thus concluded that dismissal of the indictment was mandated by the Government's misconduct as well as by the resulting prejudice. Rep. Lederer maintained, however, that under Estes v. United States, 381 U.S. 538 (1965) it was not necessary for him to show actual prejudice where, as here, the Government's conduct was inherently prejudicial.
On August 7, 1980, Rep. Lederer's motion to dismiss on the grounds of prejudicial pre-indictment publicity and prosecutorial 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. Lederer, Cr. No. 80–00253 (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 Rep. Lederer's 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 his Fifth Amendment argument, Rep. Lederer would
have to bear a heavy burden of demonstrating that he suffered I 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 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 un
identified 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 Rep. Lederer's 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 as
sistants. As to the first situation described in Fields, Judge Mishler stated that Rep. Lederer 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 not 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 7, 1980, Rep. Lederer had also moved to dismiss the indictment on the ground that the manner in which the Government conceived of and conducted its investigation was so outrageous and offensive as to constitute a violation of Rep. Lederer's due process rights. In support of this charge of Government overreaching, Rep. Lederer charged that ABSCAM involved gross improprieties and outright illegalities on the part of FBI agents and Department of Justice personnel. According to the defendant, the Government cre ated a criminal enterprise known as Abdul Enterprises, Inc. whose purpose was originally to uncover those dealing in contraband and stolen property, but which soon turned to luring political targets into a carefully orchestrated scheme of deceit and bribery. These political targets, moreover, were not chosen because of any suspicion that they were involved in criminal activity. Nevertheless, they were enticed to attend meetings with Government undercover agents posing as representatives of an Arab sheik anxious to invest his wealth in legitimate business enterprises in the target's political locale. Once in attendance, the defendant contended, he was lied to and maneuvered into compromising positions through a