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cial" directive, for assessing which phone calls constitute a fraud on the United States.
This argument has facial appeal but is not ultimately persuasive. The "strictly official” language, while undoubtedly vague, would be an adequate standard for judicial scrutiny of some phone calls. For example, a phone call from one of Representative Eilberg's relatives to a business associate that concerned the relative's personal business, 3 could certainly be said to run afoul of the “strictly official” standard. Just as clearly, in other situations the "strictly official” standard may not be as susceptible of application. The conclusion to be drawn from this state of facts is not, as the Clerk urges, that the case against Representative Eilberg is utterly non-justiciable because there is an absence of a workable standard for evaluating calls charged to Representative Eilberg's phone. Instead, it suggests that the standard prescribed by Congress may be inadequate in some close cases. That, of course, is a matter for Judge Pollack to decide once the government is in possession of the subpoenaed material and attempts to introduce specific phone records into evidence in an effort to document particular violations of the False Claims Act.4 The only question that needs to be decided at this stage, and the only question reached by Judge Pollack, is the threshold, “overall-question of justiciability,” United States v. Eil. berg, No. 79-1623 (E.D. Pa. October 22, 1981) at p. 52 n. 13; i.e., whether section 46(g) furnishes an articulable standard for a judicial assessment of the legality of phone calls certified by Repre sentative Eilberg.
In marked contrast to the suit brought against Senator Cannon, the threshold question as to the presence of some manageable standard can be answered in the affirmative in this case. Because Cannon is distinguishable from the case at hand in this fundamental fashion, Judge Pollack's inability to consider the Cannon opinion in formulating his decision does not deprive his ruling of the “law of the case” status which it is otherwise due.
There is one final conceivable basis for a refusal to accord Judge Pollack's decision for deference it would normally receive. This is the failure the decision to consider the implications of Representative Eilberg's Speech and Debate Clause rights. As noted, Repre sentative Eilberg has intervened in the Clerk's present motion to quash and he asserts, without explanation, that compelled production of the documents sought will violate the Speech and Debate Clause of the Constitution.
3 The Clerk also intimates that it would be impossible for a court to infer from telephone ree ords the subject matter of the phone call and, therefore, whether the calls were official * Whether the United States could at some point in the future adequately document its allega tions of fraud from the present records sought is not properly a subject of consideration with respect to the instant motion to quash. Such a question of proof should be left for Judge Pollack's substantive consideration of the charges against Representative Eilberg.
4 Indeed, Judge Pollack himself noted that the granting of the motion for a determination of materiality and relevancy "is not to be understood as precluding the Clerk from arguing the 'materality' and/or the "relevancy' of particular documents falling within the letter of the United States' broad subpoena.” United States v. Eilberg, No. 79-1623 (E.D. Pa. October 22, 19) at p. 52 n. 13. Moreover, it is significant that the United States is seeking through the instan: subpoena to discover House regulations relevant to the question of allowable telephone billins The obvious purpose of discovering these regulations is to refine the “strictly official" standard as much as possible. It would be premature to declare that the case brought against Representa tive Eilberg is non-justiciable before the United States is given an opportunity to analyze and apply the information it is pursuing.
Judge Pollack's opinion does not expressly analyze whether Representative Eilberg's rights would be violated by the government's investigation into the telephone records being pursued. It is evident, however, that Judge Pollack presumed that the simple subpoena of the documents could not contravene Representative Eilberg's constitutional interests. In note 13 of the opinion, Judge Pollack states that the granting of the motion for a determination of relevancy and materiality is not "to be understood as precluding the Clerk, or Mr. Eilberg, from raising such particularized 'Speech and Debate' contentions as may be thought to render some proposed evidence inadmissible." Untied States v. Eilberg, No. 79-1623 E.D. Pa. October 22, 1980) at p. 52 n.13. The obvious assumption underlying this statement is that the Speech or Debate Clause may accord Representative Eilberg rights to exclude particular documents from evidence but it in no way curtails the power of the United States to attain these records through otherwise legitimate judicial processes.
This assumption is no doubt derived from the opinion of the Third Circuit Court of Appeals in Representative Eilberg's predecessor criminal case, In Re Grand Jury Investigation, 587 F. 2d 589 (3rd Cir. 1978). In that case, the court held that a subpoena for virtually identical phone records to those demanded in this suit was not invalid under the Speech and Debate Clause. The court found that only “the use against the Congressman of those portions of the documents which record such legislative acts offends the Speech and Debate Clause.” 587 F. 2d at 596 (emphasis supplied). In determing that the Speech or Debate Clause basically provides a use of immunity and not a "clock of secrecy" the court undertook a searching investigation into the rationale for the privilege, as well as available Supreme Court precedent. 587 F. 2d at 596-98. Thus, there can be little question that Judge Pollack’s treatment of the Speech or Debate Clause issue actually incorporated the definitive analysis of In Re Grand Jury Investigation. Judge Pollack's aotation that Speech or Debate Clause concerns must await particularized evidentiary consideration was undoubtedly grounded in he Third Circuit’s parallel determination on an essentially idential issue. Judge Pollack's limited discussion of the Speech or Debate Clause question, therefore, should not deprive his ruling of 'law of the case” effect; Judge Pollack evidently considered the question and resolved it in accordance with controlling precedent.
The United States' motion to Judge Pollack for a determination of relevancy and materiality involved the same justiciability issues that are pertinent to the instant motion to quash. All directly rele vant and conceivably dispositive matters of law and fact were pre sented to and ruled on by Judge Pollack in a thorough and exhaustive opinion. There do not exist any extraordinary conditions that should prevent this court from granting deference to Judge Pollack's findings. As a result, a consideration of all pertinent factors compels the conclusion that Judge Pollack's prior ruling constitutes the law of the case in this matter and should be followed. Accordingly, the Clerk's motion to quash will be denied. An appropriate order accompanies this Memorandum Opinion.
THOMAS A. FLANNERY, United States District Judge.
529 F. Supp. 1085 (1981)
UNITED STATES OF AMERICA
HARRISON A. WILLIAMS, JR. AND ALEXANDER FEINBERG, DEFENDANTS
No. CR 80-00575
United States District Court, E. D. New York
December 22, 1981 Following convictions of bribery, criminal gratuity, conflict of interest, interstate travel for unlawful activity, and conspiracy, defendants filed motions to set aside jury's verdicts and dismiss indictment for due process and related reasons. The District Court, George C. Pratt, J., held that: (1) to the extent motion to suppress was based on Fourth Amendment grounds, failure to file pretrial motion constituted waiver; (2) suppression of tapes on ground that there were too many of them was not warranted; (3) evidence was insufficient to support one defendant's conviction under Travel Act; (4) jury was properly instructed concerning entrapment defense; (5) evidence was sufficient to support finding of predisposition; and (6) Government's conduct, both during Abscam investigation and during trial, was proper and did not warrant dismissal of indictments.
Ordered accordingly. 1. Searches and Seizures Or 7(27)
To the extent defendant's motion to suppress was based on Fourth Amendment grounds, failure to file pretrial motion con(1086) stituted a waiver. U.S.C.A.Const.Amend. 4; Fed.Rules Cr.Proc. Rules 12, 12(b)(3), (f), 18 U.S.C.A. 2. Criminal Law Ow 394.6(2)
Suppression of tapes of defendants' voices was not warranted on ground that there were too many of them. 3. Bribery on 11
Evidence of defendant's knowledge of codefendant's travel in interstate commerce to further illegal transaction was insufficient to sustain Travel Act conviction, where, although record indicated that discussions about transferring stock took place between defendant and codefendant, there was no evidence that defendant had any hand in arranging either meeting at airport that eventually occurred or interestate travel that led to the meeting. 18 U.S.C.A. $1952. 4. Indictment and Information Om 144.1(1)
Dismissal of indictment resulting from Abscam investigation was not warranted by instruction that jury was not to be concerned with whether FBI agents acted legally or illegally, properly or improperly or whether Abscam investigation itself was conducted
properly, where jury could not have reasonably inferred from such language direction either that they were not to consider defendants' predisposition or that they were to automatically conclude entrapment element of each offense had been negated beyond reasonable doubt in view of instructions fully explaining entrapment de fense. 5. Criminal Law Ow 569
Evidence was sufficient to support jury's findings beyond reasonable doubt that defendants were predisposed to the criminal conduct uncovered in Abscam investigation. 6. Criminal Law Ow 37(4)
Relevant tie for determining predisposition to commit crime cannot be precisely in focus at time when government's investigation begins. 7. Indictment and Information om 144.1(1)
Dismissal of indictment was not warranted by allegedly "outrageous” government conduct involving "coaching” of defendant by undercover operative, where record indicated that defendant's statements and actions were voluntary and intentional rather than the product of the “coaching,” defendant could not reasonably comlain that he was duped by undercover operatives to the point of innocently acquiescing in proposed illegal bribery, and coaching did not influence defendant to say or do anything he had not previously agreed to do and say. 8. Indictment and Information om 144.1(1)
Dismissal of indictment was not warranted by allegedly "outrageous” government conduct involving interruption of defendant's conversation by undercover operatives, even though interruption allegedly prevented defendant from explaining basis for his refusal of bribery money, in view of evidence that interruption had been planned before defendant refused the offer of money and in vew of fact that defendant was given opportunity to refuse money on videotape and not only did so but also explained why. 9. Indictment and Information om 144.1(1)
Dismisssal of indictment was not warranted by internal FBI memorandum which suggested that case against defendant was incomplete and that further specific proof should be adduced of de fendant's criminal propensity before seeking an indictment against him; merely because some government employees were not overly impressed with strength of case against defendant did not mean that Government was precluded from testing sufficiency of its evidence before grand jury in obtaining indictment or from convincing petit jury of defendant's guilt beyond reasonable doubt. 10. Indictment and Information Om 144.1(1)
Dismissal of indictment based upon alleged selective prosecution was not warranted since record did not support selective prosecu