Indiana Law Review


ABSCAM: Time for the United States Supreme
Court to Clarify the Due Process Defense

I. Introduction

Although the government should not be in the business of

manufacturing crime, most people agree that certain types of crime

can be detected and eradicated only through government involvement

and some degree of government participation in those crimes. 1 Vic-

timless vice crimes like narcotic offenses are the most obvious ex-

amples of these types of crimes; however, it is clear that bribery and

political corruption are also victimless crimes that are not easily

detected without government involvement.2 Because the criminals in-

volved in these victimless crimes have no reason to notify the

authorities once a crime has been committed, the government officer

or agent must actively assume a criminal role in the illegal transac-

tion in order to trap the unwary participants. As illustrated by the
FBI's recent ABSCAM3 operation that was used to uncover political
corruption, the techniques used by government agents in assuming

their criminal roles may be extensive and complex.
Traditionally, the defense of entrapment has been available to a

defendant who was caught as a result of government involvement in
the crime.4 According to the United States Supreme Court in Sor-
rells v. United States,5 the entrapment defense lies "[w]hen the criminal

design originates, not with the accused, but is conceived in the mind

of government officers and the accused is by persuasion, deceitful
representation, or inducement lured into the commission of a criminal

act . . . ."
6 Subsequent Supreme Court decisions have affirmed the

x

See Livermore, Enforcement Workshop: ABSCAM Entrapment, 11 Crim. L. Bull.
69 (1981).

2
See id. Of course, no crime is truly victimless. Although some types of crime

may appear to leave no specific victims, society does suffer some detriment. The degree
of damage inflicted upon society may be speculative, but clearly the democratic proc-
ess is circumvented when a bribe comes between an elected official and his or her
electorate.

3"ABSCAM" is an acronym for the words "Abdul Enterprises Ltd." and "scam."
Abdul Enterprises Ltd. was a fictitious Arabian corporation that FBI agents used to
attract corrupt persons and to front the "scam."

*See generally Note, The Need for a Dual Approach to Entrapment, 59 Wash.
U.L.Q. 199 (1981) (police activity that "creates" criminal conduct may be grounds for
the affirmative defense of entrapment).

5287 U.S. 435 (1932).
6
/d. at 445 (quoting Newman v. United States, 299 F. 128, 131 (4th Cir. 1929)).

Sorrells was the Supreme Court's first in-depth examination of the entrapment defense.
Sorrells was ultimately persuaded by a prohibition agent to acquire illegal whiskey;

581



582 INDIANA LAW REVIEW [Vol. 16:581

majority's position in Sorrells that the defense of entrapment is focused

on the defendant's predisposition to commit the crime.7 Thus, for the

entrapment defense to succeed, it must be shown that the criminal
design did not originate in the defendant's mind.

8 This requirement

makes the defense subjective because "[t]he predisposition and criminal

design of the defendant are relevant."9 In simpler terms, predisposi-

tion refers to the degree to which the defendant was willing to become

involved in the culpable activity before he was approached by govern-
ment agents. One way to prove this willingness is by the defendant's
ready acquiescence to commit the crime once he is contacted by gov-

ernment agents.10 A majority of the Supreme Court has consistently
maintained that the entrapment defense is based on legislative intent.11

In Sorrells, the Court explained that Congress could not have intended

that its statutes were to be enforced by tempting innocent persons.12

In this context, ''innocent" plainly refers to a non-predisposed defend-

ant, one who had little or no desire to become involved in the culpable
activity before he was approached. The Court has viewed itself as
being bound by public policy to interpret statutes reasonably and not

"to do violence to the spirit and purpose of the statute." 13 By reading
into the criminal statutes a congressional intent that entrapped defend-

ants were to be excluded from their coverage, the Court implies that

Congress, in its discretion, could expressly include such defendants.

More recently, a separate due process defense for a defendant
who was caught as a result of government involvement in the crime
has been recognized in the federal courts14 and by some of the Supreme

however, the agent's success was attained by the agent's persistence and by the agent's

utilization of the fact that he and the defendant had been in the same army division.
Furthermore, the government agent initiated contact with Sorrells even though there

was substantial evidence that Sorrells enjoyed a good reputation. After recognizing
the entrapment defense, the Court reversed Sorrell's conviction and remanded the
case for the jury to consider the defense. 287 U.S. at 452.

'See Hampton v. United States, 425 U.S. 484, 488-90 (1976) (denying the defend-
ant an entrapment defense due to defendant's predisposition); United States v. Russell,

411 U.S. 423, 433 (1973) (stating that the focus of the defense is on the predisposition

of the defendant to commit the crime); Sherman v. United States, 356 U.S. 369, 376
(1958) (majority declining to reassess the subjective view of entrapment, thereby im-

pliedly reaffirming it).
sSee 21 Am. Jur. 2d Criminal Law § 202 (1981).
9
Sorrells v. United States, 287 U.S. 435, 451 (1932); see also, Hampton v. United

States, 425 U.S. 484, 492 n.2 (1976) (Powell, J., concurring).
"United States v. Jannotti, 501 F. Supp. 1182, 1200 (E.D. Pa. 1980), rev'd on other

grounds, 673 F.2d 578 (3d Cir.), cert, denied, 102 S.Ct. 2906 (1982).
n
See, e.g., United States v. Russell, 411 U.S. 423, 433-34 (1973); Sorrells v. United

States, 287 U.S. 435, 449 (1932).
12
Id. at 448.

13
Id.

u
See, e.g., United States v. Twigg, 588 F.2d 373 (3d Cir. 1978); United States v.

West, 511 F.2d 1083 (3d Cir. 1975); Greene v. United States, 454 F.2d 783 (9th Cir.

1971); United States v. Kelly, 539 F. Supp. 363 (D.D.C. 1982); United States v. Batres-



1983] ABSCAM 583

Court Justices.
15 This defense, based on a constitutional claim, is raised

when entrapment is unavailable because the defendant was predis-
posed, but government participation in the crime had reached an ex-

treme level. 16 In applying this dofense, the courts have focused on

the level of government involvement. The defendant's predisposition,

or lack of predisposition, is not determinative; however, it may be
weighed as one factor in assessing the appropriateness of the govern-

ment conduct.17 Most courts that have recognized the due process

defense have repeated Justice Powell's assertion that "[d]ue process

in essence means fundamental fairness."18 The major obstacle between

predisposed defendants and the use of this defense has been discern-

ing at what point government involvement is no longer justified but

is, instead, fundamentally unfair.

Both the traditional entrapment defense, which focuses on the

defendant's predisposition, and the more novel due process defense,

which focuses on whether the government's conduct was fundamen-

tally unfair to the predisposed defendant, have been raised in various

ABSCAM cases. Because the subjective test for entrapment continues
to be the test adhered to by a majority of the Supreme Court, 19 the

due process defense, if formally recognized as a defense at all, would

be only a secondary defense limited to the most egregious govern-

Santolino, 521 F. Supp. 744 (N.D. Cal. 1981); United States v. Jannotti, 501 F. Supp.

1182 (E.D. Pa. 1980), rev'd on other grounds, 673 F.2d 578 (3d Cir. 1982), cert, denied,

102 S. Ct. 2906 (1982).
15United States v. Russell, 411 U.S. 423 (1973). Justice Rehnquist's opinion in Russell

recognized that a new due process defense may be available as a nonentrapment defense
when the government's conduct is sufficiently egregious. Id, at 431-32. Although in
Hampton v. United States, 425 U.S. 484, 490 (1976), Justice Rehnquist repudiated the
due process defense in the entrapment situation, the two concurring Justices continued

to recognize it. 425 US. at 495 (Powell, J., concurring). The three dissenting Justices
in Hampton also recognized the due process defense. 425 U.S. at 499 (Brennan, J.,
dissenting). See infra notes 29-35 and accompanying text.

16United States v. Russell, 411 U.S. 423, 431-32 (1973); United States v. Jannotti,

673 F.2d 578, 607 (3d Cir.), cert, denied, 102 S.Ct. 2906 (1982).

"See, e.g., United States v. Batres-Santolino, 521 F. Supp. 744, 751 (N.D. Cal. 1981);

People v. Isaacson, 44 N.Y.2d 511, 521, 378 N.E.2d 78, 83, 406 N.Y.S.2d 714, 719 (1978).
18Hampton v. United States, 425 U.S. 484, 494 n.6 (1976) (Powell, J., concurring).
19The dissenting and concurring Justices in Sorrells, Sherman, Russell, and Hampton

argue for an objective theory of entrapment. The objective test for entrapment focuses
primarily on the government's conduct; the defendant's predisposition is not controll-

ing. The inquiry under this minority approach is directed at the effect of the govern-
ment's conduct on a hypothetical, average person. See 21 Am. Jur. 2d Criminal Law
§ 206 (1981). The similarities between this theory and the due process defense are
obvious; both focus on the government's conduct rather than on the defendant's

predisposition. In fact, an argument could be made that if the objective theory of en-
trapment is adopted, the due process defense would be unnecessary. This is true

because, almost by definition, any government misconduct serious enough to be called
egregious and fundamentally unfair would certainly overcome a hypothetical, average
person.



584 INDIANA LAW REVIEW [Vol. 16:581

ment involvement. The remaining question is how does one determine
when government conduct has reached the egregious level and there-
fore is fundamentally unfair.

This Note will focus on the entrapment and due process defenses
raised by the defendants in the ABSCAM proceedings. This Note will
focus primarily on the emergence of the new due process defense and
will analyze its potential for ultimate success in the relevant ABSCAM
proceedings. Finally, this Note will suggest that ABSCAM presents
an opportunity for the United States Supreme Court to clarify the
due process defense and to provide the federal courts with some
guiding principles for future entrapment-type cases.

II. Development of the Due Process Defense
in the Federal Courts

A. The Supreme Court Dicta

The due process defense, as it applies to entrapment-type cases,
has never been the basis for a Supreme Court reversal and, in fact,
its existence thus far has only been recognized by the Court in dicta.20

Nevertheless, because of the way the Justices aligned themselves in
United States v. Russell21 and Hampton v. United States,22 it appears
safe to say that the due process defense, as distinct from the entrap-

ment defense, may be recognized by a majority of the Court today
in the event of exceedingly egregious government misconduct.23

In Russell, the Court considered whether the entrapment defense

could lie when the defendant was clearly predisposed to criminal
activity.

24 A government agent provided a rare chemical necessary

20
Justice Rehnquist, for the majority in Russell, spoke of a separate due process

defense available to even a predisposed defendant when "conduct of law enforcement
agents is so outrageous that due process principles" are violated. United States v.

Russell, 411 U.S. 423, 431-32 (1973).
21411 U.S. 423 (1973).
22425 U.S. 484 (1976) (plurality opinion).
23Hampton is the latest word from the Supreme Court concerning the due proc-

ess defense within an entrapment setting. In Hampton, Justice Rehnquist, writing

for the majority, retreated from his position in Russell which first espoused the defense.

See supra note 20. Now Justice Rehnquist would not allow a due process defense in
an entrapment situation but would only rely on prosecution of the police as the remedy

for the government's "illegal activity in concert with a defendant . . . ." 425 U.S. at

490. This prompted a separate opinion by Justice Powell, joined by Justice Blackmun,

concurring with the majority but leaving open the possibility that a case could arise

in which "overinvolvement of Government agents" would justify the due process defense.

Id. at 493. When the dissenting votes of Justices Brennan, Stewart, and Marshall,
who encourage adoption of the due process defense and the objective view of entrap-
ment, id. at 496-97, are added to those of Powell and Blackmun, a bare majority of

the Court recognizes the existence of the due process defense when government con-
duct is deemed to be fundamentally unfair.

24411 U.S. at 427.



1983] ABSCAM 585

for the manufacturing of methamphetamine (commonly known as
speed) to the defendant, who was already operating an illicit drug
laboratory. Applying the subjective view of entrapment, the defend-

ant's conviction was affirmed because the preexisting drug laboratory
established the defendant's predisposition to engage in the manufac-

ture and sale of illegal drugs.25

Because the Court in Russell rejected the defendant's entrapment

defense, the Court was forced to rule on the defendant's due process
defense, which had been successful in the court below.26 The Court
recognized that a predisposed defendant could succeed with a due proc-

ess defense when the government's conduct was sufficiently outra-
geous, even though a traditional entrapment defense could not lie.27

Because the government agent's actions in Russell were "distinctly
not of that [outrageous] breed,"

28
the language espousing the due proc-

ess defense was reduced to dictum.

The defendant in Hampton v. United States29 was convicted for
selling heroin that he had purchased from a government agent. The
Supreme Court again used the subjective test for entrapment and
affirmed the defendant's conviction because the defendant conceded

his predisposition to sell drugs.
30 As in Russell, once the defendant's

predisposition denied him the entrapment defense, the Court con-

sidered the due process defense. Justice Rehnquist, delivering the

plurality opinion of the Court, joined by Chief Justice Burger and

Justice White, retreated from the Russell dictum that recognized a

due process defense.31 Rather than serving as a defense for a predis-

posed defendant, Justice Rehnquist viewed the proper remedy for
outrageous government involvement to be prosecution of the govern-

ment agents for their "illegal activity in concert with a defendant."32

The two concurring33 and three dissenting34 Justices in Hampton
disagreed with Justice Rehnquist on this point, recognizing that in

cases of extreme governmental misconduct, the due process defense

may be asserted, regardless of the defendant's criminal predisposition.
The due process defense failed in Hampton because, although the two

25
Id. at 436.

26United States v. Russell, 459 F.2d 671 (9th Cir. 1972), rev'd, 411 U.S. 423

(1973). The Ninth Circuit held that "an intolerable degree of governmental participa-
tion" existed. 459 F.2d at 673.

27411 U.S. at 431-32.
2S
Id. at 432.

29425 U.S. 484 (1976) (plurality opinion).

™Id. at 490.
31
Id. at 489-90.

3Z
Id. at 490.

33
Id. at 491 (Powell, J., concurring) (joined by Justice Blackmun).

u
Id. at 495 (Brennan, J., dissenting) (joined by Justices Stewart and Marshall).



586 INDIANA LAW REVIEW [Vol. 16:581

concurring Justices recognized the defense, they did not find the

government's conduct in this case to be sufficiently outrageous.35

However, in Hampton, five Justices recognized that a separate due
process defense may be valid when the defendant is predisposed but
the government's conduct is outrageous.

The dicta in Russell and Hampton reveal no clear standards to
be used in assessing the merits of a due process defense. According

to the majority in Russell, the government's misconduct must violate
that " 'fundamental fairness, shocking to the universal sense of

justice,' " standard mandated by the due process clause.36 However,
in Hampton, Justice Rehnquist maintained that a breach of the above
standard would not serve as a defense but would support the pros-

ecution of the government agents.37 Justice Powell, concurring in

Hampton, stated that a due process defense should lie when the defend-
ant is not treated by the government with "fundamental fairness."38

In Rochin v. California,39 & nonentrapment case cited frequently as

an example of government misconduct violative of due process, the

Court stated that the rights at stake are those " 'so rooted in the

traditions and conscience of our people as to be ranked as

fundamental.'
"40 According to Rochin, the standard for allowable

government conduct was to be set by the "community sense of fair
play and decency"41 in order to determine what conduct may be said
to "brutalize the temper of society."42 These vague standards are
of limited utility to a federal court trying to follow precedent.

Because of the lack of any useful Supreme Court guidelines in
this area, the only real significance of Russell and Hampton, with
regard to the due process defense, is that they illustrate a probable

acceptance of the defense by a majority of the Supreme Court Justices.
Because a majority of Justices in Hampton did not think that the
government's involvement was outrageous, the nature of the due proc-
ess defense was not fully explained. That responsibility has largely
fallen on the lower federal courts. These courts have recognized the

due process defense in numerous decisions; however, the decisions

35
Id. at 491 (Powell, J., concurring).

36411 U.S. at 432 (quoting Kinsella v. United States, 361 U.S." 234, 246 (I960)).

In pertinent part, the fifth amendment provides that "[n]o person shall be . . . deprived

of life, liberty or property without due process of law . . . ." U.S. Const, amend. V.
37425 U.S. at 490.
z%
Id. at 494 n.6 (Powell, J., concurring).

39342 U.S. 165 (1952) (the infamous stomach pumping case).
i0
Id. at 169 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

41342 U.S. at 173.
i2
Id. at 174.



1983] ABSCAM 587

in which the defense has been successful are few.43 In order to obtain
a better grasp on what standards are being used to evaluate the due
process defense, the few cases that have based an acquittal or rever-
sal on these grounds will be examined.

B. Due Process Defense in the Federal Courts

In Greene v. United States,4* the Court of Appeals for the Ninth

Circuit reversed the defendants' convictions for bootlegging because

of extreme government involvement in the defendants' bootlegging
ventures.

45 This extreme involvement consisted of a government agent

who not only provided the defendants with the necessary sugar, but
also located a site for the still and offered to provide a still operator.

Although the defendants' predisposition, as evidenced by their past

involvement in maintaining illegal stills, automatically denied them
an entrapment defense,46 their predisposition did not prevent the court

from recognizing a due process defense without expressly labeling it

as such.
47 The court emphasized that it was reversing the convictions

because the "Government's conduct [rose] to a level of 'creative ac-

tivity' . . . substantially more intense and aggressive than the level
of such activity charged against the Government in numerous [other]
entrapment cases . . . ," 48 Even the dissent recognized that "[t]here
may some day be a case where . . . government control is so per-
vasive as to render the crime in its entirety a governmental enter-

prise and where, on grounds other than entrapment, immunity should

be extended to the criminal participants."49

Although the Court of Appeals for the Second Circuit in United

States v. Archer50 balked at the opportunity to apply the due process

defense, the court might have applied the due process defense had

43The decisions in which the due process defense has been successful are United
States v. Twigg, 588 F.2d 373 (3d Cir. 1978); United States v. West, 511 F.2d 1083
(3d Cir. 1975); Greene v. United States, 454 F.2d 783 (9th Cir. 1971); United States
v. Kelly, 539 F. Supp. 363 (D.D.C. 1982); United States v. Batres-Santolino, 521 F. Supp.
744 (N.D. Cal. 1981); United States v. Jannotti, 501 F. Supp. 1182 (E.D. Pa. 1980), rev'd
on other grounds, 673 F.2d 578 (3d Cir.), cert, denied, 102 S. Ct. 2906 (1982).

"454 F.2d 783 (9th Cir. 1971). Justice Powell cited Greene with approval in Hampton.
425 U.S. 484, 493 & n.3 (1976).

45454 F.2d at 787.
i6
Id. at 786.

47The court stated, "We do not believe the Government may involve itself
so directly and continously over such a long period of time in the creation and
maintenance of criminal operation, and yet prosecute its collaborators." Id. at 787.

iS
Id. (quoting Sherman v. United States, 356 U.S. 369, 372 (1958)).

49
454 F.2d at 788. (Merrill, J., dissenting).

M486 F.2d 670 (2d Cir. 1973). Justice Powell cited Archer with approval in Hamp-
ton. 425 U.S. at 493 & n.4.



588 INDIANA LAW REVIEW [Vol. 16:581

a jurisdictional escape hatch not allowed them to dodge the substan-
tive issue.

51 The court was especially critical of the government's
scheme which entailed a staged arrest and bribe offers in an effort

to uncover corruption in New York's criminal justice system.52 Adding
to the court's condemnation of the government's conduct was the fact
that the Archer scheme was directed at unknown corrupt officials
rather than targeted suspects.53

In United States v. West,5* the Court of Appeals for the Third Cir-

cuit reversed the defendant's conviction for unlawful distribution of

heroin because government agents were on both sides of the drug
transaction. In West, the informer supplied the defendant with the

drugs, and the government agent, as prearranged with the informer,
bought the drugs from the defendant after the defendant was per-
suaded to sell the drugs by the informer. Judge Hastie, writing for
the majority, held that "the role of government has passed the point
of toleration. Moreover, such conduct does not facilitate discovery or

suppression of ongoing illicit traffic in drugs. It serves no justifying

social objective."
55 Although the per se rule of West, stating that due

process is violated when government agents are on both sides of a
drug transaction, was impliedly rejected in Hampton,56 West has never
been expressly overruled and still stands for the proposition that a

due process defense may be available to a defendant when the govern-
ment engages in "intolerable conduct."57 Although, as stated, there
are no per se rules, it appears that when the government convicts
a defendant for selling narcotics, the fact that government agents
assisted in the sale by supplying the drugs and acting as the defend-

ant's partner will place such assistance somewhere near the outrageous
level.

United States v. Twigg58 is the first case since Hampton in which
a federal court of appeals reversed a defendant's conviction by apply-
ing the due process defense. In Twigg, the government initiated con-
tact with the defendant and prompted him to set up a laboratory to

51Judge Friendly stated, "We are not sure how we would decide this question
if decision were required .... [T]here is certainly a limit to allowing governmental
involvement in crime." 486 F.2d at 676 (footnote omitted).

52
Id. at 672-73.

"Id.
M511 F.2d 1083 (3d Cir. 1975).

"Id. at 1085. See also United States v. Bueno, 447 F.2d 903, 905-06 (5th Cir. 1971)

(entrapment as a matter of law exists when government supplies and then buys drugs
from defendant), cert, denied, 411 U.S. 949 (1973).

^The Supreme Court affirmed the defendant's conviction even though the govern-
ment occupied the roles of both seller and buyer, with defendant as the middleman.
425 U.S. at 484.

"511 F.2d at 1086.
58
588 F.2d 373 (3d Cir. 1978).



1983] ABSCAM 589

manufacture drugs. The government's Drug Enforcement Agency
(DEA) provided substantial assistance through a government informer.

The court reversed the defendant's conviction because it found that

the degree of DEA involvement with the criminal enterprise was so
outrageous that due process principles foreclosed any prosecution.59

Although Twigg seems to hold that the government violates due proc-

ess when it instigates a crime without any probable cause to believe
that the defendant is already involved in criminal activity, an over-

whelming majority of federal courts reach a contrary result.60 There-

fore, Twigg remains valid authority only for the narrower holding that

due process is violated when the government instigates a crime
without probable cause and provides extensive assistance to the

criminal to complete the crime.61 Because the probable cause factor

has been discounted in this area, the emphasis is obviously on whether

the government's participation rose to the level of outrageous

assistance.

A more recent case recognizing and applying the due process
defense is United States v. Batres-Santolino.

62 Thomas, a government

informer, succeeded in inducing the defendants to enter into a cocaine

transaction even though the defendants had no prior history of deal-

ing in drugs. Although these facts demonstrated the defendants' lack

of predisposition to traffic in drugs and seemingly would support an

entrapment defense, the defendants chose to rely only on the due proc-

ess defense. Thus, the availability of the defendants' defense was deter-

mined by the judge because the due process defense, in contrast to

the entrapment defense, raises a question of law for the court.63

The court in Batres-Santolino recognized that the due process
defense is separate from any entrapment issue and that a defend-
ant's predisposition will not foreclose the success of a due process

defense.
64 Although the focus of the due process defense is on the

government's conduct, the court held that a defendant's lack of prior

59
Id. at 377.
m
See, e.g., United States v. Swets, 563 F.2d 989, 991 (10th Cir. 1977) (no showing

of probable cause necessary before government can instigate a crime); United States
v. Martinez, 488 F.2d 1088, 1089 (9th Cir. 1973) (government need not establish that

it had knowledge of defendant's propensity toward crime); United States v. Jenkins,
480 F.2d 1198, 1200 (5th Cir.) (willingness by defendant to participate in crime can establish

predisposition and no probable cause necessary), cert, denied, 414 U.S. 913 (1973); United

States v. Rodrigues, 433 F.2d 760, 762 (1st Cir. 1970) (police would be unable to trap
the first offender if probable cause was required before defendant could be tested),
cert, denied, 401 U.S. 943 (1971).

61588 F.2d at 377-78. See generally Comment, Due Process Defense When Govern-
ment Agents Instigate and Abet Crime, 67 Geo. L.J. 1455 (1979).

62
521 F. Supp. 744 (N.D. Cal. 1981).

63
Id. at 750.

6i
Id.



590 INDIANA LAW REVIEW [Vol. 16:581

criminal involvement was a relevant factor to weigh in determining
whether the government conduct is outrageous.65 In acquitting the

defendants, the court held that this was a case "in which government
agents 'manufactured' a crime that . . . could not and would not have

been committed."66 The court relied on the fact that defendant had

no previous history of drug related crimes and on the fact that the

government supplied all of the drugs.67 This case stands for the prop-

osition that if a crime would not have occurred, or would not have

been likely to occur but for the government's prodding and aid, the

due process defense may be successful. Because the due process
defense is available also to predisposed defendants who fail to meet
the "but for" test, the degree of government aid to the defendant

is obviously a weightier concern.

What guiding principles can be discerned from these and other
opinions to aid a federal court faced with a cognizable due process

defense when a defendant's predisposition denies him the entrapment
defense? Unfortunately, the only clear principle on which the courts

seem to agree is that because covert crime demands extensive govern-
ment infiltration into the ranks of criminals, situations where govern-
ment conduct is sufficiently outrageous to violate due process will be
extremely rare.68 The reluctance of the federal courts to utilize the
due process defense is furthered by the absence of any Supreme Court
standards in this area. Beyond the bench mark case of Rochin and its
subjective inquiries into "fair play and decency"69 and "conduct that

shocks the conscience,"70 there have been only meager attempts to
establish any concrete standards. Additionally, any extensive reliance

on Rochin for guidance in this area would be precarious because that

case did not arise in an entrapment-type setting.

Nevertheless, by surveying the major cases in this area, common
factors emerge as being relevant to the due process defense. Some
of these factors were set forth in a New York Court of Appeals deci-
sion overturning a conviction because of a successful due process
defense.

71 The factors were: (1) whether the crime would not have oc-

65
Id. at 751.

66
Id.

61
Id. at 752 (citing Twigg as authority for an acquittal when these two factors exist).

68
See Hampton v. United States, 425 U.S. 484, 495-96 n.7 (1976) (Powell, J., con-

curring); United States v. Russell, 411 U.S. 423, 432 (1973).
69342 U.S. at 173.
70
Id. at 172.

"People v. Isaacson, 44 N.Y.2d 511, 378 N.E.2d 78, 406 N.Y.S.2d 714 (1978)

(defendant with no prior convictions was induced to sell cocaine by a government in-
formant who only cooperated with police after he was threatened, beaten, and deceived).
See generally O'Connor, Entrapment Versus Due Process: A Solution to the Problem of
the Criminal Conviction Obtained by Law Enforcement Misconduct, 7 Fordham Urb.
L.J. 35 (1978) (suggesting the Isaacson approach to the due process defense is proper

and should be adopted by the Supreme Court).



1983] ABSCAM 591

curred but for the government's assistance in manufacturing the crime

or whether the defendants were already involved in ongoing criminal

activity; (2) whether the government agents committed crimes or other-

wise acted improperly; (3) whether the government agents persisted

with their inducements to overcome the defendant's reluctance to com-

mit the crime; and (4) whether the government agents' sole motive

was to obtain a conviction or to protect the public by preventing fur-

ther crime.
72

The federal cases discussed above either impliedly or expressly
recognized these factors as relevant to, if not dispositive of, the due

process issue. If the more obvious factors of the need for the par-

ticular undercover work as determined by the type of crime being
investigated

73 and the availability of other, less repugnant, means to
combat the criminal activity are added to the factors espoused by

the New York Court of Appeals, a hazy set of guidelines emerges
to identify the circumstances where the Supreme Court's standard
of "fundamental fairness" espoused in the Russell and Hampton dicta
would be violated.74 A resolution of the issues presented by all of these
guidelines was made in favor of two ABSCAM defendants who raised
the due process defense at the district court level.75 The appropriate-
ness of those decisions will be discussed below.

III. ABSCAM

A. Summary of FBI's Scheme

ABSCAM, short for "Abdul Enterprises" and "scam," is a code
word used by the FBI to denote an elaborate undercover "sting" opera-
tion aimed, in part, at ferreting out corrupt public officials.

76 Although

72People v. Isaacson, 44 N.Y.2d 511, 521, 378 N.E.2d 78, 83, 406 N.Y.S.2d 714,

719 (1978).
73For example, narcotic offenses and official corruption could hardly be detected

without clandestine operations by the government.

74425 U.S. at 494 n.6 (Powell, J., concurring). Although the majority opinion in

Hampton held that only a prosecution against the government could lie where a "pro-
tected right" of the defendant was violated, for example a specific provision of one
of the Bill of Rights, id. at 490, a majority of the Supreme Court Justices would
recognize the due process defense and probably apply it beyond specific constitutional

violations to include the broader notion of infringements in violation of "fundamental

fairness." See supra note 23 and accompanying text. This is the desirable approach

because if the due process defense is only applicable to specific violations of the Con-

stitution, it will amount to only a redundant overlap with the particular constitutional
safeguards.

75United States v. Kelly, 539 F. Supp. 363 (D.D.C. 1982); United States v. Jannotti,

501 F. Supp. 1182 (E.D. Pa. 1980), rev'd on other grounds, 673 F.2d 578 (3d Cir.), cert,

denied, 102 S. Ct. 2906 (1982).
76See United States v. Myers, 527 F. Supp. 1206 (E.D.N.Y. 1981) for an in-depth

factual description of ABSCAM.



592 INDIANA LAW REVIEW [Vol. 16:581

the initial purpose of the scheme was to discover stolen and forged
securities and stolen art work, the FBI agents ultimately developed
a complex and extensive subpart aimed at exposing political

corruption.

Through the services of Melvin Weinberg, a racketeer who
received probation and a salary for his cooperation, the word was
spread to the underworld that wealthy Arabs had large sums of cash
to invest in American outlets. "He would pass the word of big money
available for deals to other con men .... If criminal proposals ap-
peared, appropriate action would be taken by the FBI."77 Weinberg,

together with several FBI agents, posed as representatives for the
fictitious Arab corporation, establishing the business in Holbrook, Long

Island. By way of unwary and corrupt middlemen who received com-
missions for providing the undercover agents with public officials in-

terested in the Arab money, several public officials, including six
members of the House of Representatives, one United States Senator,
one immigration official, one mayor, and two members of the
Philadelphia City Council were indicted.78 Although the facts alleged

in each indictment varied, each defendant was recorded and filmed
accepting money at the insistence of the undercover agent in return
for some political favor concerning investment activities and/or im-
migration difficulties. It should be noted that Weinberg, the racketeer

who aided the government agents, was responsible for inventing this
subpart of ABSCAM, which is commonly referred to as the "asylum
scenario."

79

B. Failure of the Entrapment and Due Process Defenses

1. United States v. Myers. — In United States v. Myers,80 the
defense of entrapment was unavailable to the eight defendants either
because it had not been raised at trial and was therefore waived, or
because the jury had sufficient evidence to find predisposition.81 Thus,

71
Id. at 1210.

™Id. at 1210-11.
n
See United States v. Kelly, 539 F. Supp. 363, 366 (D.D.C. 1982).

80510 F. Supp. 319 (E.D.N.Y.), affd, 635 F.2d 932 (2d Cir.), cert, denied, 449 U.S.

956 (1980), motions denied, 527 F. Supp. 1206 (E.D.N.Y. 1981), affd, 692 F.2d 823 (2d

Cir. 1982).
81527 F. Supp. at 1224. It would be a difficult task to rebut a finding of predisposi-

tion when the defendants were all filmed voluntarily taking the cash. This is because
evidence of a defendant's ready acquiescence to commit the crime can be used to show

his predisposition. United States v. Jannotti, 501 F. Supp. 1182, 1200 (E.D. Pa. 1980),

rev'd on other grounds, 673 F.2d 578 (3d Cir.), cert, denied, 102 S.Ct. 2906 (1982). All
of the defendants in Myers filed joint briefs in support of basically the same legal
principles and were therefore treated as a group. Along with Michael Myers (United
States Congressman), named defendants included Angelo Errichetti (Mayor of Camden,
New Jersey and New Jersey State Senator), Howard Criden (Philadelphia attorney),



1983] ABSCAM 593

the defendants were left with only one viable defense: outrageous

government conduct amounting to a violation of due process. The

defendants based this defense on the following claims: (1) ABSCAM
manufactured crimes that would never have occurred otherwise; (2)

the entire scheme was filled with instances of misconduct ranging from

inadequate documentation to a reward system; (3) the inducements

offered were overwhelming; (4) the government had no probable cause

before it began the scheme; (5) the government used high pressure

tactics after a defendant expressed an unwillingness to take a bribe;

and (6) the scheme violated principles emanating from the separation

of powers doctrine.82

Although the District Court for the Eastern District of New York
recognized that a due process defense may be available to even a
predisposed defendant, it did not find the government's conduct to

be sufficiently outrageous.
83 The court held that the "mere instiga-

tion of crime does not render law enforcement activity 'outrageous.'
"84

The court emphasized that the government's conduct was less out-
rageous than in Hampton and that the defendants could simply have
said "no" to the bribes.85 The court rejected each basis put forth by
the defendants in support of their due process defense in spite of the

almost certain fact that no crime would have been committed but for
the government's instigation of the crime. It was undisputed that none
of the defendants were under suspicion prior to their meetings with

the undercover agents and that there was no evidence of criminal
inclinations or a predisposition to accept bribes except for the filmed

ABSCAM payoffs.86
In light of the facts which have supported a successful due proc-

ess defense in the few available cases,87 the decision reached in Myers

was appropriate. The defense has only been successful in rare in-

Louis Johanson (Philadelphia attorney and city council member), Frank Thompson, Jr.
(United States Congressman), John Murphy (United States Congressman), Joseph Silvetri
(New Jersey businessman), and Raymond Lederer (United States Congressman).

82527 F. Supp. at 1217-19.
S3
Id. at 1225.

Si
Id.

85
Id. Three other legislators, faced with similar offers, rejected the offers and

refused to accept the money.
86The Court of Appeals for the Second Circuit recently affirmed the defendants'

convictions in spite of the alleged due process violations. United States v. Myers, 692

F.2d 823 (2d Cir. 1982). The court recognized that the government had no probable
cause to believe the defendants were corrupt; the purpose of the scheme was simply
to "see who showed up to take the bribes and videotape them in the act of doing
so." Id. at 837. The court noted that the defendants "enjoy no special constitutional
rule that requires prior suspicion of criminal activity before they may be confronted
with a governmentally created opportunity to commit a crime." Id. at 835.

81
See, e.g., United States v. Twigg, 588 F.2d 373 (3d Cir. 1978).



594 INDIANA LAW REVIEW [Vol. 16:581

stances in which the courts found it necessary to "restrain law en-

forcement activities that involve coercion or outrageous violation of

physical integrity."
88 Narcotic crimes, by their nature, offer the poten-

tial for much greater police coercion than do crimes of official corrup-
tion. The defense has been successful almost exclusively in narcotic
cases

89 where police officers went beyond making mere offers and ac-
tually assisted the defendant in committing the crime. Because the

due process defense is a function of the level of government conduct,

any distinction between government involvement in crimes of narcotics

and crimes of corruption will be only a matter of degree. Nevertheless,

a material distinction exists between waving money in the face of
a public official and providing knowledge, materials, assistance, pur-

chasers, and drugs for the drug trafficker. In both cases the govern-

ment is involved; however, only in the latter case has this involve-
ment turned to what might be called outrageous assistance. Another
distinction between crimes involving bribery and contraband may be
that the courts simply set higher standards for elected officials and

demand that they not give in to temptations that may affect their
governmental duties.

2. United States v. Alexandro. — In United States v. Alexandro,90
an immigration official was convicted for accepting a bribe from under-
cover agents in exchange for the immigration official's assistance in

obtaining an immigration pass. The evidence indicated that Alexan-
dro constructed the scheme and presented it to the undercover

agents.
91 Alexandro did not raise the entrapment defense but instead

relied on the due process defense.92 The court rejected the defense
under this factual setting but proffered the following test: "The line

between lawful subterfuge and excessive Government involvement in
violation of the due process clause of the Constitution is drawn when
the end sought cannot be justified by the means used."93 Using its
own formula, the court weighed the importance of ferreting out cor-
rupt public officials (the end) and the impotence of conventional police

tactics to accomplish the same, with the tactics utilized in the elaborate

88692 F.2d at 837 (2d Cir. 1982) (citations omitted).
89
See supra notes 44-49, 54-67 and accompanying text.

90675 F.2d 34 (2d Cir. 1982).
91
In a separate trial, Alfred Carpentier, a Long Island businessman, was also con-

victed for his role in initiating contact with the government agents and assuring them
that an immigration pass could easily, and illegally, be obtained. On appeal, Carpen-
tier raised the due process defense; however, the Second Circuit found the claim to

be meritless. United States v. Carpentier, 689 F.2d 21 (2d Cir. 1982).
92Alexandro argued that the government's fictitious immigration ploy was "so

repugnant and excessive that due process principles should have prohibited his criminal

prosecution." 675 F.2d at 39.
93
Id. at 34-35.



1983] ABSCAM 595

government scheme (the means). The court concluded that the defend-
ant had not been treated unfairly.94

Alexandro represents the easy case where a due process defense

has almost no chance for success. In that case, Alexandro created the

plot and presented it to the undercover agents. To assure the agents
of his ability to obtain a fraudulent passport, Alexandro boasted of

his past success in securing passports. The few cases that have upheld
acquittals based on the due process defense involved government

schemes presented to the defendants.95 The defendants in Greene and
Twigg, for example, would not have succeeded with the due process

defense had they approached undercover agents and proposed plans

to sell contraband.

3. United States v. Williams. — In United States v. Williams,96

Senator Harrison A. Williams was found guilty of bribery, criminal
gratuity, conflict of interest, interstate travel for unlawful activity,

and conspiracy.97 Although the defendants, Williams and Feinberg,

relied on the defense of entrapment, the jury found that they were

both predisposed to commit acts of corruption.98 After their convic-

tions for taking bribes, the defendants moved to have the jury verdicts
set aside based on the government's outrageous conduct amounting

to violations of due process. As a basis for this defense, the defendants
pointed to the pressure applied by the agents,99 the selectivity of the

prosecutions, the size of the inducements, and other miscellaneous in-

stances of claimed outrageousness.100 In spite of these allegations of

government misconduct, the court found that the defendants know-

ingly and voluntarily entered into an illegal course of conduct aimed

at using Senator Williams' political influence and power to obtain

9i
Id. at 42.

95
See, e.g., United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) (government in-

itiated contact and proposed that defendant set up drug laboratory); Greene v. United
States, 454 F.2d 783 (9th Cir. 1971) (government proposed illegal still operation).

96
529 F. Supp. 1085 (E.D.N.Y. 1981).

"Senator Williams held a secret interest in a titanium mine and was interested
in acquiring financial investments from the Arabs to support the venture. It was con-
ceded that this, on its face, would have been a perfectly legitimate relationship.
However, "[c]riminality arose out of the promise requested by the undercover agent
as a condition for the financing, which was that defendant Williams would promise
to use his power and influence as a United States Senator to obtain government con-
tracts for purchasing the titanium to be produced by the mine . . . ." Id. at 1090-91.

9a
Id. at 1088. Various pieces of circumstantial evidence, such as Williams' con-

tacts with corrupt politicians, allowed the jury to find predisposition.

"This refers to the episode now referred to as the "coaching incident" in which
government agents "coached" Williams on how to conduct himself in front of the fic-
titious Arab sheik, who was also a government agent.

100The miscellaneous instances of allegedly outrageous conduct included various
forgeries made to further the apparent legitimacy of "Abdul Enterprises" and the
use of Weinberg, a reknowned hoodlum, as a government agent. 529 F. Supp. at 1102.



596 INDIANA LAW REVIEW [Vol. 16:581

government contracts for the purchase of titanium. 101 The court con-
sidered the degree of sophistication expected from any United States

Senator and concluded that the evidence of government misconduct
was not sufficient to meet the outrageous conduct and fundamental
fairness standards mentioned in the Russell and Hampton dicta.102

There is one fact that distinguishes Williams from the other

ABSCAM cases. Senator Williams had an additional motive for tak-
ing a bribe: he owned an interest in the same mine which the bribes
were intended to benefit. Although this fact alone does not necessarily

suggest anything improper, the court obviously afforded due weight

to it in considering Williams' entrapment and due process claims. To
accept Williams' claim that the government's conduct was outrageous,
the court would have had to believe that Williams thought it a mere
coincidence that the agents wanted to buy his influence in securing
titanium contracts for a mine which Williams partially owned. Given

Williams' experience and sophistication, the inference is overwhelm-

ing that he either accepted the bribes to promote his vested interest

in the mine or to profit from the money alone, or for both reasons.
Williams is unlikp the federal cases previously discussed which

involved narcotics and police officers who took advantage of the
defendant's lack of sophistication and assisted in committing the

crimes.
103 No government agent assisted Williams in taking the money;

only opportunities were presented.

C. Success of the Due Process Defense

1. United States v. Jannotti.— United States v. Jannotti10* grew
out of the Philadelphia phase of ABSCAM that began in 1980 when
Weinberg, through intermediaries, began spreading the word that
Abdul Enterprises planned to invest 150 million dollars for a hotel

in the city. The government agents, posing as representatives of the
fictitious sheik, purported to be concerned that local laws and regula-

tions might slow up the hotel project. To eliminate these concerns,
the government agents, through unwary middlemen, sought to gain
assurances from local politicians that any ensuing difficulties could

be solved quickly and without resort to the slow processes of local

government. Jannotti and Schwartz, who were members of
Philadelphia's city council, were lured by the potential investments
into meeting with the undercover agents. The money to be paid to
Schwartz was characterized as a consulting fee for his expert advice
on the intricacies of local government.

101
Id. at 1107.

102
Id. at 1099.

103
See supra notes 44-49, 54-67 and accompanying text.

104
501 F. Supp. 1182 (E.D. Pa. 1980), rev'd, 673 F.2d 578 (3d Cir.), cert, denied, 102

Ct. 2906 (1982).



1983] ABSCAM 597

Although Schwartz and Jannotti attended separate meetings with

the fictitious investors, the government agents explained, in both

meetings, that the hotel project would be completely legitimate but

that the sheik's "way of doing business" was to acquire politicians
as "friends."

105
In other words, the Arabs were accustomed to paying

cash in exchange for political support even when the project would
be legitimate. Both Schwartz and Jannotti initially refused to accept

any money for their support of the project because, as both stated,
they were always interested in legitimate projects that would improve

their city, and because the new jobs and added tax dollars from such
a project merited their support.

Nevertheless, the agents insisted on assurances from the

defendants and stressed the fact that without the assurances "their

principals would be unwilling to proceed with the project in

Philadelphia."
106 Despite the foregoing evidence tending to establish

that the defendants were prodded into accepting bribes, the filmed

evidence of each accepting cash from the agents illustrated their ready

acquiescence to partake in the crime and the jury found them both
to be predisposed and therefore guilty. 107

Judge Fullam of the District Court for the Eastern District of

Pennsylvania granted the defendants' motions to set aside the jury

verdict.
108 This decision was based on several alternative grounds, two

of which were entrapment as a matter of law and governmental mis-
conduct amounting to a due process violation. 109 Judge Fullam found
that there was no evidence upon which a reasonable jury could con-
clude that the defendants were predisposed; therefore, given the
government's inducements, Judge Fullam held that entrapment was
established as a matter of law. 110

This holding was not only unnecessary in light of the alternative
grounds given for acquittal, but as was subsequently pointed out by
the Court of Appeals for the Third Circuit, it was also improper. 111

The ABSCAM cases are unique in that nearly all of the incriminating
evidence was displayed on film for the jury to witness the actual com-
mission of the a1] eged criminal acts. A judge takes a bold step when
he usurps the function of a jury, especially when the credibility of
witnesses is an issue as in Jannotti.112 Judge Fullam admitted that
a defendant's ready acquiescence in the crime can be sufficient proof

of his predisposition, but held that an acceptance of the money in

105501 F. Supp. at 1194, 1196, 1199.
m
Id. at 1200.

m
Id. at 1198-99.

™Id. at 1205.
m
Id.

no
Id. at 1200.
mUnited States v. Jannotti, 673 F.2d 578, 580 (3d Cir.), cert, denied, 102 S. Ct.

2906 (1982).
U2673 F.2d at 598-602.



598 INDIANA LAW REVIEW [Vol. 16:581

this case did not constitute such ready acquiescence.113 However,

because entrapment is almost always a jury issue114 and the jury in

this case was actually able to witness the defendants' actions, the court
erred in finding entrapment as a matter of law. Once the films were

viewed and the defendants were seen taking the money, the primary

issue became whether the defendants' testimony as to a lack of
predisposition was believable. In its reversal, the majority opinion of
the Third Circuit correctly pointed out that credibility determinations

are classically within the province of the jury.115

In spite of the reversal by the Third Circuit, the district court

opinion in Jannotti is important for its alternative holding that the

tactics used in ABSCAM violated the due process rights of the
defendants.

116 After recognizing that a majority of the Supreme Court
has left open the possibility for a due process defense even when the
defendant is predisposed, Judge Fullam went on to discuss his reasons

for applying the defense. He correctly considered as relevant factors
the nature of the crime and the available means necessary to thwart
the crime. Relying on United States v. Twigg,117 Judge Fullam held

that "[w]hile municiple bribery may be 'fleeting' and 'elusive,' so that
governmental subterfuge and even creative involvement may be
necessary to combat it, the techniques involved here went far beyond

the necessities of legitimate law enforcement."118 Specifically, Judge

Fullam held that the extremely generous bribes coupled with the

threat that Philadelphia would lose the project unless the money were
accepted amounted to such extreme misconduct by the government
that due process was violated.119

Judge Fullam's opinion reads more like a legislative declaration
of policy than a judicial inquiry into the available precedents.

Specifically, Judge Fullam stated that "it is neither necessary nor ap-
propriate" for government agents to engage in the tactics used in
ABSCAM to ferret out corruption120 and "it is surely not within the
legitimate province of federal agents to embark upon a program of
corrupting . . . officials, merely to demonstrate that it is possible." 121

While these policy considerations may be relevant to the due process

113
501 F. Supp. at 1201.

ni
See United States v. Lents, 624 F.2d 1280, 1286 (5th Cir. 1980), 'cert, denied, 450

U.S. 995 (1981); United States v. Twigg, 588 F.2d 373, 376 (3d Cir. 1978).
115673 F.2d at 598 (citing United States v. Bocra, 623 F.2d 281, 289 (3d Cir. 1980)).
116
501 F. Supp. at 1205.

117
588 F.2d 373 (3d Cir. 1978).

118
501 F. Supp. at 1204.

u9
Id. Judge Fullman was critical of the ABSCAM tactics directed at Jannotti and

Schwartz which he believed were "neither necessary nor appropriate to the task of
ferreting out crime . . . ." Id.

l20
Id.

m
Id. at 1205.



1983] ABSCAM 599

defense, given the facts of Jannotti, they alone cannot, and ultimately

did not, support a due process defense of constitutional magnitude.

The convictions of Jannotti and Schwartz were reinstated by the
Court of Appeals for the Third Circuit.

122
In overturning the district

court's finding of entrapment as a matter of law, the appellate court

focused on the traditional role of the jury in entrapment cases and

held that the function of the jury had been usurped.123 The court not
only concluded that the jury had sufficient evidence of the defendants'

predisposition,
124 which was shown by their ready acquiescence to

receive the money, but also attacked the district court's bases for

finding government inducement.125

Because the district court based its entrapment and due process

holdings largely on its view that the government's inducements were

overwhelming,126 the Third Circuit's contrary finding that the induce-

ments could not even overcome the jury's finding of predisposition,

with regard to the entrapment defense, made frivolous the claim that
the same inducements could support a due process defense. 127 As the
appellate court correctly observed, "the [Supreme] Court has manifest-

ly reserved for the constitutional defense [of due process] only the

most intolerable government conduct." 128 However, "[i]f the contours

of the entrapment defense are imprecise ... [a] similar delineation

of the conduct circumscribed by the due process defense is, at best,

elusive."
129 This statement by the court acknowledges that what

amounts to fundamental fairness and outrageous conduct violative of

due process is extremely fact sensitive and subject to individual in-

terpretation. What may shock the conscience of some people as being
obtrusive government misconduct may be viewed as excellent police
work by others. Of course, ambiguities and divergent views exist and
will continue to exist in many areas of the law; however, this is no

122
673 F.2d 578 (3d Cir. 1982). This is the same circuit which reversed the defendant's

conviction in United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), because of a suc-

cessful due process defense. Twigg was interpreted by Judge Fullam of the district
court as requiring an acquittal in Jannotti. 501 F. Supp. at 1204.

123673 F.2d at 608.
l2i
Id. at 607-08.

125
Id. at 599-604. The district court based its finding that the defendants were

induced on the three following factors: (1) the amount of the bribes ($30,000 for Schwartz
and $10,000 for Jannotti); (2) the court's opinion that the defendants were not being
asked to do anything improper; and (3) the threats that the project's location in

Philadelphia was contingent upon the defendants accepting the payoffs.
i26
See supra note 125 and accompanying text.

127The Third Circuit stated that "it is plain from the Court's opinion in Russell
and the separate opinions in Hampton, however, that a successful due process defense
must be predicated on intolerable government conduct which goes beyond that necessary
to sustain an entrapment defense." 673 F.2d at 607.

128
Id. at 608.

129
Id. at 606.



600 INDIANA LAW REVIEW [Vol. 16:581

reason to relent in the search for predictability and common prin-
ciples with respect to the application of the due process defense.

Unlike the district court, which seemingly was willing to invoke
mere policy grounds for its due process acquittal, the Third Circuit
expressly left this function to the executive branch.130 The Third Cir-
cuit took judicial notice of the fact that the crime of bribery, by its

nature, requires that the government be allowed to use a wide range

of weaponry to combat it. A judicial distaste for the government's
conduct, although certainly the starting point for a successful due proc-

ess defense, is simply insufficient in itself to sustain an application

of the due process defense. Unless the government's behavior shocks

the conscience and violates that elusive concept embodied in the term

fundamental fairness, the issue of government misconduct is for the

policy makers who must answer to the public.

The dissenting opinion, written by Judge Aldisert, and joined by
Judge Weis, primarily criticized the majority's disposition of the en-

trapment issue. 131 Rather than perceiving the filmed evidence as

creating an ideal jury situation, Judge Aldisert argued that, in effect,

the films nullified the need for a jury because the films largely

eliminated any possibility for controverted facts. 132 When films of the
alleged criminal activity are available, and therefore few credibility

issues are presented, the dissent submitted that it should be the

judge's responsibility, not the jury's, to decide the issue of entrap-

ment.133 One suspects, however, that Judge Aldisert's real reason for
finding no jury issue was his distrust of laymen in deciding issues
that he perceived as having great social significance. Judge Aldisert

stated that "we are confronting an extremely sensitive intersection
between morals and positive law, which demands that the judiciary
assume rather than shirk responsibility." 134 Once Judge Aldisert

assumed such judicial responsibility, he emphasized that the strength
and nature of the government's inducements are very relevant to the

130
Id. at 609. The court stated that:

Official corruption, in the form of bribery and extortion involving public of-

ficials, can, like the narcotics sales involved in Hampton, easily elude detec-

tion, since both parties to the transaction have an interest in concealment.

Indeed, bribery may be even more difficult to uncover than drug deals. A
determination of what undercover operations are necessary . . . must be left,

in the first instance, to [the executive branch] .... Unless the behavior
of the F.B.I, agents rose to that level of outrageousness which would bar

conviction, the conduct of agents ... is more appropriately considered through

the political process where divergent views can be expressed in the ballot box.

Id. (citations omitted).
131673 F.2d at 612-23 (Aldisert, J., dissenting).
132
Id. at 614.

133
Id. at 623.

13i
Id. at 616.



1983] ABSCAM 601

predisposition issue.
135 The stronger the inducements, the more dif-

ficult it will be for the government to prove a defendant's predisposi-

tion; thus, Judge Aldisert concluded that "[i]t is difficult to conceive

of a stronger case of inducement by the government."136

That issue — the strength of the inducements — was the reason for
the split between the majority and dissent. The majority viewed the
offered inducements as relatively insignificant in light of the status

enjoyed by the defendants 137 and considered the acceptance of money
as consumating a bribe. The dissent agreed with Judge Fullam of the
district court, viewing the inducements as being overwhelming and

the acceptance of money as only a sign of friendship. 138

Whether the majority correctly construed the due process defense
in Jannotti turns largely on whether the due process defense should

be expanded beyond the traditional narcotic cases to include crimes

of corruption.
139 This expansion would be necessary because the dif-

fering nature of the narcotic cases, in terms of the type of criminals

involved and the government assistance provided, may render them
insufficient as precedents to support the acquittal of defendants like

Jannotti.

United States v. Twigg140 is representative of the precedents in

this area. Although Twigg was relied upon by the district court in
Jannotti, the court of appeals properly distinguished Twigg. In Twigg,

the agent went beyond passive inducements; the agent actually
assisted the defendant by providing him with knowledge, money,
materials, and a production site for the manufacture of narcotics. 141

In Jannotti, the only government involvement was the offering of in-
ducements. Jannotti would be more like Twigg and the other narcotic
cases had the government agents somehow assisted Jannotti in receiv-
ing the bribes after they were offered. The difficulty in conceptualiz-
ing a factual situation in which government agents are able to both
induce and help a politician take the bribe makes it doubtful that the

l35
Id. at 617.

™Id.
mSee supra note 125 and accompanying text (listing the inducements considered

by the majority as being insufficient to establish entrapment as a matter of law or

a due process defense). See also United States v. Myers, 527 F. Supp. 1206, 1245 (E.D.N.Y.

1981) (discussing the district court's disposition of Jannotti and criticizing the weight

afforded to the various inducements).
138673 F.2d at 619.
139The issue also turns on one's perception of the roles to be occupied by the judge

and jury. While the majority concluded that the jury's function had been usurped,

id. at 602, the dissent believed that when dealing in areas of the law where "minimal
legal thresholds" are absent, "the jury, untrained in the law, should never be called

upon to design and construct [those thresholds]." Id. at 614 (Aldisert, J., dissenting).
140588 F.2d 373 (3d Cir. 1978).
U1
ld. at 380-81.



602 INDIANA LAW REVIEW [Vol. 16:581

due process defense will ever be extended successfully to crimes of

political corruption.
142

2. United States v. Kelly.— United States v. Kelly,143 a 1982 deci-

sion, is the only other ABSCAM case in which a district court over-
turned the jury's conviction and acquitted the defendant. Kelly is

especially significant because the defendant was acquitted exclusively
because of government misconduct resulting in a denial of due
process.

144

The factual setting of Kelly is quite similar to that described in
the Jannotti case. The word was out that rich Arab sheiks had millions
of dollars to invest and were interested in meeting public officials
who were willing and able to assist with investment and immigration
difficulties. Commissions were offered to middlemen for producing
government officials whom the Arabs could successfully bribe. Various
middlemen145 notified Kelly of the Arab investment opportunities. One
middleman, Eugene Ciuzio, boasted to the undercover agents that he
had virtual control over Kelly;146 consequently, Ciuzio was designated
to "feed the program" to the Congressman.147 It was undisputed that
when payments were first suggested, Kelly rejected the idea and ex-
pressed interest only in the legitimate aspects of the Arab ventures.148

At another meeting with the agents, and after Ciuzio had warned the

government agents to be very discreet about the subject of payoffs,

Kelly refused a second bribe offer. The agents persisted even after

Kelly rejected a third bribe offer, and Kelly openly insisted that he

was only interested in legitimate projects that could benefit his

district.
149 Further persistence and the display of $25,000 spread out

142The Third Circuit, in Jannotti, distinguished Twigg, Hampton, and other drug-

related cases on the grounds that the drug-related cases typically involve situations

in which the government participates in both the buying and the selling of the drugs.

673 F.2d at 608.
143539 F. Supp. 363 (D.D.C. 1982).
Ui
Id.

145The middlemen involved were Eugene Ciuzio, Stanley Weisz, and William

Rosenberg.
146There was no evidence to substantiate Ciuzio's assertion that he "controlled"

Kelly; consequently, the court refused to permit the jury, to consider Ciuzio's asser-

tion. 539 F. Supp. at 367.
U1
ld. Part of the "program" consisted of a $25,000 incentive offer for Kelly that

was later increased to $250,000 by Ciuzio. Id. at 366-67.
148The legitimate aspects were, of course, the purported investments to be made

in Kelly's district that would benefit Kelly's constituents. The requests for help in

obtaining immigration passes for the Arabs, and the Arabs' insistence that Kelly be

paid for his support of the project are examples of the illegitimate aspects of the

proffered arrangement.
149The agents later explained that it was their feeling that Kelly was just "being

cute" when he rejected the initial bribe offers.



1983] ABSCAM 603

on a table in stacks of one hundred dollar bills finally persuaded Kelly

to take the bribe.150

Judge Bryant, in overturning the jury's guilty verdict, displayed

his own personal bias and repulsion towards the ABSCAM scheme
as it affected Kelly.

151 He recognized, however, that personal bias was
insufficient as a basis upon which to rest a due process defense and

sought to "identify some discernible line between that conduct which
arouses my personal resentment, and that which falls short of minimal
standards of fairness." 152

To locate that discernible line and thus arrive at the proper mean-
ing of fundamental fairness, Judge Bryant, citing no authority, stated

that the government may not tempt an individual beyond that which
he "is likely to encounter in the ordinary course."

153 According to Judge

Bryant, it is so unrealistic for a Congressman to receive further bribe

offers once the first one has been refused that the agent's persistence

in Kelly amounted to fundamentally unfair tactics in violation of Kelly's

due process rights. 154 Judge Bryant reached this conclusion by deter-

mining that, because the bribery statute under which Kelly was con-
victed also imposes sanctions upon the party offering the bribe,155 no

one besides a government agent who is immune from prosecution
would reasonably have made three bribe attempts to Kelly. 156

150This was the first payment of a $100,000 bribe.
151539 F. Supp. at 373. At an earlier bench conference, Judge Bryant stated that

this case "has an odor to it that is going to be cleared away before anybody gets
convicted. It has an odor to it that is absolutely repulsive. Let's get along with the

trial .... But it stinks." Id. at 373 n.45.
1S2
Id. at 373. The fear of this personal bias in the judiciary may be what led Justice

Rehnquist to reject the due process defense. He stated in Hampton that "[t]he execu-
tion of the federal laws under our Constitution is confided primarily to the Executive

Branch of the Government, subject to applicable constitutional and statutory limita-

tions and to judically fashioned rules to enforce those limitations." Hampton v. United
States, 425 U.S. 484, 490 (1976) (quoting United States v. Russell, 411 U.S. 423, 435 (1973)).

153539 F. Supp. at 374. Judge Bryant explained that
u
[t]o offer any other type

of temptation does not serve the function of preventing crime by apprehending those
who, when faced with actual opportunity, would become criminals." Id.

15i
Id. at 373, 376-77.

155
18 U.S.C. § 201 (1976) provides in pertinent part that:

(b) Whoever, directly or indirectly, corruptly gives, offers or promises anything

of value to any public official ... or offers or promises any public official

... to give anything of value to any other person or entity, with intent —
(1) to influence any official act; or

(2) to influence such public official ... to commit or aid in committing,
or collude in, or allow, any fraud, or make opportunity for the commission
of any fraud, on the United States; or

(3) to induce such public official ... to do or omit to do any act in viola-

tion of his lawful duty . . . [shall be punished in accordance with this statute].
156539 F. Supp. at 376.



604 INDIANA LAW REVIEW [Vol. 16:581

Judge Bryant reasoned that no one in "real life" would have per-

sisted in offering the bribes because offering bribes is illegal by

statute; therefore, to persist in making bribe offers after repeated

rejections was fundamentally unfair and violative of Kelly's due proc-

ess rights.
157 Because only the government would and could persist

in such a scheme, so the theory goes, the bribery could never have

been committed but for the government's involvement.
158 Viewed in

this perspective, the government manufactured a crime that never

would have otherwise occurred. Judge Bryant explained that when

the repeated urgings are likely to be repeated in real life, the issue

is for the jury and is only one of inducement and of predisposition

within an entrapment context.159 In contrast, Judge Bryant believed

that inducements which are illegal and made repeatedly by govern-

ment officers whose behavior, therefore, fails to mirror real life, con-

stitutes outrageous conduct, which triggers the due process defense.

In support of this proposition, the court cited United States v. Russell
1™

noting that the actions of the government agent in Russell did not

violate any federal statute.
161

Although this area of the law would be simplified if courts adopted

Judge Bryant's test for fundamental fairness in deciding the due proc-

ess issue, his analysis is not likely to receive much judicial support.
There are three essential flaws in Judge Bryant's analysis. First, it
is erroneous to assume that in real life a person would not persist

in offering a bribe because that person has already committed the

crime after the first offer is made. It would be a more logical response
for a criminal, faced with an uncooperative official, to persist in his

bribery attempts because the criminal has potentially nothing more
to lose; one bribery attempt is enough to break the law. Judge Bryant

supported his position that repeated bribery attempts would be unreal-

istic by saying that any individual would quit after one bribery at-

tempt "for fear that the Congressman would notify the FBI."162 The
fallacy in this conclusion is made evident by the fact that neither Kelly
nor any other official indicted as a result of ABSCAM notified the FBI.

A more serious flaw in Judge Bryant's opinion is his emphasis
on the fact that the agents themselves were violating the bribery
statute and his apparent reliance on Russell for the proposition that

this is fundamentally unfair conduct.163 It is well settled that govern-

ed at 374, 376.
15S
Id. at 377.

159
Id. at 376.

160411 U.S. 423 (1973).
161539 F. Supp. at 377. See 18 U.S.C. § 201(a)-(c) (1976).
162539 F. Supp. at 376.
m
Id. at 377 (citing United States v. Russell, 411 U.S. 423, 430 (1973)). Whether

the government agents committed crimes themselves in their efforts to trap the



1983] ABSCAM 605

ment agents may participate to a limited degree in criminal conduct
to trap unwary criminals. 164 The various narcotic offenses serve as
prime examples of situations where government agents, either by sell-

ing or by buying drugs, participate in the commission of crimes.

Technically, however, the government agents have not committed

crimes because the agents act without the requisite mens rea. Because

the bribery statute under which Kelly was originally convicted

requires an "intent to influence,"
165 which the FBI agents obviously

did not have, it is clear that the government agents did not technically

violate the statute. The agents were not motivated by a desire to
secure political favors for themselves when they offered the bribes.
It is that evil which the statute was created to attack and which the

agents were trying to expose.
Even if it is agreed, arguendo, that the ABSCAM tactics would

not occur in real life situations and that the agents did violate the

bribery statute, it is doubtful that this conduct alone violated the due

process rights of Congressman Kelly. A defendant's predisposition not
only automatically denies him the entrapment defense, but it also

weighs against him when relying on the due process defense.166 Judge
Bryant apparently conceded that Kelly was predisposed or, at least,

Judge Bryant implied that such a finding would not change his

decision.
167 However, in addressing the dispositive role of predisposi-

tion in an entrapment defense with such strong language that is sug-

gestive of its influence even on the due process defense, Justice Powell

noted in Hampton that:

[T]he cases, if any, in which proof of predisposition is not

dispositive will be rare. Police overinvolvement in crime would

have to reach a demonstrable level of outrageousness before

it could bar conviction. This would be especially difficult to

show with respect to contraband offenses, which are so difficult

criminals is only one factor to be considered when a due process defense is raised;
it alone is not dispositive. See supra notes 71-75 and accompanying text. As Justice
Rehnquist noted in Russell, "law enforcement personnel have turned to one of the

only practicable means of detection: the infiltration of drug rings and a limited par-
ticipation in their unlawful present practices. Such infiltration is a recognized and per-

missable means of investigation . . . ." 411 U.S. at 432 (emphasis added).
164
411 U.S. at 432. See also Hampton v. United States, 425 U.S. 484 (1976) (govern-

ment "crimes" of selling and buying drugs from the defendant held not sufficient to
warrant a reversal of defendant's conviction).

mSee 18 U.S.C. § 201 (1976).
™See, e.g., United States v. Batres-Santolino, 521 F. Supp. 744, 751 (N.D. Cal. 1981);

People v. Isaacson, 44 N.Y.2d 511, 521, 378 N.E.2d 78, 83, 406 N.Y.S.2d 714, 719 (1978).
167539 F. Supp. at 376-77. Judge Bryant admitted that he was "disappointed and

chagrined, ... at the sight of Kelly stuffing $100 bills into his pockets." Id. at 375.



606 INDIANA LAW REVIEW [Vol. 16:581

to detect in the absence of undercover Government
involvement. 168

It would be even more difficult to sustain a due process defense
when the defendant is charged with bribery, a crime patently less
susceptible to discovery than crimes involving contraband. The federal
court decisions sustaining the due process defense169 and the Supreme
Court dicta in Hampton and Russell recognizing a potential due proc-
ess defense involved contraband offenses and more direct govern-
ment involvement in the form of assistance than any of the ABSCAM
defendants experienced. Unlike narcotic offenses, crimes of corrup-

tion leave behind little concrete evidence; a handshake or facial ex-

pression may consummate the crime. Like narcotic offenses, however,
undercover operations are necessary to fight against corruption

because of the inability to otherwise detect such crimes.

IV. Abscam's Future After Jannotti and Kelly

The critical issue to future litigants is whether the district courts

in Jannotti and Kelly were correct in finding that the actions of the

government agents in the ABSCAM operations rendered the crimes,
in their entirety, a governmental enterprise where immunity should

be extended to the criminal participants on the ground of due proc-

ess violations. It is submitted that ABSCAM does not represent the
"situation in which the conduct of law enforcement agents [was] so

outrageous that due process principles would absolutely bar the

government from invoking judicial processes to obtain a conviction."
170

It would be difficult to justify an expansive use of the due process

defense to include the ABSCAM cases unless, or until, the Supreme
Court chooses to expand the limited success of this defense and clarify

the defense within its fundamental fairness parameters. Those param-

eters are presently so vague as to defy accurate description and pre-

dictability except in the most extreme case.171

The ABSCAM cases are simply not instances of extreme govern-
mental misconduct. Unlike the federal precedents in this area, the

ABSCAM cases all involved sophisticated politicians, not street

168425 U.S. at 495 n.7 (Powell, J., concurring).
169United States v. Twigg, 588 F.2d 373 (3d Cir. 1978); United States v. West,

511 F.2d 1083 (3d Cir. 1975); Greene v. United States, 454 F.2d 783 (9th Cir. 1971);
United States v. Batres-Santolino, 521 F. Supp. 744 (N.D. Cal. 1981). This list of federal

district and appellate court decisions lists non-ABSCAM entrapment-type cases where
the government's conduct was deemed to be outrageous. All four involved contraband
offenses in which the government assumed a criminal role and provided substantial

assistance to the defendant.
170United States v. Russell, 411 U.S. 423, 431-32 (1973).
lll
See, e.g., Rochin v. California, 342 U.S. 165 (1952) (the infamous stomach pump-

ing case).



1983] ABSCAM 607

criminals. Far from actually aiding the ABSCAM defendants in the
commission of crimes, the government agents' participation never ex-

ceeded providing opportunities and inducements. This is to be con-

trasted with the narcotic cases where the government agents assumed

the roles of something resembling accomplices. 172 Of course, the mere
payment of the money could be construed as aiding the ABSCAM
defendants. This however, as a matter of degree, does not approach

the level of assistance given in the narcotic cases. The ABSCAM cases
would be more like the narcotic cases in which the due process

defense has succeeded, if the government agents had assisted the

politicians in receiving the bribes. Even involvement to this degree,
however, may not satisfy the Supreme Court as being "outrageous"
enough.173

The ABSCAM defendants do have several factors weighing in
their favor, which would tend to support a due process defense. Con-

sidering the elements held to be relevant in the cases previously

discussed,
174

a viable argument may be presented to show that no
bribes would have occurred but for the government's scheme and that
there was some reluctance, at least initially by some of the defendants,
in accepting the bribes.175 It is also largely undisputed that the govern-

ment had no probable cause for suspecting a particular official of cor-
ruption until he was already drawn into the government's scheme.176

Finally, the inducements offered to the defendants to overcome their
reluctance were concededly strong. However, in light of the sophistica-

tion of most of the ABSCAM defendants, this factor may be of little
persuasive value.177

Unfortunately for the ABSCAM defendants, other relevant fac-
tors weigh against them. It is undisputed that crimes of corruption

require, for their detection, undercover operations run by the govern-

ment. There are no other less repugnant means to combat this type
of criminal activity. 178 Although the wisdom of conducting such an

112
See supra notes 44-49, 54-67 and accompanying text.

113
See Hampton v. United States, 425 U.S. 484 (1976) (holding that the govern-

ment's involvement in the crime was not outrageous even though the agent was
technically an accomplice).

lu
See supra notes 69-75 and accompanying text for the major factors relevant to

the due process defense.
175
Id.

116
Id. But see supra note 60 and accompanying text.

171
See supra notes 69-75 and accompanying text.

1780ne critic of ABSCAM vented his feelings by stating that, "I think it is bad,
evil, illegal, vicious and unconstitutional for officers of the United States to engage
in the deliberate manufacture of crimes in the hope that their synthetic crimes will
ensnare the bad guys." Gould, A Defeat for Law and Order, N.Y.L.J., Feb. 15, 1980,
at 3. However, another critic added that:

For many crimes . . . [discovery of the criminals without lures and under-



608 INDIANA LAW REVIEW [Vol. 16:581

elaborate scheme may be questioned in terms of a cost-benefit analysis,
it is too much to say that the government engaged in improper con-
duct that is repugnant to a sense of justice and shocking to the
conscience.

179 What is shocking to the conscience is the success of
ABSCAM in uncovering officials who were willing to accept bribes.

Because the lower courts are in dispute as to what a successful
due process defense requires, the Supreme Court should clarify this
issue. Since Hampton, it appears that several of the Supreme Court
Justices would deny the ABSCAM defendant a due process defense.180
If the Justices who recognize outrageous government misconduct as
giving rise to a defense limit the defense to specific, constitutional

violations, the due process defense certainly would be clarified;

however, such a requirement would considerably restrict the scope

of the due process defense, making it a redundant defense which would

overlap with existing constitutional safeguards.181 If the defense is

given a broader interpretation constrained only by those elusive

parameters which connote "fundamental fairness" and "outrageous con-

duct", little or no guiding principles will exist.

It would seem that the line between government conduct that
merely offends our sense of what constitutes efficient police work and
government misconduct that is so outrageous that it violates an indi-

vidual's due process rights should be drawn where the government
agents actually assist the defendant in committing the crime. Under
this analysis, so long as the government's participation does not ex-

ceed passively offering inducements, regardless of how often or strong,
the defendant could rely only on the entrapment defense. Of course,

the political processes also would be available if the government's tac-

tics were deemed obtrusive or wasteful.
The due process defense should not be available until the govern-

ment agents go further than passively offering inducements and

cover activities] is not possible, and bribery of public officials is one such

crime. Unlike crimes directed at individual victims . . . crimes of official cor-

ruption have no victim save society at large .... Both briber and bribee
are happy with the outcome. If subversion of governmental processes is to
be discovered, it must be by undercover activity.

Livermore, Enforcement Workshop: ABSCAM Entrapment, 17 Crim. L. Bull. 69, 72
(1981).

inSee supra notes 69-75 and accompanying text for the major factors relevant to
the due process defense.

180This is the view adhered to by Justices Rehnquist, White, and Chief Justice

Burger. See Hampton v. United States, 425 U.S. at 490-91.
181For example, "if due process were equivalent to fourth or fifth amendment rights,

due process would be superflous since such rights are already constitutionally pro-
tected." O'Connor, Entrapment Versus Due Process: A Solution to the Problem of the
Criminal Conviction Obtained by Law Enforcement Misconduct, 7 Fordham Urb. L.J.
35, 49 (1978).



1983] ABSCAM 609

actually assist the defendant to an outrageous degree. It is only at

that point that one could argue that the government has directly in-

vaded an individual's right to privacy and violated his liberty. Until

this point is reached, the government has merely played the latent

role of tempter. Where exactly this line should be drawn must be
determined on a case-by-case basis. It should include government par-

ticipation which does more than merely tempt a defendant; the parti-

cipation would at least entail active assistance by the government

agents in consummating the crime. In most cases, this would require

that the defendant be given some sort of positive help in the form
of materials, knowledge, or physical assistance in committing the crime.

This is to be contrasted with government involvement that does no

more than entice, lure, tempt, or induce the defendant into commit-

ting the crime by himself.
The protection from mere temptations, as we have seen, has been

relegated exclusively to the entrapment defense which turns on the

defendant's predisposition. The due process defense is not intended
to protect the predisposed defendant who was subjected to temptation;
rather, the defense is intended to protect the predisposed defendant

who was subjected to outrageous government misconduct. Because
the ABSCAM defendants were only exposed to temptations, they only
could have availed themselves of the entrapment defense. Their

predisposition, however, prohibited this.

It is true that one's right to due process encompasses more than
just the rights enumerated in the Constitution.182 The right should
include the general "ability of individuals to engage in freedom of

action within a society and free choice as regards their personal

lives."
183 This right may be violated when the government wrongfully

and physically restrains a person's freedom of movement or invades
his body.184 Due process also may be violated by government agents
directly assisting the defendant in the commission of a crime.185 In

the latter situation, it can be argued that the defendant's "freedom

of action" has been restricted because the agent's interference is more
direct and determinative. The defendant's freedom to make choices
is much less impaired when the agents merely offer inducements.

V. Conclusion

Even after taking a broader view of the scope of the due process
defense, by only employing notions of fundamental fairness, it is

182
J. Nowak, R. Rotunda & J. Young, Handbook on Constitutional Law 487

(1978).

183
/cL at 490.

m
See, e.g., Rochin v. California, 342 U.S. 165 (1952).
m
See supra notes 44-49, 54-67 and accompanying text.



610 INDIANA LAW REVIEW [Vol. 16:581

reasonable to assume that the Supreme Court would not sustain such
a defense if it is presented by one of the ABSCAM defendants. Never-
theless, the resolution of this issue is not certain and the decisions

of Jannotti and especially Kelly make it likely that the Supreme Court
ultimately will have to pass judgment on ABSCAM. Beyond this par-
ticular factual setting, ABSCAM presents an ideal opportunity for the
Court to clarify the defense it left dangling in Russell and Hampton.
Of course, if the Court should take this writer's view that ABSCAM
does not present a valid due process issue, any clarification would

be dicta; nevertheless, the Court has the opportunity to clear up much
confusion in this area.

If the Court decides that some or all of the ABSCAM defendants
have a valid due process claim, it will be breaking new ground. Despite
any similarities between the ABSCAM cases and the precedents which
have recognized the defense, the latter can be easily distinguished

on two grounds: they involved contraband and government agents who
provided outrageous assistance. 186 To the extent that it is possible to
help someone receive a bribe, a due process defense based on these

precedents might be cognizable. Because the government agents in
ABSCAM did not provide outrageous assistance, but only assumed
the roles of tempters, a successful due process defense would depend

upon the Court's finding that an individual has a due process right

not to be tempted in a way that is fundamentally unfair.

James P. Moloy

"Id.