The opinion of the court was delivered by: PENN
Former Congressman John W. Jenrette
and John R. Stowe were convicted of conspiracy (18 U.S.C. § 371) and bribery and aiding and abetting (18 U.S.C. § 201 and § 2). The case is now before the Court on their separate motions for judgment of acquittal or, in the alternative, for a new trial. In support of their motions, the defendants contend that (1) the actions of the government were so outrageous so as to violate the constitutional due process rights guaranteed to every citizen, (2) that the evidence established that the defendants were victims of entrapment as a matter of law, (3) that the government failed to comply with the requirements of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and that the government failed to comply with certain disclosure requirements imposed by the Court. Stowe also argues that the evidence as to Count Three charging him with bribery was insufficient as a matter to law. Not surprisingly, the motions are opposed by the government.
This case is one of the so-called Abscam cases in which several members of the United States House of Representatives,
one United States Senator
and other federal officials, state officials, lawyers and private citizens
were charged in different districts
with a variety of crimes including conspiracy, bribery, criminal gratuity (18 U.S.C. § 201(g)), interstate travel for unlawful activity (18 U.S.C. § 1952) and aiding and abetting (18 U.S.C. § 2).
There is no need for this Court to set out a detailed statement of the events leading up to Abscam since those facts are fully discussed in three other district court opinions. See United States v. Kelly, 539 F. Supp. 363 (D.D.C.1982), reversed and remanded, 228 U.S.App.D.C. 55, 707 F.2d 1460 (1983); United States v. Myers, 527 F. Supp. 1206 (ED N.Y.1981), affirmed, 692 F.2d 823 (2d Cir.1982), cert. denied, 461 U.S. 961, 103 S. Ct. 2438, 77 L. Ed. 2d 1322 (1983); United States v. Jannotti, 501 F. Supp. 1182, 1183 (ED Pa.1980), affirmed, 673 F.2d 578 (3d Cir.), cert. denied, 457 U.S. 1106, 102 S. Ct. 2906, 73 L. Ed. 2d 1315 (1982). Suffice it to say that Melvin Weinberg, a professional "con man" was convicted in the Western District of Pennsylvania on his plea of guilty to fraud in 1977. He received a sentence of probation based upon his agreement to cooperate with the Federal Bureau of Investigation (FBI) in setting up an undercover operation similar to the London Investors Ltd. "business" that he had been successfully operating before his arrest and conviction in Pittsburgh, Pennsylvania. He had been an FBI informant since the 1960's although throughout that period he continued to operate a number of cons and schemes in order to bilk and cheat various persons and citizens out of their money and goods. When Weinberg agreed to undertake the undercover operation for the FBI, he did so, not out of any change of heart or desire to go legitimate or out of loyalty to the government or the FBI or because he had reformed, but in his own words to make some big money. See United States v. Kelly, supra, 539 F. Supp. at 365. At first he was used in an attempt to ferret out information on stolen art work and securities, primarily certificates of deposit, but finally it was decided to have Weinberg participate in a scam in which he was passed off as the representative of Arab sheiks who wanted to enter the country. This scenario was apparently based somewhat on the plight of the Shah of Iran, the idea being that the fictitious sheiks were required to flee their country because of internal problems. To protect themselves against problems they might have in immigrating to this country, the purported sheiks, through Weinberg, and Special Agent Anthony Amoroso, posing as the president of Abdul Enterprise and as a gangster type named Tony DeVito, were to attempt to sign up as many members of Congress and government officials as possible. The Congressmen were to be promised money and the possibility of investments in their home districts and they were to be approached through middle men.
Abscam started in the spring of 1978 when a fictitious organization named Abdul Enterprises, which purportedly represented Arabs interested in investing in the United States, was formed by the FBI. Weinberg acted as the financial adviser to Abdul Enterprises, and as noted, Amoroso acted as its president. Sometime thereafter, Angelo Errichetti, then the Mayor of Camden, New Jersey, was brought into the Abscam web when it appeared that it would be necessary to bribe him in order to continue pursuing the possible illegal activities of other men. Errichetti and a Philadelphia attorney, Howard Criden, introduced the Abscam undercover agents to Congressman Michael Myers and it was there that Abscam had its true beginning. It is unnecessary for the Court to discuss the background of Abscam any further. In this case, the approach to Jenrette, was made through John Stowe, the former Congressman's friend. Stowe had apparently made his first contact with Weinberg sometime in 1978 when he and Weinberg discussed the possibility of investments in securities and how those securities could be brought into the United States. Weinberg's contacts with Stowe, and thereafter his contacts with Jenrette, followed the scenario created for Abscam.
The first recorded conversation between Stowe and Weinberg took place on or about October 17, 1978. That tape is incomplete but Stowe and Weinberg briefly discussed a "business" deal during which Stowe indicated that he, Stowe, was having some difficulty and stated "as I told you my contact is a Congressman."
(Q 379). At one point in the conversation, Stowe mentions that he has had "a lot of dealings with my Congressman, whom I trust." Then, while laughing he stated: "He's as big a crook as I am (laughing) but, ah, no, I'm, ah I don't know who his contact is." In a second recorded conversation on October 19 or 20, 1978, it becomes clear that Weinberg and Stowe were referring to securities and bringing securities to the United States.
The next significant recorded conversation between Stowe and Weinberg
took place on April 18, 1979. It is clear from the tape that the entire conversation was not recorded since the first statement contained on the tape is Weinberg's question to Stowe, "A, will you have Jenrette call me alright?" In this conversation, Stowe and Weinberg were discussing a plant which makes detonators which had been out of business since the end of the Viet Nam war. (Q 381). The plant had the name of American Gear & Pinion, and throughout the months of conversation which followed between Stowe and Weinberg, and thereafter between Stowe and Amoroso, Stowe would continue to seek financing so that he might invest in or purchase the plant and manufacture, at first detonators to sell to foreign countries, and later, gambling equipment which might be used in the newest market for such equipment on the east coast, Atlantic City.
It then became painfully obvious that Weinberg achieved what he sought from Stowe. First, he had Stowe believing that Weinberg's Arab friends might be interested in investing in American Gear & Pinion with the possible result of a significant financial yield to Stowe. This was the carrot held in front of Stowe's nose throughout the remainder of the telephone calls between them and to the time that Abscam became public. Second, Weinberg believed that Stowe had a contact with a Congressman for that district, namely Jenrette. Throughout the many telephone conversations which followed, while Stowe continued to pursue an interest in having Weinberg and his friends invest in American Gear & Pinion, Weinberg kept bringing up the subject of "the Congressman". It was quite obvious that Weinberg had no interest in Stowe; his primary interest was in attempting to make contact with Jenrette and to present Jenrette with the possibility of accepting a bribe. Third, Weinberg concluded that Jenrette would be an easy target because American Gear & Pinion was in Jenrette's home district and Stowe was Jenrette's friend. It's quite possible that he concluded that Jenrette would be interested in bringing jobs to his home district, making his own investment, and in assisting his friend Stowe. Moreover, Weinberg was later to learn as he pursued Stowe to bring Jenrette in on the deal, that Jenrette was having financial difficulties.
Subsequent to April 18, 1979, there were eight recorded telephone conversations between Stowe and Weinberg, and throughout those conversations it was obvious that Weinberg was not interested in Stowe or American Gear & Pinion. When Stowe spoke with Weinberg on April 20, 1979, and attempted to interest him in American Gear & Pinion, Weinberg attempted to gain more information concerning Jenrette even though, assuming Weinberg was interested in American Gear & Pinion, there was no need for Jenrette to become involved. Stowe apparently never realized this. For example, on April 20, while Stowe talked about American Gear & Pinion, Weinberg went along and then, at the first opportunity asked, "all rightie. Now, did ya get 'ahold of the Congressman." (Q 382-3).
In the next recorded conversation
the first portion of the conversation was not recorded. Weinberg's first statement was "ya and I like to meet with the Congressman up in, ah, his property's where, in Myrtle Beach?" It was at this point that Stowe protested and advised Weinberg that he wanted to take one thing at a time and he didn't "know whether I want him [Jenrette] to get involved in this or not." (Q 344-1) Weinberg at this point backed away apparently so as not to tip his hand and advised Stowe, "well, if he wants it fine, its up to you." (Q 344-1) Of course, as noted, it is quite obvious that the target of Weinberg's "investigation" was Jenrette.
After April 25, 1979, there were recorded conversations between Weinberg and Stowe on May 2, May 13 and two on July 11. Throughout, in these conversations, Stowe continued his attempts to focus on American Gear & Pinion while Weinberg continued to seek information or some connection to Jenrette. In each of the conversations, Stowe continued to refer to his request for financial assistance to acquire American Gear & Pinion while Weinberg, though ostensibly indicating interest in the financial venture, continued to ask questions about "the Congressman." In the conversation on May 2, 1979, one which was not fully recorded, Stowe's first words were "get in touch with that American Gear & Pinion". He then stated "no that's a pretty good deal, Mel. He's got the building, the machinery, the land and everything there and I know it was appraised for over a million and a quarter several years ago." (Q 345-1) Weinberg suggested that "the Congressman" call him. Finally, Stowe gave Weinberg the name of the Congressman -- John Jenrette. (Q 345-(3-4)). Near the end of the conversation, Weinberg stated that he would give the Congressman a call.
Weinberg called Stowe on May 13, 1979 and again Stowe sought to gain his interest in American Gear & Pinion. Weinberg, seeking to continue Stowe on the string, and misleading him, stated that he was up at the plant "with my appraiser and take, stop and look at the plant." (Q 346-1) Later in the conversation Weinberg notes that he would also like to speak to Stowe about "the, on the ah, Congressman's land." (Q 346-2) Then he suggested to Stowe that "we will bring you and the Congressman down, all right, we'll send our plane, we'll fly you down commercial and we'll meet you on the yacht and we can go over everything." (Q 346-3).
In a recorded conversation on July 11, 1979, Stowe called Weinberg and advised that "everything's set up with the gentleman in Washington." (Q 347-1) At the end of the conversation, Weinberg stated, "and the Congressman's all set up huh?" (Q 347-4).
Weinberg, who views himself as a master con man, at one point testified that he thought Stowe was a con man or that Stowe was trying to con him. The tapes demonstrate that Stowe, rather than being a con man, was naive, and at times, somewhat pathetic. During a conversation with Weinberg on September 9, Weinberg stated that "we just not got enough help." (Q 383-2). Stowe immediately asked "how about a job Mel?" Weinberg, apparently taken by surprise, asked Stowe to repeat the question and Stowe, obviously dead serious asked, "how about a job?" Weinberg responded, "well, I'll tell ya, send me a resume, they are gonna be hiring soon." Stowe answered that he did not have any up-to-date resumes and Weinberg advised him to make one up and send it to him. Near the end of the conversation, Weinberg again brought up the Congressman noting "and maybe we could do something for him." (Q 383-7)
The next critical conversation between Weinberg and Stowe took place on November 15, 1979, after John Good, the agent in charge, and Amoroso (usually referred to throughout as Tony DeVito) decided to propose a bribe to Jenrette. The Agent's call was made from a hotel suite in Atlantic City and was unrecorded, even though the call was made in the presence of FBI agents. The agent testified that they were afraid to bring recording devices into the hotel suite but records later uncovered by Jenrette's counsel during the trial revealed that at least one, rather expensive recording device, was in the room at about the time the call was made.
The conversations leading to the making of the call also raise a number of questions. Clearly the decision to offer a bribe to Jenrette was instigated and made by Weinberg, not John Good, agent in charge, or Anthony Amoroso, the agent assigned to work with Weinberg. See Part IV C, infra.
The next call was made on November 27, 1979, to set up a meeting with the Congressman; this call apparently being the result of the unrecorded conversation on November 15. Again, Stowe asked for a loan and Weinberg promised to "talk about it." (Q 384-3). Weinberg promised to introduce Stowe to Tony DeVito. He stated that he would bring "Mr. DeVito with me" and then cautioned Stowe "just to introduce ya to him so when ya come Tuesday with the, ah Congressman, don't look like ya just met him [DeVito]. Ya follow me?" (Q 384-4)
On December 4, 1979, there was a partially recorded telephone conversation between Stowe and Weinberg. The purpose was to finalize the planned meeting between Stowe, Jenrette, DeVito and Weinberg at the Abscam townhouse located at 4407 W Street, N.W. in the District of Columbia. Weinberg briefly explained that they would like the Congressman to help them bring the Sheik and his friends into the country. Weinberg stressed to Stowe that DeVito "is" a "tough guy", "so this is what he wants but you gotta remember one thing now Tony's [DeVito] a tough guy. He's gotta his yaknom tell us he's [Jenrette] gonna do it." (Q 127-3) Stowe notes that he wants "no recordings or anything" and Weinberg assures him that the townhouse is safe. (Q 127-3)
The next recorded conversation was between Stowe, Jenrette, Weinberg and DeVito and took place at 4407 W Street, N.W. in Washington, D.C. and was recorded by video tape. (Q 132). It was during this meeting that DeVito offered a bribe to Jenrette in exchange for Jenrette using his official influence to assist a number of persons to enter the country. When DeVito asked what Jenrette could do for him, Jenrette stalled and sought time to study the situation, purportedly to be sure that he could do what he promised. Jenrette also noted his financial problems and sought financial assistance. [Q 132-17] They discussed how a payment to Jenrette could be made and Jenrette noted at one point that he wanted his law partner there at the house "just to further cover my ass." (Q 132-28). They also discussed the financing of Stowe's project (American Gear & Pinion) in South Carolina. (Q 132-29) Jenrette notes later on that "John's [Stowe] gonna probably be expecting, gonna be expecting something". (Q 132-30)
It is clear that during the December 4 meeting Jenrette understood that he was being offered a bribe. He notes at one point that, "I dunno a thing. I don't know that I've taken a bribe and I dunno know that that you've offered me a bribe." (Q 132-31) He immediately stated however that he would feel "more at comfort if I could come back tomorrow and say OK." (Q 132-31). In that meeting he advised the group that he was under investigation by the Justice Department and that Edward Bennett Williams was his attorney. He also stated later on, "ya, and I'd like to have your money. Don't get me wrong. I'd like to do it, I'd like to help you." (Q 132-34) As if to set aside any doubt as to his state of mind, Jenrette advised DeVito "are we clear, I mean I, well listen, don't get me wrong, I don't I -- . . . I got larceny in my blood. I'd take it [the money] in a goddamn minute." (Q 132-39) Jenrette did not accept the bribe at that point but left the townhouse to think it over, the impression being that he wanted to make sure he could produce on his promise.
Stowe called the townhouse on December 5 and spoke with DeVito. He expressed the desire to start up to the townhouse at that time, presumably to pick up the money. However, DeVito stated, "Hey, listen for that kind of money we can all wait a little bit." (Q 143-1) DeVito's reluctance at that point resulted from the fact that Jenrette had not advised Stowe or DeVito that he would accept the money.
Jenrette again expressed concern over being able to produce on his promise and the following colloquy occurred:
Jenrette: All right, if I come, I'll do what I said. I mean that part will be done. I'll steer it, but now you guys come and and for the same reason I don't produce. I uh understand that you understand what I'm saying.
Jenrette: But, are they going to? There I don't want.
DeVito: Their problem is not with you, their problem is with me.
Jenrette: All right, I don't want any, you know.
DeVito: John, like I said.
Jenrette: I don't, I don't like cement.
(Q 144-(4-5)). DeVito assured Jenrette that if Jenrette failed to perform, the problem would be DeVito's, not Jenrette's. (Q 144-5) It was finally agreed that DeVito would wait to hear further from Jenrette.
Yet later the same day, Stowe called DeVito and indicated that Jenrette had advised him that Stowe could pick him (Jenrette) up the next afternoon and that they would go to the townhouse. (Q 145-1) Stowe called DeVito the next morning to say that he was waiting for further instructions from Jenrette. (Q 155)
Finally, on the afternoon of December 6, Jenrette called DeVito and noted that Stowe was there in Jenrette's office with him. After indicating that it would be difficult for him to meet with DeVito, Jenrette asked whether Stowe could meet with DeVito. DeVito, obviously disturbed that he would not get Jenrette on camera, complained to Jenrette that he felt he (DeVito) was not trusted by Jenrette. (Q 156-3) Jenrette noted that he had an agreement with DeVito and that "I'm gonna fulfill my obligations." (Q 156-3)
Perhaps giving his true intention away, Jenrette further stated "that keeps me just a little bit ah one step away from a section in the code about, uh, public officials."
He noted that "we've got those ethic rules about the amount ah money that we can make." (Q 156-3)
DeVito then stated that "you're looking for, uh, insulation, uh, ah . . . along that line, any you want him to pick up the money and whatnot (laugh). All right -- what time's he gonna come over?" (Q 156-4) Jenrette noted that Stowe was sitting with him right then, and then announced that he was required to leave his office to go on the House floor and that Stowe would speak with DeVito while Jenrette was on the floor.
(156-5) Stowe and DeVito then made arrangements for Stowe to come down to the townhouse and pick up the money.
Stowe is thereafter recorded on a video tape accepting a $50,000 bribe on behalf of Jenrette (Q 158). When Weinberg asked Stowe "what is with that guy" referring to Jenrette's reluctance to come down to the townhouse, Stowe states that Jenrette is "scared", and that, "he'll do what he says, but he's gonna protect himself." (Q 158-2) Once the money is counted out and handed to Stowe, Stowe again mentions American Gear & Pinion. (Q 158-4) Weinberg promises that they will work out the terms of an agreement.
Later, after Stowe had returned to Jenrette's office with the money, Jenrette called DeVito and acknowledged during the conversation that Stowe was with him at that time. DeVito asked whether he had received "the package" from Stowe and Jenrette responded, "everything's fine. I'll do my share of the work and I'll need to do is er the names and where and so I can start making some background preparations." (Q 156A-3)
Although the bribe had been given to Jenrette, the calls between Stowe and Weinberg did not cease. Stowe continued to prod Weinberg about financing for American Gear & Pinion. There are eight recorded conversations between Stowe and Weinberg between December 6, 1979 and January 7, 1980, during which Stowe continued to press the subject of the plant in South Carolina. On January 7, DeVito, Weinberg, Stowe and Jenrette again met at the townhouse and discussed financing for American Gear & Pinion. Again much of the conversation concerned that plant but during the course of the conversation Jenrette suggested that a United States Senator could probably be brought into contact with DeVito and Weinberg and that subject was discussed in several subsequent conversations. The last recorded conversation between the participants was on January 29, 1980. On February 2, 1980, the Abscam story broke and Stowe and Jenrette were arrested.
In moving for judgment of acquittal, or lieu thereof, a new trial, the defendants complain of violations of law allegedly perpetrated by the government prior to their indictment and during the trial. First they contend that the government violated their rights of fundamental fairness in general by the methods used by the Federal Bureau of Investigation (FBI), and in particular, by the manner in which they were selected and pursued by the FBI. They contend that the action by the government agents, and their paid con man, Weinberg, amounted to over involvement by the agents and that such conduct was outrageous. See Hampton v. United States, 425 U.S. 484, 493-494, 96 S. Ct. 1646, 1651-1652, 48 L. Ed. 2d 113 (1976) (Powell, J. concurring); United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973); United States v. Twigg, 588 F.2d 373 (3d Cir.1978); United States v. Archer, 486 F.2d 670 (2d Cir.1973). Second, they complain that there was entrapment as a matter of law in that they were induced to commit the offenses by government agents and that there was no predisposition to do so on their part. Third, they complain that the government failed to comply with disclosure requirements after their indictment, both pretrial and during the trial. Finally, Stowe complains that the evidence was insufficient as a matter of law to convict him of Count Three of the indictment in which he was charged with aiding and abetting Jenrette to bribe a senator.
Prior to considering the merits of the motions, some comment need be made as to the consideration of the motions undertaken by the Court. This Court has given careful consideration to the arguments made by the parties. The Court has reviewed, not only the voluminous transcript in this case, but at the request of the parties, the Court has reviewed and read portions of the transcripts in the cases of United States v. Myers, supra, tried in the Eastern District of New York, and United States v. Jannotti, supra, tried in the Eastern District of Pennsylvania. Those records were also made available to the parties. In addition, the Court has reviewed twenty-five volumes of Abscam files submitted by the government, in camera, pursuant to the Court's order. Those files included various interoffice memoranda, presumably prepared by the FBI in connection with this case, and other materials related to the case.
The Court also reviewed, in camera, portions of files of related investigations, some which had no direct bearing in this case. Some of those files are related to Goldcon and other undercover investigations.
Additionally, the Court reviewed, in camera, Melvin Weinberg's informer file which was retained by the FBI.
Finally, the Court reviewed, in camera, various submissions made by the government over the period of the trial, and a few submissions made in camera by the defendants. The government submissions included not only memoranda containing factual information, but portions of the FBI manual relating to the handling of informants, the payment for such services, and the processing of information received from informants and the manner in which the FBI sought to monitor an informant's activity.
Several post trial hearings were held in this case, some in late 1980, and another in May 1981. Because of the nature of the material being submitted, the parties requested and received permission to hold the record in this case open until April 1982. The government submitted additional material in April. Subsequently, in January 1983, it came to the attention of the Court that a news service had published a story indicating that additional files had been released to that service pursuant to the Freedom of Information Act, 5 U.S.C. § 552. The short story concerning that release of information suggested that there might have been additional information concerning the FBI investigation of Jenrette's activities in South Carolina, and a possible tie between that activity and the Abscam case. That information, if true, would be relevant, since during the trial of this case, the government took the position that there was no relationship between the South Carolina investigation and Abscam. Counsel for Jenrette had sought to establish a relationship between the two investigations. He had contended that the Abscam program was "doing a favor" for the agents in South Carolina when they included Jenrette in the Abscam investigation. Since it was felt that that information might be relevant, the Court entered an order requiring the government to produce all the materials turned over to the news service, and in addition thereto, to produce any other related material which may have been redacted or not turned over to the news service. The FBI presented only the materials turned over to the news service. That material was presented to the Court in late January 1983 or early February 1983, together with an undated cover letter from the Department of Justice.
Prior to addressing the specific arguments made by the defendants, the Court finds it necessary to briefly set forth its comments related to general criticisms leveled at the Abscam operation by the defendants; criticisms which have also been raised and discussed in other Abscam cases. Of course, while there is a tendency to group all of the so-called Abscam cases together; each case must be judged upon its own peculiar facts. While some of the same agents were involved in all cases, different issues are raised in each case.
A. Selection of the Targets.
It is not entirely clear how Jenrette was selected as a target of the investigation in this case. It is known that, as Jenrette stated on December 4, 1979, at the W Street townhouse, he had been under investigation in his South Carolina Congressional District as the result of certain land dealings in that state. A friend or friends of Jenrette had also been investigated and at least one had been convicted. Notwithstanding that background, the government had steadfastly contended that the targeting of Jenrette in Abscam had nothing to do with the South Carolina matters. Simply stated, the government contends that it threw the Abscam net into the political waters populated by members of the federal legislature, and Jenrette, through Stowe, was caught. Counsel for Jenrette was persistent in attempting to show some connection between the two investigations. Finally, counsel was able to have produced telegrams dated in May 1979 and November 1979 which suggests that the Abscam operatives were aware or should have been aware of the South Carolina investigation relating to Jenrette.
Unfortunately for all parties, it is not entirely clear how Weinberg first became involved with Stowe; part of the problem being that portions of conversations between Stowe and Weinberg were not recorded. Moreover, the Court is not confident that Weinberg recorded all of the conversations he had with persons connected with Abscam. In any event, the record is clear that Weinberg's interest, and presumably that of the FBI, was not Stowe, but any government official known to Stowe and quite possibly the interest was specifically related to John Jenrette. It is doubtful that Weinberg would have pursued his relationship with Stowe, but for the fact that he felt that Stowe could lead him to a government official, and possibly Jenrette. Once Stowe mentioned a Congressman, Weinberg cultivated Stowe's friendship to gain a meeting with the Congressman.
Since the government contends that there was no connection between the South Carolina case and Abscam, and since there was no clear evidence to the contrary, it appears that the FBI decided to present a bribe to Jenrette without any evidence or indication that he was predisposed to accept the bribe. Even though it now appears from records obtained by the defendants that the Abscam officials were aware or should have been aware of the investigation of Jenrette in South Carolina, the government states, and the Court accepts, that the investigation against Jenrette was not initiated as the result of the South Carolina affair. Thus, in pursuing Jenrette for a period of at least seven months, and possibly more, the FBI did so without probable cause, or indeed without even a reasonable suspicion that he could be induced to accept the bribe. Certainly, the fact that he was a Congressman gave rise to no such suspicion, nor did anything else known to the government at that time.
Thus, without any suspicion that Jenrette had ever taken a bribe, or engaged in any illegal activity, the offering of a bribe to Jenrette in December 1979, and the decision to offer the bribe in November 1979, amounted to no more than a test, a test which could have been given to any member of Congress, any government official, or indeed any citizen.
Stowe was no more than the means to the end, the means to reach a government official and seek to have him accept a bribe. Obviously, the FBI had no particular interest in Stowe except that he might have a connection with a government official, not necessarily a corrupt government official, but one who might be corrupted by Abscam. While it may be that that was not the original intention of the FBI, or indeed the intention of the agents, it seems clear that Weinberg felt no such restraints, and as will be demonstrated, the ultimate decision to go forward and attempt to involve Jenrette in bribery was based, not on a careful analysis and review of any written records or the tape recordings made during the course of conversations with Stowe but on the intuition or feeling of Melvin Weinberg, a convicted con man. The decision becomes even more questionable when it is recalled that Weinberg financially benefited from each government official he brought in.
The question presented under these facts then is whether the total conduct of the government was outrageous and whether it violated any rights of Stowe and Jenrette, or their rights to fundamental fairness, thus making it necessary to vacate their conviction.
B. The Issue of Entrapment.
Another issue which is necessarily presented in this case, but need only be briefly addressed by the Court, is the amount of the bribe offered, and whether, standing alone, that amount was so great as to establish entrapment as a matter of law.
No one can seriously dispute that entrapment was properly raised as a defense in this case. There was not a scintilla of evidence that either Jenrette or Stowe sought out a bribe. Throughout the year or more in which Stowe had numerous discussions with Weinberg, there was no evidence that he was seeking to be a part of a criminal venture. His personal interest, naive though it may have been, was to obtain legitimate financial backing to go into business, hopefully with American Gear & Pinion. It is also clear that he had no intention of bringing any government officials into any illegal act; that was a matter that was pursued solely by Weinberg. The same can be said for Jenrette. There was no evidence that he had ever accepted a bribe, or had engaged in any illegal activity. As noted, while Jenrette had been investigated in South Carolina, the agents in the Abscam operation claimed not to have had that information and therefore that information cannot form the basis for their investigation. Thus, it is clear that the government through Weinberg and DeVito (Anthony Amoroso), then operating as an undercover agent, planted the seed of corruption in this case. Obviously entrapment was a legitimate defense.
'Entrapment' means that law enforcement officials, acting either directly or through an agent, induced or persuaded an otherwise unwilling person to commit an unlawful act. On the other hand where a person is predisposed to commit an offense, that is, ready and willing to violate the law, the fact that the government officials or their agents merely afford opportunities for him to do so does not constitute entrapment."
District of Columbia Criminal Jury Instructions (3d ed. 1978), No. 5.05.
Indeed, the actions of the law enforcement officials "may take many forms including persuasion, fraudulent representation, threats, coercive tactics, harassment, promises of reward, or pleas based on need." Id. There is nothing legally wrong with government agents using decoys or undercover agents "in order to apprehend persons engaged in criminal activities, provided that they merely afford opportunities or facilities for the commission of the offense[s] by one already predisposed to commit it." Id, (emphasis added). If the jury finds no inducement, then there is no entrapment. If, however, a jury finds that a defendant was induced to commit a crime, the jury must then determine whether or not the defendant was predisposed to commit the offense. "The defendant's predisposition or willingness to commit the crime charged may be shown by evidence of his prior conduct of a similar character or by evidence, direct or circumstantial, that he was ready to engage in illegal conduct in question." Id.
The record in this case was certainly sufficient to support a finding by the jury that the government induced the defendants to commit the offense; indeed, inducement was the function of Weinberg. In the case of Jenrette, the government agents sought him out, induced him to go to the W Street townhouse and offered him a bribe. Moreover, when he hesitated to take the bribe pending further "research" on his part, the agents continued to urge him to take the money. The bribe was actually offered on December 4, 1979, but Jenrette, after some stalling, did not accept it until December 6 when Stowe hand carried it from DeVito to Jenrette.
On these facts, the jury could find inducement by the government but they could also find predisposition on the part of Jenrette. While he hesitated to take the bribe, there was evidence on which they could find that the hesitation was caused, not by a moral revulsion to a bribe offer, but by his desire to cover himself. He stated that he did not want to take the money without feeling "comfortable about being able to do it [perform the services requested by DeVito]." (Q 132-27). Then he went on to say that "If I take it I'm gonna take it as a, or have a lawyer" (Q 132-27) as if to further explain, he immediately thereafter stated that he would get his law partner there "just to further cover my ass -- that he's taking it [the bribe] as a legal fee." (Q 132-28). Moreover, there was no question that Jenrette looked upon the money as a bribe because he specifically referred to it as such. (Q 132-31)
Viewing the video tape of the December 4 meeting on W Street, one could not help but hope that Jenrette was in fact trying to buy time to get away from the W Street townhouse to either report the attempted bribe to appropriate authorities, such as the FBI, or to back away completely from any contact with the Abscam undercover agents. Unfortunately, he did not do so; rather, he accepted the bribe on December 6.
After listening to and viewing the entire tapes, the jury could find that Jenrette, although induced to accept the bribe by the government, was predisposed to commit the crime. Certainly, the conversations on the tapes suggested that Jenrette knew the reason for going to the W Street house. Thus, viewing the totality of the circumstances, there was sufficient evidence that Jenrette was predisposed to commit the crimes of which he was convicted.
As to the amount of the inducement, it was $ 50,000 with the possibility of an additional $ 50,000. Although he does not press the point, there simply is no support for an argument that the amount of the bribe was so great so as to constitute entrapment as a matter of law. Certainly $ 50,000 or $ 100,000 or double that amount, would not be so large as to excuse a member of Congress who has accepted a bribe.
C. Control Over Weinberg.
One criticism of the Abscam operation was that the FBI did not closely monitor the agents and gave too much freedom to Weinberg. The Court finds this criticism is supported, in part, by the facts.
First it was clear that Weinberg, a convicted con man, would be difficult to contain and that his activities required constant monitoring. He had made a deal with the FBI under which his success in the government sponsored sting or con activities could benefit him financially as well as allow him to remain on probation. It seems that the more successful he was, the longer his involvement in the operation would last, and the greater the financial award he would receive. In a way, he was little more than a modern day bounty hunter. To call him an informer is misleading because he did not inform on Stowe or Jenrette, he induced them to do certain acts. Near the end of the Abscam operation, Weinberg was making more than many of the supporting agents, and perhaps more than the Attorney General and the Director of the FBI. He was able to make more money by being successful and being successful meant delivering government officials to Abscam. This set of facts would raise questions of Weinberg had he been a mere informer; but Weinberg was a professional con man, one trained in the art of persuading people to do what they either did not intend to do, or did not want to do. And, his criminal record reveals he had been successful in his chosen field. Indeed, the Abscam operation was patterned after a former Weinberg scheme which had been successful. All of these factors raised a red flag concerning the use of Weinberg in the operation.
Second, there was the obvious danger that Weinberg, who gained an introduction to government officials through the FBI agents, would attempt to operate his own confidence game, in lieu of, or in addition to Abscam. There is evidence in this case that Weinberg had accepted money from Stowe but had never reported that to the FBI, and there were allegations of other "gifts" to him. Moreover, one of Weinberg's colleagues, also a convicted con man, by the name of Melcher, who also worked for Abscam, did yield to temptation and attempted to operate a con game within Abscam.
Third, one would hope that there was concern over the possibility that Weinberg, having been introduced to government officials through the FBI, might attempt to corrupt them, or perhaps, since he was taping telephone conversations, save some of those tapes for use in the future. It is not difficult to imagine that a taped conversation, although not containing any discussion of bribery or any other criminal act, might nevertheless, either in context, or taken out of context, prove very embarrassing for an otherwise innocent individual.
There were many other disquieting facts brought out during the trial which raised a suggestion that Weinberg was not as reliable or trustworthy as the FBI would have the Court believe. Nevertheless, there appeared to be no real effort to assert greater control over him and there was a tendency to accept his word without any support.
THE COURT: How did you determine that?
AMOROSO: By the conversation with Mr. Good.
Q. I see. Now, as I understand it then on one of these telephone conversations that we have been hearing about Mr. Good . . . Mr. Weinberg would make the call. Was he required at that point to report directly to you?
A. He would either get in touch with me or Mr. Good.
Q. Within what period of time? Did he have any specific directions?
A. No, as to what period of time?
Q. A day? A week? A month?
A. Well, he usually contacted us, you know, within every ...