of the officers and agents of the government, and to hear their very words. But realistically, once the jury has done so, it seems virtually impossible to convince them that the defendant was entrapped. And this is especially true where the defendant is an elected and appointed official who is sworn to uphold the law.
Thus, even assuming that the government should have made a full disclosure of other facts, it seems extremely unlikely that it would have changed the course of this trial. The Court after considering the various contentions made by the defendants, other than the issue of entrapment as a matter of law and violations of fundamental fairness, finds them all without merit.
The only issues remaining then are whether the actions of the government reach "a demonstrable level of outrageousness", see Hampton v. United States, supra, 425 U.S. at 491-495 & n. 7, 96 S. Ct. at 1650-1653 & n. 7, (Powell, J. concurring), and whether there was entrapment as a matter of law. The first issue is no longer open to question in this circuit in view of the decision in United States v. Kelly, supra. That court considered similar claims of outrageousness and alleged violations of fundamental fairness in yet another Abscam case and reversed the district court's granting of the defendant's motion for judgment of acquittal. The court noted that, "without further Supreme Court elaboration, we have no guide to a more dynamic definition of the outrageousness concept, and no warrant, as lower court judges, to devise such a definition in advance of any signal to do so from higher authority." United States v. Kelly, supra, 707 F.2d at 1476 & n. 13 (Ginsberg, J. concurring). Kelly, at the time a Member of Congress, was also caught in the web of Abscam. In view of the decision in Kelly, the defendants' claims for acquittal based upon outrageousness of conduct or violations of fundamental fairness must be denied.
While the Court finds that the conduct of the government in reaching out to bring Jenrette and Stowe into Abscam and in using a con man to do so, when there was no evidence that either man had previously committed a crime or that they were presently ready, willing and able to commit a crime at the time approached by Abscam personnel, at least bordered on the outrageous, the Kelly decision makes any further discussion of this issue unnecessary.
As to entrapment, the Court finds no basis to conclude that Jenrette was entrapped as a matter of law. His involvement before accepting the bribe was relatively short, and, as the Court has already found, Part IV B, supra, there was ample evidence for the jury to find that, even though induced to commit the crime, he was predisposed to do so. His own words and actions will forever haunt him in that regard.
The issue of entrapment as it relates to Stowe raises a more difficult question. Like the case of Jenrette, the jury had the opportunity to listen to the many taped conversations between Stowe, Weinberg and Amoroso and to observe Stowe on video tape. But, as the Court has already observed, it is not realistic to believe that a jury, actually observing the defendant commit the crime, is going to release him under a theory of entrapment. What makes this case more difficult is that Weinberg actively pursued Stowe for more than a year, promising to assist him in obtaining legitimate financing for a legitimate project. Stowe was not interested in bribery, and Weinberg knew or should have known that. There is no evidence that he was interested in bringing Jenrette into his financial picture. But Stowe was the key to Jenrette and there Weinberg, unguided by any instructions from the federal agents, continued his con on him and worked him by suggesting that he was about to receive financing. When Stowe seemed to tire of the game, Weinberg would give more hope. This was the classic stick and carrot game, the classic con game and the government had retained an expert in its execution. The government was never after Stowe -- the target was always "some congressman" presumably Jenrette.
However, the issue of entrapment, was fully set forth and presented to the jury and they were carefully instructed in this case. They were instructed as to inducement and as to predisposition. They had a chance to observe the tapes, both audio and visual, and to weigh the actual words of Stowe in determining whether he was predisposed to commit the crime. This Court finds the actions of the government in pursuing Stowe through Weinberg for well over a year to amount to outrageous conduct, since throughout that time, Weinberg was attempting to con Stowe into committing a crime. But the Court is without any guidelines since this issue directly relates to the issue of fundamental fairness, and due process. Once again, the Court finds it must stay its hand in view of the decision in Kelly. The Court observes however, as did the district court and the court of appeals in Kelly, that the Abscam drama was "an unwholesome spectacle". See 228 U.S. App.D.C. 55, at , 707 F.2d at 1477.
The motions are denied.
This comes before the Court on the motions for judgment of acquittal, or in lieu thereof, for a new trial, filed by the defendants. After giving careful consideration to the motions, and the opposition thereto, together with the arguments of counsel, and the record in this case, the Court concludes, for the reasons set forth in the Opinion filed herein, that the motions must be denied. In view of the above, it is hereby
ORDERED that the motions for judgment of acquittal, or in lieu thereof, for a new trial, are denied, and it is further
ORDERED that the Probation Office shall prepare a Presentence Report as to each defendant, said report may be prepared by the Probation Office in this District, or if directed by the Probation Office, by a Probation Office in another District, with final recommendation by the Probation Office in this District, and it is further
ORDERED that the defendants may remain on the same bond with the same conditions, and that once the presentence reports are completed, the defendants shall report to the Court on the date to be set for sentencing, and in the event the defendants fail to report, the Court shall issue a bench warrant for their arrest, and it is further
ORDERED that in the event the parties intend to file sentencing memoranda, said memoranda shall be filed not less than ten calendar days before the date set for sentencing.