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. $ 2.4

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.

5

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.

stated that FBI Director William Webster was quoted in the media as saying that the Government had a strong case against Rep. Jenrette. This statement, charged Rep. Jenrette, and the leak to the television networks regarding his February 2, 1980 interrogation, occurred prior to indictment, and represented an extreme violation of Rule 6(e) of the Federal Rules of Criminal Procedure (regarding grand jury secrecy). Rep. Jenrette further claimed that such disclosures: (1) caused highly prejudicial publicity; (2) undermined the rule requiring secrecy throughout the grand jury process; and (3) violated his rights under the Fourth, Fifth, and Sixth Amendments to the Constitution. At a minimum, concluded Rep. Jenrette, the Department of Justice should be ordered by the court to show cause why these disclosures should not be the basis for a finding of contempt.

On August 5, 1980, the Government responded to Rep. Jenrette's July 14, 1980 motion to dismiss. Addressing first the defendant's allegations of overreaching and entrapment, the Government, while conceding that its agents did approach Rep. Jenrette, argued that videotape recorded meetings with the Congressman would clearly reflect that the agents did not threaten or intimidate the defendant; that they clearly spelled out the illegality of what they were proposing; and that the defendant was allowed the opportunity to consider the offer at a later date. Such conduct, claimed the Government, was no different from that of an undercover narcotics officer who approaches an individual and asks to purchase drugs. According to the Government, the only issue in either case is whether the individual who responds to the agent's invitation to commit the crime was predisposed to do so. Regarding Rep. Jenrette's argument that he was approached despite the Government's knowledge that he had previously refused to become involved in an unlawful scheme, the Government contended that court cases have held that it is permissible for Government undercover agents to initiate criminal activity even when there is no reason to believe that the defendant is engaged in wrongdoing. The Government concluded its argument by stating that if the court should decide that an evidentiary hearing on the matter was warranted, then such a hearing should take place after trial because: (1) a pretrial hearing would make it more difficult to select an impartial jury because of the extensive news coverage which would be given the hearing; (2) the court's determination of Rep. Jenrette's overreaching claim would be avoided if Rep. Jenrette was found innocent; (3) a pretrial hearing would unnecessarily delay the trial; and (4) the court would be in a better position after trial to assess Rep. Jenrette's contentions, and a post-trial hearing would avoid the need to hear the same evidence twice since most of the facts relating to the Government's alleged misconduct would probably be presented during Rep. Jenrette's entrapment defense at trial.'

With respect to Rep. Jenrette's contentions regarding pre-indictment publicity, the Government began by admitting that Government sources were indeed responsible for serious leaks regarding ABSCAM. However, said the Government, it was highly unlikely that the grand jury was biased by news reports which primarily occurred four months

7 Entrapment defenses are ordinarily presented during trial and decided by the jury.

prior to its deliberations. In addition, argued the Government, the evidence presented to the grand jury was certainly sufficient to establish probable cause to indict, and in any event dismissal of an indictment is improper unless the defendant can clearly show that the grand jury was improperly influenced in its actions.

On August 11, 1980, Rep. Jenrette filed a reply to the Government's August 5, 1980 response. The defendant took issue with the Government's contention that it is permissible for Government undercover agents to initiate criminal activity even without evidence of the defendant's predisposition to commit the crime. Instead, the defendant claimed that once the Government targets anyone for any reason and learns of a lack of predisposition to violate the law, it must turn its investigation elsewhere. Rep. Jenrette also argued that it would be "naive and insensitive" to follow the Government's recommendation that any overreaching hearing be held post-verdict. In Rep. Jenrette's view, the court was compelled to hold a hearing on the overreaching issue prior to submission of the case to the jury.

By oral order of August 28, 1980, Rep. Jenrette's motion to dismiss due to prejudicial pre-indictment publicity was denied. In a written order of the same day, Judge Penn indicated that he would reserve ruling on the overreaching issue until evidence was introduced at trial. No ruling was made with respect to Rep. Jenrette's allegations of entrapment.

On September 3, 1980, Rep. Jenrette filed a motion to suppress certain videotapes and telephone recordings of his allegedly criminal activity. Like his July 14, 1980 motion to dismiss the indictment, the motion to suppress was based on allegations that the Government's conduct during the investigation was so outrageous as to violate the defendant's Fifth Amendment right to due process. In his supporting memorandum, Rep. Jenrette relied heavily on the holding in Greene v. United States, 454 F. 2d 783 (9th Cir. 1971). According to Rep. Jenrette, the Greene court listed five major factors probative of Government overreaching: (1) the agent initiated the contact; (2) the contact was of long duration; (3) the agent was substantially involved in the criminal activity; (4) the agent applied pressure to prod the defendant into illegal activity; and (5) the agent helped establish the illegal activity and the agent was the only illegal customer. According to Rep. Jenrette, the Greene criteria closely fit the factual situation of the present case.

Rep. Jenrette's trial began on September 5, 1980. Meanwhile, the Government, on September 8, 1980, responded to Rep. Jenrette's motion to suppress by claiming that Rep. Jenrette made no specific attack on the propriety of the process which produced the materials he was seeking to suppress. Nor could he, said the Government, since all the recordings were made with the consent of at least one of the parties who was being recorded. Such one party consensual tape recordings, said the Government, are legally unassailable under 18 U.S.C. § 2511 (2) (c) and many Supreme Court cases.

On September 8, 1980, Rep. Jenrette's motion to suppress was denied. No memorandum accompanied the court's order.

On Sepember 12, 1980 (while the trial was still in progress), the Government filed a legal memorandum on the subject of entrapment

(as opposed to overreaching). Rep. Jenrette, said the memorandum, had argued that in order to overcome his entrapment defense, the Government would have to prove that he was predisposed toward criminal conduct prior to the commission of the crimes charged. In its memorandum, the Government challenged this argument claiming instead that the FBI could properly have offered defendant Jenrette an opportunity to commit crimes even if it had no basis for believing that he had been engaged in criminal conduct in the past. According to the Government, while evidence of a defendant's prior criminality could be relevant to the question of a defendant's predisposition, other factors could also be relied upon to prove predisposition-factors such as (1) the willingness of the defendant to discuss criminal acts with the undercover agent; (2) the efforts of the defendant to maintain contact with the agent; and (3) evidence that after the original criminal act, as proposed by the agent, was completed, the defendant embarked on a second, self-initiated plan to perform another criminal act. Using these criteria, said the Government, it would become clear that Rep. Jenrette was predisposed to accept the bribes.

On October 7, 1980, the jury, which had been sequestered for the duration of the trial, found Rep. Jenrette and Mr. Stowe guilty on all counts.

Immediately after the jury returned its verdict, the court agreed to hear arguments on all outstanding motions on November 12 and 13, 1980. Among the outstanding motions was Rep. Jenrette's motion to dismiss on the basis of Government overreaching. (Apparently, at some point Judge Penn decided that this issue would be decided posttrial and not during the presentation of evidence as he had originally planned.)

Status-Rep. Jenrette's motion to dismiss on the basis of Government overreaching is presently being litigated before the U.S. District Court for the District of Columbia.

United States v. Murphy

and

United States v. Thompson

Criminal Case No. 80-00291 (E.D.N.Y.)

On June 18, 1980, a Federal grand jury in the Eastern District of New York returned a five count indictment against U.S. Representatives Frank Thompson, Jr. of New Jersey and John M. Murphy of New York. Also indicted were Howard L. Criden (a Philadelphia attorney) and Joseph Silvestri.

Count I charged the defendants with conspiracy, contrary to 18 U.S.C. § 371.2 Specifically it was alleged that sometime between July 26, 1979 and February 2, 1980 defendant Silvestri agreed to introduce defendant Criden to Members of Congress who would be willing, in

1 Specifically, conspiracy to violate 18 U.S.C. § 201 (bribery and fraud) and 18 U.S.C. § 203 (conflict of interest).

218 U.S.C. § 371 provides: If two or more persons conspire either to commit any offense against the United States, or the 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 conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.