digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 1984 Beyond 1984: Undercover in America–Serpico to Abscam Robert Blecker New York Law School, [email protected] Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Part of the Criminal Law Commons Recommended Citation 28 N.Y.L. Sch. L. Rev. 823 (1983-1984) This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. BEYOND 1984: UNDERCOVER IN AMERICA- SERPICO TO ABSCAM ROBERT I. BLECKER PART ONE PROLOGUE ................................................. 824 SERPICO To ARCHER ........................................ 840 The Archer Trial-United States v. Sherman: Subjective versus Objective Entrapment-Judge Friendly and Federal Jurisdiction-United States v. Russell-Archer reversed-A Second Try-The New York State Archer Case-Hampton v. United States: The Government on Both Sides-Archer's Conviction Affirmed: The Technique Vindicated. ABsc m ................................................... 872 The Undercover Background-Guccione and Williams-The Coaching Incident-Meyers' Payoff-Kelly-Schwartz and Jannotti. TRIALS AND HEARINGS ...................................... 899 United States v. Jannotti: Due Process-Congressional Hearings-The Archer Stain-United States v. Meyers-United States v. Williams-A Linguistic Probe of Abscam-Jannotti on Appeal: Entrapment and Due Process-United States v. Kelly-Meyers affirmed-Kelly reversed-The Judicial Curtain. PART Two PREDICATE SUSPICION ....................................... 966 Threshold Requirements-Probable Cause-Illinois v. Gates. DOUBLE STANDARDS ......................................... 971 Opposition to-Necessity of-Public/Private Distinction. ENTRAPM ENT ............................................... 983 Subjective Entrapment Defended-Objective Entrapment. GARDEN PARTIES TAPED ..................................... 1002 JURISDICTION: A RIGHT To DETERmiNE ........................ 1003 Separation of Powers-Federalism-The Guarantee of a Republican Form of Government. GOVERNMENT'S JURISDICTION OvER PRIvATE Lwvs: 1984 AND BEYOND ................................................. 1018 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 28 BEYOND 1984: UNDERCOVER IN AMERICA- SERPICO TO ABSCAM ROBERT I. BLECKER* But what is government itself but the greatest of all reflec- tions on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither ex- ternal nor internal controls on government would be neces- sary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. James Madison, The 51st Federalist PROLOGUE The Lord made it tempting: commanding Adam not to eat from the tree in the very center of the garden, and then creating Eve. The Serpent, "more subtle than any other wild Creature that the Lord God had made," approached Eve, an unsuspecting innocent, and questioned her willingness to disobey their Sovereign's command. Deterred by the prospect of punishment, Eve showed no predisposition to crime. Thereupon the Sovereign's snake promised enormous gains from crimi- nal violation: "Gdd knows that when you eat of it your eyes will be opened, and you will be like God, knowing good and evil." * Associate Professor, New York Law School; B.A. 1969, Tufts University; J.D. 1974, Harvard Law School; Special Assistant Attorney General, Office of the Special Prosecutor, New York State 1974-1975. Acknowledgements Several participants in the events described, most notably Robert Leuci, shared their perspectives. Professor William L. Bruce, Justice Ernst H. Rosenberger, and Pro- fessor Marcia Zaroff offered helpful insight and suggestions. This account also benefited from the efforts of the staff of the New York Law School Law Review, especially Mitch- ell G. Williams, who not only criticized earlier drafts but helped structure this article from a larger whole, and Jonathan M. Soroko, a very helpful antagonist who also spent countless hours verifying accuracy. All of them disagreed with some of my conclusions. I believe that "s/he"--a neuter pronoun-is better than "he" in all appropriate con- texts, but have been persuaded that its use would distract the reader. Under protest, therefore, public officials and citizens are referred to as "he." Someday soon, perhaps, an expanded consciousness of sexual equality will offer us a smooth, neutral grammar, which will render this essay a stylistic anachronism. Also, I hope that someday a chang- ing ethic in government will render this essay and the undercover techniques it discusses similarly out of date. 1. THE FEDERALIST No. 51, at 322 (J. Madison) (C. Rossiter ed. 1961). 19841 BEYOND 1984: UNDERCOVER IN AMERICA Eve yielded to the inducement, "took of the fruit and ate; and she also gave some to her husband and he ate." But of course the garden was wired. The all-monitoring Sovereign soon confronted the transgressors: "Have you eaten of the tree of which I commanded you not to eat?" Unheroic, Adam instantly coop- erated-implicating his supplier, sacrificing his wife, and raising a de- fense of sorts: "The woman who Thou gavest to be with me, she gave me fruit of the tree, and I ate." God asked Eve, "What is this that you have done?" and Eve, too, took the route of confession and avoidance. Her response became a classic legal defense of entrapment: "The Serpent beguiled me, and I did eat." The entrapment defense failed here. Eve was condemned to pain in childbirth, Adam to toil the fields, and both to die. By also punish- ing the Serpent, God perhaps disavowed responsibility for the induce- ment. Or perhaps the entrapment defense failed because Adam and Eve had freely chosen to disobey. Whatever the reason, there remains an ambiguous moral residue in our mortality. The Garden story also leaves us queasy because the crime that oc- casioned our expulsion and certain death was non-violent, consensual, unlike robbery or murder, where the victim (or family or friends) will ordinarily protest their loss, so that the Sovereign may apprehend and punish those responsible. But whom did Adam and Eve hurt? Did it warrant such punishment? Their crime was victinless: they merely possessed forbidden fruit. The purchase, sale, and consumption of con- traband, forbidden consensual pleasures, leave no complainants. No one involved wants an investigation; detection is difficult. It may be necessary to monitor the garden and send in the snake. We were expelled from our garden into a jungle, where the greedy grasp for more ways to satisfy their desires, which multiply without limit. On occasion, we are moved to act for a stranger's benefit, and sometimes in nobler moments we care to do what is abstractly right, but by and large, as individuals, we the people are selfishly driven to gratify our desires. Perhaps the greatest of all desires is the desire for power. In 1787 and 1788, when the people of the United States believed themselves the first in history to deliberate freely on their constitutional plan, fear of a lust for total power permeated their debates: The pleasure of controul is palatable to all mankind without a single exception from the cradle to the throne. Let our peculiar situations be what- they may, our proportion of happiness great, our domestic circles pleasing, our love of money un- bounded .... still we are ready to risque the sacrifice of them NEW YORK LAW SCHOOL LAW REVIEW [VCol. 28 all for a share in the exercise of power over our fellow creatures . 2 "History exhibits this melancholy truth" said Centinel during the founding of our republic, "that lust of dominion that is inherent in every mind, in a greater or less degree."3 Widely understood by Ameri- cans of all persuasions who designed, discussed, and ratified the Con- stitution, was that "when possessed of power [any governor] will be constantly struggling for more, disturbing the government, and en- '4 croaching on the rights of others." The American founders were not the first to realize that human nature impelled the powerful to increase their power. Aristotle, a fer- vent advocate of limited constitutional government, portrayed the hor- ror of all-pervasive totalitarianism, describing tyranny's "administra- tive principle," for eliminating independence and self confidence, two things which a tyrant must guard against ... Generally ensure that people do not get to know each other well, for that establishes mutual confi- dence. Another piece of traditional advice to a tyrant tells him to keep the city dweller always within his view. Their ac- tivities then will not be kept secret and by constantly perform- ing servile obligation they will become used to having no minds of their own. Similarly a tyrant should endeavor to keep himself aware of everything that is said or done among his sub- jects; he should have spies [at] any place where there [is] a meeting or gathering of people.5 2. Ti*E CompLE-m ANT-FEDERALIST 30 (John De Witt) (H. Storing ed. 1981) [herein- after cited as THE ANTI-FEDERALIST]. The Complete Anti-Federalistis an exhaustive col- lection and analysis of letters and essays written in 1787-88 by those who opposed the ratification of the Constitution. According to Herbert Storing, the editor, although the Federalists and Anti-Federalists were divided among themselves, they were, at a deeper level, united with one another. Their disagreements were not based on different premises about the nature of man or the ends of political life. They were not the deep cleavages of contending regimes. They were much less sharp and clear-cut differences ... of men agreed that the purpose of government is the regulation and thereby the protection of individual rights and that the best instrument for this purpose is some form of limited, republican govern- ment .... The nation was born in consensus but it lives in controversy, and the main lines of that controversy are well-worn paths leading back to the founding debate.