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: this indictment. Nor does the Chase Manhattan Bank's "gross de

ception", Williams memorandum at 46, affect the due process rights of these defendants, who do not even claim that they had direct knowledge that the sheik's funds were on deposit until after knowledge of the Abscam investigation became public. G. Cumulative Effect

(14] Defendants have argued not only individual instances of claimed outrageous conduct by the government, but they also urge that, when combined, the various instances have a cumulative effect which amounts to outrageousness. The court is not convinced. As indicated above, many of defendants' arguments are not factually supported by the record; other instances that did occur did not prejudice any rights of the defendants. Whether viewed as separate instances or in its totality, the conduct by the government during its investigation does not constitute outrageousness that would require dismissal of the indictment under applicable Supreme Court precedents. 14

IX. CLAIMED MISCONDUCT BY GOVERNMENT AT TRIAL

Defendants urge several points designed to show that the government engaged in persistent misconduct during the course of the trial.15 They urge that the government (1103] improperly introduced evidence of the activities of defendant Williams with respect to the Ritz Casino and a permit for the Biocel Corporation; they argue that the government intentionally misrepresented at trial the purpose for introducing a second group of Arab businessmen to purchase the titanium venture; they object to the prosecutor's references to defendant Feinberg as defendant Williams' "bag man”; and they criticize certain comments made during the government's summations. A. Ritz Casino Evidence

[15] Defendants argue that evidence of their involvement in obtaining a permit for the Ritz Casino was improperly offered for two reasons. In the first place, they contend that the evidence could not show pre disposition since it occurred in 1979, after the investigation had begun. Assuming that the titanium mine and Ritz Casino projects proceeded simultaneoulsy, nothing in the law of entrapment would preclude at the titanium trial evidence of defendant Williams' other attempts to use influence on public officials, whether made before, during or after the titanium events. Logically, such evidence is relevant to Williams' state of mind; absent a claim that somehow the Abscam investigators also induced defendant Williams' overtures to members of New Jersey's Casino Control Commission, a claim not made here, such conduct is legally admissible to show defendants' motive, opportunity, intent, preparation, and method of operation. F.R.E. 404(b).

14 It should be noted that to a significant extent, defendants are really urging the court to adopt an objective view of entrapment, in violation of controlling precedent. This the court has previously refused to do, and still refuses. Defendants Williams and Feinberg urge two specific claims. (1) Was the government's conduct "outrageous”? and (2) If not, did the government establish beyond a reasonable doubt that defendants were predisposed to commit the crimes? In section Víl the court answers the "outrageousness” question in the negative. At trial the jury found predisposition, that negated entrapment, and in section VII of this decision the court finds the evidence supporting the jury's finding of predisposition to be legally sufficient.

15 These arguments are to be distinguished from defendants' "outrageousness” argument, discussed in section VIII, which is directed at claimed misconduct during the course of the investigation.

[16] Secondly, defendants argue that it was improper for the government to use evidence of Williams' activities with Lordi, because the government had in its files memoranda acknowledging that the officials in New Jersey had been unable to corroborate or confirm the investigative lead. This argument conveniently overlooks, however, the source of the evidence that Williams and Feinberg attempted to influence a decision by the Casino Commission. That evidence was a taped conversation in which Williams and Feinberg told of, indeed, bragged of their contacts with commission members and of the results which had followed. Gov't ex 24A. It may be that the commission members that were claimed to have been ap proached, do actually deny that the events occurred. It may also be that in a prosecution against the commissioners there would be insufficient evidence to establish guilt. The government's evidence here, however, consisted of direct admissions by Williams and Feinberg, admissions made under circumstances that were designed to impress the listeners with their know-how, their awareness of political reality, their ability to achieve results, and their willingness to use the Senator's influence for financial gain. In such circumstances there is no unfairness in using the defendants' own voluntary statements as evidence against them.

In one of their memoranda, Plaza and Weir analyzed the evidence about Williams' participation in the Ritz Casino application. DP ex. 24. At page 9 they conclude: "there is no evidence that Williams made such inquiry or recommendation to Lordi.” Of course, Plaza and Weir did not have the benefit of Williams' trial testimo ny that he "thought" he had contacted Lordi on the subject; but in concluding that there was “no evidence", they do seem to have disregarded that Williams and Feinberg jointly made the videotaped admissions.

[21] Evidence of the Ritz Casino activities was relevant on the issue of defendants' predisposition at the trial. In a conference whose record was sealed, the court explained its evaluation of the arguments under F.R.E. 403 and 404(b); there is no need to repeat that evaluation here. In sum, however, defendants did not establish that the relatively high probative value of the evidence was substantially outweighed by the danger of unfair prejudice. B. Biocel Evidence

[18] In a similar vein, although of less dramatic impact, was evidence about defendant Williams' attempting to use influence (1104) with certain local officials in connection with obtaining a permit by the Biocel Corporation in which defendant Williams had an undisclosed interest. Since those transactions were not tape recorded there were sharp questions of credibility over this issue. Assuming the government's evidence to have been true, however, the legal analysis here is similar to that with respect to the Ritz Casino, and under the balancing test required by FRE 403, the evidence was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice.

[19] Defendants also argue that the government failed to fulfill its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in connection with the Ritz Casino and Biocel matters. The flaw in this argument, however, is that defendants were already aware of any material that would have been admissible in evidence. The argument is directed to prosecution memoranda and claims that investigations by other governmental agencies failed to produce indictments in those matters. Evidence of the prosecutors' opinions is not admissible, nor would be memoranda embodying those opinions. The witnesses who were involved in the activities were known equally to both sides. Since the government's claim with respect to the two transactions was also known to defendants, the witnesses who could have testified on the issues were equally available. In fact, defendant Williams did call some witnesses to testify on the transactions. Consequently, the argument based on Brady is rejected. C. The purpose For the Resale Stall

[20] Pointing to the government's opening statement, defendant Williams claims the prosecution invented a story of a "fictitious stall” to explain why the investigation of defendant Williams continued after he took the stock certificates on August 5, 1979. The undercover operators had promised a loan of $100 million, which, of course, they did not intend to produce. According to the government, the Abscam investigation was continuing in other areas and, therefore, could not then be terminated.

Defendant argues that the government presented no evidence to support the claim made in its opening statement; that the reason for the "stall” was false; that the true reason was because the government's case against Williams was insufficient; and that there was no good faith basis for the government's opening statement.

If the government failed to present evidence on an essential aspect of the case, this could have been grounds for dismissal of a charge, and it certainly was fair argument to the jury about the strength of the government's case. For defendant to suggest, however, that there was no good faith basis for the government's opening statement, is frivolous.

The sequence of the events undercuts defendants' argument. At about the same time that defendant Williams accepted the stock, in August, 1979, the Abscam investigators began a series of bribe transactions with congressmen that continued up into January of 1980. In order to complete those transactions the agents had to keep “Abscam” undercover. Moreover, the resale of the titanium project was first suggested to defendants in September of 1979, some two months before the November 19th meeting when, defendants argue, the need for a "stall” arose.

Both in this context and others, defendants misplace their reliance upon the internal FBI memorandum of November 27, 1979, which summarized the meeting of November 19. After reviewing the status of the Abscam investigation, certain conclusions and recommendations were reached by the relatively large group that had been assembled for the purpose. Among that group were those from New Jersey who insisted that there was no case at all against Senator Williams.

The recorded conclusion of that meeting was that it was “neces sary to re-contact U.S. Senator Williams” for two purposes: to obtain a commitment that he would sponsor legislation relating to the titanium (1105) mine, and to confirm that Williams wanted his shares hidden. The memo concludes that "if” such information was obtained “prosecutors at the meeting" felt that they could prove Williams guilty of bribery and conspiracy. The court does not construe the word "necessary" and the conditional "if" to be binding limitations upon the government's ability to act upon information that was already in its possession, or upon other, additional information they might discover. The meeting must be viewed in the context of a sharp division within the justice department, not only between the Brooklyn and New Jersey prosecutors, but also with respect to the claims by the Philadelphia prosecutor that he should be given an opportunity to develop an Ascam case there.

Clearly, the Brooklyn prosecutors did not feel that the recontact was “necessary”, even though they may have viewed it as a desirable means of strengthening their case. Clearly, too, those with veto authority over the prosecutions did not view the conditional, "if" in the memorandum to be a binding limitation that would pre vent prosecution unless the designated information was obtained, because the information was not obtained and those same people ultimately approved the prosecution anyway.

A more balanced view of the November 19th meeting and its ensuing November 27th summarizing memorandum is that the wording of the memorandum was designed to confirm agreement upon some future action with respect to defendant Williams that would be taken, without imposing limitations either upon the investigation or upon the eventual prosecution.

At bottom, defendants' argument contends that unless everyone on the government's side agrees that the available evidence makes out a case, a subsequent indictment and conviction based on that evidence violates some right of the defendant. Such has never been the law. Prosecutors frequently disagree with each other about the weight and sufficiency of evidence, just as they do with defense attorneys and, on occasion, with judges.

[21] Nor can it seriously be argued, as do defendants and others, that the internal disputes of the justice department were proper evidence for the jury's consideration. Such discussions and their re lated memoranda constitute protected work product because they reflect counsel's analysis and opinions concerning the case. Some of those disputes have subsequently been disclosed in these and other due process hearings. Such disclosures were permitted in order to plumb the utmost depths of defendants' claims. However, those opinions and the memoranda embodying them were not relevant to any of the specific issues the jury was called upon to decide in this

case.

In short, neither the document nor testimony about the meeting was admissible at the trial, because opinions of government counsel about the strength or weakness of their case are irrelevant to the jury's determination of guilt and innocence. The rule could not properly be otherwise. Indeed, if the prosecutor's opinion that he had a weak case was admissible for jury consideration, in fairness so also should be his opinion that he has a strong case. Clearly,

such considerations are improper as evidence for jury evaluation. When expressed in summations they are unprofessional and, possibly, grounds for reversal. Worst of all, if admitted into evidence, such opinions would not only make witnesses out of prosecutors, 16 but they would distract the jury from their essential role in the criminal process; determining guilt or innocence based upon the evidence. D. Feinberg as "Bag Man

[22] Defendants vigorously protest the government's characterization of Feinberg as defendant Williams' “bag man”. Defendant Williams' complaint about use of the term is focused upon the government's brief on the post-trial due process hearing. Defendant Feinberg complained about use of the term in the government's summation.

(1106) Codefendant_and co-conspirator Errichetti originally tacked the label on Feinberg in a recorded conversation with Amoroso and Weinberg on March 24, 1979. Gov't ex. 3A. When the characterization first came up at the trial it was in the context of testimony by a government witness that Errichetti had referred to Feinberg as Williams' "bagman”. Defendants' objection to the characterization was sustained, and the jury was told to disregard it. The reasons for the ruling were that Errichetti's opinion was of little probative value, his credibility was seriously suspect, and there seemed to be no need to add to what was already in evidence on the tape.

No further mention of "bag man” occurred until as the first question on Feinberg's direct examination, his attorney asked

Mr. Feinberg, are you now, or have you ever been Senator

Williams' bagman? TR. 3540. Feinberg, of course, denied the characterization. On cross-examination, the government's attorney explored Feinberg's understanding as to what a "bag man" is, and as to the relationship between an influential politician and his bag man. Essentially, Feinberg testified that the term has corrupt connotations, that a bag man is someone who would accept money on behalf of a public official and funnel that money to him, and that a bag man basically is someone who is out front for a public official, who saves the public official from certain contacts and exposure. Tr. 3794-96.

Given Feinberg's own explanation of the term before the jury and the evidence with respect to the relationship between Feinberg and Williams, coupled with their specific statements and conduct in this case, it was fair argument to the jury that Feinberg fit his own definition of the term and that he was, indeed, Senator Williams' “bagman”. A fortiori the government's characterization of Feinberg in a post-trial memorandum as the "bag man” for Senator Williams, is not improper.

16 The Canons of Ethics strongly discourage the trial attorney from being a witness at trial. See ABA Code of Professional Responsibility and Code of Judicial Conduct. DR 5–102.

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