New York — Outcome of the first "Abscam" trial, expected to go to the jury later this week here, may hinge on FBI tactics described by defense attorneys as "baiting" their clients.
If the New York federal court jury should acquit the four defendants on grounds that unethical or illegal methods were used by the Federal Bureau of Investigation, the status of other, upcoming Abscam trials could be jeopardized.
According to legal observers, the three major questions the panel will have to decide are:
* Did FBI undercover agents go on "a fishing expedition" and continually "bait" congressmen and others to commit bribery and other offenses? One senior US Justice Department official remarked privately that "Hollywood actors could do a better job than some of the undercover agents" depicted in Abscam videotapes.
* How successful will defense attorneys for US Rep. Michael O. Myers (D) of Philadelphia and three other defendants in the first trial be in rebutting extensive videotape evidence -- really the "chief witness" in the case? The videotapes show Mr. Myers, aided by the others, receiving money in return for promises of using his influence in the performance of his official congressional duties.
* To what extent, if any, will the jury believe that Myers, Camden, N.J., Mayor Angelo J. Errichetti, a Philadelphia councilman, and a private attorney, were only "play-acting" when undercover agents were assured, on tape, that the defendants would help what turned out to be a bogus Arab millionaire.
Rep. Richard Kelly (R) of Florida, who also has been indicted on charges of bribery conspiracy and is awaiting trial, also claims he never intended to carry out his taped promises -- and further has stated he was really conducting his own investigation of wrongdoing.
Conflicting evidence was presented at the trial on the issue of whether the defendants were "set up" by undercover agents posing as representatives of a wealthy Arab sheikh. The defense has argued that the defendants were set up, and that by manufacturing crimes the FBI had in effect denied them "due process" of law. It has been shown that FBI agents first approached the defendants with specific demands. But it also has been demonstrated that, in some instances, Myers offered to do something illegal without specific "prompting" by the agents.
Undercover agent Anthony Amoroso Jr. told the court he first told Mayor Errichetti that the mythical sheikh might need immigration help. But in a key videotape sequence, Myers also is shown bringing up the subject of his introducing a private immigration bill, even though in testimony on the witness stand Myers said he never intended to introduce one. He told the court, contradicting his videotaped words, that substantial investment in Philadelphia by any Arabs would not be a sufficient reason to introduce a private immigration bill.
The quality of the undercover probe concerns to US Justice Department officials. Reportedly, Robert del Tufo, US Attorney in New Jersey, is unhappy that an undercover agent put one Abscam probe target through the paces of what to promise other undercover agents. One Justice Department official says that the undercover agents did far too much to egg the defendants on. In one videotape, agent Michael Wall does not give Myers the chance to finish a sentence. In others, however, Myers rambles on and on.
Myers is seen on tape offering to do everything for the bogus sheikh, from influencing the Philadelphia city councilmen to enlisting the help of organized crime for a total fee of $100,000. On 10 videoscreens in a packed courtroom in Federal District Court in Brooklyn, Myers also is shown being handed an envelope which was supposed to have contained $50,000 in $100 bills.
In a videotape shot on Jan. 24, 1980, Myers tells the agents: "I can line up a lot of customers for ya, members of Congress that are willing to deal with us. I could put people around you . . . you'd be shocked. I mean, you may think I'm kiddin' you but, as, if you want to spend . . . money, I'll show you how to spend it."
Most legal experts say it is extremely difficult to get an acquittal with such evidence.
"There's nothing as dramatic as that [a filmed account]," said New York University Prof. Stephen Gillers. Government sources say the case would never have gone to trial if equittal was even a remote possibility. But it is possible Myers will be convicted on a lesser charge than bribery, and this gets at the heart of his defense, which rested Aug. 26.
Many veteran courtroom observers were at first surprised by the central defense argument that, despite the videotaped promises, Myers never even remotely considered actually helping the shiekh. On the stand, Myers said he was merely "blowing smoke" to fool the undercover agents into believing he would help them. Moreover, he testified he was expressly told by Mayor Errichetti, "I would never have to" do anything that would violate his oath of office, namely take a bribe.
But this position at times provoked laughter from Judge George Pratt and the jury. In other testimony he said even now he was waiting to see if the money he received from FBI agents can be listed as a tax-exempt "gift". And there was more laughter. There was none, however, when he told the court on three separate occasions he had told FBI investigators that he did not know other FBI agents who posed as representatives of the sheikh.
If Myers and the others are acquitted on bribery charges, based on this defense, they still could be found guilty on charges of interstate travel in aid of racketeering enterprise. This is punishable by up to five years in prison.
With the number of FBI undercover operations increasing, according to the department's own statements -- these operations are budgeted at $4.8 million for fiscal year 1981 -- it is paramount that they be conducted with care, FBI director William Webster says.