dum in Support of Defendant Jenrette's Motions to Dis- In support of his contentions, Rep. Jenrette made six basic points. First, he alleged that the individuals responsible for the ABSCAM undercover operation made a number of organizational and operational decisions designed "solely for the purpose of immunizing the investigation from subsequent review and responsibility." [Id. at 10] For example, said the defendant, Mr. Weinberg and Mr. Stowe were at liberty to approach Members of Congress as they saw fit. According to Rep. Jenrette, the transcripts of the testimony taken during his trial revealed that the decision to investigate him was based on Mr. Stowe's allegations to Mr. Weinberg that Rep. Jenrette would accept a bribe; yet the "FBI made no attempt to even examine these allegations-much less confirm them." [Id. at 11] Further, said the defendant, the testimony of Mr. Weinberg's supervisor, FBI Agent Amoroso, indicated that, absent a tape recording, Agent Amoroso had no way of knowing what Mr. Weinberg said to Mr. Stowe. Thus, "Any attempt to obtain the details of the initial middleman discussions (which may or may not involve outrageous promises of wealth, jobs, or threats by Weinberg) is now covered by Amoroso's testimony that he relied strictly upon Weinberg's word on the initial contacts." [Id. at 13] In addition, claimed Rep. Jenrette, the ABSCAM investigators made very few written records during the course of the investigation. In fact, "Amoroso testified at trial he made absolutely no notes of his discussions with Weinberg." [Id. at 15] it was therefore Rep. Jenrette's conclusion that "the ABSCAM operation both by design and operation served to frustrate the goals of the judicial process." [Id. at 19] Second, Rep. Jenrette contended that the Congressional committees that held hearings on the ABSCAM operation were told by Justice Department officials that certain investigative guidelines and review procedures were used during the investigation when in fact they were not. For example, said the defendant, on March 4, 1980 both FBI Director William Webster and Assistant Attorney General Philip Heyman told the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee that adequate safeguards and guidelines were in place during the ABSCAM investigation to prevent abuses by unscrupulous middlemen. According to Rep. Jenrette, Mr. Heyman told the Subcommittee that one such safeguard was the avoidance of offering excessively high inducements. Rep. Jenrette quoted Mr. Heyman as stating: The opportunities for illegal activity created in the course 97-581 0- 82 3 But despite these public assurances, said Rep. Jenrette, "the government's own evidence establishes that the attitude of the undercover operatives was to offer any amount of money that would elicit a commitment." [Id. at 23] Thus, Agent Amoroso allegedly "told Rep. Jenrette that he could 'name his figure.'" [Id.] Moreover, "not even Agent Amoroso could testify as to what was promised to Mr. Stowe by Weinberg. Weinberg, not surprisingly, could only recall conversations with Stowe that were tape recorded." [Id. (transcript citations omitted)] Rep. Jenrette further alleged that contrary to what Mr. Heyman and Mr. Webster told the Subcommittee, the FBI made no independent evaluation of middlemen information regarding Rep. Jenrette's willingness to accept a bribe. Rep. Jenrette thus concluded that "the safeguards that the FBI promised Congress either never existed or did not operate in the real world." [Id. at 26] Rep. Jenrette's third main argument was that the Justice Department exercised no effective review of the ABSCAM investigation. For example, the Undercover Review Committee, which was composed of officials from the FBI and the Department of Justice, was designed, according to Rep. Jenrette, to ensure that all undercover operations would be carefully planned and conducted. However, since "no written reports [or] oral presentations were [given to the committee] . . . the committee made no review until after the fact and . . . its purpose was informational rather than supervisory." [Id. at 31-32] Equally alarming, argued Rep. Jenrette, was the fact that Mr. Weinberg was the de facto leader of the operation: "Even Agent Amoroso admitted at the trial that he had no way of knowing what Weinberg was proposing to middlemen, and that Weinberg was unsupervised a good portion of the time." [Id. at 34, transcript citations omitted] In support of his argument that Mr. Weinberg was the leader of the investigation, Rep. Jenrette made several points: One of the most obvious signs of Weinberg's dominance of the operation is his salary. Even Mr. Amoroso admitted at trial that $133,000.00 over an 18 month-period was considerably more that he, as Weinberg's FBI supervisor earned. This figure, later amended by post-trial government disclosures, did not include "expenses" which could be at best termed generous. Even more suspect is how the FBI reacted to Weinberg's salary. Anthony Amoroso, who after one meeting, recommended a salary increase from $1,000 to $3,000 per month, claimed at trial to know nothing about Weinberg's salary . . Thus it is interesting to note that when Amoroso and Weinberg first met the only thing they discussed (other than Weinberg's boyhood) was Weinberg's salary. The second indication of Weinberg's role as a leader in the operation can be found in the deference paid to Weinberg's style of operation. As the incident between Agent Good and Messrs. Plaza-Weir demonstrates, the FBI was 7 7 In his memorandum, Rep. Jenrette claimed that FBI Agent John Good, who was Agent Amoroso's supervisor, prevented Assistant U.S. Attorneys Plaza and Weir from questioning Mr. Weinberg. far more concerned with Weinberg's ruffled feathers than This deferential attitude goes a long way in explaining In this same vein, Rep. Jenrette stated: When Mr. Puccio testified that he could not attribute any of his initial information to anyone other than Weinberg, the danger of Weinberg the con-man is clearly present. The fact that Weinberg was compensated partially by bonus should raise further doubts. Added to this equation is the fact that no one checked any of the rumors supplied by Weinberg. Thus one reaches inevitable conclusion that Weinberg had substantially more control over the operation than did most of the employees of the Department of Justice. The possibility of such control being vested in Melvin Weinberg is outrageous. The decision to permit such control is not only outrageous government conduct but inexcusable neglect of the duty of law enforcement. [Id. at 36-37 (transcript citations and footnotes omitted)] Rep. Jenrette's fourth point was that the Government's failure to monitor the ABSCAM_investigation resulted in numerous investigative irregularities. One such alleged irregularity involved the FBI's informant file on Mr. Weinberg, which in Rep. Jenrette's view was "but a bare skeleton of what it should have been." [Id. at 45] The chief of the FBI's Informant Unit, said Rep. Jenrette, "testified that a 137 [informant] file should contain the following items which apparently.. were not present: a 302 of any instructions given to an informant; a memo reflecting the fact the informant had been instructed on the elements of entrapment; and regular written informant reviews." [Id. at 46] Rep. Jenrette concluded that these omissions indicated that the Government "deliberately elected to violate its own precedent and refused to generate any material for the 137 file which could serve as a check on Mr. Weinberg's veracity." [Id.] Next, Rep. Jenrette claimed that no one involved in the investigation ever attempted to recover, or learn the contents of, three tapes stolen from Mr. Weinberg's suitcase at an airport in January 1980. Finally, the defendant stated that despite the fact that the FBI's Operations Manual requires FBI agents to record investigative notes on a Form 302 whenever an interview with a prospective witness or suspect may become the subject of ... 8 Thomas P. Puccio, Attorney-in-Charge of the Justice Department's Organized Crime Strike Force for the Eastern District of New York, prosecuted the ABSCAM cases involving Congressmen Myers, Lederer, Murphy, and Thompson. court testimony, neither Agent Amoroso nor Agent Good prepared written records of any of the unrecorded telephone calls made by Mr. Weinberg to Mr. Stowe. This failure to take notes, insisted Rep. Jenrette, was not surprising, since the Justice Department had made “a deliberate decision not to establish a 'paper trail.'" [Id. at 57] Rep. Jenrette's fifth argument was that the individuals responsible for the investigation violated a number of Federal statutes. According to Rep. Jenrette, in mid-1978 John Harmon of the Office of Legal Counsel in the Justice Department submitted a memorandum to the Attorney General in which he expressed his view that the FBI was conducting the ABSCAM investigation in probable violation of four Federal statutes: 31 U.S.C. § 484 (imposing on Federal officers a duty to transmit to the U.S. Treasury all monies received for the use of the United States); 18 U.S.C. § 648 (regarding embezzling or depositing funds belonging to the United States); 31 U.S.C. § 665(a) (prohibiting officers of the United States from entering into unauthorized contracts involving the payment of Government funds); and 41 U.S.C. § 11(a) (prohibiting entering into a contract on behalf of the United States without authorization). Rep. Jenrette's sixth main assertion was that the Government lacked a reasonable basis for bringing him into the ABSCAM investigation. In support of this allegation of improper targeting, Rep. Jenrette stated that his reluctance to become involved in undercover operations prior to ABSCAM, coupled with the fact that "not one government witness has given one factual predicate for suspecting that... Rep. Jenrette would do wrong," proved that he "was neither corrupt nor corruptible." [Id. at 73-74] Rep. Jenrette's July 20th memorandum concluded its discussion of Government overreaching by calling on the court to: either (1) dismiss the indictment on the grounds that it was the product of evidence procured in violation of Rep. Jenrette's due process rights; or (2) grant a new trial at which the evidentiary fruits of the Government's constitutionally impermissible activities would not be introduced into evidence. In support of these requests, Rep. Jenrette stated that the decision in United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978) provided a model for the appropriate inquiry in the present case: In Twigg the Court reviewed in detail the circumstances reflecting on the fairness of the investigation and prosecution. The Court considered it significant that the government informant approached the defendant with a proposal to manufacture amphetamines, and that the government agent, not the defendant, instigated the allegedly criminal activity. In the present case as well, the criminal activity was instigated by the government and sustained by the middleman at the government's direction. In Twigg, the Court found that there was no preexisting criminal enterprise, as was also the case here. Further, the defendant in Twigg was "lawfully and peacefully minding his own affairs, when the "conduct of the government agents. . . generated new crimes merely for the sake of pressing criminal charges against him." Id. at 381. The same was true of Messrs. Jenrette and Stowe here. In fact, Having concluded his arguments on the subject of overreaching, Rep. Jenrette, in his July 20th memorandum, proceeded to address the issue of entrapment. Quite simply, Rep. Jenrette stated that a review of the complete record established, as a matter of law, that the undercover operation entrapped him. Although the entrapment issue had been presented to the jury for its consideration, said the defendant, Judge Fullam's decision in United States v. Jannotti, 501 F.Supp. 1182 (E.D. Pa. 1980) demonstrated that the issue could be resolved by the court as a legal matter even in the face of a jury verdict adverse to the defendant. In the instant case, continued Rep. Jenrette, a finding of entrapment was necessary for two reasons. First, the Government had failed to show beyond a reasonable doubt that he was predisposed to commit any of the charged offenses. Second, it was impermissible for the Government to attempt repeatedly to induce him to commit a crime. On this second point Rep. Jenrette claimed that the undercover operation attempted to induce him to commit a crime on four different occasions. His position was that "the government, after the first three attempts proved unsuccessful, cannot be permitted to base a prosecution upon a complete fourth attempt." [Id. at 98] In support of this contention, Rep. Jenrette cited two cases which he relied on to support his July 14, 1980 motion to dismiss: United States v. Archer, supra, and Hampton v. United States, supra. On August 31, 1981, the Government filed a memorandum in opposition to Rep. Jenrette's motions to dismiss and for a new trial. The Government's memorandum began with a detailed description of the history of the ABSCAM investigation, and more particularly, the investigation of Rep. Jenrette.9 Next, the Government addressed Rep. Jenrette's claims regarding entrapment. Quoting Sherman v. United States, 356 U.S. 364, 372 (1932) the Government claimed that entrapment exists " 'when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.'" [Government's Memorandum in Opposition to Defendants' Motions To Dismiss and Motion for a New Trial, August 31, 1981, at 25] Thus, said the Government, for entrapment to be established: (1) the Government must originate the crime and induce the defendant to commit it; and (2) the defendant must be an innocent person who would not have committed a crime of this sort had he not been thus induced. In United States v. Burkley, 591 F.2d 903 (D.C. Cir. 1978), continued the Government, the court made it clear that a "solicitation, request, or approach 9 Portions of this material are printed in Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981, beginning at page 521. |