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carefully developed plan in which calculated questions led imperceptibly to illicit activity. Moreover, the sordid scheme was made even more reprehensible by the very presence of Government attorneys at or near the sites of these meetings, who saw to it, through continuing surreptitious communication with the undercover operatives, that Federal jurisdiction was "manufactured.” The defendant also charged that in the course of its investigation the Government, in order to protect its undercover operation, violated numerous state and Federal laws, as well as the internal regulations and policies of the FBI and the Department of Justice. For example, it was alleged that Government agents filed false affidavits with a Federal court; allowed one of its undercover operatives to use Abdul Enterprises in order to swindle numerous businessman; illegally established a front organization and filed false statements with Federal agencies; introduced misrepresentations into the banking system by creating a bogus account; and obtained a lease on a townhouse in Washington, D.C. by resorting to false pretenses. The defendant concluded that these systematic abuses by law enforcement authorities culminating in the instant indictment were unprecedented in scale. The only way to maintain the integrity of the judicial process, concluded Rep. Lederer, would be to dismiss the instant indictment.
On August 7, 1980, Judge Mishler filed a memorandum and order addressing Rep. Lederer's claims of Government overreaching. The Judge began by pointing out that Rep. Lederer was not raising an entrapment defense.? He also noted that Federal courts do have the power to preclude a criminal prosecution because of Government misconduct. The court would entertain Rep. Lederer's motion, said the Judge, but not before trial as he had requested. Because the defendant was 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 Rep. Lederer's motion until the conclusion of the Government's case at which point hearings on the matter would be conducted if necessary.
On August 7, 1980, the case was transferred from Judge Mishler to Judge George Pratt.
On January 6, 1981, Rep. Lederer's trial began. Three days later, he was found guilty on all four counts. On January 12, 1981, the court began hearings on the issue of Government overreaching. These "due process" hearings concluded on February 20, 1981.
Covernment overinvolvement and overreaching should not be confused with entrapment. The former is based on the notion that the conduct of law enforcement agents may be so outraBeous in a given case as to constitute a denial of a defendant's due process rights. In such cases the focus of judicial inquiry is on the conduct of the Government agents. Entrapment, on the other hand, occurs when a law enforcement agent induces the commission of an offense by a person who was not predisposed to commit the offense. When entrapment occurs prosecution is precluded on the theory that Congress could not have intended to impose criminal
punishment on individuals who were induced by the Government to perform a criminal act. The focus of inquiry in entrapment cases is on the state of mind (predisposition) of the defendant. The leadng cases on overreaching are United States v. Russell, 411 U.S. 423 (1973) and Hampton v. United States, 425 U.S. 484 (1976).
On April 8, 1981, Rep. Lederer filed a memorandum in support of his motion to dismiss on the grounds of overreaching. In addition, the memorandum argued that Rep. Lederer was entrapped "as a matter of law.” The Government filed a memorandum in response on May 1, 1981.
On July 24, 1981, Judge Pratt issued an order and memorandum in which Rep. Lederer's motion to dismiss was denied. In his 136 page memorandum, Judge Pratt began his discussion of the case by outlining the claims Rep. Lederer had made in his post-trial motion:
Defendant Lederer claims he was deprived of due process and that he was the victim of entrapment as a matter of law because Abscam constitutes outrageous conduct on the part of government agents in that they created rather than discovered crime; allowed Weinberg and Amoroso to act in an uncontrolled fashion; manufactured jurisdiction over defendants; selected a venue that would avoid the Third Circuit's decision in U.S. v. Twigg, 588 F.2d 373 (CA 3 1978); provided improper incentives for Weinberg; appealed to the civic duty of targets to involve them in Abscam; improperly used "middle men"; attempted to mislead the court and jury about the creation of the “asylum scenario"; permitted an FBI agent, the government prosecutor and Weinberg to separately contract to write books about Abscam; failed to safeguard against entrapment; trapped Lederer into giving a false statement to the FBI; withheld evidence of Weinberg's criminal record; leaked untruthful stories to the press in order to interfere with cooperation among codefendants; destroyed evidence; withheld prior statements of Amoroso and Weinberg; violated the principles of Brady v. Maryland, 373 U.S. 83 (1973); and instructed agents to testify falsely and to withhold information at the trial. Lederer further argues that he was entrapped as a matter of law. [Memorandum and Order,
July 24, 1981, at 34-35] Next, Judge Pratt outlined the Government's response 8 to Rep. Lederer's 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 crimi
8 Judge Pratt's July 24th order and memorandum was dispositive not only of Rep. Lederer's due process claims, but also of the claims of Reps. Myers, Thompson, and Murphy who raised similar due process issues during their ABSCAM prosecutions. As a result, the Government's response addressed the claims not only of Rep. Lederer, but also of Reps. Myers, Thompson, and Murphy. Further, whenever in Judge Pratt's memorandum reference is made to the defend
it should be understood that the court is referring not only to Rep. Lederer and those indicted with him, but also to all the defendants in the Myers, Murphy, and Thompson ABSCAM
nal activity, and the government's failure to take meas-
cannot be considered in the abstract, for the facts
the cameras. Government's memorandum at 1. 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 defendant 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 discused at length the law of entrapment: 9
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, Rep. Lederer's 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, Rep. Lederer had requested a jury charge on the question of entrapment. The jury, in turn, found that he was predisposed. Because the jury's finding was supported by sufficient evidence, said the court, there now existed no grounds upon which that finding could be overturned.
The second general challenge raised by Rep. Lederer was that even if he had not been entrapped, the indictment 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 a conviction. After noting that the defendant's argument was based on the
• Judge Pratt's discussion of entrapment is printed on pages 48–51 of this report.
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 decision of the Supreme Court found law enforcement officers' conduct to be so “outrageous” as to require dismissal of an indictment. Thus, even though the Supreme Court has yet to be confronted with or to offer a description of circumstances sufficiently outrageous to warrant dismissal, the governing principle remains that in some case, under some circumstances, the conduct of law enforcement officials may some day bar prosecution. (Rep. Lederer argues) that those cases, those circumstances and that conduct have arrived with Abscam.
It is clear that mere instigation of the crime does not render law enforcement activity "outrageous”. Here, the government presented a fictitious sheik, seeking to buy favorable legislative action. Undercover agents offered money in return for defendant legislators' promises to introduce a private immigration bill. In simple terms, bribes were offered by the undercover agents and accepted by the defendant congressmen.
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 pro duced 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)] Rep. Lederer's third general challenge was that “to permit tar gets 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 un supportable. 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. u. 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 be cause "agents did not set out to offer bribes to any particular congressman. They set no standards, established no criteria." (Id.)
Rep. Lederer's 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 irrevelant:
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] Rep. Lederer's 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, stat
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 the 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. Lederer's 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. Lederer had failed to show "any direct or specific harm resulting from the alleged lack of supervision.” (Id. at 66] Moreover, the supervision of