trapment defense. He also noted that Federal courts do have the power to preclude a criminal prosecution because of Government misconduct. The court would entertain Rep. Myers' motion, said the Judge, but not before trial as he had requested. Because the defendant was challenging almost every facet of the investigation, the court concluded that a pre-trial hearing would unduly delay the trial. Further, said Judge Mishler, the publicity that would undoubtedly surround such a pre-trial hearing would make it difficult to select an unbiased jury. Accordingly, the court reserved ruling on Rep. Myer's motion until the conclusion of the Government's case at which point hearings on the matter would be conducted if necessary.

On August 8, 1980, the case was transferred from Judge Mishler to Judge George Pratt.

On August 11, 1980, Rep. Myers' trial began. On August 29, 1980, Rep. Myers was found guilty on all three counts (as were the other defendants).

Hearings on Rep. Myers' motion to dismiss on the grounds of Government overreaching began on January 12, 1981.

Status.-Rep. Myers' motion to dismiss on the grounds of Government overreaching is being litigated before the U.S. District Court for the Eastern District of New York.

The complete text of the August 7, 1980 opinion of the circuit court is printed in the "Decisions" section of this report at p. 682. United States v. Kelly

Criminal Case No. 80-00340 (D.D.C.)

On July 15, 1980, U.S. Representative Richard Kelly of Florida was indicted by a Federal grand jury in the District of Columbia. Indicted with Rep. Kelly were Gino Ciuzio, a private citizen living in Florida, and Stanley Weisz, a private citizen living in New York.

Count I of the five count indictment charged the defendants with conspiracy,1 contrary to 18 U.S.C. § 371.2 It was alleged that between November 1979 and February 1980 the defendants agreed that Rep. Kelly would use his power and influence as a Member of the U.S. House of Representatives to provide immigration assistance to foreign businessmen. Purportedly acting as agents for the foreign businessmen were "Tony DeVito" and Melvin Weinberg. In actuality, however, DeVito was Anthony Amoroso Jr., a Special Agent of the Federal

8 Government overinvolvement and overreaching should not be confused with entrapment. The former is based on the notion that the conduct of law enforcement agents may be so outrageous in a given case as to constitute a denial of a defendant's due process rights. In such cases the focus of judicial inquiry is on the conduct of the Government agents. Entrapment, on the other hand, occurs when a law enforcement agent induces the commission of an offense by a person who was not predisposed to commit the offense. When entrapment occurs prosecution is precluded on the theory that Congress could not have intended to impose criminal punishment on individuals who were induced by the Government to perform a criminal act. The focus of inquiry in entrapment cases is on the state of mind (predisposition) of the defendant. The leading cases on overreaching and entrapment. United States v. Russell, 411 U.S. 423 (1973) and Hampton v. United States, 425 U.S. 484 (1976). are reprinted beginning on page 699 of this report.

1 Specifically, conspiracy to violate 18 U.S.C. § 201 (c) (bribery).

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 of such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

Bureau of Investigation ("FBI"), and Mr. Weinberg was a private citizen assisting the FBI.

According to Count I, it was agreed that in return for Rep. Kelly's assistance, Mr. Weinberg and DeVito would pay him $250,000. It was further charged that on January 8, 1980, Rep. Kelly received $25,000 from Mr. Weinberg and DeVito as an initial payment. According to the terms of the conspiracy, said Count I, Rep. Kelly would keep $100,000 of the $250,000 sum, with Mr. Ciuzio, Mr. Weisz, and unindicted co-conspirator William Rosenberg sharing the other $150,000 equally.

Count II charged that by soliciting and receiving a sum of money in return for his promise to provide immigration assistance to the foreign businessmen, Rep. Kelly committed bribery, contrary to 18 U.S.C. & 201 (c).3 Count II further charged Mr. Ciuzio and Mr. Weisz with aiding and abetting Rep. Kelly to commit bribery. Accordingly they were charged with criminal liability as principals, pursuant to 18 U.S.C. § 2.*

Count IV charged that on January 8, 1980, Rep. Kelly travelled interstate (from Florida to Washington, D.C.) with intent to promote unlawful activity, to wit, bribery. Such travel was said to violate 18 U.S.C. § 1952 (Travel Act).5

Counts III and V did not involve Rep. Kelly.

On July 25, 1980, defendant Kelly entered a plea of not guilty to all counts (i.e. Counts I, II and IV). The same day the Government filed a motion for a protective order, claiming that Rep. Kelly had repeatedly made public statements as to his intention to release publicly all audio and video tapes and transcripts of his alleged crimes. (These materials, which the Government held as evidence, would be received by Rep. Kelly pursuant to the rules of discovery applicable to criminal cases.) The public disclosure of such materials, argued the Government, would impair the court's ability to empanel a fair and impartial jury and would possibly violate the rights of individuals whose voices and images appeared on the tapes. Accordingly, the Government asked the court to issue a protective order prohibiting the defendant from disclosing publicly any materials obtained through discovery.

318 U.S.C. § 201(c) provides: Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself or for any other person or entity, in return for:

(1) being influenced in his performance of any official act; or

(2) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (3) being induced to do or omit to do any act in violation of his official duty shall be fined not more than $20,000 or three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any on ce of honor, trust, or profit under the United States. 18 U.S.C. § 2 provides: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principle.

518 U.S.C. § 1952 provides, in pertinent part: (a) whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful activity; or

(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

In response to the Government's motion, Rep. Kelly argued that the Government had been disclosing information about the case to the public on a selective basis. He claimed that his constituents would be unable to properly and intelligently exercise their constitutional rights to vote in the upcoming election if the only information about the case given to them was to be the selective and prejudicial information disclosed by the Government. Unpersuaded by Rep. Kelly's arguments, the court, Chief Judge William B. Bryant presiding, granted the Government's motion for a protective order on August 15, 1980.

On September 4, 1980, Rep. Kelly filed a motion to dismiss the indictment due to selective prosecution. In the alternative, Rep. Kelly asked that an evidentiary hearing be provided to determine whether selective prosecution occurred. In support of the motion, he asserted that only one other Member of Congress voted against the President's legislative proposals more often than he did. Rep. Kelly further asserted that he was "extremely unkind" to members of the Carter Administration who appeared before his committee to testify. The defendant also alleged that in a conversation on February 2, 1980 at the Brooklyn office of the Organized Crime Strike Force, a member of the Strike Force inquired of Philip Heymann, Assistant U.S. Attorney General for the Criminal Division. "Did we get Kelly?" To which Mr. Heymann allegedly replied, "Yes, we got the troublemaker, Kelly." The defendant next claimed that various newspaper accounts indicated that the Government had information concerning other political figures that was "equally as valid" as the information in the Government's possession regarding the defendant. By targeting him for investigation and prosecution, and by disregarding potentially incriminating evidence against supporters of the Administration, the Government, said Rep. Kelly, violated his Fifth Amendment right to the equal protection of the laws. At the least, argued Rep. Kelly, an evidentiary hearing should be held to explore the matter.

On October 29, 1980, the Government's response to the motion was filed and placed under seal.

On November 21, 1980, the defendant's motion was denied. In a short memorandum accompanying its order, the court stated that Rep. Kelly had failed to make even a colorable showing that he was prosecuted because of his political views or that he was singled out for prosecution. On September 5, 1980, defendant Kelly had also moved to dismiss the indictment on the basis of Government disclosures and prejudicial publicity. In the alternative, Rep. Kelly asked that an evidentiary hearing on the matter be provided. In his motion, Rep. Kelly argued that unwarranted disclosures of information to the press about the ABSCAM investigation denied him the right to an unbiased and impartial grand jury, and also served to deny him an opportunity for an unbiased petit jury and a fair trial. He alleged that these disclosures were in violation of the Privacy Act (5 U.S.C. § 522 (a) [b]), 18 U.S.C. § 1503 (obstruction of justice); and Rule 6(e) of the Federal Rules of Criminal Procedure.

In its October 30, 1980 response, the Government conceded that in February 1980 personnel within the Department of Justice were indeed responsible for serious leaks to the press concerning the ABSCAM

investigation. The Government claimed however that most of the publicity generated by the leaks subsided by mid-February 1980, and that the press treatment of ABSCAM as a whole had been factual and non-accusatory. Moreover, said the Government, since February 1980 the defendant had taken every opportunity to discuss his case in public, thereby nullifying his right to complain about unauthorized Government disclosures. If the case was still alive in the minds of potential jurors, said the Government, it was because of Rep. Kelly's efforts and not those of the Government. The Government further argued that Rep. Kelly's claim that a fair trial would be impossible was speculative and premature. It was further alleged that an evidentiary hearing would serve no purpose since the Government had already admitted that the complained of disclosures were from Govern

ment sources.

On November 24, 1980, Rep. Kelly's motion to dismiss the indictment because of Government disclosures and prejudicial publicity was denied. No memorandum accompanied the court's order.

On September 15, 1980, Rep. Kelly had also moved to dismiss Count IV, stating that the Government manufactured the interstate travel alleged in the indictment. Specifically, he asserted that Government undercover agents called him to a meeting at a Washington, D.C. townhouse in order to ensure the presence of the interstate element necessary for a conviction under the Travel Act. In support of this motion, Rep. Kelly relied heavily upon the holding in United States v. Archer, 486 F. 2d 670 (2d Cir. 1973), a case in which a Government operative went to a neighboring state and called a defendant, on orders from an Assistant U.S. Attorney, for the purpose of transforming a local crime into an interstate crime. Once again, the Government's memorandum in opposition to Rep. Kelly's motion was placed under seal by the court.

On November 21, 1980, Rep. Kelly's motion to dismiss Count IV was denied. In its Memorandum and Örder the court stated that in the instant case, unlike in Archer, there was no evidence that the Government set the situs for the alleged bribe in order to create a Federal crime. The court viewed the Government's use of the Washington, D.C. townhouse, complete with its elaborate sound and videotape system, as entirely legitimate, especially in view of the fact that the townhouse had been in use by the FBI long before the Government could have known that a meeting with Rep. Kelly would necessitate his travel across state lines.

Also on September 15, 1980, Rep. Kelly moved to suppress the audio and video tapes of the alleged crimes. In support, he stated that the taping of his conversations in a private home violated his reasonable expectations of privacy and was contrary to the ruling in Katz v. United States, 389 U.S. 347 (1967). The court, on November 21, 1980, rejected this argument and denied the motion, stating:

The court is not without some sympathy for a private citizen who finds that his most confidential exchanges have been carefully preserved, and, in this case, exhaustively preserved for public use at trial. But Mr. Kelly's assertion was rejected by the United States Supreme Court a decade ago in United States v. White, 401 U.S. 745 (1971).

In White, the court held that there is no invasion of the fourth amendment when the government wires its agents and sends them into the home of a defendant for a chat. In White itself four of the recorded conversations took place in the home of a government informant. Therefore, the fact that Mr. Kelly's conversations were recorded in a house that was actually rented by the government does nothing to distinguish this case from White. In Both White and the present case the defendants were recorded in homes they believed were owned by private citizens. Mr. Kelly has no greater claim to privacy under the fourth amendment than did Mr. White. [Memorandum and Order, November 21, 1980, at 2–3] A third motion filed on September 15, 1980, was Rep. Kelly's motion to dismiss for failure to state an offense. His argument was that a violation of 18 U.S.C. § 201 (c) occurs when a public official solicits something of value in return for his being influenced in the performance of an official act. Rep. Kelly claimed that he could not possibly have been influenced in the performance of any official act because the requested official act (immigration assistance) could not have been rendered to the foreign businessmen, since, in reality, the foreign businessmen did not exist. Rep. Kelly thus asked that Count II be dismissed. Rep. Kelly further argued that if Count II had to be dismissed, so did Counts I (conspiracy) and IV (interstate travel) because they were predicated on violations of 18 U.S.C. § 201(c).

On November 21, 1980, the court denied Rep. Kelly's motion to dismiss for failure to state an offense. In a short memorandum and order, Chief Judge Bryant stated:

The United States Court of Appeals for the Second Circuit decided this precise issue in a virtually identical setting last August. See United States v. Myers, No. 80-1309 (August 8, 1980). The Myers court, citing United States v. Brewster, 408 U.S. 501, 526-27, upheld the indictment under 18 U.S.C. Section 201, reasoning that "[t]he promise does not cease to relate to an official act simply because the undercover agent offering the bribe knows that the subject of the promised legislative action is fictitious and that the promise will not actually be performed." Slip Opinion at 4931. [Memorandum and Order, November 21, 1980]

Also on September 15, 1980, Rep. Kelly filed a motion entitled "Motion to Dismiss Pursuant to Speech or Debate Clause and Punishment Clause." In his accompanying memorandum Rep. Kelly stated that many of his present and former staff members were subpoenaed and testified before the grand jury, and that many of his documents were also subpoenaed and turned over to the grand jury. Rep. Kelly argued that if any of the testimony or materials considered by the grand jury involved legislative acts, the indictment would have to be dismissed as violative of the Speech or Debate Clause of the U.S. Constitution. Accordingly, he requested a hearing on the

The Spech or Debate Clause provides that "for any Speech or Debate in either House [U.S. Senators and U.S. Representatives] shall not be questioned in any other place." [art. I, 6, cl. 1]