[1087] 11. Indictment and Information 144.2] Defendant was not entitled to further hearing on selective prosecution claim where defendant failed to bring to court's attention anything which would warrant more hearings under principles described in Berrios decision nor was there any claim of evidence that was newly discovered since due process hearing had been held. Amount of inducement offered to defendant was not so great as to constitute entrapment as a matter of law or "outrageousness," where government undercover operatives reached agreement with defendants whereby $100 million in financing would be provided by 'Arab sheik," defendants viewed titanium mine and processing plant to be acquired as legitimate business acquisitions and, considering extent of real estate to be acquired, apparent value of ore deposits, and production potential of processing plant, amount of ofered loan was neither outrageous, excessive, nor unreasonable. Although, as a result of arrangement between defendants and indercover operatives, defendants expectd to receive profit before axes of approximately $10 million each, amount was not so excesive as to exonerate defendants from cirminal responsibility in acepting bribes, since defendants lived and worked in the top echeons of society. Dismissal of indictment was not warranted on ground that cumuative effect of instances of alleged government misconduct mounted to "outrageousness," where many of the defendants' aruments were not factually supported by record and other intances that did occur did not prejudice any rights of the defend nts. 5. Criminal Law 371(11, 12), 372(14) Evidence of defendants' involvement in obtaining permit for asino, which involved conduct occurring after Abscam investigaion had begun, was admissible at Abscam bribery trial, involving itanium mine, as evidence of defendant's other attempts to use inluence on public officials, whether before, during or after titanium vents, was relevant to defendant's state of mind and was legally dmissible to show motive, opportunity, intent, preparation, and ethod of operation. Fed.Rules Evid. Rule 404(b), 28 U.S.C.A. 6. Criminal Law 706(2) In prosecution arising out of Abscam investigation, there was no nfairness in using against defendants their own voluntary stateents bragging of their contacts with New Jersey Casino Commision members and results which followed their contacts, even if ommission members who were claimed to have been approached enied that events occurred. Evidence of defendants' activities with respect to casino was relevant on issue of defendants' predisposition in prosecution arising out of Abscam investigation and defendants did not establish that relatively high probative value of evidence was substantially outweighed by danger of unfair prejudice. Fed.Rules Evid. Rules 403, 404(b), 28 U.S.C.A. 18. Criminal Law 338(7) In bribery and conspiracy prosecution arising out of Abscam investigation, evidence concerning defendant's attempting to use influence with certain local officials in connection with obtaining permit by corporation in which defendant had undisclosed interest was relevant and its probative value was not substantially outweighed by danger of unfair prejudice. Fed.Rules Evid. Rule 403, 28 U.S.C.A. 19. Criminal Law 700 Where defendants were already aware of any material that would have been admissible in evidence and witnesses who were involved in activities were known equally to both sides and witnesses who could have testified on issues were equally available, defendants failed to show that Government failed to fulfull its obligations under Brady v. Maryland. [1088]20. Criminal Law 703 There existed good-faith basis for Government's explanation in opening statement that investigation of defendant continued after he took stock certificates because Abscam investigation was continuing in other areas and therefore could not then be terminated. 21. Criminal Law 338(1) Discussions and related memoranda of Justice Department employees concerning strengths or weaknesses of their case were protected work product, were irrelevant to jury's determination of guilt and innocence, and were inadmissible. 22. Criminal Law 720(7) Government's characterization of defendant, in summation and posttrial memorandum, as United States Senator's "bag man" was not improper, in view of defendant's own explanation of the term before the jury and evidence with respect to relationship between defendant and Senator, coupled with their specific statements and conduct, which indicated that defendant fit his own definition of the term and that he was indeed Senator's bag man. There was no impropriety in summations by government counsel warranting corrective action; prosecutor's arguments were supported by the evidence, constituted fair comment on the evidence, and were conducted in a professional, ethical fair, and constitutional manner. U.S. Dept. of Justice Organized Crime Strike Force by Thomas P. Puccio, Lawrence H. Sharf, Edward A. McDonald and Gregory J. Wallance, Brooklyn, N.Y., for the Government. Jones, Day, Reavis & Pogue by Erwin N. Griswold and Claire Shapiro, Washington, D.C., Evans, Koelzer, Marriott, Osborne & Kreizman by George J. Koelzer and Joel N. Kreizman, Red Bank, N.J., for defendant Williams. Lavin & Batchelder by Carol Prendergast, Susan D. Bauer, and Harry C. Batchelder, Jr., New York City, for defendant Feinberg. POST-TRIAL MEMORANDUM AND ORDER Having been found by the jury to have been predisposed to commit the crimes of bribery, unlawful gratuity, conflict of interest, interstate travel, and conspiracy, defendants Williams and Feinberg now urge the court to set aside the jury's verdicts and dismiss the indictment for due process and related reasons. After considering the arguments advanced and weighing all the evidence adduced in this and related cases, the court concludes that with one exception, the motions to dismiss, for judgment of acquittal, and for a new trial must all be denied. The one exception concerns defendant Feinberg's motion for judgment of acquittal on count 5, discussed in section VI, infra. I. PRIOR PROCEEDINGS U.S. v. Williams et al., CR 80-00575, was the fourth Abscam case tried before this [1089] court. In contrast to the three previous cases, which were transferred from Judge Mishler in August, 1980, this case was directly assigned to the undersigned as a "related" case when the indictment was filed on October 30, 1980. The case was originally set down for trial in February, 1981, but was later adjourned at defendants' request. Extensive pretrial motions were filed, argued, and ruled upon. Defendants' motions to have the case reassigned, to dismiss the indictment on speech and debate grounds, to hold a pretrial due process hearing, for a severance, to inspect portions of the grand jury transcripts, for dismissal of the indictment due to pretrial publicity, for a pretrial hearing on the admissibility of co-conspirator hearsay statements, for dismissal due to delay in presenting the case to the grand jury, for dismissal of portions of the indictment on grounds of duplicity and multiplicity, to disqualify Thomas Puccio from prosecuting the case, to suppress all tape recordings involving Melvin Weinberg, to inspect all of the records of the jury clerk, for disclosure of income tax information relating to defendant Williams gathered by the government, and other requests were all denied. Numerous other motions seeking discovery, production of documents, a bill of particulars, and copies of videotapes, audio tapes, and transcripts were granted in part. Motions for severance by defendants Katz and Errichetti were granted. Decision on defendant Williams' motion to dismiss on grounds of selective prosecution was reserved, and the motion was consolidated with defendants' due process claims, decision on which was deferred until after the jury trial.1 At least five pretrial appeals were taken to the Second Circuit, but this court's denial of the motion to dismiss on speech and debate grounds was affirmed, and the other appeals were dismissed as untimely. All motions to stay the trial were denied either by this court or the Court of Appeals. Trial commenced on March 30, 1981, and continued until May 1, when the jury returned its verdicts of guilty on all counts against both defendants. A post-trial "due process" hearing was held on June 22 through June 25, 1981, for which additional discovery materials were sought and provided. The court approved a post-hearing briefing schedule that was protracted in order not to interfere unduly with defendant Williams' efforts to meet charges pending in the United States Senate; that schedule was later extended further at defendants' request. On October 21, 1981 the court heard oral argument by all sides. In addition to the records of the trial and post-trial hearings, the parties have had available to them for use on this "due process motion" the trial transcripts from the Myers,2 Lederer, 3 and Thompson cases, as well as the transcript from the consolidated 4 1 Defendant Williams made an additional pretrial motion seeking disclosure of any prior elec tronic surveillance in order to assess whether the government had determined to prosecute Williams because of any information obtained through surveillance activities. The government re quested that the results of an "all agency search" be furnished to the court, and the court inspected the documents furnished in response to the search. The court did not disclose the contents of the documents to defense counsel, but assured them that no materials relevant to the instant case had been produced. Defense counsel at one point continued to request access to the materials furnished to the court, which request was denied. The materials were placed under seal and are available for appellate review. 2 U.S. u. Myers et al., Docket No. CR 80-00249, 527 F.Supp. 1206 (E.D.N.Y.1980). post-trial hearing 5 held in those cases. Moreover, the court advised counsel that it would consider all of the arguments made by defendants in those three related Abscam cases, as well as any evidence from the Philadelphia and Washington Abscam [1090] cases that might be brought to the attention of the court through counsel. 6 The specific post-hearing papers submitted on the instant motions include Williams' memorandum and reply memorandum in support of the motion to dismiss on due process and related grounds; William's brief and reply brief in support of motions for judgment of acquittal or a new trial; Feinberg's memorandum in support of all post-trial motions; the government's post-hearing memorandum in opposition to all motions; letters from Williams' attorneys of record dated October 23, 1981 and November 14, 1981; and a letter from Feinberg's attorney dated November 14, 1981. In addition, defendant Williams relies on two briefs filed pretrial relating to his claim of selective prosecution and suppression of tape recordings involving Weinberg. II. EVIDENCE AT TRIAL The general background of the "Abscam" investigation has previously been described by this court in its opinion denying the consolidated "due process" motions (hereinafter referred to as Myers decision), and need not be repeated.7 Memorandum and order of July 24, 1981. In each of the three prior cases the trial focused upon a videotaped meeting at which a congressman was offered and accepted a cash bribe. In contrast, the charges in Williams covered a greater time span, and involved transactions that were more complex and subtle, than the earlier cases. Williams involved four defendants: (1) Harrison A. Williams, Jr., who is the only United States Senator to be indicted as a result of the Abscan. investigation; (2) Alexander Feinberg, who was Williams' attorney, and was claimed by the government to be his "bag man"; (3) George Katz, a New Jersey businessman who was alleged to have been a co-conspirator and participant in the business deal out of which the Williams charges arose; and (4) Angelo J. Errichetti, who was Mayor of Camden, and a New Jersey state senator. Errichetti's trial was severed under a stipulation calling for dismissal in the event his conviction in the Myers case is affirmed. Katz' trial was severed based on a doctor's certification that he was too ill to stand trial.8 Consequently, only Williams and Feinberg were tried by the jury. The charges focused upon a business transaction relating to a titanium mine in Virginia and processing plant in Georgia. Senator Williams' investment group, consisting of himself, Feinberg, Katz, Errichetti and Sandy Williams, sought financing to acquire the ti 9 Consolidated memorandum and order denying "due process" and other post-trial motions (July 24, 1981). U.S. v. Jannotti et al., 501 F.Supp. 1182 (E.D.Pa.1980); U.S. v. Jenrette et al., Docket No. CR 80-00289 (D.D.C.1980); U.S. v. Kelly et al., Docket No. CR 80-00340 (D.D.C.1980). In the Myers decision this court set forth its views on many of the issues presented by defendants in this case. Not only is familiarity with that decision assumed, but the rulings therein, insofar as relevant here, are incorporated by reference into this memorandum and order. 9 The court has been informed that Mr. Katz is now deceased. Sandy Williams was a long-time friend of defendant Williams, but was not related to him. |