U.S. v. Kelly

• Decision Date: 09 May 1986
• Docket Number: No. 85-5974,85-5974
• Citation: 790 F.2d 130,252 U.S. App. D.C. 308
• Parties: UNITED STATES of America v. Richard KELLY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 130

790 F.2d 130

252 U.S.App.D.C. 308

UNITED STATES of America v. Richard KELLY, Appellant.

No. 85-5974.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 18, 1986.

Decided May 9, 1986.

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

Daniel S. Seikaly, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Roger M. Adelman, Asst. U.S. Attys., were on brief, for appellant.

Before WALD, SCALIA and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Abscam defendant and former Congressman Richard Kelly appeals from the District Court's denial of his motion for a new trial based on newly-discovered evidence in the form of several affidavits by an FBI informant, James Davenport. Davenport's affidavits state that, in late July or August of 1980, he posed as a disgruntled former FBI agent, visited Congressman Kelly's office, discussed defense strategy with Kelly and his lawyer, and stole some documents relating to their trial strategy. We find that the District Court's failure to develop an evidentiary record before denying Kelly's motion warrants a remand. Kelly's motion for bail pending appeal is denied.

I. BACKGROUND

This is Congressman Kelly's third trip to this tribunal. Following conviction after a jury trial on bribery and other charges stemming from the FBI's Abscam investigation, the District Court dismissed the indictment against Kelly on due process grounds. This court subsequently reversed the dismissal and reinstated the jury verdict. United States v. Kelly, 707 F.2d 1460 (D.C.Cir.), cert. denied, 464 U.S. 908, 104 S.Ct. 264, 78 L.Ed.2d 249 (1983) [hereinafter cited as Kelly I]. On remand, the District Court denied Kelly's alternative motions for judgment of acquittal or a new trial and sentenced him, consecutively, to imprisonment for six to eighteen months on the bribery count and three years of probation on the other counts. This court affirmed the conviction on direct appeal. United States v. Kelly, 748 F.2d 691 (D.C.Cir.1984) [hereinafter cited as Kelly II]. Several months later, Kelly filed a motion for a new trial based on the newly-discovered evidence involved in this appeal. That motion was denied from the bench without opinion on September 19, 1985. Kelly began serving his sentence on November 1, 1985.

Kelly's motion for a new trial was filed pursuant to Fed.R.Crim.P. 33 and included several affidavits from former FBI informant James Davenport. In October of 1984, while in prison, Davenport had sworn out an affidavit for a different proceeding which cited his involvement with the Kelly case as one among many events in an eighteen year life of crime. Oct. 3, 1984, Davenport Affidavit ("Aff."). After learning of the affidavit through a letter from a reporter, Kelly Aff. p 14, Kelly contacted Davenport, who subsequently swore out several affidavits for use in Kelly's new trial motion which described a 1980 visit to Kelly's office, conversations with Kelly and his counsel about the forthcoming trial, and Davenport's theft of defense documents during the course of the visit. Davenport's allegations are described in more detail below; the incident described in the affidavits may be briefly summarized as follows.

Davenport first became an FBI informant in a Florida drug investigation in the late 1970's. After being placed in the federal witness protection program, Davenport remained in touch with FBI agents Harold Copus and Russ Duger who, in the early part of 1980, introduced him to another FBI informant, Mel Weinberg. Oct. 3, 1984, Davenport Aff. at 3-15; Nov. 1984 Davenport Aff. paragraphs 3-5; Feb. 20, 1985, Davenport Aff. at paragraphs 4-9. Weinberg, a convicted con man, worked with the FBI to set up the Abscam operation and posed as the financial adviser for the fictitious Abdul Enterprises. Kelly I, 707 F.2d at 1462 & n. 4; Kelly II, 748 F.2d at 693.

During the spring of 1980, Davenport and Weinberg agreed on a scheme to infiltrate the defense camps of the Abscam defendants, in which Davenport would contact the Abscam defendants and, after identifying himself as a disgruntled ex-FBI informant, offer to testify on their behalf about how Abscam worked. Davenport would also steal information about defense strategies and turn it over to Weinberg, who would sell it to the FBI. The two men would split Weinberg's bonuses and Davenport's witness fees. Feb. 20, 1985, Davenport Aff. p 21.

In accordance with this plan, Davenport travelled to Washington, D.C. in July-August 1980 and, using the name of James Driggers, offered his services to Congressman Kelly. Davenport succeeded in meeting with both Kelly and his attorney, Anthony Battaglia, spending most of the afternoon in Kelly's office discussing Kelly's trial defense strategy, and stealing copies of some legal papers including a witness list. These stolen documents were passed on to Weinberg. Feb. 20, 1985, Davenport Aff. paragraphs 22-28; Dec. 5, 1984, Davenport Aff. p 3; Kelly Aff. paragraphs 7-13; Battaglia Aff. paragraphs 6-11. Kelly and Battaglia subsequently decided not to use Davenport's services and forgot the incident until four years later when they were informed of Davenport's affidavit.

II. MOTION FOR A NEW TRIAL

A. Standards Governing New Trial Motion

The Federal Rules of Criminal Procedure allow a motion for a new trial based on newly-discovered evidence to be filed within two years after final judgment. Fed.R.Crim.P. 33. The grant or denial of such a motion is committed to the sound discretion of the trial judge and an appellate court will reverse only if the district court misapplied the law or abused its discretion. United States v. Mangieri, 694 F.2d 1270, 1285 (D.C.Cir.1982). In general, motions for a new trial based on newly-discovered evidence are governed by the five-part test of Thompson v. United States, 188 F.2d 652, 653 (D.C.Cir.1951). Under Thompson, a new trial will be granted only when five conditions are met:

(1) [T]he evidence must have been discovered since the trial; (2) the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied on must not be merely cumulative or impeaching; (4) it must be material to the issues involved; and (5) of such nature that in a new trial it would probably produce an acquittal.

Mangieri, 694 F.2d at 1285 (quoting Thompson, 188 F.2d at 653). The government contends that Kelly has failed to meet the last three elements of the Thompson test.

The Thompson test does not, however, govern motions for a new trial when the newly-discovered evidence indicates that the original trial was marred by a sixth amendment or Brady violation. In the Brady context, the Supreme Court has substituted a test focusing primarily on the materiality of the undisclosed evidence, with a "reasonable probability" of acquittal as an essential element of materiality. See infra at 135. In the sixth amendment context, the Court has refused to apply traditional standards governing new trial motions because "[t]he high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). In assessing whether a new trial motion adequately alleges a sixth amendment violation, this court has looked not to the Thompson standards but to whether the motion has "set forth evidence upon which the elements of a constitutional[ ] [violation] might properly be found." United States v. Pinkney, 543 F.2d 908, 916 (D.C.Cir.1976). ¹ One such element, in the sixth amendment context, is prejudice. See infra at 136-137.

Thus, we must evaluate Kelly's factual allegations to assess whether he has made enough of a showing to warrant a new trial or a hearing on his new trial motion. A motion for a new trial can ordinarily be decided on the basis of affidavits without an evidentiary hearing, United States v. Kearney, 682 F.2d 214, 219 (D.C.Cir.1982), and a district court's decision not to hold such a hearing may be reversed only for abuse of discretion, United States v. Chagra, 735 F.2d 870, 873 (5th Cir.1984). In the circumstances of this case, however, we find that the District Court's failure to develop any evidentiary record or to make any findings constituted such an abuse.

Kelly's motion for a new trial was based on newly-discovered evidence that, he alleged, demonstrated violations of his sixth amendment rights and his fifth amendment rights under Brady v. Maryland. His motions were supported by affidavits from himself, his attorney, and Davenport. He originally requested a hearing on the motion but withdrew the request after the government failed to contest the relevant factual issues by submitting counteraffidavits. The government did file an opposition to Kelly's motion denying that Davenport was acting as a federal agent and that prosecutors had seen the stolen documents, but without any accompanying affidavits to back up their denials. The District Court denied Kelly's motion from the bench without explanation.

The District Court abused its discretion by failing to hold an evidentiary hearing or to otherwise resolve the critical factual disputes raised by Davenport's affidavits and the government's negative responses to them. Kelly's affidavits portray his claims "materially and resolutely, and evinc[e], a capability of mounting a serious challenge." United States v. Pinkney, 543 F.2d 908, 916 (D.C.Cir.1976). In the absence of countervailing sworn evidence from the government, Kelly's allegations are--as explained below--sufficient to warrant further factual inquiry.

Although the District Court's failure to adequately develop a factual record is a sufficient ground for our remand, we are also concerned...