The federal judge for this week's scheduled fraud and conspiracy trial of Texas House Speaker Billy Wayne Clayton has expressed some of the same concerns about government misconduct that echoed through the recent Abscam liberty trial of Rep. Michael (Ozzie) Myers (D-Pa.).
U.S. District Court Judge Robert O'Connor Jr. stopped a pretrial hearing in the Clayton case recently to tell an FBI undercover agent that he was troubled by the behavior of Joseph Hauser, a convicted insurance fraud artist who posed as a Prudential Insurance Co. executive to offer bribes to public officials.
Clayton and three other men were indicted in June in Houston for allegedly agreeing to help the undercover agents -- in an investigation known as Brilab -- get state insurance contracts in return for $5,000 cash and a promise of $600,000 more.
O'Connor told undercover agent Michael Wacks that he had a problem with Hauser's "continually pushing money on these people," especially when the FBI told Clayton the money was a campaign contribution and a new Prudential contract could save the state $1 million.
"Did it ever occur to you that perhaps you were violating the speaker's due process rights by going forward with a con . . .?" O'Conor asked. Wacks said no.
The judge also pointed out that Hauser and co-defendant L. G. Moore, a Houston labor union official, urged Clayton not to report the contribution. a"Doesn't that disturb you at all?" he asked.
Though O'Conor said he felt the FBI methods might be violating due process rights, he finally rejected motions by Clayton's attorney, Roy Q. Minton, to dismiss the indictment.
In doing so, he voiced "grave concerns" about the government's conduct of the case. He wondered about "ensnaring innocent victims" and about a "police state."
Minton said he might renew his due process motions after the trial.
Federal judges at Myers' recent trial in Brooklyn and at the trial of three city councilmen in Philadelphia also have been asked by defense attorneys to consider whether the government's tactics in the undercover Abscam investigation so "shocked the conscience" that charges -- or in Myers' case a bribery and conspiracy conviction -- should be dismissed.
Though it doesn't involve indictments against six members of the U.S. House as Abscam does, Brilab puts the same FBI techniques for pursuing public corruption to the test. Reputed organized crime leader Carlos Marcello and three others were indicted on racketeering, fraud and conspiracy charges in a Brilab case.
Rep. Don Edwards (D-Calif.), chairman of the House Judiciary subcommittee on civil and constitutional rights, challenged the FBI's use of the likes of Hauser -- and his counterpart in Abscam, convicted con man Melvin Weinberg -- when the investigations were disclosed to the press last February.
He said in an interview Friday that his subcommittee plans to continue hearings on FBI undercover tactics early next year. "I remain concerned about these loose cannons, these Weinberg types, who are set in motion by the FBI and then can't be controlled."
Defense attorneys in Meyers' trial tried to show that Weinberg urged their clients and other members of Congress to "talk big" in meetings they didn't know were being secretly videotaped by the FBI. Myers, though, failed to convince the jury that his promise to introduce a private immigration bill for an Arab "sheik" in return for $50,000 in cash was just play-acting.
In the Houston case, Hauser plays a role similar to Weinberg's, and union official Moore takes the part of the allegedly corrupt middleman paralleled in the Meyers case by Mayor Angelo J. Errichetti of Camden, N.J., and Philadelphia lawyer Howard L. Criden -- who were convicted along with Myers.
Moore and an associate allegedly plotted to steal part of a payoff intended for a public official, just as Errichetti and Criden did according to testimony in Myers' trial.
There are no videotapes in the Houston case, but Hauser wore a body recorder in his meetings with officials during the Brilab investigation.
In one tape played in the pretrial hearings, Moore hesitated about approaching Clayton with the money offer. "I know everything's a gamble, life's a gamble . . . but 'i'm reluctant to . . .' the union official said.
Hauser replied: "No, don't be reluctant. You have to gamble in life . . . You must shoot dice. And if we get in with the speaker. . . ."
House speaker Clayton has acknowledged taking the $5,000, but attorney Minton said the trial will show he took part in no corrupt agreement and never spent the money.
Hauser had been told he didn't need Clayton, but he insisted on meeting with the speaker, according to testimony at the pretrial hearing.
Clayton has said he intended to give the money back to Moore. Minton told the judge in the pretrial hearing that Clayton was busy when he met with Moore and Hauser on Nov. 8.
"He's not going to stand up and say, 'I'm surprised at you, L. G.'" for offering the money, Minton said. "I can't imagine a Texas gentleman in a situation like that handling it any differently."
In a phone interview Friday from Austin, Minton said the tape recording of the same meeting does have Clayton saying "I want to help you all" with the insurance contract. But he then added, "We don't want to do anything illegal, and you don't either," according to Minton.
Minton said he was especially shocked at the FBI's pursuit of Clayton because there was "not one shred of evidence" that his client had ever taken a payoff.
Critics of the Abscam and Brilab undercover investigations have pointed out that the FBI didn't seem to have any threshold requirement that a politician had participated in an illegal act before offering him a bribe.
Assistant U.S. attorney Ron Woods said at the pretrial hearing that Clayton never reported the $5,000 as a campaign contribution, but instead went along with the scheme by telling Moore later that the bids on a $76 million state insurance contract could be reopened, as Hauser sought.
Woods also noted that Clayton simply could have refused to take the cash. In the first appeals court ruling in the Abscam investigation, a circuit court judge in New York said exactly the same thing in condoning the FBI's tactics.
Further evidence of the potential problems of such undercover activities was provided by Moore's attorney on the witness stand in the pretrial hearing. He testified that his client lied when he told Hauser that Clayton was "committed" to influencing the award of the contract. During the Myers Abscam trial, tapes showed that the congressman's codefendants often exaggerated their control over his actions.
An FBI agent testified that the bureau wanted wiretaps on Moore's phones because they didn't trust him to tell Hauser everything about the scheme. Judge O'Connor ruled that Moore would be tried separately.
Austin attorneys Randall (Buck) Wood and Donald F. Ray will stand trial with Clayton. The case is expected to last three to four weeks.