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 delivered to the FBI for transcribing on a periodic basis. Most importantly, the key events on which the government relied in presenting its cases, the appearances before the videotape cameras, took place in the presence of the FBI agents, and occasionally under the direct supervision of an attorney from the Eastern District Strike Force. Beyond that, supervising agent Good and strike force chief Puccio continually monitored the progress of the investigation, and each reported regularly to their respective superiors in the bureau and the Department of Justice. [Id. at 67-68] Next, Judge Pratt addressed Rep. Lederer's contention that he was 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. Rep. Lederer's 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, Rep. Lederer had shown neither a constitutional violation nor any resulting prejudice. Another argument raised by Rep. Lederer 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 Rep. Lederer, the Government had used these middlemen as its agents and was now responsible for the machinations of those middlemen. In discussing this 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 defendant's belief that "the government knew that Weinberg was untrustworthy and that defendant's 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- Moreover, the government was not required to find With respect to the Defendant's 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 determining 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] On August 13, 1981, Rep. Lederer was sentenced to 3 years imprisonment on each of Counts I, II, and IV, and 2 years on Count 97-581 0 82 - 7 III. However, all sentences were ordered to be served concurrently. In addition Rep. Lederer was fined $10,000 for his conviction under Count I and $10,000 for his conviction under Count II, for a total of $20,000. Execution of the prison sentence was stayed pending Rep. Lederer's appeal. The notice of appeal to the U.S. Court of Appeals for the Second Circuit was filed on August 24, 1981. [No. 81-1347] On January 18, 1982, Rep. Lederer filed his appellate brief. With respect to the due process issue, Rep. Lederer's brief focused on the implications ABSCAM-type investigations would have on the American system of government: Without any reason for doing so, the Executive Branch actively went after members of the Legislative Branch in an effort to obtain incriminating words and deeds resulting in their prosecution and fall from power. No one can doubt that the public career of Lederer has been destroyed regardless of what this Court does. Whether the end result was the goal of the operation is not important. That it happened and was permitted to happen is. Permitting government agents to go after members of the Legislative Branch without any reasonable basis to believe they are corrupt and to create criminal activity for the purpose of implicating them in criminality created by the Exectutive Branch crosses the line separating the two powers. We do not dispute that the investigation of reputed or suspected corrupt members of Congress and the use of undercover operatives in such an investigation are legitimate. However, creating crime to ensnare or to tempt innocent legislators is not. The danger is obvious. It makes possible for a vindictive or manipulative Executive to destroy or intimidate a Senator or a Congressman who does not share the same political philosophy or does not support the programs of the Administration. It has been alleged that the Congressmen and the Senator implicated in ABSCAM were targeted because they did not support President Carter and instead supported Senator Kennedy as the Democratic nominee for President. Certainly, no one has proven nor probably ever will be able to prove the allegation. What is possible is that a device such as ABSCAM, if it is tolerated and given the imprimatur of the Judicial Branch, could be the vehicle for political reprisals and threats in the future. The threat that the Executive can contort or mold such legitimate activity into the basis for prosecution intimidates and dampens the independence of the Legislative Branch. Faced with the possibility of an ABSCAM Executive, Congressmen will be reluctant to engage in dialogue with their constitutents thereby impairing their overall function. Thus, to allow the government's agents to create crimes in a perfectly legitimate scenario in order to ensnare Congressmen without any scintilla of evidence of a pattern to bribe-taking among Congressmen in general and of any indicia of predisposition of a particular Congress man to take a bribe has a chilling effect on the effective In his brief, Rep. Lederer also noted that during trial the Government introduced, over Rep. Lederer's objection, a copy of the Financial Disclosure Statement which Rep. Lederer had filed with the Clerk of the House of Representatives on June 2, 1980. The introduction of the statement, continued Rep. Lederer, violated his rights under the Speech or Debate Clause in that the filing of the statement was required by the House rules which in turn were promulgated pursuant to the Constitutional directive that each house of Congress determine its own rules of proceedings. The introduction of the statement, said Rep. Lederer, was reversible error. The Government's brief was filed on February 8, 1982. With respect to the statement, the Government said: The filing of a personal financial disclosure statement, manifestly, is not a legislative act. Indeed, the Ethics in Government Act of 1978, 2 U.S.C. § 701 et seq., pursuant to which the disclosure statement was filed, makes clear that non-legislative financial activities are its only concern. For example, reporting is required only of such non-legislative matters as dividends from stock, rental income, interest income, capital gains, gifts from non-relatives, property interests, liabilities owed to creditors, and honorariums. Indeed, appellant was specifically not required to list income from employment by the United States Government. 2 U.S.C. § 702(a)(1)(A). 13 Recognizing that the preparation and filing of a disclosure report is not remotely a part of any conceivable legislative process, appellant rationalizes that since it is the duty of a Congressman to file disclosure reports, the Speech or Debate clause bars "the government's use of or reliance upon any acts performed by the Member in the course of his duties in the House." Brief for Appellant at 36. In words that expressly refute this argument, however, the Supreme Court rejected the notion that the Speech or Debate Clause bars the prosecution or investigation of "illegal conduct simply because it has some nexus to legislative functions." United States v. Brewster, supra at 528. The Court stated that the fact that members of Congress perform certain acts "in their official capacity . . . does not necessarily make all such acts legislative in nature." Gravel v. United States, supra at 625. Accord, Doe v. McMillan, 412 U.S. 306, 313 (1973). See Hutchinson v. Proxmire, 443 U.S. III (1979) (Senator's newsletters and press releases not protected by the Speech or Debate clause); In Re Grand Jury Investigation, 587 F.2d 589 (3rd Cir. 1978) (Congressman's personal telephone calls from his office not subject to Speech or Debate Clause); United States ex rel Hollander v. Clay, 420 F. Supp. 853, 856 (D.D.C. 1976) (Congressional travel vouchers not protected by the Speech or Debate clause). Indeed, convictions of Congressmen for sub mitting falsified documents to various administrative agen- Thus, appellant has failed completely to demonstrate 13 Significantly, although the Speech or Debate Clause provides protection against civil actions, as well as criminal proceedings, Eastland v. United States Servicemen's Fund, 421 U.S. 491, 502-03 (1975), Congress specifically authorized the Attorney General to initiate civil proceedings in a United States District Court against any Representative or Senator who falsifies his disclosure statement. 2 U.S.Č. § 706. It seems likely that Congress did not regard the assembling and filing of financial disclosure statements as a "legislative activity." 14 The one case cited by appellant, if anything, proves our point. In United States v. Eilberg, 465 F. supp. 1080 (E.D. Pa. 1979), the Spech or Debate Clause was held to bar the use of a Congressman's testimony before an ethics committee of the House of Representatives. Testimony by a Congressman before a legislative committee is plainly protected by the Clause as a "Speech or Debate in either House." But here, appellant Lederer is unable to demonstrate that his financial statement was used in connection with a committee proceeding, or shown to a legislator or was the subject of debate in the House of Representatives, let alone that it involved testimony on the House floor. [Brief for Appellee, February 18, 1982, at 35-36] Rep. Lederer filed a reply brief on February 26, 1982. Status-The case is pending in the U.S. Court of Appeals for the Second Circuit. The complete text of the July 24, 1981 memorandum and order of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981. United States v. Williams Criminal Case No. 80-00575 (E.D.N.Y.) and Nos. 80-1474, 811097, 81-1022, and 81-1061 (2d Cir.) On October 30, 1980, U.S. Senator Harrison A. Williams, Jr. of New Jersey was indicted by a Federal grand jury in the U.S. District Court for the Eastern District of New York. Indicted with Senator Williams were Alexander Feinberg, a New Jersey attorney; George Katz, a New Jersey businessman; and Angelo J. Errichetti, the Mayor of Camden, New Jersey and a member of the New Jersey State Senate. [Criminal Case No. 80-00575 (E.D. N.Y.)] Count I of the nine count indictment charged the defendants with conspiracy, contrary to 18 U.S.C. § 371.2 Specifically it was 1 Specifically, conspiracy to violate 18 U.S.C. § 201 (bribery and fraud) and 18 U.S.C. § 203 (conflict of interest). 218 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 such persons do any act to effect the object of the conspirContinued |