United States v. Murphy and United States v. Thompson, 642 F.2d 699 (2d Cir. 1980) A Member of Congress who challenges an indictment against him on the ground that the grand jury which returned the indictment improperly considered evidence protected by the Speech or Debate Clause will not succeed if he fails to show that the grand jury did not hear significant and sufficient evidence not protected by the Clause. United States v. Myers [Not Reported] (E.D.N.Y. 1980) (1) The fact that Government officials, in disclosing information regarding an ongoing criminal investigation to the press, may have acted improperly or even illegally does not necessarily constitute grounds for dismissal of an indictment resulting from the investigation. (2) The dismissal of an indictment on the grounds of prejudicial pre-indictment publicity will not be granted unless the defendant shows that he suffered actual prejudice as a result of the publicity. Remaining issue raised-Under what circumstances may it be said that Government agents, in planning and implementing an undercover investigation to gather evidence of criminal activity, became so involved in the criminal activity they were investigating that any prosecution based on evidence gathered during the investigation would be barred as a matter of law? [This case is pending in U.S. District Court.] United States v. Myers, 635 F.2d 932 (2d Cir. 1980) (1) The fact that a grand jury improperly considered evidence protected by the Speech or Debate Clause of the U.S. Constitution is not, of itself, sufficient to warrant dismissal of an indictment. However, it is an open question whether dismissal would be warranted in a case where such privileged evidence constituted such a large proportion of the evidence before the grand jury as to raise a substantial question of whether the grand jury had sufficient competent evidence to establish probable cause. (2) A Member of Congress whose pretrial motion to dismiss an indictment against him on separation of powers grounds was denied by a trial court has a right to appeal the trial court's ruling before his trial begins. (3) That portion of the bribery statute (18 U.S.C. § 201(c)) which prohibits a public official from soliciting anything of value in return for his promise to perform an "official act" does not require the Government to prove that the official act was capable of being performed. (4) The enactment of 18 U.S.C. § 201 (c), creating the offense of bribery, including bribery of a Member of Congress, violates neither the Speech or Debate Clause nor the separation of powers doctrine. (5) The Punishment Clause of the U.S. Constitution, which provides that each House of Congress may punish its Members for disorderly behavior, does not deprive the judiciary of jurisdiction to try a Member of Congress on charges that he used his official position for illegal purposes. (6) Although the Speech or Debate Clause prevents the Government from questioning a Member about his legislative acts, it does not prevent a Member from offering evidence of such acts in his own defense at trial, although he thereby subjects himself to cross-examination regarding those legislative acts. (7) Congress has the power to redefine the offense of bribery so as to make non-criminal, in the case of Members of Congress, the acceptance of bribes offered by undercover agents of the Government. United States v. Williams [Not Reported] (E.D.N.Y. 1980) (1) A Member of Congress who challenges an indictment against him on the ground that the grand jury which returned the indictment improperly considered evidence protected by the Speech or Debate Clause will not succeed if he fails to show that the protected evidence constituted a substantial portion of the evidence considered by the grand jury. (2) The fact that Government officials, in disclosing information regarding an ongoing criminal investigation to the press, may have acted improperly or even illegally does not necessarily constitute grounds for dismissal of an indictment resulting from the investigation. (3) The dismissal of an indictment on the grounds of prejudicial pre-indictment publicity will not be granted unless the defendant shows that he suffered actual prejudice as a result of the publicity. Remaining issue raised-Under what circumstances may it be said that Government agents, in planning and implementing an undercover investigation to gather evidence of criminal activity, became so involved in the criminal activity they were investigating that any prosecution based on evidence gathered during the investigation would be barred as a matter of law? [This case is pending in U.S. District Court.] United States v. Myers Criminal Case No. 80-00249 (E.D.N.Y.) On May 27, 1980, U.S. Representative Michael O. Myers of Pennsylvania was indicted by a Federal grand jury in the U.S. District Court for the Eastern District of New York. Indicted with Rep. Myers were Angelo J. Errichetti, the Mayor of Camden, New Jersey and a member of the New Jersey State Senate; Howard L. Criden, a Philadelphia attorney; and Louis C. Johanson, a member of the Philadelphia City Council and a member of Mr. Criden's law firm. Count I of the three count indictment charged the defendants with conspiracy, contrary to 18 U.S.C. § 371.2 Specifically, it was alleged that on August 5, 1979 defendant Errichetti met with "Tony DeVito" and Melvin Weinberg and told them that Rep. Myers, in return for cash payments, would assist businessmen from the Middle East to enter and remain in the United States. Purportedly, DeVito and Mr. Weinberg were agents of these foreign businessmen. In reality, however, DeVito was Anthony Amoroso, Jr., a Special Agent of the Federal Bureau of Investigation ("FBI"), and Mr. Weinberg was a private citizen assisting the FBI. Also purportedly serving as agents for the foreign businessmen were "Ernie Poulos" and "Michael Cohen." In reality, however, these individuals were Ernest Haridopolos and Michael Wald, respectively, Special Agents of the FBI. Allegedly, on August 22, 1979, defendants Myers and Errichetti had a meeting with Mr. Weinberg and DeVito during which Rep. Myers received $50,000. In return, said Count I, Rep. Myers assured DeVito and Mr. Weinberg that he would introduce in Congress private immigration bills designed to ensure that the foreign businessmen would be allowed to immigrate to the United States. The indictment further claimed that Rep. Myers retained $15,000 of the $50,000 received, and that the remaining $35,000 was divided among defendants Criden, Errichetti, and Johanson. Having understood that he was to receive $50,000, not $15,000, Rep. Myers, said Count I, subsequently demanded an additional $35,000 from Poulos and Cohen as a condition to his rendering immigration assistance to the foreign businessmen. Count II charged that Rep. Myers, by soliciting and receiving pay 1 Specifically, conspiracy to violate 18 U.S. C. 201 (bribery and fraud). 218 U.S.C. § 371 provides: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. (17) |