I don't know. I was thinking about going upstairs. I didn't listen intently to every word that Mel was saying, I'll tell you.

Q. What about you're onstage for 20 minutes, the most expensive TV star that ever got paid. What did that mean to you, sir?

Ă. This meeting-it is an important meeting. And that's all that I got out of that. Tr. at 4316 (emphasis added).

It-I think I said yesterday, this is not for me, what he's talking about, that kind of effort to impress the Sheik. I was going to do it my way. So, I didn't really concentrate on that which was meaningless to me. I knew what the purpose of the meeting was to try to impress the Sheik. Tr. at 4328-29 (emphasis added).

Williams also testified that contrary to Weinberg's and Errichetti's instructions, he decided to discuss the mine with the sheik:

He [Errichetti] told me not to talk about the mine. I was going to do that

Q. Did you do that eventually?

A. I certainly did. Tr. at 4329.

Q. Why did you begin by talking about the mine which is exactly opposite what Errichetti and Weinberg told you? A. The only reason this was all coming about, this meeting, as far as I was concerned, was because of the mine. That was our reason for being together. Tr. at 4332.

At trial, Williams' position was essentially that the videotape did not incriminate him, but the jury obviously rejected his argument. Now, Williams asserts that the [1099] incriminating statements he made on videotape were the product of coaching; but his sworn testimony unequivocally establishes that his statements and actions on camera were voluntary and intentional. They cannot be dismissed as merely the product of Weinberg's urgings.

The claim of prejudice from Weinberg's and Errichetti's "coaching" is advanced by Williams' new counsel who appeared in the case to argue "due process" issues. As already demonstrated, Williams testified at trial that he was not influenced by Weinberg's statements. At the post-trial due process hearing, Williams did not testify and retract his trial position. What we are left with, then, is simply an attorney's argument that lacks foundation in the record. Moreover, Williams could not reasonably complain that he was duped by Weinberg and Errichetti to the point of innocently acquiescing in the proposed illegal bribery. Several times Errichetti and Weinberg had told him that in order to get the loan from the sheik he would have to tell him he had the political connections and power to produce government contracts for the purchase of titanium. There is no way that Williams could have misunderstood what was proposed: an offer of Williams' "power and influence" to obtain contracts in order to induce the sheik to grant the loan. Williams' fine educational background, his long political experience,

the heights to which he had risen in the councils of government, all argue overwhelmingly against any claim that people such as Errichetti and Weinberg could "put words in his mouth" or make him say things that he did not mean or did not want to say. The court finds that the conduct toward Williams of the government agents and of Weinberg with respect to the June 28, 1979 meetings was not "outrageous".

The court further finds that despite the prompting and "coaching" by Errichetti and Weinberg before his meeting with the sheik on June 28, 1979, defendant Williams acted voluntarily and intentionally in that meeting and was not influenced to say or do anything that he had not previously agreed to say and do; consequently, Williams was not prejudiced by the conduct of Weinberg and Errichetti. Absent demonstrable prejudice to Williams, dismissal of the indictment is unwarranted. U.S. v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981); U.S. v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980).

B. Timing of Interruptions.

[8] Williams contends that the government deliberately interrupted his conversation with the sheik on January 15, 1980 when Williams was about to explain why he did not want money in return for immigration help. The January 15 meeting had been arranged by the agents in order to give the sheik an opportunity to discuss with Williams the sheik's desire to immigrate to the United States. In a scene partially reminiscent of the other Abscam cases, Williams was bluntly offered money in return for his promise to assist the sheik's entrance to the United States. Williams, however, rejected the money offer. Gov't ex. 25A at 8-9. As Williams began to explain the basis for his refusal, Amoroso entered the room and told the sheik that a phone call had arrived for him. Moments later, the phone rang and the sheik excused himself from the room. Defendants urge that the interruption evidences the_government's determination to prosecute Williams at all costs. The government was so determined, the argument goes, that Amoroso was deliberately sent into the room to prevent Williams from explaining on tape his refusal of the money.

There are several reasons why this argument is without merit. In the first place, the interruption was anticipated long before the talk turned to bribery. The videotape clearly shows that even before the sheik and Williams were left to discuss matters alone, Amoroso told the sheik that he would be interrupting the meeting with an anticipated phone call. Id. at 2. Secondly, defendant's argument assumes that there was to be an interruption only in the event that Williams declined the bribe offer, but [1100] the assumption is unsupported by any evidence.

Moreover, Agents Amoroso and Good testified at trial that the decision to send Amoroso into the room to interrupt the meeting was made before Williams had refused the offer of money. The testimony of Thomas Puccio at the due process hearing corroborates Amoroso's and Good's version, and the court finds their explanation believable. Finally, even if the evidence substantiated defendants' "intentional interruption" hypothesis, there was no prejudice to Williams because Williams was given the opportunity to refuse

the money on videotape, and not only did so, but also explained why. See Payner and Morrison, supra.

The significance of the interruptions was vigorously argued to the jury by defense counsel, who contended that Williams' refusal of the cash bribe proved his general innocence and his lack of predisposition. The government argued that the videotape confirms Williams' interest in the mining venture, and his desire to have it succeed.

It is true that the tape clearly shows that Williams rejected an offer of money in return for immigration aid to the sheik. But the tape also shows that the interruption did not disrupt Williams' explanation of his position, for when the conversion and the tape resumed, Williams immediately picked up the same subject and stated in substance that what he wanted from the sheik was not a cash payment, but the sheik's financing for the titanium project. Williams said: No, the er, my interest is with my associates. To, to see this very valuable mining area, er, appropriately developed. It's doing nothing now. There is the, there is the ore, there's the titanium. There is the iron. There is the phosphorous. All of them are needed and yet nothing is happening. So my only interest is to see this come together. And the, and the, the elements that I can help with, your, your personal situation. Er, I am very, I find it, er, a desirable thing to do for you, personally. And it's part of creating something of value, bringing in that ore. Gov't ex. 25A at 9 (empha

sis added).

C. Internal Governmental Memorandum

[9] Defendants argue that because an internal FBI memorandum of November 27, 1979 suggested that the case against Williams was then incomplete, 12 and because Williams thereafter refused to accept a cash bribe on January 15, 1980, the government itself has already conceded that Williams did not commit any crime, and that the indictment, therefore, should be dismissed. Merely because some government employees were not overly impressed with the strength of the Williams case as of November 27, 1979, does not mean that the government was precluded from testing the sufficiency of its evidence before the grand jury in obtaining an indictment, or from convincing a petit jury of defendants' guilt beyond a reasonable doubt. For the government to be bound by internal preliminary evaluations of the strengths and weaknesses of a particular case would discourage prosecutors from ever acknowledging that a particular facet of a case was potentially weak or needed further evidence or might require careful handling at trial. Rather than discouraging careful preindictment evaluation of a case, however, the governing rules should encourage a prosecutor to thoroughly and vigorously evaluate all of the available evidence not only to prevent unnecessary trials but also to ascertain and strengthen potential weak spots which might later permit a guilty suspect to avoid conviction.

12 That memorandum is annexed as exhibit A to brief in support of motions for judgment of acquittal or new trial, and was marked as an exhibit at the consolidated due process hearing in Myers. DP 73 (Headquarters file, doc. 233). Since the prosecutors' opinions reported therein were irrelevant to the jury's deliberations, the memorandum was not required to be disclosed to defendant at trial. See also discussion in section IX-C.

The court concludes that the existence of the November 27, 1979 memorandum suggesting that further specific proof be adduced of Williams' criminal propensity before seeking an indictment against him does not preclude the government from proceed-[1101]ing even when the additional evidence is not forthcoming.

D. Selective Prosecution

[10] Defendant Williams moved pretrial for dismissal of the indictment on the ground that he was the victim of selective prosecution. The court reserved decision on the motion in order to consider it post-trial in light of evidence that would develop at trial and in the post-trial "due process" hearing. Williams now reasserts the motion, although the basis for the contention has shifted somewhat.

Originally, Williams contended that he and other Abscam defendants had been singled out for prosecution because they had supported Edward Kennedy for the Democratic nomination for president rather than the then incumbent, Jimmy Carter. Now, by letter to the court dated October 23, 1981, Williams' attorneys state that the claim is

not so much that Kennedy supporters were targeted but rather that certain people were given the honesty test and others, who may have been targeted by lower level government agents, were not so tested either as a result of orders from superiors or tipoffs to them as to the scam. It appears that to a large degree those people were supporters of then President Carter.

Williams contends that he is now entitled to still a further hearing on the issue. Evidence has already been presented on this question, both in the original motion papers, which included some of the testimony of Brewer before the Senate Judiciary Committee, and by witnesses at the due process hearings. On the basis of that evidence the court finds that Williams was not singled out for prosecution, nor was he "negatively selected" through the failure of some justice department official to tip him off that he was under investigation. If such a leak occurred with respect to some other potential targets, as intimated by Brewer's testimony, that leak did not reflect justice department policy, but instead was the result of misconduct by some individual in the department.

The court further finds that there were no orders from superiors directing the investigators to focus upon particular individuals, nor were there any orders forbidding them from pursuing any leads that the investigation opened up. The court further concludes that Williams was not the victim of selective prosecution; on the contrary, his prosecution was the natural outgrowth of his initial joining with Errichetti to seek financing for the titanium mine from the undercover operatives.

[11] Defendant Williams has brought no additional information to the court's attention which would warrant still more hearings under the principles described in U.S. v. Berrios, 501 F.2d 1207 (CA2 1974), nor is there any claim of evidence that was newly discovered since the due process hearing in June, 1981. Consequently,

defendant Williams' motion for a further hearing on this question is denied.

E. Amount of Inducement

[12] Both defendants, but Feinberg in particular, urge that the amount of the inducement offered to defendants was so great as to constitute entrapment as a matter of law and "outrageousness". In the stock-and-loan transaction the inducement was not an outright payment to the Williams group, but instead was a loan that was sufficient to fund the purchase and initial operation of the titanium mine and processing plant. Interest was required to be at the prime rate, and the loan was expected to be repaid. If the inducement was excessive to the defendants, it could have been only because they realized that the financial potential of the mine and plant did not justify such a loan. Since no personal guarantees were asked for, this would mean that more money was to be advanced to defendants than they ever expected to repay. Such a fraudulent intent the court does not find.

On the contrary, the court agrees with defendants that they viewed the mine and processing plant as legitimate business ac[1102]quisitions.13 Considering the extent of the real estate to be acquired, the apparent value of the ore deposits, and the production potential of the processing plant, it cannot be said that as a matter of law the amount of the offered loan, the inducement, was outrageous, excessive, or unreasonable.

[13] On the sale-of-stock transaction it was proposed that the Williams group "roll over" their investment in the mine and processing plant by selling the package to a different Arab businessman for the price of $170 million. Out of that, of course, the initial $100 million to be advanced by the first sheik would have to be repaid. The apparent profit before taxes to defendants Williams and Feinberg would have been approximately $10 million each. Unquestionably, that is a substantial sum of money. In this court's view, however, for people such as defendants Williams and Feinberg who live and work in the top echelons of our society, the sum is not so excessive as to exonerate them from criminal responsibility in accepting the bribe.

F. Miscellaneous Instances of "Outrageous" Conduct

Other instances of "outrageous" governmental conduct urged by defendants include Errichetti's forgery of defendant Williams' signature to a letter. Weinberg's alleged forgery of certificates of deposit that he provided to William Rosenberg, the FBI's agreement with the Chase Manhattan Bank for the bank to tell anyone who inquired that the sheik had a substantial deposit, and the use of an informant such as Melvin Weinberg in any investigation. The government's use of Weinberg, the Rosenberg certificates of deposit, and the Errichetti forgery have been fully discusssed in the Myers opinion. Myers opinion 527 F.Supp. at 1235, 1240-1242. They need not be reviewed again, and they do not form a basis for dismissal of

13 As mentioned above in section II, defendants' criminal conduct arose out of their willingness to use and promise defendant Williams' influence and public position as an aid in getting government contracts for the output of an otherwise legitimate mining enterprise.