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VII. CLAIMED ENTRAPMENT

Defendant Williams advances several arguments relating to the entrapment defense. To the extent that it asserts that the government agents' conduct toward defendant Williams was improper, the argument goes to the issue of "outrageousness" which is discussed in section VIII of this decision. To the extent that these arguments focus upon the philosophical nature of entrapment and its general relationship to the problems of governmental misconduct, they were reviewed and decided in the Myers decision. No new arguments in this area are advanced by defendant Williams, and his rehash of the general issue has not persuaded this court to change its view of the present state of the law relating to "objective entrapment” as expressed in Myers.

Two arguments are advanced, however, that deal with specific entrapment issues in this case. Defendant Williams argues, first, that the court's instructions to the jury on the issue of entrapment were erroneous, and second, that the evidence was insufficient for the jury to find he was predisposed to commit the crimes charged.

(1095) [4] The first argument, relating to the jury instructions, contends that the court took the issue of predisposition away from the jury. This argument seizes upon one sentence in an unrelated section of the charge, presents it out of context, and concludes that the predisposition question was withdrawn from the jury.

Such a strained construction of the charge not only ignores the overall structure of the charge, but also ignores the specific issues that were given to the jury in the form of the essential elements of the crime. On each count of the indictment the jury was instructed that in order to find the defendant guilty they would have to determine that the government had established beyond a reasonable doubt that the defendant was not the victim of entrapment. As explained to the jury, entrapment is made up of two parts, inducement by government agents to commit the offense, and no predisposition by the defendant.

The jury was further instructed that “the term entrapment means that law enforcement officials, acting either directly or through an agent such as Melvin Weinberg here, induced or persuaded an otherwise unwilling person to commit an unlawful act." Tr. at 5572. The court next pointed out some of the inducements presented by the government to defendants and turned the jury's attention specifically to the question of predisposition. Specifically, the court stated:

Under the law of entrapment, therefore, that leaves for you, the jury, to determine as the decisive question on this intrapment issue whether the defendant was predisposed to commit the crime; that is, whether he was ready and willing to commit a crime such as charged here whenever

a favorable opportunity was offered. Tr.at 5574. The court then reviewed several of the conceptual and evidentiary problem that the jury would have to consider in determining whether or not a defendant was predisposed. That review covers approximately 542 pages in the record. Tr. 5574-5579.

Later, after completing its discussion of the essential elements of the nine counts of the indictment and after a review of certain specific evidence problems, the courts turned to a general wind-up intended to place matters in an overall perspective. The first three paragraphs of that discussion read:

It is important, ladies and gentlemen, that you focus on the precise issues before you. As I said at the beginning, the defendants are on trial in this case for the specific counts of this indictment. One count of conspiracy, two counts each of bribery, criminal gratuity, conflict of interest and interstate travel for wrongful purposes.

What the FBI agents and Mr. Weinberg did should concern you only to the extent that you find that it affected the conduct and state of mind of a defendant or other participants in the conspiracy or only insofar as it may affect the credibility of any witness with respect to the matters

before you.

You are not to be concerned with whether the prosecution of the FBI agents or Mr. Weinberg acted legally or illegally, properly or improperly or whether the Abscam investigation itself was conducted properly. Those are questions which

must be decided by me at the appropriate time, but except in assessing credibility here, not questions which should affect your determination of the facts in this case or the guilt or innocence of these defendants, your central focus must be upon what the defendants did and what they thought.

Defendant Williams contends that the underscored portion of the above passage in effect took the predisposition question away from the jury and emasculated his predisposition defense. Both in its immediate context and in the overall context of this lengthy charge, it appears to this court to be unrealistic for defendant to suggest that the jury could in any way have inferred from the underscored language a direction either that they were not to consider defendants' predisposition or that they were to automatically conclude that the entrap-[1096 ]ment element of each offense had been ne gated beyond a reasonable doubt. Defendant Williams' motion on this ground is therefore denied.

[5] The second question on predisposition raised by defendant Williams is whether there was sufficient evidence from which a jury could reasonably find predisposition. In substance, defendant Williams argues that the record establishes that he was not predisposed to criminal conduct of any sort, and that is is unquestionably true that when his name came up in the Abscam investigation the government had no reason to suspect him of criminal conduct.

However, at the very beginning when Errichetti approached Weinberg about a possible loan for a business venture in which de fendant Williams was interested, considerable doubt was cast upon Williams' position. As early as March, 1979 there had been presented to the Abscam investigators, at defendant Williams' initiative, a proposed business venture whose principals included a businessman with a known criminal background (Katz), a grossly corrupt local politician (Errichetti), a lawyer (Feinberg) who was advertised by one of his own co-venturers as a “bag man” and who showed he was willing, if not anxious, to pay and receive bribes, provided they were called "fees”. All three of them were enthusiastically pushing a titanium mine in which a United States Senator (William) had a hidden interest.

In its brief the government reviews in some detail the extensive evidence at trial from which the jury could properly find predisposition. While the court does not agree with the government's characterization of that evidence as sufficient to support the jury's findings beyond a reasonable doubt that both defendants were predisposed.

Considering that evidence in the light most favorable to the government, and resolving credibility issues in favor of the government and against the defendant, as required by the applicable precedents, e.g., Glasser v. U.S., 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), the jury could have found that for an extended period of time defendants Williams and Feinberg had used Williams' influence and position in attempts to enrich themselves; that, specifically, this was done in connection with the Biocel and Ritz projects; that Feinberg was Williams' "bag man”;10 that on May 31, 1979 when first asked if he would seek government contracts for titanium, Williams said that he would “try”; that later, at least twice, he specifically agreed to use his influence to obtain government contracts for the titanium; that Williams was willing to receive cash in "expense money" as long as it did not pass to him directly; and that together Williams and Feinberg sought to conceal Williams' involvement in the titanium mine by use of a “blind trust”.

Defendant Williams also urges that the "pre" in "predisposition requires as a matter of law that a defendant's inclination to commit a crime must exist before he has any contact with government agents. This argument can be viewed on two levels. As part of the “outrageousness” argument, it urges that before any investigation may begin, the government must have evidence that its eventual target was predisposed to commit a crime. This argument is discussed in the "outrageousness” section. 11

[6] On a different level, defendants' argument could be viewed as requiring that the jury, when it determines “predisposition", focus not upon the time when the crime was committed, but upon the time when the government's investigation began. On a conceptual level, the court rejects this argument. The relevant time for determining predisposition cannot be so precisely focused. Evidence of everything that happened before final completion of the crime was relevant, but ultimately, it was for the jury to determine under the instructions given here whether the defendants were predisposed, that is, whether they were oth- [1097) erwise innocent persons who were enticed, induced, persuaded, or lured to commit the crime, or whether they were ready and willing to commit such a crime whenever a favorable opportunity was offered. The jury found that the agents did not induce an innocent person, but did no more than furnish a convenient opening for criminal activity in which defendant Williams and defendant Feinberg were prepared to engage.

10 See discussion in section IX-D. 11 See discussion in section VIII-D.

Defendant Williams comments that in the Myers decision this court seems to have "written off the predisposition concept as a matter of law. This argument reflects misunderstanding of the issues in Myers. That decision dealt with seven defendants in three cases. Except for some due process overtones, entrapment was not raised by the four defendants in Myers nor by the two defendants in Murphy. In those cases there was no request to charge on the issue, and the government did not present evidence on the issue.

Only with Congressmen Lederer were entrapment and predisposition made issues for the jury's determination. With Lederer, there was very little evidence of the defendant's earlier activities. The jury was asked to determine predisposition largely from evidence showing Lederer's knowledge of the purpose of the meeting and his response to the bribe when it was offered. The instruction on entrapment given there was similar to the one presented to the jury here; it focused primarily on the predisposition question, and it asked the jury to determine from all the circumstances whether or not Congressman Lederer was predisposed to accept the proffered bribe.

Consequently, while predisposition was not a major concern in the Myers due process decision, this court by no means "wrote it off" as a potentially significant legal issue under proper circumstances. Such proper circumstances were certainly present as to de fendants Williams and Feinberg here, and on substantial evidence the jury determined the issue against them.

VII. CLAIMED OUTRAGEOUSNESS

Defendants contend that numerous incidents of governmental misconduct, either singly or in combination, place this case at the “demonstrable level of outrageousness” that the Supreme Court has suggested might warrant dismissal of charges even where proof of a defendant's predisposition to commit a crime defeated his claim of entrapment. Hampton v. U.S., 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). The instances of misconduct relied upon are discussed below. A. The "CoachingIncident.

[7] Much ado is made about the so-called “coaching” episode on June 28, 1979, where Weinberg is said by defendants to have put words in defendant Williams' mouth and thereby prevented him from speaking his own mind at the meeting with the sheik that followed immediately thereafter. In that taped conversation, Weinberg told Williams that the sheik was interested in hearing how "high" Williams was in the Senate, Gov't ex. 14A at 2; whom Williams knew who could do favors for the business venture, id; and how Williams would use his influence and importance to obtain government contracts, id. at 3-4. Weinberg also told Williams that his conversation with the sheik would be “all talk, all bullshit”, id. at 5, that he just had to "play, blow his horn, and mention names", id. at 6, and that Williams would merly be "on stage for twenty minutes”, id. at 7.

The videotape of Williams' meeting with the sheik includes state ments by the senator of his importance within the senate and his

influence with the president, as well as with numerous other governmental officials. Gov't ex. 15A at 7-8. When asked by Amoroso whether he would be able to secure government contracts if the sheik agreed to finance the mining venture, Williams replied, “no problem, * it will come to pass.Id. at 9. To the jury the government argued that this tape demonstrated defendant Williams' complete and willing commitment to using his position corruptly to secure government contracts for the titanium venture.

[1098] Although Williams now asserts through new counsel that Weinberg and Errichetti had placed upon him extraordinary pressures that induced him to make certain uncharacteristic, if not involuntary, statements and to acquiesce by his silence in statements made by others, Williams' own trial testimony simply does not support his new attorney's argument. At trial Williams' own attorney exhaustively questioned him about the effect of Weinberg's suggestions and comments. Tr. at 4297-4389. When asked by his attorney on his direct examination to explain his reaction to Weinberg's statements, Williams explained that "it was offensive but it didn't mean a great deal to me to tell you the truth.” Tr. at 4299. This statement was a consistent theme of Williams' testimony concerning the "coaching" incident:

He [Weinberg] wanted me to talk about my importance. That's what he wanted. And I just thought I would go up there and talk about what I thought was important, and that's what it was all about basically, this enterprise of mine in Virginia. Tr. at 4306 (emphasis added).

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Q. Senator, now Weinberg is saying to you clearly, government contracts, using your influence. And all you are saying here is um-hum, gotcha, um-hum, um-hum. What were you thinking when this was going on?

A. What I started to develop a moment ago, while he's going on this way I was thinking of what I was going to develop when I got upstairs. * * but there can be no exaggeration, no statement of things I know I could not do, would not do in no shape was I going to be associated with, even in a baloney sense as they called for, and that was a contract. Tr. at 4307 (emphasis added).

Q. Did you ever say you are the man, you are going to open the doors, you are the man who is going to do this, to use my influence, and I guarantee this?

A. No.
Q. Did you ever guarantee anything?
A. Absolutely not. Tr. at 4309.

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And I knew I was not going to say anything about any of that because it had not-I had not been involved. and I know I was not going to say anything about it. Tr. at 4310 (emphasis added).

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