U.S. v. Kelly

• Citation: 888 F.2d 732
• Decision Date: 29 September 1989
• Docket Number: No. 88-8727,88-8727
• Parties: , 28 Fed. R. Evid. Serv. 992 UNITED STATES of America, Plaintiff-Appellee, v. Terence George KELLY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 732

888 F.2d 732

111 A.L.R.Fed. 787, 28 Fed. R. Evid. Serv. 992

UNITED STATES of America, Plaintiff-Appellee, v. Terence George KELLY, Defendant-Appellant.

No. 88-8727.

United States Court of Appeals Eleventh Circuit.

Sept. 29, 1989.

Michael Kennedy McIntyre, Atlanta, Ga., for defendant-appellant.

Donald F. Samuel, The Garland Firm, Atlanta, Ga., Paul S. Kish, Atlanta, Ga., and James G. Blanchard, Augusta, Ga., for amicus curiae.

James T. Martin, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, Chief Judge, JOHNSON, Circuit Judge, and YOUNG ^*, Senior District Judge.

JOHNSON, Circuit Judge:

Terence G. Kelly, a criminal defense attorney with no prior criminal record, appeals his conviction on one count of conspiracy to possess with intent to distribute one kilogram of cocaine under 21 U.S.C.A. Secs. 841(a)(1) and 846, and one count of aiding, abetting, and counseling the possession with intent to distribute of one kilogram of cocaine under 21 U.S.C.A. Sec. 841(a)(1) and 18 U.S.C.A. Sec. 2. For the reasons discussed below, we reverse on the ground of insufficiency of the evidence. We also discuss two other grounds for reversal presented by this case.

I. THE FACTS

Kelly's involvement in the conduct for which he was convicted grew out of his legal representation of two drug traffickers, Raul Restrepo and Cirilo Lazaro Figueroa. On October 31, 1985, Restrepo arrived in Atlanta with three kilograms of cocaine and was met by Figueroa, with whom he had had drug dealings for several years. Restrepo left the cocaine with Figueroa. One of the kilograms was yellowish in color; it was determined, after several unsuccessful sale attempts, that this kilogram was "no good" in quality, and Figueroa buried it. ¹ After several days, Restrepo attempted to sell the two remaining kilograms through Raul Montes. On November 6, 1985, Montes sold the two kilograms to a customer who turned out to be a Drug Enforcement Administration ("DEA") agent; he was arrested and the cocaine was seized. Restrepo was arrested the same day when he arrived at Montes's residence to pick up his share of the money. Restrepo sought Figueroa's help in retaining a lawyer, and Figueroa referred him to Kelly. ²

Kelly and Figueroa had had an attorney-client relationship since 1979. Aside from representing Figueroa in various legal matters, including a parole revocation hearing in 1982, ³ Kelly incorporated and represented an auto service station partly owned by Figueroa, and managed the station's financial affairs for a time. In 1986, he gave Figueroa a $10,000 loan for a real estate purchase, secured by a deed on Figueroa's home. Kelly had made a regular practice of representing drug defendants referred to him by Figueroa.

Restrepo testified that in his initial meetings with Kelly he told Kelly about Figueroa's involvement and possession of the third kilogram of cocaine, and that he asked Kelly to ask Figueroa to sell it so that the proceeds could be used to pay Kelly's attorney's fee. According to Restrepo, Kelly told Restrepo that Figueroa had already told him about Figueroa's possession of the third kilogram. Restrepo also testified that Kelly brought back a message from Figueroa a few days later that the kilogram was not salable and had been buried, that Figueroa was under too much pressure from police surveillance, and that Figueroa could no longer help Restrepo financially.

Kelly disputed all this at trial. He testified that Restrepo, at one of their first meetings, mentioned that Figueroa owed him money and was holding some "property" for him, and expressed anger that Figueroa was refusing to help him further with his legal fees. According to Kelly, Restrepo said that he had incriminating information on Figueroa, but then retracted that statement and said that he was just angry at Figueroa. Kelly testified that he informed Restrepo about the potential conflict of interest facing Kelly should Restrepo have incriminating information on Figueroa. Kelly testified that he went to Figueroa and asked him about Restrepo's claims, and was satisfied at the time, based on Figueroa's denials and Restrepo's retraction, that Figueroa was not holding any contraband for Restrepo. ⁴

Restrepo eventually decided to cooperate with the Government. He pleaded guilty on February 27, 1986, and was sentenced to a 10-year term on April 2, 1986. ⁵ After his guilty plea but before sentencing, Restrepo was debriefed by a DEA agent with Kelly present. According to Restrepo, Kelly asked him before the debriefing whether he planned to implicate Figueroa, and Restrepo indicated he did not. After the debriefing, however, Restrepo contacted the DEA agent and arranged a second interview the next day without Kelly's knowledge. At the second debriefing, Restrepo told the agent about the existence of the third kilogram of cocaine, that it was in Figueroa's possession, and that Kelly knew Figueroa had it but that Kelly was not otherwise involved. He also said Kelly had told him not to mention Figueroa's involvement.

On April 23, 1987, Restrepo made a recorded phone call to Kelly, ⁶ ostensibly about a legal matter concerning Restrepo's pending divorce. Restrepo told Kelly he needed to contact Figueroa in order to "get the money or ... the other thing." Kelly responded: "Yeah, yeah, right, right. As far as I know, it's just sitting somewhere. You know, it's yours, and ya know, and he's not gonna do anything with it." Pressed by Restrepo as to how to regain the "thing," Kelly first responded that he couldn't get involved with it. Then he added: "Ahh of course, [Figueroa] can't get involved, ah but if you sent someone to him or something like that, ah, you know, I don't I don't ..." Restrepo suggested "send[ing] a friend over there" or "maybe another guy who works for him or something like that." Kelly then said: "Well, I don't think he'd want to involve somebody else, ah, and I don't think he'd want to actually get anywhere near it himself." Kelly said it was a "ticklish situation," and that if Figueroa asked his advice, he would tell him "it's just not worth the risk." Kelly twice told Restrepo that "it's not worth it," and likened the "thing" at one point to a "time-bomb" that might go off if Restrepo got too close to it. Twice, however, Kelly mentioned that if Restrepo did send someone to Figueroa, "it would probably have to be someone he knows." Toward the end of the conversation, Restrepo said he would "try to do something like that." Kelly added: "Because otherwise he, he might just think ah he's being set up." They concluded by returning to the pending divorce matter.

Immediately after calling Kelly, Restrepo called Figueroa. After discussing his divorce, Restrepo asked if "that which was left there" was still "there." Figueroa responded that it was "there like you left it," and that "[a]t any rate, I told you, nothing can be done with that." Restrepo said he would talk to Kelly about it, and concluded by saying he would send Figueroa a message through Kelly.

On June 1, 1987, Restrepo mailed a letter to Figueroa in care of Kelly, containing half a photograph of Restrepo and instructions to Figueroa in Spanish to use the photo as a code so that Figueroa could give "what you are keeping for me" to the person presenting the other half. Kelly was out of town when the letter arrived at his office. When he returned on June 8, Restrepo called him and told him about the letter, and Kelly found it on his desk. On June 9, Kelly and Figueroa were at the city jail posting bond for an employee of Figueroa's service station, and Kelly gave Figueroa the unopened letter. As Figueroa opened it, Kelly observed the half-photo fall to the ground, and noticed that it was a picture of Restrepo. Without reading the letter, Kelly told Figueroa that he didn't know what Restrepo wanted, but that under no circumstances should Figueroa do what Restrepo wanted, and that Figueroa should have nothing to do with Restrepo.

In the afternoon of June 10, 1987, an undercover DEA agent posing as a friend of Restrepo's called Kelly and asked to meet with him, saying she had something Restrepo had given her. Kelly said he thought he knew what she was talking about; he asked if she meant half a photo of Restrepo and she said yes. Kelly said: "Okay, well I can meet with you but I don't think we can do anything, but I'll meet with you and explain." That evening, Kelly met with the woman and another DEA agent posing as her brother-in-law. They asked if they could pick up the package or money for Restrepo. Kelly said he knew why they were there, but that he didn't think anything could be done about the package or money they were expecting. When they asked to meet Figueroa, Kelly told them he would advise Figueroa not to meet with them because it was not in Figueroa's best interest. Kelly said that for all he knew they could be DEA agents attempting a set-up. He said he was a lawyer and could not afford to put himself in a situation where he might get into a legal bind; he also noted that Figueroa was a previously convicted felon who would get a lengthy sentence for any new offense. When they asked Kelly to call Figueroa for them, he refused, reiterating that as Figueroa's lawyer he believed it would not be in Figueroa's best interest. After leaving the meeting, Kelly did attempt to place a call to Figueroa but couldn't reach him. Later that evening, Kelly left a message with an employee of Figueroa's reiterating his previous advice that Figueroa have nothing to do with Restrepo or anyone acting on his behalf.

On June 15, 1987, Restrepo called Kelly again and expressed his disappointment that Figueroa had not yet given him the package or any money. Kelly responded that he was advising Figueroa not to do anything and that he would give Restrepo the same advice if their positions were reversed. In...