U.S. v. Kelley

• Decision Date: 27 September 1994
• Docket Number: No. 92-3269,92-3269
• Citation: 36 F.3d 1118
• Parties: UNITED STATES of America, Appellee, v. John C. KELLEY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1118

36 F.3d 1118

308 U.S.App.D.C. 314

UNITED STATES of America, Appellee, v. John C. KELLEY, Appellant.

No. 92-3269.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 10, 1993.

Decided Sept. 27, 1994.

As Amended Sept. 27, 1994.

Appeal from the United States District Court for the District of Columbia (CR-92-0152).

Carol Elder Bruce, Washington, DC, argued the cause, for appellant. With her on the brief were Charles F.C. Ruff and Allan B. Moore, Washington, DC.

Merrick Garland, Washington, DC, argued the cause, for appellee. With him on the brief were J. Ramsey Johnson, John R. Fisher, Roy W. McLeese, III, and Mary-Patrice Brown, Washington, DC.

Before GINSBURG and RANDOLPH, Circuit Judges, and WILL, Senior District Judge. ^*

Opinion for the Court filed by Senior District Judge WILL.

WILL, Senior District Judge:

A jury convicted John C. Kelley on six counts charging conspiracy to commit bribery and to defraud the United States, in violation of 18 U.S.C. Sec. 371; bribery, in violation of 18 U.S.C. Sec. 201(b)(2)(A), (B), and (C); conspiracy to obstruct justice, tamper with a witness, and make false statements, in violation of 18 U.S.C. Sec. 371, and obstruction of justice, in violation of 18 U.S.C. Secs. 1505 and 1512. Kelley's motion for acquittal, or, in the alternative, for a new trial, was denied by the district court and Kelley was sentenced to 43 months' imprisonment followed by three years' supervised release, and ordered to pay restitution in the amount of $92,000.00. Kelley appeals his convictions and sentence, as well as the denial of his motions for leave to take foreign depositions, for a trial continuance, and for a new trial or acquittal. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm both the convictions and the sentence.

I. BACKGROUND

From approximately January 1987 through August 1990, John C. Kelley was a public official of the United States Agency for International Development ("AID"), holding positions including that of Deputy Director of Information Resources Management ("IRM"). While an employee of AID, Kelley had official duties, responsibilities, and authority in connection with two large-scale AID computer projects: the Contract Information Management System project ("CIMS"), and the Supreme Electoral Tribunal project (the "Electoral Project").

At trial, the government presented evidence to show that Kelley, while overseeing CIMS and the Electoral Project, conspired to solicit kickbacks from contractors in the two projects, and then conspired to conceal his activities.

A. Conspiracy, Bribery, and the CIMS Project

Count One of the indictment charged Kelley with conspiring with Edgardo Derbes, Basic Developments/Megasistemas, Alejandro Aguirre, and Jorge Figueroa to commit bribery; Count Two charged Kelley with the substantive crime of bribery itself. Both counts deal with Kelley's conduct in connection with the company Basic Developments/Megasistemas.

In 1988, AID began developing CIMS with the intention of enabling its Office of Procurement to track all private vendors and contractors doing business with the agency. Kelley was requested to oversee the CIMS project for AID. The creation of CIMS required the services of contractors skilled in the use of a specialized computer program called Professional Application Creation Environment ("PACE"). As manager of the project, Kelley searched for such contractors, and approached Pinkerton Computer Consultants, Inc. ("Pinkerton"), a supplier of other computer services to AID. Kelley suggested that if Pinkerton could not develop CIMS itself using PACE software, it could hire a competent subcontractor to do the work. Pinkerton did not have the in-house PACE expertise, and was unsuccessful in acquiring a new employee with the necessary expertise.

Because Pinkerton had been unsuccessful, Kelley recommended to Pinkerton three companies with PACE experience, including a small Guatemalan company called Basic Developments/Megasistemas ("Megasistemas"). After contacting Megasistemas owners Alejandro Aguirre and Jorge Figueroa, Pinkerton determined that Megasistemas was well-qualified to develop CIMS. Pinkerton officials met with Aguirre and Figueroa several times to discuss the project.

Aguirre and Figueroa also met with Kelley to discuss CIMS. Kelley suggested that Megasistemas submit a proposal to Pinkerton, and assisted Aguirre and Figueroa in its preparation. Aguirre testified ² that Kelley told them to include in their proposal the cost of purchasing three copies of PACE software at a total cost of $72,000.00. He further testified that Kelley edited the first draft of their proposal, deleting the specific reference to the $72,000.00 purchase of PACE copies and substituting vague language suggesting that Megasistemas would purchase "the software needed to develop CIMS." In June 1988, Megasistemas was awarded the subcontract.

Kelley acknowledged having made the changes to the proposal, but testified that he deleted the reference to PACE because AID already had the requisite copies of PACE, and, in any event, always purchased its software through an established State Department contract. However, Aguirre stated that Kelley did not inform him until several months after their proposal was written that Megasistemas would not be required to purchase any copies of PACE. Kelley denied ever discussing the inclusion of the cost of PACE in the proposal.

When Kelley later informed Aguirre and Figueroa that they would not have to purchase any PACE copies after all, they inquired about the $72,000.00 allocation for PACE copies. According to Aguirre and Figueroa, Kelley stated that he personally was entitled to the surplus $72,000.00. They further testified that Kelley told them that, if they wanted to be paid for their work on CIMS, they would have to pay him as he instructed. At trial, Kelley denied ever having stated that Aguirre and Figueroa should pay him the surplus $72,000.00, and that Megasistemas would not be paid if they refused.

Aguirre and Figueroa testified that Kelley agreed to accept the money in installments, the first of which was for $32,000.00 minus transaction costs. Aguirre described in detail the plan devised by Kelley to facilitate this payment. According to Aguirre, Kelley instructed them to "hire" Kelley's longtime friend, Edgardo Derbes, to provide consulting services to Megasistemas on the CIMS project. Although Derbes never provided any services to Megasistemas, Kelley presented Aguirre and Figueroa with two invoices--one for $32,000.00 and one for $40,000.00--which purported to show that Megasistemas had consulted with Derbes on the project. Kelley denied seeing the invoices prior to his preparation for trial.

According to Aguirre and Figueroa, Kelley also instructed them to establish a Panamanian "shell" corporation called Juldessy, which purported to be the consulting company with which Derbes was affiliated. Kelley instructed Aguirre and Figueroa to pay Juldessy rather than Derbes directly. Derbes, testifying pursuant to a plea agreement, claimed that Kelley told him to keep the money he received through Juldessy as a partial down payment on Kelley's upcoming purchase of Derbes' home on Sutton Place in Washington, D.C.

Kelley testified that Juldessy was a joint venture between Derbes and Megasistemas. He admitted that he had assisted Derbes in opening the Juldessy bank account, and in depositing a check for nearly $30,000.00 into the account. Kelley denied any agreement with Derbes that he would accept money on Kelley's behalf as part of the down payment on the Sutton Place house. Rather, he testified that Derbes had loaned him the down payment for the house.

In early 1989, Kelley approached Aguirre and Figueroa to demand the balance of the $72,000.00. He again agreed to accept the remaining balance in installments; this time there were to be two payments of $20,000.00 each. When Aguirre and Figueroa informed Kelley that they did not have the money, Kelley told them that he would authorize AID payments to them for work they had done on CIMS. Kelley testified that he in fact had no authority to approve payments on the CIMS project.

Aguirre and Figueroa agreed to make the first payment of $20,000.00. They testified that Kelley directed them to obtain several black market checks--that is, checks obtained by using foreign currency to purchase United States dollars from a foreign money broker--each for $5,000.00 or less, make them payable to Filberto Cavazos, and send the checks to Derbes. Cavazos was the boyfriend of Kelley's niece, Michelle Cruz. In July 1989, Kelley prevailed upon Cavazos to open a bank account in his (Cavazos') name, but which would be used exclusively by Kelley. After the account was opened, Cavazos turned over to Kelley all account documents, after first signing the seven blank starter checks.

Megasistemas received payments in June and July 1989 for actual work it performed on CIMS. In July 1989, Figueroa, following Kelley's instructions, obtained five black market checks and sent them to Derbes. The checks were deposited into the Cavazos account, and then Kelley turned the entire account over to Derbes, instructing him as to the seven starter checks signed by Cavazos. Kelley directed Derbes to make out one check to Cruz for use as a partial down payment on a condominium. Derbes made out a second check to an Oscar Pereira, which Kelley used to repay an outstanding loan to Pereira. Kelley told Derbes to use the remaining five blank checks as he wished (up to a certain amount), and that he should consider that money as an additional contribution towards the purchase of the Sutton Place home.

Kelley acknowledged his assistance in opening the Cavazos account, but testified that his initial intention was to hide proceeds of the sale of his former house from his temporarily estranged wife, Patricia Parera. He further testified that he did not...