In any event, in each case the law provides the defense of entrapment if the evidence shows that the law enforcement officials overstepped proper bounds in inducing an otherwise-innocent individual to commit a crime. In the Abscam cases, the entrapment defense was repeatedly raised by the corrupt officials involved and those claims were unanimously rejected by the courts, which upheld every conviction obtained as a result of this investigation. Thus, it cannot reasonably be argued that the Abscam methods were illegal. Furthermore, since the issue of entrapment was repeatedly rejected by the jury, it cannot fairly be suggested that the FBI's conduct was immoral by contemporary community standards.

The use of wiretapping and other forms of electronic surveillance in these cases was also no different than the use of those techniques in other criminal investigations.

In 1968 Congress enacted legislation authorizing the interception of wire and oral conversations pursuant to court authorization (Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. 2510-2520). The statute followed shortly upon the opinion in Katz v. U.S., 389 U.S. 347 (1967), in which the Supreme Court clearly indicated that judicially authorized electronic surveillance would not violate the Fourth Amendment prohibition against unreasonable searches and seizures, and the constitutionality of the statute itself has been upheld in numerous cases.

A court order authorizing wiretapping and eavesdropping may only be obtained by showing that (1) there is probable cause to believe that an individual is committing one of a limited number of specifically enumerated offenses; (2) there is probable cause to believe that communications concerning that offense will be overheard; (3) that normal investigative procedures appear unlikely to be successful in obtaining sufficient evidence of the crime; and (4) that the facilities from which or the place where the communications will be intercepted are being used in connection with the commission of the offense under investigation. Additional procedural protections are found in the statutory requirement that periodic reports on the results of the electronic surveillance be made to the judge who issued the order and that the surveillance be conducted in such a way to minimize the interception of innocent conversations. By statute, the application for an electronic surveillance must be authorized by the attorney general or an assistant attorney general specifically designated by the attorney general. In practice, the FBI has added the additional requirement that the application be authorized by the director of the FBI.

While there is some public perception that government wiretapping and eavesdropping are widespread and easily accomplished by space-age electronic devices such as microphones hidden in the olive of a martini, this perception is far from reality. In the first place, electronic surveillance requires a tremendous amount of law enforcement manpower. In order to comply with the statutory minimization and reporting requirements, teams of agents must be assigned to monitor the electronic sureillance around the clock. Furthermore, hours must be spent complying with the procedural requirements and preparing transcripts of the conversations and reports to the judge who signed the original order. Thus, the cost factor alone limits the use of this technology to cases of major importance. Indeed, as a defense lawyer. I have often told clients who were concerned that the government was attempting to overhear their conversations that, while I did not want to bruise their egos, they simply were not important enough for the government to make the commitment of time and expense required for a wiretap.

Nor are the electronic devices anywhere near as effective as the public perception would suggest. Any experienced criminal lawyer knows that one of the major issues litigated with respect to any electronic surveillance is the accuracy of the transcript of the recorded conversation because the quality of the reception from the hidden microphones is generally extremely poor.

Yet despite the expense and limitations of available equipment, electronic surveillance has proved to be perhaps the most effective investigative method of obtaining evidence against the upper echelons of criminal society. While it is easy for an undercover agent to go out on the streets of New York and make a case against a street pusher of narcotics or a loan shark or a gambler, electronic surveillance vides the most, and often the only, effective method of obtaining evidence against major narcotics wholesalers and the leaders of organized crime. The vast majority of major narcotics and organized crime prosecutions in the city of New York over the last 10 years has involved electronic surveillance of oral communications.

pro

Those who suggest that scams and electronic surveillance are not necessary because there are other equally effective means to prosecute serious crimes simply do not know what they are talking about. As noted above, by statute, electronic surveillance only can be authorized if the judge is satisfied that there are no other effective means to gain the necessary evidence. Anyone who has been engaged in law

enforcement both before and after the legislation authorizing electronic surveillance will attest to the fact that cases are being made today through the use of courtauthorized wiretaps and bugs, which simply could not have been made before the legislation.

In addition, those who say there are better methods of law enforcement to utilize rarely scrutinize the alternatives. The use of scams, undercover agents and electronic surveillance is much less likely to result in an unwarranted conviction than is reliance on accomplice or even eyewitness testimony. There is a much firmer basis for public confidence in the integrity of the Greylord prosecution-where some of the proof will come from the judges' own words in recorded conversations-than in the prosecution of U.S. District Chief Judge Harry C. Claiborne of Las Vegas, Nev., where the prosecution rests primarily on the testimony of a convicted former brothel owner.

Similarly, of the recent major narcotics prosecutions in the Southern District of New York, only one involved a situation where there was no electronic surveillance. In that case, the main evidence was provided by Leroy "Nicky" Barnes, a notorious narcotics dealer. At the time those charges were announced, there was a much stronger public reaction to the government's use of testimony from an individual as corrupt as Mr. Barnes than there has been to the use of electronic surveillance in any similar narcotics case.

In this fallible world, there is no way that we can ensure that law enforcement officials will not make honest mistakes or that they will not, on occasion, overreach or overreact. While it is reasonable to be concerned about the danger to the right of privacy and other freedoms posed by the use of scams or electronic surveillance, these techniques pose no greater threat than other well-established techniques. I would feel less injured in my right to privacy were I to learn some time after the event that certain of my telephone conversations were overheard on a court-authorized wiretap than I would if armed agents, acting pursuant to a search and arrest warrant, entered my home with guns drawn physically to search the premises and arrest me. In each case the agents might be acting either illegally or on the basis of a good-faith mistake, but the traumatic effect would clearly be greater in the case where the sanctity of my home had been physically invaded and I had been dragged off to jail in handcuffs.

Nothing that has come out with respect to Abscam or Greylord suggests that the use of scams or wiretaps is more subject to abuse than the use of warrants for physical searches and seizure or the use of accomplice witnesses.

Event if one accepts the conclusion that the use of scams and electronic surveillance are appropriate law enforcement techniques, the question remains whether there is something about the status or the function of legislators, judges and lawyers that makes it inappropriate to utilize these techniques. With respect to electronic surveillance, obviously, there is legitimate concern for preventing unwarranted intrusion into conversations of judges and legislators reflecting their deliberations on cases or bills under consideration. There is an even stronger concern that electronic surveillance directed at a lawyer might result in the overhearing of privileged communications.

Yet similar concerns exist in other cases where there is a chance of overhearing privileged communications between a doctor and patient or husband and wife, and the same concerns exist with respect to physical searches and seizures of documents. Such concerns suggest the need for careful judicial scrutiny of applications for court orders for such surveillances to ensure compliance with the statutory requirement of a showing that the phone or premises in question is being used to conduct criminal conversations and that other methods of detection are not available. These concerns are not, however, sufficient to justify providing judges, legislators and lawyers with virtual immunity for the commission of crimes that can effectively be detected only through the use of electronic surveillance. Were we to adopt a rule that a lawyer could not be subject to electronic surveillance because of the fear that privileged communictions might be overhead, our law schools would be even more crowded than they are today.

The statutory requirement that agents conducting electronic surveillance must conduct it in such a way to minimize the overhearing of innocent conversations, combined with careful judicial scrutiny of the electronic surveillance conducted in particular cases, should provide adequate protection against unwarranted law enforcement intrusion into the attorney/client privilege or other areas where confidentiality should be recognized.

Similarly, while the use by the executive branch of scams and stings directed at members of the legislative or judicial branches raises legitimate concerns that such investigations may arise from an improper political motive, the same concern exists

with respect to any criminal probe of a public official. Is an innocent public official more injured if a misguided undercover agent offers him a bribe than he would be if a misguided prosecutor obtained a grand jury subpoena for his bank records? In each case the courts have sufficient supervisory power over their own processes to prevent such abuses.

Judge Learned Hand once noted that "Justice, I think, is a tolerable accommodation of the conflicting interests of society." In an ideal world, the techniques of Abscam and Greylord would be unnecessary and unwarranted. In the society in which we live, however, these techniques represent a tolerable accommodation of individual rights and society's need to protect itself from corrupt public officials and others engaged in serious criminal activity.

[From the New York Law Journal, Nov. 13, 1984]

CRIMINAL INVESTIGATIONS-"STING" PROBES AND HONESTY TESTS

(By Alan R. Kaufman)

Should the Federal Government subject citizens to honesty tests? That question was brought into focus by United States v. Gamble,1 a recently reported case of the U.S. Court of Appeals for the Tenth Circuit. The penalty for failing the test is criminal prosecution and conviction.

The Gamble case was a government "sting" operation, an offspring of the technique in the Abscam cases. 2 Before discussing the Gamble case and its ramifications, some background of this investigative technique is set forth.

ABSCAM AND ITS OFFSPRING

Since the first revelations of the Abscam investigation, controversy ensured concerning the propriety of governmental involvement in the creation or instigation of criminal opportunity. Among the descendants of Abscam have been the John DeLorean case and Operation Greylord (indictments of judges, lawyers and clerks in Cook County, Illinois). Each of these prosecutions resurrected the arguments. These, and other investigations, have received their fair share of criticism on the ground that the government, in essence, created and caused the crime to be committed. If not for the government's conduct, the argument continues, there would not have been any crime.

Defenders of the investigative technique responded that the only way to gather evidence against well-insulated figures was to engage in the kind of undercover activities which eliminated the target's insulation. Thus, the govenment would create a constrolled set of circumstances in which most, if not all of the players, were government agents or operatives.

The utility of this technique, from a policy perspective, is premised on the notion that those whom the government had some reason to believe had previously engaged in or were engaging in criminal activity could most effectively be apprehended through this type of investigative technique.3

UNCONSCIONABLE PROCEDURE

As a former federal prosecutor, I have subscribed to the rationale of the Abscamtype investigative technique, and continue to do so when it is properly applied. However, I have always believed that targets of such investigations should be individuals who are reasonably suspected of having engaged in past similar criminal conduct. To engage in a sting investigation against an individual without a reasonable belief of prior criminal conduct is unconscionable, something the federal government should never undertake. Such an investigation would be nothing more than an honesty test of the targeted individual.

In defending the Abscam investigative technique, prosecutors have given assurances that it is reserved for only those instances where there is a reasonable belief that the targeted individual had engaged in past criminal conduct. Thus, then-Assistant Attorney General Philip Heymann testified:

"The opportunities for illegal activity created in the course of an undercover operation should be only about as attractive as those which occur in ordinary life because the object of a decoy undercover operation is to apprehend only those criminal actors who are likely to have committed or to commit similar criminal conduct on other occasions."

And, in defending the Greylord investigation, U.S. Attorney Dan Webb of the Northern District of Illinois, stated:

“With Greylord it took us eighteen months before we even tried to implement our plan. We did not just go out there on a fishing expedition. To go there and try to test the system and try to test an honest judge would be wrong and we didn't do it." 5

PROSECUTORS' POSITION

Prosecutors however, have resisted any court-enforceable threshold of a reasonable-belief standard which would be required in order to initiate such an investigation, saying that it would be unworkable and constitute a judicial intrusion on prerogatives of the Executive Branch. Instead, reliance on the good judgment and discretion of experienced prosecutors and career criminal investigators is advocated.

If appearances are not deceiving, the Gamble case makes it difficult to have confidence in such assurances. In Gamble, an Abscam-type investigation was seemingly perpetrated as an honesty test on an unsuspecting doctor, resulting in his conviction for mail fraud. Postal inspectors contrived the following scenario: They obtained driver's licenses, automobile registrations and insurance coverage using fictitious names. They then obtained from cooperative local police phony accident reports for automobile collision which never occured. Summonses were issued to the inspectors, who subsequently appeared in court and pleaded guilty to traffic infractions before an unsuspecting judge and prosecutor. Liability for the "accident" thus having been established, other inspectors, posing as the accident victims, visited Dr. Gamble's office to enlist his aid in establishing medical injuries where none existed. How many doctors the inspectors visited before they came upon Dr. Gamble is not reported, nor is any rationale for why he was targeted."

In Dr. Gamble though, they found a sympathetic ear. He suggested that back and neck injuries were best to claim because they were difficult to disprove. The inspectors then instructed the doctor on how to fill out the insurance forms, and the inspectors dealt with the insurance company.

COURT'S DESCRIPTION

This is the Tenth Circuit's description of the investigation:

"The government here enmeshed in criminal schemes fabricated entirely by government agents a black doctor who had no criminal record and with respect to whom the agents had no apparent hint of a predisposition to criminal activity. The government sent agents apparently posing as poor people to a doctor serving a ghetto community to seek to have the doctor help them out financially in appealing circumstances, circumstances in which the doctor might appear callous if he did not cooperate. The record implies that the inspectors pretended to be economically disadvantaged people typical of defendant's patient population. Sympathy based upon economic disadvantage or race may have been played upon as a factor in inducing defendant to join what he informed the inspectors was 'the white boys' game.' Defendant sought very little profit from his participation, apparently charging only normal office rates for the time he spent with the inspectors.'

7

However, the Court affirmed Dr. Gamble's conviction. Entrapment was not in issue, apparently because the doctor succumbed to the inspectors' temptation without much hesitation, thus raising defense problems concerning predisposition. The issue of due process on which the Tenth Circuit wrote-should the government's having engaged in outrageous conduct serve to vitiate the conviction (citing Hampton v. United States, 425 U.S. 484 (1976) and United States v. Russell, 411 U.S. 423 (1973))—met with no success. The Court held, inter alia, that “the government need not have a reasonable suspicion of wrongdoing in order to conduct an undercover investigation of a particular person." Id. at 860.9

As a matter of constitutional juris-prudence of general application, that is an unremarkable proposition 10 with which I do not take issue. However, the fact that the Constitution does not forbid all such investigations does not mean that they should be initiated. As a matter of the federal government's policy of law enforcement (which can be either a function of executive discretion or legislative mandate), the fact that some federal law enforcement officials have demonstrated the willingness to engage in such an honesty-test type of investigation is a chilling prospect. This article is designed to focus attention upon that prospect.

SHOULD HONESTY BE TESTED?

Should the government conduct honesty tests on its citizens? For discussion purposes, using a state context, the most glaring hypothetical situation may be the following:

"The crime of larceny is committed if someone who finds lost property fails to take reasonable measures to return the property to the owner. 11 Should the New York police, in order to test who is honest and who is not, randomly leave bags of money, imprinted with the presumed owner's name (e.g., ABC Bank and Trust Co.), on the doorsteps of homes to see who will return the money and who will not, and then prosecute the latter?

The federal analogue may be the following. A crime is committed if a deceased's relative keeps and cashes Social Security retirement checks which continue to be sent after the payee's death. 12 This apparently occurs with a distressing degree of frequency. 13 Should the federal government purposely and purposefully send out retirement benefit checks to deceased individuals to see which relatives of these decedents will return the checks and which relatives will not, and then prosecute the latter?

People who are basically honest and who have never committed crimes before are still people who are subject to temptation. Some percentage of people, in the foregoing examples, will likely fail the honesty test, people who would never have stumbled into criminality but for their government's having subjected them to temptation which they were unable to resist.

Another former federal prosecutor, with experience in sting operations, is quoted as saying "All the inducement in the world won't make an honest, law-abiding person commit a crime. It's not true that 'every man has his price.' People who are not predisposed to commit crimes won't commit them, no matter what the price is.'

"" 14

DISPUTED VIEW

That is a view, the universal application of which reasonable people might dispute. If accepted, that view means that the honesty-test type of investigation is to be encouraged, since, by definition, anyone who fails the test, regardless of the size and circumstances of the inducement, is predisposed to criminality and thus deserving of condemnation and punishment.

It has been said that "the government's ability gratuitously to generate crime through random honesty checks clearly involves unjustified intrusion into citizens' privacy and autonomy. Such undercover infiltration and provocation may also produce a police state mentality evoking fear, paranoia, and mutual distrust among friends and colleagues. Historically such tactics have been favored by totalitarian regimes.

"" 15

Fortunately, Justice Department guidelines recognize the dangers inherent in honesty-test investigations, and its provisions call for a "reasonable indication" that a federal crime has occurred or is occurring before an investigation may be commenced. 16 Unfortunately, the guidelines provide no remedy are subject to individual officials' varying philosophies of criminal law enforcement. Indeed, a former Justice Department official is reported as advocating "the use of undercover techniques as a preliminary investigative tool even in the absence of circumstances giving rise to a reasonable suspicion that criminal activity has occurred, is occurring, or is likely to Occur." 17

If the Gamble investigation had been done by the FBI, it would have violated its guidelines due to the apparent absence of any reasonable indication that a crime had been or was being committed. Yet, the violation of internal guidelines provides no relief to the defendant who is convicted as a result of a wrongfully-initiated investigation. United States v. Caceres, 440 U.S. 741 (1979).

DISMISSAL REFUSED

In Gamble, the Tenth Circuit also refused to dismiss the indictment by exercising its supervisory power over the administration of criminal justice, despite its acknowledgement of the impropriety of the inspectors' conduct. This holding was compelled by United States v. Payner, 447 U.S. 727 (1980), in which the Supreme Court ruled that the courts' supervisory power could not be used as a sub-constitutional rule to exclude evidence where the defendant had no standing to challenge the concededly illegal search which produced the incriminating evidence. 18

No constitutional provision, no statute, and no supervisory power exist which serve to either prevent or deter an honesty-test type of investigation. Guidelines do