U.S. v. Kelly, 84-5035
| Decision Date | 16 November 1984 |
| Docket Number | No. 84-5035,84-5035 |
| Citation | 748 F.2d 691 |
| Parties | UNITED STATES of America, v. Richard KELLY, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Richard Kelly, pro se. Anthony S. Battaglia and Stephen J. Wein, St. Petersburg, Fla., (Appointed by this Court) were on brief, for appellant.
Daniel S. Seikaly, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Roger M. Adelman and Stephen R. Spivack, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Before BORK and SCALIA, Circuit Judges, and GESELL, District Judge of the United States District Court for the District of Columbia. *
Opinion for the Court filed by District Judge GESELL.
Former Congressman Richard Kelly has appealed his conviction by a jury on three counts charging conspiracy to commit bribery and to defraud the United States, 1 bribery, 2 and interstate travel to engage in bribery. 3 He primarily contends that the evidence of his entrapment by the Federal Bureau of Investigation was so overwhelming that no reasonable jury could have failed to have a reasonable doubt as to his guilt. After carefully examining the evidence, we have concluded for the reasons set out below that the jury had ample evidence to find that Congressman Kelly was not entrapped. Because all his grounds for appeal completely lack merit, we affirm the conviction.
This Court has already had occasion to summarize the basic facts of this case in United States v. Kelly, 707 F.2d 1460, 1461-67 (D.C.Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983), 4 and United States v. Weisz, 718 F.2d 413, 416-24 (D.C.Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1285, 79 L.Ed.2d 688 (1984), 5 and to discuss general background of the FBI Abscam investigation out of which it arose in these and other cases. 6 Only those facts that bear on Kelly's claims on this appeal need be brought into focus here.
On January 8, 1980, the FBI secretly videotaped Congressman Kelly accepting $25,000 in 100- and 20-dollar bills from an undercover FBI agent at a Washington, D.C., townhouse. 7 The indictment followed.
The aspect of the Abscam investigation leading to this bribe began in 1979 when FBI agent Anthony Amoroso took on the undercover role of one Tony DeVito, president of the fictitious Abdul Enterprises. Mel Weinberg, a convicted confidence man working with the FBI, posed as the organization's financial adviser. Abdul Enterprises purported to represent two wealthy Arab sheiks interested in investing in the United States. In the late summer of 1979, the pair told William Rosenberg, with whom they had had prior dealings, that the shieks would pay $25,000 for a member of Congress to introduce legislation allowing them to immigrate to the United States. Rosenberg 8 passed the word on to Stanley Weisz, an accountant. Weisz told Eugene Ciuzio, a business associate.
Kelly, a former Assistant U.S. Attorney and Florida Circuit Court judge, was in his third term in Congress when Ciuzio approached him in late November 1979 about helping with an unspecified immigration problem for an unnamed client of Ciuzio's. At the same meeting, the two discussed Kelly's debts. Kelly had first met Ciuzio in October 1979, and he thought Ciuzio, a self-described businessman who had promised to help Kelly earn speaking honorariums, was "a windbag or ... a crook." Tr. 2616. Nonetheless, Kelly agreed to help.
Ciuzio met the two principals, Weinberg and Amoroso, in Florida on December 19. Amoroso and Weinberg explained that Kelly would receive $25,000 as a down payment if he promised to introduce immigration legislation on behalf of one of the sheiks. 9 The next evening, Ciuzio telephoned Kelly in Washington. At Ciuzio's instructions, Kelly did not speak to Ciuzio from his home or office, but went to a pay telephone at a drugstore a few blocks from his home in suburban Virginia and called back Ciuzio collect.
On December 23, Kelly and Ciuzio met at an Alexandria, Va., restaurant. According to Kelly's testimony at trial, Ciuzio told him about two Arabs with an immigration problem who were willing to pay a total of $500,000 for Kelly's assistance. Ciuzio promised that Kelly would receive $25,000 just for attending a meeting with representatives of the Arabs and would receive another $100,000 at the time of providing his official help to the sheiks. The rest of the money would go to Ciuzio, Weisz and Rosenberg. In addition, the Arabs would invest $15 million in central Florida, most of it in Kelly's congressional district, to provide a cover story to explain Kelly's legislative advocacy for them. Kelly testified that he told Ciuzio "I would be glad to" help with the immigration problem but would not accept any money. Tr. 2665-66. However, Kelly agreed to attend a meeting with the Arabs' representatives, and Kelly assumed that Ciuzio would receive money from the Arabs because Kelly cooperated. Tr. 2697. Kelly recalled telling Ciuzio, Tr. 2666. Ciuzio set up the meeting for January 8, 1980.
On that day, Kelly flew from Florida to Washington for a speaking engagement and to attend the meeting arranged by Ciuzio. After meeting Ciuzio, Weisz and Rosenberg at the Madison Hotel, 10 Kelly went with them by chauffered limousine to the Arabs' townhouse on W Street in Georgetown. Kelly waited in the living room while Ciuzio went into the library with Weinberg. 11 The videotape 12 shows that Ciuzio tried to persuade Weinberg that the money should not be handed to Kelly.
Ciuzio: Don't hand him no fucking money, don't talk money, tell him what the problem is, how could ya help, he'll explain it ...
* * *
Weinberg: Let Tony hand you the money in front of him. Long as we know he's getting the money ...
Government Exhibit 2-C at 3, 10. Weinberg and Ciuzio left the library, and Amoroso and Kelly then met there alone. 13
Amoroso (known to Kelly as Tony DeVito) explained the proposal for Kelly to introduce immigration legislation on behalf of the two sheiks. The proposal was substantially the same as that made by Ciuzio, except that the second cash payment to be made upon introduction of the immigration bill was to be $75,000, not $100,000. Amoroso said he realized questions might be raised about why Kelly was acting on their behalf. Kelly immediately responded "I've got the reason." Ex. 2-C at 13. They agreed the reason would be investment by the Arabs in Kelly's district. Amoroso suggested the investment would take the form of a loan of $10 million to $15 million at favorable interest rates on a land development project designated by Kelly. Kelly responded, "All right, I've got the place." Id. at 15. After inquiring about interest rates, Kelly then asked, "Can I level with you?" Id. at 15. The following exchange occurred.
Kelly: Ok. Here's here's what the thing is. All of this stuff that you've been talking about is umm ahh, I don't know anything about that, I'm not involved with it and it doesn't make any difference. Th ... the situation that ... that exists that's ahh some kind of business transaction you've got with somebody, but here's here's what the thing is, umm ahh Gino [Ciuzio] and these guys are my friend ...
Amoroso: A hum.
After Amoroso reiterated that he had thought Kelly, not Ciuzio, would take the money, Kelly asked to meet with Ciuzio. Kelly and Ciuzio then met alone. 14 When Kelly and Amoroso resumed their conversation alone in the library, the following exchange occurred.
Id. at 22-23. Amoroso agreed to do that, but said it made it seem "you kinda didn't trust me." Id. at 23. Kelly then explained that "what kind of arrangements you got with him, it's ... it's ... it isn't gonna make any difference to you, it makes some difference to me, ok?" Id. at 24. Kelly reassured Amoroso he would perform the services requested by the Arabs.
K: and and...
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