U.S. v. Kelly

• Decision Date: 20 July 1977
• Docket Number: No. 76-2782,76-2782
• Citation: 556 F.2d 257
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael A. KELLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 257

556 F.2d 257

45 A.L.R.Fed. 715

UNITED STATES of America, Plaintiff-Appellee, v. Michael A. KELLY, Defendant-Appellant.

No. 76-2782.

United States Court of Appeals, Fifth Circuit.

July 20, 1977.

Rehearing Denied Aug. 22, 1977.

James T. Allen, El Paso, Tex. (Court-appointed), for defendant-appellant.

John E. Clark, U. S. Atty., Leroy M. Jahn, Ronald P. Guyer, John M. Pinckney, III, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before AINSWORTH and MORGAN, Circuit Judges, and LYNNE, District Judge. ^*

LEWIS R. MORGAN, Circuit Judge:

Michael Anthony Kelly, a former Customs Patrol Officer, appeals his conviction on a two count federal indictment that grew out of his part in the warrantless break-in and attempted "bugging" of a suspected drug smuggler's home. We affirm.

I. FACTS AND PROCEEDINGS BELOW.

One night in early January of 1975, three Customs Patrol Officers of the United States Customs Service, Kelly, Wade, and Hough, and an informant, Kirkendall, set out to break into the El Paso, Texas home of a suspected drug smuggler. Their object was to hide a small radio transmitter there. Their purpose, they said later, was to obtain advance information about this person's movements. They made no attempt to obtain a warrant, as required by the Fourth Amendment, or the approval of the Attorney General of the United States, as required by 18 U.S.C. § 2516(1). Kelly, an electronics expert, had constructed the transmitter from a sensor device of a kind ordinarily planted near the United States-Mexico border to monitor unauthorized border crossings.

The four men drove to the street where the subject's home was located. Wade went to the house and knocked on the door to make sure no one was inside. When he returned, Kirkendall went to the house, broke in, and looked for somewhere to hide the transmitter. Kelly, Wade, and Hough remained outside, keeping a lookout for the home's occupant and for El Paso police. After a time Kirkendall returned, having failed to find a suitable place to hide the transmitter. He brought with him a radio monitor and some papers that he had taken from the house. The four men left.

In May of 1975 another informant, identified in the proceedings below by the pseudonym "Mr. Smith," made allegations to Internal Affairs agents of the Customs Service concerning a number of instances of wrongdoing by Customs Patrol Officers. Internal Affairs began an investigation which brought to light the break-in described above, among other things. Kelly was questioned by Internal Affairs agents in the office of the district director of the Customs Patrol in El Paso on June 10, 1975; by Internal Affairs agents, Drug Enforcement Administration personnel, and Assistant United States Attorney Ederer in Ederer's office in the El Paso federal courthouse on June 11, 1975; and by Internal Affairs agents Kyle and Reimann at a motel in El Paso on August 24, 1975. On all three occasions Kelly was given his Miranda rights, waived them, and discussed his involvement in the break-in. These statements were recorded and later transcribed. Kelly also appeared before a federal grand jury in El Paso on August 14, 1975.

On March 10, 1976 the federal grand jury in El Paso returned a two count indictment against Kelly, Wade, and Kirkendall, charging that they had willfully endeavored to use an electronic device to intercept and transmit oral communications in violation of 18 U.S.C. § 2511(1)(b) ¹ and that they had conspired to do so in violation of 18 U.S.C. § 371. ² Hough was named as an unindicted co-conspirator. ³

Kelly filed pretrial motions requesting that Judge Sessions recuse himself from presiding over the case, that Kelly's August 24, 1975 statement to Kyle and Reimann be suppressed, and that the indictment be dismissed on the ground of selective prosecution. All three motions were denied, the latter two after an evidentiary hearing.

Before the case went to trial, Kirkendall pleaded guilty to a reduced charge of willfully under color of law depriving an inhabitant of a state of rights secured by the Constitution in violation of 18 U.S.C. § 242. He was sentenced to one year of probation. Kelly and Wade went to trial on June 7, 1976. During the course of trial, the case against Wade was dismissed because it was based on a statement by him taken under an implied grant of use immunity. The case against Kelly continued.

The government read portions of Kelly's June 10, June 11, and August 24 statements to the jury during its case in chief. At the close of the government's evidence, the district court denied Kelly's motion to direct a verdict of acquittal. Kelly then testified on his own behalf and presented other evidence. He did not renew his motion for acquittal at the close of all the evidence.

The thrust of Kelly's defense was that he thought his actions were lawful because he thought his Customs Service superiors had approved those actions. Neither Kelly, nor Hough, nor Wade, nor Kirkendall testified that any supervisor ever had given them express prior approval to carry out the operation. As we shall detail at greater length later, Kelly and Wade testified that they nonetheless had thought their superiors knew about the operation before it took place. This testimony was impeached by prior inconsistent statements of both men. Hough and Kirkendall testified that their superiors had not known about the operation in advance.

The jury was instructed that specific intent was an element of the offenses charged and that, "evidence that the accused acted or failed to act because of ignorance of the law is to be considered by the jury in determining whether or not the accused, Mr. Kelly, acted or failed to act with the specific intent as charged." The jury found Kelly guilty on both counts of the indictment. The district court sentenced Kelly to the custody of the Attorney General for two consecutive two year terms, suspended the sentence, and placed Kelly on five years' unsupervised probation on each count.

Kelly appeals, assigning four grounds of error. First, he argues that the district court erred in denying his motion to suppress his August 24, 1975 statement because that statement was not shown to have been made voluntarily. Second, he argues that Judge Sessions erred in declining to recuse himself because the judge was the United States Attorney for the district in which the indictment was brought at the time the allegedly unlawful acts were committed. Third, he argues that the district court erred in denying his motion to dismiss the indictment on the ground of selective prosecution and in unduly limiting the scope of evidence that he was allowed to present in support of this ground. Finally, he argues that the district court erred in refusing to direct a verdict of acquittal, based on his supposed good-faith belief that his acts were not unlawful and that his Customs Service superiors had approved the break-in and attempted bugging. For the reasons that follow, we find all four grounds to be without merit.

II. MOTION TO SUPPRESS THE AUGUST 24, 1975 STATEMENT.

Kelly moved to suppress the statement that he made to Customs Service Special Agents Kyle and Reimann on August 24, 1975 on the ground that the statement was not made voluntarily. The district court held the required evidentiary hearing, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and denied the motion. Our review of this ruling is limited to determining whether the district court's finding that the statement was made voluntarily was clearly erroneous. United States v. Vasquez, 534 F.2d 1142, 1146 (5th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976). We hold the finding was not clearly erroneous.

Kelly quit his job with the Customs Service in June of 1975, shortly after the case began to surface, and went to New York. In August of that year, Special Agent Maloof of the Office of Internal Affairs of the Customs Service, who was supervising the investigation, telephoned Kelly in New York and asked whether Kelly would return to El Paso to give a statement to other Internal Affairs agents. At the suppression hearing, Kelly testified that Maloof had told him not to bother to make the trip if he intended to invoke his Fifth Amendment privilege. Record Vol. 3 at 358-59.

Kelly flew to El Paso on the evening of August 24. Agents Kyle and Reimann met him at the airport and drove him to a motel where a room had been reserved for him. Kelly got to the motel between 9 and 10 p. m. and spoke briefly with Maloof. From this point on, Maloof's, Kyle's, and Reimann's accounts differ from Kelly's.

Maloof testified that when Kelly arrived at the motel, he asked Kelly how he felt and whether he was tired from the trip. Maloof stated that Kelly said he was not tired, that he would prefer to give the interview that night, and that he had a toothache. When Maloof suggested that they postpone the interview until the next day, he said, Kelly repeated that he wanted to do it that night. Record Vol. 3 at 202. Reimann also testified that Kelly volunteered to give the interview that night rather than the next day. Id. at 344-45.

Maloof testified that Kelly did not appear to be intoxicated and that his speech was not slurred, his eyes were not bloodshot, and his walking was stable. Record Vol. 3 at 204. Kyle also testified that Kelly's physical condition appeared to be normal. Id. at 98-99.

After Kelly registered at the motel, he, Kyle, and Reimann went to the agents' room for the interview. Kyle started a tape recorder and read Kelly his Miranda rights, and Kelly said that he understood and would waive those rights. Record Vol. 3 at 96-98, 361, 364-65; Defendant's Exhibit 2-Ke at 2. The interview, which covered a number of topics in addition to the break-in, lasted about four hours. During that time Kelly went to his own...