The drug, firearms, and alcohol offenses almost invariably involve purchase of contraband.

2/ The relevant portion of the California instruction reads

as follows:

"Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand. Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the offense, the suspect's response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission."

CALJIC 4.61 (1981 Revision).

The comparable portion of the Iowa objective-test instruction provides as follows:

"In applying this instruction, you should consider the course of conduct between the (law enforcement officer, sheriff, agent, policeman, etc.) and the defendant. The transactions leading up to the offense, the interaction between the agent and the defendant and the defendant's response to conduct of the agent are all to be considered by you in judging what the effect of the agent's conduct would be on a normally law-abiding person." 2 Iowa Uniform Jury Instruction Annotated no. 213 (1982). 3/ As an intermediate measure, the defense could be given the option of severing the entrapment issue and trying it before the judge, while preserving other issues for the jury. Cf. State v. Grilli, 230 N.W.2d 445, 455 (Minn. 1975). This option, however, would not protect the prosecution from the dangers of jury confusion.

PART 2.-NEWSPAPER ARTICLES

[From the National Law Journal, Mar. 26, 1984]

WHEN THE BUREAU LISTENS, ARE ANY OF US PROTECTED?

(By Theodore I. Koskoff)

The year 1984 is here and the Orwelian debate has heated up. George Orwell foresaw a bleak world, with its bleakest aspect a complete lack of all privacy. Even private thoughts were banned; total surveillance by the state assured order and security.

When Mr. Orwell died in 1950 at the beginning of the McCarthy era in the United States, some thought his vision was close to reality. But in less than a decade Sen. Joseph R. McCarthy and his adherents were in bad odor and individual rights advocates heaved a sigh of relief.

Many people, including those who agreed with Senator McCarthy's goals of identifying Communists in sensitive and not-so-sensitive government positions, objected to his methods-methods that ultimately defeated him and resulted in the downfall of McCarthyism. The end did not justify the means.

Both the Abscam and Operation Greylord undercover operations bring into question the Justice Department's methods, which subvert the system and traditional democratic values through bugging, wiretapping and, in the case of Greylord, staging phony arrests and mythical prosecutions. For the Justice Department to use the techniques of collectivist societies for the purpose of catching a few allegedly crooked public servants in otherwise overwhelmingly honest institutions pays too high a price for sacrificing the traditional value of the very institutions they are investigating. This leaves me with a feeling of disgust-a feeling not only directed at the malefactors who sooner or later would probably be caught anyhow, but more directed toward the Justice Department, which behaved in these cases at least immorally, if not illegally. Whenever one thinks about whether the end justifies the means, one has to, at the very least, balance the costs of the means against the results of the end in both qualitative and quantitative terms. On this scale, both the Abscam and Greylord results suffer miserably.

One cannot morally or philosophically separate the end from the means, however desirable the end may be. As philosopher John Dewey pointed out, they are a continuum and inseparable.

What is the effect on the institutions themselves of these two operations they are trying to protect? Some argue that the effect is salutory, that their results purify the institutions involved and enhance them in the public mind. I disagree. I believe the results fortify feelings of mistrust that much of the general public has in our democratic institutions. I believe these scams by the Justice Department do not have a great "purifying" influence on those institutions but do immeasurable harm to them. People tend to believe the worst and to condemn the institutions as a whole because of a few "bad apples."

There is not institution beyond the law. Recent events have shown us that this applies even to a president, who really fell by tripping himself. But the Congress and the judicial system should not be tampered with in such a slimy, underhanded fashion as was done in Abscam and Greylord. Our institutions are the bulwark of a free society, and given a chance to do so, they tend to cleanse themselves through the political and judicial process. Malfeasance in office sooner or later is exposed by other means or exposes itself.

Privacy and the freedom to go about one's business without fear of being watched or overheard is not merely the desire of the criminal, the guilty, the liberal. It has been a desire and need of humans and even animals from prehistoric times. Without at least some privacy, men and women and even rats may go mad.

Perhaps as basic as the human need for privacy is the desire of some to eavesdrop on their fellows. Since Senator McCarthy's time, the eavesdropping industry has become gigantic. Its technology is awesome. Technically, there is no place on this planet or even in outer space where you can be certain you will not be observed or put on tape. Hidden television cameras with remote and flexible lenses can follow where no other can go. Miniaturization allows a conversation to be overheard by the transmitter in a martini's olive. Walls can be seen through and distances provide no security.

While in collectivist societies there is little protection, in the United States we labor under the delusion that we have the force of law to protect an individual's privacy. But in the recent Greylord and Abscam investigation, the force of law made its own use of covert observation methods and technology. Not only were suspects

and planted FBI agent-actors seen, heard and taped, but while bugging judges' chambers, the FBI became privy to hundreds of innocent conversations which it had no right to hear or record. From vast experience, we know that these records will be retained and form a basis for dossiers on individual citizens, something that should worry anyone concerned about privacy and individual rights.

Innocent citizens should be protected from the taping and evaluation of their conversations by the government, even if these citizens are conversing with FBI “suspect." How does the FBI choose these "suspects?" And who has the power to target an individual for an FBI covert investigation? In the days when the FBI was run at the whim of J. Edgar Hoover, the bureau-as we know now-considered its responsibility to be only the American people as a whole, making it effectively free of responsibility to any individual. But who today is responsible for the FBI's investigations and its continuing heavy reliance on illegal and immoral methods?

These methods garner a great deal of press attention and the FBI claims they are effective. I doubt if they generally are effective and whether we hear about their failures. But even if they are effective, are they worth the damage done to our institutions? In the Greylord investigation, the effectiveness seems very thin. The investigation continued for three years and cost untold millions of dollars. It produced indictments of three out of 322 judges, one of whom had already retired. It seems that the mountain has labored and brought forth a mouse. Of course, what we don't know about Greylord is how many judges were bugged who were innocent of any wrongdoing and the vast number of private conversations of law-abiding citizens monitored by the FBI.

But even if this investigation were indisputably effective and resulted in many arrests, its amoral character would still be objectionable. If arrests and convictions were the purpose of our system of justice, why forsake the thumbscrew and the rack? This method of covert investigation by our government agencies and police perverts the system it means to protect.

The few crooked judges and politicians in office should be rooted out of the system and punished for their misdeeds. But we are indeed a bankrupt society if the only means that may be found to root them out is one that increases corruption, violates the rights of the innocent, as well as the guilty, and perverts the entire system of justice. I believe that decent police methods, the political process and criminals who slip up will sooner or later accomplish the same goal.

Can the FBI find no other way to investigate other than trapping suspects by using a Judas judge as an undercover agent, secret videotaping and recording and dressing up and play-acting as in Greylord? In addition to their other requirements, will agents have to attend acting classes?

These investigations may attract more attention and are undoubtedly more fun for the agents than straightforward police work, but in the process the amusement erodes public confidence in our institutions. The ends do not justify the means.

Benjamin Disraeli said: "Individualists may form communities, but it is institutions alone that can create a nation." If is far easier to tear down these institutions than to build them. The citizens in Mr. Orwell's 1984 had no faith in institutions, only in Big Brother. And in absolute, deadly order and security. How could anyone think otherwise when every move was observed?

[From the National Law Journal, May 21, 1984]

"PRIVATE ABSCAM" TRIAL SET IN N.Y.

NEW YORK. The chief operative in the Abscam probe is returning to the courtroom here as a witness in what is believed the first criminal trial to stem from a privately financed, court-sanctioned undercover "sting" investigation.

Melvin Weinberg, the convicted swindler who posed in Abscam as the representative of an influence-peddling Arab sheik, was hired by a private investigation firm to "sting" businessmen who allegedly sold counterfeits of the famed Louis Vuitton haute couture handbags.

As a result of the operation, six defendants were scheduled to go on trial May 14 before U.S. District Judge Charles L. Brieant Jr. in Manhattan on charges of criminal contempt of court.

The private investigation, paid for by Louis Vuitton et Fils, S.A., used many Abscam devices and has elicited a number of the same protests from defense lawyers that Abscam drew, as well as criticism of the private origins of the investigation.

"I think it poses a very serious future problem," said James A. Cohen, an attorney with Washington Square Legal Services here who represents defendant Barry Klayminc. "We just can't have cowboys, which is essentially what these people are, running around and doing these kinds of things."

Mr. Cohen says one of the dangers posed by private investigations occurred in this one: He claims Mr. Weinberg did and said things no government operative would, including advising one defendant during a videotaped meeting not to discuss the meeting with his lawyer.

The secret videotaping of meetings in hotel rooms was not the only similarity to Abscam involved in the private investigation.

As in Abscam, Mr. Weinberg promised financing for a venture as a lure and an unwitting middleman was used to find potential targets. In addition, a former FBI agent who worked on Abscam was one of the private investigators who went undercover with Mr. Weinberg.

The private probe started in April 1983 after Kanner Security Group, a Miami private investigation firm owned by former FBI agents, called holders of prestige trademarks and offered to find suspected infringers through a "sting."

Vuitton, which had filed 80 trademark suits in New York alone, agreed and assigned one of its lawyers, J. Jospeh Bainton of the New York firm of Reboul, MacMurray, Hewitt, Maynard & Kristol, to oversee the operation.

POSED AS "MEL WEST"

U.S. District Judge Morris E. Lasker's order permitting the investigation authorized the videotaping of a meeting between Mr. Weinberg-who posed as entrepreneur 'Mel West-and a suspected infringer at the Plaza Hotel in New York City. Judge Lasker also appointed Mr. Bainton and another Reboul MacMurray lawyer, Robert P. Devlin, as special federal prosecutors and authorized them to gather evidence for an Abscam-like probe. According to Mr. Bainton, this was the first time a judge appointed a private attorney to conduct an undercover investigation.

The probe zeroed in on businessman Sol Klayminc, who had been convicted previously of criminal contempt for violating an injunction that barred him from selling counterfeit Vuitton handbags. He had been sentenced to probation after agreeing to pay a $100,000 civil settlement.

According to an affidavit Mr. Bainton filed, Mr. Klayminc now wanted to establish a factory in Haiti to manufacture imitation Vuitton handbags in an operation that would have netted between $31 million and $38 million a year in profit.

Mr. Bainton said Mr. Weinberg contacted Mr. Klayminc through an unwitting intermediary, identified in court papers as Nathan Helfand. Much as he did during the Abscam investigation, when he offered then-New Jersey Sen. Harrison A. Williams Jr. financing for a titanium mine, Mr. Weinberg made it known that he might be able to arrange financing for the Haitian factory, according to court papers.

A HOST OF TAPES

More than 100 audiotapes and seven hours of videotapes were made during the investigation, including many at the Beverly Wilshire hotel in Los Angeles, where the district attorney's office monitored the operation.

Based on the recordings, Mr. Bainton was granted a show-cause order for criminal contempt against Mr. Klayminc, his son Barry, Mr. Helfand and four alleged business associates. One of the defendants pleaded guilty last week.

As in Abscam, defense lawyers tried to dismiss the charges on grounds their clients' due process rights were violated.

Judge Brieant refused their requests in an April 9 opinion. U.S. v. Karen Bags, 83 Cr. Misc. 1. He also upheld the appoinment of Mr. Bainton and Mr. Devlin as federal prosecutors.

"Recognizing that it is generally deemed unethical for an attorney to participate in the surreptitious recordings of conversations, Bainton noted that he would not be similarly constrained if his application to be appointed special prosecutor were granted," the judge wrote.

In addition, Judge Brieant said that once appointed, Mr. Bainton was "protected by the same official immunity that federal officials enjoy in carrying out their duties, regardless of the source of his compensation."

The defendants also tried unsuccessfully to disqualify Mr. Bainton from the case by arguing that he could not be an objective prosecutor because his client, Vuitton, bankrolled the investigation.

They argued that a dissatisfied Vuitton might take future legal business elsewhere if Mr. Bainton did not meet its expectations. Judge Brieant rejected that argument.

The defendants' attorneys, including Mr. Cohen and Sol Klayminc's lawyer, William Weininger of New York's Samuel & Weininger, also argued that the Federal Rules of Criminal Procedure did not permit a private lawyer to start an investigation the way Mr. Bainton was permitted to. But Judge Brieant said this was not a "hunting expedition" used for "ensnaring" the defendants before any illegal act was committed, as their lawyers charged.

"Vuitton's attorneys were given the authority to define more fully the boundaries of an already well-developed contempt,” the judge wrote.

[From the National Law Journal, June 4, 1984]

THE USE OF SCAMS: UNDERCOVER TECHNIQUES ARE NECESSARY TO FERRET OUT CORRUPT PUBLIC OFFICIALS

(By John S. Martin Jr.)

The FBI's Abscam and Greylord investigations have provoked an outcry from a number of public officials, members of the bar and other commentators who suggest that the FBI's methods in these investigations were unprecedented, possibly illegal, immoral and unnecessary. A March 26 article on this page is typical of many of those attacks. Careful analysis suggests, however, that the only novel thing about these investigations was the fact that they were directed at corrupt legislators, judges and lawyers.

The methods used in Abscam and Greylord are far from unprecedented. They are commonly used by the FBI and other law enforcement agencies in the day-to-day investigation of such common crimes as dealing in stolen property or narcotics. In cases involving organized criminal enterprises, these methods have proven to be the most effective in reaching the upper echelons of the criminal hierarchy. Far from being illegal, these methods repeatedly have been approved in judicial opinions, and wiretapping and bugging specifically have been authorized by Congress.

Analysis of the method used in the Abscam and Greylord investigations must begin with the recognition that law enforcement probes fall into two broad areas. One is the reported crime, where a victim, having undergone a rape, mugging, assault or robbery, calls the police and provides them with some description of the perpetrator, the identity of other witnesses and an indication of the physical evidence that can be collected and examined to identify and convict the culprit.

The second broad area of criminal investigation involves situations in which no one having specific knowledge of the crime has any interest in reporting it to law enforcement agents. Large-scale narcotics transactions and bribes to public officials are clearly carried out by parties who not only have no interest in reporting the facts of the crime to law enforcement officials, but who also take every precaution to see that there is no evidentiary trail-bribes are not paid by check and international narcotics transactions do not involve letters of credit.

It is in this second category of criminal investigation that effective law enforcement requires the use of undercover agents, scams, stings and electronic surveillance. When used against the more traditional criminal element, these methods generally have been publicly applauded rather than criticized. Anyone who keeps up with the news has seen numerous reports of the police using undercover sting operations to catch those who deal in stolen property. In recent years some of the most effective investigations used to convict those who deal in stolen Social Security and welfare checks have involved Secret Service agents who set up check-cashing businesses in which they pose as dishonest individuals willing to buy stolen checks. There has been no outcry against these investigations.

Why, then, is it immoral for undercover agents to pose as dishonest citizens in order to obtain evidence against corrupt public officials? If the response is that there is a chance that undercover agents may persuade an otherwise innocent individual to commit a crime, then I would ask, "Is there any less likelihood that this will occur if the undercover agent is representing himself as someone who will pay good money for a stolen television set than if he is representing that he will pay a bribe to a public official?” Indeed, one would hope that there is a greater danger of enticing a poor person to commit a crime by the lure of easy money for stolen goods than there is of enticing an honest public official by presenting the opportunity for a bribe.