707 F.2d 1460 (D.C. Cir. 1983), 82-1660, United States v. Kelly

Docket Nº:82-1660.
Citation:707 F.2d 1460
Party Name:UNITED STATES of America, Appellant, v. Richard KELLY.
Case Date:May 10, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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707 F.2d 1460 (D.C. Cir. 1983)

UNITED STATES of America, Appellant,

v.

Richard KELLY.

No. 82-1660.

United States Court of Appeals, District of Columbia Circuit

May 10, 1983

Argued Jan. 11, 1983.

Appeal from the United States District Court for the District of Columbia. (D.C.Criminal No. 80-00340).

Michael W. Farrell, Asst. U.S. Atty., with whom Stanley S. Harris, U.S. Atty., Roger

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M. Adelman and Stephen R. Spivack, Asst. U.S. Attys., were on the brief, for appellant. John A. Terry, Asst. U.S. Atty. at the time the brief was filed, also entered an appearance for appellant.

Anthony S. Battaglia, with whom Stephen J. Wein was on the brief, for appellee.

Before ROBINSON, Chief Judge, MacKINNON and GINSBURG, Circuit Judges.

Opinion Per Curiam.

Separate Opinion filed by Circuit Judge MacKINNON.

Separate Opinion filed by Circuit Judge GINSBURG.

PER CURIAM:

Judge MacKinnon files an opinion in Parts I, II, III(A) and IV of which Chief Judge Robinson concurs. Judge Ginsburg files an opinion in which Chief Judge Robinson concurs. Thus Parts I, II, III(A) and IV of Judge MacKinnon's opinion together with Judge Ginsburg's opinion constitute the opinion of the court. The judgment appealed from is reversed, and the case is remanded to the District Court with instructions to reinstate the indictment and the verdict of the jury, and for further proceedings.

MacKINNON, Circuit Judge.

The Federal Bureau of Investigation, in an effort to recover stolen art and securities, set up an undercover operation--"Abscam"--designed to catch red-handed those who dealt in such items. In due time the FBI was led to alter the character of the operation to target some government corruption. Thereafter several highly placed local, state and national government officials were indicted and convicted. This appeal involves one United States Congressman.

On January 8, 1980, Congressman Richard Kelly accepted $25,000 from an agent of the FBI who was posing as a representative of two wealthy Arabs as part of the FBI's elaborate Abscam investigation. In return, Kelly agreed to use his position in Congress to assist the Arabs to become permanent residents of the United States. Unbeknownst to Kelly, the FBI recorded the entire illegal transaction on video tape.

On the basis of this and other evidence, Kelly and two other individuals, Eugene Ciuzio and Stanley Weisz, were charged with conspiracy to commit bribery, in violation of 18 U.S.C. Sec. 371 (1976), bribery, in violation of 18 U.S.C. Sec. 201(c) (1976), and interstate travel to commit bribery, in violation of 18 U.S.C. Sec. 1952 (1976). A jury found each defendant guilty on all counts. However, the district court granted Kelly's motion to dismiss the indictment, entering a judgment of acquittal in his favor, because it concluded that the FBI's actions in furtherance of Abscam were so outrageous that prosecution of Kelly was barred by principles of due process. United States v. Kelly, 539 F.Supp. 363, 370-77 (D.D.C.1982). 1

Abscam was indeed an elaborate hoax, created by the FBI with the assistance of a convicted confidence man to ferret out corrupt public officials. Nevertheless, we conclude that the government's conduct in Abscam did not reach that "demonstrable level of outrageousness" which would bar prosecution of the corrupt officials that were uncovered, particularly given the difficulties inherent in their detection. Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring). Accordingly, we reverse the district court and remand with instructions to reinstate the indictment and the jury's verdict.

I. FACTS

A. The Abscam Investigation

In the spring of 1978, the FBI's Long Island office began an undercover investigation with the initial goal of recovering

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stolen art and securities. 2 The code name for this investigation was "Abscam," a name derived from Abdul Enterprises, the name of a fictitious FBI-created organization which ostensibly represented two Arabs of considerable wealth interested in "investing" in the United States. 3 Convicted confidence man Melvin Weinberg was enlisted by the FBI to assist in the creation and operation of Abscam. 4 Weinberg played the role of financial advisor to Abdul Enterprises, while FBI agents "held" other positions in that organization. 5 Beginning in January 1979, Anthony Amoroso, a special agent for the FBI, assumed the role of president of Abdul Enterprises. 6

Initially, the FBI made it known on the streets that Abdul Enterprises had money to invest and waited to be approached with proposals. 7 Abdul Enterprises turned away individuals offering legitimate transactions, but maintained contact with those suggesting illegal activity. In November 1978 Abdul Enterprises was approached by two businessmen, William Rosenberg and William Eden, concerning the possibility of financing certain equipment to be leased to the City of Camden, New Jersey. It appeared that the transaction would require payment of a bribe to Angelo Errichetti, then Mayor of Camden. 8 Thereafter the focus of Abscam shifted to political corruption and organized crime. 9

On July 26, 1979, Mayor Errichetti, who had since been introduced to the Abscam agents by Eden and Rosenberg, 10 and Howard Criden, a Philadelphia lawyer and associate of Errichetti, met with Weinberg and Amoroso on a yacht in Florida to discuss financing for a proposed casino that a client of Criden wished to build. During the day Amoroso and Errichetti discussed the problems that might face the wealthy Arabs who controlled Abdul Enterprises should an Iranian-type revolution occur in their country and they sought to come to the United States as permanent residents. Amoroso enlisted Errichetti's assistance in obtaining the "cooperation" of public officials and suggested that money would be no problem. Errichetti and Criden agreed and, on August 22, 1979, introduced the Abscam

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agents to Congressman Michael Myers, who accepted $50,000 in exchange for his promise to assist the wealthy Arabs. 11 Thus was introduced the "asylum scenario"--whereby members of Congress were paid bribes to ensure that they would introduce private immigration legislation on behalf of the wealthy Arabs if and when necessary--which ultimately caught Kelly. 12

B. Abscam's Introduction to Kelly

On September 10, 1979, Weinberg met with Rosenberg and sought his aid in locating politicians willing to assist his Arab employers to become permanent residents of the United States. 13 Weinberg outlined the assistance required, indicating that the Arabs would pay $25,000 to a member of the House of Representatives and $50,000 to a member of the Senate for their promise of future assistance. Weinberg suggested that Amoroso would "talk one and one and make the guy safe" at the time of the payoff. 14 In October 1979 Rosenberg related the proposal to a business associate and accountant, Stanley Weisz. Rosenberg told Weisz that the Arabs needed immigration assistance and that Weisz would receive a fee for the proper introductions. 15

On November 20, 1979, Weisz, while on vacation in Boynton Beach, Florida, met with his longtime business associate, Eugene Ciuzio. 16 During their conversation, Weisz related the Arabs' need for immigration assistance to Ciuzio. Ciuzio replied that he knew a congressman who might be willing to help the Arabs and indicated he would check with him and get back to Weisz. 17 In fact, Ciuzio had never discussed immigration matters with Kelly, having first met Kelly on October 1, 1979, in an Orlando restaurant. 18

Ciuzio promptly arranged to meet with Kelly at the Tampa airport on November 23, 1979. At that meeting Ciuzio told Kelly that he had some Arab clients with immigration difficulties and asked Kelly if he could help them. Kelly indicated that his office handled such matters routinely and that he would be glad to assist the Arabs, particularly since Ciuzio indicated they might invest in his district. 19 Ciuzio informed Kelly that he--Ciuzio--would receive a large fee if Kelly helped the Arabs;

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Kelly told Ciuzio that the fee would cause no difficulties. 20 Ciuzio promptly called Weisz from the Tampa airport and indicated that Kelly would be happy to help the Arabs. 21

In mid-December 1979 Weisz informed Rosenberg of Ciuzio's friendship with a Florida congressman who was willing to help the Arabs. 22 On December 16, 1979, Rosenberg called Weinberg and told him that he had a "candidate" who would assist with the Arabs' immigration problems. Rosenberg indicated that the individual was a congressman from Florida, that he wanted $250,000, and that payment would have to be on "an escrow basis." Weinberg suggested that the Congressman be paid $25,000 down, with the balance paid when legislation was required. Rosenberg agreed to set up a meeting with the Congressman at Abdul Enterprises' Washington, D.C., townhouse on January 8, 1980. 23 Rosenberg called Weisz and told him of Weinberg's positive response. Weisz gave Rosenberg Ciuzio's telephone number and agreed to call Ciuzio to ask him to contact Weinberg. 24 On December 17, 1979, Rosenberg again called Weinberg and explained that Weinberg would be contacted by "a fellow by the name of Gino [Ciuzio] who will handle all the arrangements for you and who will give you the person." 25

On December 19, 1979, Amoroso and Weinberg met with Ciuzio in Hollywood, Florida, and explained the assistance that would be expected of the Congressman. 26 Ciuzio indicated that the individual was Congressman Richard Kelly and intimated that he and Kelly had had previous dealings of a similar nature. 27 Ciuzio suggested that he told Kelly of the offer and claimed...

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