Twelve jurors in a federal courthouse in Brooklyn are scheduled to get the first public look this week at the FBI's prized Abscam videotapes, which allegedly show members of Congress taking bribes.
Rep. Michael O. (Ozzie) Myers, a product of the Democratic machine in south Philadelphia, will stand trial with three codefendants on charges that they conspired to share $50,000 in bribes in return for Myers' promise to help an Arab sheik with immigration problems.
Unbeknownst to the congressman and his associates -- two Philadelphia lawyers and the mayor of Camden, N.J. -- the "sheik's" representatives were undercover FBI agents, who were filming and taping each transaction, according to the charges.
The Abscam investigation created a sensation in early February, when news reports detailed much of the evidence against the members of Congress before a grand jury had been empaneled.
Though the investigation indicated the most sweeping congressional scandal in memory, the "leaks" quickly turned attention to criticism of FBI tactics. Attorney General Benjamin R. Civiletti ordered an investigation into the source of the leaks, and many in Congress vowed to put limits on the FBI's power to do undercover work.
Thus the upcoming trials will be the Justice Department's first chance to focus attention again on the allegations against the public officials. The outcome could be a major factor in the success of the FBI's long-range goal of attacking official corruption with innovative techniques.
U.S. District Court Judge George Pratt will hear the case. The original trial judge, Jacob Mishler, withdrew from the case Thursday because of defense attorney complaints that he was biased for the government. Defense attorneys have asked for a delay in jury selection, set for Monday, but that is not considered likely.
Justice Department attorneys have made no secret of their interest in bringing Myers to trial ahead of the four other House members who have been charged the in Abscam investigation because of what they regard as the strength of the evidence against him.
Chief prosecutor Thomas Puccio is expected to start the government case immediately by calling FBI undercover agent Anthony Amoroso. Puccio is then expected to show tapes of Myers allegedly taking money at a Kennedy International Airport hotel last Aug. 22 and then complaining to FBI agents at a later meeting in Philadelphia in January that he didn't get all the money he'd been promised.
The government also is expected to try to introduce comments Myers made on the tapes about his alleged organized crime connections in Philadelphia.
One courtroom observer joked that Myers' attorneys would try to counter the government tapes by showing "Gone With the Wind."
"It's hard to cross-examine a videotape," said one veteran attorney of the challenge facing the defense. In unfilmed bribery cases, the defense usually attacks the credibility of the alleged bribe-giver.
It is likely that the congressman will argue either that he was entrapped or that the government conduct in setting up the undercover "sting" operation was so overreaching that it violated his right to due process.
The legal issues in the case will serve as a precedent for the later trials in Brooklyn involving similar charges against Rep. Raymond F. Lederer, another Philadelphia Democrat, and two powerful committee chairmen, Reps. Frank Thompson Jr. (D-N.J.) and John M. Murphy (D-N.Y.). Reps. John Jenrette Jr. (D-S.C.) and Richard Kelly (R-Fla.) face Abscam charges in Washington.
The Myers trial is the first test of the federal bribery statute since the Supreme Court ruled in the Helstoski case in the spring of 1979 that the government couldn't introduce evidence of legislative acts a member may have introduced to carry out his part of a bribery deal. To do so would violate a congressman's constitutional protection not to be questioned about his "speech or debate" outside Congress.
In the Abscam investigation, the government carefully alleges only that the House members promised to help the sheik by introducing legislation, not that they actually sponsored a bill. Proof of such a promise in return for money is what the federal bribery statute requires.
Justice officials' hopes were raised Friday when a unanimous 2nd U.S. Circuit Court of Appeals in New York rejected many of the pretrial arguments for dismissing the indictment against Myers, a 37-year-old former longshoreman.
Judge Jon Newman said in the opinion that he recognized that the Abscam operation "inevitably raises sensitive issues of public policy and public law." o
"If agents of the government can confront members of Congress with manufactured opportunities to accept bribes, there is created the risk that malevolent officials of the executive branch will one day select as targets for a bribery sting particular senators or representatives in political disfavor with the president," he wrote.
But the judge seemed to vindicate the government's conduct.
He noted that "any member of Congress approached by agents conducting a bribery sting operation can simply say 'No.'" He said that the knowledge of sting operations can act as a deterrent.
And he added in a footnote that "with a film or videotape record of critical events, the chances of erroneous conviction would seem to be markedly less than in 'real' bribe cases, where frequently the only available evidence is the discreditable testimony of the person who paid the bribe."
Veteran defense lawyers have pointed out that it is difficult for a politician to plead entrapment as a defense because to do so he must admit the facts in the allegation and argue that the government unfairly induced him to commit the crime. To counter a claim of inducement, the government must show that the defendant was predisposed to take the bribe.
A more likely avenue may be the "due process" defense, the ingredients of which were raised unsuccessfully by several of the Abscam defendants in pretrial motions.
There is no clear Supreme Court precedent in this area, attorneys familiar with the Abscam cases say. But the defense is likely to cite a 3rd U.S. Circuit Court of Appeals decision that overturned a drug conviction, ruling that a government agent instigated the criminal activity.
Prosecutor Puccio claimed in court papers that that case doesn't apply, and argued that the government did not overreach by offering members of Congress large sums of money. "The selling of a high position of trust is we think, as sordid a business as the selling of narcotics and just as difficult to detect except by undercover means," he said.
Puccio also argued that the use of middlemen, rather than government agents, to introduce the congressmen to the scheme "establishes the absence of 'outrageous' government conduct" requred by a due-process defense.
Myers' codefendants in the case -- the alleged middlemen -- are Howard L. Criden and Louis C. Johanson, Philadelphia law partners, and Angelo J. Errichetti, the mayor of Camden.