matter. Rep. Kelly also argued that the Punishment Clause of the Constitution, when read in conjunction with the Speech or Debate Clause, deprives the judicial branch of jurisdiction to question, charge, or punish any Member for legislative misconduct. On November 25, 1980, defendant Kelly's "Motion to Dismiss Pursuant to Speech or Debate Clause or Punishment Clause" was denied. In its Memorandum and Order, the court stated that Speech or Debate material was not a substantial factor underlying Rep. Kelly's indictment; nor did the grand jury lack sufficient competent evidence to establish probable cause: The question of speech or debate material tainting an indictment has been considered in the recent past by both the United States Court of Appeals for the Second and Third Circuits. United States v. Helstoski, No. 80-1592 (3rd Cir. November 3, 1980; United States v. Myers, No. 80-1309 (2nd Cir. August 8, 1980). Both courts started from the premise that ordinarily courts do not look behind the face of an indictment and invalidate it because the grand jury received incompetent evidence. Helstoski, slip op. at 6; Myers, slip op. at 4933. However, in Helstoski the court held that since privileged material "permeated the whole [grand jury] proceeding," slip op. at 10, the privileged testimony was "a substantial factor underlying the indictment," slip op. at 7, and the grand jury proceedings were thus "polluted by the presentation of evidence violating the speech or debate clause," slip op. at 6, the district court was correct in dismissing the indictment. In Myers, although the Court of Appeals affirmed the district court's denial of a motion to dismiss based on speech or debate material, the court acknowledged in a footnote that under certain conditions a district court might be justified in dismissing an indictment on speech or debate clause grounds. Slip op. at 4934 n.10. The Myers court held that such a motion to dismiss might lie if "the 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." Id. Once again it is unnecessary for the court to resolve conflicting standards proposed by other circuit courts. Under either the Third Circuit's "substantial factor underlying the indictment" standard, Helstoski, supra, or the Second Circuit's "sufficient competent evidence" standard, Myers, supra, Mr. Kelly's motion to dismiss the indictment on speech or debate clause grounds must fail. The court has reviewed the grand jury transcripts of associates of Mr. Kelly's. It is clear that speech or debate material was a very small part, if any, of the evidence presented to the grand jury. Further, the many video and audio tapes played for the grand jury resolve any doubt there may be on the sufficiency of non 7 The Punishment Clause provides: "Each House may. punish its Members for disorderly Behavior." [art. I, § 5, cl. 2] speech or debate grand jury evidence. See Myers, supra at 1 There is no merit whatsoever in Mr. Kelly's assertion that the punishment [Memorandum and Order, November 25, 1980, at 1-2] 8 A fifth motion filed on September 15, 1980 by Rep. Kelly was his motion to dismiss on the grounds of Government overinvolvement and overreaching. His argument was that the investigative tactics used by the Government during the ABSCAM operation were so grossly unfair that they violated his right to due process of law. It was Rep. Kelly's contention that the Government resorted to systematic abuses of law enforcement power to manufacture and then prosecute spurious offenses. After emphasizing that he was not claiming that he had been entrapped, the defendant claimed that in both United States v. Russell, 411 Ü.S. 423 (1973) and Hampton v. United States, 425 U.S. 484 (1976) a majority of the Court was unwilling to hold that overreaching police conduct could never violate due process rights. The defendant also cited United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978) as a case in which the overreaching defense was invoked and sustained. The defendant argued that a careful reading of Twigg and Russell along with United States v. Archer 486 F.2d 670 (2d Cir. 1973), United States v. Corcione, 592 F.2d 111 (2d Cir. 1979) cert. denied 440 U.S. 985 (1979), and Greene v. United States, 454 F.2d 783 (9th Cir. 1971) indicated that a crucial factor in any examination of a law enforcement agent's conduct is the extent to which the agent generated unlawful activity where no unlawful activity had previously existed. The critical distinction, said Rep. Kelly, is between infiltrating ongoing criminal operations and initiating previously nonexistent criminal operations. In this regard Rep. Kelly stated that there was never any suggestion that there had ever existed an ongoing bribery conspiracy among Members of Congress that the Government sought to infiltrate. In short, it was alleged that had the Government not set up its fictitious operation and initiated contact with the defendant through its agents, no prosecution could ever have occurred. Rep. Kelly further argued that court precedents indicate that overreaching is more likely to be found if the defendant can show that the investigating agents violated laws during the course of their investigation. In this vein, the defendant stated that Joseph B. Meltzer, who during the ABSCAM investigation portrayed himself as a top em 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. ployee of a fictitious foreign businessman, Abdul, used the ABSCAM investigation as a cover to swindle numerous businessmen by promising them that Abdul would provide low interest loans for their business ventures. Rep. Kelly claimed that although the FBI was aware that Mr. Meltzer was defrauding innocent third parties, it took no action to stop him, and actively participated in the cover-up. Whether or not illegal (under 18 U.S.C. § 4), said the defendant, the Government's conduct in the Meltzer affair was intolerable. A second example of alleged Government lawbreaking involved the Olympic Construction Company, which leased the Washington, D.C. townhouse where the video and audio tapes of Rep. Kelly were made. According to Rep. Kelly, newspaper reports indicated that the FBI provided Olympic with a $6 million interest free loan in return for Olympic's assistance in the investigation. According to Rep. Kelly, 18 U.S.C. § 1001 (false statements) was violated when Olympic filed a contract bid with the Federal Government and failed to disclose the existence of this $6 million liability. Rep. Kelly charged that the Government again broke the law, specifically 18 U.S.C. § 1005, when it induced the Chase Manhattan Bank to verify the existence of a fictitious bank account in the name of "Abdul Enterprises" to add credibility to the ABSCAM operation. On December 8, 1980, Rep. Kelly's trial began. On January 26, 1981, he was found guilty on all three counts. Sentencing, which had been scheduled for February 23, 1981, was subsequently deferred, apparently for an indefinite period of time. Status-The case is pending in the U.S. District Court for the District of Columbia. Rep. Kelly's motion regarding overreaching has not yet been decided by the court. United States v. Jenrette Criminal Case No. 80-00289 (D.D.C.) On June 13, 1980, U.S. Representative John W. Jenrette of South Carolina was indicted by a Federal grand jury in the District of Columbia. Indicted with Rep. Jenrette was John R. Stowe, a private citizen living in Richmond, Virginia. 1 Count I of the three count indictment charged the defendants with conspiracy, contrary to 18 U.S.C. § 371.' Specifically it was alleged that in late 1979, the defendants agreed with "Tony DeVito" that in return for $100,000 Rep. Jenrette would introduce in the U.S. House of Representatives a private immigration bill on behalf of a foreign businessman who desired to immigrate to the United States. Supposedly, DeVito was the foreign businessman's agent. In reality, however, DeVito was Anthony Amoroso, Jr., a Special Agent of the Federal Bureau of Investigation ("FBI"). Count I also alleged that on December 6, 1979 defendant Stowe met with De Vito and Melvin Weinberg (purportedly an employee of the 1 Specifically, conspiracy to violate 18 U.S.C. § 201 (c) (bribery). 18 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. foreign businessman, but in reality a private citizen assisting the FBI). At this meeting DeVito and Mr. Weinberg allegedly transferred $50,000 in cash to Mr. Stowe who accepted it on behalf of Rep. Jenrette and himself. Allegedly, it was agreed that Mr. Weinberg and DeVito would transfer another $50,000 to the defendants after the private immigration bill was introduced. According to the indictment, the total payment of $100,000 was to be shared by Rep. Jenrette and Mr. Stowe. Count I also claimed that on January 28, 1980 Rep. Jenrette told DeVito that he would cause U.S. Senator Strom Thurmond of South Carolina to introduce in the Senate another private immigration bill on behalf of the foreign businessman. For his efforts, Rep. Jenrette would receive $125,000 after the private immigration bill was introduced. The indictment specifically stated, however, that at no time did Rep. Jenrette or Mr. Stowe, or anyone on their behalf, discuss the subject with Senator Thurmond. Count II charged that by seeking and receiving a sum of money in return for his promise to introduce a private immigration bill in Congress, Rep. Jenrette commited bribery, contrary to 18 U.S.C. § 201 (c).3 Count II also charged Mr. Stowe with aiding and abetting Rep. Jenrette in the commission of bribery. Accordingly, Mr. Stowe was charged with criminal liability as a principal, pursuant to 18 U.S.C. § 2.1 Count III charged that by seeking $125,000 from DeVito in return for his promise to influence Senator Thurmond to introduce a private immigration bill in the Senate, Rep. Jenrette committed bribery, again contrary to 18 U.S.C. § 201 (c). Once again Mr. Stowe was charged with criminal liability for aiding and abetting, pursuant to 18 U.S.C. § 2. On June 17, 1980, Rep. Jenrette pled not guilty to all counts. On July 14, 1980, Rep. Jenrette filed a motion to dismiss pursuant to the Speech or Debate Clause. Alternatively, he asked permission to review the minutes of the grand jury. In his accompanying memorandum, he argued that the allegation in Count I-that he never discussed immigration matters with Senator Thurmond-indicated that the grand jury illegally sought to determine the occurrence and content of conversations between Members of Congress on legislative matters. If the grand jury questioned Senator Thurmond himself, said Rep. Jenrette, or if it questioned others who might have had knowledge of exchanges between Rep. Jenrette and Senator Thurmond, it may 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, 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 office 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, counsel, 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 principal. The Speech or Debate Clause of the United States Constitution 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] have violated the Speech or Debate Clause. Accordingly, Rep. Jenrette asked the court to allow him to review the entire grand jury proceedings to determine whether impermissable examinations of legislative acts occurred. On August 5, 1980, the Government filed its response to Rep. Jenrette's motion regarding the Speech or Debate Clause. The Government asserted that the definition of "legislative acts" does not include acts of bribery by Congressmen. The Government further asserted that its evidence at trial would include no acts done by Rep. Jenrette or Senator Thurmond in the regular course of the legislative process. On August 28, 1980, the court, Judge John Garret Penn presiding, denied Rep. Jenrette's motion to dismiss on Speech or Debate Clause grounds. Likewise, Rep. Jenrette's request to inspect the grand jury minutes was denied. No memorandum accompanied the court's order. On July 14, 1980, Rep. Jenrette filed a motion to dismiss on the basis of Government overreaching and entrapment. Regarding overreaching, it was Rep. Jenrette's contention that the nature and extent of the FBI involvement in creating and maintaining the ABSCAM operation was so outrageous as to bar prosecution under the due process clause of the Fifth Amendment. În support of this contention, the defendant relied on United States v. Russell, 411 U.S. 423 (1973); Hampton v. United States, 425 U.S. 484 (1976); United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978); and United States v. Archer, 486 F.2d 670 (2d Cir. 1973). These cases, said the defendant, indicate, first, that Government misconduct may be so egregious in a given case that prosecution will be barred regardless of whether the defendant was predisposed to commit the charged crime. Next, the defendant likened the facts of the instant case to the facts in Twigg, supra,— a case in which the Third Circuit dismissed an indictment because of the Government's overinvolvement in the commission of the crime. In both Twigg and the instant case, said Rep. Jenrette, Government agents devised the illegal scheme and then initiated contact with the defendant. In fact, said Rep. Jenrette, the conduct of the Government agents in the present case was even more outrageous than in Twigg, since in Twigg evidence existed that the defendant was predisposed to commit the crime. By contrast, said Rep. Jenrette, the Government knew that he had no predisposition to engage in illegal activity, for in 1978 he had refused when undercover agents had attempted to involve him in a scheme to sell certificates of deposit overseas. In conclusion, Rep. Jenrette requested an extensive evidentiary hearing to determine whether overreaching occurred. In addition to seeking dismissal or an evidentiary hearing on the basis of overreaching, and dismissal on the basis of entrapment, Rep. Jenrette's July 14, 1980 motion also sought dismissal on the basis of prejudicial pre-indictment publicity. In this regard, Rep. Jenrette claimed that someone connected with the ABSCAM investigation deliberately notified the national television networks that the FBI would send two agents to Rep. Jenrette's home on February 2, 1980. Accordingly, when the agents arrived, television crews were on Rep. Jenrette's front lawn ready to cover the event. The defendant further • The complete text of the Russell and Hampton decisions are reprinted beginning on page 699 of this report. |